Karnataka High Court
State Of Karnataka vs Varalakshmi S on 6 February, 2024
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CRL.A No.2058 of 2017
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 6TH DAY OF FEBRUARY, 2024
PRESENT
THE HON'BLE MR. JUSTICE SREENIVAS HARISH KUMAR
AND
THE HON'BLE MR. JUSTICE VIJAYKUMAR A. PATIL
CRIMINAL APPEAL NO.2058 OF 2017
BETWEEN:
1. STATE OF KARNATAKA
BY MADDUR POLICE STATION
REP. BY STATE PUBLIC PROSECUTOR
HIGH COURT BUILDING
BANGALORE-560001.
...APPELLANT
Digitally signed
by RUPA V (BY SRI. B.N. JAGADISH, ADDL. SPP)
Location: HIGH AND:
COURT OF
KARNATAKA
1. VARALAKSHMI .S
W/O B. KRISHNA
AGED ABOUT 33 YEARS
R/O ANNALLIDODDI VILLAGE
C.A. KERE HOBLI
MADDUR TALUK-571428.
2. A.B. SHIVARAJU
S/O BOLEGOWDA
AGED ABOUT 28 YEARS
R/O ANNALLIDODDI VILLAGE
C.A. KERE HOBLI
MADDUR TALUK-571428.
...RESPONDENTS
(BY SRI. S. VENKATESH, ADV., FOR R1 & R2)
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CRL.A No.2058 of 2017
THIS CRL.A. IS FILED U/S.378(1) AND (3) OF CR.P.C.
PRAYING TO GRANT LEAVE TO APPEAL AGAINST THE
JUDGMENT AND ORDER OR ACQUITAL DATED 24.03.2017
PASSED IN S.C.NO.176/2013 ON THE FILE OF THE II
ADDITIONAL DISTRICT AND SESSIONS JUDGE, MANDYA
THEREBY ACQUITTING THE ACCUSED/RESPONDENTS FOR
THE OFFENCES P/U/S 302, 201 R/W 34 OF IPC.
THIS APPEAL, COMING ON FOR HEARING, THIS DAY,
VIJAYKUMAR A. PATIL J., DELIVERED THE FOLLOWING:
JUDGMENT
This appeal is filed by the State questioning the
correctness of the judgment of acquittal dated 24.03.2017
passed by the II Addl. District and Sessions Judge, Mandya
in S.C.No.176/2013.
2. Facts in brief leading to filing of this appeal are
that accused No.1 is the wife of the deceased B.Krishna.
Their marriage was solemnized about 12-14 years prior to
the incident and they begot 2 female children in the
wedlock. The accused No.1 having illicit relationship with
accused No.2 was a cause for quarrels between the accused
No.1 and the deceased. It is the case of the prosecution that
in order to end ill-treatment of the husband, accused No.1
with an intention to continue her relationship with accused
No.2, on 12.02.2013 at about 2.15 a.m. along with the
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accused No.2 killed her husband B.Krishna when he was
asleep. Thereafter, accused No.1 sent accused No.2 from
her house and by pretending that her husband Krishna had
died due to heart attack and in order to cause
disappearance of evidence of murder, informed PW-1 that
deceased had complained of chest pain and she gave water
to drink and still he was not responding and requested him
to come and see. PW-1 gave the information of the incident
to the police. The jurisdictional police registered the said
information in Crime No.65/2013 and took up the
investigation. The police filed charge sheet against both the
accused for the offences punishable under Sections 120B,
302, 201 read with Section 34 of IPC. The Trial Court
framed the charges for the aforesaid offences.
3. The prosecution, in order to prove the guilt of the
accused examined 19 witnesses as PWs-1 to 19, produced
29 documents marked as Exs.P1 to P29 and material objects
MOs-1 to 5. The Trial Court, on appreciation of the
evidence, has come to the conclusion that the prosecution
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has failed to prove the case beyond reasonable doubt and
proceeded to acquit both the accused. Being aggrieved by
the judgment of acquittal, the State has filed the present
appeal.
4. Heard Sri.B.N.Jagadish, learned Addl. State
Public Prosecutor for the appellant, Sri.S.Venkatesh,
Learned counsel for the respondent - accused.
