Karnataka High Court
Sri.Mahantesh S/O Shankrappa ... vs State Of Karnataka on 23 November, 2022
Bench: Suraj Govindaraj, G Basavaraja
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CRL.A No. 100014 of 2019
IN THE HIGH COURT OF KARNATAKA, DHARWAD
BENCH
DATED THIS THE 23RD DAY OF NOVEMBER, 2022
PRESENT
THE HON'BLE MR JUSTICE SURAJ GOVINDARAJ
AND
THE HON'BLE MR JUSTICE G BASAVARAJA
CRIMINAL APPEAL NO. 100014 OF 2019 (C-)
BETWEEN:
SRI.MAHANTESH S/O SHANKRAPPA HADAPAD
AGE: 26 YEARS, OCC: HAIR SALOONER,
R/O: JAMMANAKATTI VILLAGE,
TQ: BADAMI, DIST: BAGALKOTE.
...APPELLANT
(BY SRI. SRINAND A. PACHHAPURE AND RAJENDRA R.
PATIL, ADVOCATES)
AND:
STATE OF KARNATAKA
REP. BY KERUR POLICE STATION,
NOW REPRESENTED BY
STATE PUBLIC PROSECUTOR,
VISHAL HIGH COURT OF KARNATAKA,
NINGAPPA
PATTIHAL DHARWAD, BENCH AT DHARWAD.
Digitally signed by
VISHAL NINGAPPA
PATTIHAL ...RESPONDENT
Date: 2022.11.23
16:15:05 +0530
(BY SRI.V. M. BANAKAR, ADDL SPP.)
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CRL.A No. 100014 of 2019
THIS CRIMINAL APPEAL IS FILED U/S 374(2) OF
CR.P.C. SEEKING TO CALL FOR THE RECORDS IN
S.C.NO.104/2017 AND SET ASIDE THE JUDGMENT OF
CONVICTION DATED 13.12.2018 AND ORDER OF
SENTENCE DATED 14.12.2018 PASSED BY THE PRL. DIST.
& SESSIONS JUDGE, BAGALKOT IN S.C.NO.104/2017 AND
ACQUIT THE APPELLANT FROM THE OFFENCES P/U/S 302
OF IPC.
THIS APPEAL HAVING BEEN HEARD AND RESERVED
FOR JUDGMENT ON 08.11.2022, COMING ON FOR
PRONOUNCEMENT OF JUDGMENT THIS DAY, SURAJ
GOVINDARAJ J. PRONOUNCED THE FOLLOWING:
JUDGMENT
1. The appellant who is the accused in S.C.No.104/2017
is before this Court challenging the judgment of
conviction dated 13.12.2018, passed by the Principal
District and Sessions Judge, Bagalkote (hereinafter
referred to as 'the trial Court', for brevity) in
S.C.No.104/2017.
2. By way of the judgment dated 13.12.2018 passed in
S.C.No.104/2017, the trial Court had convicted the
accused for the offence punishable under Section 302
of the IPC and by way of an order of sentence dated
CRL.A No. 100014 of 2019
14.12.2018, sentenced the accused to undergo
imprisonment for life and to pay a fine of Rs.15,000/-
and in default of payment of fine, to undergo Simple
Imprisonment for three months. It is aggrieved by
the same that the appellant is before this Court.
3. The case of the prosecution is that PW1 -
complainant had lodged a complaint on 10.07.2017
alleging that the accused suspecting the fidelity of his
mother Rudravva Hadapad, had on 09.07.2017, left
Bagalkot to Jammanakatti village on his motorcycle
and has assaulted his mother Rudravva using a
crowbar on her head, due to which she died on the
spot.
4. It is on the basis of the complaint lodged that the
investigation was carried out and charge sheet was
laid against the accused for the offence punishable
under Section 302 of the IPC. Charges being
framed, the accused pleaded not guilty and claimed
to be tried.
CRL.A No. 100014 of 2019
5. The prosecution to prove its case in all led the
evidence of 19 witnesses, marked more than 31
documents as also 10 material objects. The
incriminating evidence was put across to the
accused, which is denied by the accused in his
Section 313 statement. After hearing the counsel,
the trial Court convicted the accused and sentenced
him as aforesaid.
6. Sri. Srinand A. Pachhapure, learned counsel for the
appellant would submit that:
6.1. The prosecution has not been able to prove
beyond reasonable doubt of the appellant
having committed the murder of his mother.
6.2. The trial Court has committed a grave and
serious error in overlooking the material
evidence on record, which disprove the case of
the prosecution.
CRL.A No. 100014 of 2019
6.3. The evidence of the prosecution witnesses is
uncorroborated and would not lead to a
conclusion that it was sufficient to hold the
appellant guilty of the offence committed. The
material witnesses including the eyewitnesses
being the family and neighbors, have turned
hostile and have not supported the case of the
prosecution.
