Karnataka High Court
Holeyaplara Chandrappa @ ... vs State By Davanagere Rural Police on 1 February, 2024
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CRL.A No.559/2018
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 1ST DAY OF FEBRUARY, 2024
PRESENT
THE HON'BLE MRS JUSTICE K.S.MUDAGAL
AND
THE HON'BLE MR JUSTICE VENKATESH NAIK T
CRIMINAL APPEAL NO.559/2018 (C)
BETWEEN:
HOLEYAPLARA CHANDRAPPA @ CHANDRASHEKAR
S/O NAGAPPA
AGED ABOUT 42 YEARS
R/O HOUSE NO.1084
2ND STAGE, NPS NAGARA
DAVANAGERE - 577 005 ...APPELLANT
(BY SRI S.G.RAJENDRA REDDY, ADVOCATE)
AND:
STATE BY DAVANAGERE RURAL POLICE
DAVANAGERE
REPRESENTED BY STATE PUBLIC PROSECUTOR
HIGH COURT OF KARNATAKA
BENGALURU - 560 001 ...RESPONDENT
Digitally (BY SMT. SOWMYA R., H.C.G.P.)
signed by K S
RENUKAMBA
THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374(2) OF
Location:
High Court of CR.P.C. PRAYING TO SET ASIDE THE JUDGMENT AND ORDER DATED
Karnataka
07.03.2018 PASSED BY THE PRINCIPAL DISTRICT AND SESSIONS
JUDGE, DAVANAGERE, IN S.C. NO.106/2016 CONVICTING THE
APPELLANT-ACCUSED FOR THE OFFENCE PUNISHABLE UNDER
SECTION 302 OF IPC.
THIS CRIMINAL APPEAL IS COMING ON FOR FURTHER
HEARING, THIS DAY, K.S.MUDAGAL J., DELIVERED THE
FOLLOWING:
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CRL.A No.559/2018
JUDGMENT
Challenging the order of his conviction and sentence, the
accused in Sessions Case No.106/2016 on the file of the
Principal District and Sessions Judge, Davanagere, has
preferred this appeal.
2. The appellant was tried in Sessions Case No.106/2016
for the offence punishable under Section 302 Indian Penal
Code, 1860 (for short, 'IPC') on the basis of the charge-sheet
filed by Davanagere Rural Police in Crime No.89/2016 of their
Police Station.
3. The appellant was the sole accused in
S.C.No.106/2016. For the purpose of convenience, the parties
are referred to henceforth according to their ranks before the
trial Court.
4. The case of the prosecution in brief is as follows:
That the appellant was married to victim Bhagya, about
sixteen years prior to 29.03.2016 and out of the said marriage,
they got two sons, PWs.20 and 21. The accused was harassing
the deceased, suspecting her fidelity, therefore, there used to
be quarrels between them. The victim had filed maintenance
case against the accused. He was irked by that also. Bhagya
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started residing separately from the accused since one year
prior to 29.03.2016. About one month prior to the incident, she
was residing in women's hostel, wherein PW6 was Warden. On
29.03.2016 at 7:00 p.m., the accused took the victim from the
hostel in the guise of dinner. He took her to the land belonging
to PW.14, bearing Survey No.38/1A5 situated within the limits
of Davanagere Rural Police. There he picked up quarrel with her
to withdraw the maintenance case, assaulted her, strangulated
her with MO3-veil of the deceased and escaped from there.
PW.1 is the son of PW.14. PW.5-farm servant of PW.1 on
seeing a dead body, informed PW1 about the same. PW.1 then
visited the scene of offence and submitted the UDR report as
per Ex.P1 before PW.22-Sub-Inspector of Police and on the
basis of that, he registered the UDR FIR as per Ex.P23. Then he
visited the spot, conducted spot mahazar as per Ex.P2. During
spot mahazar, he seized MO6-mobile phone of the victim,
conducted the inquest mahazar as per Ex.P10. On the basis of
information collected during inquest mahazar, he registered FIR
as per Ex.P25 for the offence punishable under Section 302 IPC
and handed over further investigation to PW23. PW23
conducted further investigation. During the investigation, he
arrested the accused, recorded his voluntary statement, sent
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the seized articles to the FSL, recorded the statement of the
witnesses, collected Post-Mortem examination report, RTC,
other material and filed the charge-sheet.