5. Sri.B.N.Jagadish, learned Addl. SPP argues that
the Trial Court has committed a grave error in appreciating
the evidence available on record. It is submitted that PW-1
who is the informant of the commission of crime has clearly
deposed that accused No.1 came to his house on the
midnight of 12.02.2013 and informed that the deceased was
complaining of chest pain and she gave water to him. As he
was not responding, accused No.1 requested PW-1 to come
and see her husband. PW-1 further states that on going to
the house of deceased, he found that the deceased was not
breathing and his body was cold and he found some injuries
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on his body and stated that the deceased had already
passed the urine and stool. PW-1 has also deposed that
accused No.2 had threatened the deceased that he would kill
him and accordingly, he suspected the involvement of
accused No.1 and 2 in killing the deceased and lodges the
complaint. It is submitted that the Trial Court, without any
reason has disbelieved the evidence of PW-1. It is further
submitted that the oral evidence of PW-19 who conducted
the post mortem of the deceased and also issued the post
mortem report at Ex.P28 which clearly indicates that death
is homicidal and the cause of the death is shown as
asphyxia as a result of strangulation applying blunt force
over the neck. It is also submitted that at the time of death
accused No.1 was the only person in the residence of the
deceased and in the absence of any explanation from the
accused No.1 with regard to the cause of death, a
presumption is required to be drawn that the accused No.1
along with accused No.2 committed the murder of
B.Krishna.
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6. It is further argued by Sri. B.N.Jagadish that PW-
3 and PW-4 who are the friends of accused No.2 have stated
that the accused No.2 had confessed before them that he
killed B.Krishna. The Trial Court has failed to appreciate
the evidence of PW-1, PW-3, PW-4 and PW-19 in its proper
perspective. The prosecution has proved that the accused
No.1 had illicit relationship with accused No.2 and there
were frequent quarrel between the deceased and accused
No.1 which is the motive for commission of crime by accused
No.1 and 2. It is further contended that the prosecution has
proved that the death is homicidal death and the accused
have made an attempt to take a false defence that the death
is due to heart ailment of the deceased. However, the
medical evidence on record indicates that the death is
homicidal due to strangulation of neck. It is also contended
that PW-3 and PW-4 speak about the motive for commission
of crime and illicit relationship of accused No.1 and 2. The
brother of the deceased PW-15 has supported the case of
prosecution. He stated that elder daughter of the deceased
was residing with her grandmother and deceased, accused
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No.1 and younger daughter were residing at Annahallidoddi.
He further deposed that the accused No.2 used to visit the
house of the deceased in his absence. It is also contended
that the Trial Court has failed to appreciate the evidence of
material witnesses in its proper perspective which has
resulted in acquittal of the accused. The Trial Court has not
at all considered the evidence of other witnesses other than
PW-1 and PW-19. He seeks to reverse the impugned
judgment of the Trial Court by convicting the accused.
7. Per contra, Sri.S.Venkatesh, learned counsel for
the respondent - accused submits that the prosecution has
failed to prove the case beyond reasonable doubt. The Trial
Court has considered the evidence available on record and
came to the conclusion that there are a number of
contradictions in the evidence of PW-1, PW-3, PW-4, PW-15
and PW-19 and benefit of doubt is given to the accused by
acquitting the accused from the charged offences. It is
submitted that PW-1 has animosity towards the deceased.
PW-1 had failed to pay the lease amount to the deceased.
