Shivanand S/O Gurulingappa vs The State Of Karnataka
2021 Latest Caselaw 1628 Kant

           IN THE HIGH COURT OF KARNATAKA

                  KALABURAGI BENCH

       DATED THIS THE 25TH DAY OF FEBRUARY 2021

                       PRESENT

       THE HON'BLE MR. JUSTICE JOHN MICHAEL CUNHA

                          AND

 THE HON'BLE MR. JUSTICE SHIVASHANKAR AMARANNAVAR

          CRIMINAL APPEAL NO.200122/2017

BETWEEN:

SHIVANAND S/O GURULINGAPPA @
GURUPADAPPA METRE
AGE: 62 YEARS OCC: DRIVER
R/O: BALLOLLI
TQ: INDI DIST: VIJAYAPUR - 586 117     ... APPELLANT


(BY SRI. SHIVANAND V. PATTANASHETTI, ADV)


AND:


THE STATE OF KARNATAKA
R/BY ADDL. SPP
HIGH COURT OF KARNATAKA
KALABURAGI BENCH,
(THROUGH ZALAKI P.S.
DIT: VIJAYAPUR) - 585 107.           ... RESPONDENT

(BY SRI. PRAKASH YELI, ADDL. SPP)
                             2




     THIS     CRIMINAL    APPEAL      IS    FILED   UNDER
SECTION 374 (2) OF CRIMINAL PROCEDURE CODE
PRAYING TO ADMIT THIS APPEAL, CALL FOR THE
RECORDS FROM THE COURT BELOW AND SET ASIDE
THE JUDGMENT OF CONVICTION AND ORDER OF
SENTENCE      DATED      25.03.2017        AND   27.03.2017
RESPECTIVELY, PASSED BY THE III ADDL. SESSIONS
JUDGE,      VIJAYAPUR,    IN    S.C.NO.152/2013        AND
CONSEQUENTLY ACQUIT THE APPELLANT/ACCUSED
FOR THE OFFENCE PUNISHABLE UNDER SECTION
302 OF IPC.

     THIS APPEAL COMING ON FOR DICTATING JUDGMENT
THIS DAY, SHIVASHANKAR AMARANNAVAR, J. DELIVERED
THE FOLLOWING:


                         JUDGMENT

This appeal has been filed by sole accused

challenging the judgment of conviction dated

25.03.2017 and order of sentence dated 27.03.2017 in

S.C.No.152/2013, passed by the III Additional Sessions

Judge, Vijayapura, whereby accused has been convicted

for the offence punishable under Section 302 of IPC.

02. Accused was sentenced to undergo rigorous

imprisonment for life with fine of Rupees Fifty Thousand

(Rs.50,000/-) only and in default, to undergo rigorous

imprisonment for a period of 06 months for the offence

punishable under Section 302 of IPC.

03. The facts of the prosecution case in brief are

as under:

The deceased - Smt. Kavita w/o Vijaykumar Metre

resident of Ballolli village was the daughter of the

complainant - Mallappa Ambale (PW.8) and his wife

Chandrabhaga (PW.10). The marriage of deceased -

Kavita was solemnized with Vijaykumar Metre. The

accused - Shivanand is the father of Vijayakumar Metre.

The said Vijayakumar and deceased - Kavita had three

children by name (1) Bhagyasri, (2) Laxmi @

Mouneshwari and (3) Ganesh. The husband of the

deceased - Kavita died one year prior to the incident due

to heart-attack. After death of her husband

Vijayakumar, Kavita started residing with her children,

in a separate house, bearing house No.244/2/1

situated at Ballolli village. The accused - Shivanand was

residing separately in a separate house, situated near

aforesaid house of deceased Kavita at Ballolli. The

accused - Shivanand was angry on his daughter-in-law

- Kavita, as she was standing, talking with other men in

Ballolli village and was very closely talking with one

Revappa s/o Tippanna Sagayi in Ballolli village. Hence,

accused suspected that she has illicit relationship with

him. Thereafter, on 17.05.2013 at about 02.30 hours,

while deceased - Kavita was preparing Peda, in the

aforesaid house property, accused assaulted the

deceased with axe, on right side of the head, right

frontal region and on mandible, cheek, chin and some

other parts of the body and caused grievous injuries

and committed murder of the deceased - Kavita. PW.8 -

Mallappa filed the complaint as per Ex.P.9 and case

came to be registered in Zalaki Police Station in Crime

No.50/2013 for the offence punishable under Section

302 of IPC. The Investigating Officer after investigation

has filed the charge sheet for the offence punishable

under Section 302 of IPC.

