Karnataka High Court

Siddappa S/O Sharanappa Samgar vs The State Of Karnataka on 22 September, 2022

Bench: H.B.Prabhakara Sastry, Anil B Katti

           IN THE HIGH COURT OF KARNATAKA,
                                                     ®
                    KALABURAGI BENCH

    DATED THIS THE 22ND DAY OF SEPTEMBER, 2022

                          PRESENT

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

                              AND

         THE HON'BLE Mr. JUSTICE ANIL B. KATTI

          CRIMINAL APPEAL No.200104 OF 2017

BETWEEN:

Siddappa
S/o. Sharanappa Samagar,
Age: 40 years, Occ: Coolie,
R/o. Tenihalli, Tq: Indi,
Dist: Vijayapura.
                                            .. Appellant
(By Sri. Vishal Pratap Singh, Advocate)

AND:

The State of Karnataka
Represented by the Public Prosecutor,
High Court of Karnataka,
At: Kalaburagi Bench.
                                           .. Respondent

(By Sri. Veeranagouda Biradar, Additional Govt. Advocate)

                              ***
     This Criminal Appeal is filed under Section 374(2) of the
Code of Criminal Procedure, 1973, with the following prayer:
                                                Crl.A.No.200104/2017
                                  2




           "Wherefore, it is most respectfully prayed that, the
     Hon'ble High Court may kindly be pleased to call for the
     records in S.C.No.39/2016 on the file of IV Additional
     Sessions Judge, Vijayapura and examined the legality,
     propriety of the proceedings of the impugned judgment,
     after hearing the prosecution and appellant kindly set
     aside the judgment of conviction and sentence and
     penalty imposed by the Trial Court dated:30-12-2016 in
     S.C.No.39/2016 and set the appellant at liberty holding
     that the prosecution has not proved the guilt of the
     appellant in the interest of justice and equity."


      This Criminal Appeal having been heard through physical
hearing/video      conferencing      and       reserved    on
09-09-2022, coming on for pronouncement of judgment this
day, Dr.H.B. Prabhakara Sastry J. delivered the following:

                        JUDGMENT

The present appellant, who is accused in Sessions

Case No.39/2016, in the Court of the learned IV Additional

Sessions Judge, Vijayapura, (hereinafter referred to as

`the Sessions Judge's Court' for brevity), has in this

appeal challenged the impugned judgment of conviction

and order on sentence dated 30-12-2016, convicting him

for the offence punishable under Section 302 of the Indian

Penal Code, 1860 (hereinafter referred to as `the IPC' for

brevity) and sentencing him accordingly.

Crl.A.No.200104/2017

2. The summary of the case of the prosecution in

the Session's Judge's Court is that, the deceased Meenaxi

is the wife of present accused Siddappa Sharanappa

Samagaar and they were the residents of Tenihalli Village

since seven to eight years prior to the incident. The

accused was suspecting the illicit relationship of his wife

Meenaxi with one Annappa Gurappa Namdar of the same

Village. In this regard, on several occasions, both the

accused and his wife had altercations, still, the deceased

continued her illicit relationship with the said Annappa

Gurappa Namdar. On the date 20-04-2015, in the night at

about 11:30 p.m., the deceased Meenaxi and the accused,

in a room in their house, had a quarrel about the alleged

illicit relationship of Meenaxi with Annappa Namdar. In the

said quarrel, the accused, with an intention to commit the

murder of his wife, took a sugar cane cutting chopper

(mentioned as 'koyata' in the evidence of the prosecution

witnesses) and assaulted his wife Meenaxi several times on

her left cheek, left ear, face, head and other parts of the

body, thus inflicted multiple injuries upon her, to which Crl.A.No.200104/2017

multiple injuries, deceased Meenaxi succumbed to the

same on the spot. Thus, the accused has committed the

offence punishable under Section 302 of the IPC.

3. Since the accused pleaded not guilty, in order to

prove the allegations made against the accused, the

prosecution got examined in all twenty two (22) witnesses

from PW-1 to PW-22, got marked documents from

Exhibits P-1 to P-35 and Material Objects from MO-1 to

MO-10.

Neither any witnesses were examined nor any

documents were got marked from the side of the accused.

4. After hearing both side, the learned Sessions

Judge's Court by its impugned judgment, convicted the

accused for the offence punishable under Section 302 of

the IPC and sentenced him accordingly. It is against the

said judgment of conviction and order on sentence, the

accused has preferred this appeal.

5. The complainant - State is being represented

by the learned Additional Government Advocate.

Crl.A.No.200104/2017

6. The records from the Sessions Judge's Court

were called for and the same are placed before this Court.

7. Perused the materials placed before this Court,

including the memorandum of appeal, impugned Judgment

and the records from the Sessions Judge's Court.

8. For the sake of convenience, the parties would

be referred to as per their rank before the Sessions Judge's

Court.

9. After hearing the learned counsels from both side,

the points that arise for our consideration in this appeal

are:

                [i]    Whether the prosecution has proved
       beyond         reasonable doubts that,        on the date

20-04-2015, in the night, at about 11:30 p.m., the accused, in his house at Tenihalli Village, within the limits of the complainant Police Station, has committed the murder of his wife Smt. Meenaxi, and thereby committed the offence punishable under Section 302 of the Indian Penal Code, 1860?

Crl.A.No.200104/2017

[ii] Whether the Judgment of conviction and Order on sentence under appeal warrants any interference at the hands of this Court?

10. Among the twenty two(22) witnesses examined

by the prosecution from PW-1 to PW-22, except the

official witnesses, all other witnesses including the alleged

eye witnesses have not supported the case of the

prosecution.

11. The prosecution examined the complainant in

the case, i.e. Shankar Chaabukasavaara as PW-1 (CW-1).