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Admittedly, PW-1 is cultivating 22 guntas of the land of the
deceased. Hence, his evidence cannot be believed. It is
further submitted that PW-15 is none other than the brother
of the deceased and an interested witness. His evidence
cannot be looked into as he was not the eye witness to the
incident and he has deposed based on hearsay of PW-1. It is
further submitted that PW-1 has filed the complaint at the
instance of PW-16. PW-16 has contested the election
against the brother of the accused No.2 and PW-16 had lost
in the said election. Due to animosity between PW-16 and
accused No.2, a false complaint has been filed by PW-1. It is
also submitted that PW-3 is the son of PW-16, hence
question of extra judicial confession by the accused No.2
before PW-3 would not arise as both were in different groups
in the election. He argued that PW-4 in his cross-
examination has stated that he has not given any statement
to the police. He further argued that the prosecution has
not examined the investigating officer who was CW-36 which
is fatal to the case of the prosecution. He submitted that if
the death of B.Krishna is due to strangulation, there would
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have been some injuries to his head and back portion of the
body as he was sleeping on the floor and the surface of the
floor was uneven. In the absence of any such injuries, there
cannot be any inference that the death is due to
strangulation by the accused. In the absence of any
corroborative evidence of strangulation by the accused, the
accused cannot be convicted. He therefore seeks to dismiss
the appeal.
8. We have heard the arguments of the learned
Additional State Public Prosecutor and the learned counsel
for the respondent, perused the judgment of the Trial Court
and the entire evidence available on record.
9. The Trial Court has recorded the reason that the
prosecution has failed to prove the case beyond reasonable
doubt. It has recorded the finding that PW-1 was not in
talking terms with the deceased. PW-1 was cultivating the
land of the deceased and has not given the lease amount.
Hence, the evidence of PW-1 is doubtful. It has further
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observed that the prosecution has not examined CW-36, the
investigating officer which is fatal to the case of the
prosecution. It has further observed that the villagers of
Annahallidoddi i.e. PWs-3 to 9 have not supported the
prosecution. They have pleaded their ignorance with regard
to the illicit relationship between accused No.1 and 2. Those
witnesses have been cross-examined by the public
prosecutor. However, nothing has been elicited. They have
also denied the statement recorded by the police under
Section 161 of Cr.P.C. The Trial Court has recorded the
finding that the evidence of PW-1 who is an informer for his
personal gain and he is the interested witness, hence,
refused to believe his evidence. The Trial Court has
observed that in the cross-examination, PW-19
unequivocally and ambiguously admitted that there were no
injuries on the dead body of B.Krishna. It has given the
benefit of doubt to accused No.1 as accused No.1 has taken
the defence that the deceased has died due to heart attack.
Taking note of the evidence of PW-19 and defence of the
accused the Trial Court came to the conclusion that there is
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no cogent and consistent evidence in favour of the
prosecution and proceeded to acquit the accused.
10. This Court has to re-appreciate the evidence
available on record. PW-1 who is the informant has stated
that accused No.1 and the deceased are relatives. Accused
No.1 and the deceased married around 8 years before the
death and they started residing in a shed in his vacant land
nearer to his house as he was not given any property in their
family partition. He has stated that accused No.2 resides
near his house and he was having illicit relationship with
the accused No.1. He states that his uncle had seen
accused No.1 being in the company of accused No.2 and
there was quarrel between the accused No.1 and the
deceased. Panchayat was held to resolve the said dispute
and thereafter, the accused No.1 and deceased started
residing together. He stated that the accused No.1 and 2
were caught by the deceased, at that time, the accused No.2
threatened the deceased that he would kill him. After the
panchayat, the relationship between the accused No.1 and
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the deceased were cordial for 5-6 months and again the
accused No.1 continued her illicit relationship with accused
No.2. He stated that on 12.02.2013 around 3.30 a.m., the
accused No.1 came in front of his house and called by his
name and informed that the deceased was complaining of
chest pain; she gave water to drink and requested him to
come to her house. When he went to the house of accused
No.1, he noticed that the deceased was in sleeping position;
not breathing; his body was cold and noticed some injuries
on the body and he had passed stool. He stated that
immediately he recollected that accused No.2 had
threatened the deceased that he would kill him. Hence, he
suspected that accused No.1 and 2 might have killed
B.Krishna and accordingly gave the information to the police
which is produced as Ex.P1. He stated that on 11.02.2013
at around 6 p.m. he saw deceased Krishna was filling up the
water from the tap. He further stated that all the relatives of
the deceased Krishna suspected that the accused No.1 was
responsible for the death of the deceased. He stated that the
body was brought outside the shed and the police came and
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saw the body and thereafter, it was shifted for post mortem.
