Karnataka High Court
The State Of Karnataka vs Anantha on 22 April, 2024
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CRL.A No.1110/2018
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 22ND DAY OF APRIL, 2024
PRESENT
THE HON'BLE MRS JUSTICE K.S.MUDAGAL
AND
THE HON'BLE MR JUSTICE T.G. SHIVASHANKARE GOWDA
CRIMINAL APPEAL NO. 1110/2018 (A)
BETWEEN:
THE STATE OF KARNATAKA
BY THE CIRCLE INSPECTOR OF POLICE
KUSHALNAGAR CIRCLE
REPRESENTED BY STATE PUBLIC PROSECUTOR
HIGH COURT BUILDING
BENGALURU - 560 001 ...APPELLANT
(BY SMT.SOWMYA R, HCGP)
AND:
1. ANANTHA
S/O SHIVANNEGOWDA
AGED ABOUT 26 YEARS
Digitally signed
GOBBALLI VILLAGE
by PRABHU KONANUR HOBLI
KUMARA
NAIKA ARKALGUD TALUK
Location: High HASSAN - 573 102
Court of
Karnataka
2. SUMA
W/O SWAMYGOWDA
AGED ABOUT 26 YEARS
HOUSEWIFE
R/AT GOBBALLI VILLAGE
KONANUR HOBLI
ARAKALGUD TALUK
HASSAN - 573 102 ... RESPONDENTS
(BY SRI. SUNEEL S NARAYAN, ADVOCATE FOR R1;
SRI.HEMANTH KUMAR D, ADVOCATE FOR R2)
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CRL.A No.1110/2018
THIS CRIMINAL APPEAL IS FILED UNDER SECTION 378(1)(3)
CR.P.C PRAYING TO GRANT LEAVE TO APPEAL AND TO SET ASIDE
THE JUDGMENT AND ORDER OF ACQUITTAL DATED 01.03.2018
PASSED IN S.C.NO.47/2015, BY THE I ADDITIONAL DISTRICT AND
SESSIONS JUDGE, KODAGU AT MADIKERI, THEREBY ACQUITTING
THE ACCUSED-RESPONDENTS FOR THE OFFENCES PUNISHABLE
UNDER SECTIONS 302 AND 201 R/W 34 OF IPC.
THIS APPEAL COMING ON FOR FURTHER HEARING, THIS DAY,
K.S.MUDAGAL J., DELIVERED THE FOLLOWING:
JUDGMENT
"Whether the impugned judgment and order of acquittal
passed by the trial Court suffers patent illegality or perversity?"
is the question involved in this case.
2. Respondent Nos.1 and 2 were accused Nos.1 and 2
in SC No.47/2015 on the file of I Additional District and
Sessions Judge, Kodagu-Madikeri. Accused Nos.1, 2 and 3
were tried in the said case for the offences punishable under
Sections 302 and 201 read with Section 34 of IPC on the basis
of the charge sheet filed by Kushalnagar Circle Police Inspector
in Crime No.22/2015 of Kushalnagar Police Station.
3. Pending trial, accused No.3 died, therefore case
against him abated. For the purpose of convenience, the
parties are referred to henceforth as per their ranks before the
trial Court.
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4. The marriage of accused No.2 and deceased
Swamygowda was solemnized about 6 years prior to
16.01.2014. Out of the said wedlock, they got a daughter and
son. PW-3 is the elder brother and PWs-6 and 7 are the
parents of deceased Swamygowda.
5. Swamygowda left his house on 14.01.2013 at
05:00 pm saying that he is going to his parents house. On
16.01.2014 the father of accused No.2 found his dead body
near the land of one Rajegowda of Bandipalya with some
injuries on his left foot, right leg and on cheek. Therefore,
accused No.2 filed a complaint regarding unnatural death of the
deceased before Konanur Police Station based on which, the
UDR report as per Ex.P22 was registered by PW-25 in UDR
No.2/2014. Based on that, PW.25 conducted inquest on the
dead body of Swamygowda as per Ex.P8 in the presence of
PWs.14,15 and 17 the panchas. On his requisition, postmortem
on the dead body was conducted by PW.18 as per Ex.P11. The
body parts of the deceased were sent to R.F.S.L as per Ex.P12.
