Sri.Gudeppa Gadigeppa ... vs The State Of Karnataka
2022 Latest Caselaw 1608 Kant

           IN THE HIGH COURT OF KARNATAKA
                   DHARWAD BENCH

       DATED THIS THE 3rd DAY OF FEBRUARY, 2022

                         PRESENT

 THE HON'BLE Dr.JUSTICE H.B.PRABHAKARA SASTRY

                           AND

         THE HON'BLE MR. JUSTICE S. RACHAIAH

           CRIMINAL APPEAL NO.100007/2019


BETWEEN:
SRI. GUDEPPA GADIGEPPA HITTALAMANI
AGED ABOUT 32 YEARS,
OCC: KSRTC DRIVER CUM CONDUCTOR
R/O CHIKKUMBI,
TQ. SAUNDTTI, DIST. BELAGAVI.
                                           .. APPELLANT
(BY SRI. ASHOK R. KALYANASHETTY, ADV.)

AND:

THE STATE OF KARNATAKA
THROUGH SAUNDATTI PS
REP. BY ITS STATE PUBLIC PROSECUTOR
ADVOCATE GENERAL'S OFFICE,
HIGH COURT BUILDING, DHARWAD.
                                         .. RESPONDENT
(BY SRI. V.M. BANAKAR, ADDL. SPP)

      THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374(1)
OF CR.P.C. PRAYING TO ACQUIT THE APPELLANT OF THE CHARGE
PUNISHABLE UNDER SECTION 302 IPC BY SETTING ASIDE THE
JUDGMENT OF CONVICTION AND ORDER OF SENTENCE DATED
19.11.2018 PASSED BY THE HON'BLE V ADDL. DISTRICT AND
                                         Crl.A. No.100007/2019

                             2


SESSIONS JUDGE, BELAGAVI IN         SC.NO.338/2017    IN   THE
INTEREST OF JUSTICE AND EQUITY.

     THIS CRIMINAL APPEAL COMING ON FOR FINAL HEARING
THROUGH    VIDEO  CONFERENCING   HEARING   THIS  DAY,
Dr.H.B.PRABHAKARA      SASTRY    J.,  DELIVERED   THE
FOLLOWING:




                        JUDGMENT

The present appellant has challenged his conviction for

the offence punishable under Section 302 of the Indian Penal

Code (hereinafter for brevity referred to as, 'IPC') and order

on sentence passed by the Court of V Additional District and

Sessions Judge at Belagavi (hereinafter for brevity referred

to as 'Session Judge's Court') by its judgment of conviction

and order on sentence dated 19.11.2018 passed in S.C

No.338/2017.

2. The summary of the case of the prosecution is

that, deceased Mahadevi is the daughter of PW.1-Basappa

Lakkappa Naganoor, who is the complainant in the case. The

said complainant Basappa Lakkappa Naganoor appeared

before the Police on date 19.07.2017, lodged a complaint,

the summary of which is that, his second daughter by name Crl.A. No.100007/2019

Mahadevi was given in marriage to the accused/appellant

herein. After her marriage, she went to reside with her

husband/the accused. Out of the wedlock, she gave birth to

two children. For two years after her marriage, the accused

was taking care of his wife with love and affection. However,

thereafter, he started suspecting her character and was

subjecting her repeatedly to physical and mental assault.

Though said Mahadevi was bringing the same to the notice of

her parents, however, she was being consoled by her parents

and was asking to manage the things and adjust with her

husband. It is in that process, Mahadevi continued to stay

with her husband. After she gave birth to her second child,

by force, the accused took her to his house from her parental

home immediately after a month of delivery of second child

by her. Thus on 17.07.2017, Mahadevi went back to her

husband's house. However, on 19.07.2017, in the afternoon,

Sri.Rudrappa Kallappa Gudadari(PW-16) informed the

complainant that their daughter-Mahadevi, is being assaulted

by the accused. Hearing the same, the complainant joined

by the elders in the village rushed to the house of the Crl.A. No.100007/2019

accused only to see that the dead body of Mahadevi was

found fallen on the side of the kitchen in her marital home.