5. The trial Court on hearing the parties, framed the
charges against the accused for the offence punishable under
Section 302 IPC. As the accused denied the charges, the trial
was conducted. In support of the case of the prosecution,
PWs.1 to 23 were examined, Exs.P1 to 28 and MOs.1 to 6 were
marked. After his examination under Section 313 of the Code of
Criminal Procedure, 1973 (for short, 'Cr.P.C.') the accused
neither filed defence statement nor led defence evidence. The
trial Court on hearing the parties, by the impugned judgment
and order, convicted the accused for the offence punishable
under Section 302 IPC and sentenced him to life imprisonment
and fine of Rs.10,000/-, in default to pay the fine amount, to
undergo simple imprisonment for six months.
6. The trial Court held that though the case was based
on circumstantial evidence and some of the witnesses did not
support the prosecution version, the prosecution succeeded in
establishing the circumstances set up by it by cogent evidence
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and the accused has failed to explain the incriminating
circumstances.
Submissions of Sri S.G. Rajendra Reddy, learned counsel
for the appellant-accused:
7. The case was based solely on the circumstantial
evidence. There were no direct witnesses to the incident.
Therefore, the evidence on chain of circumstances set up by
the prosecution must be so complete pointing to the only
hypothesis of the guilt of the accused and any break in the
chain should enure to the benefit of the accused. Though the
prosecution claimed that the victim filing maintenance case
against the accused was the motive for the offence, no record
of such maintenance proceedings were collected and produced.
PWs.20 and 21, the sons of the couple did not support the
prosecution version. So far as last seen circumstance PW6-the
Warden of the hostel did not support the prosecution version.
PW.12 only says that when she called the victim, the victim told
she is going with her husband, but no call details were collected
nor the phone numbers of the victim and PW12 were stated
and produced in the records. Therefore, last seen circumstance
failed. The trial Court relied on the circumstance of discovery of
scene of offence on the basis of the voluntary statement of the
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accused, but the scene of offence was already known to the
public and the Police, by that time, UDR was submitted,
therefore, that cannot be called as discovery at the instance of
the accused. The other circumstance relied by the trial Court
was injuries found on the accused, but the evidence of the
prosecution was not cogent with the said injuries or with the
age of the injuries. The trial Court has relied on the
confessional statement of the accused implicating himself to
the crime which is inadmissible. Therefore, such order is
glaringly illegal. All the circumstances set up by the prosecution
were not proved by cogent and consistent evidence. The
impugned judgment and order of conviction and sentence is
liable to be set aside.
Submissions of Smt. Sowmya R., learned High Court
Government Pleader for the respondent-State:
8. The relationship between the parties was not disputed.
PWs.2 and 9-brothers of the deceased, PW12-cousin sister of
the deceased unequivocally stated that the accused was
harassing the deceased suspecting her fidelity. Even PWs.20
and 21 deposed that the accused and the deceased were
quarrelling at home. The accused himself suggested that the
deceased was moving with one Salman. That itself goes to
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show that the accused was suspecting the fidelity of the
deceased. The accused did not dispute that the victim died
homicidal death. Though PW.6 turned hostile, PW.12-cousin
sister of the deceased stated that soon before the incident,
when she called the victim to accompany her to a programme,
the victim told her that she is going with her husband, thereby
the fact of the victim going with the accused at the time of
incident is proved. The accused did not explain the injuries
found on him. Therefore, that circumstance connects him to the
crime. The trial Court on proper appreciation of the evidence
has convicted the accused. The said judgment does not suffer
from any perversity or illegality.
9. Considering the submissions of both side and
examining the material on record, the point that arises for
determination of this Court is "whether the impugned judgment
and order of conviction and sentence passed against the
accused for the offence punishable under Section 302 IPC is
sustainable?".
