Sanna Halaswamy S/O Late N. ... vs The State Of Karnataka
2021 Latest Caselaw 5804 Kant

          IN THE HIGH COURT OF KARNATAKA
                   DHARWAD BENCH

   DATED THIS THE 09TH DAY OF DECEMBER, 2021

                       PRESENT

   THE HON'BLE MR.JUSTICE SURGAJ GOVINDARAJ

                            AND

          THE HON'BLE MS.JUSTICE J.M. KHAZI

CRL.A. NO.100250/2018 C/W CRL.A. NO.100075/2021

IN CRL.A. NO.100250/2018:

BETWEEN
SANNA HALASWAMY
S/O LATE N. THIPPANNA
AGE 41 YEARS, OCC AGRICULTURE
R/O GEDDALAGATTI VILLAGE,
TQ KUDLIGI, DIST BALLARI.
                                           ...APPELLANT
(BY SRI.T.HANUMAREDDY, ADV.)

AND
THE STATE OF KARNATAKA
REP. BY THROUGH CPI,
KUDLIGI CIRCLE, KUDLIGI,
GUDEKOTE POLICE STATION,
BALLARI DISTRICT,
NOW BY STATE PUBLIC PROSECUTOR,
HIGH COURT OF KARNATAKA, DHARWAD.
                                         ...RESPONDENT
(BY SRI.V.M.BANAKAR, ADDL. SPP)

     THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374(2)
OF CR.P.C., PRAYING TO SET ASIDE THE IMPUGNED JUDGMENT
AND ORDER OF CONVICTION DATED 20.07.2017 AND
SENTENCE DATED 24.07.2017 PASSED IN SC.NO.5018/2015 BY
THE III ADDL. DISTRICT & SESSIONS JUDGE, BALLARI
                             2


(SITTING   AT  HOSAPETE)    AND    TO   ACQUIT THE
APPELLANT/ACCUSED NO.1 FOR THE OFFENCE PUNISHABLE
UNDER SECTION 302 READ WITH SECTION 34 OF IPC.

IN CRL.A. NO.100075/2021:

BETWEEN
SAVITHA ALIAS SAVITHAMMA
W/O. LATE D. BASAVARAJ
AGE 41 YEARS, OCC HOUSEWIFE,
R/O GEDDALAGATTI VILLAGE,
TQ KUDLIGI, DIST BALLARI,
NOW VIJAYANAGAR-583135.
                                            ...APPELLANT
(BY SRI.T.HANUMAREDDY, ADV.)

AND
THE STATE OF KARNATAKA
THROUGH CIRCLE INSPECTOR OF POLICE,
KUDLIGI CIRCLE, KUDLIGI,
GIDEKOTE POLICE STATION,
DIST BALLARI, NOW VIJAYANAGARA,
REP. BY SPP, HIGH COURT OF KARNATAKA,
DHARWAD-583130.
                                          ...RESPONDENT
(BY SRI.V.M.BANAKAR, ADDL. SPP)

      THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374(2)
OF    CR.P.C.  PRAYING   TO   CALL   FOR   RECORDS    IN
S.C.NO.5018/2015 DATED 20.07.2017 ON THE FILE OF THE
III ADDL. DISTRICT AND SESSIONS JUDGE, BALLARI, (SITTING
AT HOSAPETE) AND ALLOW THE APPEAL SET ASIDE THE
JUDGMENT OF CONVICTION dated 20.07.2017 AND SENTENCE
DATED 24.07.2017 IN S.C.NO.5018/2015 ON THE FILE OF THE
III ADDL. DISTRICT AND SESSIONS JUDGE, BALLARI (SITTING
AT HOSAPETE) FOR OFFENCE PUNISHABLE UNDER SECTION
302 READ WITH SECTION 34 OF IPC AND CONSEQUENTLY
ACQUIT THE APPELLANT FROM ALL THE CHARGES LEVELLED
AGAINST HER.

     THESE CRIMINAL APPEALS HAVING BEEN HEARD AND
RESERVED FOR JUDGMENT ON 17.11.2021, COMING ON FOR
PRONOUNCEMENT OF JUDGMENT THIS DAY, J.M.KHAZI J.,
DELIVERED THE FOLLOWING:
                                          3




                                 JUDGMENT

These two appeals are filed by accused Nos.1 and 2

challenging their conviction and sentence for the offence

punishable under Section 302 read with Section 34 of IPC.

2. Vide the impugned judgment and order,

accused Nos.1 and 2 are sentenced to undergo

imprisonment for life and pay fine of Rs.5,000/- each, in

default of payment of fine, they shall undergo

imprisonment for one month each.

