Srinivasa vs The State Of Karnataka
2022 Latest Caselaw 3392 Kant

       IN THE HIGH COURT OF KARNATAKA AT BENGALURU

         DATED THIS THE 28TH DAY OF FEBRUARY, 2022

                          PRESENT

             THE HON'BLE MR. JUSTICE B. VEERAPPA

                            AND

             THE HON'BLE MR. JUSTICE S. RACHAIAH

             CRIMINAL APPEAL No. 1069/2018

BETWEEN:
SRINIVASA,
S/O CHIKKANNA @ GOVINDEGOWDA,
AGED ABOUT 40 YEARS,
DRIVER AND GARAGE WORK,
R/AT MARATIKYATHANAHALLI,
JAYAPURAHOBLI,
MYSURU TALUK,
MYSURU DISTRICT - 570 012.
                                          ... APPELLANT
(BY SRI H.S. SURESH, ADVOCATE)

AND:
THE STATE OF KARNATAKA,
BY H.D.KOTE POLICE,
REP. BY SPP OF HIGH COURT OF KARNATAKA,
HIGH COURT BUILDING,
BENGALURU - 560 001.
                                          ...RESPONDENT
(BY SRI K. NAGESHWARAPPA, HCGP)


      THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374(2)
CR.P.C PRAYING TO SET ASIDE THE JUDGMENT OF CONVICTION
DATED 09.10.2017 AND SENTENCE DATED 10.10.2017 PASSED BY
THE II ADDITIONAL SESSIONS JUDGE, MYSURU IN S.C.NO.82/2013-
CONVICTING    THE  APPELLANT/ACCUSED    FOR  THE   OFFENCE
PUNISHABLE UNDER SECTION 302,498A OF IPC.
                                 2




     THIS APPEAL COMING ON FOR HEARING,               THIS   DAY,
S.RACHAIAH DELIVERED THE FOLLOWING:-



                          JUDGMENT

The appellant has preferred this appeal against the

judgment of conviction dated 09.10.2017 and order of sentence

dated 10.10.2017 passed in S.C.No.82/2013 by the learned II

Additional Sessions Judge, Mysuru, convicting the accused /

appellant for the offences under sections 302 and 498A of IPC.

2. Brief facts of the case are as under:-

The deceased Vishali is the wife of the accused. She was

found dead in the land of one Nagendra in Hallada Manuganahalli

village on 23.01.2012 in the morning hours. The marriage of the

deceased with the accused was solemnized about 11 to 12 years

prior to the incident. Their relation was cordial at the initial

stage. Thereafter, some problems arose between them. They

had two children out of their wedlock, a son, by name, Kiran and

a daughter, by name, Kirthi. The accused was working in vehicle

service garage, he used to desert the house frequently. On

returning from his work, he was suspecting the fidelity of the

deceased and subjected her to cruelty. He always wanted to join

the children to the Orphanage for their growth and study. The

deceased was opposing and quarrelling in that regard that the

children should grow with her in the house. She wanted the

children to learn in a good school. However, the accused was

not interested to feed them properly by giving money. Such

being the matter, the deceased had sent the children to her

native place for their study. This matter was not aware to the

accused. In the evening on 22.1.2012, the accused questioned

about the whereabouts of the children and the deceased

expressed her ignorance. Then, the accused asked her to

accompany in order to search the children. It was about 8.00

p.m., they left the house at Moratikyathanahalli in search of their

children. On the next day morning, the dead body of the

deceased was found in the land of Nagendra at

Halladamanuganahalli village.

3. On seeing the dead body, a complaint came to be

lodged by PW.1. Upon such complaint, the police have

registered the case in Crime No.29/2012 and started

investigation. The accused was arrested on 01.12.2012. After

apprehending the accused, the police have conducted

investigation and filed charge sheet. On committal to the

Sessions Court, the Sessions Court framed the charges against

the accused for the offences under sections 302, 498A of IPC.

The accused has denied the charges and claimed to be tried.

The prosecution in order to prove the case, examined PWs.1 to

29 and marked the documents Ex.P1 to Ex.P98 and also marked

the material objects MO.1 to MO.9. After careful scrutiny of the

evidence and material available on record, the Trial Court

convicted the accused / appellant for the offences under sections

302 and 498A of IPC. Being aggrieved by the said conviction,

the appellant has preferred this appeal seeking to set aside the

judgment of conviction.

