Karnataka High Court

Manjunatha vs The State Of Karnataka on 8 April, 2024

                            -1-
                                      CRL.A No. 2128 of 2018



     IN THE HIGH COURT OF KARNATAKA AT BENGALURU
          DATED THIS THE 08TH DAY OF APRIL, 2024
                         PRESENT
     THE HON'BLE MR JUSTICE SREENIVAS HARISH KUMAR
                            AND
            THE HON'BLE MR JUSTICE S RACHAIAH
          CRIMINAL APPEAL NO. 2128 OF 2018 (C)
BETWEEN:
1. MANJUNATHA
   S/O RAMASWAMY
   AGED ABOUT 33 YEARS
   OCC: AGRICULTURIST
   R/O HOSAKOPPA
   SHIVAMOGGA - 577 201.

2.   SMT. SUNEETHA
     W/O CHANDRASHEKARA
     AGED ABOUT 41 YEARS
     OCC: HOUSEHOLD WORK
     R/O YOGIMALAI, THIRTHAHALLI TQ
     SHIVAMOGGA - 577 232.

     (NOW IN JUDICIAL CUSTODY)
                                                ...APPELLANTS
(BY SRI. N R KRISHNAPPA, ADVOCATE)

AND:
   THE STATE OF KARNATAKA
   MALUR POLICE STATION
   THIRTHAHALLI CIRCLE
   SHIVAMOGGA DISTRICT - 577 232.

     (REPRESENTED BY STATE PUBLIC PROSECUTOR,
     HIGH COURT BUILDINGS, BENGALURU - 560 001.)
                                              ...RESPONDENT
(BY SRI. VIJAYAKUMAR MAJAGE, SPP-II)

     THIS CRL.A FILED U/S.378(4) OF CR.P.C PRAYING TO SET
ASIDE THE ORDER OF CONVICTION AND SENTENCE DATED 09-10-
2018 PASSED BY III ADDITIONAL SESSIONS JUDGE, AT
SHIVAMOGGA IN SESSIONS CASE NO. 222/2016, CONVICTED
APPELLANTS/ACCUSED NOS.1 AND 2 FOR THE OFFENCES
PUNISHABLE UNDER SECTIONS 302, 201 R/W 34 IPC AND ETC.,
                              -2-
                                      CRL.A No. 2128 of 2018



DATE ON WHICH THE APPEAL WAS
RESERVED FOR JUDGMENT                      05.03.2024

DATE ON WHICH THE JUDGMENT
WAS PRONOUNCED                             08.04.2024


      THIS CRIMINAL APPEAL HAVING BEEN HEARD AND
RESERVED, COMING ON FOR PRONOUNCEMENT OF JUDGMENT, THIS
DAY, S. RACHAIAH J, DELIVERED THE FOLLOWING:-



                         JUDGMENT

1. This appeal arise out of the judgment of conviction

dated 04.10.2018 and order on sentence dated 09.10.2018 in

S.C.No.222/2016 on the file of the III Additional Sessions

Judge, Shivamogga, by which the Trial Court recorded the

conviction of the accused Nos.1 and 2 / appellant Nos.1 and 2

for the offences punishable under Sections 302, 201 r/w 34 of

Indian Penal Code (for short 'IPC') and sentenced them to

undergo imprisonment for life and directed accused No.1 to pay

fine of Rs.1,00,000/- and accused No.2 to pay Rs.25,000/-, in

default, to undergo further simple imprisonment for one year

for the offence under Section 302 r/w 34 of IPC. For the

offence under Section 201 of IPC, accused Nos.1 and 2 were

sentenced to undergo simple imprisonment for 7 years and fine

of Rs.5,000/- each, in default, to undergo further simple

imprisonment for 6 months.

Further, the Trial Court recorded conviction of accused

No.2 / appellant No.2 for the offence punishable under Section

203 of IPC and sentenced to undergo simple imprisonment for

2 years and to pay fine of Rs.5,000/-, in default, to undergo

simple imprisonment for 6 months. All the sentences were

ordered to run concurrently.

2. The ranks of the parties in the Trial Court will be

considered henceforth for convenience.

THE PROSECUTION CASE:

3. Briefly stated facts of the case are that on

18.09.2014 accused No.2 being the wife of the deceased filed a

complaint regarding missing of her husband. According to her,

her husband was found missing since 02.09.2014. A case

came to be registered by the jurisdictional police and started

investigation. When the investigation was under progress, the

family members of the deceased were suspecting the

involvement of accused Nos.1 and 2 in causing disappearance

of the deceased. On 29.04.2016, PW.7 and his mother learnt

that accused No.1 was present in the house of accused No.2.