6. On 30.10.2014 i.e., closed to ten months PW.3 filed
complaint as per Ex.P2 before Police Inspector, Konanur police
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station alleging that accused No.2 had illicit relationship with
accused No.1 and to pursue the same, accused Nos.1 and 2
conspired to eliminate Swamygowda and they have committed
his murder. Based on Ex.P2, PW.27 registered FIR as per
Ex.P25. On completing the investigation, chargesheet was filed
against accused Nos.1 to 3.
7. The case of the prosecution in brief is as follows:
Accused Nos.1 and 2 due to their illicit relationship
conspired to commit murder of Swamygowda. For that, accused
No.1 hired accused No.3. It was further alleged that in
execution of such conspiracy accused Nos.1 and 3 who were
the friends of deceased Swamygowda on 15.01.2014 took him
on his motorbike bearing registration No.KA-12-H-2147 near
the compound of Sainik School situated near Harangi River.
Between 2:00 p.m and 2:30 pm they consumed liquor. Accused
Nos.1 and 3 administered the deceased insecticide laced liquor-
MO.1. Then they smothered him with MO.2 the towel, they
strangulated him using his own jerkin and committed his
murder. Then they carried the dead body on the motor bike of
the deceased and dropped the same near the land of Raje
Gowda. They robbed MO.3 the gold finger ring of the deceased.
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Thereby, they committed offence punishable under Sections
302, 201 read with Section 34 IPC.
8. The Trial Court on hearing the parties framed the
charges against the accused for the aforesaid offences. The
accused denied the charges and claimed trial. Therefore, trial
was conducted. In support of the case of the prosecution,
PWs.1 to 29 were examined. Exs.P1 to 30 and MOs1 to 7 were
marked.
9. During trial, accused No.3 was reported dead and
case against him was abated. That the accused after their
examination under Section 313 Cr.P.C did not lead any defence
evidence.
10. The Trial Court on hearing the parties, by the
impugned judgment and order acquitted the accused holding
that the case is based on circumstantial evidence and
circumstances set up by the prosecution were not proved by
cogent and consistent evidence. The State has preferred the
above appeal challenging the said judgment.
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11. Smt. Sowmya.R, learned HCGP reiterating the
grounds of the appeal submits that the prosecution has
established the circumstance of motive, the fact that the
accused and the deceased were last seen together and the
death was homicidal. The accused did not explain the said
circumstances. The Trial Court without proper appreciation of
the evidence and applicable law has erroneously acquitted the
accused. Therefore, the said judgment and order is liable to the
set aside.
12. In support of her submission, she relies on the
judgment of the Hon'ble Supreme Court in Kishore Bhadke Vs.
State of Maharashtra1.
13. Per contra, Sri Suneel S Narayan and Sri Hemanth
Kumar D, learned Counsel for respondents/accused Nos.1 and
2 submit that the case was based on the circumstantial
evidence. There was inordinate delay in filing the complaint.
Circumstance of motive set up by the prosecution was
demolished by the admission of the prosecution's own
witnesses namely the relatives of the deceased. Last seen
theory was also not satisfactorily proved. They further submit
(2017) 3 SCC 760
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that the death being homicidal was also not proved. The Trial
Court on judicious appreciation of the evidence and applicable
law has rightly acquitted the accused. There is no illegality or
perversity in the judgment and order. Thus, the appeal shall be
dismissed.
14. On considering the submissions of both side and on
examination of the material on record, the question that arises
for consideration is "Whether the impugned judgment and
order of acquittal suffers patent illegality or perversity
warranting interference of this Court?."
Analysis:
15. There is no dispute that the deceased Swamygowda
and accused No.2 were married six years prior to 14.01.2014.
For initial four years, they lived in the house of the father of
Swamygowda and they begot a daughter. Thereafter, they
shifted to the house of the father of accused No.2 and they
lived there for two years. During that time, they begot a son.
