Rangaswamy H H vs The State Of Karnataka
2023 Latest Caselaw 4420 Kant

                           1




 IN THE HIGH COURT OF KARNATAKA AT BENGALURU

       DATED THIS THE 14th DAY OF JULY, 2023

                       PRESENT

      THE HON'BLE MR JUSTICE K.SOMASHEKAR

                         AND

       THE HON'BLE MR JUSTICE RAJESH RAI K

          CRIMINAL APPEAL NO.77 OF 2017

BETWEEN

   RANGASWAMY H.H ,
   S/O HALAPPA,
   AGED ABOUT 28 YEARS,
   AGRICULTURE,
   R/O HALYAPPA GUDDADA
   SANTHENAHALLI VILLAGE,
   HOLALKERE TALUK,
   CHITRADURGA DISTRICT-577 526.
                                           ...APPELLANT

(BY SRI. S.B. PAVIN, ADVOCATE)

AND

   THE STATE OF KARNATAKA,
   BY CHITRADURGA RURAL POLICE
   STATION,
   CHITRADURGA DIST-577 501,
   BY STATE PUBLIC PROSECUTOR,
   HIGH COURT OF KARNATAKA,
   BANGALORE-560 001.
                                          ...RESPONDENT

(BY SRI. VIJAYAKUMAR MAJAGE, ADDL. SPP)
                                2




     THIS CRL.A. IS FILED U/S.374(2) OF CR.P.C PRAYING
TO SET ASIDE THE JUDGMENT AND ORDER DATED
08.12.2016 AND SENTENCE DATED 16.12.2016 PASSED BY
THE I ADDL. DIST. AND S.J., CHITRADURGA IN
S.C.NO.26/2016 - CONVICTING THE APPELLANT/ACCUSED
NO.1 FOR THE OFFENCE P/U/S 498(A), 302, 201, 203 OF IPC.

      THIS APPEAL HAVING BEEN HEARD AND RESERVED
FOR JUDGMENT ON 21.06.2023, COMING ON FOR
PRONOUNCEMENT OF JUDGMENT, THIS DAY, RAJESH RAI.K
J., DELIVERED THE FOLLOWING:


                            JUDGMENT

This appeal by the convicted accused No.1 is directed

against the judgment of conviction and order of sentence

dated 08.12.2016 passed in S.C.No.26/2016 by the 1st

Additional District and Sessions Judge, Chitradurga, convicting

the appellant/accused No.1 for the offence punishable under

Sections 498(A), 302, 201 and 203 r/w Section 34 of IPC and

sentenced him to undergo life imprisonment and to pay a fine

of Rs.10,000/- for the offence punishable under Section 302

of IPC and further, directed to undergo rigorous imprisonment

for a period of 3 years for the offence punishable under

Section 201 of IPC and to undergo rigorous imprisonment for

a period of 2 years for the offence punishable under Section

498(A) of IPC and also directing him to undergo rigorous

imprisonment for a period of 1 year for the offence punishable

under Section 203 of IPC. It is ordered that all sentence shall

run concurrently.

2. The factual matrix of the prosecution case is that

the Chitradurga Town Police registered the Crime in

Cr.No.419/2015 dated 23.09.2015 at about 17 hours for

"missing person" namely one Divya, on the basis of the

complaint of accused No.1 who is none other than her

husband. Later the police investigated the matter and

arrested accused No.1 and accused No.2-one Rathnamma,

who is none other than the mother of accused No.1 in the

aforesaid crime and registered the FIR against them for the

offence punishable under Sections 498(A), 302, 201 and 203

r/w Section 34 IPC based on the further complaint lodged by

PW.1-Gangadharappa, who is the father of the deceased

Divya. It is alleged in the complaint that his daughter Divya

had completed BBM and MBA in Manipal University and she

was unemployed. When she was studying at Holalkere,

accused No.1-Rangaswamy was also studying at Holalkere

Government College and they both fell in love. As such,

accused No.1 wanted to marry Divya. However, marriage of

Divya was fixed with one Suresh and during the course of

marriage talk, it was decided to give Rs.1,80,000/- and 10

thola of gold to the said Suresh as a dowry and accordingly,

engagement was performed. Later, the said marriage was

cancelled and the said Suresh informed the patents of the

deceased Divya that Rangaswamy i.e., accused No.1 had

taken Divya and requested them not to search her.

Accordingly, accused No.1 married Divya and after the

marriage, he was insisting his wife to get Rs.1,80,000/- which

was promised to give Suresh. As such, he used to quarrel with

the deceased and used to give mental and physical torture.

Even, he used to snatch Mangalsutra/Thali from his wife and

sent her to the parents house. The said deceased Divya was

working as a part time teacher in a Computer Coaching

School at Holalkere. It is the further case of the prosecution

that the deceased Divya came to the house of PW.1-

complainant for Gowri festival and informed PW.1, her mother

and her sister that her husband is torturing her to bring

money. Things stood thus, on 20.09.2015, accused No.1

telephoned Divya and asked her to come to home as he is not

well. Hence, PW.1 sent his daughter with one Raghu. Later

on 22.09.2015, the second daughter of PW.1 received the

SMS to her phone No.8495065602 from the mobile of Divya

stating that herself and her husband were going to hospital.