The said witness, in his examination-in-chief has stated

that, the deceased is his daughter and the accused is the

husband of the deceased. The couple had three living

children as on the date of the incident. In the month of

April-2015, one day, the Police telephoned him stating that

his daughter has been murdered, as such, he was required

to come to Indi Police Station. Accordingly, he, joined by

the Police, went to the house of the accused, where they

saw his murdered daughter. She had cut injuries on her

neck. The witness stated that he does not know who had Crl.A.No.200104/2017

committed the murder of his daughter, however, the Police

got a complaint written through CW-17 - Ramesha and

obtained his (of this witness) thumb mark on the same.

The witness has identified the said complaint as Ex.P-1.

He has also stated that, in the spot, the Police also took his

photograph making him stand along with two/three

persons, which photographs, the witness has identified as

Exs.P-2, P-3 and P-4. Further, stating that at the time of

inquest panchanama also, the Police took a photograph,

the witness has identified the same at Ex.P-5. One more

photograph, stating that the same was taken at the spot

along with the accused, the witness has identified it at

Ex.P-6. He has categorically stated that he does not know

what the contents of the complaint were and also he does

not know the details of the seizure made by the Police, if

any, in the spot.

Even though this witness was expected to speak

about the marital relationship between the accused and

the deceased and also the motive behind the alleged crime

and also his knowledge about the role of the accused in Crl.A.No.200104/2017

the alleged commission of the crime, but the witness did

not speak anything about those aspects.

At the request of the prosecution, the witness was

treated as hostile and the prosecution was permitted to

cross-examine the witness. Even during the cross-

examination, the witness did not support the case of the

prosecution.

12. The prosecution examined PW-9, PW-10, PW-13,

PW-14 and PW-21 as the eye witnesses to the alleged

incident.

13. PW-9 (CW-11) - Rukmawwa Samagaara is

admittedly the mother of the accused and PW-10 (CW-12)

- Akasha Samagaara is undisputedly the son of the

accused. Both these witnesses, except stating about their

relationship with the deceased, have not stated anything

about the alleged incident. Both of them have

categorically stated that, they do not know anything about

the incident. Though both these witnesses were treated as

hostile and the prosecution was permitted to cross-

Crl.A.No.200104/2017

examine them, however, the prosecution except reading to

them their alleged statements before the Investigating

Officer, has not attempted to elicit any further details from

them about the incident and the role of the accused in the

alleged incident. The alleged statements of PW-9 and

PW-10 before the Investigating Officer were marked as

Exs.P-14 and P-15 respectively.

14. PW-13(CW-13) - Suresha Sannatangi, PW-14

(CW-14) - Maantayya Hiremath and PW-21 (CW-15)-

Kannavva Alura were examined by the prosecution

projecting them as neighbours of the accused and also the

eye witnesses to the alleged incident. However, all these

three witnesses, except stating that they are the

neighbours of the accused, have pleaded their total

ignorance about the incident. They categorically stated

that they have not seen the alleged incident and have not

stated before any one that they have seen the alleged

incident. Even after getting them treated as hostile and Crl.A.No.200104/2017

examining them, the prosecution could not get any support

from any of these three witnesses.

Thus, from none of the material witnesses, who,

according to the prosecution, were eye witnesses, the

prosecution could get any support in their evidence.

15. The other set of witnesses, according to the

prosecution, who were aware of the incident and the role

of the accused in the commission of the alleged offence

are, PW-3(CW-5) - Yallavva Chaabukasavaara, PW-4(CW-6) -

Shreeshaila Chaabukasavaara, PW-5 (CW-7)- Mahadeva

Chaabukasavaara, PW-6(CW-8) - Revanasiddappa Honnakatti,

PW-7 (CW-9) - Hanamantha Chaabukasavaara and PW-8

(CW-10) - Siddappa Chaabukasavaara.

16. PW-3 - Yellawwa Chaabukasavaara, PW-4-

Shreeshaila Chaabukasavaara and PW-5 - Mahadeva

Chaabukasavaara are the mother, younger brother and

paternal uncle of the deceased respectively.

In their evidence, all these three witnesses have

uniformly stated that, they do not know anything about Crl.A.No.200104/2017

the incident and that they have not given any statement

before the Police. The prosecution was permitted to treat

them as hostile and to cross-examine them. Even in their

cross-examination, the prosecution except reading the

contents of their alleged statements before the

Investigating Officer and getting them marked at Exs.P-8,

P-9 and P-10 respectively, could not able to extract any

evidence favourable to the prosecution. Even the

statements at Exs.P-8, P-9 and P-10 read over to them

were not admitted as true by the witnesses. Thus,

from the evidence of PW-1, PW-9 and PW-10, though the

prosecution had ample opportunity to extract several

details with respect to the marital life of the deceased with

the accused and their cohabitation, but for the reasons

best known to it, it did not make any attempt to elicit

several of the required preliminary details from the

evidence of these three witnesses, though they were

mother, younger brother and paternal uncle of the

deceased respectively.

Crl.A.No.200104/2017

17. PW-6 (CW-8) - Revanasiddappa Honnakatti,

PW-7(CW-9)- Hanamanta Chabukasavaara and PW-8

(CW-10) - Siddappa Chaabukasavaara, whom the

prosecution examined as the persons knowing the family

of the deceased and her marital relationship with the

accused, could not get any support from them. All these

three witnesses, like their predecessors, only stated that

they do not know anything about the incident and that

they have not given any statements before the Police.

Like the previous set of witnesses, even in the case of

these three witnesses also, the prosecution instead of

making effort to elicit favourable statements from them in

their cross-examination, satisfied itself by suggesting that

they have given their statements before the Police as per

Exs.P-12, P-13 and P-14 respectively and reading the

contents of the statements to them only to get their response

that they have not stated anything what is shown

in their respective alleged statements before the Investigating

Officer.

Crl.A.No.200104/2017

18. PW-15 (CW-17) - Ramesha Bhaavikatti, though

has stated that at the request of PW-1 (CW-1 - Shankara

Chaabukasavaara), who could neither read nor write, he

has written a complaint for him and as stated by him,

which complaint he has identified at Ex.P-1, but the said

PW-1 since has stated in his evidence that it was the Police

who got written the complaint as per Ex.P-1 through CW-

17 Ramesha and obtained his thumb mark to the said

complaint, as such, he does not know what is written in

the complaint, the evidence of PW-15 cannot be inferred

that the contents of Ex.P-1 was to the knowledge of PW-1

and that those contents are true. Therefore, the evidence

of PW-15 which is bereft of any corroboration from PW-1

would be of no help to the prosecution.