04. The Committal Court committed the case to

the Sessions Court. The Sessions Court after taking

cognizance against accused for the above said offence

and on hearing accused and prosecution, framed the

charge for the aforesaid offence.

05. The prosecution in order to prove its case,

have examined 15 witnesses as P.Ws.1 to P.W.15 and

got marked 23 documents as per Exs.P.1 to 23 and got

identified material objects as per M.Os.1 to 6. Accused

was examined under Section 313 Cr.P.C. by putting

every incriminating circumstances appearing against

him and he denied each and every circumstances.

06. The Trial Court after hearing the arguments

on both sides, framed the point for consideration and

passed the impugned judgment of conviction and order

of sentence.

07. Heard Sri. Shivanand V. Pattanshetti,

learned counsel appearing for the appellant - accused

and Sri. Prakash Yeli, the learned Addl. SPP appearing

for the State.

08. It is contention of learned counsel for the

appellant - accused that there are no eyewitnesses to

the incident. The entire case is based on circumstantial

evidence. It is his further contention that the case of the

prosecution is that PWs.2, 3, 6, 7 and 9 have last seen

the accused who came out from the house of the

deceased holding axe and out of these witnesses except

PW.9, other 04 witnesses have not supported the case of

the prosecution. It is his further contention that on

perusal of the cross-examination of PW.9 it is clear that

she was also not present and her testimony cannot be

relied on. It is his further contention that the

prosecution has not proved the recovery of M.O.1 - Axe

at the instance of accused, since PWs.1 and 4, the

panch witnesses have not supported the case of the

prosecution. With this, he prayed to allow the appeal.

09. Per contra, the learned Addl. SPP submits

that even though PWs.2, 3, 6 and 7 have not supported

the case of the prosecution, the evidence of PW.9 -

Bhagyashree is sufficient to hold that she has last seen

the accused coming out of the house of deceased

holding axe on the date of incident. It is his further

contention that nothing has been elicited in her cross-

examination to disbelieve her evidence. It is his further

submission that the Trial Court after relying on the

evidence on record has rightly convicted the accused for

the offence punishable under Section 302 of IPC. With

these submission, he prayed to dismiss the appeal.

10. Having heard the learned counsel appearing

for the appellant - accused and the learned Additional

SPP appearing for the respondent - State and on perusal

of the records, the following point arise for our

consideration:-

"Whether the prosecution has proved

beyond all reasonable doubt that

appellant - accused has committed the

offence punishable under Section 302 of

IPC?"

11. Our answer to the above point is in the

'Negative' for the following reasons:-

12. The death of the deceased is homicidal death

is not in dispute. The Doctor who conducted the

postmortem examination - PW.13 in his P.M.

Examination Report as per Ex.P.12 has noted the

injuries found on the dead body of the deceased, which

are as under:-

(i) Right side forehead (frontal region) 1½ long 1 wide deep upto skull chap wound cutting through skin, vessels, nerves and soft tissues and muscles.

(ii) Upper edge of right eye lid (lateral side) temporal region ½ inch long and ½ inch wide chap injury.

(iii) Temporal region (above right car) 4 inch long and 3 inch wide skull deep chap injury cutting through skin, vessels, nerves and soft tissues and muscles.

(iv) Right side cheek (right face) ½ inch medial to right ear 3 inch long 3 inch wild chap wound deep up to the mandible joint, cutting through skin, vessels, nerves and soft tissues and facial muscles.

(v) ½ inch long chap injury ½ inch wide on the right cheek at about 2 inch below injury 4.

      (vi)    1 inch long ½ inch wild chap
injury on chin.

13. PW.13 - Doctor opined that death was die to

hemorrhagic shock as a result of injuries sustained.