4. We have heard the learned counsel for the parties.

5. Sri.H.S.Suresh, learned counsel for the appellant

contended that the Trial Court has committed a grave error in

not considering the evidence properly and convicted the

accused. The Trial Court ought to have considered the evidence

in detail, since, the entire case is based on circumstantial

evidence. That on thorough scrutinization of the evidence has

not been done by the Trial Court and the impugned judgment

has been passed.

6. He further contended that the Trial Court mainly

relied on the document which is marked as Ex.P16 i.e., the

phone number of one Mallesh said to have been written by the

son of the deceased and accused, the same had been handed

over to the accused for reference of the phone number. Though

the said document which was marked as Ex.P16, the handwriting

found on the document has not been sent to FSL for its expert's

opinion as to whether the handwrirting belongs to the son of the

deceased or not. Such being the fact, relying on such piece of

evidence and convicting the accused is absolutely arbitrary and

illegal which is liable to be set aside. Hence, he sought to allow

the Appeal.

7. Per contra, Sri.K.Nageshwarappa, learned High Court

Government Pleader has vehemently argued that apart from the

document Ex.P16, other circumstances strongly point out

towards the accused. The son of the accused has supported the

case of the prosecution and there is no reason to disbelive the

version of the son about the ill-treatement, cruelty meted out to

his mother at the hands of the accused / father. Such being the

fact, the Trial Court after having considered the material and

evidence on record, has rightly convicted the accused. As such,

intereference in a well reasoned order or judgment passed by

the Trial Court is uncalled for. Hence, he seeks to dismiss the

appeal.

8. In veiw of the rival contentions urged by the learned

counsel for the parties, the points that arise for our consideration

are:-

a) Whether the trial court is justified the conviction of the appellant for the offences under sections 302 and 498-A of IPC?

b) Whether the Appellant has made out any ground to interfere with the impugned judgment and order of sentence passed in S.C. No. 82/2013?

9. This court being a first appellate court, in order to

re-appreciate the evidence and material on record, it is relevant

to have cursory look upon the evidence of witnesses for

consideration.

a) PW.1 H.V.Anand has lodged the complaint about

an unknown body found in the land belonging to

Nagendra and he is also a witness to the spot

mahazar under which MOs.1 to 6 have been

seized.

b) PW.2 Venkatashetty is the witness to inquest

which is marked as Ex.P11. He has supported the

case of the prosecution.

c) PW.3 Venkataramana is the witness to spot

mahazar - Ex.P14 and he has supported the case

of the prosecution.

d) PW.4 Chikkamadaiah is the witness to Ex.P15

which is spot mahazar said to have shown by the

accused. He has partly supported the case of the

prosecution.

e) PW.5 Veerabhadregowda is the witness to Ex.P16,

he has tuned hostile.

f) PW.6 Chandan is the witness supposed to depose

that he has seen the dead body and the injuries

sustained to the dead body etc., but he has

turned hostile.

g) PW.7 Ningegowda is the witness supposed to

depose about the chit which was found near the

dead body, but he has not supported the case of

the prosecution.

h) PW.8 Ravikumar is the witness supposed to

depose about the chit which was found near the

dead body, but he has not supported the case of

the prosecution.

i) PW.9 Honnamma is the mother of the accused

and she is supposed to depose about the quarrel

and suspecting fidelity character of the deceased.

She has turned hostile.

j) PW.10 Bhagya is the younger sister of the

accused who is supposed to depose about the ill-

treatment, quarrel for suspecting the fidelity of

her sister-in-law, but she has turned hostile.

k) PW.11 Krishna is the known person to deceased

and also accused. He states that he along with

one Putta have conducted panchayath about the

quarrel which both deceased and accused were

always quarrelling for petty reasons. He has

supported the case to the extent that there was a

quarrel between the accused and deceased with

respect to the deceased had illicit relationship

with some other person etc. In other words, he

has partly supported the case of the prosecution.

l) PW.12 Sarojamma is the mother of the deceased.