Thus from the evidence of the above analysed

material witnesses, the prosecution could neither prove the

death of the deceased Meenaxi nor the role of the accused

in the alleged death of the deceased Meenaxi.

19. Interestingly, none of the above analysed witnesses

have even whispered about the nature of the death of the Crl.A.No.200104/2017

deceased Meenaxi. Therefore, in order to ascertain the

nature of death of deceased Meenaxi, the other set of

witnesses upon whom the prosecution relied upon is to be

considered.

The first among them would be, PW-2 (CW-3)

Narasawwa Honakatti and PW-11(CW-2) - Shivananda

Nandaragi. Both these witnesses were examined

projecting them as panchas for the inquest panchanama at

Ex.P-7. Though these two witnesses have stated that the

Police have obtained their thumb mark and signatures

respectively in the said panchanama, however, they have

categorically and clearly stated that, not any panchanama,

much less inquest panchanama was drawn in their

presence by the Police. Even in their cross-examination

from the prosecution, they denied a suggestion that the

inquest panchanama was drawn in their presence.

Therefore, in the absence of any support from these two

witnesses regarding the inquest panchanama, mere

statement of the Investigating Officer i.e. PW-18(CW-25) -

Crl.A.No.200104/2017

Mallikarjuna Asode that, he drew the inquest panchanama

in the presence of these two witnesses won't prove the

panchanama.

20. The next witness who could speak about the

nature of death of deceased Meenaxi is, the Doctor who

conducted autopsy on the dead body of the deceased

Meenaxi.

21. PW-20 (CW-23) - Dr. Rajesh Kolekara, the

Medical Officer of Taluka General Hospital, Indi, has stated

that, at the request of the respondent Police, on the date

21-04-2015, he conducted post-mortem examination on

the dead body of deceased Meenaxi in the afternoon and

noticed the following injuries:

(1) incised wound once (left) mandibular aspect which extends upto (left) Nasal aspect measuring 10 cm x 1 cm x 1 cm with the presence of bleeding margins which will define Zigzag shape.

Crl.A.No.200104/2017

(2) Lacerated wound once (left) middle aspect of external ear extends upto chin aspect 6 ½ cm x 1 ½ cm x 1 ½ cm with bleeding.

(3) Lacerated wound on the chin aspect 3" x 1 ½" x 1 ½" with bleeding.

The Doctor could not find any abnormalities in the

internal organs. He has opined that the cause of death

was due to acute respiratory failure as a result of assault

with sharp object over face, causing multiple injuries

with heavy blood loss.

The witness has further stated that he has also

examined the weapon 'chopper' (but stated as 'koyata' in

his evidence) sent to him for examination for opinion by

the Investigating Officer. After examining the said

weapon, its measurement, blade and after comparing them

with the injuries sustained by the deceased Meenaxi, he

opined that the injuries found on the deceased may be

caused by the weapon sent to him for examination. In

that regard, he has issued the opinion in writing which the

witness has identified at Ex.P-34.

Crl.A.No.200104/2017

The finding of the Doctor regarding the injuries on

the deceased Meenaxi and the relation of the said injuries

with the weapon has not been denied in his cross-

examination. However, the learned counsel for the

appellant, in his argument vehemently submitted that, the

photograph of the deceased, more particularly, the one at

Ex.P-3 would clearly go to show that there were more

than three major lacerated injuries on the left side face

and neck of the deceased Meenaxi which are clearly visible

in the photograph, as such, the opinion of the Doctor that

there are only three injuries, two in the form of lacerated

wounds/injuries and one in the form of an incised wound is

highly unbelievable.

A perusal of the colour photograph of the deceased at

Ex.P-3 which has mainly focused on the face and head

portion, would go to show that, there are multiple injuries

on the left side of the face, head and neck of the deceased,

which, by a naked eye, appears to be more than three in

number. Ignoring the said aspect, still, if we take the Crl.A.No.200104/2017

medical evidence at its face value, the same would only go

to show that the deceased had sustained an incised wound

and two lacerated wounds on the face which were ante-

mortem in nature, as such, due to infliction of those

injuries on the face, due to heavy bleeding and acute

respiratory failure, deceased Meenaxi has died. There is

no evidence from the Doctor (PW-20) that those injuries

are either accidental or self-inflicted, but are caused by

another human being by assaulting the deceased with any

sort of weapon. His opinion that the weapon at MO-3 can

cause those injuries cannot be taken that those injuries

were caused with the very same weapon, that too, by

another human being. Still, assuming for a moment, that

the injuries have been caused by the act of a human

being, who assaulted the deceased with the weapon, may

be, particularly with the weapon at MO-3, still, it is for the

prosecution to establish that it was the accused and

accused alone who inflicted those injuries upon the

deceased Meenaxi and caused her death.

Crl.A.No.200104/2017

22. As observed above, none of the material

witnesses examined by the prosecution as family

members of the deceased and other independent

witnesses have spoken about either the nature of the

death of the deceased or the role of the accused in the

alleged death of the deceased Meenaxi. Therefore,

admittedly, there is no evidence through prosecution

witnesses to establish the link between the death of the

deceased and the accused. If at all it is assumed that the

injuries on the deceased were inflicted using chopper at

MO-3, then, at least the relation of the said weapon with

the accused should have been established by the

prosecution.

