Nagaraj S/O. Shivayogeppa Gajjar vs The State Of Karnataka
2022 Latest Caselaw 12951 Kant

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                                      CRL.A No. 100051 of 2021

     IN THE HIGH COURT OF KARNATAKA, DHARWAD
                           BENCH

     DATED THIS THE 10TH DAY OF NOVEMBER, 2022

                          PRESENT
     THE HON'BLE MR JUSTICE SURAJ GOVINDARAJ
                                AND
        THE HON'BLE MR JUSTICE G BASAVARAJA
      CRIMINAL APPEAL NO. 100051 OF 2021 (C-)

BETWEEN:

1.     NAGARAJ S/O. SHIVAYOGEPPA GAJJAR
       AGE. 34 YEARS, OCC. AGRICULTURE,
       R/O. KATENAHALLI,
       TQ. BYADAGI, DIST. HAVERI-581106
                                                   ...APPELLANT
(BY SRI. K L PATIL, ADVOCATE)

AND

1.     THE STATE OF KARNATAKA
       THROUGH BYADAGI POLICE STATION
       DIST. HAVERI--581106
       NOW R/BY S.P.P.
       HIGH COURT OF KARNATAKA,
       DHARWAD BENCH.
                                                 ...RESPONDENT
(BY SRI. V.M.BANAKAR, ADDL. SPP)

      THIS CRIMINAL APPEAL IS FILED U/S 374(2) OF CR.P.C.
SEEKING TO CALL FOR THE RECORDS IN S.C.NO.06/2018 ON THE
FILE OF THE II-ADDL. DIST. AND SESSIONS JUDGE, HAVERI
(SITTING AT RANEBENNUR) AND ALLOW THIS APPEAL AND SET
ASIDE THE JUDGMENT AND ORDER OF CONVICTION AND SENTENCE
DATED 06.03.2020 IN S.C.NO.06/2018 ON THE FILE OF THE II-
ADDL.DIST. AND SESSIONS JUDGE, HAVERI (SITTING AT
RANEBENNUR), AND THEREBY ACQUIT THE APPELLANT/ACCUSED
FOR THE OFFENCES P/U/S 498-A, 302, 201 OF IPC, 1860.
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                                   CRL.A No. 100051 of 2021

     THIS CRIMINAL APPEAL HAVING BEEN HEARD AND RESERVED
FOR JUDGMENT, COMING ON FOR 'PRONOUNCEMENT OF
JUDGMENT', THIS DAY, SURAJ GOVINDARAJ J., DELIVERED THE
FOLLOWING:

                       JUDGMENT

1. The above appeal has been filed by the accused

aggrieved by the judgement of conviction dated

06.03.2020 passed by the II Additional District and

Sessions Judge, Haveri sitting at Ranebennur (for

short, 'trial Court') in S.C.No.06/2018.

2. The trial Court by the aforesaid judgement convicted

the accused for offence punishable under Sections

498(A), 302 and 201 of IPC and sentenced the

accused to

2.1. undergo rigorous imprisonment for two years

and to pay fine of Rs.3,000/- for the offence

punishable under Section 498(A) of IPC, in

default of payment of fine, to undergo simple

imprisonment for six months;

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2.2. sentenced the accused to under go life

imprisonment and to pay fine of Rs.5,000/- for

the offence punishable under Section 302 of

IPC and in default to payment of fine to

undergo rigorous imprisonment for five years;

2.3. the accused was sentenced to undergo rigorous

imprisonment for one year and pay a fine of

Rs.1,000/- for the offence punishable under

Section 201 of IPC and in default of payment of

the fine, to undergo simple imprisonment for

two months. All the sentences were directed to

run concurrently and the accused being entitled

to set off in terms of Section 428 of Cr.P.C.