3. Since these two appeals are arising out of

common judgment, they are heard and disposed off

together.

4. For the sake of convenience, the parties are

referred to by their rank before the Trial Court.

5. The allegations against the accused persons

are that accused No.2, the wife of deceased was having

illicit relationship with accused No.1 and since the

deceased was frequently quarreling with the accused No.2

doubting that she is having illicit relationship with accused

No.1 and preventing her from going to coolie work in the

land of accused No.1, both accused Nos.1 and 2 decided to

eliminate him so that they can continue with their illicit

relationship. In furtherance of this intention, on

12.11.2014 at about 11:15 p.m. while the deceased was

sleeping in front of his hut with accused No.2, accused

No.1 came and assaulted the deceased with a stone on his

head, as a result of which he sustained bleeding injuries

and while undergoing treatment, he succumbed to the

injuries on 16.11.2014.

6. Accused Nos.1 and 2 pleaded not guilty to the

charge framed for the offence punishable under Section

302 read with Section 34 of IPC.

7. In support of the prosecution case, 27

witnesses are examined as PWs.1 to 27 and Exs.P1 to 22

and MOs.1 to 5 are marked.

8. During the course of their statement under

Section 313 Cr.P.C., except denying the incriminating

material, the accused have not come up with any specific

defence. They have not led any defence evidence on their

behalf.

9. Vide the impugned judgment and order, the

learned Trial Judge has convicted the accused Nos.1 and 2

holding that the contradictions pointed out by the defence

are minor, not going to the root of the prosecution case

and came to the conclusion that the charges levelled

against the accused Nos.1 and 2 are proved beyond

reasonable doubt and accordingly convicted and sentenced

them.

10. During the course of the arguments, the

learned counsel representing the accused Nos.1 and 2

submitted that the judgment and order of conviction and

sentence are bad in law and liable to be set aside.

11. He would further submit that inspite of the fact

that there is no legal evidence to connect the accused

persons with the alleged crime, the learned Trial Judge has

convicted and sentenced the accused persons more on

moral grounds rather than on legal evidence. Any amount

of grave suspicion will not take the place of legal proof.

12. He further submitted that admittedly there are

no eye witnesses to the alleged incident and the entire

case of the prosecution is based on circumstantial

evidence. However, the prosecution has miserably failed to

prove any of the circumstances.

13. He would further submit that the only ground

on which the charge sheet came to be filed against the

accused Nos.1 and 2 are that they are having illicit

relationship. However, prosecution has miserably failed to

prove the alleged illicit relationship between them and

consequently, the very foundation of the prosecution case

is not proved and prays to allow the appeals and set aside

the conviction and sentence.

14. On the other hand, the learned Additional SPP

supports the impugned judgment and order of conviction

and prays to dismiss the appeals.

15. We have heard arguments of both counsel and

perused the records.

16. Accused No.2 is the second wife of deceased.

Deceased is having a son and a daughter through his first

wife and after the death of his first wife, he married

accused No.2 as his second wife.

17. It is the definite case of the prosecution that

accused No.2 used to go to the land of accused No.1 as a

coolie and they developed illicit relationship between them

and this was objected to by the deceased and he used to

quarrel with accused No.2 and was preventing her from

going to the land of accused No.1 for coolie work.

Therefore, accused Nos.1 and 2 hatched a plan to

eliminate the deceased so as to go on with their illicit

relationship.

18. PWs.1, 2 and 8 are the brothers of the

deceased, PW.6 is the mother, PW.7 is the daughter and

PW.10 is the son of deceased. PWs.4, 11 to 14 are the

acquaintance of the deceased and accused No.2. All of

these witnesses have deposed that the accused Nos.1 and

2 are having illicit relationship and this was objected to by

the deceased. They have deposed that there used to be

frequent quarrel between the deceased and accused No.2

and he was not in favour of accused No.2 going to the land

of accused No.1 for coolie work, as he was suspecting that

she is having illicit relationship with him. All of these

witnesses have given their evidence on the aspect of

alleged illicit relationship between the accused Nos.1 and 2

on the basis of suspicion.

19. There is no definite evidence adduced through

these witnesses by the prosecution to prove the allegation

of illicit relationship. All that these witnesses have deposed

is that in the village there were rumors regarding their

illicit relationship. Though PW.12 has deposed that about

four months prior to the date of incident, while he had

gone to his brother's land, he saw accused Nos.1 and 2

together in the halla (ºÀ¼Áî) and on seeing him, they ran

away from the spot. No further details are forthcoming as

to on what basis, he came to the conclusion that they are

having illicit relationship. PW.13 has deposed that on the

previous day of the incident, while he went to collect water

from the tap, he heard accused No.1 telling accused No.2

that he is going to Jangamasovenahalli and on the night of

the incident i.e., at 09:00 p.m., while he was waiting at

the bus stop, he found accused No.1 alighting from the

bus.

