Rajappa @ Raju vs The State By Lingasugur P.S
2022 Latest Caselaw 6068 Kant

                               1




           IN THE HIGH COURT OF KARNATAKA
                  KALABURAGI BENCH

         DATED THIS THE 5TH DAY OF APRIL 2022

                         PRESENT

       THE HON'BLE MR. JUSTICE K. SOMASHEKAR
                              AND
 THE HON'BLE MR. JUSTICE ANANT RAMANATH HEGDE


         CRIMINAL APPEAL NO.200085/2017

Between:

Rajappa @ Raju,
S/o Vachappa Karabari,
Aged about 30 years,
R/at Gorebal Tanda-1,
Tq: Lingasugur,
Raichur District - 584 122.
                                               ... Appellant

(By Sri P.Prasanna Kumar and
    Sri Shivanand V.Pattanshetti, Advocates)

And:

The State by Lingasuguru P.S
Lingasuguru,
Raichur District.
Thorugh Addl. Public Prosecutor,
Kalaburagi High Court.
                                          ... Respondent

(By Sri Sharanabasappa M.Patil, HCGP)
                                2




      This Criminal Appeal is filed under Section 374 of the
Code of Criminal Procedure praying to set aside the
judgment dated 16.05.2017 in S.C.No.130/2014 passed by
the learned II Addl. District and Sessions Judge, Raichur.

     The above Appeal having been heard and reserved
for  judgment   on   22.03.2022,      coming on   for
"pronouncement of judgment", this day Anant
Ramanath Hedge J., delivered the following:

                        JUDGMENT

The appellant/accused No.1 in Sessions Case

No.130/2014 on the file of II Addl. District and Sessions

Judge, Raichur who is tried for the offences punishable

under Sections 302 and 498A of the Indian Penal Code (for

brevity hereinafter referred to as the 'IPC' for short) is

convicted and sentenced to life imprisonment for the

offence punishable under Section 302 of IPC and

sentenced to fine of `20,000/-. For the offence punishable

under Section 498A of IPC the accused is sentenced to

undergo rigorous imprisonment for two years and imposed

a fine of `2,000/-. In the said judgment it is further held

that the aforesaid sentence shall run concurrently and the

period in which he was in judicial custody is ordered to be

set off. Aggrieved by the said impugned judgment the

accused No.1 is in appeal challenging the same by urging

various grounds.

2. The accused No.2 and accused No.3 are the

parents of accused No.1. They are acquitted for the

charges leveled against them.

3. The case made by the prosecution in the

complaint registered before Lingasugur Police Station,

based on the complaint of the father of the victim

Chennabai can be summarized as under:-

The complainant has got two sons and four

daughters and the deceased is the elder daughter and she

was married to accused No.1. The accused No.1 is

addicted to alcohol and gambling and used to abuse and

assault Chennabai being fed up with the attitude of her

husband Chennabai often used to go to her maternal

home. 11 days before the alleged incident, Chennabai had

returned from maternal home and was dropped at her

husband's house by the complainant. It is alleged at

midnight on 20.07.2014, Gundappa the brother of the

accused/appellant informed the complainant's son through

cell phone and informed that his brother Raju (accused

No.1) has killed Chennabai. The complainant states that he

along with his wife and his brother Tirupati and two more

persons namely Revappa Angadi, Lachumappa Rathod

went to the house of Chennabai and Chennabai was found

dead in front of her house. One Somaleppa who was there

on the spot narrated the complainant that around 5 O'clock

on the previous day, Raju the accused No.1 raised a

quarrel with Chennabai and was shouting at her, objecting

to her returning to the husband's house and was also

assaulting her with the club. Somaleppa and the brother of

the accused Gundappa tried to rescue Chennabai. Then

accused No.1 tried to assault Somaleppa and others and

all of them fled from the place. It is further stated in the

complaint that accused No.1 dragged his wife inside the

house and started beating her.

It is also alleged that around 11 O'clock on the same

day, a loud noise was heard near the house of the accused

No.1 and after going there they found Chennabai was

dead.

The complaint further alleged that accused No.1 is

addicted to alcohol and bad vices and his mother accused

No.2 and his father accused No.3 inflicted physical and

mental cruelty on the victim and she was assaulted

between 5.00 p.m to 11.00 p.m. On 20.09.2015 the victim

Chennabai died on account of the assault.

4. The first information report (FIR) is registered

in Crime No.222/2015 for the offences punishable under

Sections 498A, 302 and 109 read with Section 34 of IPC.