Admittedly, none of the witnesses have spoken about

the relation of the weapon with the accused. Even

according to the prosecution, the said weapon at MO-3 was

found in the spot of the alleged offence. Though the said

weapon is said to have been found stained with blood and

which blood, according to Forensic Science Laboratory

(FSL) report at Ex.P-27, was human blood with 'O' Group, Crl.A.No.200104/2017

by that itself, no nexus between the accused and the

weapon chopper at MO-3 can be inferred. Merely because

the said chopper was found in the house of the accused, it

is not safe to infer that the accused had made use of the

said chopper and using the same has inflicted fatal injuries

upon his wife Meenaxi. Therefore, at the maximum, the

evidence of the Doctor, as PW-20, would go to show that

the death of the deceased Meenaxi was unnatural, may be

homicidal, but, there is nothing to infer that the said death

was caused by the act of the accused.

23. The remaining witnesses examined by the

prosecution are, PW-11 (CW-2) - Shivananda Nandaragi

and PW-12 (CW-4) - Revappa Teli.

Both these witnesses, though were projected by the

prosecution as panch witnesses for the scene of offence

panchanama as per Ex.P-16, the seizure of the cloths

panchanama of the deceased as per Ex.P-17 and seizure of

cloths panchanama of the accused as per Ex.P-18 and

PW-11, in addition, was also shown to be a pancha even Crl.A.No.200104/2017

for inquest panchanama at Ex.P-7, but neither of these

witnesses have supported the case of the prosecution,

even to the slightest extent. Both of them have uniformly

stated that the Police have neither drawn any

panchanamas in their presence nor seized any articles in

their presence, however, the Police have obtained their

signatures to four panchanamas. Though the witnesses

have identified their signatures in those four

panchanamas, but categorically stated that they do not

know what was written in the said panchanamas.

No doubt the witnesses have identified their presence

in the photographs at Exs.P-6 and P-19 and no doubt

PW-16 (CW-16) - Zakeera Lalasangi - the photographer

has stated that he has captured those photographs, but

looking at those photographs, it cannot be deduced that

PW-11 and PW-12 were the panchas to those four

panchanamas and that it is in their presence, those four

panchanamas were drawn. Therefore, even the alleged

place of offence, seizure of cloths panchanama of deceased Crl.A.No.200104/2017

and seizure of cloths panchanama of accused also could

not be established by the prosecution.

24. As has already been observed above, even the

prosecution also did not elicit the basic details from the

mouth of any of the material witnesses that it examined

including the parents and the family members of the

deceased. For the reasons best known to the prosecution,

it did not even put a simple question to the mother of the

both the accused and the deceased as well to the son of

the accused as to when and where the deceased Meenaxi

died, as such, even with respect to the place of offence,

neither there is any support from the panch witnesses nor

from the family members.

25. Thus, the remaining witnesses would be only the

Police witnesses.

PW-17 (CW-24) - Vijayakumara Sinnura, the then

Police Sub-Inspector of the complainant Police has stated

that, the complainant appeared before him, lodged a

complaint as per Ex.P-1, based upon which, he prepared Crl.A.No.200104/2017

an FIR as per Ex.P-30 and submitted it to the Court. He

also stated that on the next date, based upon the direction

of the Circle Inspector of Police, he arrested the accused.

However, since the alleged complainant who was examined

as PW-1 himself has denied the contents of the complaint

at Ex.P-1 and has stated that the Police have got written

the complaint but obtained his thumb mark upon the

same, it cannot be inferred that the contents of the

complaint at Ex.P-1 was to the knowledge of PW-1.

At this stage itself, it appears to be worth to notice

that the Sessions Judge's Court, observing that a

suggestion was made to the scribe of the complaint

(PW-15/CW-17) that he has written the complaint, as

stated by the complainant, proceeded to observe that the

contents of the complaint was to the knowledge of PW-1.

The said finding of the Sessions Judge's Court is not

convincing for the reason that, the very alleged

complainant having categorically denied that the contents

of the complaint at Ex.P-1 was to his knowledge and has

abandoned the case of the prosecution, merely because of Crl.A.No.200104/2017

a suggestion made to PW-15 - the scribe, it cannot be

inferred that PW-1 was aware of the contents of the

complaint and it was at his instance the averments were

made in the complaint at Ex.P-1.

26. The evidence of PW-18 (CW-25) - Mallikarjuna

Asode, one among the Investigating Officers has stated

that, he visited the spot and drew the scene of offence

panchanama, drew the inquest panchanama, prepared the

sketch of the panchanama, have all received no

corroboration from the participants in those panchanamas

as panchas. The evidence of this witness that he got the

post-mortem examination of the dead body of deceased

Meenaxi done by the Doctor (PW-20) alone stands

corroborated by the evidence of PW-20 - the Doctor.

The further evidence of the witness (PW-18) that, he

seized the cloths of the deceased and also the cloths of the

accused also have remained uncorroborated from any of

the other witnesses. Therefore, the evidence of either Crl.A.No.200104/2017

PW-17 or PW-18 also does not take the prosecution case

any further.

27. PW-19 (CW-26) - Mahadeva Shirahatti has

stated that, he got the sketch of the scene of offence

panchanama drawn by the Assistant Engineer of the PWD

of Indi and also collected a Certificate from GESCOM about

the supply of electricity to Tenihalli Village on the date of

the incident and requested the Doctor for an opinion on

the relation of the weapon and the injuries found on the

deceased also, would not take the case of the prosecution

any further in the absence of any support by the other

relevant material witnesses.

28. Similarly, the evidence of PW-22 (CW-27) -

Ramappa Saavalagi - the Circle Inspector of Police that, he

received the post-mortem report and sent the seized

articles to the Regional Forensic Science Laboratory (RFSL)

at Belagavi for their examination and collected the

Doctor's opinion on the weapon as per Ex.P-34 and filed

the charge sheet against the accused would also fail in Crl.A.No.200104/2017

taking the case of the prosecution any further, in the

absence of their insufficiency to prove the alleged guilt

against the accused.

29. Thus, the prosecution case is totally bereft of

any support from the alleged eye witnesses, alleged

material witnesses and panch witnesses. However, the

Sessions Judge's Court has proceeded to pass the

impugned judgment on the surmise that since the alleged

incident has taken place in the house of the accused, it is

for the accused to explain the facts of the incident and also

the manner as to how the death of his wife Meenaxi had

occurred, since the same was to his exclusive knowledge.