On 14.01.2013 at 5:00 p.m Swamygowda left his house on his
motor bike bearing registration No.KA.12-H-2147 saying that
he is going to his father's house for festival. His dead body was
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found on the next day by the father of accused No.2 near the
land of Rajeevgowda along with bike.
16. According to the prosecution, accused Nos.1 and 2
had illicit relationship with each other. Therefore, to eliminate
Swamygowda, they conspired to commit his murder and in
execution of such conspiracy accused No.1 hired accused No.3.
They had drink with him and accused Nos.1 and 3 took
Swamygowda on his motor bike near compound of Sainik
School, Kudige village, they administered him insecticide laced
liquor, smothered him using his jerkin, then strangulated him
using towel-MO.1 and committed his murder. Then they
dropped the dead body near the land of Raje Gowda.
17. There were no eyewitnesses to the incident. The
case of the prosecution was based on the circumstantial
evidence. The circumstances relied on by the prosecution are
as follows:
(i) Motive - Illicit relationship of accused Nos.1 and 2;
(ii) Accused and deceased were last seen together
before the deceased was found dead;
(iii) Death was homicidal one;
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(iv) Recovery of MOs.1 to 4 at the instance of the
accused; and
(v) Evidence of official witness.
18. It is the settle proposition of law that in an appeal
against the order of acquittal, the scope of interference is
limited. Unless it is shown that the impugned judgment and
order of acquittal suffers patent illegality or perversity, the
Appellate Court cannot interfere with such judgment. If on the
basis of the material on record, two views are possible, then
the view favorable to the accused has to be considered. By the
order of acquittal, the accused has double benefit namely the
initial presumption of innocence which is available to the
accused in the trial, secondly which is reinforced by the order of
acquittal. This view of ours is supported by the judgment of the
Hon'ble Supreme Court in Prem Singh Vs State of Haryana2. This
Court has to examine this matter in the light of the above
principles.
19. As already pointed out, the case was based on the
circumstantial evidence. The Hon'ble Supreme Court in Sharad
(2013) 14 SCC 88
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Birdhichand Sarda Vs. State of Maharashtra3 relying on several of
its earlier judgment laid down the guideline regarding the
appreciation of the evidence in a case which is based on the
circumstantial evidence.
20. In para No.153 of the said judgment relying on its
earlier judgment in Shivaji Sahabrao Bobade Vs. State of
Maharashtra's case it was held as follows [SCC para
19,p.807:SCC (Cri) p.1047]:
"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
(1984)4 SCC 116
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show that in all human probability the act must have been
done by the accused.
(Emphasis supplied)
21. In the light of the aforesaid judgment, the
prosecution was required to prove all the circumstances by
cogent and consistent evidence leading to the only hypothesis
guilt of the accused. If there was scope for explaining any of
circumstances or any other hypothesis, then the accused are
entitled to the benefit of acquittal.
Reg. Motive:
22. To prove the circumstance of motive, the
prosecution relied on the evidence of PW.3 the brother of the
deceased/complainant and PWs.6 and 7 the parents of the
deceased.
23. PW.3 in the complaint itself states that on learning
that accused No.2 is residing with accused No.1 in Mandya, he
went to Gobbali village where they lived together and from the
villagers he came to know that accused Nos.1 and 2 had undue
intimacy and accused No.2 was talking to accused No.1 on
phone. Therefore, he arrived at the conclusion that accused
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Nos.1 and 2 due to their illicit relationship have eliminated his
brother. The said allegation in the complaint was not based his
personal knowledge, that was based on the information given
by some villagers of Gobbali village. At least the names of
those villagers were not stated in the complaint. Complaint
itself was filed after about ten months of the incident. PW.3 in
his evidence also did not disclose the names of the said
villagers.
24. PWs.6 and 7 say that they do not know the cause of
death of the deceased. They have stated that during the stay of
accused No.2 and the deceased in the house of PWs.6 and 7,
their relationship was cordial. Admittedly, accused N0.2 herself
has filed UDR report. At that time, none of the aforesaid
witnesses whispered anything about the illicit relationship of
accused Nos.1 and 2. PW.3 in his cross-examination admits
that he never visited Gobbali village after the death of his
brother. That falsifies his statement in the complaint that after
the death of his brother, he visited the Gobbali village and the
villagers informed him about illicit relationship between accused
Nos.1 and 2.