The Investigating Officer conducted inquest panchanama

and the dead body was sent for post mortem, after the

receipt of post mortem report, investigating officer after

investigation laid a charge sheet against the accused

before the committal court. On receipt of the charge-sheet

the learned Magistrate committed the case to the court of

Sessions under Sections 209 of Code of Criminal

Procedure. Subsequently the learned Sessions Jude after

hearing the prosecution and the accused, framed charges

under Sections 498A, 302 and 109 read with Section 34 of

IPC. The accused did not plead guilty and claimed to be

tried.

5. The prosecution led the evidence and

examined 22 witnesses. 21 documents were marked as

Ex.P.1 to Ex.P.21 on behalf of the prosecution, and five

material objects were marked as MOs.1 to 5. On behalf of

the defence, Ex.D1 and Ex.D1(a) are marked from the

statement of PW.7. After the completion of the evidence of

the prosecution, a statement under Section 313 of Cr. P.C

was recorded. Accused has denied all the incriminating

statements against them and denied its truth.

6. After hearing the learned Public Prosecutor

and the learned counsel for the accused, the learned

Sessions Judge agreeing with the theory of the prosecution

convicted the appellant/accused No.1 of the offences

punishable under Sections 498A, 109 and 302 of IPC and

imposed the sentence referred to supra and accused No.2

and 3 are acquitted as incorporated in the operative

portion of the order.

7. Being aggrieved by the said judgment, the

appellant/accused No.1 has preferred this appeal.

8. Heard the learned counsel for the appellant

Sri P.Prasannakumar and the learned High Court

Government Pleader Sri Sharanabasappa M.Patil, for

respondent/State.

9. Learned counsel for the appellant/accused

No.1 elaborating on the grounds urged in the appeal memo

would urge that the prosecution case is not established

since the deceased was found hanging in a room that was

locked from inside. Taking us through the evidence placed

on record, it is contended that the deceased was found in a

room that was locked from inside and this incident was

noticed by PW.14 who went inside the room after

removing the ceiling of the said room.

10. Referring to the evidence of the Doctor who

has conducted post mortem examination which is marked

at Ex.P8, the theory of the prosecution is that the

deceased was throttled and later she was hanged by the

appellant/accused No.1 is not established. The medical

report coupled with the evidence of the Doctor would

reveal that the deceased died on account of asphyxia and

she was not killed before hanging as alleged.

11. It is the further contention of the learned

counsel for the appellant that the case of the prosecution

that the deceased was assaulted at 5.00 p.m. is also not

established as the post mortem report did not reveal any

other injuries other than the injury caused on the neck on

account of hanging.

12. It is also the further contention that the

Sessions Court could not have convicted the appellant/

accused No.1 of the offence punishable under Sections

498A of IPC in the absence of any such allegations

attracting the provision of Section 498A of IPC in the

complaint as well as in the evidence urged before the trial

Court.

13. It is also his further contention that no motive

is established. However, the learned Sessions Judge has

ignored vital contradictions and discrepancies in the

evidence of the prosecution and learned Sessions Judge

failed to extend the benefit of the doubt to the appellant/

accused No.1. It is further stated that having acquitted

accused No.2 and 3, the learned Sessions Judge could not

have convicted the appellant/accused No.1 as accused

No.1 stands on the same footing.

14. The learned counsel for the appellant has also

invited the attention of the Court to the evidence of PW.7 -

Somaleppa who is said to have witnessed the incident of

accused No.1 beating his wife around 5 O'clock in the

evening. Referring to his evidence it is urged that the

evidence is not supported by any other independent

witnesses.

15. The learned High Court Government Pleader

justifies the impugned judgment and submits that the case

of the prosecution is duly established from the evidence

led before the trial court. It is urged that the medical

report and other evidence clearly reveal that the accused

No.1 has hanged the deceased after she was beaten

around 5.00 p.m. It is submitted that accused were in the

house till her death. These factors would establish the guilt

of the accused No.1 beyond reasonable doubt.

16. Learned High Court Government Pleader would

further submit that the trial court has analyzed the

evidence on record, particularly the evidence of PW.1 the

complainant, PW.5-Seethamma the mother of the

deceased and the evidence of PW.8 the brother of the

complainant wherein the addiction of appellant/accused

No.1 to alcohol and gambling is proved. It is the

submission of the learned counsel for the respondent/State

that the above-aforementioned witnesses have withstood

the test of cross-examination and nothing is elicited in the

cross-examination to disbelieve their evidence accordingly,

he prays for dismissal of the appeal on the ground that the

appeal is devoid of merits.

