Udayasing S/O. Narasing Rajaput vs The State Of Karnataka
2022 Latest Caselaw 7407 Kant

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                                                                   CRL.A No. 100097 of 2017


                                           IN THE HIGH COURT OF KARNATAKA

                                                    DHARWAD BENCH

                                          DATED THIS THE 25TH DAY OF MAY, 2022

                                                       PRESENT
                                         THE HON'BLE MRS JUSTICE K.S.MUDAGAL
                                                          AND
                                          THE HON'BLE MR JUSTICE M.G.S. KAMAL
                                         CRIMINAL APPEAL NO. 100097 OF 2017 (C)
                                BETWEEN:

                                1.   UDAYASING S/O. NARASING RAJAPUT
                                     AGE:47 YEARS, OCC:JAIL WARDER
                                     R/O:JAIL QUARTERS, DHARWAD

                                                                             ...APPELLANT

                                (BY SRI. ASHOK T KATTIMANI, ADVOCATE)

                                AND:

                                1.   THE STATE OF KARNATAKA
                                     REPRESENTED BY SPP
                                     HIGH COURT OF KARNATAKA
                                     THROUGH POLICE INSPECTOR
                                     SUBRABAN P.S, DHARWAD

                                                                           ...RESPONDENT
          Digitally signed by
          J MAMATHA
          Location: High
J
MAMATHA
          Court of
          Karnataka,
          Dharwad Bench
                                (BY SRI. V.M.BANAKAR, ADDL. SPP)
          Dharwad.
          Date: 2022.06.10
          11:39:52 +0530
                                     THIS CRIMINAL APPEAL IS FILED UNDER SECTION
                                374(2) OF CR.P.C., SEEKING THAT THE JUDGMENT OF
                                CONVICTION AND ORDER OF SENTENCE PASSED BY THE VI
                                ADDL. SESSIONS COURT, DHARWAD IN S.C.NO.26/2016
                                DATED 28.10.2016 BE SET ASIDE AND THE ACCUSED
                                APPELLANT BE ACQUITTED BY ALLOWING THE APPEAL.
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                                             CRL.A No. 100097 of 2017


     THIS APPEAL COMING ON FOR FURTHER HEARING,
THIS DAY, K.S.MUDAGAL J., DELIVERED THE FOLLOWING:


                             JUDGMENT

Aggrieved by the order of conviction and sentence passed

against him for the offences punishable under Sections 302,

498(A) and 201 IPC, the accused in S.C.No.26/2016 on the file

of the IV. Addl. District and Sessions Judge, Dharwad, has

preferred the above appeal.

2. The appellant was the sole accused before the trial

Court. For the purpose of convenience parties will be referred

to henceforth according to their ranks before the trial Court.

3. The marriage of the accused with victim-

Smt.Geetha was solemnized about 20 years prior to

30.10.2015. PW-3 is the father of Smt.Geetha. PW-3 was

working in the Prison as Warder. After marriage, the accused

was also appointed as Warder in the Prison Department. Out of

said wedlock, the appellant and the deceased begot a

daughter/PW-4 and a son. At the time of the incident, accused

was working in Central Prison, Dharwad, as Warder.

CRL.A No. 100097 of 2017

4. Few years prior to death of Geetha, some

disturbances arose in the family life of the accused and Geetha.

The accused was residing in his official quarters bearing No.18

situated at Saidapur, Dharwad, Initially, the accused, his wife

and two children were living in the said quarters. Later Geetha

and her children started living separately in a rented house.

5. On 04.04.2015, Geetha had filed a complaint before

PW-16/Protection Officer of Women and Child Welfare

Department, Dharwad, as per Ex.P.15 alleging that the accused

is subjecting her to physical, economic and emotional violence.

She had alleged that suspecting her fidelity, he was ill-treating

her and has neglected to maintain her and her children and

sought protection.

6. For maintenance of herself and her children Geetha

was running an Ice Cream Parlour. Her daughter/PW-4 was a

student and doing part time job in some Computer Centre.

7. On 30.10.2015 at 5 p.m., Geetha was found dead in

the residence of the accused in a strangulated condition. PW-3

filed complaint as per Ex.P.10 before PW-20 the gist of which is

as follows:

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That about 4 p.m., Geetha informed him that the accused

is threatening her that if she did not return the ATM card, he

would kill her and she was scared. He asked her to go to the

house of the accused and return the ATM card without getting

into any argument. Later on when he called Geetha, she did

not receive the phone. Therefore, he called PW-4 to enquire

and learnt that Geetha has not returned home. Therefore, both

of them went to the quarters of the accused. The accused was

locking the house and on sighting them, he hurriedly locked the

house and ran away. Suspecting some fowl play when they

peeped into the house, they found Geetha lying on the floor

with ligature material in her neck. The accused has committed

the murder.