6.4. The eyewitnesses having not supported the
case of the prosecution, the panchas not having
supported the case of the prosecution and
having turned hostile, nothing much having
been elicited during the course of their cross-
examination by the prosecutor. At best the case
of the prosecution was one of circumstantial
evidence. The trial Court has not applied the
principles relating to circumstantial evidence
resulting in wrongful conviction of the accused.
CRL.A No. 100014 of 2019
6.5. The only basis on which the conviction has been
effected is that, the accused has not given any
explanation under Section 313 statement as
regards where he was residing, namely, with
the deceased in Jammanakatti or at Bagalkote.
6.6. Therefore, considering that the prosecution has
categorically established that the accused was
residing with his mother in Jammanakatti,
merely on the presumption that he was doing
so because no explanation has offered, ought
not to have convicted the accused.
6.7. The accused having stated that he was residing
in Bagalkote and not at Jammanakatti and his
name being found in the ration card which has
been produced along with the memo at the
time of recordal of Section 313 statement, the
same ought to have been considered to be an
explanation enough under Section 106 of the
Indian Evidence Act.
CRL.A No. 100014 of 2019
6.8. That it is not required for the accused to prove
where he was residing, but it was for the
prosecution to prove that he was at the place
where the offence is said to have occurred.
6.9. The house at which the alleged offence is said
to have occurred belonged to deceased
Rudravva. No witness has spoken of the
accused residing along with Rudravva on the
date on which the offence is said to have been
committed.
6.10. The trial Court has also relied upon the fact of
the accused after committing the offence went
to the police and surrendered before PW18,
where he is alleged to have confessed about
the commission of the offence. The confession
made before the police is not admissible in
terms of Section 25 of the Indian Evidence Act
and therefore, the trial Court has gravely erred
CRL.A No. 100014 of 2019
by admitting the said evidence as per Section
29 of the Indian Evidence Act.
6.11. In terms of Section 25 of the Indian Evidence
Act, the confession made to a Police Officer
shall not be proved against the present accused
of an offence and in terms of Section 26 of the
Indian Evidence Act, no confession made
otherwise than before the Magistrate is
admissible in evidence. Therefore, even this
reliance placed by the trial Court is bad in law.
6.12. There is no witness let alone eyewitness who
has deposed that the accused had gone to the
house at Jammanakatti or were seen to be
going towards the house at Jammanakatti.
6.13. There is no cogent evidence which is placed on
record by the prosecution to establish any of
the circumstances which lead to an inference
CRL.A No. 100014 of 2019
that the accused is guilty of commission of the
offence.
6.14. The Forensic Science Laboratory has not
conducted proper examination inasmuch as
report of the Forensic Science Laboratory is
inclusive inasmuch as the said report only
specifies human blood being present with the
blood grouping and RH factor. There is no
attempt made by the FSL to verify if the blood
found on the t-shirt and pant of the accused
was that of the deceased. Merely because
there was blood present on the t-shirt and pant
of the accused, the accused cannot be said to
have committed the murder of the deceased.
6.15. One other fact taken into account by the trial
Court is that, the accused traveled from
Bagalkot to Jammanakatti on his motorcycle.
The motorcycle was not found or seized.
Therefore there is nothing on record to
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CRL.A No. 100014 of 2019
establish that the accused had in fact traveled
from Bagalkote to Jammanakatti.
6.16. That the above would cast a doubt on the case
of the prosecution that the prosecution has not
established its case beyond reasonable doubt
and there is nothing on record which would
implicate the accused requiring him to be
punished for the offence under Section 302 of
the IPC.
7. Per contra, Sri. V.M Banakar, learned Addl. SPP
would submit that:
7.1. The accused having confessed before the Police
Officer, the accused having shown where the
crowbar/Iron rod was left, such iron rod bearing
the blood of the deceased and the blood being
found on the t-shirt and pant of the accused,
there being no explanation offered by the
accused as to how the blood came about on his
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CRL.A No. 100014 of 2019
t-shirt and pant, the trial Court has rightly
considered these aspects.
7.2. That the accused was traveling from Bagalkote
to Jammanakatti and there were constant
issues between accused and his mother. The
accused was alleging that his mother was
having illicit relationship and it is in that
background that the accused committed the
murder of the deceased, which provides a
motive for the said murder.
7.3. A serious offence of murder having been
committed, the trial Court having taken all
these factors into consideration, has convicted
the accused.
7.4. The witnesses being interested witnesses
inasmuch as they being the brother, wife,
neighbors and friends of the accused, have
turned hostile. This would not take away the
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CRL.A No. 100014 of 2019
fact of the murder having been caused by the
accused requiring the accused to be punished
for such an offence.
7.5. The trial court having rightly convicted the
accused, this Court ought not to intercede in
the matter.