17. This Court has considered the contentions

raised at the Bar and also the following citations submitted

by the learned counsel for the appellant/accused No.1.

i. (2021) 2 SCC (Cri) 679 - Shivaji Chintappa Patil v. The State of Maharashtra;

ii. (2020) 2 SCC (Cri) 277 - Eswarappa v. The State of Karnataka;

iii. (2019) 3 SCC (Cri) 323 - Ranjit Kumar Haldar v.

The State of Sikkim;

iv. (2012) 1 SCC (Cri) 1 - Prithipal Singh v. The State of Punjab;

v. (2015) 1 SCC (Cri) 608 - Ananda Poojary v. The State of Karnataka;

vi. (2021) 1 SCC (Cri) 9 - Chunthuram v. The State of Chhattisgarh;

vii. (2014) 1 SCC (Cri) 677 - Sujit Biswas v. The State of Assam;

viii. (2019) 1 SCC (Cri) 701 - The State of UP v. Wasif Haider;

ix. (2018) 3 SCC (Cri) 763 - The State of Karnataka v. Srinivasa.

18. In this case the medical evidence plays a

significant role in ascertaining the real fact since there are

no eyewitnesses to the allegation of murder against the

accused. The evidence of the Doctor-PW.12 relating to the

injuries on the deceased is as under:-

1. ªÀÄÈvÀ¼ÄÀ PÀÄwÛUA É iÀÄ §½ ¸ÀªÀiÁ£ÁAvÀgÀ vÀga À zÀ UÁAiÀÄ DVzÀÄÝ CzÀgÀ C¼ÀvÉ 4x1.5 C¼ÀvA É iÀÄzÁÝVvÀÄÛ. CzÀÄ Czsð À ZÀAzÁæPÁgÀzÀ DPÁgÀz° À èvÀÄÛ CzÀgÀ §tÚ PÀAzÀÄ DVvÀÄÛ. ±Àªª À ÅÀ PÉƼÀvA À vÉ ºÉÆgÀ ¨sÁUÀzÀ°è PÁtÄwÛvÀÄÛ.

2. vÀ¯É §ÄgÀÄqÉ, ¨É£É߮ĩ £Á¼À ¸ÀĹÜwAiÀÄ°èvÀÄ.Û

3. JzÉ UÀÆqÀ£ÀÄß ¥ÀjÃQë¹zÁUÀ CzÀÄ PÀÆqÀ ¸ÀĹÜwAiÀÄ°èvÀÄ.Û

4. doÀgªÀ £ À ÀÄß ¥ÀjÃQë¹zÁUÀ ºÉÆmÉÖ ªÀÄvÀÄÛ CzÀgÀ M¼À ¨sÁUÀz° À è UÁå£À vÀÄA© HvÀªÁVvÀÄÛ.

5. d£À£ÁAUÀ ªÀÄvÀÄÛ ªÀÄÆvÁæAUÀ ¥ÀjÃQë¹zÁUÀ CªÀÅ ¸ÀĹÜwAiÀÄ°èzÀݪÀÅ.

6. UÀAl® ªÀÄƼÉU¼ À ÀÄ ªÀÄÄj¢zÀݪÀÅ.

19. The PW.12-Doctor was cross-examined by the

defence. The PW12-Doctor has deposed in his cross-

examination is as under:-

               "ªÀÄÈvÀ¼À     PÀwÛ£°
                                  À è    ºÉÆgÀUÁAiÀÄ      ºÉÆgÀvÀÄ¥Àr¹       CªÀ¼À

CAUÁUÀzÀ ªÉÄÃ¯É ºÉÆgÀ UÁAiÀÄ EgÀ°®è. M§â fêÀAvÀ ªÀåQÛAiÀÄ£Àß ªÀÄvÉÆÛçâ fêÀAvÀªÁV £ÉÃtÄ ºÁPÀ®Ä ¸ÁzsÀåªÁUÀĪÀÅ¢®è. .......¸Àzj À ±Àªª À £ À ÀÄß £ÉÆÃrzÁUÀ DPÉ DvÀäºv À Éå ªÀiÁrPÉÆArgÀĪÀAvÉ PÀAqÀÄ §gÀÄvÀz Û .É "

20. Based on this evidence, it is urged that the

theory of the prosecution that the accused has killed the

deceased by throttling and thereafter the deceased was

hanged cannot be accepted. From the evidence of PW.12-

Doctor, it can be safely inferred that there was no struggle

by the deceased before her death.