He stated that the mother of the deceased used to come and
sleep in his house and on the date of incident also she was
in his house and on 12.02.2013 around 6 a.m. she came
and saw the dead body. He stated that he had seen accused
No.2 going to the house of accused No.1 frequently in the
absence of deceased. He identified the photographs of the
deceased at Exs.P3 to 12. He identified MOs-1 to 5. He
stated that the panchayat was held in the presence of PWs-6
and 7. He further stated that the accused No.1 has
informed PWs-5, 8 and 9 that she and accused No.2 have
killed B.Krishna.
11. In the cross-examination, PW-1 has admitted
that he had insisted deceased to vacate the shed owned by
him as accused No.1 was having illicit relationship with
accused No.2. He further admitted that he was cultivating
25 guntas of land of the deceased Krishna on lease. He
denied the suggestion that there was a dispute between
deceased Krishna and himself with regard to payment of
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lease amount. He admitted that now also he was cultivating
the land of the deceased. He denied the suggestion that the
mother of the deceased went to the house of her daughter on
the pretext that her grand daughter was missing. He stated
that deceased Krishna and his brothers went to search the
missing child. He stated that he was not in talking terms
with the deceased and the accused No.1. He admitted that
on the night before the death, deceased was walking as he
was uncomfortable due to heart ailment. PW-1 has denied
other suggestions put to him by the defence counsel.
12. The prosecution has examined PWs-3 and 4 who
have stated that they know accused, accused No.2 was their
classmate. PW-3 stated that he has enquired with accused
No.2 with regard to accusation on him that he had killed
Krishna and in turn, accused No.2 confessed that he had
illicit relationship with accused No.1. However, he denied
killing of Krishna. PW-3 further stated that he has seen the
dead body of the deceased and there were injuries on the
body. In the cross-examination, he has denied the
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suggestion that accused No.2 was coming out from the
house of accused No.1 on 12.02.2013. He denied that he
had given statement to the police in Ex.P14. He admitted
that his father had contested the Grama Panchayat election
against the brother of accused No.2. Similarly, PW-4 stated
that accused No.1 and 2 had illicit relationship. On
11.02.2013, he saw the dead body of Krishna which was
kept in front of his house and found that there were injuries
on his body. He stated that PW-1 was spreading the
information that accused No.2 had killed Krishna. He
further stated that on 14.02.2013 he met accused No.2 at
Halagur and he has confessed that accused No.1 and he
gave sleeping pills to the deceased Krishna and put pillow on
his face and killed him. He also informed that he would go
the police station and come back.
13. The prosecution examined PWs-5 to 9, the
villagers who have not supported the case of prosecution.
PWs-12 to 14 and 16 have also not supported the case of
prosecution. PW-15 is the brother of the deceased who
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stated that the deceased and accused No.1 were residing in
the shed of PW-1. He stated that accused No.2 used to visit
the house of accused No.1 in the absence of deceased. He
stated that before the death of the deceased, there was a
quarrel between the accused No.1 and the deceased. In the
cross-examination, he stated that there were some injuries
on the body of the deceased. He admitted that he has given
the statement before the police. He admitted that he along
with his mother Kempamma went to his sister's village is in
search of her missing daughter and on the day of incident,
his mother stayed back there only. He admitted that PW-1
was cultivating on the land of the deceased.
14. The prosecution examined PW-19 doctor who
conducted the post mortem. He stated that he conducted
post mortem on deceased between 9 a.m and 1 p.m. on
13.02.2013. He stated that he observed the presence of
blood mixed saliva in the mouth and nose of the deceased,
eyes were red, eye balls were black, dead body was stiff and
there were scratches on the body. He stated that there were
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injuries on front portion of the neck, injuries on both sides
of the jaw, injuries on the thyroid portion of the neck and
deep injuries on the centre of the neck. He stated that
brain, heart and spinal cord were in normal state. On
opening the lungs, he found the presence of saliva and gas.