She was found dead. The complainant also noticed some

injuries around her neck and other parts of the body. The

complainant suspected that the accused had committed the

murder of Mahadevi between 1:30pm to 2:30pm on the said

day by throttling her and also pressing her neck with the leg.

The said complaint was registered with the complainant

Police in their Station Crime No.250/2017 against the present

appellant/accused for the offence punishable under Sections

498A and 302 of IPC and proceeded with the investigation.

After completion of investigation, the police filed charge-

sheet against the accused for the alleged offences.

3. Since the accused pleaded not guilty, the trial

was held wherein in order to prove the alleged guilt against

the accused, the prosecution got examined twenty witnesses

from PW.1 to PW.20 and got marked documents from Ex.P-1

to Ex.P-42 and material objects at M.O.1 to M.O.5. Neither

any witnesses were examined from the accused's side nor

any documents were marked as exhibits. After hearing both Crl.A. No.100007/2019

side, the learned Sessions Judge by his impugned judgment

of conviction dated 19.11.2018, though acquitted the

accused for the offence punishable under Section 498A of

IPC, but convicted the accused for the offence punishable

under Section 302 of IPC. By the order on sentence of even

date, the learned Sessions Judge also sentenced the accused

to undergo imprisonment for life and to pay fine of

Rs.30,000/- for the offence punishable under Section 302 of

IPC and in default to pay the fine amount, the accused was

also ordered to undergo simple imprisonment for six months.

Aggrieved by the said judgment of conviction and order on

sentence, the accused has preferred the appeal.

4. The respondent is represented by the learned

Additional State Public Prosecutor.

5. The Session Judge's Court records were called for

and the same is placed before this Court.

6. Heard the arguments from both side. Perused

the materials placed before this Court including the Session

Judge's Court records and the impugned judgment.

Crl.A. No.100007/2019

7. The points that arise for our consideration are

(i) Whether the Session Judge's Court has committed an error in recording the statement of the accused under Section 313 of Cr.P.C.?

(ii) Whether such an alleged error said to have been committed by the Session Judge's Court in recording statement of the accused under Section 313 of Cr.P.C. has caused any prejudice to the accused warranting the remand of the matter for its disposal afresh in accordance with law?

(iii) Whether the prosecution has proved beyond reasonable doubt that the accused suspecting the chastity of deceased Mahadevi, his wife, on 19.07.2017, at about 1:30pm in his house situated in a place called Chikkumbi within the limits of the complainant Police Station, assaulted deceased Mahadevi and with an intention to kill her, pushed her in the store room of his house bearing No.739 where they were residing and pressed her neck with his leg and thus committed the murder of his wife by throttling her and thereby has committed an offence punishable under Section 302 of IPC?

Crl.A. No.100007/2019

(iv) Whether the judgment of conviction and order on sentence under appeal warrants interference at the hands of this Court?

8. In order to prove the alleged guilt against the

accused, though the prosecution has examined twenty

numbers of witnesses from PW.1 to PW.20, all the material

witnesses except the official and Police witnesses, have not

supported the case of prosecution.

9. The most important material witness upon whom

the prosecution had much hope was PW.16-Rudrappa

Kallappa Gudadari, who according to the prosecution was an

eyewitness to the incident and also was an informant to

PW.1-Basappa Lakkappa Naganoor, which Basappa Lakkappa

Naganoor is admittedly the father of the deceased Mahadevi.

According to the prosecution, said Rudrappa Kallappa

Gudadari informed PW.1-Basappa Lakkappa Naganoor that

the accused in his house was assaulting his wife Mahadevi

and requested Basappa Lakkappa Naganoor to come and see.