21. The learned counsel for the appellant placing

reliance on the judgment of the Hon'ble Apex Court in the

matter of Shivaji Chintappa Patil referred to supra would

contend that the facts in the said case are similar to this

case and applying the ratio of the said case the

accused/appellant is to be acquitted.

22. Para No.15 and 16 of the said judgment reads

as under :-

"15. It will be relevant to refer to cross- examination of PW-6:-

"It is correct that in both cases of suicidal or homicidal hanging the ligature mark around the neck shall go upwards ears. It is correct that while issuing advance death certificate I did not consult Senior Medical Officer and after consulting of Senior Medical Officer and going through the books I concluded that it was a case of hanging. Article No. 1 can be used for suicidal hanging and in case of homicidal hanging or homicidal strangulation the bodily resistance would have reflected other recorded in my presence wise."

16. It is thus clear, that the medical expert has admitted, that in both the cases of suicidal or homicidal hanging, the ligature marks around the neck shall go upwards ears. He has further admitted, that after consulting his Senior Medical Officer and going through the books, he concluded that it was a case of hanging. He has further admitted, that Article 1 which is a rope, which is found on the spot, can be used for suicidal hanging. He has further admitted, that in case of homicidal strangulation, the bodily resistance would have been reflected."

and it is also urged with reference to Section 106 of IPC

that the burden of the prosecution is not discharged

merely because the husband was inside the house where

the deceased was found dead in her matrimonial home. In

the aforementioned judgment of Shivaji Chintappa Patil,

in paragraph No.23, it is held as under :-

"23. It could thus be seen, that it is well- settled that Section 106 of the Evidence Act does not directly operate against either a husband or wife staying under the same roof and being the last person seen with the deceased. Section 106 of the Evidence Act does not absolve the prosecution of discharging its primary burden of proving the prosecution case beyond reasonable doubt. It is only when the prosecution has led evidence which, if believed, will sustain a conviction, or which makes out a prima facie case, that the question arises of considering facts of which the burden of proof would lie upon the accused."

23. No doubt in the aforementioned judgment the

Hon'ble Apex Court has set aside the concurrent finding of

conviction under Section 302 of IPC and acquitted the

accused. However, the other circumstances found in the

present case would lead to the conclusion that the accused

is responsible for the suicide of his wife. There is close

proximity to the assault on the wife and her death which

have taken place on the same day.

24. When the accused is charged for the offence

under Section 302 of IPC and if the prosecution fails to

prove the charges for offence under Section 302 of IPC

and if the evidence on record, points to the guilt to the

accused under Section 306 of IPC, the court can convict

the accused for offence under Section 306 of IPC

modifying the judgment of conviction and sentence under

Section 302 of IPC. Though the accused is not charged and

tried for offence under Section 306 of IPC and is charged

and tried for the offence under Section 302 of IPC,

considering the fact that the offence under Section 306 of

IPC carries lesser punishment, it is permissible to convict

the accused under offence under Section 306 of IPC. This

has been held in the matter of Sanjay Pachaghre v.

State of Maharashtra reported 2015 SCC Online 520.

This view is taken in the light of ratio laid down in the case

of Dalbir Singh v. State of UP reported in (2004) 5 SCC

334.

25. Referring to the evidence of PW.14-Gundappa

Rathod it is urged that the said witness in his examination-

in-chief has said that his sister-in-law (victim) has

committed suicide. It is also stated by him in the cross-

examination that the victim was not interested in marrying

the accused No.1. He further states in the cross-

examination that the dead body of the victim was found

when they entered the room by removing the zink sheet

ceiling as the room was locked from inside.

26. Referring to this evidence, it is urged that the

fact that deceased was found hanging in a room that was

locked from inside would demonstrate that it is the case of

suicide and not the case of murder as alleged by the

prosecution. Since the deceased was found alone in the

room which was locked from inside, it cannot be said that

after murdering his wife, the appellant/accused No.1 hung

her in the room, locked the door from inside and came out

of the room through the ceiling. There was no such

explanation found in the case of the prosecution. This is

one important circumstantial evidence that goes against

the root of the prosecution case of the murder of his wife

by accused No.1. The judgment of the Hon'ble Apex Court

in the matter of Shivaji Patil referred to supra, deals with

the almost identical situation. The Hon'ble Apex Court has

held that as the post mortem report reveals asphyxia due

to hanging and in the absence of any other injury on the

body of the victim, the allegation of homicidal hanging

cannot be accepted in the absence of proof relating to

homicidal death. Even in this case, the injury over the

dead body of the deceased does not lead to the conclusion

that it is the case of homicidal hanging. On the other hand,

the circumstantial evidence brought before the court would

lead to the conclusion that it is the case of suicide.