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25. PW.25 who registered UDR report and conducted
inquest, in his cross-examination states that he enquired with
all the witnesses during inquest and recorded the statements
including PWs.3 and 7. He further admits that, those witnesses
stated that the relationship between accused No.2 and her
husband was cordial. By such evidence, motive circumstance
set up by the prosecution was demolished. Such admissions
coupled with delay in filing the complaint also creates doubt
about the motive circumstance set up by PW.3/prosecution.
Reg. Nature of death:
26. To prove that death was homicidal one,
prosecution relied on the evidence of PW.18 the Doctor who
conducted postmortem examination, the evidence of PW.21 the
Assistant Director of R.F.S.L, Mysuru, Exs.P12 and P16 R.F.S.L
reports.
27. According to the prosecution the death was caused
due to poisoning, smothering and strangulation. According to
PW.18 the doctor, the following injuries were found on the dead
body.
(i). Linear abrasion on the left cheek which
are ante mortem in nature.
(ii). Grased abrasions on middle of the left
leg.
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(iii). Grased abrasion covering the dorsum of
left foot and toes measuring an area of
about 6 c.m. x 4 c.m.
(iv). Grased abrasion on the dorsum of right
great toe and 2nd toe.
28. According to PW.18 only the linear contusions and
superficial abrasion in the inner aspects of lips were ante-
mortem in nature. Injuries No.2,3 and 4 were postmortem in
nature. The evidence of PW.18 and Ex.P11 show that ethyl
alcohol was present in the contents of stomach. Though she
opined that death was due to asphyxia as a result of
smothering and strangulation, in the cross-examination she
admits that no presence of poison was found in the stomach
contents as per R.F.S.L report Ex.P12. She admits that
asphyxia could be caused for many reasons and she has not
mentioned in Ex.P11 that the deceased suffered asphyxia with
any particular object or towel MO.2. In the cross-examination,
PW.18 admits that asphyxia can be caused to a person if he
chokes and there is a possibility of a person choking due to
consumption of alcohol. She further admits that injuries found
on the deceased could be caused if he slips or fall on the
ground.
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29. The evidence of the prosecution witnesses shows
that the deceased was an alcoholic. The case of the prosecution
itself is that accused Nos.1,3 and the deceased spent whole
night consuming alcohol. That is evident from the evidence of
PW.9 that the deceased was an alcoholic. PW.9 suggested that,
initially he came to know that the deceased died due to over
intoxication. The prosecution version is that the accused had
administered the insecticide laced liquor to the deceased. But
the evidence of PW.21 F.S.L expert and Ex.P12 R.F.S.L report
show that except ethyl alcohol, no other poison was detected in
the samples namely stomach, portion of lung, liver, Spleen and
kidney.
30. The above evidence completely rules out the theory
of accused administering insecticide laced liquor to the
deceased. Injury Nos.2 to 4/the external injuries shown in
postmortem report were postmortem wounds. That
improbabilised the theory of strangulation and smothering. As
against that the evidence on record probabilised the defence
theory that the deceased choked due to intoxication and fell
from motor bike and died and in that course he suffered the
injuries.
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Reg. Last seen circumstances:
31. It is settled principles of law that, conviction cannot
be based solely on the last seen theory. Even such last seen
theory shall be proximate to the time and place of the death.
To prove the last seen circumstance, the prosecution relied on
the evidence of PWs.8 to 11 and 13. PW.9 deposed that on
14.01.2024 at 4.30 p.m. he sighted accused Nos.1,3 and the
deceased together near Ramanathapura in front of Bar on a
motor bike. But dead body was found 16.01.2014 at 10.30 a.m
that is after about 1 ½ days. PW.9 admitted in his cross-
examination that he had no impediment to inform the police on
14.01.2014 itself about he sighting accused Nos.1,3 and
deceased together. He also admits that initially he came to
know that the deceased died due to excessive consumption of
alcohol. Though he claims that he has spoken to the father and
the brother of the deceased after the death, he had not
informed them about he sighting the deceased, accused Nos.1
and 3 together.