8. On receiving the complaint, PW-20, the Police

Inspector of Sub-Urban Police Station, Dharwad, registered the

FIR as per Ex.P.22 against the accused in Cr.No.194/2015. On

investigation, the accused was charge-sheeted for the offences

punishable under Sections 498(A), 302 and 201 IPC.

9. According to the prosecution, on 30.10.2015

between 17.00 and 18.00 hours when Geetha went to the

CRL.A No. 100097 of 2017

house of the accused to return the ATM card, the accused

picked up quarrel with her, with an intention to commit her

murder, he assaulted her, throttled her neck, thereafter,

strangulated her with the vail/M.O.3 and committed her

murder. It is further alleged that to screen the evidence of

offence, the accused disposed the ATM card in some unknown

place.

10. The accused was arrested and remanded to the

judicial custody. The Magistrate on taking the cognizance of

the offence committed the case to the trial Court. The trial

Court on hearing the accused framed the charges against him

for the offences punishable under Sections 498(A), 302 and

201 IPC. The accused denied the charges and claimed trial.

Therefore, the trial Court conducted the trial.

11. In support of its case, the prosecution examined

PWs-1 to 20 and got marked Exs.P.1 to 42 and M.Os.1 to 9.

After his examination under Section 313 Cr.P.C., the accused

did not lead any defence evidence. He filed the defence

statement and got marked Ex.D.1 by way of confrontation of

PW-13.

CRL.A No. 100097 of 2017

12. The trial Court on hearing the parties, by the

impugned judgment and order convicted the appellant/accused

for the offences punishable under Sections 498(A), 302 and

201 IPC and sentenced him as follows:

    Offence          Imprisonment                Fine       In default
                                                            sentence
   302 IPC             RI for life         Rs.1,00,000/-    RI for five
                                                             months
  498 (A) IPC         RI for three                         RI for three
                         years             Rs. 10,000/-      months
   201 IPC            RI for three                         RI for three
                         years             Rs.   5,000/-     months

13. There were no eye witnesses to the incident. The

case was based on the following circumstantial evidence:

i) Motive for commission of the offence i.e., accused suspecting the fidelity of the victim and harassing her,

ii) the accused was found locking his house and running away and thereafter the victim was found dead in his house with homicidal injuries,

iii) The medical evidence,

iv) The evidence of the official witnesses.

14. The trial Court based the conviction on the following

grounds:

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i) that the circumstance of motive was proved by the evidence of PWs-3, 4 and 16,

ii) that the circumstance of last seen together theory was proved by the evidence of PWs-3 and 4,

iii) the death being homicidal is proved by the evidence of PWs-3 and 4, inquest mahazar Ex.P.20, photos Ex.P.34 to Ex.P.38,

iv) the conduct of accused running away from the scene of offence and soon thereafter victim being found dead in his house,

v) the plea of alibi set up by the accused was not proved,

15. Shri Ashok T.Kattimani, learned counsel for the

accused/appellant seeks to challenge the impugned judgment

and order on the ground that except the interested witnesses

i.e., PWs-3 to 5, there was no independent evidence to prove

the death being homicidal. He submits that the medical

evidence was also not conclusive about death being homicidal.

He further submits that the defence of alibi was proved by the

admission of PW-3 himself. He submits that the trial Court has

grossly erred in appreciating the evidence, therefore, the

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impugned order of conviction and sentence is unsustainable in

law.

16. Per contra, Shri V.M.Banakar, learned Addl. State

Public Prosecutor referring to the evidence on record and the

conduct of the accused submits that the evidence and record

was cogent and consistent and was corroborative of each other.

He further submits that the evidence on record, the

circumstances of the case coupled with the conduct of the

accused lead to the only hypothesis of the guilt of the accused

and charges were proved beyond reasonable doubt.

17. Having regard to the rival contentions and the

material on record, the point that arises for consideration is:

"Whether the trial Court was justified in holding that the charges brought against the accused were proved beyond reasonable doubt?"

