Havanna S/O Chandram Salotagi @ ... vs The State Of Karnataka
2021 Latest Caselaw 5889 Kant

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        IN THE HIGH COURT OF KARNATAKA
                KALABURAGI BENCH

  DATED THIS THE 10TH DAY OF DECEMBER, 2021

                       BEFORE

       THE HON'BLE MR. JUSTICE H.P.SANDESH

        CRIMINAL APPEAL No.200092/2015

BETWEEN:

HAVANNA S/O CHANDRAM SALOTAGI
@ MARAYAGOL
AGE : 41 YEARS, OCC: AGRICULTURE
R/O BHUYYAR, TQ.SINDAGI
DIST. VIJAYAPUR
(SOLE ACCUSED)
                                         ... APPELLANT

(BY SRI SHIVANAND V. PATTANSHETTI, ADVOCATE)

AND:

THE STATE OF KARNATAKA
R/BY ADDL.SPP
HIGH COURT OF KARNATAKA
KALABURAGI BENCH
(THROUGH INDI P.S.
DIST.VIJAYAPUR)
                                       ... RESPONDENT

(BY SRI GURURAJ V. HASILKAR, HCGP)

    THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374(2)
OF CRIMINAL PROCEDURE CODE PRAYING TO SET ASIDE THE
JUDGMENT OF CONVICTION AND ORDER OF SENTENCE DATED
29.08.2015 AND 10.09.2015 RESPECTIVELY PASSED BY THE II
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ADDL. SESSIONS JUDGE, VIJAYPUR IN S.C.NO.75/2014 AND
ACQUIT THE APPELLANT/ACCUSED.


        THIS APPEAL HAVING BEEN HEARD ON 29.11.2021 AND
RESERVED FOR JUDGMENT, COMING ON FOR PRONOUNCEMENT
THIS DAY, THE COURT DELIVERED THE FOLLOWING:


                            JUDGMENT

This appeal is filed challenging the judgment of

conviction and order of sentence passed in S.C.No.75/2014

dated 29.08.2015 and 10.09.2015 by the II-Additional

Sessions Judge, Vijayapura questioning the conviction

order passed against the appellant for the offence

punishable under section 304 Part-I of IPC.

2. The factual matrix of the case is that, the

prosecution has initiated proceedings against this appellant

who is the husband of deceased Sunanda and both were

residing in the farm house situated in R.S.No.41/1B of

Bhuyyar village along with their children. The appellant

herein had developed illicit relationship with one CW.16,

Vimalabai W/o Sharanappa Talwar of the same village for

the last three years prior to this incident and visiting her

house and also addicted to alcohol. In this regard, the

victim Sunanda was quarrelling with him to give up that

habit and also the relationship with the said woman for

which the accused was angry. On 15.02.2014, at about

6.30 p.m., when he had come to the house with drunken

condition, his wife started abusing him and reiterated not

to continue the relationship with that woman and leave the

bad vice of drinking alcohol and again quarrel was started

and having fed up with the behavior of this accused, wife

went inside the house and told accused that she is going to

consume poison and opened the cap of the bottle and

when she was about to consume the poison, at that time,

accused became angry and told her that he would kill her

and why she wants to die by consuming poison and saying

so, he took up the farmers leather chappal and assaulted

on her head, face and other parts of the body and pushed

her to the ground and throttled her neck and committed

the murder and hence, offence under section 302 of IPC is

invoked. The appellant/accused did not plead guilty and

claims for trial. Hence, the prosecution relied upon the

evidence of PW.1 to 17 and got marked documents at

Exs.P.1 to 35 and MOs.1 to 4. The accused was subjected

to give statement under section 313 of Cr.P.C., and

thereafter having considered the material on record, the

Trial Court convicted the accused and sentenced him for

the offence punishable under section 304-I of IPC and

sentenced him 10 years imprisonment with fine of

Rs.10,000/-. Being aggrieved by the same, the appellant

has filed the present appeal before this Court.

3. The main contention of the learned counsel for

the appellant before this Court is that none of the

witnesses have supported the case of the prosecution and

the trial Court has committed an error in convicting the

accused/appellant. P.W.1 is the brother of the deceased

Sunanda filed the complaint and P.W.2 and 3 are the

relatives of deceased and P.W.4 is the brother of the

accused. P.W.5 is the wife of the elder brother of accused.