ANALYSIS
10. Some of the admitted facts are as follows:
Marriage of the deceased and the accused was
solemnized 16 years prior to 29.03.2016 and out of the said
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wedlock, the couple were blessed with two sons PWs.20 and
21, who were aged around 15 and 13 years respectively in the
year 2016. PWs.2 and 9 are the brothers of the victim, PW12
is the cousin sister of the victim. PW14 was the owner of the
land bearing Survey No.38/1A5 situated within the limits of
Anugodu Village. PW1 is the son of PW14. The dead body of
Bhagya was found lying in the land of PW14 and on noticing the
same, PW1 filed the UDR report as per Ex.P1 before PW22.
The death of Bhagya was homicidal one.
11. The accused only disputed his role in the death of
Bhagya. The evidence of PW15-Doctor, who conducted Post-
Mortem examination and submitted report as per Ex.P14 shows
that the death of Bhagya was homicidal one. MO3-veil/ligature
material found at the scene of offence was also not disputed.
12. There was no direct witness to the incident. The case
was based solely on the circumstantial evidence. The
circumstance relied by the prosecution are as follows:
(i) Motive - That the accused suspecting the fidelity of
victim was assaulting her and was disturbed as she had filed
maintenance case against him.
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(ii) The victim and the accused were last seen together
before she was found dead.
(iii) Death was homicidal one.
(iv) Injury found on the accused - During the course of
offence, the accused had sustained injuries. After his arrest
when he was subjected to medical examination, PW16-Doctor
noted the said injury.
(v) Discovery of the incriminating material on the basis
of the voluntary statement of the accused.
13. It is settled principle of law that when the case is
based on the circumstantial evidence, the chain of
circumstances must be so complete to point out the only
hypothesis of the guilt of the accused and if there is any break
in the circumstance, the benefit should go to the accused. The
prosecution has to prove the guilt of the accused beyond
reasonable doubt. The accused cannot be convicted based on
the suspicion. However strong it may be, the suspicion cannot
take the place of proof beyond reasonable doubt. In the light of
such legal position, this Court has to re-appreciate the evidence
led before the trial Court.
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Reg. Last seen circumstance:
14. To prove this circumstance, the prosecution relied on
the evidence of PWs.6 and 12. According to the prosecution,
about one month prior to the incident, the deceased was
residing in a working women's hostel by name Snehalaya in
Davanagere and PW.6 was the Warden of the said hostel. It is
further case of the prosecution that on 29.03.2016 at 7:00
p.m., the victim told that her husband is coming and she is
leaving with him. Therefore, PW6 came out of the compound
and the victim showed her the accused as her husband and
both of them left together. Thereafter, the accused did not
return to the hostel.
15. PW6 totally denied the victim residing in her hostel.
PW6 deposed that one day prior to 29.03.2016, Bhagya came
to their hostel and enquired regarding the hostel, again she
came on 29.03.2016 at 7:00 p.m. and admission was denied to
her on the ground that she was not accompanied by any of her
guardian. Therefore, the victim went back saying that she
comes back next date. Though Public Prosecutor treated her as
hostile and examined her, she denied the suggestion that the
victim was inmate or admitted into the hostel. She further
denied having given the statement before the Investigating
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Officer as per Ex.P9 to the effect that she sighted the deceased
and the accused together on 29.03.2016 at 7:00 p.m. The
Investigating Officer did not collect any record of admission of
the victim in the said hostel. Therefore, the theory of the victim
being inmate of the hostel, where PW6 was working was not
proved.
16. The other witness cited for the last seen theory is
PW12/the cousin sister of the deceased. PW.12 apart from
speaking about the accused suspecting the fidelity of the victim
and harassing her, etc. further deposed that on 29.03.2016 in
the afternoon, she phoned victim Bhagya to enquire whether
she accompanies her to the fair. She further deposed that in
the same evening, the victim phoned her saying that she is
going outside with her husband, therefore unable to accompany
PW12 for the fair. The Investigating Officer has not collected
either phone numbers of PW12 and the deceased, or the call
details to prove the phone call exchanged between PW12 and
the victim on that day. Therefore, even that evidence of PW12
was not helpful to prove that the accused and the deceased
were last seen together by PW.12.