On the same day, at about 10.29 p.m., PW.2-Chitra, the

second daughter of PW.1 received another SMS to her mobile

that Divya is going with her old friend and not to search for

her. Hence, PW.1 started to call his daughter, however, she

did not received the call. Though, the second daughter of

PW.2-Chitra, continuously called his sister Divya but there

was no response. Later PW.1 came to know that on

23.09.2015, the accused gave a missing complaint before the

police stating that in the evening at about 7.00 p.m., Divya

went to bath room in private bus stand, Chitradurga, and she

has not returned and she was not traceable. However, PW.1

suspected his son-in-law that he must have done something

to his daughter and thereby, he requested to make an

enquiry. Hence, PW.1 along with others went to the house of

accused No.1-Rangaswamy and took him to the police station

wherein accused No.1-Rangaswamy revealed before the police

by way of confession statement that on 29.10.2015, the

accused, with an intention to take away the life of Divya, took

her to the Clinic of Dr.Sajjan and from there, he got an Indica

Car of his friend Nagaraja and on the way to Chitradurga, he

purchased a gunny bag in a provisional store of one Ramesh

at Holalkere and near Janakonda Village Gate, Anjaneyaswami

temple at about 8.00 p.m., he stopped the car and made his

wife Divya lay on the back seat and assaulted her and

inserted plastic covers in her mouth, strangulated with her

vale and thereby, removed her gold jewels and destroyed the

evidence by way of deposing the dead body by taking the

same in the said car on National Highway towards

Davanagere and near Ghoshala of Adhichunchanagiri bridge

built on Katralu lake, he stopped the car and put five stones in

the gunny bag and drowned the body in the said gunny bag

and threw the body in the lake and took away the jewels of

the deceased. Hence, the respondent-police conducted the

investigation, recovered the dead body of the deceased from

the place shown by the accused and thereafter, laid the

charge sheet against the accused for the afore-stated offences

before the committal Court.

3. On committal of the case to the Court of Sessions,

the learned Sessions judge framed the charges against

accused Nos.1 and 2 for the offences punishable under

Sections 302, 201, 203 and Section 498(A) r/w Section 34 of

IPC and the charges read over to the accused. However, the

accused denied the charges and pleaded not guilty for the

charges levelled against them and claims to be tried.

4. In order to bring home the guilt of the accused,

the prosecution in all examined 33 witnesses as PW.1 to

PW.33 and got marked as many as 65 documents as Exs.P1

to P.65 and also 19 material objects as MOs.1 to 19. After

closer of the prosecution evidence, the incriminating portion

of the evidence of the witnesses read over to the accused

under Section 313 of CR.PC and the accused denied the same.

However, the accused did not choose to examine any witness

on their behalf so also did not got marked any documents on

their favour.

5. After hearing learned counsel for both the sides

and also assessment of oral and documentary evidence

available on record, the learned Sessions Judge convicted the

accused for the aforesaid offences. The said judgment is

challenged under this appeal.

6. We have heard Sri. S.B.Pavin, learned counsel for

the appellant and Sri Vijayakumar Majage, learned Additional

SPP for the respondent-State and perusal of the trial Court

records.

7. Learned counsel for the appellant, vehemently,

contended that the judgment under this appeal suffers from

perversity and illegality and the learned Sessions Judge

convicted the accused without appreciating the evidence

available on record. According to the learned counsel though

the entire case rests upon circumstantial evidence, the

prosecution failed to prove the chain link of the

circumstances. In spite of that, the learned Sessions judge

convicted the accused without there being proper evidence on

record. Learned counsel would further contend that PW.1 i.e.,

the father of the deceased, PW.2-the younger sister of the

deceased, PW.6-the cousin brother of the deceased and

PW.7-one more cousin brother of the deceased and PW.8-the

relative of the deceased and PW.9-the relative of the

deceased, being the relatives of the deceased, are most

interested witnesses and their version though cannot be

believed for any purpose, without there being any

corroboration, the learned Sessions Judge totally relied on

these witnesses and convicted accused No.1 for the charges

levelled against him. Though all these witnesses deposed to

the extent of harassment meted out by the accused to his

wife for demand of dowry of Rs.1,80,000/-. However, in the

same time, all these witnesses are hearsay witnesses.

According to them, the deceased came to their house on the

eve of Ganesha festival and at that time, she informed them

about the alleged cruelty meted out by the accused. Hence,

the learned counsel submits that the learned Sessions Judge

has committed a grave error by convicting the accused for the

offence punishable under Sections 302, 201 and 203 of IPC.