In the said process, it hastily relied upon Sections 106 and

114 of the Indian Evidence Act, 1872 (hereinafter for

brevity referred to as "the Evidence Act").

30. The Sessions Judge's Court proceeded to

observe that, the prosecution contended that the deceased

was living in the house of the accused. Thus, it further

proceeded to observe that, under Section 114 of the Crl.A.No.200104/2017

Evidence Act, it will presume that the deceased and the

accused being husband and wife were residing together

and that on the night of the date of the alleged incident

also, both of them being the husband and wife were

sleeping in a separate room to the exclusion of others in

their house.

31. Section 114 of the Indian Evidence Act, 1872,

reads as below:

"114. Court may presume existence of certain facts.- The Court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business, in their relation to the facts of the particular case."

Further, relying upon Section 106 of the Evidence

Act, it proceeded to hold that, since the accused was the

only one who was with the deceased at the time of the

death of the deceased, the burden was upon him to prove

the fact especially within his knowledge.

Crl.A.No.200104/2017

32. With these pre-suppositions on its side, the

Sessions Judge's Court, relying upon the judgments of the

Hon'ble Apex Court in the case of State of Rajasthan Vs.

Thakur Singh reported in (2014) 12 Supreme Court Cases

211 and Gajanan Dashrath Kharate Vs. State of

Maharashtra reported in (2016) 4 Supreme Court Cases

604 proceeded to hold that, the sole burden was upon the

accused to speak as to, what happened on that night when

his wife who was with him sustained fatal injuries and

succumbed to them. Observing that no explanation was

offered by the accused in that regard, the Sessions Judge's

Court proceeded to hold the accused guilty of the alleged

offence.

It is now to be seen as to, whether the said

conclusion arrived at by the learned Sessions Judge's Court

sustains?

33. The learned counsel for the appellant/accused,

after making submission that, though there was no support

from any of the material witnesses to the case of the Crl.A.No.200104/2017

prosecution, still, the Court, on its own, invented

applicability of Section 106 in the case and erroneously

held the accused guilty of the alleged offence, submitted

that the prosecution had failed to show that the accused

on the date of the alleged incident was staying with his

wife in his house and that the accused and deceased were

sleeping together in a room of the said house. He also

submitted that the case of the prosecution was that, apart

from the accused, even the mother of the accused and the

son of the accused i.e. PW-9 and PW-10 were also residing

in the same house, as such, there was no reason to

suspect the alleged accused alone for the death of the

deceased Meenaxi.

With this, he submitted that, Section 106 of the

Evidence Act is not attracted in the case on hand.

34. Per contra, learned Additional Government

Advocate for respondent - State, in his single sentence

argument submitted that, the Sessions Judge's Court was

justified in applying the principles of Section 106 of the Crl.A.No.200104/2017

Evidence Act and holding the accused guilty of the alleged

offence.

35. The case of the prosecution is that, the accused

was residing with his wife Meenaxi in his house at Tenihalli

Village, within the limits of the complainant Police Station.

It is its further case that the deceased Meenaxi was found

killed in the said house on the night of the date

20-04-2015. Though the prosecution was expecting many

of the material witnesses examined by it including PW-9,

the mother of the accused, PW-10 - the son of the

accused, PW-1 - the father of the deceased, PW-3 - the

mother of the deceased and PW-4 - the younger brother of

the deceased among others to state that the accused and

the deceased were living together in Tenihalli Village and

more particularly, on the date of the incident also, both of

them were in the said house and they slept together in a

room, for the frustration of the prosecution, none of the

witnesses including the Investigating Officer has anywhere

stated in their evidence that the accused and the deceased Crl.A.No.200104/2017

were residing together in Tenihalli Village and also that, on

the date of the incident also, the accused and deceased

were in their house at Tenihalli Village. Though PW-14 and

PW-21 have stated that the house of the accused in

Tenihalli Village was behind their house, but neither of

them have stated that the accused and deceased were

residing in the said house, more particularly, on the date

of the alleged incident. Contrary to the case of the

prosecution, PW-13, who, according to the prosecution,

was the person known to the family of the accused and

also an eye witness to the alleged incident has stated that,

in the Village Alooru, his house is at a distance of about

200 ft. from the house of the accused. His said undisputed

statement would go to show that, the house of the accused

was not at Tenihalli Village, but it was at Alooru. Thus,

there are contradictions with respect to the place of

residence of the accused.

Surprisingly, none of the family members of the

accused and his relatives including the mother, son,

father-in-law, mother-in-law and brother-in-law of the Crl.A.No.200104/2017

accused also have stated as to where the accused and the

deceased were residing at the time of incident. Therefore,

the very primary burden of the prosecution of proving that

the accused and deceased were residing in their house at

Tenihalli Village as on the date of the incident has not been

discharged by it. However, the Sessions Judge's Court,

ignoring the aspect that the primary burden of proving that

the accused and the deceased were residing together in a

house at Tenihalli was upon the prosecution, expected the

accused to set up any specific defence to the effect that,

on the date of the incident, during night time or at 11:30

p.m., he was not at all present in his house along with his

wife Meenaxi.

Thus, the Sessions Judges Court, from the beginning

of its reasoning in the judgment, on its own assumed a

defence of alibi for the accused and keeping the said

aspect as the base aspect throughout, continued with the

presumption that, as on the date and time of the incident,

the accused was in the company of the deceased Meenaxi Crl.A.No.200104/2017

in a room in their house at Tenihalli Village. It is with this

basic error, the entire appreciation of the evidence of the

prosecution, more particularly, the application of Sections

106 and 114 of the Evidence Act was made by the

Sessions Judge's Court.

Though it is the case of the prosecution that the

deceased Meenaxi was given in marriage to the accused

who was of Tenihalli Village, but by that itself, it cannot be

inferred that the accused was residing in the Village at

Tenihalli along with the deceased Meenaxi as on the date

of the incident.