On receiving the said information, PW.7 and his mother went to

the house of accused No.2 and knocked the door. The accused

No.2 opened the door and PW.7 saw that accused No.1 was

inside the house. When it was enquired as to why accused

No.1 was present, they did not receive any satisfactory answer.

The presence of accused No.1 was brought to the knowledge of

jurisdictional police. On instructions, the accused No.1 was

made to sit in the house till the arrival of the police. The

jurisdictional police came to the spot, took accused No.1 into

custody, and started the investigation after receiving the

complaint. After conducting the investigation, submitted the

charge sheet.

4. To prove the case of the prosecution, the

prosecution has examined 17 witnesses i.e., PW.1 to PW.17,

and got marked Ex.P1 to Ex.P33 and also identified M.O.1 to

M.O.9.

5. The Trial Court recorded the conviction after

appreciating the oral and documentary evidence on record,

opined that even though the entire case rests on circumstantial

evidence, every circumstance point towards the accused and

every chain of circumstances has been proved by the

prosecution. The Trial Court mainly relied on the following

circumstances namely,

(i) Recovery of the dead body at the instance of

accused No.1.

(ii) The death of the deceased was homicidal.

(iii) Motive for commission of said murder and

subsequent conduct of the accused.

6. We have heard Shri N.R.Krishnappa, learned

counsel for the appellants, and Shri Vijayakumar Majage,

learned SPP-II for the respondent - State.

Submission of learned counsel for appellants:

7. Shri N.R.Krishnappa, learned counsel for appellants,

submitted that the findings of the Trial Court in recording the

conviction are erroneous and not proper, hence, the said

impugned judgment has to be set aside.

7.1 It is further submitted that the delay in lodging the

complaint by accused No.2 regarding missing of her husband

and the second complaint lodged by the complainant after the

lapse of two years is fatal to the case of the prosecution. The

Trial Court failed to take note of the said aspect and recorded

the conviction which is perverse and illegal.

7.2 It is further submitted that the dead body was

recovered in an open place, therefore, there is no sanctity for

the recovery and it cannot be termed that the dead body was

recovered exclusively at the instance of accused No.1.

However, the Trial Court failed to take note of the said aspect

and opined that the recovery of dead body is proved which is

not correct and proper.

7.3 It is further submitted that the Tahsildar and the

daughter of the deceased have not been examined to

substantiate the inquest and the DNA report. Such lacunae

should have been extended in the form of benefit of doubt in

favour of the accused. Not extending such benefit which

resulted in passing the impugned judgment.

7.4 It is further submitted that accused No.2 has been

arraigned as one of the accused on the strength of the

voluntary statement of accused No.1. The prosecution has not

proved the case of illicit relationship between accused Nos.1

and 2. Mere making a statement before the police by accused

No.1 regarding the involvement of accused No.2 in the

commission of murder of the deceased would not sufficient to

array the wife of the deceased as accused No.2. The statement

of the accused No.1 in implicating the accused No.2 would hit

by Section 25 of the Indian Evidence Act. The Trial Court ought

not to have acted upon the statement of accused No.1 in

recording the conviction of accused No.2. Making such

submission, learned counsel for appellants prays to allow the

appeal.

Submission of learned SPP-II for respondent - State

8. Learned SPP-II justified the judgment of conviction

passed by the Trial Court and submitted that the motive for the

murder has been established by the prosecution. The motive

for murder is that accused No.1 who was having illicit

relationship with accused No.2. The said illicit relationship was

known to the deceased. The deceased informed the panchayath

regarding illicit relationship, and the panchayathdars advised

accused No.1 to stop the said illicit relationship with accused

No.2. Being insulted by the said act of the deceased, both

accused Nos.1 and 2 hatched a plan to eliminate the deceased.

Accordingly, both accused Nos.1 and 2 killed the deceased and

buried the dead body in the backyard of the house of accused

No.2.

8.1 It is further submitted that the buried body was

recovered on the voluntary statement of accused No.1. It was

exhumed and sent for FSL and a DNA test had also been

conducted. The bones, which were found in the pit, were

subjected to DNA test by taking the blood sample of the

daughter of the deceased and the DNA profile indicates that the

bones which were found in the place where the dead body was

buried were of human origin and the DNA profile matched with

the DNA profile of the daughter of the deceased.

8.2 It is further submitted that the prosecution has

proved the motive, recovery of the dead body, and conduct of

the accused after committing the murder of the deceased.