8. Learned counsel would further contend that

learned Sessions Judge much relied on the evidence of above

witnesses and also the evidence of PW.11 and PW.13, who

are the witnesses for the inquest mahazar conducted on the

tank bund of the river where the accused shown the dead

body tied in the gunny bag. Hence, learned Sessions Judge

totally relied on the circumstance of recovery of the dead

body at the instance of the accused. Thus, learned counsel

would contend that the said recovery cannot be the base for

conviction for the reason that the respondent-police recorded

the voluntary statement of the accused forcibly in their

custody. Further, according to the learned counsel, the other

circumstance like last seen theory is totally not proved by the

prosecution and also the homicidal death of the deceased also

not proved beyond reasonable doubt since the dead body was

totally decomposed. Further, the identification of the dead

body by the family members is totally doubtful. Though the

doctor gave an opinion in the post mortem report as per

Ex.P33 that the death was caused by strangulation, the said

opinion was not based on the examination of the dead body

since the hyoid bone and the thyroid bone were totally

dislocated. Hence, without examining the same, the doctor

cannot come to the conclusion that the death was by way of

strangulation. Hence, according to the learned counsel, the

homicidal death of the deceased also not proved by the

prosecution. The learned Sessions Judge much relied on the

SMS said to have been sent by accused No.1 from the mobile

of the deceased to PW.2-the sister of the deceased. The said

message along with the mobile was seized and marked as

MO.4 by the Investigation Officer. Though the recovery of said

MO.4 supported by the witnesses i.e., PW.2 and PW.20 as per

Ex.P4, the same cannot be relied for the reason that the

prosecution failed to produce any purchase receipt of the

mobile belongs to the deceased. As such, the said

circumstance also not proved beyond reasonable doubt.

9. Learned counsel would further contend that the

recovery of other material objects i.e., MOs.1 to 13 under

Ex.P19 was not fully supported by the pancha witness-PW.16.

As such, the prosecution also failed to prove the said aspect.

Accordingly, learned counsel would contend that since the

case rests on the circumstantial evidence, the prosecution has

failed to prove beyond the reasonable doubt. As such, the

judgment challenged herein is liable to be set aside.

10. Per contra, Sri Vijayakumar Majage, learned

Additional SPP, vehemently, contended that the judgment

under appeal does not suffers from any perversity or illegality

and the same has been on the evidence available on record

and the learned Sessions Judge rightly convicted the accused

for the charges levelled against them since the prosecution

proved its case beyond the reasonable doubt. He would

further contend that accused No.1 after marrying the

deceased, started to harass her both physically and mentally

by forcing her to bring a sum of Rs.1,80,000/- from her

parental house and as such, he used to assault her. The said

aspect was revealed by the deceased to her parents, sister

and other relatives. He further contended that before the

incident, she visited her parents house on the eve of Ganesh

Festival and she clearly stated about the harassment meted

out by her husband to bring the amount of Rs.1,80,000/-. To

that effect, PW.1, PW.2, PW.8, PW.9 and PW.10 categorically

deposed in their evidence that the accused used to harass the

deceased both physically and mentally. As such, the

prosecution proved the said aspect beyond reasonable doubt.

Hence, according to the learned Additional SPP, the motive for

the incident is that the accused forced the deceased to bring

dowry amount of Rs.1,80,000/- from her parental house.

When the deceased showed her inability, the accused hatched

a conspiracy to commit her murder. Hence, the prosecution

also proved the motive for the commission of the crime.

11. The next important circumstance which the

prosecution relied is that the recovery of the dead body at the

instance of accused No.1 from the tank bund of Katrala river.

Accused No.1 led the Investigating Officer and the witnesses

to the tank bund of Katrala river and showed the gunny bag

wherein the dead body of the deceased was found. Hence, the

major circumstances of recovery of dead body at the instance

of accused No.1 played a vital role to prove the guilt of the

accused. Further, on examination of the dead body, the

doctor clearly gave his opinion that the death is by

strangulation as per Ex.P33. Hence, according to the learned

Additional SPP, the prosecution has proved the homicidal

death of the deceased. Further, the one more important

circumstance the prosecution proved beyond reasonable

doubt is the recovery of MO.4 i.e., the SMS sent by accused

No.1 on the date of incident to the mobile of PW.2 stating that

the deceased went along with his old boy friend. The said SMS

along with the mobile marked as MO.4 and the same was

seized under Ex.P4 and the said mahazar was supported by

PW.2 and PW.20. Even otherwise, the conduct of accused

No.1 creates a clear doubt that after committing the murder

of his wife/deceased, accused No.1 himself lodged a missing

complaint as per Ex.P66 stating that his wife was missing

from 22.09.2015. Hence, lodging of said missing complaint by

the accused is only to mislead the investigation. That aspect

of the matter also plays important role. Learned Additional

SPP also states that the hearsay witnesses also clearly

supported the case of the prosecution and the gold ornaments

of the deceased, which was recovered at the instance of

accused No.1 and pledged by him before the pawnbroker,

were identified by PW.1 and PW.2 i.e., the father and the

sister of the deceased. Hence, according to the learned

Additional SPP, the prosecution proved all the circumstances

and as such, the learned Sessions Judge rightly convicted

accused No.1 for the charges levelled against him. He would

further contend that even otherwise, accused No.1 failed to

give any explanation in respect of missing of his wife. Since

the same was in his special knowledge, he is duty bond to

explain the same under the provisions of 106 of Indian

Evidence Act. Hence, the learned Additional SPP prays to

dismiss the appeal.