27. When that is the case, the charge against the

appellant/accused No.1 under Section 302 of IPC is held

not proved. The prosecution has not proved the guilt of the

accused beyond reasonable doubt for offence under

Section 302 of IPC.

28. This being the position the next question that

needs to be answered is whether the appellant/accused

No.1 is guilty of the offence under Section 306 of IPC.

Section 306 of IPC reads as under:-

"306. Abetment of suicide - If any person commits suicide, whoever abets the commission of such suicide, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine."

29. The evidence on record has demonstrated that

the victim was assaulted by the appellant/accused No.1

around 5.00 p.m. on the date of the incident. It is also

forthcoming that appellant/accused No.1 has dragged his

wife inside the house when the neighbours tried to rescue

the victim. On the same day, at around 11 O'clock the wife

of the appellant/accused No.1 was found hanging. There is

proximity to the incident which has occurred at 5 p.m. and

the death which is noticed around 11 O'clock. There is no

dispute over the fact that the appellant/accused No.1 was

also inside the house after 5.00 p.m. When such being the

position, this court can safely conclude that the case is

made out against the appellant/accused No.1 of the

offence punishable under Section 306 of IPC instead of

Section 302 of IPC.

30. The trial Court has also convicted the accused

for the offence under Section 498A of IPC. And accused

No.1 is a sentenced to undergo imprisonment for a period

of two years and to pay a fine of `2,000/-. The question is

whether the ingredients of Section 498A of IPC are

established. Section 498A of IPC reads as under :-

"498A- Husband or relative of husband of a woman subjecting her to cruelty. - Whoever, being the husband or the relative of the husband of a woman, subjects such woman to cruelty shall be punished

with imprisonment for a term which may extend to three years and shall also be liable to fine.

Explanation.-- For the purposes of this section, "cruelty" means--

(a) any willful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health (whether mental or physical) of the woman; or

(b) harassment of the woman where such harassment is with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security or is on account of failure by her or any person related to her to meet such demand."

31. From the reading of the above said provision it

is apparent that the husband or the relative of the husband

of a woman if they subject the woman to cruelty then it

amounts to an offence. And the word cruelty is explained

in the explanation provided to Section 498A of IPC. As per

the explanation provided to Section 498A of IPC any willful

conduct of such a nature that is likely to drive the woman

to commit suicide amounts to cruelty. From the evidence

on record it is established beyond reasonable doubt that

the accused has assaulted his wife and within a short span

of time she was dragged inside the house and on the same

day she was found dead hanging. These facts have been

established beyond reasonable doubt. Under the

circumstances there is no difficulty in holding that the

accused has committed offence under Section 498A of IPC.

32. The appellant/accused No.1 is in judicial

custody since the date of his arrest on 21.07.2014. Thus,

he has spent seven and half years in judicial custody. The

maximum punishment for the offence under Section 306 of

IPC that can be imposed is 10 years. It is also noticed that

appellant/accused No.1 is having an old age mother and a

daughter who was aged four years at the time of the

incident. Taking these factors into consideration this court

is of the opinion that the imprisonment undergone by the

appellant/accused No.1 from the date of his arrest till this

day can be treated as the service of sentence undergone

by the appellant/accused No.1 of the offence under

Section 306 of IPC and this court is of the opinion that the

sentence of imprisonment of seven and half years which is

undergone by the appellant/accused No.1 till this day is

just and proportionate to the offence which he has

committed. Under these circumstances, the impugned

judgment shall be set aside by allowing the appeal in part.

Hence, the following :

ORDER

The appeal is allowed in part.

The judgment of conviction and order of sentence

dated 16.05.2017 passed in Sessions Case No.130/2014

by the court of II Addl. District and Sessions Judge,

Raichur is set-aside in part.

The appellant/accused No.1 is acquitted for the

offences punishable under Sections 302 of IPC.

The accused No.1 is convicted for the offences

punishable under Sections 306 and 498A of IPC. Both the

sentence shall run concurrently.

However, the imprisonment undergone by the

appellant/accused No.1 from 21.07.2014, the date of his

arrest till this day shall be treated as service of sentence

and consequently be set him at liberty, if he is not required

in any other case.

The Registry shall communicate the copy of the

judgment to the concerned jail authority forthwith for

further action.

SD/-

JUDGE

SD/-

JUDGE sn