She has supported the case of the prosecution

with regard to ill-treatment, harassment and

suspecting the fidelity of the deceased etc. She

further states that many a times, panchayaths

were conducted and they had advised both the

deceased and accused to lead a happy marital

life. She further deposes that it the accused who

alone is responsible for the death of her daughter.

She supported the case of the prosecution.

m) PW.13 Nagendra is the brother-in-law of the

deceased. He has partly supported the case of

the prosecution.

n) PW.14 Dasaiah is the circumstantial witness. He

is supposed to depose about the chit containing

phone number, lying beside the dead body. He

has turned hostile.

o) PW.15 Shivannegowda is the circumstantial

witness. He is supposed to depose about the chit

containing phone number, lying beside the dead

body. He has turned hostile.

p) PW.16 Mallesh is the brother-in-law of accused.

He has admitted that the phone number said to

have been found in Ex.P16 was being used by

him. He has not supported the case of the

prosecution.

q) PW.17 Mahesha is the younger brother of the

accused. He states that he has seen accused and

deceased who were got down from the bus when

he was going for his work. Apart from that, he

has not seen anything about the incident. He has

turned hostile, not supporting the case.

r) PW.18 Kiran is the son of the accused and

deceased. He has supported the case of the

prosecution with respect to ill-treatment, cruelty

and frequent quarrel between the deceased and

accused. He has further deposed that his father

used to assault his mother after having consumed

alcohol. Having frustrated such a quarrel, he and

his younger sister had been to their grand-

mother's house and they were studying there. He

is not an eyewitness to the incident. But he has

supported the case as a circumstantial witness.

s) PW.19 Prakash is the cousin of the deceased. He

is the circumstantial witness. He states that the

deceased used to tell her that she was being

subjected to cruelty by her husband. He has

supported the case to that extent.

t) PW.20 Ananda is the uncle of the deceased. He

has admitted that there was a quarrel between

the accused and deceased for petty reasons and

he used to advice them to lead a happy married

life. He has partly supported the case.

u) PW.21 Dr.Ravi.N is the doctor who conducted

postmortem of the deceased and submitted a

report which is marked as Ex.P35. Through him

RFSL report was also got marked as Ex.P34. He

has supported the case of the prosecution.

v) PW.22 Putta is the maternal uncle of the

deceased. He has supported the case of the

prosecution with respect to harassment, cruelty

and quarrel.

w) PW.23 Srikantaswamy is the Police Constable of

HD Kote Police Station. He was deputed to arrest

the accused. Accordingly, the accused was

arrested on 1.12.2012 and was handed over to

the police station. He has supported the case of

the prosecution.

x) PW.24 M.B.Thippegowda is the PSI of HD Kote

police station. He has conducted partial

investigation and handed over the case for further

investigation to CPI.

y) PW.25 Nagegowda is the Circle Inspector of

Police. He has conducted partial investigation and

handed over further investigation to PW.29.

z) PW.26 Srinivas is the Police Constable attached to

Varuna Police Station. He deposes that, on

instructions of PSI, he received the clothes of

deceased and handed over to PSI of H.D.Kote

police station. He has supported the case of the

prosecution.

aa) PW.27 M.Nanjegowda is working as Head

Constable of H.D.Kote Police Station. He states

that, on instructions of CPI, he shown the

photographs of the deceased to the nearby

villagers to identify the dead body.

bb) PW.28 Borashetty is the ASI. He has

registered the case on the basis of the complaint

in Crime No.29/2012 and Ex.P67 FIR got marked

through him. He has supported the case of the

prosecution.

cc)PW.29 H.Govindaraju is the Circle Inspector of

H.D.Kote police station. He has conducted

investigation and submitted charge sheet.

10. The entire case rests on the circumstantial evidence.

The following points are necessary and required to be analyzed

in order to arrive at conclusion:

a) Homicidal death,

b) Last seen theory,

c) Conduct of the accused,

d) Cruelty to the deceased

e) Motive

HOMICIDAL DEATH

11. The prosecution has examined P.W.21 the Doctor,

who conducted the postmortem and submitted his report and the

same is marked as Ex.P35. The report clearly indicates that, "the

cause of the death is due to asphyxia as a result of ligature

strangulation". The prosecution has successfully proved that, the

death is a homicidal death. The possibility of suicide has been

ruled out by the evidence of P.W.21.