It is after hearing from said Rudrappa Kallappa Gudadari, the

complainant-Basappa Lakkappa Naganoor joined by others Crl.A. No.100007/2019

rushed to the house of the accused and saw the dead body of

his daughter. However, said Rudrappa Kallappa Gudadari

has not supported the case of the prosecution, even to a

smaller extent. He has specifically stated that he does not

know the accused so also the deceased. He even stated that

he does not know PW.1-Basappa Lakkappa Naganoor and he

does not know anything about the alleged incident. Even

after treating him as hostile, the prosecution could not elicit

any favourable statement from him in his cross-examination.

10. The second set of important witnesses are PW.1-

Basappa Lakkappa Naganoor and PW.7-Smt.Ningawwa

Basappa Naganoor, who undisputedly are the parents of the

deceased Mahadevi. Both of them, uniformly, in their

evidence except stating that the accused is the husband of

their deceased daughter-Mahadevi, have not at all supported

the case of the prosecution. On the other hand, they

attempted to give a clean chit to the accused stating that the

accused has never subjected their daughter Mahadevi to

either physical or mental cruelty. They have stated that

death of his daughter was purely an accidental. Though PW-1 Crl.A. No.100007/2019

admitted his complaint but he stated that the accused is not

the cause for the death of his daughter. Even with respect to

PW.1 and PW.2, the prosecution, after getting the said

witnesses treated as hostile and subjecting them to cross-

examination, could not elicit any favourable statement in its

favour by them.

11. The next set of witnesses upon which the

prosecution relied upon much are PW.8, PW.9, PW.10,

PW.11, PW.12, PW.13 and PW.14. According to the

prosecution, all these witnesses are known to both the

accused and the deceased and also they were aware of the

accused subjecting his wife to cruelty and had advised the

accused to mend his ways. However, none of these witnesses

have supported the case of the prosecution. On the other

hand, they have pleaded their total ignorance about the

marital life of the deceased with the accused and denied that

they had ever advised the accused to lead a cordial marital

life with the deceased Mahadevi.

12. The next set of witnesses upon which the

prosecution has relied was on the evidence of PW.2 and Crl.A. No.100007/2019

PW.3, who were, according to the prosecution, the panchas

for the inquest panchanama at Ex.P-8. Even these two

witnesses also have not supported the case of the

prosecution. Though they admitted their signature in the

document at Ex.P.8 but stated that no inquest panchanama

was drawn in their presence as per Ex.P.8.

Following the same footmark, PW.4 and PW.5 examined

by the prosecution as the panchas to the scene of offence

panchanama at Ex.P-9, which scene of offence panchanama,

according to the prosecution was drawn at the instance of

the spot alleged to have been shown by the accused, also

have not supported the case of the prosecution.

The other set of witnesses i.e. PW.6 and PW.18, who

are also panchas to the scene of offence panchanama which

is said to have been drawn at the spot alleged to have been

shown by PW-1 and as per Ex.P.15 also have not supported

the case of the prosecution.

13. The next important witness upon whom the

prosecution relied upon is PW-15-Smt. Shivakka Gadigeppa

Hittalamani, who undisputedly, is the mother of the accused.

Crl.A. No.100007/2019

The said witness in her evidence in examination-in-chief,

though has stated that the deceased Mahadevi is the wife of

his son, who is the accused, as such her daughter-in-law but

specifically stated that her son(the accused) was taking care

of his wife very cordially and both the husband and wife were

living together very cordially. About the alleged incident she

has stated that on the date of the incident her son(the

accused), daughter-in-law(the deceased) and her grand

daughter by name Varsha (daughter of the deceased) were

at home. She(the witness) left the home in the morning at

about 10'O clock for grazing the cattle. She returned back at

1:30pm to home, at that time, her daughter-in-law,

Mahadevi, by slip of her leg, fell on the threshold of the

house and got hurt on her neck and chest. By the time, she

(the witness) joined by her son (the accused) shifted her to

the hospital, Mahadevi died due to the injury sustained by

her. In that regard, the accused telephoned to PW.1 and

informed about the incident. The witness categorically stated

that she has not seen the accused assaulting Mahadevi,

much less, causing her death by stamping her with his leg.