36. Secondly, the Sessions Judge's Court, at more

than one place, in its judgment, particularly, in paragraph

29 and paragraph 32, observed that the prosecution has

contended that on the date, time and place of the incident,

the accused was also present along with his wife in a room

of his house. With the said observation, the mere

contention of the prosecution in the charge sheet was

treated as a proven fact by the Sessions Judge's Court and Crl.A.No.200104/2017

it proceeded further. It failed to make out a difference

between the contention of the prosecution and the proof of

the same.

Admittedly, when none of the material witnesses

including the panchas have supported the case of the

prosecution, even to a smallest extent, it was very much

necessary for the prosecution to establish that on the date

of incident, the accused was in his alleged house at

Tenihalli Village in the company of his wife Meenaxi.

However, as observed above, the mere contention of the

prosecution was taken as a proven fact by the Sessions

Judge's Court and it proceeded further.

37. To the height of the above, the Sessions Judge's

Court even proceeded to observe at paragraph 32 (page

39 of the judgment) as below:

"...It is relevant to note that the alleged incident was took place within the room of the house of accused on that day during night time i.e., at 11.30 p.m. When the prosecution has contended that on the above said date, time and place the Crl.A.No.200104/2017

accused was also present along with his wife in a room of his house and at that time the accused has committed murder of his wife by using MO.3 weapon, in such circumstances, the accused has to explain as to where he was present at that time and also he has to explain who is responsible for the death of his wife. Admittedly the deceased Meenaxi is none other than the wife of accused. As the relationship of accused and deceased is that of husband and wife, in view of Section 114 of the Evidence Act the court may presume that on the day of incident during night time i.e., at 11.30 p.m. the accused and his wife who being the husband and wife were present in a room of their house due to their relationship. Therefore, in view of the above facts and circumstances of the case and for the reasons as stated supra it can be stated that on the day of incident during night time i.e., at 11.30 p.m. the accused was present along with his wife Meenaxi in a room of his house. In the circumstances, the prosecution has proved the fact that at the time of incident i.e., on 20.4.2015 at about 11.30 p.m. the accused was present along with his wife in a room of his house...."

The above observation once again would go to show

that the Sessions Judge's Court has taken for granted the Crl.A.No.200104/2017

mere contention of the prosecution in its charge sheet

that, the accused and deceased were living in a house at

Tenihalli Village, as a proven fact that the accused was

residing in his house at Tenihalli Village along with the

deceased Meenaxi even on the date of the alleged incident.

Added to the same, it also presumed that apart from the

accused and the deceased being taken as residing in their

house at Tenihalli Village, both of them being the husband

and wife were also present in a room in their house by

virtue of their relationship. We do not know how come the

Sessions Judge's Court assumed on its own that, the

accused and the deceased, who, according to PW-1 - the

father of the deceased, were married about seventeen

years back and had four children (among them one was

dead) were sleeping together in a room in their house.

Thus, the Sessions Judge's Court has erred in presuming

on its own that, the accused and deceased were sleeping

together in a separate room in their house on the night of

the incident without there being any material to arrive at

such a presumption and also there being nothing to Crl.A.No.200104/2017

consider the common course of natural events, human

conduct in their relation to the facts of this particular case.

It is for this reason, it was observed above by this Court

that though the prosecution could have elicited some

preliminary and basic essential details from the family

members of the deceased and accused in their evidence,

i.e. in the evidence of father-in-law, mother-in-law,

brother-in-law, mother and son of the accused, as to the

place of residence of the accused's accommodation in the

house and the accused and the deceased being present on

the date of the incident in the night at home, however, for

the reasons best known to it, the prosecution did not elicit

any such details which were very much essential for

arriving at any presumption even under Section 114 of the

Evidence Act.

38. The Sessions Court heavily relied upon Section

106 of the Evidence Act and shifted the burden on the

accused to explain as to what had happened on the night Crl.A.No.200104/2017

when his wife Meenaxi was found dead in his house at

Tenihalli Village.

39. Section 106 of the Indian Evidence Act, 1872,

reads as below:

"106. Burden of proving fact especially within knowledge. - When any fact is especially within the knowledge of any person, the burden of proving that fact is upon him."

A bare reading of the above Section would go to

show that, the primary responsibility to prove a particular

fact which is especially within the knowledge of the

accused would be upon the prosecution. It is only if the

prosecution could able to show that the facts and

circumstances of the case would clearly go to show that a

particular fact is especially within the knowledge of the

accused, only then the burden of proving that fact would

be upon the accused.

40. In the instant case, as observed above, the

prosecution could not able to show the primary alleged

fact that the accused and the deceased were residing Crl.A.No.200104/2017

together in their house at Tenihalli Village, much less its

contention that, on the night of the date of the incident,

both accused and the deceased were sleeping together in

a room in their house. However, the Sessions Judge's

Court, relying upon Thakur Singh's case (supra) and

Gajanan Dashrath Kharate's case (supra), proceeded to

hold that, the deceased was since found to be lastly in the

company of the accused in his house at the time of alleged

incident, it was for the accused to explain as to how the

death of the deceased was caused. With this, it further

observed that since the accused failed to give any

satisfactory explanation in that regard it has to be held

that, it was the accused and accused alone who has

caused the murder of his wife.

41. In Thakur Singh's case (supra), though the

Hon'ble Apex Court held that Section 106 of the Evidence Act

was applicable, however, the fact in the case before the Apex

Court was that, as at the time of unnatural death of the

wife of the accused in a room in the house, the said room Crl.A.No.200104/2017

was occupied by both the accused and the deceased.

Furthermore, there was no evidence of anybody else

entering the room. It is in the said background of the

proven fact, the Hon'ble Apex Court observed that the

facts relevant to the cause of death has to be held as

'known' only to the accused and that, he has not explained

it. It is holding that the same amounts to a strong

presumption that the accused has murdered his wife, the

Hon'ble Apex Court, reversed the judgment of acquittal

passed by the High Court and restored the judgment of

conviction of the accused under Section 302 of the IPC,

passed by the Trial Court.