Therefore, the evidence of PW.13 - Doctor coupled with

Ex.P.12 - Post Mortem Report clearly establishes that

the death is homicidal.

14. The case of the prosecution is based on

circumstantial evidence. The well known rule governing

circumstantial evidence is that each and every

incriminating circumstances must be clearly established

by reliable evidence and the circumstances proved must

form a chain of events from which the only irresistible

conclusion about the guilt of the accused can be safely

drawn.

15. Before analyzing the evidence produced by

the prosecution in proof of the above circumstances it

may be necessary to note that the law on the issue of

circumstantial evidence has been now well settled. The

Hon'ble Supreme Court in Sharad Vs. State of

Maharashtra, 1984 (4) SCC 116, following the

judgment in Hanumanth Singh Vs. State of Madhya

Pradesh, AIR 1952 SC 343, at para Nos.153 and 154

has explained that:

"153. A close analysis of this decision would show that the following conditions must be fulfilled before a case against an accused can be said to be fully established:

(1) the circumstances from which conclusion of guilt is to be drawn should be fully established.

It may be noted here that this Court indicated that the circumstances concerned 'must or should' and not 'may be' established. There is not only a grammatical but a legal distinction between 'may be proved' and "must be or should be proved" as was held by this Court in Shivaji Sahabrao Bobade .v. State of Maharashtra, where the following observations were made:

"Certainly, it is a primary principle that the accused must be and not merely may be guilty before a court can convict and the

mental distance between 'may be' and 'must be' is long and divides vague conjectures from sure conclusions."

(2) The facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty,

(3) the circumstances should be of a conclusive nature and tendency.

(4) they should exclude every possible hypothesis except the one to be proved, and

(5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.

154. These five golden principles, if we may say so, constitute the panchsheel of the proof of a case based on circumstantial evidence."

16. About the motive is concerned PWs.8 and 10

the parents of the deceased have consistently deposed

that the deceased used to tell before them that accused

was threatening her that he will kill if she talked with

others and he was suspecting her. The evidence of

PWs.8 and 10 in that regard is not discredited in their

cross-examination. As the daughter of the deceased and

accused namely Bhaghashree - PW.9 in her evidence

stated that the accused repeatedly used to object her

mother for talking with other men and used to threaten

to kill her. The said evidence of PWs.8 to 10 clearly

established the motive of the accused to commit the

murder of the deceased - Kavita.

17. PW.8 is the father of the deceased and

PW.10 is the mother of the deceased. On receiving

phone call from PW.9 they came to Ballolli village from

their village Kandalgaon. Ex.P.9 is the complaint lodged

by PW.8 - Mallappa. In the said complaint it is stated

that PW.9 - Bhagyashree at about 03.00 p.m. on

17.05.2013 intimated them that her grandfather had

assaulted her mother with Axe on her head and killed

her. PW.9 - Bhagyashree has deposed that on

17.05.2013 she along with her grandmother - Neelabai,

younger sister - Laxmi had gone to the house of

Ammangi for House Warming Ceremony at Ballolli

village and they returned at about 02.30 p.m., when

they were near the house, the accused came out of the

compound holding axe and ran-away holding the axe

which was bloodstained; thereafter, they went inside the

house and saw that her mother had sustained injuries

on her head and she was dead and several persons had

gathered there. The said evidence of PW.9 has been

discredited in the cross-examination, as under:-

"£ÁªÀÅ UÀȺÀ ±ÁAw PÁAiÀÄðPÀæªÄÀ ¢AzÀ ªÁ¥À¸À §AzÁUÀ DgÉÆæ Nr ºÉÆÃVzÀÝ£ÀÄ. £ÁªÀÅ ªÀÄ£ÉUÉ §AzÁUÀ §ºÀ¼À d£ÀgÀÄ ¸ÉÃjzÀÝgÀÄ. PÀÆrzÀ d£ÀgÀÄ £À£Àß vÁ¬ÄUÉ PÉÆ¯É ªÀiÁrzÀªg À À£ÀÄß »rzÀÄPÉÆArgÀ°®è.