Crl.A. No.100007/2019

Since, the prosecution has projected her as another

eyewitness to the alleged incident, she was subjected to

cross-examination by the prosecution after treating her as

hostile. However, she proved to be of no much assistance to

the prosecution even in her cross-examination.

14. Apart from the above set of independent

witnesses, second set of witnesses upon whom the

prosecution has relied upon are the official and police

witnesses. Among them, PW-19 is the jurisdictional

Tahasildar, who has only stated that he has drawn the

inquest panchanma as per Ex.P-8.

15. PW-20 is the Doctor, who has conducted autopsy

on the body of the deceased. The said witness has stated

that, he conducted autopsy on the body of the deceased on

the date 19.07.2017 between 9:30am to 10:45am. He had

received the said dead body which was identified as of one

Smt. Mahadevi Hittalamani on the very same date i.e. on

19.07.2017. He has given the description of the external

appearance of the body, the external injuries and the internal

injuries said to have been noticed by him and ultimately has Crl.A. No.100007/2019

opined that the cause of death of the deceased was due to

asphyxia due to throttling and shock due to penetrating

injury to right lung due to fractured ribs. He has also

identified the postmortem report at Ex.P-33 as the one

issued by him. The witness has further stated that he has

acknowledged the receipt of the body by putting his

acknowledgment signature on Form No.146(i) which is at

Ex.P-40. The witness has further stated that on 21.07.2017,

upon a requisition sent to him by the Investigating Officer,

he has given the opinion on cause of death of deceased

Mahadevi as per Ex.P-34.

16. PW.17 is the Investigating Officer, who has

spoken about the investigation said to have been conducted

by him in the case.

17. It is in the light of the above evidence of the

prosecution witnesses, the learned counsel for the appellant

mainly canvassed two aspects in his argument. The first

aspect which the learned counsel for the appellant canvassed

was the discrepancy in the date of conducting of the

postmortem examination of the dead body by the Crl.A. No.100007/2019

Doctor(PW.20). He brought to the notice of the Court that

witness has specifically and categorically stated in his

evidence that, it was on 19.07.2017 he has conducted the

autopsy between 9:30am to 10:45am. Even the postmortem

report at Ex.P-33 which is identified by him also mentions the

very same timing. On the contrary, the very complaint said

to have been lodged by PW-1 with the complainant Police,

which is at Ex.P-1, go to show that the said complaint was

registered with the police only at 6:45pm on the said date

i.e. on 19.07.2017. Even according to PW.17-the

Investigating Officer, the process of investigation was

commenced subsequent to receipt and registration of FIR

after 6:45pm on 19.07.2017. If that were to be the case,

the question of the Doctor receiving the dead body a day

earlier, in the morning, that too, when the alleged incident

itself had not taken place, never arises. Learned counsel

further submitted that even according to the prosecution, the

deceased died not before 1:30pm on 19.07.2017 which

means, between 9:30am to 10:45am on 19.07.2017, she

was very much alive. That being the case, PW.20-the Doctor Crl.A. No.100007/2019

conducting autopsy upon her between 9:30am to 10:45am

on 19.07.2017 does not arise.

Though the learned Additional State Public Prosecutor

attempted to demonstrate that Ex.P.40 which is Form

No.146(i) shows that the Doctor has acknowledged the

receipt of the dead body on the date 20.07.2017 at

09:00am, as such, conducting of autopsy would be only

subsequent to the said date and time. However, the very

evidence of the Doctor, both oral and documentary, mentions

that the dead body of the deceased was received on

19.07.2017 at 09:00am and autopsy was conducted between

09:30am to 10:45 am on the very same day i.e. 19.07.2017.

Further, the learned counsel for the appellant also draws the

attention of this Court to Ex.P-6 which is said to be the

acknowledgment of the complainant acknowledging the

receipt of the dead body of the deceased Mahadevi which

acknowledgment also shows that the complainant has

acknowledged the receipt of the dead body of his daughter

Mahadevi as on the date 19.07.2017. The counter signature

of the Investigating Officer with his rubber stamp also Crl.A. No.100007/2019

mentions the date as 19.07.2017. It is with these support,

the learned counsel for the appellant vehemently submitted

that the alleged date of death and timing of death of

Mahadevi itself is in doubt. As such, the very initiation of the

case by the prosecution alleging the death of Mahadevi on a

particular date and time itself could not be able to be

established by it.