3. A complaint came to be filed on 27.09.2017 by PW.1-

father of the deceased alleging that the deceased, his

daughter had been married to the accused. He had

been informed of the accused having told

Mallikarjuna Karagi (PW.7) that the accused had

murdered his daughter, put the body in the

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bathroom and locked the house around two weeks

ago. When PW.1 came to the village, the body was

found in the house as described and it is in that

background that the complainant sought for action to

be initiated against the accused.

4. The investigation having been completed, a charge

sheet was laid against the accused. Charges when

framed, the accused denied the charge and claimed

to be tried.

5. To prove its case, the prosecution examined 16

witnesses and marked as many as 33 documents. No

material objects were marked by the prosecution.

6. After the completion of the evidence by the

prosecution, the incriminating evidence was put

across to the accused and the statement of the

accused in terms of Section 313 of Cr.P.C. was

recorded. The accused denied the incriminating

evidence but did not choose to lead evidence.

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7. After hearing the counsels, the trial Court passed the

aforesaid judgement of conviction and sentence,

which is under challenge.

8. Sri.K.L.Patil, learned counsel appearing for the

appellant would submit that:

8.1. The prosecution has been unable to prove

whether there is in fact a homicide which has

been committed. Without a homicide being

established, the question of prosecution being

initiated for an offence under Section 302 of

IPC would not arise.

8.2. The evidence on record does not establish

whether the death of the deceased was on

account of homicide, suicide or an accident.

8.3. Sri.K.L.Patil relies upon the decision reported in

2022 LiveLaw (SC) 529 in the case of

CHANDRAPAL VS. STATE OF

CHHATTISGARH (EARLIER M.P.). Relevant

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para being para 8 is reproduced hereunder for

easy reference:

"8. It is also needless to reiterate that for the purpose of proving the charge for the offence under Section 302, the prosecution must establish "homicidal death" as a primary fact. In order to convict an accused under Section 302, the court is required to first see as to whether the prosecution has proved the factum of homicidal death. So far as the facts of present case are concerned, the evidence of PW-13 Dr. R.K. Singh, who had carried out the post-mortem of the deceased Brinda and Kanhaiya, would be most relevant in this regard. He had stated in his deposition before the court, inter alia, that on 12.12.1994, he had carried out the post-mortem of Kumari Brinda, daughter of Bhagirathi, and of Kanhaiya alias Chandrashekhar Gaur. The dead bodies of both the deceased were in decomposed state. He had further stated that the knot mark present on the neck of the deceased Brinda was ante-mortem, and that the cause of death appeared to be Asphyxia due to hanging. The death had taken place within 8 to 10 days and the nature of death was Suicidal. The said Doctor had stated similar facts for Kanhaiya that the dead body of Kanhaiya was found bent towards left side from his neck and a ligature mark having size 10" x 5" was present on the neck. The cause of death appeared to be Asphyxia due to hanging and the death appeared to have taken place within 8 to 10 days. He had further stated that there was neither fracture found on the dead bodies of the deceased, nor any blood clots were found, nor any injuries were found, and therefore he had opined that the cause of death was hanging which normally is found in case of

CRL.A No. 100051 of 2021

suicide. He specifically stated that as the dead bodies were decomposed, he could not express any opinion whether it was a homicidal death. In the cross- examination by the learned counsel for the accused, he had categorically admitted that he did not find any symptom of homicidal death, nor he had opined in his report given on 12.12.1994 that the deaths of the deceased were homicidal. Of course, he had stated that on the basis of the report submitted on 30.04.1995, an inference could be drawn that the deaths could be homicidal deaths."

8.4. The entire case of the prosecution is based on

circumstantial evidence which is not

corroborated by the concerned material

witnesses. There is no motive which has been

established by the prosecution, the accused and

the deceased were not last seen together prior

to the death of the deceased.

8.5. The basis of the prosecution is the Section 164

statement of Mallikarjuna Karagi (PW.7), which

has been marked at Ex.P.25. The same is

contended to be an extra-judicial confession of

the accused.