He admitted that he has conducted the post mortem and
signed the post mortem report at Ex.P28. He stated that he
has seen the FSL report at Ex.P25 and his opinion for the
cause of death is due to asphyxia as a result of
strangulation applying blunt force over the neck of the
deceased. In the cross-examination, PW-19 stated that
death has occurred around 30-36 hours prior to the post
mortem. He admitted in the cross-examination that if the
strangulation is by hand, there would be finger prints and
the mark of the thumb on the neck and he has not made
any such observations in the post mortem report. He also
admitted the suggestion that if the person is strangulated,
he will offer resistance to save himself and in that course he
may sustain injury. He admitted that he has observed
alcohol contents in the body of the deceased. He denied a
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number of other suggestions put forth by the defence
counsel.
15. On appreciation of the material witnesses
examined by the prosecution, it is found that PW-1 is a close
relative of the deceased and was in cultivation of some land
of the accused. PW-1, in his cross-examination, has
admitted that he was not in talking terms with the deceased
and accused No.1. The prosecution has examined PW-1 in
detail and the said witness has been cross-examined by the
witness at length. On appreciation of the entire evidence of
PW-1, what is emerged is that accused No.1 had called PW-1
around 3.30 a.m. on 12.02.2013 and informed that
deceased is complaining of chest pain and she has given
water to him and thereafter, he is not responding.
Immediately, PW-1 went there and found that Krishna was
dead and he also noticed some injuries on his body and had
passed stool in his under garment. The said witness has
stated that the accused No.1 and accused No.2 had illicit
relationship and there were frequent quarrels between the
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accused No.1 and the deceased. In the cross-examination,
the said witness admitted that the deceased was not feeling
comfortable on the night of death and he was walking in
front of his house and based on his assumption, he comes to
the conclusion that the accused No.1 and 2 have committed
the crime. The said witness has not stated that he has seen
the accused No.2 going to the house of accused No.1 on the
said night. It is not the case of prosecution that at the
instance of accused No.2, accused No.1 has committed the
offence. The theory of the prosecution is that both the
accused, with a common intention and in order to remove
the obstacle in their illicit relationship, killed the deceased.
On perusal of the entire evidence of the prosecution, there is
no iota of evidence to support the case of the prosecution
that accused No.2 was present in the house of accused No.1
on 12.02.2013 and committed the murder of Krishna. PW-1
stated that there is illicit relationship between the accused
Nos.1 and 2 and there were panchayats held to resolve the
dispute between the accused No.1 and deceased Krishna
and the said panchayat was conducted by PW-16 who has
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seen the accused Nos.1 and 2 together. However, on perusal
of the evidence of PW-16, it is found that he has not
supported the case of the prosecution and not admitted that
he has conducted any panchayat nor the prosecution has
placed any evidence on record with regard to the marital
dispute between the deceased and the accused No.1. In the
absence of any cogent and corroborative evidence on record
to establish the fact that the accused No.2 was present in
the house of accused No.1 on the day of incident, the theory
of prosecution that the deceased has been strangulated and
killed by the accused, is not proved.
16. PW-1 has deposed that the mother of the
deceased used to sleep in his residence as she was aged
about 75 years and on the date of incident, she was in his
house and she came in the morning around 6 a.m. and saw
the dead body of Krishna. PW-15, brother of the deceased
has deposed that on the date of the incident, the mother of
the deceased was not available and she, deceased Krishna
and he went to his sister's village Aretiptur and she stayed
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there only. There are contradictions in the evidence of PW-1
and PW-15. Hence, the evidence of PW-1 cannot be believed
in its entirety. PW-1 has deposed that PW-5 Savita, PW-8
Jayamma and PW-9 Nagamma have informed him that
accused No.1 confessed before them that she along with
accused No.2 had killed the deceased. On perusal of the
testimony of PWs-5, 8 and 9, no such alleged confession of
the accused No.1 was found in their evidence. Hence, there
is a major contradiction in the evidence of prosecution with
regard to the confession of accused No.1 before PWs-5, 8
and 9.
17. It is the case of the prosecution that PW-3 before
whom accused No.2 had confessed that he had illicit
relationship with accused No.1 and they have committed the
murder of Krishna. However, the said witness has
completely denied the case of prosecution. PW-4 has
partially supported the case of prosecution with regard to
the confession of the accused No.2. PW-4 stated that the
accused No.2 had confessed before him that he and accused
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No.1 gave sleeping pills to the deceased and killed him.