12. We have bestowed our anxious consideration on

the oral and documentary evidence placed before us and also

meticulously perused the material available on record

including the trial Court records.

13. In the facts and circumstance of the case, in the

light of submissions made on both the sides, the points that

would arise for our consideration are:

1) Whether the judgment under the appeal suffers from any perversity or illegality? and

2) Whether the learned Sessions Judge justified in convicting accused No.1 for the offence punishable under Sections 498(A), 302, 201 and 203 r/w Section 34 of IPC?

14. This Court being the Appellate Court, in order to

re-appreciate the entire material on record, it is relevant to

consider the entire prosecution witnesses and the documents

relied upon. A cursory glance of the evidence available on

record are as under:

i. PW.1-Gangadharappa, who is none other than the

father of the deceased Divya, lodged the complaint. He

deposed that his daughter Divya married accused No.1 on

02.12.2013 before Sub Register Office, Chitradurga and for

one year, he did not allowed her into his house. Later, his wife

allowed her to enter his house. He further deposed that

accused No.1 was insisting Divya to bring money from the

parental house and several panchayaths were taken place on

that aspect. He further deposed that on 22.09.2015, his

younger daughter received SMS to her mobile from the

deceased Divya stating that she is going with her old boy

friend. Thereafter, he made an attempt to search Divya and

finally, himself and his boys chased accused No.1, caught him

and handed over to the police wherein, he gave voluntary

statement as per Ex.P1 and he showed the dead body of the

deceased and so also deposed about the incident.

ii. PW.2-Chitra, the young sister of the deceased

Divya reiterated the version of PW.1 and deposed that on

22.09.2015 at about 4.25 p.m., she received a SMS from the

mobile of her sister Divya stating that accused No.1 is not

well and she accompanied him to the hospital. Later, at about

10.30 p.m., she received one more message that she is going

with her old boy friend. As such, the complaint was lodged

and subsequently, she came to know that the accused

committed the murder of his sister.

iii. PW.3-Chetan is the circumstantial evidence. He

turned hostile to the prosecution case.

iv. PW.4-Khadirulla @ Ashu is the friend of accused

No.1 and also the circumstantial witness. He turned hostile to

the prosecution case.

v. PW.5-Jayaram is the friend of PWs.3 and 4. He

turned hostile to the prosecution case.

vi. PW.6-M.R.Raghu is the cousin brother of Divya.

He deposed that he dropped the deceased Divya to the house

of accused No.1 on his motor cycle after the Gowri festival.

vii. PW.7-Prakesh is one more cousin brother of PW.1.

He deposed that when he met Divya at Holalkere, she

informed that she is not happy and she has no peace since

her husband was torturing her to bring dowry. After one

month, he came to know about the incident and he went to

Katrala river and the accused showed the gunny bag and he

identified the photo as per Ex.P10.

viii. PW.8-Gayithramma is the relative of the

deceased. She informed that the deceased Divya informed her

about the harassment meted out by accused No.1 to bring

Rs.1,80,000/-.

ix. PW.9-Shivappa is also the relative of deceased.

He deposed about handing over of accused No.1 to the police

after lodging the missing complaint.

x. PW.10-Vijayamma is the neighbour of PW.1. She

deposed about the marriage solemnized between the

deceased and accused No.1.

xi. PW.11-Manjunath is the witness for the inquest

panchanama-Ex.P11. He deposed about the mahazar drawn

on the bank of the river and accused No.1 showed the gunny

bag and the dead body was inside the gunny bag.

xii. PW.12-Naveen is also the another pancha witness

for the inquest mahazar-Ex.P11.

xiii. PW.13-Manjunath is the younger brother of PW.1.

He also deposed about the harassment meted out by the

accused to the deceased for demand of dowry and the seizure

of the dead body as per the voluntary statement of accused

No.1 under mahazar-Ex.P11.

xiv. PW.14-Jayappa is also a witness for recover of the

dead body under Ex.P11-mahazar and he identified the

photos as per Exs.P2 and P3.

xv. PW.15-Mansur Ahammed is a witness for Ex.P18-

Mahazar. He identified the photos of accused No.1 in the

police station as per Exs.P14 to P17.

xvi. PW.16-Sundresh is a witness for Ex.P19-mahazar.

He identified MO.1 to MO.13 i.e., the clothes and the gold

ornaments of the deceased in the police station.

xvii. PW.17-Eshwarappa identified the photos which

are taken in the car belongs to accused No.1.

xviii. PW.18-Manjunath and PW.19-Jagalurappa are the

panch witnesses for Ex.P23-seizure mahazar of the jewels and

the photographs of the same are produced and marked as per

to Exs.P24 to P27. However, these witnesses stated that

police have not seized the jewels in front of them.

xix. PW.20-Nagaraja-the neighbour of PW.1 is the

witness to Ex.P14 i.e., seizure of the mobile-MO.14 belongs to

PW.2 and the SMS sent by accused No.1 from the mobile of

deceased.

xx. PW.21-Kiran is a witness for Ex.P23 that is the

recovery of the jewels.

xxi. PW.22-Nagaraju is the friend of accused No.1 and

the owner of car bearing registration No.KA-16-B-7688 in

which, the accused allegedly took the deceased and

committed the murder and thereafter, thrown the dead body

to the river. He identified the seizure mahazar of the car as

per Ex.P22.

xxii. PW.23-Ramesh is the owner of the provisional

store from where accused No.1 purchased the gunny bag.