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8.6. There is contradiction in the said Section 164

statement and the evidence tendered by

Mallikarjuna Karagi. Inasmuch as in the Section

164 statement he has stated that in the

morning around 7.00 to 8.00 a.m. on

27.09.2017 the accused had told him that on

6th he had strangulated the deceased and

caused her death and hidden the dead body in

the bathroom of the house. On receiving such

information Mallikarjuna Karagi had enquired

from the accused if he was speaking the truth

or falsehood. Then the accused told him that he

was speaking the truth.

8.7. Whereas in his evidence he has stated that the

accused had told his father that he had

murdered his wife which was informed by the

accused's father to Mallikarjuna Karagi. It is

thereafter that he had asked the accused's

father to let him meet the accused, it is then

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that the accused confessed that he had caused

the murder of the deceased and it is then that

he had called the police and informed about the

matter.

8.8. This Sri.K.L.Patil submits is glaring

contradiction. The very basis of the case of the

prosecution being information conveyed by

PW.7 and the entire story having unfolded

being shrouded in contradiction, the case of the

prosecution cannot be believed.

8.9. The father of the deceased, PW.1 has stated

that the deceased used to call him every week,

but however had not called in the recent past.

8.10. It is in that background that PW.1 had visited

the house and found the house locked and on

enquiry being made with the father and mother

of the accused as to the whereabouts of the

deceased and the accused, he went back to his

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house. This he submits that this is not the

expected normal conduct of the father of the

deceased, which therefore cannot be believed

and as such he submits that the story of the

father cannot be believed.

8.11. There is a contradiction in the evidence of

various witnesses as regards the opening of the

door or breaking of the door of the house of the

accused and the deceased, inasmuch as PW. 6

stating that the door was already opened, PW.

1, 5, 7, 10 and 15 Stating that the police

broke open the door, Spot panchanama

indicating that the door was opened by the

accused, PW. 6 stating that he does not know

how the door was opened. This he submits goes

to the root of the matter, inasmuch as how the

door was opened and who was having the key

to the lock of the house has not been

established.

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8.12. There is also a contradiction in terms of the

presence of the accused or not on the date on

which the door was opened. The accused if

present was not arrested on 27.09.2017, but

was arrested on the next day on 28.09.2017

despite there being an alleged extra-judicial

confession made by the accused in the morning

of 27.09.2017. There is no explanation as

regards the delayed arrest and as such the

whole complaint and the action taken by the

investigating officer is only to fix the accused

without any cogent evidence being on record.

8.13. It is on that basis that he submits that the

prosecution has not been able to establish the

guilt of the accused beyond reasonable doubt

and as such the conviction order passed against

the accused is required to be set aside and the

accused be acquitted of the offences alleged

against him.

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9. Per contra, Sri.V.M.Banakar, learned Additional SPP

would submit that:

9.1. The trial Court has taken into consideration all

the aspects of the matter and having

considered the relevant evidence on record has

rightly convicted the accused.

9.2. The body of the deceased was found in the

matrimonial house of the accused and the

deceased in a highly decomposed state.

9.3. There is no explanation which has been offered

by the accused as regards where he was for the

last several days before the body was found.

9.4. The body being in highly decomposed state the

accused ought to have explained where he was

for the last fifteen days since the case of the

prosecution is that the accused had caused the

death of the deceased on 06.09.2017.

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9.5. The fact that the body was found in the house

in decomposed state would indicate that the

same is homicide, more so, when the door was

locked from the outside.

9.6. In that background, he submits that this Court

ought not to intercede in the mater and ought

to confirm the judgement of conviction and

sentence passed by the trial Court.

10. It is in the background of the aforesaid submissions

that we have been called upon to re-appreciate the

evidence on record so as to come to a conclusion

whether the order of conviction passed by the trial

Court is proper or not.

11. PW.1 is the father of the deceased and accused is

husband of the deceased. The accused and deceased

had been married about 10 years ago and they had

two children. The daughter was mentally challenged,

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the son was being taken care of by the father of the

deceased, which facts are not in dispute.