Therefore, the findings recorded by the Trial Court in convicting

the appellants are appropriate and interference with the said

findings may not be proper. Making such submissions, learned

SPP-II prays to dismiss the appeal.

ANALYSIS AND REASONS

9. This Court being an Appellate Court, is empowered

to re-appreciate facts and law. In order to re-appreciate the

facts of the case, it is relevant to refer to the evidence of all the

witnesses. In the present case, PW.1 is the elder brother of the

deceased. CW.14 is his younger sister. PW.1 is a circumstantial

witness and he speaks about the illicit relationship between

accused No.1 and accused No.2. Further, he has stated that,

on 30.04.2016, the accused had disclosed the place where the

dead body of his younger brother was buried. After finding the

said dead body, the jurisdictional police received a complaint

from him and the said complaint is marked as Ex.P1.

9(a) PW.2 is an independent witness. He was asked to

be a witness to the spot mahazar and also witness to the

discovery of the dead body at the instance of accused No.1.

The mahazar which was drawn by the police is marked as

Ex.P4. He has supported the case of the prosecution.

9(b) PW.3 is a witness to Ex.P10 - inquest report,

supported the case of the prosecution.

9(c) Similarly, PW.4 is also a witness to Ex.P11 under

which the motorbike of accused No.1 was seized on

05.05.2016.

9(d) PW.5 is a witness to the illicit relationship between

accused No.1 and accused No.2. He is stated to be the witness

to the spot - cum - seizure mahazar. According to him, a

blanket, wire and gunny bag were seized in his presence.

9(e) PW.6 is an independent witness, he is said to have

informed the fact that the accused No.1 was in the house of

accused No.2 to the sister of the deceased on 29.04.2016. On

receiving the said information, CW.1, CW.10, CW.11 and

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himself had been to the house of accused No.2 and found that

accused No.1 was inside the house.

9(f) PW.7 is the nephew of the deceased. He stated that

he was going to work with Subramani, who is the elder brother

of accused No.1. He speaks about the illicit relationship

between accused No.1 and accused No.2. On 29.04.2016, at

about 04.30 a.m., after receiving the information that accused

No.1 was with accused No.2, PW.7 went to the house of

accused No.2 and knocked at the door. The accused No.2

opened the door and PW.7 found accused No.1 inside the

house. After seeing accused No.1, he informed the police. The

police went to the place and took the accused No.1 into custody

at about 05.30 a.m. On voluntary statement of accused No.1,

the place where the dead body of his maternal uncle was

buried, was disclosed. He has supported the case of the

prosecution.

9(g) PW.8 is the Doctor who is said to have conducted

the post-mortem and submitted the report as per Ex.P12.

9(h) PW.9 is the Assistant Professor in SIMS,

Shivamogga, who conducted the examination of the bones and

submitted the report as per Ex.P13.

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9(i) PW.10 is the Scientific Officer at RFSL, Davanagere,

who conducted the examination of the items collected by the

police which are marked as M.O.2, M.Os.7 to 9 and issued

certificates as per Ex.P15.

9(j) PW.11 is the Scientific Officer at FSL, Bengaluru,

conducted DNA profile of femur bone and mandible and issued

certificates as per Exs.P17 and P18.

9(k) PW.12 who was working as CPI at Thirthahalli, is

said to have conducted the investigation and submitted the

chargesheet.

9(l) PW.13 was the Police Constable attached to Maluru

Police Station, he was deputed to bring the items from Malali

Hospital. Accordingly, he brought the items and handed them

over to the Investigating Officer.

9(m) PW.14 was working as ASI in Maluru Police Station.

He stated to have received a written complaint on 30.04.2016

at 02.45 p.m. He is said to have registered FIR in Crime

No.67/2016. FIR is marked as Ex.P31.

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10. The entire case is based only on circumstantial

evidence. Now it is pertinent to refer to the judgment of the

Hon'ble Supreme Court in the case of NAGENDRA SAH v.

STATE OF BIHAR1, paragraph Nos.17 and 18 which read thus:

"17. As the entire case is based on circumstantial evidence, we may make a useful reference to a leading decision of this Court on the subject. In Sharad Birdhichand Sarda v. State of Maharashtra, this Court has laid down five golden principles (Panchsheel) which govern a case based only on circumstantial evidence. Para 153 reads thus : (SCC p. 185) "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    wherein        the    following
                    observations were made : (SCC p. 807,
                    para 19)

'19. ... Certainly, it is a primary principle that the accused must be and not merely may be

(2021) 10 SCC 725

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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."