However, this witness not fully supported the case of

prosecution.

xxiii. PW.24-Dr.Nagaraj, working in District Hospital,

Chitradurga, conducted the post mortem over the dead body

on 29.10.2015 and according to him, the death is due to

strangulation and he issued the report as per Ex.P33 i.e., the

Post mortem report, Ex.P34 FSL report, Ex.P35 Pathology

report. According to him, ligature marks were present on the

dead body.

xxiv. PW.25-Hanumanthappa is the Branch Manager of

Manipura Gold Finance where the accused pledged the gold

ornaments of the deceased after committing the murder and

the same was recovered under the mahazar-Ex.P36.

xxv. PW.26-Annapurnamma, the wife of PW.1,

reiterated the version of PW.1.

xxvi. PW.27-Manjula, the ASI of District Town Police,

Chitradurga received missing complaint lodged by accused

No.1 on 23.09.2015 as per Ex.P39 and registered the case in

Crime No.419/2015 and subsequently, she apprehended

accused No.2 on 30.10.2015.

xxvii. PW.28-Vijiya Kumar is the pancha witness for

Ex.P13 mahazar i.e., the recovery of the dead body at the

instance of accused No.1.

xxviii. PW.29-Nagaraju is the CPI of Chitradurga Rural

Police. He conducted the investigation partially by recording

the voluntary statement of the accused and also obtained the

call register of the mobile phone of accused No.1 as per

Ex.P46 and he laid the charge sheet against the accused.

     xxix. PW.30-Mohan           Kumar.T.M,        the    PSI    of

Nayakanahatti      Police   Station   recorded      the   voluntary

statement of accused No.1 as per Ex.P47. Thereafter, he sent

requisition to the learned Magistrate to permit to insert

Section 498(A), 302 and 201 of IPC in Crime No.419/2015

i.e., the missing complaint lodged by the accused.

xxx. PW.31-Ravi Kumar is the Head Constable who

transmitted the FIR Crime No.419/2015 to the learned

Magistrate.

xxxi. PW.32-N. Satish, the PSI of Chitradurga Rural

Police, received FIR in Crime No.419/2015 and handed over

the documents to the Investigation Officer i.e., PW.29.

xxxii. PW.33-Sanna Thammapayya Odeyar is the Police

Inspector of Chitradurga town police, who partially

investigated the case between 29.10.2015 to 01.12.2015 by

recovering the dead body of the deceased. Based on the

voluntary statement of accused No.1, they drew mahazar-

Ex.P13, also seized the car, jewels and mobile phone of the

accused.

15. A careful perusal of the evidence of above

witnesses, though the case totally rests on circumstantial

evidence, as far as the death of the deceased is concerned, to

prove the same as homicidal one, the prosecution relied the

evidence of PW.24-Dr.Nagaraj and the post mortem report at

Ex.P33 wherein, the doctor, after examination of the dead

body, opined that the death is due to strangulation. Though

the said aspect was disputed by the learned counsel for the

accused that since the hyoid bone and thyroid bone were

dislocated, the doctor cannot opined that the death is due to

strangulation without examining the hyoid bone and the

thyroid bone. But the doctor being the expert and who

conducted the autopsy over the dead body, his evidence

cannot be doubted when there is sufficient corroboration of

the evidence of witnesses PW.1, PW.2, PW.8, PW.9 and

PW.10. Admittedly, the dead body was recovered after one

month from the date of incident, there is every possibility of

dislocation of the thyroid bone and hyoid bone. The said

opinion of the doctor-PW.24 coupled with the histopathology

reports-Ex.P35. After those reports, the doctor gave the

opinion even by conducting the post mortem over the dead

body. The evidence of doctor PW.24 coupled with the

evidence of the witnesses i.e., PW.11-Manjunath and PW.12-

Naveen and also CW.19-Jyothi-the wife of Manjunath clearly

goes to show that the dead body of the deceased was tied in

a gunny bag and the said gunny bag shown by accused No.1

on 29.10.2015 near the tank bund of Katrala river was

recovered. PW.11 and PW.12 also clearly deposed that they

have witnessed the mahazar-Ex.P11 i.e., the inquest mahazar

and found the dead body inside the gunny bag and later, the

same was removed from the gunny bag and the police drawn

the mahazar. Hence, an inference can be drawn that the dead

body was found inside the gunny bag, the death must be

homicidal one and after commission of the murder only, the

dead body was put inside the gunny bag and tied thereafter.