LAST SEEN THEORY

12. Now, as regards the last seen theory is concerned,

the prosecution has relied upon the evidence of P.W.11, P.W.12.

P.W.13, P.W.17, P.W.18 and P.W.22. These are all the

witnesses who have deposed to have seen the company of the

appellant with deceased prior to the death has occurred.

Now let us analyze the evidence of P.W.11 who is the

relative of the deceased. He has deposed that, prior to the death

of Vishali, he and P.W.22 - Putta have conducted panchayath

many times about the quarrel and suspecting the fidelity of the

deceased by the Appellant. He has stated that, he heard from

the deceased about the ill-treatment and suspecting the fidelity.

This evidence does not support the last seen theory. The Trial

Court has erred in coming to the conclusion that, he has seen

the deceased along with accused soon prior to the death of

Vishali.

P.W.12 is the mother of the deceased. She has stated

about the ill-treatment and appellant's suspecting character

towards her daughter. She has stated that, the deceased died 3

- 4 days later, after she had gone with the appellant to

Maratikythanahalli Village.

P.W.13 is the brother - in - law of the deceased. He also

told about the ill-treatment which was being given to the

deceased. Further he states that, there was panchayath

conducted by Puttanna and Krishna to pacify the quarrel

between the deceased and appellant. Further he states that, the

Appellant and deceased had given a call to him and asked the

whereabouts of the children of the deceased and appellant as to

whether the children had gone there or not? According to him,

the appellant and deceased were together on the previous day

before the death of deceased. The evidence of this witness do

not inspire the confidence of the court about the last seen

theory, for the reason that, no phone call details of P.W.13 have

been collected by the investigating officer to prove the last seen

theory. Mere mentioning that, the deceased and appellant had

spoken with P.W.13 would not be sufficient.

P.W.17 is the younger brother of Appellant. He states

that, three days earlier to Sankranthi festival, he had seen the

deceased and Appellant when both have got alighted the bus to

go Maratikyathanahalli. In the case on hand, the dead body was

seen by P.W.1 on 23.01.2012 and on the same day he has

lodged a complaint. There is much time gap between the last

seen together theory and deceased body discovered. This

creates a doubt about the complicity of the appellant with the

deceased.

P.W.18 is the son of the appellant and deceased. He has

categorically stated about ill-treatment, cruelty and harassment

given to his mother by the Appellant. But, he has not seen as to

whether his father was with his mother on the fateful day or not.

Further, he has identified the chit which is said to have been

written by him and given to his father containing the phone

number of Mallesh. The same chit fell down near the place

where the dead body of his mother was found. The same is

marked as Ex.P.16. The chit which was found near the dead

body and based on the said chit, the prosecution has built a case

that, the appellant had killed his wife, which is a very weak

piece of evidence and the Trial Court ought not have considered

the evidence of such nature to come to a conclusion. The

learned counsel for the Appellant has rightly pointed out that,

the handwriting found in the chit has not been subjected for any

expert opinion. Such being the fact, it is unsafe to believe the

evidence of P.W.18 regarding the chit said to have been written

and given to the appellant.

P.W.22 is the maternal uncle of decased. Though he has

stated that, the appellant and deceased were quarrelling with

each other for petty reasons and the appellant was suspecting

the fidelity of the deceased, he has not stated anything about

the the deceased last seen together with the appellant. All

these witnesses have not supported the case of prosecution as

far as the last seen theory.

After having gone through the evidence of all these

witnesses, we are of the considered opinion that, the Trial Court

has committed grave error in arriving at the conclusion that, the

last seen togther theory has been proved. Hence, the

appreciation of evidence by the Trial Court is not acceptable.

MOTIVE

13. As regards the Motive is concerned, the case of the

prosecution is that, the accused was suspecting the fidility of the

deceased Vishali, consequently, frequent quarrel was taking

place between the accused and the deceased. In order to

prove the motive, the prosecution has relied upon the evidence

of P.W.11- Krishna, he deposes that the deceased is the

daughter of his maternal aunt. Further he deposes that, prior to

the death of deceased Vishali, there were panchayats held

between deceased and accused regarding the quarrel that was

usually being taken place for the purpose that, the accused was

suspecting the fidility of the deceased. Further, he deposes

that he and one Putta have advised them to lead happy life for

the sake of the children and further he deposes that he is not

aware as to what happened on the date of the incident and how

she has died. In the cross-examination, except the panchayath

said to have been convened for advising the deceased and

accused, nothing has been admitted by this witness.