However, the evidence of PW-19 compared with the post
mortem report, the cause of death is shown as strangulation
of neck. In the post mortem report, there is no mention with
regard to administering sleeping pills to the deceased. The
alleged confession of the accused No.1 before PWs-3 and 4
appears to be doubtful as PW-3 is the son of PW-16 and
PW-16 had contested the elections against the brother of the
accused No.2. PW-4 is a close friend of PW-3. The alleged
confession made by the accused No.2 before PWs-3 and 4
appears to be improbable. The extra judicial confession is a
weak type of evidence required to be appreciated with great
care and caution and if the extra judicial confession is
surrounded by suspicious circumstances its credibility is
doubtful. In the instant case, PWs-3 and 4 are admittedly in
different group in the elections. Hence, credibility of
evidence of those witnesses is doubtful.
18. The prosecution has examined villagers as PWs-5
to 9, 12 to 14 and 16. All have spoken that there was illicit
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relationship between the accused Nos.1 and 2. However,
they have not fully supported the case of the prosecution
with regard to other circumstances and the alleged
commission of crime by the accused Nos.1 and 2. Hence,
the prosecution has failed to prove that the accused Nos.1
and 2 have committed the offence of murder of B.Krishna.
The contention of the learned Addl. State Public Prosecutor
that the accused No.1 who was present in the house is
required to answer with regard to the cause of death as she
was alone in the house on the fateful day along with the
deceased. In the absence of any explanation from the
accused No.1, Court is required to draw the inference that
the accused No.1 with a common intention with the accused
No.2 have committed the murder. The said contention of the
learned Addl. SPP has no merit for the reason that the
prosecution has not produced any evidence whatsoever to
establish the presence of accused No.2 in the house of
accused No.1 on the said day. There is no evidence available
on record that the accused No.1 alone has caused death of
B.Krishna. In the absence of any cogent and corroborative
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evidence with regard to involvement of the accused No.1 and
2 in the commission of crime, this Court based on the
medical evidence alone cannot come to a conclusion that the
accused No.1 and 2 have committed the crime. There is no
doubt that the death is homicidal owing to strangulation.
However, there is no evidence to connect the death with the
accused No.1 and 2. In the absence of such evidence and
there being a number of contradictions in the evidence of
PWs-1, 15 and 16 and the evidence of PWs-3 and 4, this
Court is of the considered view that the prosecution has
failed to prove the case beyond reasonable doubt.
Admittedly, the prosecution has not examined the
investigating officer who was CW-36 for the best reasons
known to them. The evidence adduced by the prosecution
would not complete the chain of circumstances as there are
no eye witnesses in the present case. Hence, the benefit of
doubt goes in favour of the accused. It is trite law that in an
appeal against the acquittal no doubt the power of the
Appellate Court to re-appreciate the evidence is unlimited
and it can come to its own conclusion, normally while
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exercising the appellate power it is the duty of the Court to
find out whether the judgment under challenge is correct or
not on law and on facts. The Appellate Court, while dealing
with the judgment of acquittal cannot reverse merely
because another view is possible on re-appreciation of the
evidence. The Appellate Court on re-appreciation of the
entire evidence available on record is required to record the
reason that only one view is possible, then only the Appellate
Court can interfere with the judgment of acquittal. In the
instant case, no doubt accused No.1 was in the house at the
time of death, however no other corroborative evidence is
available on record to come to conclusion that the accused
have committed the crime.
19. The Trial Court, on appreciation of the evidence
of the prosecution, has noticed a number of inconsistencies
and come to the conclusion that the prosecution has failed
to prove the case beyond reasonable doubt and proceeded to
acquit the accused. This Court, on re-appreciation of the
entire evidence available on record does not find any error or
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perversity in the finding recorded by the Trial Court calling
for interference in the judgment of acquittal. We do not find
any good ground to differ from the finding recorded by the
Trial Court.
20. The appeal is devoid of merits, therefore is
dismissed.
Sd/-
JUDGE
Sd/-
JUDGE
RV