As such, by perusal of the doctor evidence i.e., PW.24 coupled

with the report as per Ex.P33 i.e., the opinion in respect of

the death and also the contents of Ex.P11 coupled with the

evidence of PW.11 and PW.12 who are the pancha witnesses

for the same, it is clear that the dead body was partially

decomposed. As such, the opinion of the doctor in the post

mortem report is that the neck bones were shifted due to

decomposition of the body. Further, the doctor, who

conducted the post mortem, clearly opined that on

examination those ligature marks were found in the neck part

and the ligature materials are made up pink coloured nylon

material with blue and pink coloured border with knot present

and measuring 141 cm x 94 cm in length and breath. On

twisting a ligature materials it corresponds to that ligature

marks. He opined that the complete ligature mark encircling

the neck measuring 33 cm x 3 cm which is situated 6 cm from

the chin and 6 cm below the right ear lobule and 6 cm from

the left ear lobule and 5 cm from the nape of neck are found

on the dead body. Therefore, it can be concluded that the

prosecution proved the homicidal death of the deceased

beyond reasonable doubt. Hence, the prosecution proved the

homicidal death of the deceased beyond reasonable doubt.

16. The next aspect arises for our consideration is

whether the appellant/accused No.1 is responsible for the

homicidal death of the deceased?

17. By careful perusal of the evidence adduced by the

prosecution, it is not in dispute that the deceased is none

other than the wife of accused No.1 and they were residing

together before her death. It is the case of the prosecution

that there was a dispute in their martial relationship since

accused No.1 was demanding dowry of Rs.1,80,000/- from

the parents of the deceased. Though PW.1, PW.2 and PW.6

deposed to that effect, they are the hearsay witnesses for the

same. According to them the deceased visited their house on

the eve of Ganesh festival and at that time, she informed

them about the harassment meted out by her husband.

however, these witnesses have not stated the exact date

when the deceased came to their house and informed about

the harassment meted out by her husband. The proximity

between the last meeting of the deceased with PW.1 and her

family members and her death is not clearly established by

the evidence of PW.1 and PW.2. Though PW.6-cousin brother

of the deceased deposed that after Gowri festival, he left the

deceased to the house of accused No.1 on his Motor Bike, but

in his cross-examination, he stated that he do not know

whether Divya is dead and also when he left the Divya to the

house of accused No.1. He also stated that the Divya had

good relation with accused No.1. Admittedly, there is not such

complaint lodged either by the deceased or by her parents in

respect of the alleged harassment meted out by accused No.1

to the deceased before her death. In such circumstance, in

our considered opinion, the prosecution failed to prove

beyond reasonable doubt the strained relationship between

accused No.1 and the deceased in respect of dowry demand.

Mere making some vague allegation against accused No.1 by

the family members itself cannot be termed as harassment

within the purview of Section 498(A) of IPC.

18. The next aspect of the matter is that, in this case,

accused No.1 himself lodged the complaint before the police

as per Ex.P66 on 23.09.2015 in the evening hours alleging

that his wife was missing from Chitradurga town private bus

stand. Based on the said complaint, the respondent police

registered the FIR for 'man missing' in Crime No.419/2015

dated 23.09.2015. Learned Additional SPP vehemently argued

that the accused No.1 instead of making any effort to search

his wife, he himself sent the SMS to PW.2-younger sister of

the deceased. The said conduct of accused No.1 itself shows

that he had such intention to mislead the investigation officers

and also the family members after committing the murder of

his own wife. But on careful perusal of the evidence of PW.1,

PW.7 and PW.9, these witnesses categorically deposed that

they themselves caught hold accused No.1 from his house

and taken him to the police station. Thereafter, the police

arrested him and based on his voluntary statement,

implicated him in the alleged crime. As far as the missing

complaint lodged by accused No.1 is concerned, the police did

not made any attempt either to search the deceased or to

enquiry accused No.1 to that effect to test the veracity of the

said complaint lodged by him. As far as SMS sent by accused

No.1 to PW.2 i.e., the younger sister of the deceased is

concerned, though the police alleged that in order to mislead

the investigation, accused No.1 sent the SMS from the mobile

of the deceased to PW.2 but in the same time, the police

failed to produced any such documents i.e., purchase receipt

of the mobile to substantiate the aspect that the said mobile

i.e., Mo.14 was belongs to the deceased or to accused No.1.

In such circumstances, adverse inference cannot be drawn to

accused No.1 merely based on the oral evidence of PW.1 and

PW.2.

19. Learned Additional SPP, vehemently, contended

that the prosecution proved the fact during the course of

investigation, accused No.1 voluntarily stated that he

committed the murder of his wife Divya and thrown the dead

body at Katrala river. Subsequently, accused No.1 taken the

police, PW.1, PW.2, PW.8 to PW.11 and PW.13 near Katrala

tank bund and on 29.10.2015 at about 3.30 p.m. to 5.00

p.m., in the presence of the witnesses i.e., PW.11, PW.12 and

CW.19 along with police officials, the mahazar was drawn as

per Ex.P13 on the Katrala tank bund in the presence of

PW.14-Jayappa and PW.28-Vijayakumar. The Investigating

Officer-PW.33 seized the gunny bag containing the dead body

of the deceased. Thereafter, the inquest mahazar was

conducted in the said spot as per Ex.P11 and PW.11-

Manjunath and PW.12-Naveen were present at that place.