12. The prosecution through its witnesses, namely, PWs.

1, 4, 6, and 9 has led the evidence to contend that

the accused used to ill-treat the deceased physically

and mentally and that the accused used to regularly

consume alcohol and torture the deceased.

13. The prosecution has led the evidence of PWs. 1, 4, 8

and 9 to establish that the deceased being unable to

tolerate the torture met out by the accused had gone

to her maternal house and was staying there.

14. The prosecution has led the evidence of PWs. 1, 4, 5,

6, 7, 8, 9 and 10 to establish that the elders and

well-wishers of the family have interceded in the

matter and convinced the accused to take care of the

deceased properly and it is only thereafter that the

deceased went back to her matrimonial home just

about a month before the death of the deceased.

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15. The prosecution has led the evidence of PW.7 to

contend that there was an extra-judicial confession

made by the accused to PW.7 which was informed by

PW.7 to the father of the deceased as also to the

police. As contended by Sri.K.L.Patil, learned counsel

appearing for the appellant there is a contradiction in

the statements made by PW.7.

16. Earlier at the time when the incident occurred, his

Section 164 statement was supposed to have been

recorded. Then PW.7 has stated that the accused had

approached PW.7 and told him that the accused had

throttled the deceased and caused her death and had

hidden the dead body in the bathroom of the house

and locked the house. He has further stated that this

fact was informed by him to the police. However, in

the evidence led, he has stated that the accused had

told his father that he had murdered his wife which

was informed by the father of the accused to PW.7

and PW.7 had requested the father of the accused to

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permit him to meet the accused and it is in

furtherance of this that he met the accused, when

the accused had confessed about him having caused

the murder of the deceased.

17. It is clearly apparent that there is a contradiction in

terms of the statements made by PW.7. In the

Section 164 statement, he has stated that the

accused had informed PW.7 of having caused the

murder, but in the evidence he has stated that the

accused had informed his father who in turn had

informed PW.7. It is on this basis that it is contended

that there is extra-judicial confession made by the

accused. We are of the considered opinion that

extra-judicial confession is required to be established

beyond reasonable doubt and unless corroborated by

the cogent evidence an extra-judicial confession

would be a very weak piece of evidence.

18. The Hon'ble Apex Court in the judgement reported in

(2012) 6 SCC 403 in the case of SAHADEVAN

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AND ANOTHER JVS. STATE OF TAMIL NADU, has

held that extra-judicial confession is a weak piece of

evidence. The relevant para being 14 is reproduced

hereunder for easy reference:

"14. It is a settled principle of criminal jurisprudence that extra-judicial confession is a weak piece of evidence. Wherever the Court, upon due appreciation of the entire prosecution evidence, intends to base a conviction on an extra- judicial confession, it must ensure that the same inspires confidence and is corroborated by other prosecution evidence. If, however, the extra- judicial confession suffers from material discrepancies or inherent improbabilities and does not appear to be cogent as per the prosecution version, it may be difficult for the court to base a conviction on such a confession. In such circumstances, the court would be fully justified in ruling such evidence out of consideration."

19. The Hon'ble Apex Court has categorically stated that

if extra-judicial confession suffers from material

discrepancies or inherent improbabilities, the same

would have to be disregarded and no confession can

be based on such an extra-judicial confession.

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20. In view of the inherent contradiction in the statement

made by PW.7, the manner of the extra-judicial

confession being made itself being in doubt, we are

of the considered opinion that the aspect of extra-

judicial confession as propounded and sought to be

applied by the prosecution has not been proved and

as such the same cannot be taken into consideration.

21. There being no eyewitness to the crime, the

prosecution has led the evidence of PWs. 1, 4, 5, 6,

7, 8 and 10 to contend that the deceased was

residing in the house of the accused and that the

body of the deceased having been found in the said

house and the accused being missing would give

raise to a presumption that the accused had caused

her death. It is thus clear that the prosecution seeks

to prove the case against the accused on the basis of

circumstantial evidence.