P.W.6 is the neighboring land owner of accused and P.W.7

is the father of the deceased Sunanda and P.W.8, 9, 10

are the independent witnesses. P.W.11 and 12 are the

sons of the accused and deceased Sunanda. P.W.13 is the

concubine of the accused as per prosecution. P.W.14 is the

neighbourer of P.W.13 and all these material witnesses for

the prosecution have turned hostile and there is nothing on

record or any incriminating evidence against the appellant

herein. However, the Trial Court came to the conclusion

that the evidence of hostile witnesses cannot be thrown

out and convicted the appellant. The Trial Court ought to

have come to the conclusion that Investigating officer has

conducted a tainted investigation and the Court below has

also not put the incriminating circumstances to the

appellant and over all consideration of the material

available on record and the reasoning assigned by the Trial

Court against the probability and in criminal case it

requires the prosecution has to prove the case against the

accused/appellant beyond reasonable doubt. The very

principle of beyond reasonable doubt has not been

considered by the trial Court. Hence, it requires

interference of this Court.

4. The learned High Court Government Pleader

for the State would submit that the Court below has taken

note of medical evidence and offence is a heinous offence

and Court also taken note of Exs.P.30, P.32, P.34 and so

also FSL report. He contended that she had suffered the

head injury on account of assault by the husband with

hard object i.e., leather chappal which is used for the

agricultural purpose. The accused has not explained under

section 106 of the Indian Evidence Act, 1872 (for short

'the Act') since murder was taken place in the house of the

accused. The accused took the defence of alibi and the

same has not been proved and the Trial Court particularly

in paragraph-32 given the finding and the same cannot be

reversed.

5. Having heard the respective counsels and on

perusal of the material available on record and also the

grounds urged in the appeal, this Court has to reappreciate

the oral and documentary evidence and on perusal of

material on record the following points arise for

consideration before this Court:

i. Whether the Trial Court committed an error in coming to the conclusion that the prosecution has proved the case beyond reasonable doubt that this appellant/ accused had committed the murder of his wife?

    ii.      What order?


Point No.i

6. Having heard the respective counsels and also

grounds urged in the appeal, this Court has to

re-appreciate the evidence available on record. Having

perused the prosecution evidence it shows that the

prosecution mainly relied upon the evidence of P.W.1 to 17

out of that P.Ws.11 and 12 are the sons of deceased and

also this appellant. It is also important to note that P.W.1

is the brother of the deceased. P.W.7 is the father of the

deceased and these are the material witnesses to prove

the case against the accused. It is to be noted that

complaint averment disclose that P.W.1 on coming to know

about his sister has sustained injury, he went to the

hospital and found his sister who had suffered the injuries

and she was not in a position to speak, when she was

taken to the hospital for higher treatment, she was

declared as dead and thereafter the body was taken to the

house of her husband for cremation. On enquiry, the sons

of deceased sister P.Ws.11 and 12 have narrated that

there was a quarrel between the father and mother and

when mother tried to consume poison, at that time, the

accused/appellant assaulted her with hard object of his

chappal, as a result, she has sustained injuries and

neighbourers took her to the hospital. But witnesses who

have been examined before the Trial Court particularly

P.Ws.11 and 12 sons of the deceased have not supported

the case of the prosecution. No doubt, P.W.11 is aged

about 10 years at the time of giving evidence and he has

turned completely hostile and in the cross-examination

though suggestions are made in keeping the case of the

prosecution, nothing is elicited and it is suggested that his

father taunted her saying that not to take the poison, he

himself would kill her and assaulted his mother and the

said suggestion was denied. P.W.12 son of the deceased,

who is aged about 9 years at the time of giving evidence,

has completely turned hostile and nothing is elicited in the

cross-examination of P.W.12. These are the material

witnesses. The other witness P.W.1 is the brother of the

deceased and he speaks about he come to know about his

sister struggling for life and the neighbours have taken his

sister to the hospital and asked him to come to the

hospital and immediately he reached the hospital and

found that his sister was under treatment and she was not

in a position to talk, but he claims that accused was not

there in the hospital and doctor told them to take her to

the Indi Hospital and when she was taken to the Indi

hospital, the doctor examined and declared that she has

been brought dead. He also says that he enquired his

sister's sons, as to what had happened. They told that they

had gone out along with sheep for grazing and when they

returned, they found that their mother was struggling for

life in front of the house and they screamed and their

uncle came and took her to the hospital. This witness was

important and treated hostile. But in the cross-

examination, he admits photographs. Exs.P.1 to 7 but

denied all other suggestions made in keeping the case of

the prosecution and nothing is elicited. The other material

witness is P.W.7 who is the father of the deceased and he

also speaks with regard to performing the marriage of his

daughter and he also spoken nothing about the act of the

accused and this witness also treated as hostile. When he

was subjected to cross-examination in keeping the case of

the prosecution nothing is elicited. Having perused these

material witnesses, particularly the sons of the deceased,

brother and father of deceased, though there is

incriminating evidence against the accused, the

prosecution relied upon the evidence of the doctor, P.W.16

who conducted the post mortem examination and he has

spoken with regard to the nature of injuries and found

those injuries were anti-mortem in nature. The cause of

death was not given immediately and FSL report was

awaited and on receipt of FSL report, he has given the final

opinion in terms of Ex.P33. The cause of death is due to

injuries sustained over head and frontal aspect of neck due

to hard and blunt object causing acute respiratory failure.