42. In the case of Gajanan Dashrath Kharate Vs.

State of Maharashtra (supra), the murder of the father of

the appellant was committed secretly inside the house.

Pertaining to the facts of that case, in para.13 of the said

judgment, the Hon'ble Apex Court was pleased to observe

as below:

"13. As seen from the evidence, appellant Gajanan and his father Dashrath and mother Crl.A.No.200104/2017

Mankarnabai were living together. On 7-4-2002, mother of the appellant-accused had gone to another Village Dahigaon. The prosecution has proved presence of the appellant at his home on the night of 7-4-2002. Therefore, the appellant is duty-bound to explain as to how the death of his father was caused.

When an offence like murder is committed in secrecy inside a house, the initial burden to establish the case would undoubtedly be upon the prosecution. In view of Section 106 of the Evidence Act, there will be a corresponding burden on the inmates of the house to give cogent explanation as to how the crime was committed. The inmates of the house cannot get away by simply keeping quiet and offering no explanation on the supposed premise that the burden to establish its case lies entirely upon the prosecution and there is no duty at all on the accused to offer. On the date of the occurrence, when the accused and his father Dashrath were in the house and when the father of the accused was found dead, it was for the accused to offer an explanation as to how his father sustained injuries. When the accused could not offer any explanation as to the homicidal death of his father, it is a strong circumstance against the accused that he is responsible for the commission of the crime."

(emphasis supplied) Crl.A.No.200104/2017

43. Thus, the initial burden of proving that, as on

the date of the alleged incident, the accused was present

in the house or was lastly seen with the deceased or that

he was lastly in the company of the deceased at the time

of the incident would be primarily upon the prosecution.

Thus, it is observed in the above paragraph by the Hon'ble

Apex Court that the initial burden to establish the case

would undoubtedly be upon the prosecution. It is only

when the prosecution discharges the said burden that the

accused was found in the company of the deceased, the

burden of proving the facts which are exclusively within

the knowledge of the accused would fall upon him.

44. In the above mentioned Gajanan Dashrath

Kharate's case (supra), the prosecution had proved that

the appellant Gajanan, his father Dashrath and mother

Mankarnabai were living together on the ill-fated day of

07-04-2002 and that the mother of the appellant/accused

had gone out to another Village. Therefore, the Hon'ble

Apex Court observed that the prosecution had proved that, Crl.A.No.200104/2017

the appellant Gajanan and his father Dashrath were the

only two persons in their home on the night of the date of

the incident on 07-04-2002 and hence held that the

appellant Gajanan/accused was duty bound to explain as

to how the death of his father was caused.

45. In the case of Nagendra Sah Vs. State of Bihar

reported in (2021) 10 Supreme Court Cases 725, with

respect to Section 106 of the Evidence Act, the Hon'ble

Apex Court in para-22 of its judgment was pleased to

observe as below:

"22. Thus, Section 106 of the Evidence Act will apply to those cases where the prosecution has succeeded in establishing the facts from which a reasonable inference can be drawn regarding the existence of certain other facts which are within the special knowledge of the accused. When the accused fails to offer proper explanation about the existence of said other facts, the Court can always draw an appropriate inference."

46. In the case of Sabitri Samantaray Vs. State of

Odisha reported in 2022 SCC OnLine SC 673, wherein the Crl.A.No.200104/2017

appellants had challenged the confirmation of their

conviction for the offence punishable under Section 304

(II) of the IPC, the Hon'ble Apex Court had an occasion to

discuss the principle under Section 106 of the Evidence

Act. In that regard, in paragraph 25 of its judgment, it

referred to its previous judgment in the case of Ashok Vs.

State of Maharashtra (2015) 4 SCC 393 and reproduced a

portion of the said judgment which reads as below:

"12. From the study of above stated judgments and many others delivered by this Court over a period of years, the rule can be summarised as that the initial burden of proof is on the prosecution to bring sufficient evidence pointing towards guilt of the accused. However, in case of last seen together, the prosecution is exempted to prove exact happening of the incident as the accused himself would have special knowledge of the incident and thus, would have burden of proof as per Section 106 of the Evidence Act. Therefore, last seen together itself is not a conclusive proof but along with other circumstances surrounding the incident, like relations between the accused and the deceased, enmity between them, previous history of hostility, recovery of weapon from the accused, etc. non-

Crl.A.No.200104/2017

explanation of death of the deceased, may lead to a presumption of guilt."

(emphasis supplied)

Thus, it is clear that Section 106 of the Evidence Act

will apply to those cases where the prosecution has

succeeded in establishing the facts from which a

reasonable inference can be drawn regarding the existence

of certain other facts which are within the special

knowledge of the accused. When the accused fails to offer

proper explanation about the existence of said other facts,

the Court can always draw an appropriate inference.

47. In the case of Satye Singh and another Vs.

State of Uttarakhand reported in (2022) 5 Supreme Court

Cases 438, the Hon'ble Apex Court with respect to Section

106 of the Evidence Act was pleased to observe that,

Section 106 is not intended to relieve the prosecution from

discharging its duty to prove the guilt of the accused. The

prosecution must discharge its primary onus of proof and

establish the basic facts alleged against the accused in Crl.A.No.200104/2017

accordance with law and only thereafter, Section 106 may

be resorted to, depending upon the facts and

circumstances of each case.

48. In the case on hand, as analysed above, the

prosecution case is that apart from the accused and the

deceased, there were two more inmates in the house, i.e.

the mother and the son of the accused (PW-9 and PW-10).

According to the prosecution, at the time of the alleged

incident, the mother and son were also present in the very

same house where the incident took place. However, the

prosecution had cited them as eye witnesses to the alleged

incident. However, as observed above, neither of them

have supported the case of the prosecution even to the

smallest extent that, the accused and deceased Meenaxi

stayed together in a room of the house on the night of the

date of the incident. Therefore, the finding of the Hon'ble

Apex Court in Thakur Singh's case (supra) and Gajanan

Dashrath Kharate's case (supra), would not enure to the

benefit of the prosecution in the case on hand.