22. The Hon'ble Apex Court in the decision reported in

(1984) 4 SCC 116 in the case of SHARAD

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BIRDHICHAND SARDA VS. STATE OF

MAHARASHTRA has laid down the requirements of

proving a case against the accused on the basis of

circumstantial evidence. The relevant para being 152

is reproduced hereunder for easy reference:

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

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

It may be noted here that this Court indicated that the circumstances concerned 'must or should' and not 'may be' established. There is not only a grammatical but a legal distinction between 'may be proved' and 'must be or should be proved' as was held by this Court in Shivaji Sahabrao Bobade & Anr. v. State of Maharashtra(') where the following observations were made: "Certainly, it is a primary principle that the accused must be and not merely may be guilty before a court can convict and the mental distance between 'may be' and 'must be' is long and divides vague conjectures from sure conclusions."

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

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

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

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

23. It is therefore required of the prosecution to

establish that the accused and the deceased were

residing in that house on the date of the alleged

death of the deceased, the accused and the deceased

were together and or last seen together. The

prosecution has to establish that the deceased being

last found in the company of the accused, it is only

the accused who could have caused the death of the

deceased and nobody else could have done so.

24. In the present case, the prosecution firstly has not

been able to establish the date of death of the

deceased so as to in turn establish whether the

accused and deceased were last seen together or

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were last in the company of each other. Except for

the vague assertions made by the witnesses, there is

nothing on record which establishes that the

deceased and the accused were residing in that

house where the deceased was found. It is also not

established as to whether the accused was

absconding as also where the accused was from

06.09.2017 to 27.09.2017. The investigation on this

aspect has been very lackadaisical and there is no

evidence on record on these aspects.

25. Thus, the requirements as laid down by the Hon'ble

Apex Court in para No.152 of SHARAD'S case has

not been established by the prosecution in order to

invoke the provision of Section 302 of IPC. The

prosecution has also been unable to establish that

there was indeed a homicide which was committed,

inasmuch as the death of the deceased ought to

have occurred for unnatural reasons.

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26. In this regard, the prosecution has examined PW.13

being the medical officer at Byadagi Government

Hospital who had conducted the postmortem. In her

evidence she has stated that the body was fully

decomposed, soft issues were absent on the face,

upper part of the chest and abdomen and neck and

at many places the same was eaten by maggots. On

account of high decomposition, she has stated that

the cause of death could not be given but the

approximate time of death was about 2-4 weeks

prior to the date of examination.

27. Thus, the expert witness being the doctor who had

conducted postmortem was unable to state as

regards the cause of death, the body having been

found in the bathroom, we are not in a position to

overrule the possibility of an accidental death having

occurred on account of slippage in the bathroom or

otherwise.

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28. The prosecution has led the evidence of PWs. 1, 4, 7,

8 and 9 to establish that the accused was ill-treating

the deceased by alleging that the deceased had an

illicit relationship with other men and that she was

not taking care of the accused. In this regard, there

is no evidence which has been led to establish the

names of the other persons and or the allegation

made by the accused being false. The evidence of PW

1 indicates that being unable to tolerate the alleged

harassment the deceased had gone back to her

maternal home and that she was in a depressed

state of mind. Thus, in that background unless the

cause of death is established by cogent evidence, we

are also unable to rule out the possibility of suicide

having been committed.

29. This brings us to the aspect of house being locked

from outside. PW.1 has stated that immediately on

receiving information he went to the house where the

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body was found when the police opened the lock of

the house.

30. PWs. 1, 5, 7, 10 and 15 have deposed that the

police broke open the door, in the spot mahazar it is

stated that the lock was opened by the accused.

Thus, though there is some evidence to establish

that the door was locked the evidence is still not

clear as to whether in fact the door was locked or not

since PW. 6 having stated that the door was open.