18. Paras 158 to 160 of the said decision are also relevant which read thus : (Sharad Birdhichand Sarda, SCC pp. 186-87) "158. It may be necessary here to notice a very forceful argument submitted by the Additional Solicitor General relying on a decision of this Court in Deonandan Mishra v. State of Bihar, to supplement his argument that if the defence case is false it would constitute an additional link so as to fortify the prosecution case. With due respect to the learned Additional Solicitor General we are unable to agree with the interpretation given

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by him of the aforesaid case, the relevant portion of which may be extracted thus : (AIR pp. 806-07, para 9) '9. ... But in a case like this where the various links as started above have been satisfactorily made out and the circumstances point to the appellant as the probable assailant, with reasonable definiteness and in proximity to the deceased as regards time and situation, ... such absence of explanation or false explanation would itself be an additional link which completes the chain.'

159. It will be seen that this Court while taking into account the absence of explanation or a false explanation did hold that it will amount to be an additional link to complete the chain but these observations must be read in the light of what this Court said earlier viz. before a false explanation can be used as additional link, the following essential conditions must be satisfied:

(1) various links in the chain of evidence led by the prosecution have been satisfactorily proved, (2) the said circumstance points to the guilt of the accused with reasonable definiteness, and (3) the circumstance is in proximity to the time and situation.

160. If these conditions are fulfilled only then a court can use a false explanation or a false defence as an additional link to lend an assurance to the court and not otherwise. On the facts and circumstances of the present

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case, this does not appear to be such a case. This aspect of the matter was examined in Shankarlal case wherein this Court observed thus: (SCC p. 43, para 30) '30. ... Besides, falsity of defence cannot take the place of proof of facts which the prosecution has to establish in order to succeed. A false plea can at best be considered as an additional circumstance, if other circumstances point unfailingly to the guilt of the accused.' "

11. On careful reading of the dictum of the Hon'ble

Supreme Court, the five golden rules have to be justified in

recording the conviction, they are:

i) The circumstances from which the conclusion

of guilt is to be drawn should be fully

established.

ii) 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.

iii) The circumstances should be of a conclusive

nature and tendency.

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iv) They should exclude every possible

hypothesis except the one to be proved, and

v) 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.

12. In the present case, the following ingredients are

necessary to be looked into in the course of re-appreciation of

the evidence of all the witnesses, they are:

a) Motive, and

b) Discovery

MOTIVE:

13. The prosecution in order to prove the motive

examined PW.1 who is the elder brother of the deceased. PW.6

is an independent witness. PW.7 is the nephew of the

deceased. PW.5 states about the illicit relationship between the

accused Nos.1 and 2 and also supported the case of the

prosecution in respect of the seizure of blanket, wire and gunny

bag at the place where the dead body was buried.

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13(i) The evidence of PWs.1, 5, 6 and 7 is consistent with

regard to the illicit relationship that existed between accused

Nos.1 and 2. These witnesses have been subjected to cross-

examination, however, nothing has been elicited to discredit

their evidence regarding the illicit relationship.

DISCOVERY

14. Accused No.2 lodged a complaint on 18.09.2014.

The accused No.1 was found in the house of accused No.2 on

29.04.2016. PW.6 informed the presence of accused No.1 to

PW.7. PW.7 informed his mother and both went to the house

of accused No.2 around 4.30 a.m., and they saw that accused

No.1 was present in the house of accused No.2. PW.7 and

others were suspecting the involvement of accused No.1 in

causing disappearance of the husband of accused No.2. The

jurisdictional police were informed about the presence of

accused No.1 in the house of accused No.2. The police came to

the spot and took the accused No.1 to their custody. After

enquiry, the accused No.1 made a voluntary statement before

the police regarding the commission of murder and burying the

dead body. On disclosure made by accused No.1, the police

along with panch witnesses had been to the place where the

accused buried the dead body. PW.5 and others cleaned the

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place, after cleaning it, PW.5 and CW.8 dug the place and they

found that a gunny bag tied in the form of a bundle in the pit.

It was exhumed. PW.6 was also present and saw the dead

body which was in the form of a skeleton in the said pit.

Similarly, PWs.1 and 7 were also present and supported the

case of the prosecution regarding the presence of the skeleton

in the pit. The official witness - PW.8 who conducted post-

mortem is consistent in her evidence regarding the identity of

the dead body where it was buried. Further, she is consistent

regarding the discovery of the said place at the instance of

accused No.1. When the dead body of the deceased, which

was buried, was discovered at the instance of accused No.1,

accused No.1 had to explain how he had knowledge regarding

the presence of the dead body in the pit. Since he had not

explained under what circumstances the place of burial of the

said dead body was known to him, it is appropriate to draw an

adverse inference that accused Nos.1 and 2 have committed

the murder of the deceased.