18. The second main point of the argument of the

learned counsel for the appellant is that, since the entire case

of the prosecution is relying upon the alleged last residing

theory of the accused with the deceased, as such, the one

falling under Section 106 of the Indian Evidence Act

(hereinafter for brevity referred to as 'Evidence Act'), the

said alleged fact of the accused residing with the deceased as

on the said date, being an inculcatory statement, has not

been put to the accused while recording his statement under

Section 313 of the Code of Criminal Procedure, 1973

(hereinafter for brevity referred to as 'Cr.P.C.'). According to

the learned counsel for the appellant, the same has caused

great prejudice to the accused since he was not given an Crl.A. No.100007/2019

opportunity to give his version of the fact about his alleged

stay with the deceased as on the date and time of the

incident in his house.

19. Learned counsel for the appellant also did not

forget to mention that, the accused being undisputedly an

employee working with the statutory body, as a driver, there

is all the reason to doubt his presence on the said date of

offence in the place of the offence, as such, putting the

statement of PW-15 that the accused was in the house with

the deceased on 19.07.2017 was very much necessary and

essential for the Session Judge's Court. The failure of which

has caused great prejudice to the interest of the accused.

20. The learned Additional State Public Prosecutor for

the respondent in his argument submitted that the

discrepancy in the date of conducting autopsy in the case is

unintentional and would neither takeaway the case of the

prosecution nor dilute the case of the prosecution in any

manner. He submitted that when all the evidence clearly go

to show that the deceased Mahadevi died at about 1:30pm

on 19.07.2017 and also when Ex.P.40, which has been Crl.A. No.100007/2019

further acknowledged by the Doctor as PW.20 in his evidence

clearly go to establish that the date of receipt of the dead

body by the said Doctor was not before 09:00am on the date

20.07.2017, the question of he conducting autopsy one day

prior i.e. on 19.07.2017 would not at all arise. As such, the

alleged statement of the Doctor that he conducted autopsy

on the dead body of Mahadevi on the date 19.07.2017 is

purely a case of a simple unilateral mistake by the doctor

which would not dilute the case of the prosecution in any

manner.

21. With respect to not putting the statement of the

witness/es that the accused was residing with the deceased

in his house on the date of the alleged incident is concerned,

the learned Additional State Public Prosecutor submitted that

though the said statement was incriminating and ought to

have been put to the witnesses by the learned Sessions

Judge, however, the counsel for the appellant in the appeal

can himself make clear to the court the reaction of the

accused to the said question had it been put to the accused

and thus avoid any further delay in the matter. At the same Crl.A. No.100007/2019

time, the learned Additional State Public Prosecutor also

submitted that the entire case of the prosecution mainly is

based upon the non-explanation by the accused of the

incident that has taken place on 19.07.2017 from the

morning up to the death of deceased Mahadevi since he was

the only one who was in the company of the deceased on the

said date and time. In that regard, the learned Additional

State Public Prosecutor relied upon two judgments of the

Superior Court which would be relied upon at the relevant

stage hereinafterwards.

22. From the above arguments placed by both sides

in this appeal, the first and important point we are required

to consider is about the consequence of non-putting the

alleged inculcatory statement of the accused being residing

with the deceased as on the date of the incident, to the

accused while recording his statement under Section 313 of

Cr.P.C. At the same time, it also cannot be ignored of the

fact that since all the alleged independent material witnesses

including the alleged eyewitnesses PW.16 and the parents of

the deceased (PWs.1 and 7) have not at all supported the Crl.A. No.100007/2019

case of the prosecution, the entire case of the prosecution is

mainly relying upon the explanation that should have been

given by the accused about the incident or development that

has taken place on 19.07.2017 at that time which is said to

be 1:30pm when the deceased Mahadevi said to have been

residing with him and died in her matrimonial home.