       ¸ÀĪÀiÁgÀÄ 50 d£ÀgÀÄ PÀÆrzÀg
                                  Ý ÀÄ.    £À£Àß vÁ¬ÄUÉ PÉÆrèA¬ÄAzÀ





     PÀrzÀªÀg£

À ÀÄß, PÀrAiÀÄÄwÛgÀĪÀÅzÀ£ÀÄß £Á£ÀÄ ¸ÀAé vÀB £ÉÆÃr®è. PÀÆrzÀ d£ÀgÀÄ DgÉÆævÀ£ÀÄ £À£Àß vÁ¬ÄUÉ PÀrzÀÄ Nr ºÉÆÃVzÁÝ£É JAzÀÄ ºÉýzÀgÀÄ. F jÃw ºÉýzÀªg À À ºÉ¸g À ÀÄUÀ¼ÀÄ £À£ÀUÉ £É£À¦®è.

DgÉÆævÀ£ÀÄ £À£Àß vÁ¬ÄUÉ PÀrzÀÄ Nr ºÉÆÃVzÁÝ£ÉAzÀÄ £À£ÀUÉ ºÉýzÀªg À À ºÉ¸ÀgÀÄUÀ¼£ À ÀÄß ¥ÉÆð¸ÀjUÉ ºÉýzÉÃÝ £É."

18. The admission in the cross-examination of

PW.9, elicited by accused goes to show that when PW.9

reached her house, nearly 50 persons had gathered

there and accused had already run-away from the

house and people who gathered there told her that the

accused had assaulted her mother and ran-away.

Therefore, the said admission itself goes to show that

she has not witnessed the accused coming out of the

compound holding axe and running away from the

house. According to the prosecution it was PW.9 who

intimated over telephone to PWs.8 and 10. PW.8 -

Mallappa has filed the complaint as per Ex.P.9. In the

said complaint he had stated that PW.9 - Bhagyashree

told them over phone that accused had assaulted the

deceased with axe on her head and killed her. It is not

corroborated with the testimony of PW.9, since she has

not witnessed the incident. Other witnesses PWs.2, 3, 6

and 7 who allegedly saw the accused coming out from

the house holding axe have not supported the

prosecution case. Therefore, we hold that the

prosecution has failed to establish that accused came

out from the house of deceased by holding axe at about

02.30 p.m. on 17.03.2013.

19. It is the case of the prosecution that M.O.1 -

Axe has been recovered at the instance of accused

under Ex.P.2 - recovery mahazar. PWs.1 and 4 are

panch witnesses to the said Ex.P.2 - recovery mahazar.

Both PWs.1 and 4 have not supported the case of the

prosecution with regard to recovery of M.O.1 - Axe at

the instance of accused. The prosecution has not

established that the M.O.1 - Axe has been recovered at

the instance of accused under Ex.P.2 - recovery

mahazar.

20. PWs.1 and 4 are also panch witnesses to

Ex.P.1 - cloth seizure panchanama of the deceased,

Ex.P.5 - inquest panchanama and Ex.P.6 - spot

panchanama, have not supported with regard to

drawing of the said mahazars in their presence. As the

prosecution has not established the chain of

circumstances, the accused is entitled for the benefit of

doubt.

21. The Trial Court has not appreciated the

evidence on record in a proper prospective, has not

considered the cross-examination of PW.9 and wrongly

held that accused has committed the offence punishable

under Section 302 IPC. Therefore, the judgment of

conviction and order of sentence passed by the Trial

Court requires to be set-aside. In the result the

following:-

ORDER

The Criminal Appeal is allowed.

The impugned judgment of conviction dated

25.03.2017 and order of sentence dated 27.03.2017

passed by the III Additional Sessions Judge, Vijayapura

in S.C.No.152/2013 is set aside.

Consequently, the accused (Shivanand s/o

Gurulingappa @ Gurupadappa Metre) is acquitted of the

charge under Section 302 of IPC. He is directed to be set

at large forthwith, if he is not required in any other

case.

The fine amount, if any, deposited with the Court,

shall be returned to the appellant/accused.

Send back the Trial Court Records to the

concerned Court.

Sd/-

JUDGE

Sd/-

JUDGE KJJ