14(i) Our view has been fortified by the judgment of the

Hon'ble Supreme Court in the case of Nagendar Sah v. State

Of Bihar, stated supra, in paragraph Nos.20, 21 and 22, which

read as under:

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"20. Now we come to the argument of the prosecution based on Section 106 of the Evidence Act. Section 106 reads thus:

"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.

Illustrations

(a) When a person does an act with some intention other than that which the character and circumstances of the act suggest, the burden of proving that intention is upon him.

(b) A is charged with travelling on a railway without a ticket. The burden of proving that he had a ticket is on him."

21. Under Section 101 of the Evidence Act, whoever desires any court to give a judgment as to a liability dependent on the existence of facts, he must prove that those facts exist. Therefore, the burden is always on the prosecution to bring home the guilt of the accused beyond a reasonable doubt. Thus, Section 106 constitutes an exception to Section 101. On the issue of applicability of Section 106 of the Evidence Act, there is a classic decision of this Court in Shambu Nath Mehra v. State of Ajmer which has stood the test of time. The relevant part of the said decision reads thus : (AIR p. 406, paras 10-13) "10. Section 106 is an exception to Section 101. Section 101 lays down the general rule about the burden of proof.

'101. Burden of proof.--Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts, must prove that those facts exist'.

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Illustration (a) to Section 106 of the Evidence Act says--

'(a) A desires a court to give judgment that B shall be punished for a crime which A says B has committed.

A must prove that B has committed the crime'.

11. This lays down the general rule that in a criminal case the burden of proof is on the prosecution and Section 106 is certainly not intended to relieve it of that duty. On the contrary, it is designed to meet certain exceptional cases in which it would be impossible, or at any rate disproportionately difficult, for the prosecution to establish facts which are "especially" within the knowledge of the accused and which he could prove without difficulty or inconvenience. The word "especially" stresses that. It means facts that are pre-eminently or exceptionally within his knowledge.

If the section were to be interpreted otherwise, it would lead to the very startling conclusion that in a murder case the burden lies on the accused to prove that he did not commit the murder because who could know better than he whether he did or did not. It is evident that that cannot be the intention and the Privy Council has twice refused to construe this section, as reproduced in certain other Acts outside India, to mean that the burden lies on an accused person to show that he did not commit the crime for which he is tried. These cases are Attygalle v. R. and Seneviratne v. R.

12. Illustration (b) to Section 106 has obvious reference to a very special type of case, namely, to offences under Sections 112 and 113 of the Indian Railways Act for travelling or attempting to travel

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without a pass or ticket or with an insufficient pass, etc. Now if a passenger is seen in a railway carriage, or at the ticket barrier, and is unable to produce a ticket or explain his presence, it would obviously be impossible in most cases for the railway to prove, or even with due diligence to find out, where he came from and where he is going and whether or not he purchased a ticket. On the other hand, it would be comparatively simple for the passenger either to produce his pass or ticket or, in the case of loss or of some other valid explanation, to set it out; and so far as proof is concerned, it would be easier for him to prove the substance of his explanation than for the State to establish its falsity.

13. We recognise that an illustration does not exhaust the full content of the section which it illustrates but equally it can neither curtail nor expand its ambit; and if knowledge of certain facts is as much available to the prosecution, should it choose to exercise due diligence, as to the accused, the facts cannot be said to be "especially" within the knowledge of the accused. This is a section which must be considered in a commonsense way; and the balance of convenience and the disproportion of the labour that would be involved in finding out and proving certain facts balanced against the triviality of the issue at stake and the ease with which the accused could prove them, are all matters that must be taken into consideration. The section cannot be used to undermine the well-established rule of law that, save in a very exceptional class of case, the burden is on the prosecution and never shifts."

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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."

On reading of the above-said dictum, it makes it clear that,

when a case is based on circumstantial evidence, the

prosecution has to prove all the circumstances and it should not

leave any circumstances as unproved. In other words, the

chain of circumstances must be established. Once the entire

chain of circumstances is established, the burden to disprove

the same lies on the accused if such circumstances are within

the knowledge of the accused, in terms of Section 106 of the

Indian Evidence Act.

15. It is needless to say that accused No.2 in the

present case was also involved not only as an abettor of the