31. The evidence of PW.1 in the background of the

deceased having come to the matrimonial home

which is about a month ago after staying in her

paternal home for a period of seven months that

when he came to the house of the deceased on

account of the deceased not making a phone call to

PW.1 he not having found her he only made

enquiries with the father and mother of the accused.

The mother being his sister and when they had

informed that they did not know the whereabouts of

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the deceased, he went back to his village is also not

believable. If PW.1 truly believed that accused was

harassing and ill-treating the deceased, on not

receiving a call from the deceased and on finding the

house locked, any father would have caused many

more enquiries in order to ascertain the whereabouts

of his daughter. As per the evidence of PW.1 from

13.09.2017 no enquiries or action was taken by the

father of the deceased till 27.09.2017 when he was

informed of the death of his daughter, which we find

to be unbelievable inasmuch as no father would have

kept quite for the said period of time without making

the enquiries. It is also rather surprising that the

father not receiving a call from the deceased, the

father has not made any attempt to call the

deceased or contact the accused to enquire about the

whereabouts of his daughter (deceased).

32. The panch witnesses namely PW.2 who is a village

accountant has supported the case of the prosecution

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and confirmed that the body of the dead women was

found. The police conducted a mahazar, a sketch was

prepared and photos were captured. PW.2 has

further stated that the accused had taken him, CW.3

and the police to the Katenahalli village and showed

him the place where he has concealed the dead

body. This is contradictory to the other evidence on

record, inasmuch as the case of the prosecution is

that the accused had informed PW.7 of having

caused the death of the deceased and having

secreted the body in the bathroom. There was no

cause therefore for the accused to have identified the

place where the body was, since the evidence on

record indicated that there was a foul smell

emanating from the house more particularly from the

bathroom.

33. In the above background, extra-judicial confession

not having been established, the cause of death not

having been established, the date of death not

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having been established, the question of last seen

theory cannot be established. It is only on the basis

of the drawing a presumption and not on the basis of

the evidence on record that the trial Court has

convicted the accused for the offence under Section

302 of IPC. We are of the considered opinion that

such a conviction for an offence under Section 302 of

IPC is not permissible unless the prosecution were to

establish the motive, intention, animus and the act of

causing the death of the deceased.

34. Insofar as the conviction under Section 498(A) of IPC

is concerned, PW.1, PWs. 4, 5, 6 and 9 have deposed

that accused was ill-treating the deceased. They

have withstood the test of the cross-examination and

have categorically stated that the accused was

harassing the deceased both physically and mentally.

The accused has made allegation against the

deceased that she had illicit relationship with other

men. This in our considered view is sufficient to

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satisfy the requirement of Section 498(A) of IPC and

as such we are in agreement with the conviction of

the accused by the trial Court for such an offence.

35. Insofar as conviction for offence under Section 201 of

IPC, for the very same reason as detailed

hereinabove as regards the offence under Section

302 of IPC, we are of the considered opinion that this

offence has not been established by the prosecution

beyond reasonable doubt and as such, the same

would have to be set aside.

36. In the above background, we pass the following:

ORDER

i. The appeal is partially allowed.

ii. The judgement of conviction of the accused for an offence under Sections 302 and 201 of IPC is set aside. The judgement of conviction of the accused for an offence under Section 498(A) of IPC is confirmed.

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iii. The accused having been arrested on 28.09.2017 and continuing to be in custody till date, the maximum punishment for an offence under Section 498(A) of IPC being for a period of three years, the accused having served the said time, we direct the police to immediately release the accused, if his custody is not required in any other case.

iv. In view of the acquittal of the accused for the offence under Sections 302 and 201 of IPC, fine amount, if any, remitted by the accused is directed to be returned to the accused. If the amount has not been remitted, then there would be no requirement of refund of the said amount.

Sd/-

JUDGE

Sd/-

JUDGE

SH