     23.    In    Trimukh      Maroti      Kirkan     v.    State   of

Maharashtra,     reported    in   (2006)    10      SCC    681   which

judgment is relied upon by the learned Additional State

Public Prosecutor, the Hon'ble Apex Court with respect to the

scope of Section 106 of the Evidence Act, was pleased to

observe in paragraphs 14 and 15 of its judgment as below:

" 14. If an offence takes place inside the privacy of a house and in such circumstances where the assailants have all the opportunity to plan and commit the offence at the time and in circumstances of their choice, it will be extremely difficult for the prosecution to lead evidence to establish the guilt of the accused if the strict principle of circumstantial evidence, as noticed above, is insisted upon by the courts. A judge does not preside over a criminal trial merely to see that no innocent man is punished. A judge also presides to see that a guilty man does not escape. Both are public duties. The law does not enjoin a duty on the prosecution to lead evidence of such character which is almost impossible to be led or at any rate extremely difficult to be led. The duty on the prosecution is to lead such evidence which it is capable of leading, having regard to the facts and Crl.A. No.100007/2019

circumstances of the case. Here it is necessary to keep in mind Section 106 of the Evidence Act which says that when any fact is especially within the knowledge of any person, the burden of proving that fact is upon him. Illustration (b) appended to his section throws some light on the content and scope of this provision and it reads:

"(b) A is charged with traveling on a railway without ticket. The Burden of proving that he had a ticket is on him"

15. Where an offence like murder is committed in secrecy inside a house, the initial burden to establish the case would undoubtedly be upon the prosecution, but the nature and amount of evidence to be led by it to establish the charge cannot be of the same degree as is required in other cases of circumstantial evidence. The burden would be of a comparatively lighter character. In view of Section 106 of Evidence Act there will be a corresponding burden on the inmates of the house to give a cogent explanation as to how the crime was committed. The inmates of the house cannot get away by simply keeping quiet and offering no explanation on the supposed premise that the burden to establish its case lies entirely upon the prosecution and there is no duty at all on an accused to offer any explanation."

24. In the instant case, the prosecution contention is

that, at the time of the incident, it was the accused and the

accused alone who was in the company of the deceased.

However, their minor daughter by name Varsha, who is said

to be of aged about two years, though, is also said to be

another person present in the said house, but she being an

infant, her presence was of not much relevance. Even Crl.A. No.100007/2019

according to Section 106 of Evidence Act, anything which is

exclusively to the knowledge of any person, the burden of

proving the fact would be upon him. Therefore, even

according to the principle laid down in Trimukh's case

(supra) if once it is established that it was the accused and

the accused alone who was in the company of the deceased

as at the time of the alleged incident, it is for the accused to

explain as to what transpired at that moment which is

alleged to have led to the death of the deceased.

In the above circumstance before invoking Section 106

of Evidence Act or relying upon Section 106 of Evidence Act,

primarily, it is for the prosecution to establish that the

accused was in the company of the deceased. If the

prosecution could able to establish beyond reasonable doubt

that the accused was in the company of the deceased as at

the time of the alleged incident, then it is expected from the

accused to explain and to establish as to what transpired

when he was solely in the company of the deceased at the

time of the alleged incident. Therefore, in the said

circumstances of the case, any statement made by any Crl.A. No.100007/2019

prosecution witnesses to the effect that, as at the time of the

alleged incident, it was the accused and the accused alone

was in the company/association of the deceased, would

become very important material, inclulcatory statement

which would under all circumstances, be put to the accused

by the Session Judge's Court while recording the statement

of the accused under Section 313 of Cr.P.C.