20. On the basis of the evidence of these two

witnesses, that they found accused Nos.1 and 2 together

and heard them speaking to one another, it cannot be

accepted that they were having illicit relationship. The

evidence led by the prosecution regarding the alleged illicit

relationship between accused Nos.1 and 2 is only suspicion

expressed by these witnesses. There is no concrete

evidence on this aspect. Therefore, we hold that the

prosecution has failed to prove one of the important chain

of the circumstance that accused Nos.1 and 2 were having

illicit relationship and that was the reason for them to

eliminate the deceased.

21. So far as the actual incident, the evidence of

PWs.1, 2, 4, 6, 7, 8, 10, 11 to 14 is to the effect that on

the night of the incident at around 10:30 p.m., they heard

the loud cries of accused No.2 and when they went to the

spot they found the deceased with bleeding injuries to his

head and the rug and the bed sheet on which he was

sleeping were blood stained. Immediately he was shifted

to the hospital in the autorickshaw to Kudligi and on the

advice of the Doctors, he was taken to VIMS Hospital,

Ballari in an ambulance. Accused No.2 who was present at

the spot informed them that one person assaulted the

deceased with the stone and ran away. It is very

unfortunate that after the assault, the deceased became

unconscious and he never regained consciousness.

Consequently, there is no material on record to show

whether deceased was able to identify his assailant.

According to the version of the witnesses, the deceased

never regained consciousness. The prosecution has not

produced any documents regarding the admission and

treatment of the deceased to ascertain whether at any

point of time he became conscious and was in a position to

give statement. Admittedly, the statement of the deceased

was not recorded. Consequently, the evidence placed on

record regarding the actual assault on the deceased is not

sufficient to accept the involvement of accused Nos.1 and

2.

22. According to the prosecution, after arresting

the accused No.1, on his voluntary statement, a stone

(MO.5) which was used by him for commission of the

offence is recovered at his instance. PW.5-Siddanagouda is

a witness to the recovery of MO.5. He has deposed that

accused No.1 led them to the village and pointed out a

stone which was fallen near the land of one

Channamallappa and the same was seized through

mahazar at Ex.P4. During his cross-examination he has

stated that the said stone was around 100 metres away

from the scene of occurrence. However, in his alleged

voluntary statement, the accused No.1 has stated that he

concealed the stone which was used for commission of the

murder and if he is taken to that spot he will point out the

same. But as evident from Ex.P4, as well as the

photographs at Exs.P18 and 19, accused No.1 is taking out

a stone which is lying by the side of the road and pointing

out the same as the one used by him to commit the

murder. Admittedly, the stone in question is not having

any blood stains. In fact, while examining the said stone,

PW.20-Dr.Yogiraj has specifically stated that the stone

which was sent for examination was not stained with any

blood. Consequently, it is not sent for chemical

examination.

23. During the course of his alleged voluntary

statement, the accused No.1 has stated that during the

course of the incident, his clothes became blood stained,

but he has washed them. Admittedly, the Investigating

Officer has not recovered the clothes of accused No.1

which he was wearing at the time of the incident and it is

not subjected to any chemical analysis.

24. In the absence of these aspects, the oral

testimony of PWs.1, 2, 4, 6, 7, 8, 10 to 14 regarding they

having suspicion about accused Nos.1 and 2 having illicit

relationship and in the absence of any eye witnesses and

also clinching evidence to connect accused Nos.1 and 2 to

the alleged crime, we hold that the prosecution has

miserably failed to bring home the guilt to the accused.

However, the Trial Court based on such evidence has

convicted accused Nos.1 and 2 for the offence punishable

under Section 302 of IPC. It is more of a moral conviction

than a legal one. Consequently, the appeal filed by

accused Nos.1 and 2 deserves to be allowed and

accordingly, we proceed to pass the following order:

ORDER

(i) Criminal Appeal No.100250/2018 filed by accused No.1 and Criminal Appeal No.100075/2021 filed by accused No.2 are allowed.

      (ii)     The impugned judgment and order of
               conviction    dated      20.07.2017     in   S.C.

No.5018/2015 on the file of the III Addl. District and Sessions Judge, Ballari, sitting at Hosapete, is set aside.

(iii) Accused Nos.1 and 2 are acquitted of the offences punishable under Section 302 read with 34 of IPC.

(iv) Their bail bond stands discharged.

Sd/-

JUDGE

Sd/-

JUDGE Rsh