It is also evident that if a person is assaulted with MO.2

Chappal, the injury observed on the deceased are possible

and he gave the opinion by examining MO.2, in terms of

Ex.P.34. He admits in the cross-examination, that he did

not mention the measurement of the injury and colour of

the injury and also number of nail marks on either side of

the neck. There was no fracture of skull, the external

injuries mentioned by him are simple in nature. There was

no contusion injury on the frontal aspect of the neck and

acute respiratory failure is not heart attack. If a person is

assaulted with MO.2, it may leave imprints and he cannot

definitely say, that MO.2 could have caused all these

injuries and that there may be other material object as

suggested.

7. Having considered the medical evidence, no

doubt in chief-examination he says that if a person is

assaulted with MO.2 like chappal, the injury found on the

body of the deceased could be caused. But in the cross-

examination he admits that he has not mentioned the

measurement of the injury, colour of the injury and

number of nail marks and there was no fracture of skull

and there was only simple injury. Apart from that, he

categorically says that if a person is assaulted with MO.2

chappal, it may leave the imprints on the injured and no

such imprints are found on the dead body. Further he

admits that he cannot definitely say that MO.2 could have

caused all these injuries.

8. Having considered the medical evidence also

and in order to prove the case of the prosecution that

MO.2 was used and those injuries would have been caused

with MO.2, there is no definite evidence. No doubt, in the

post mortem report injuries are mentioned and even

external injuries are mentioned, though it is the case of

the prosecution that she was strangulated, there was no

evidence of strangulation and final opinion was given in

terms of Ex.P33 wherein it is mentioned that cause of

death is due to injuries sustained over head and frontal

aspect of neck, due to hard and blunt object, causing acute

respiratory failure. It was mentioned that there was no

fracture of skull and injuries are simple in nature, there is

no definite opinion causing acute respiratory failure and no

such imprint marks were found on either side of the neck

of the dead body by MO.2. When these are the bleak

evidence available before the Court, particularly children,

father and brother of the deceased have not supported the

case of the prosecution. The Trial Court convicted the

accused only on the ground that plea of alibi has not been

proved. No doubt, the accused took the defence that he

was not in station on the date of the incident, it is settled

law also once the accused takes the plea of alibi, he has to

prove the plea of alibi and the same cannot be a ground to

convict the accused in the absence of incriminating

evidence against the accused. Having perused the

statement under section 313 of Cr.P.C., of accused, it is

rightly pointed out by the appellant's counsel that nothing

was put to him as deposed by the witnesses against the

accused, since those witnesses have not given any

incriminating evidence against the appellant. But in the

statement under section 313 of Cr.P.C., he claims that he

went to Indi hospital after her death and body was brought

to the village and he was also there and none of the

witnesses have spoken anything about this appellant in

their evidence. Only P.W.3 says that she saw one injury on

the forehead of deceased and he claims that no such injury

was found. Having considered the statement of the

accused under section 313 of Cr.P.C., only evidence of

P.W.16 doctor regarding the injuries found on the victim

put to the accused and he denies as false, but no

explanation was given by the accused with regard to

sustaining injury by his wife. The Trial Court while

convicting the accused in paragraph No.27 discussed that

prosecution could not directly prove the motive for quarrel

between the deceased and accused. But that is not

significant for the simple reason that the prosecution is

able to prove the crime purported by the accused in order

to come to such a conclusion, no materials are found and it

is also observed that in order to prove illicit relationship,

the Court cannot expect direct evidence and no doubt it

can be proved by circumstantial evidence. P.W.13,

according to the prosecution, with whom the accused had

illicit relationship, was also examined and nothing is

elicited in the cross-examination of P.W.13, to come to the

conclusion that there was illicit relationship between her

and the accused. No doubt, the prosecution relied upon the

evidence of Investigating Officer, but in the absence of

witnesses who have witnessed the incident of assault

made by this accused, the Trial Court ought not to have

come to the conclusion that this accused only committed

the offence of murder and further observed in the

statement of accused under section 313 of Cr.P.C., that it

is not just a formality and further observed that he has

pleaded the defence of alibi, he should have stated

specifically where exactly he has gone, when he received

the death message of his wife and when he returned to the

house and after returning why he did not lodge the

complaint and participate in the investigation. But in the

case on hand, all these circumstances ought to have

explained by the accused when there was no incriminating

evidence against him. I have already pointed out that none

of the witnesses have spoken anything about the act of the

accused and the Court cannot draw an inference or

presume the things in order to convict the accused. It is