32. PW.13 claims that he sighted the deceased, accused
Nos.1 and 3 together on 15.01.2014 on 5.30 a.m. According to
him on 15.01.2014 at 5:30 a.m deceased, accused Nos.1 and 2
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came to his house on their way back from Periyapatna, they
had coffee and went away. But he also did not inform the police
soon after the dead body of the victim was found or during the
inquest mahazar about he sighting them together. He states
that he has given statements to the police after ten months of
the incident and he has not stated before them about deceased
and accused Nos.1 to 3 having coffee in his house.
33. PW.11 in his evidence states that deceased phoned
him on 15.01.2014 at 6:00 a.m to help him to get petrol at
Kudige petrol bunk. He has also not given statement regarding
that before Investigating Officer soon after the dead body was
traced. He denies having given statement before police about
the deceased calling him seeking help for getting petrol. There
was no proximity of time and place of the alleged sighting by
PW.11 and time and place of tracing the dead body.
34. PW.10 says that he met accused Nos.1 and 3 and
deceased on motor bike near Harangi dam, when they were
coming on motor bike from Harangi dam towards Kushalnagar
between 6:00 and 6:30 a.m. This witness also has not stated
either before the Investigating Officer or PWs.3, 6 and 7 soon
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after the dead body was traced about he sighting them
together.
35. PW.8 allegedly sighted the deceased, accused Nos.1
and 3 together on 15.01.2014 at 10:00 a.m at Chikkathuru.
PW.8 in the cross-examination admitted that when he met the
deceased there were many persons on the road, near school.
This witness admits in his cross-examination that he is the
relative of the deceased.
36. The aforesaid witnesses cited for last seen
circumstances were all close associates of PW.3 and they were
examined after ten months only for the purpose of
improvement. Further there was no proximity of time and place
between they allegedly sighting accused Nos.1 and 3 and the
deceased together and tracing of the dead body. Moreover,
motive circumstances and cause of death themselves were not
established. Therefore, the Trial Court rightly rejected the
evidence of the aforesaid witness regarding last seen
circumstances. The Trial Court relying on the judgment of the
Hon'ble Supreme Court in Vijay Shankar vs. State of
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Haryana4 and Chattar Singh and another vs. State of
Haryana5 held that when the motive and homicidal death are
not proved, such break in the link of chain of circumstances
weaken the last seen circumstances also.
Reg. Recovery of MOs.1 and 2
37. So far as recovery of MOs.1 and 2 at the instance of
the accused, as rightly pointed out by the Trial Court they are
allegedly seized after nine months of the incident. The Trial
Court justifiably held that the said area was heavy rain prone
area and possibility those articles remaining there i.e., river
bank for nine months, was doubtful. Therefore, the said
circumstances did not inspire the confidence of the Court.
Reg. Recovery of MOs.3 to 6
38. MO.3 to 6 claimed to have been seized at the
instance of accused No.2 from her house. Since they were her
belongings, it is natural that they will be in her house and there
is nothing incriminating in that. MO.7 was allegedly the mobile
phone of accused No.3. But nothing was produced to show that
2015 Crl.L.J.4774 (SC)
2009(1) Crimes 11 (SC)
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same belongs to him. Therefore, circumstance of recovery of
MOs.3 to 6 was of no help to the prosecution.
Conclusion
39. The Trial Court on judicious appreciation of the
evidence has rightly arrived at the conclusion that,
circumstances set up by the prosecution were not proved by
acceptable evidence. Suffice it to say that, the judgment in
Kishore Bhadke's case referred to supra relied on by the
learned HCGP is not applicable to the facts of the present case.
There is no patent illegality, arbitrariness or perversity in the
impugned judgment and order of the trial Court. The appeal is
liable to be dismissed. Hence the following:
ORDER
The appeal is dismissed.
Sd/-
JUDGE
Sd/-
JUDGE
PKN/PA