Accordingly, CW.19-the Tahasildar was also present at that

point of time apart form the police officers. After drawing the

inquest mahazar, one more mahazar was drawn as per

Ex.P18 i.e., on 30.10.2015 at about 8:30 a.m. i.e., a place of

cart track leading towards Janakonda form National Highway-

13 Chitradurga-Holalkere road by the side of agricultural land

owned by one Shinappa, where the accused killed his wife by

throttling her neck and then he bought the dead body to

Katrala tank bridge where he threw the body packed in a

gunny bag to the tank bund. But, on careful perusal of the

evidence of PW.8, he categorically admitted in his evidence

that he came to know through some body that accused No.1

has pointed out the body in the tank bund road. As such, this

witness is a hearsay witness. PW.11, who is a witness for

inquest panchanamma as per Ex.P11, admitted in his

evidence that at 12.00 noon, he came to know the news

regarding the body in the tank bund and at 3.00 p.m., he

came to the tank bund and as such, the said witness also not

fully supported the case of the prosecution. PW.12-one more

witness for the inquest panchanamma deposed that he does

not know the contents of Ex.P11. Further, by careful perusal

of the spot sketch as per Exs.P42 and P43 drawn by Assistant

Engineer, clearly depicts that the dead body was found on the

tank bund of Katrala river. The said place was visible from the

bridge on the Katrala river since the said place is an open

area accesable to the public. In such circumstance, inference

cannot be drawn that accused No.1 alone known the said

place and it was only within his special knowledge as

contemplated under the provision of 106 of Indian Evidence

Act. When the recovery was in an open place, which is

accesable to the public, cannot be termed as the same is well

within the special knowledge of accused No.1 alone. It is

settled position of law that the scope of Section 27 of

Evidence Act is very limited and the recovery has to be

proved within the ambit of Section. 27 of the Evidence Act.

More over, accused No.1 lodged a missing complaint as per

Ex.P66 at the earliest point of time and the police did not

made any attempt to investigate in respect of the same and

the dead body was found in the open place after lapse of

several days in a decomposed condition. In such

circumstances, the recovery of the dead body at the instance

of accused No.1 i.e., based on his voluntary statement cannot

be termed as a major circumstance against him since, he

himself lodged the complaint about the missing of his wife. As

such, the said circumstances cannot be hold against accused

No.1

20. As far as the motive aspect is concerned, though

the prosecution relied the evidence of PW.1, PW.2, PW.7,

PW.9 and PW.10 that the accused was torturing the deceased

in the matrimonial home and insisting her to bring

Rs.1,80,000/- either paid or promised to be paid by PW.1 to

one Suresh but as discussed supra, by perusal of the evidence

of PW.1, PW.2, PW.7, PW.9 and PW.10, these witnesses have

not stated the exact date when the deceased came to their

house and informed about the harassment meted out by her

husband. The proximity between the last meeting of the

deceased with PW.1 and her family members and her death is

not clearly established by the evidence of PW.1 and PW.2.

Though PW.6-cousin brother of the deceased deposed that

after Gowri festival, he left the deceased to the house of

accused No.1 on his Motor Bike, but in his cross-examination,

he stated that he do not know whether Divya is dead and also

when he left the Divya to the house of accused No.1. He also

stated that the Divya had good relation with accused No.1.

Admittedly, there is not such complaint lodged either by the

deceased or by her parents in respect of the alleged

harassment meted out by accused No.1 to her before her

death. In such circumstance, in our considered opinion, the

prosecution failed to prove motive for the alleged offence

beyond all reasonable doubt. Further, by perusal of the

evidence of above witnesses, there are much contradictions,

inconsistency or embellishment are forth coming and that

definitely damage the prosecution case as held in the catena

of judgment by the Honble Apex Court including the case of

Tomaso Bruno and another vs. State of Uttar Pradesh

reported in (2015) 7 SCC 178.

21. Learned Additional SPP also contended that the

evidence of PW.21 depicts that accused No.1 borrowed the

loan amount from Manipuram Finance Limited, Chitradurga

branch by pledging 4 gold ornaments i.e., totally weighing

12.01 grams. Then on 31.10.2015, he repaid the loan amount

with interest and recollected the pledged gold ornaments.

According to him, he handed over the gold ornaments to

accused No.1 and to that effect, the photographs were

produced at Ex.P28 and he identified accused No.1 in the

police station. But on perusal of his cross-examination, this

witness deposed that the police inspector asked him to give

jewels which were on the table of Inspector and on the

instruction of inspector, he gave them to the persons pointed

out by the police i.e., accused No.1. Further, as far as PW.18

and PW.19, who are the pancha witness for Ex.P23 i.e.,

seizure mahazar of jewels, have not supported the case of the

prosecution and they categorically deposed that the police

have not seized the jewels in front of them and the police

took their signature without informing them. As such, the

seizure of gold jewels at the instance of accused No.1 also not

proved beyond reasonable doubt by the prosecution. As such

identification of those gold jewels by the family members i.e.,

PW.1 and PW.2, much evidentiary value cannot be attached.

22. As far as, the purchase of gunny bag is concerned

though PW.23 totally turned hostile and failed to identify

accused No.1. In such circumstances, the prosecution failed to

prove one more circumstance/chain link of the circumstances

to connect accused No.1 in crime.