PW.12 - Sarojamma is the mother of deceased Vishalu.

She deposes that, when deceased and accused were living in

Mysuru, the accused had send the deceased to her house in

order to bring Rs.15,000/- as dowry and also further she

deposes that, at the time of marriage, whatever the ornaments

that she had given to the deceased, have been pledged for the

purpose of drinking habit of the accused. Further, she

deposes that, prior to the death of Vishali, the deceased and

accused had been to her village and went back after the

programme. Though the prosecution has tried to bring the

motive part for the Murder of Vishali, the entire evidence of this

witness is not sufficient to come to the conclusion that, the

Prosecution has proved the Motive for Murder of Vishali.

Another witness namely, PW.22 - Putta is the maternal-

uncle of deceased Vishali. He has deposed that, he was

partially blind. Further, he deposes that, the relationship

between accused and deceased was not in good terms. It

means, the accused suspecting the fidility of the deceased and

used to assault her for that reason. Further, he deposes that,

he and PW.11 have convened a panchayath and advised the

deceased and accused to lead happy married life for the sake of

the children. Though this witness deposed about the strained

relationship, that it self is not sufficient to prove that the

accused alone is repsonsible for the murder of Vishali.

CONDUCT OF THE ACCUSED

14. As regards the abscondence of the Appellant is

concerned, of course, this is also one of the strong circumstance

to draw the adverse inference. However, it is necessary to

analyze the fact in the case. Admittedly, the date of incident

was on 23.01.2012 and the accused was arrested on

01.12.2012. There is no evidece as to whether the accused was

absconding after the incident occurred or not. The children of

the accused are more competent witnesses than any other

witnesses. We have anxiously gone through the evidence of the

son i.e P.W.18, but, he has not stated about the abscondence of

his father i.e. accused.

The Hon'ble Supreme Court time and again reiterate that,

mere abscondence is not sufficient to connect the accused to the

crime unless there is cogent and clinching evidence available on

record. As could be seen from the records, he was in the habit

of working by remaining outside the village for months together.

Such being the fact, it could be easily inferred that, he might

have gone for his avocation and could not able to return to the

village. Hence, this circumstance may not be helpful to the

prosecution to implicate the accused.

CONCLUSION

15. After having analyzed and re-appreciated the entire

evidence and documents on record, we are of the considered

opinion and have arrived at the conclusion that,

a) The entire case is based on the circumstatial evidence.

b) The witnesses who have cited as witnesses to last seen

theory and their evidence is not sufficent to prove the

last seen theory because, they have not at all seen the

accused and deceased either on previous day or soon

after the incident.

c) Though P.W.11 is the cousin brother of deceased Vishali

and Son of P.W.12, they have not seen the accused and

deceased either on previous day or soon after the

incident.

16. In the light of the above discussions, the points

which arose for our consideration are answered in the negative,

by holding the trial court is not justified in convicting the accused

for the offences under section 302 and 498A of IPC. On the

other hand, the appellant has made out a ground to interfere

with the impugned judgment of conviction dated 09.10.2017 and

order of sentence dated 10.10.2017 passed by the II Additional

Sessions Judge, Mysuru in S.C.No.82/2013 for the offences

punishable under sections 302 and 498A of IPC.

17. In view of the above, we pass the following:-

ORDER

(i) The appeal filed by the appellant is allowed.

(ii) Consequently, the impugned judgment of conviction

dated 09.10.2017 and order of sentence dated 10.10.2017

passed by the learned II Additional Sessions Judge, Mysuru in

S.C.No.82/2013 for the offence punishable under sections 302

and 498A of IPC is set-aside and he is acquitted of the charges

leveled against him for the said offences.

(iii) The concerned Jail authority is directed to release the

accused forthwith, if he is not required in any other case.

(iv) The registry is directed to communicate this operative

portion of the order to the concerned Jail authority forthwith.

Sd/-

JUDGE

Sd/-

JUDGE

Bss.