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Reg. Motive:
17. According to the prosecution the accused
suspecting the fidelity of the victim was ill-treating her, being
fed up by that, about one year prior to the incident the victim
left the house of the accused and started living separately.
Initially, she had filed a case against the accused for
maintenance and interim maintenance of Rs.3,000/- per month
was awarded. Being irked by that, the accused committed
murder of the victim. Though it was contended that the
prosecution did not produce any records in proof of
maintenance case and harassment to the victim by the
accused, PWs.2,9 and 12 in their depositions categorically
stated that the accused was suspecting the fidelity of the victim
and ill-treating her in that background. All the three of them
deposed that the deceased had filed a petition for maintenance
against the accused and for some time the victim lived in
Bengaluru, then she returned to Davanagere. Though they
deposed that the victim was living in hostel, as observed her
admission into the hostel was not established beyond
reasonable doubt.
18. PWs.2 and 9 further deposed that several times
they mediated between the accused and deceased and had
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advised the accused to live cordially, but that did not yield any
result. Though it was contended that the fact of the deceased
filing maintenance case was not proved by producing any
document, in the cross-examination of PWs.2,9 and 12, their
evidence about the deceased filing maintenance case and Court
awarding interim maintenance of Rs.3,000/- per month was not
disputed.
19. Apart from that, in the Committal Court records, the
certified copies of the order sheet in Crl.Misc.No.10/2016 and
interim order passed in Crl.Misc.No.10/2016 by JMFC-III,
Davanagere are forthcoming of which this Court can take
judicial notice by virtue of Sections 56 and 57 of the Indian
Evidence Act, 1872 ('the Evidence Act' for short). Those records
show that on the petition of the deceased, interim maintenance
of Rs.3,000/- per month was awarded to the victim. However,
the proof of circumstance of motive alone cannot be a ground
to connect the accused to the crime.
20. It is settled law that motive is a double-edged
weapon. It may lead to the assault on the victim or her people
implicating the accused due to such ill-will. Therefore, the other
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evidence also should be cogent and consistent in addition to the
circumstance of motive.
Reg. Discovery of incriminating materials on the basis of the
confession of accused:
21. According to PW.23-the Investigating Officer, on
arrest of the accused he gave voluntary statement as per
Exs.P26 and 26(a). It is alleged that under Ex.P26 the accused
confessed that he suffered injuries on his knees during the
course of the crime. Under Ex.P26(a) he allegedly volunteered
to show the scene of crime. PW.26 further deposes that in
continuation of such voluntary statement, accused led PW.23,
panchas-PW.4 and CW.6-Raju to the land of PW.14 and showed
scene of offence. There, PW.23 drew mahazar as per Ex.P5.
22. To seek the benefit of Section 27 of the Evidence
Act under the alleged confession statement, there must be
discovery of the fact and only then such voluntary statement is
admissible. It is useful to extract Section 27 of the Evidence Act
in that regard:
"27. How much of information received from accused
may be proved.-
Provided that, when any fact is deposed to as discovered
in consequence of information received from a person
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accused of any offence, in the custody of a police
officer, so much of such information, whether it
amounts to a confession or not, as relates distinctly to
the fact thereby discovered, may be proved."
If there is no discovery of fact, then such voluntary statement
is hit by Section 25 of the Evidence Act and not admissible
under Section 27 of the Evidence Act.
23. In the present case, Ex.P5 said to be drawn on
31.03.2016. It is the case of the prosecution itself that the
dead body was found on 30.03.2016 itself in the land of PW.14,
her son PW.1 reported the same under Ex.P1 on 30.03.2016 at
5 p.m to PW.22. It is further case of the prosecution that
PW.22 visited the spot and drew the spot mahazar Ex.P2 on
30.03.2016 between 5.45 pm and 6.45 p.m. During such
mahazar, the dead body, mobile phone of the victim and
ligature material were found at the scene of offence. PWs.10
and 11 were the witnesses to Ex.P2. Therefore, it becomes
clear that the scene of offence was already within the
knowledge of the public and the police before the alleged
discovery under Ex.P5. The trial Court without considering the
interplay of Sections 27 and 25 of the Evidence Act and
overlooking the fact of tracing dead body in that place was
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already discovered, admitted Ex.P26(a) and came to the
conclusion that the place of murder was within the knowledge
of the accused which is legally unsustainable.