Analysis

18. In a criminal trial, the prosecution is expected to

prove the charges brought against the accused beyond

reasonable doubt. The 'reasonable doubt' means a doubt that

CRL.A No. 100097 of 2017

may be exercised by a man of ordinary prudence and not a

fanciful doubt or a doubt of cynic person.

Reg: Section 498(A) IPC

19. The charge was that since four years prior to the

death of Geetha, accused became an alcohol addict and started

to ill-treat her physically and mentally suspecting the fidelity of

Geetha and their daughter/PW-4 and he failed to maintain

them. It is the further allegation that because of such conduct

of the accused, Geetha was forced to run an Ice Cream Parlour

and PW-4 had to take up a part time job for their sustenance

and started to reside separately in a rented house. The

accused denying the said allegation set up a defence that

Geetha herself was nagging, was suffering from mental

depression and had a suicidal tendency.

20. PW-3, the complainant/father of the deceased,

PW-4/the daughter of deceased and PW-5/the brother of the

deceased speak to the aforesaid cruelty of the accused. If at

all Geetha herself had the nagging attitude, the dispute could

have arisen since beginning only. It is their specific contention

that the trouble started since about four years prior to death of

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CRL.A No. 100097 of 2017

Geetha when the accused became alcohol addict, started to

suspect the fidelity of not only wife but also daughter and

neglected to look after the family.

21. The accused himself admitted the fact of victim

started living separately along with her children. To prove the

cruelty, the prosecution also relied on the evidence of PW-16

and Ex.P.15, Ex.P.28 to Ex.P.30. According to PWs-3 and 4

when the accused started harassing Geetha, on 04.04.2015,

she filed a complaint as per Ex.P.15 before PW-16, the

Protection Officer under the Protection of Women from

Domestic Violence Act, 2005 (for short the D.V.Act) and

pursuant to that complaint, PW-16 issued notice Ex.P.28 to the

accused summoning him for enquiry. Ex.P.29 is the

Complaints' Enquiry Register extract and Ex.P.30 is the letter

dated 19.11.2015 issued by PW-16 to the Investigation Officer

furnishing them particulars of the enquiry.

22. PW-16 deposed that on the complaint of Geetha,

the accused was summoned and enquiry was held and he

agreed to provide ration to wife and children and Rs.1,000/-

per month and agreed to report to her office for the follow up

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but he did not turn up. She further deposed that on

18.04.2015 and on 27.05.2015, Geetha reported that the

accused has not kept up his promise. She further deposes that

when Geetha was advised to approach the court under the D.V.

Act, she expressed her reluctance to go the Court. In the

cross-examination of PW-16, the accused did not dispute the

filing of the complaint or the enquiry. As against that he

himself suggests that in the complaint, the only allegations

were of negligence to maintain.

23. Ex.P.29, the Complaints' Enquiry Register is a public

document which was maintained in the regular course of official

work of PW-16. In Ex.P.29, Ex.P.29(a) is the entry dated

04.04.2015 which refers to the date of filing of the complaint

by Geetha. Ex.P.29 (b), the entry dated 05.04.2015 in

Ex.P.29 shows that in the conciliation/enquiry on that day, the

accused agreed to give ration and Rs.1,000/- to Geetha and to

come back on 18.04.2015. Ex.P.29 (b) bears the signature of

the accused also.

24. Ex.P.29 (c), the entry dated 18.04.2015 shows that

accused did not turn up on that day but Geetha along with her

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children turned up and complained to PW-16 that the accused

spoke to PW-4 rudely over phone. Even the said audio record

on the phone was played and PW-16 heard that. Ex.P.29 (d)

shows that again on 27.05.2015, she approached PW-16 with a

complaint that the accused is not maintaining her and children

and she approached his higher officers in that regard, despite

their intervention he has not paid anything to her. Ex.P.29 (d)

further states that she was advised to file complaint to the

Court under the D.V. Act. PW-16 deposed in support of the

said document. Nothing worth was elicited in the cross-

examination to impeach his evidence and the said documents.

25. When those proceedings took place, neither Geetha

nor PW-16 had foreseen the unfortunate death of Geetha.

Therefore, the contention of the accused that PW-16 in

consultation with police has concocted those documents

deserves no merit. Followed by such complaints within five

months Geetha met an unnatural death. The accused failed to

substantiate his defence that Geetha was suffering from mental

depression, therefore she committed suicide which will be

discussed in detail in the later part of this order. The aforesaid

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documents and the evidence of PW-16 corroborated the

evidence of PWs-2 to 5 that the accused was addicted to

alcohol and subjected the victim to physical and mental cruelty

suspecting the fidelity of PW-4 and Geetha and had neglected

to maintain them. Considering all the aforesaid facts and

circumstances, the trial Court has rightly convicted and

sentenced the accused for the offence punishable under Section

498(A) IPC.