23. In such circumstances, the Hon'ble Apex Court in

the Narendra Singh and another vs. State of MP reported

in (2004) 10 SCC 699 held that the suspicion however grave

may be, cannot take place of a proof. It is equally well settled

that there is a long distance between "may be" and "must

be". Hence, it is well known that the case based on

circumstantial evidence, piece of circumstances, however,

strong may be, it is well know that all the links in the chain

must be proved. In the case on hand, some of the vital

circumstances like last seen theory, the purchase of the

gunny bag by accused No.1, the recovery of the gold

ornaments at the instance of accused No.1 and also motive

for the alleged incident for the commission of the crime have

not been proved by the prosecution.

24. By careful perusal of evidence of PW.1, PW.2,

PW.7, PW.9 and PW.10, there are much contradictions,

omission and embellishment in their evidence. In such

circumstances, the Hon'ble Apex Court in the case of State of

Uttar Pradesh vs. Preetam and others reported in (2011)

11 SCC 286 held that while appreciating the evidence in a

criminal trial, the contradictions, inconsistencies,

exaggerations or embellishments found in the evidence of

material witness that benefit of doubt has to be extended to

the accused.

25. The Hon'ble Apex Court in the case of Shankar

vs. State of Maharashtra reported in 2023 SCC OnLine SC

268, by referring the cases of Sarbir Singh v. State of

Punjab reported in (1973) 2 SCC 793 and Sharad

Birdhichand Sarda vs. State of Maharashtra reported in (1984) 4

SCC 116, held in paragraphs 5, 6 and 8 as under:

"5. In the decision in Sarbir Singh v. State of Punjab, this Court observed and held thus:--

"5. ...But in a case based on circumstantial evidence neither the accused nor the manner of occurrence is known to the persons connected with the victim. The first information report is lodged only disclosing the offence, leaving to the investigating agency to find out the offender.

6. It is said that men lie but circumstances do not. Under the circumstances prevailing in the society today, it is not true in many cases. Sometimes the circumstances which are sought to be proved against the accused for purpose of establishing the charge are planted by the elements hostile to the accused who find out witnesses to fill up the gaps in the chain of circumstances. In countries having sophisticated modes of investigation, every trace left behind by the culprit can be followed and pursued immediately. Unfortunately it is not available in many parts of this country. That is why courts have insisted (i) the circumstances from which the conclusion of guilt is to be drawn should in the first instance be fully established; (ii) all the facts so established should be consistent only with the hypothesis of the guilty of the accused and should be

such as to exclude every hypothesis but the one sought to be proved; (iii) the circumstances should be of a conclusive nature; and (iv) the chain of evidence should not have any reasonable ground for a conclusion consistent with the innocence of the accused.

6. Further it was held therein as under:--

7. ...It has been impressed that suspicion and conjecture should not take the place of legal proof. It is true that the chain of events proved by the prosecution must show that within all human probability the offence has been committed by the accused, but the court is expected to consider the total cumulative effect of all the proved facts along with the motive suggested by the prosecution which induced the accused to follow a particular path. The existence of a motive is often an enlightening factor in a process of presumptive reasoning in cases depending on circumstantial evidence.

8. In the decision in Prakash v. State of Rajasthan, this Court took note of the following principles laid down regarding the law relating circumstantial evidence in Sharad Birdhichand Sarda v. State of Maharashtra:--

"153. 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 v. State of Maharashtra [(1973) 2 SCC 793] where the following observations were made:

19. ..."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,

(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.

154. These five golden principles, if we may say so, constitute the panchsheel of the proof of a case based on circumstantial evidence."

26. Hence, as per the dictum laid down by the Honble

Apex Court in the above cited judgments, by considering the

facts and circumstances of the case on hand, in our

considered view the prosecution failed to proved the guilt of

the accused beyond reasonable doubt. The golden rule that

runs through the web of criminal jurisprudence is that

presumption of innocence is a human right and based on the

evidence, if two views are possible, the view which favours

the accused should be upheld. Our view is fortified by the

judgment rendered in Narendra Singh's case stated supra.

27. In such circumstances, we are of the considered

opinion that the prosecution failed to the prove the guilt of

accused No.1 beyond all reasonable doubt. As such the

conviction held against accused No.1 is liable to be set aside.

28. Accordingly, we answer the points raised for

consideration and proceed to pass the following:

ORDER

i. The appeal preferred by the appellant/accused No.1 under Section 374 (2) of Cr.P.C. is hereby allowed.

ii. The judgment of conviction and order of sentence passed in S.C.No.26/2016 dated 08.12.2016 by the 1st Additional District and

Sessions Judge, Chitradurga is hereby set aside.

iii. The appellant/accused No.1 is hereby acquitted of the charges levelled against him.

iv. The appellant/accused No.1 is directed to be set at liberty forthwith, if he is not required in any other case.

v. The bail bond executed by the appellant stands cancelled and the fine amount, if any deposited, before the trial Court, the same shall be refunded to him on proper identification.

Sd/-

JUDGE

Sd/-

JUDGE

VM