24. The other circumstance relied on by the prosecution
is the injuries found on the knees of the accused. The
Investigating Officer PW.23 in his evidence deposed that the
accused confessed before him as per Ex.P26 to the effect that
while committing the murder of his wife by strangulation, the
accused for support placed his knees on the rock, in the friction
he suffered abrasions, when he subjected the accused for
medical examination through PW.16/the medical officer of
Davanagere hospital, such injuries were found on the accused.
They relied on Ex.P19-the wound certificate issued by CW.24 in
that regard.
25. Section 25 of the Evidence Act states that the
confession made to the Police Officer shall not be proved
against the accused, that means the same is not admissible.
Section 27 of the Evidence Act is in the nature of an exception
or proviso to Section 25. It says that if any fact is discovered
by such confessional statement, only fact so discovered shall be
proved. Therefore, other part of the evidence regarding the
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confession of the accused to the crime cannot be proved
against him. But in the present case, the trial Court has
admitted in the evidence under Ex.P26 the confession of the
accused before the police about commission of the murder by
strangulating the victim. That part of Ex.P26 was inadmissible
in evidence. The trial Court not only admitted such statement,
but relied on the same to hold that the accused has confessed
to the crime which is illegal.
26. Then what is admissible is only the fact of injuries
found on the accused. It is no doubt true that PW.16 deposed
that there were two injuries on the knees of the accused as
found in Ex.P19-wound certificate and they were 2 to 3 days
old prior to 31.03.2016 that is the examination of the accused
by her. In her cross-examination, PW.16 admitted that if a
person tries to lift heavy object on his head by kneeling on his
knees, such injuries could be caused. If the accused had
suffered such injuries on his knees at the time of commission of
crime, there could have been bloodstains on his clothes also.
The Investigating Officer did not collect any such clothes or any
such bloodstains. If the accused suffered such injuries due to
the friction of his knees to the rock at the scene of offence,
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then bloodstains of the accused should have been found at the
scene of offence also. But in Ex.P2 spot mahazar drawn at the
earliest point of time by PW.22, there is no mention of any such
bloodstains. Therefore, such injuries found on the accused, do
not conclusively connect the accused to the crime.
27. Admittedly, the victim was not residing with the
accused and the theory of last seen circumstance is negatived.
Under such circumstances, the injuries found on the accused
and the motive circumstance alone are not sufficient to convict
the accused to the heinous offence like Section 302 IPC. As the
liberty of the person is precious that cannot be curtailed
without following due procedure established by law. When the
case is based on the circumstantial evidence, each of the
circumstances set up by the prosecution should be established
conclusively and if there is any break in the chain of
circumstance, then the benefit of doubt shall go to the accused.
28. In the present case except the circumstance of
motive which is double-edged weapon and injuries found on the
accused, other circumstances were not established. The
accused was entitled to acquittal. The impugned judgment and
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order of trial Court are liable to be set aside. Hence, the
following:
ORDER
The appeal is allowed.
The impugned judgment and order of conviction and
sentence passed by the Principal District and Sessions Judge,
Davanagere in S.C.No.106/2016 against the appellant/accused
is hereby set aside.
Accused is acquitted of the charge for the offence
punishable under Section 302 of IPC.
Accused shall be set at liberty forthwith, if his detention is
not required in any other case.
Acting under Section 357A of Cr.PC, the matter is
referred to the District Legal Services Authority, Davanagere for
determination and payment of compensation to PWs.20 and 21.
Fine amount deposited, if any, shall be refunded to the
accused/appellant.
The order of trial Court with regard to disposal of the
property is maintained.
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Communicate copy of this order to the trial Court and
concerned prison forthwith.
Sd/-
JUDGE
Sd/-
JUDGE
KVK/PKN