25. Admittedly, in the case on hand, PW.15 who is

none else than the mother of the accused is shown to have

made a statement that as on the date of the alleged incident

i.e. on 19.07.2017, when she left home at 10:00am in the

morning, it was her son (the accused) and her daughter-in-

law(the deceased) and her grand daughter Varsha(daughter

of the deceased) were alone in the house. The witness has

further stated that she returned back to the home at

01:30pm and saw the deceased stumbling by the

threshold, falling on it and sustaining hurt to her chest and

neck. Thus PW.15 is the only witness among all the

witnesses examined by the prosecution, who has

categorically and specifically stated that the accused was in Crl.A. No.100007/2019

the company of the deceased as at the time of the alleged

incident. In such a case, the said statement being an

inculcatory statement, the Session Judge's Court ought to

have put the said question to the accused while recording the

statement under Section 313 of Cr.P.C. and elicited his

response/reply. In that regard, stating that non putting such

an inculcating statement to the accused under Section 313 of

Cr.P.C., would not weaken the case of the prosecution, the

learned Additional State Public Prosecutor relied upon the

judgment of the Hon'ble Apex Court in State(Delhi

Administration v. Dharampal reported in 2003 SCC (Cri)

1012. In the said case also, the Hon'ble Apex Court while

describing the importance of recording of the statement

under Section 313 of Cr.P.C., in para 13 of its judgment was

pleased to observe as below:

" 13. Thus it is to be seen that where an omission, to bring the attention of the accused to an inculcatory material has occurred, that does not ipso facto vitiate the proceedings. The accused must show that failure of justice was occasioned by such omission. Further, in the event of an inculcatory material not having been put to the accused, the appellate court can always make good that lapse by calling upon the counsel for the accused to show what explanation the accused has as Crl.A. No.100007/2019

regards the circumstances established against the accused but not put to him."

26. It is relying upon the said observation made by

the Court, the learned Additional State Public Prosecutor said

that the learned counsel for the appellant can always make

good that lapse by giving the explanation of the accused.

The learned counsel for the appellant in his reply

argument submitted that, it is the accused and the accused

alone who can respond to the said question in a manner

exclusively known to him when a specific question regarding

his presence at the time of the incident is posed to him by

the competent Court. As such, in the alleged circumstances

of the case, he is neither in a position of contacting the

accused and ascertaining his explanation to the plausible

question proposed to be put to him nor in a position to

communicate the feeling, sentiment, the meaning which the

accused is expected to place before the Court in the words

that is going to be used by him as well in the manner of he

answering the question. We find it very hard to reject the

said contention of the learned counsel for the appellant.

Crl.A. No.100007/2019

27. Our Hon'ble Apex Court in Nar Singh v. State of

Haryana reported in (2015) 1 SCC 496 was pleased to

discuss about the courses available to the appellate Court

whenever a plea of omission to put a question to the accused

on vital piece of evidence is raised in the appellate Court. In

paragraph 30 to 30.4 of its judgment, the Hon'ble Apex Court

was pleased to observe as below:

"30. Whenever a plea of omission to put a question to the accused on vital piece of evidence is raised in the appellate court, courses available to the appellate court can be briefly summarised as under:

30.1. Whenever a plea of non-compliance with Section 313 CrPC is raised, it is within the powers of the appellate court to examine and further examine the convict or the counsel appearing for the accused and the said answers shall be taken into consideration for deciding the matter. If the accused is unable to offer the appellate court any reasonable explanation of such circumstance, the court may assume that the accused has no acceptable explanation to offer.

30.2. In the facts and circumstances of the case, if the appellate court comes to the conclusion that no prejudice was caused or no failure of justice was occasioned, the appellate court will hear and decide the matter upon merits.

30.3. If the appellate court is of the opinion that non-compliance with the provisions of Section 313 CrPC has occasioned or is likely to have occasioned prejudice to the accused, the appellate court may direct retrial from the stage of recording the statements of the accused from the point where the irregularity occurred, Crl.A. No.100007/2019

that is, from the stage of questioning the accused under Section 313 CrPC and the trial judge may be directed to examine the accused afresh and defence witness, if any, and dispose of the matter afresh.

30.4. The appellate court may decline to remit the matter to the trial Court for retrial on account of long time already spend in the trial of the case and the period of sentence already undergone by the convict and in the facts and circumstances of the case, may decide the appeal on its own merits, keeping in view the prejudice caused to the accused."