Reg: Charge under Section 302 IPC

26. The accused did not dispute the date, time and

place of the death of his wife. Admittedly, she met an

unnatural death in his house. Admittedly, by that time, she

and her children were living separately due to the strained

relationship. Why she came to his house was not explained by

him. She was found lying on the ground in a strangulated

position.

27. Whereas, PWs-3 and 4 consistently deposed that

Geetha had gone there to return the ATM card of the accused

as he had threatened of the consequences if she does not

return that. They further depose that during such visit the

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accused quarrelled with her, assaulted her, throttled her then

strangulated her with her vail. They further deposed that

before going to the house of the accused Geetha phoned PW-3

and had informed him, but he could not accompany her as he

was outside on some emergent work. He further deposed that

he had advised Geetha to return the ATM card without getting

into any arguments with the accused and in his anxiety within

few minutes he phoned Geetha which was not replied.

28. PWs-3 and 4 both deposed that concerned PW-3

called PW-4 and enquired to find out whether Geetha has

returned to her house and on finding that she had not returned

both of them went to the house of the accused and found him

locking the house and running away on sighting them. PWs-3

and 4 further deposed that when they saw through the window

they found Geetha lying on the floor in the bed room with

ligature around her neck, then PW-3 went to the police station

and filed the complaint.

29. PWs-3 to 5 further deposed that thereafter PW-4

along with PW-5 brought the spare key from his house, which

the accused had given to the victim. PWs-3 to 5 further

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deposed that then police opened the lock and found Geetha

lying dead due to throttling, strangulation and assault.

30. The accused claims that the death of Geetha was

due to suicidal hanging on account of her mental ill-

health/depression. He also claimed that at that time he was in

Belagavi. Thereby he set up the defence of alibi. Both such

defences were denied by the witnesses.

31. Imputing mental illness to a person is a serious

matter. Therefore, it was for the accused to probabilize the

said defence. The accused and Geetha were married since 20

years prior to her death. Accused himself suggested to PW-3

that he lived cordially with Geetha. If really Geetha had any

mental illness he could have got her treated for the same and

should have some material to establish the same. Prior to the

trial in this case, he had nowhere taken up such contention. If

that was the case naturally in the proceedings before PW-16,

the same could have been revealed. Further admittedly Geetha

was running Ice Cream Parlour independently and was taking

care of two children. There is no dispute that at the time of the

incident, PW-4, the daughter was aged 19 years and the son

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was aged 11 years. If Geetha had any mental illness, she could

not have brought up the said children. That goes to show that

she had normal worldly life. Therefore, the contention that

Geetha was suffering from mental depression deserves no

merit.

32. No doubt, the evidence of PW-14, the doctor who

conducted post mortem on the dead body was not conclusive

with regard to homicidal death. However, the prosecution in

addition to the evidence of PWs-3 and 4 relied on the inquest

mahazar, the post mortem report and the photographs Ex.P.12

to Ex.P.14 and Ex.P.34 to Ex.P.38. The accused did not dispute

those photographs. Ex.P.38 which was taken before removing

the ligature material shows that there was large injury on the

chin of the dead body. The inquest report Ex.P.20 also refers

to the injury found on the chin and says that the said injury

was 2 inch long, ½ inch wide. It also states that there was a

pressing mark in the size of ½ inch. Ex.P.20 also states that

there were blackish injuries on left ring finger and small finger.

Even in the post mortem report, Ex.P.23 the doctor has

recorded injury No.2 as blackish discoloration of left little and

ring fingers. If death was suicidal one, why and how such

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external injuries appeared on the body was not explained by

the accused.

33. Further, the evidence of the witnesses and the

photographs Ex.P.34 to Ex.P.37 show that the house of the

accused was locked from outside. If victim committed suicide

inside the house, how she locks up the house from outside or

who locked the house from outside was not explained by the

accused. The aforesaid facts and circumstances corroborate

the evidence of PWs-3 and 4 and the case of homicidal death

and belie the defence of suicidal death.

34. Once if the death is held homicidal, since that had

taken place in the house of the accused, to seek the inference

of innocence, Section 106 of the Evidence Act requires him to

explain that. The only explanation given by him was that he

was not at his house at the time of the death. His contention

was that he had gone to Belagavi and he came to the scene of

offence only to find that his wife was dead.