Crl.A.No.200104/2017

49. However, the Sessions Judge's Court, ignoring

the fact that, primarily, the prosecution had to establish

that the accused and the deceased were residing in the

said house together on the date of the incident and that

they stayed together in a room of the house on the night

of the date of the alleged incident, presumed certain facts

on its own under Section 114 of the Evidence Act, in the

absence of any basic evidence about the stay of the

accused and the deceased in the said house on the night of

the date of the incident. This has led the Sessions Judge's

Court to hold that, the accused had failed to explain

certain facts which were essentially and exclusively to his

knowledge.

50. Furthermore, the Sessions Judge's Court in its

impugned judgment, without there being any evidence

from any of the witnesses to the effect that, as on the date

and time of the alleged incident, the accused was present

along with his wife Meenaxi, proceeded to hold in para.32

(judgment page.40) that, in the circumstances, the Crl.A.No.200104/2017

prosecution has proved the fact that, at the time of

incident, i.e. on the date 20-04-2015, at about 11:30

p.m., the accused was present along with his wife in a

room of his house. The said finding of the Sessions

Judge's Court, being totally unfounded, makes the further

expectation of the Sessions Judge's Court from the

accused to explain under what circumstance his wife

Meenaxi was murdered and who is responsible for the

same.

In addition to the above, without there being any

evidence either oral or documentary, including in the

Forensic Science Laboratory (FSL) Report at Ex.P-27 that,

the blood said to have been found on the cloths of the

accused was of the deceased, the Sessions Judge's Court

also took the presence of the blood on the cloths of the

accused as one more evidence in favour of the

prosecution. In the said process, it totally failed to notice

the fact that none of the prosecution witnesses including

the panchas to the alleged seizure of the cloth Crl.A.No.200104/2017

panchanamas of the accused and the deceased had

supported the case of the prosecution about the seizure of

the cloths panchanamas of either of the deceased or of the

accused. Therefore, it was not safe for the Sessions

Judge's Court to arrive at a conclusion that the cloths that

were seized were that of the accused and the deceased

and that the blood stains found on the alleged cloths of the

accused were of the deceased.

51. The Sessions Judge's Court further observed

that the accused has not offered any explanation and also

failed to answer as to where he was present after the

sunset on the date 20-04-2015 and before sunrise on the

date 21-04-2015 or at 11:30 p.m. on the date

20-04-2015 (on the date of incident).

52. A perusal of the statement of the accused

recorded under Section 313 of the Code of Criminal

Procedure, 1973, would go to show that, no question

pertaining to the presence of the accused on the above

aspect was either framed or was put to the accused.

Crl.A.No.200104/2017

Therefore, when the accused was not at all asked about his

whereabouts after the sunset on the date 20-04-2015 till

sunrise on the date 21-04-2015, the Sessions Judge's

Court was not expected to presume itself the said question

and give answer to it. As such also, the Sessions Judge's

Court has presumed certain things which do not have any

supporting material before it.

53. Lastly, the Sessions Judge's Court, in the very

same impugned judgment, in para-35 (page Nos.47 and

48 of the judgment) was pleased to observe as follows:

"...The accused has not taken any defence to the effect that on the day of incident somebody has committed murder of his wife when he was not present in the house. Let us presume for a moment that if any body or outsider committed murder of his wife on the day of incident when the accused was not present in his house, naturally they will rob any valuable articles or the gold ornaments worn by the deceased. But in the case on hand there was no reporting of theft of valuable articles or the gold ornaments from the house of accused on the day of incident."

Crl.A.No.200104/2017

54. The above reasoning of the Sessions Judge's

Court is totally unfounded one, when it is nobody's case

that, the alleged robbery or attempt to robbery in the

house of the accused had taken place. The Sessions

Judge's Court, in order to strengthen its reasoning for

conviction of the accused, has presumed a possibility on its

own and attempted to show that the accused would have

failed even if he had taken such a plea also. Since it was

nobody's case that the alleged robbery or attempt to

robbery had taken place, the Sessions Judge's Court ought

not to have presumed such a possibility and given its

observation on the same.

55. Thus, the prosecution which primarily ought to

have discharged its burden of establishing that accused

and the deceased were living together, more particularly,

on the date of the incident, as such, certain facts were

exclusively to the knowledge of the accused, ought not to

have expected the accused to explain the circumstances

which had led to the murder of his wife Meenaxi. Thus, Crl.A.No.200104/2017

the application of Section 106 of the Evidence Act and

expecting the accused to discharge the alleged burden was

totally uncalled for, in the facts and circumstance of the

present case.

However, the Sessions Judge's Court, even after

noticing that, except the official witnesses, all other

material and important witnesses, including the parents of

the deceased, the mother of the accused, the son of the

accused and all the alleged eye witnesses have not

supported its case even to a smallest extent, has still

erroneously invoked Section 106 of the Evidence Act and

held the accused guilty of the alleged offence.

56. Since the said finding of the Sessions Judge's

Court, now having been proved to be erroneous and since

it has to be necessarily held that the prosecution has failed

to prove the alleged guilt against the accused, the

judgment of conviction and order on sentence passed by

the Sessions Judge's Court under appeal deserves to be Crl.A.No.200104/2017

reversed and the accused deserves to be acquitted of the

alleged offence.

Accordingly, we proceed to pass the following:

ORDER

[i] The appeal stands allowed;

[ii] The judgment of conviction and

order on sentence dated 30-12-2016, passed

by the learned IV Additional Sessions Judge,

Vijayapura, in Sessions Case No.39/2016,

holding the accused/appellant guilty of the

offence punishable under Section 302 of the

Indian Penal Code, 1860, stands set aside;

           [iii]    The     accused     -    Siddappa      S/o.

     Sharanappa        Samagar,       Age:   40   years, Occ:

Coolie, R/o. Tenihalli, Tq: Indi, Dist: Vijayapura,

stands acquitted of the alleged offence

punishable under Section 302 of the Indian Penal

Code, 1860;