8. It is in the background of the above submission, that
we are called upon to re-appreciate the evidence on
record to ascertain if the judgment of conviction and
order of sentence passed by the trial Court is proper
or not.
9. PW1 is the brother of the accused, who had filed the
complaint as per Ex.P1. In his complaint, he has
indicated that PW7, the wife of accused had informed
him of the accused having committed the murder of
the deceased, to which she was the eyewitness. The
statement which has been recorded at the relevant
point of time of PW1, PW7 and other witnesses
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CRL.A No. 100014 of 2019
namely, PW8, PW9 and PW10, indicated that they
were the eyewitnesses and the murder was
committed in their presence by the accused.
However, during the time of examination-in-chief,
they have turned hostile and nothing much has been
elicited from them during the course of cross-
examination.
10. The pancha, namely, PW2, who is the witness to the
inquest, PW3 also being an witness to the inquest,
PW4 being a witness to the seizure of the weapon
namely the iron bar, PW5 and PW6 being panch
witnesses as regards the seizure of blood stained
clothes of the accused and that of the deceased,
have turned hostile and have not supported the case
of the prosecution and nothing much has been
elicited from them during the course of cross-
examination.
11. For the purpose of implicating the accused in the
crime, it is required for the prosecution:
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CRL.A No. 100014 of 2019
11.1. Firstly to establish that the accused was
residing in Jammanakatti with his wife and/or
was available in Jammanakatti on the date of
incident.
11.2. Secondly, the prosecution would have to
establish the motive for the offence.
11.3. Thirdly, the prosecution would have to in fact
establish that the accused has committed the
offence or is the only person who could have
committed the offence.
12. Insofar as the location where the accused was
residing, the evidence on the same is clear and
categorical. PW1 has stated that the accused and his
wife were residing with his mother at Jammanakatti
in the complaint filed at Ex.P1. PW7, the wife of the
accused has stated that she and her husband were
staying with the deceased at Jammanakatti in her
statement. However, she has turned hostile.
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CRL.A No. 100014 of 2019
13. PW8, PW9 and PW10 have stated that the accused
and PW1 were running a saloon in Vidyanagar,
Bagalkot. The accused, his wife and deceased were
residing in Jammanakatti village. PW1 and his wife
were residing in Bagalkote. The accused used to
travel everyday to the shop at Bagalkote and get
back to Jammanakatti.
14. PW1 being the brother, who had initially given
complaint on the basis of the statement given by
PW7, wife of the accused, having stated that the
accused was residing in Jammanakatti, PW9 also
having stated that the accused was residing in
Jammanakatti . All the above witnesses having
stated that the accused used to travel from
Jammanakatti to Bagalkote on his two wheeler and
get back, the ration card which had been produced at
the time of recordal of 313 statement being showing
only the name of wife of PW1 and not showing the
name of the wife of the accused would indicate that,
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CRL.A No. 100014 of 2019
after the marriage of the accused, they have not
been residing in Bagalkote, since if they were
residing at Bagalkote, the name of PW7 - wife of the
accused would have been included in the ration card
like that done in respect of wife of PW1.
15. Insofar as the evidence being on record, panchas
having turned hostile, we are of the considered
opinion that the same would not ditter from the fact
that the body was found with the injuries as stated
by the doctor conducting the post-mortem report,
which cannot be disputed by anyone concerned.
16. Since the offence was that under Section 302 of the
IPC, the investigation was handed over to the circle
Police Inspector, namely PW19.
17. In the above background, the statements made by
PWs. 1 to 10 being in sync with each other, we are of
the considered opinion that, merely because PWs.1
to 10 have turned hostile, the same cannot be
disregarded.
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CRL.A No. 100014 of 2019
18. The evidence on record establishes that there was a
motive on the part of the accused to cause the death
of the deceased inasmuch as the accused being the
son had suspected the fidelity of his mother and
alleged that his mother was involved in illicit
relationship with others.
19. The evidence on record of PW1, PW8, PW10 and
PW11 would indicate that they had tried to put
reason into the accused and warned him not to
suspect the fidelity of his mother at her age, despite
which the accused did not heed to their suggestion
and advice. The evidence on record would indicate
that the deceased was about 45 years at the time of
incident. Thus, the said age cannot be said to be
such that the deceased could not be involved in any
illicit relationship.
20. It is the accused who has led the investigating
agency to recovery of the crowbar. The panchas
though have turned hostile, the fact is that the
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CRL.A No. 100014 of 2019
crowbar has been secured and it is the said crowbar
which is stated to be used in the offence committed.
21. Thus, we are of the considered opinion that, in terms
of Section 27 of the Indian Evidence Act, the said
evidence is admissible. Hence the seizure of MO.6
has been established by the prosecution.
22. It is established that blood was found on the t-shirt
and pant of the accused in terms of MOs.9 and 10.