settled law that while convicting the accused, the

prosecution has to prove the case beyond reasonable

doubt and not on preponderous of probability and the

discussion made by the Trial Court in paragraph-25 that

accused has not explained amounts only to preponderous

of probability, since he was apprehended after giving the

complaint and when he was not found, no doubt, the

incident has taken place in the farm house and it is

important to note that witnesses particularly P.W.11 and

12 in their evidence, stated that mother was struggling but

it is not their evidence that their father was there in the

house, at that time both of them deposed that when

mother was struggling, they screamed and their uncle

came to the spot and took her to the hospital. When such

being the evidence available before the Trial Court, the

Trial Court ought not to have convicted the accused, in the

absence of any corroborative piece of evidence. No doubt,

when the death was taken place in the farm house

belonging to the accused, he has to explain under section

106 of the Act. In order to explain under section 106 of the

Act, also there must be positive evidence that he was

there in the house on the date of the incident when

deceased sustained injuries. In order to prove the said

fact, he was in the house itself on that day itself, no

material is placed by the prosecution. It is also important

to note that according to the prosecution, the injured had

sustained the injuries which are found in the dead body

and injuries were sustained by the sister of the

complainant and the same came to his knowledge at

around 7.30 p.m., and also in the complaint, time is

mentioned as 6.30 p.m., and though in the complaint,

Ex.P1, it is stated that incident has taken place at

6.30 p.m., and the same was witnessed by P.Ws.11 and

12. It is clear that incident has taken place at 6.30 p.m.,

and I have already pointed out that it is not in night and

also Ex.P3, goes to disclose that it was a thatched hut and

there are chances of people can enter the thatched hut

and there was no permanent fixture door and the same is

also located in the agriculture land and Exs.P.2 and P.3

depict the place where the body was found and also

thatched shed. Hence, when these are the material

available on record, the Trial Court ought not to have come

to the conclusion that this accused only committed the

murder. No doubt, the Trial Court has relied upon several

judgments of the Hon'ble Apex Court while convicting the

accused but each facts of the case has to be taken note of

whether the principles laid down in the judgments are

applicable to the facts and circumstances of the case. In

the case on hand, I have already pointed out that there is

no incriminating evidence against the accused and the Trial

Court relied upon the evidence of P.Ws.11 and 12

particularly in the evidence, it is stated that when his

mother's body was brought back, his father was not there

but he did not know where he had gone and also he did

not see whether his father accompanied his mother along

with his uncle to the hospital. The said evidence is not a

positive evidence but he says that he did not see whether

his father has been accompanied his mother along with his

uncle while taking her to the hospital. But in the

statement of the accused under section 313 of Cr.P.C., he

categorically says that he went to the hospital. The Trial

Court in paragraph No.26 also observed that the disturbing

feature in this case, as evident from the conduct of the

accused and conduct of the witnesses, who have falsely

deposed that this accused and wife were very cordial,

which virtually falsified from the conduct of the accused,

who did not get disturbed on the homicidal death of his

wife and do not raise his little finger by lodging any

complaint. No doubt, the accused has not lodged any

complaint but that cannot be a presumption that he only

committed the murder. I have already pointed out that it is

important to note where his house is located and also the

occurrence of the alleged incident, anyone can enter the

thatched hut but only on the ground that he has not given

any complaint, the Court below ought not to have come to

the conclusion that conduct of the accused is not

believable and so also the witnesses have not supported

the case of the prosecution. In order to come to the

conclusion that witnesses have falsely deposed that

accused and his wife were very cordial but no evidence

before the Court that their relationship was not cordial.

Hence, the Trial Court has committed an error in coming to

the conclusion that this accused has only committed the

murder. No doubt, the Trial Court brought the offence of

the accused under section 304 Part-I of IPC unless the

prosecution has proved the case beyond unreasonable

doubt, whether it is 302 of IPC or under section 304-I of

IPC does not arise when in the case on hand, there is no

incriminating material and the trial Court drawn the

inference looking into the conduct of the accused. I am of

the opinion that the Trial Court has committed an error in

convicting the accused for the offences punishable under

section 304 Part-I of IPC and hence, it requires

interference of this Court. Accordingly, I answer point

No.i in affirmative.

Point No.ii

9. In view of the discussion made above, I pass

the following:

ORDER

The appeal is allowed.

The judgment of conviction and order of sentence

passed in S.C.No.75/2014 dated 29.08.2015 and

10.09.2015 by the II-Additional Sessions Judge,

Vijayapura for the offence punishable under section 304

Part-I of IPC is hereby set aside.

Sd/-

JUDGE

VNR