35. When he sets up the defence of plea of alibi to get

the benefit of Section 9 of the Evidence Act, he is required to

establish the same as per Section 103 of the Evidence Act. He

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did not lead any evidence to show that on that day between

5.00 p.m. and 6.00 p.m., he was in Belagavi. He only tried to

rely on a stray statement of PW-3 in paragraph 42 of his

deposition that on that day the accused had gone to Belagavi.

Paragraph 42 of the deposition of PW-3 has to be read in an

integrated manner and not by choosing the isolated sentence.

36. In paragraph 42, PW-3 has said that the accused

had his duty at 6.00 p.m. He denied that the accused had not

locked the house. He also denied the suggestion that he was

aware that accused had gone to Belagavi to meet his relatives.

He only says that the accused came home from Belagavi. That

statement does not mean that accused was in Belagavi for the

entire day. Therefore, such stray statement cannot be called

as an unequivocal, clear cut admission of the absence of the

accused at the scene of offence or his presence elsewhere at

that time. Under such circumstances, the accused cannot claim

that by the said statement his burden of proving his plea of

alibi stood discharged. The accused did not place any scant

evidence to establish his plea of alibi by producing any

document or by examining his alleged relatives whom he

visited on that day at Belagavi.

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37. The other circumstance to disbelieve the plea of

alibi or death being suicidal is the conduct of the accused. If at

all death was suicidal and he was very concerned about his

wife, he should have first reported the matter to the police

which he had not done. The accused himself was a Warder in

the Prison Department. Therefore, the knowledge of the need

of setting the law into motion, if a suicidal death occurs in his

house can be imputed to him. It is not even his contention that

when he was produced before the Magistrate he pleaded that

his wife committed suicide and he is wrongfully arrested.

Therefore, his contention that the police arrested him without

giving him opportunity to file the complaint is apparently an

after thought and a far fetched idea in the trial.

38. The other contention is PWs-3 to 5 are the

interested witnesses. Therefore, they have falsely implicated

him. If at all PW-3 had an intention to falsely implicate the

accused he could have filed or got filed the complaint alleging

the offence under Section 498(A) IPC much before that.

Whereas the evidence on record shows that without filing such

complaint he supported his daughter and grand children setting

up a separate house for them. His grand children lost their

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mother. Under such circumstance, if everything was normal,

the only person who could lend them helping hand in their

bringing up would be the accused. They had to depend on him

financially also. The accused was employed. His implication in

the case had the prospects of he losing his employment. Under

such circumstances, PW-3 would not have ventured into false

implication of the accused at the risk of losing the employment

of the bread winners of his grand children. Appreciating all the

aforesaid facts and circumstances, the trial Court has rightly

convicted the accused for the offence punishable under Section

302 IPC which does not call for interference by this Court.

Reg: Charge under Section 201 IPC

39. According to the prosecution, the accused to screen

the evidence of offence, destroyed the ATM card regarding

which the quarrel took place leading to the murder. To invoke

Section 201 IPC, there should be intentional destruction of the

evidence of offence. To sustain that charge absolutely no

evidence was collected by the Investigation Officer. It is

material to note that though the confessional statement of the

accused before the police is hit by Section 25 of the Evidence

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Act, the trial Court marked that as Ex.P.41. Even according to

that statement, the ATM card was lost and not destroyed. In

the judgment of the trial Court absolutely there is no

appreciation of evidence or reasoning to support the conviction

for Section 201 IPC. Therefore, the impugned order of

conviction and sentence for he offence punishable under

Section 201 IPC is liable to be set aside. Hence, the following:

ORDER

The appeal is allowed in part.

The impugned judgment and order of conviction and

sentence for the offences punishable under Sections 498A and

302 IPC are hereby confirmed. The impugned order of

conviction and sentence for the offence punishable under

Section 201 IPC is hereby set aside.

The appellant - accused is acquitted of the charge for the

offence punishable under Section 201 IPC.

The judgment and order with regard to disposal of the

properties and set off is maintained.

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The fine amount deposited, if any, with regard to the

offence under Section 201 IPC shall be refunded to the

appellant.

Trial Court shall issue the modified conviction warrant

accordingly.

Pending interlocutory applications stood disposed off.

(Sd/-) JUDGE

(Sd/-) JUDGE

Jm/-