The contention of Sri.Srinand Pachhpure, learned
counsel for the appellant is that, the FSL has not
certified as to whose blood was found on the said
M.Os.9 and 10 except the fact of blood being found
with a particular grouping.
23. This aspect has troubled the Court on several
occasions inasmuch as FSL is required to ascertain
the identity of the blood on the basis of DNA
analysis, the FSL normally does not do so.
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CRL.A No. 100014 of 2019
24. In the present case, the motive having been
established, the presence of the accused at the scene
of the crime also having been established and
homicide having also been established, we are of the
considered opinion that the iron rod being traced
near the scene of occurrence and the blood being
found on the t-shirt and the pant worn by the
accused, the accused not having explained in his
Section 313 statement as to whose blood was found
on the t-shirt and pant, we are of the considered
opinion that the blood found is that of the deceased
mother, more so when the blood group matches and
is of A Group.
25. Thus, in this particular case, we are of the considered
opinion that non-correlation by the FSL of the blood
found on the t-shirt and pant with that of the
deceased as also that of the iron rod on the basis of
the DNA would not deter from the fact that the blood
was found on the t-shirt and pant of the accused,
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CRL.A No. 100014 of 2019
which was human blood having 'A' grouping, which is
same as that of the deceased.
26. Sri. Srinand Pachhapure, learned counsel for the
appellant sought to contend that the panchanama
has not been established since panchas having
turned hostile, the panchas namely, PWs. 4, 5 and 6
have not supported the case of the prosecution, but
have confirmed that their signatures are found on
the respective panchanamas. In that background,
we are of the considered opinion that it cannot be
said that the panchanamas have not been proven.
27. Be that as it may, panchas have recorded the inquest
panchanama, seizure of clothes and seizure of the
iron rod. The inquest cannot be disputed, the body
having been found which indicates the homicide
having been committed. There is no dispute as such
as regards the clothes which have been seized
inasmuch as the accused has not disputed the
seizure. The iron rod having been found at the spot
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CRL.A No. 100014 of 2019
and having the blood of the deceased, cannot also be
disputed.
28. It is a matter of concern that many of the witnesses
turned hostile by the time the matter comes for trial.
In the present case, the incident having occurred on
09.07.2017 by the time the evidence was
commenced on 06.06.2018, the witnesses have
turned hostile. Probably, in many of these cases, the
attitude of the witnesses is that, the dead remain
dead, but the living have to be saved. As such, the
witnesses have sought to save the life of the accused
even though the accused might have committed the
murder of the deceased. The duty of the state and
the Court is however different in as much as the
guilty are to be brought to book and punished for the
offences committed, the official witnesses having
supported the case of the prosecution, the same
cannot be disregarded.
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CRL.A No. 100014 of 2019
29. In the above background, when the prosecution has
proven that the accused was residing with his mother
at Jammanakatti along with his wife, his wife having
called the brother of the accused and informed him
of the occurrence of the event, the statements given
by both of them implicating the accused, the clothes
worn by the accused having blood on them, the
incriminating evidence has not been explained by the
accused.
30. PWs.11, 12 and 18 having deposed as regards the
fight between accused and the deceased on the basis
of the allegation made by the accused, the deceased
was having illicit relationship, this aspect having
resulted in fights on earlier occasion also between
the accused and the deceased, we are of the
considered opinion that the circumstances, which
exists when taken together would lead to an
irresistible conclusion that it is the accused who has
committed matricide. The accused having suspected
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CRL.A No. 100014 of 2019
the fidelity of his mother has gone to the extent of
causing her death by using an iron rod.
31. Though learned counsel for the appellant has sought
to contend that there were inconsistencies and
contradictions in the evidence, we are of the
considered opinion that there is no such
inconsistencies or contradictions which is present
inasmuch as PWs.1 and 10 have turned hostile and
insofar as official witnesses are concerned, PW.18 Is
a constable who was present in the Police Station,
who was put on guard duty to the accused. PW13
took the FIR to the Magistrate. PW.15 Is the officer
from the Forensic Science Laboratory, who has
categorically stated that the deceased has expired on
account of the assault committed using the iron rod,
which had been secured and as such, PW18 being
the Police Officer before whom the statement was
made by the accused, PW19 being the Investigating
Officer, who has detailed out investigation carried by
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CRL.A No. 100014 of 2019
him, has stood the test of cross-examination, it is
clear that there is enough evidence on record to
implicate the accused in the present case.
32. The accused and the deceased living in the house
where the dead body of the deceased was found and
the accused himself having voluntarily surrendered
before the jurisdictional police, we are of the
considered opinion that the order of conviction and
sentence passed by the trial Court is proper and
correct and does not require any interference. Hence
we pass the following:
ORDER
Appeal is dismissed.
Sd/-
JUDGE
Sd/-
JUDGE
gab