28. In the instant case, as analysed above, it is the

alleged presence of the accused and the accused alone in the

company of the deceased at the time of the incident is the

main alleged proven fact based upon which the Session

Judge's Court has proceeded to invoke Section 106 of

Evidence Act and has pronounced the judgment of conviction

against the accused. However, as observed above, the

alleged statement of the prosecution witnesses (PW-15)

about the accused being in the company of the deceased at

the time of the alleged incident being the very material

aspect required to be proved by the prosecution, as such, an

incriminating statement which should have been necessarily put

in the mouth of the accused while recording the statement Crl.A. No.100007/2019

under Section 313 of Cr.P.C., any response from the accused

would have assisted the Session Judge's Court to weigh the

balance of justice in an appropriate manner and in due

appreciating the evidence and materials placed before it in its

proper perspective. Thus, we are of the opinion that non-

compliance of the provision of Section 313 of Cr.P.C. in a

manner required under the circumstances of the case, has

caused prejudice to the accused.

29. In the above circumstance, the recourse open to

us is, as mentioned in para 30.3 of Nar Singh's case (supra)

directing for a retrial from the stage of recording statement

of the accused from the point where the irregularity has

occurred i.e. from the stage of questioning the accused under

Section 313 of Cr.P.C. and directing the Session Judge's

Court to examine the accused afresh and defence witness if

any and dispose of the matter afresh or to decline to remit

the matter to the trial court for retrial on account of long

time, if any, already spent in the trial of the case and the

period of sentence already undergone by the convict and in

the facts and circumstances of the case, this Court may Crl.A. No.100007/2019

decide the appeal on its own merits keeping in view the

prejudice caused to the accused.

30. In the instant case, the impugned judgment of

conviction has been pronounced on 19.11.2018.

31. According to the learned counsel for the

appellant, since the accused is in judicial custody remitting

the matter to hear the reply of the accused to the

incriminating statement of he being in the company of the

deceased as at the time of the alleged incident, would

contribute to further delay. As such, fixing a date for

continuation of the proceedings from the stage of recording

of the statement of the accused under Section 313 of Cr.P.C.

and completion of the trial within a prescribed time, would be

appropriate.

In a similar circumstance, a Division Bench of this Court

in Naga @ Nagaraja and another v. The state of Karnataka

and another reported in ILR 2002 KAR 5129 also has

remanded the matter for recording of the statement of the Crl.A. No.100007/2019

accused under Section 313 of Cr.P.C. afresh and to proceed

further.

32. Since in the case on hand, we are fully convinced

that the Session Judge's Court has committed an error in not

putting an incriminatory statement about the accused living

in the company of the deceased as on the date of the

incident and invoking his response to the same, has caused

great prejudice to the interest of the accused, to set right the

same, the impugned judgment deserves to be set aside and

the matter requires to be remanded to the Session Judge's

Court for its disposal afresh in accordance with law, however,

from the stage of recording of the statement of the accused

under Section 313 of Cr.P.C.

33. It is ordering accordingly, we set aside the

impugned judgment dated 19.11.2018 passed in S.C.

No.338/2017 and remit the matter back to the V Additional

District and Sessions Judge at Belagavi with a direction to

continue the proceeding before it in the instant case from the

stage of recording of the statement of the accused under

Section 313 of Cr.P.C. and dispose of the matter in Crl.A. No.100007/2019

accordance with law and on its merit at the earliest. We

request the Session Judge's Court that, considering the fact

that the accused is in judicial custody, it would dispose of the

matter within six months from the date of this judgment. In

order to avoid any further delay in the matter, both side

parties are directed to appear before the Session Judge's

Court on 25.02.2022 at 11:00am and participate in the

further proceeding in the matter.

The registry is directed to transmit a copy of this

judgment along with the trial Court records to the concerned

Court forthwith.

In view of disposal of the main appeal, I.A.1/2019 does

not survive for consideration.

Sd/-

JUDGE

Sd/-

JUDGE kmv