Karnataka High Court
Rajesab S/O Nazirahammad Agasanahalli vs The State Of Karnataka on 11 January, 2024
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CRL.A No. 100445 of 2019
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 11TH DAY OF JANUARY, 2024
PRESENT
THE HON'BLE MR JUSTICE ASHOK S. KINAGI
AND
THE HON'BLE MR JUSTICE RAJESH RAI K
CRIMINAL APPEAL NO. 100445 OF 2019 (C)
BETWEEN:
RAJESAB
S/O. NAZIRAHAMMAD AGASANAHALLI,
AGE: 24 YEARS,
R/O: TONDLE CHAWAL,
MALAMADDI, DHARWAD.
...APELLANT
(BY SRI. J.BASAVARAJ, ADVOCATE)
AND:
THE STATE OF KARNATAKA
BY DHARWAD VIDYAGIRI POLICE STATION,
R/BY STATE PUBLIC PROSECUTOR,
HIGH COURT OF KARNATAKA,
Digitally signed
BENCH DHARWAD.
by
B SHELAR
MOHANKUMAR
MOHANKUMAR B SHELAR
Date:
2024.02.07
...RESPONDENT
14:38:15 +0530
(BY SRI.M.B.GUNDAWADE, ADDL. STATE PUBLIC PROSECUTOR)
THIS CRIMINAL APPEAL IS FILED U/SEC.374(2) OF CR.P.C.,
PRAYING TO SET ASIDE THE JUDGMENT AND ORDER OF
CONVICTION PASSED BY THE PRINCIPAL DISTRICT AND
SESSIONS JUDGE, DHARWAD IN S.C.NO.140/2017 BY ITS ORDER
DATED 16.02.2019 FOR THE OFFENCES PUNISHABLE UNDER
SECTION 498-A, 302 OF IPC AND ACQUIT THE APPELLANT/
ACCUSED OF THE OFFENCES WITH WHICH HE HAS BEEN
CONVICTED AND SENTENCED.
THIS CRIMINAL APPEAL COMING ON FOR FINAL HEARING,
THIS DAY, RAJESH RAI K, J., DELIVERED THE FOLLOWING:
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CRL.A No. 100445 of 2019
JUDGMENT
This appeal is by the convicted accused No.1 against
the judgment and order of sentence passed in
S.C.No.140/2017 dated 16.02.2019 passed by the
Principal District and Sessions Judge, Dharwad, wherein,
the learned Sessions Judge convicted the accused for the
offence punishable under Sections 498A and 302 of IPC
and directed the appellant/accused No.1 to undergo
rigorous imprisonment for one year and to pay fine of
Rs.10,000/- for the offence punishable under Section 498A
of IPC and in default of payment of fine , he shall undergo
rigorous imprisonment for three months.
Appellant/accused No.1 also sentenced to undergo life
imprisonment and pay fine of Rs.50,000/- for the offence
punishable under Section 302 of IPC and in default of
payment of fine, he shall further undergo rigorous
imprisonment for three years. It is ordered that
substantive sentence of imprisonment shall run
concurrently.
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2. The factual matrix of the prosecution case in
brief are -
P.W.1 lodged a complaint before the respondent-
police on 19.11.2016, at 5.15 a.m. as per Ex.P.1 alleging
that, her second daughter Shahnaaz (now deceased in this
case) was given in marriage to appellant/accused No.1
Rajesab about 1 year prior to the date of her complaint
and out of their wedlock, Shannaaz begotten a male child
aged about 3 months. Post marriage, accused Nos.1 to 5
started harassing the victim/deceased and ill-treating her
without any cause or reason. Whenever she used to visit
matrimonial home, she was informing the same to P.W.1.
It is further case of the P.W.1 that, on 18.11.2016 in the
night hours, the complainant and her relative had been to
the house of their relative one Anisahmad and at that
time, she came to know one Abubkar-P.W.9 had informed
his brother Noorulla Byadagi that the accused had sliced
her neck with a sharp blade in her matrimonial home. On
being heard, traumatized, she immediately rushed to the
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house of her daughter and noticed the dead body of her
daughter with severe blood injuries on her neck. She also
noticed a bloodstained blade by the side the dead body.
On seeing the scene of occurrence, herself and her family
members suspected the involvement of the accused in the
homicidal death of her daughter and came to know that all
the accused persons with their common intention have
subjected the deceased Shahnaaz to physical and mental
cruelty and accused No.1 might have committed the
murder of her daughter by using the said blade- MO.1.
Hence, P.W.1 lodged the complaint before P.W.36 as per
Ex.P1 which is registered by P.W.36-CPI in crime
No.328/2016 for the offences punishable under Sections
498A and 302 of IPC against this appellant and four other
accused i.e., accused Nos.2 to 5 as per Ex.P.15.
3. Subsequently, P.W.36 conducted investigation
and arrested accused Nos.1 to 5 and based on their
voluntary statement, incriminating materials i.e., weapons
and cloths of the accused and deceased were seized and
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the Investigating Officer conducted inquest panchanama
and spot mahazar. After recording the statement of all the
witnesses and by obtaining necessary documents from the
doctor and other concerned authorities, P.W.36 laid the
chargesheet against accused Nos.1 to 5 for the offences
punishable under Sections 498A, 109, 302, 304B r/w
Section 34 of IPC before the committal court.
4. After committal of the case before the sessions
court, the learned Sessions Judge framed charges for the
aforesaid offences and read over the same to the accused.
However, the accused denied the charges and claimed to
be tried.
5. In order to prove the charges leveled against
the accused, the prosecution examined in all 36 witnesses
as P.Ws.1 to 36 and got marked 42 documents as Exs.P1
to P42 so also placed 9 material objects M.Os.1 to 9.
6. After completion of the prosecution evidence,
the incriminating evidence of the material witnesses were
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read over to the accused by the learned Sessions Judge as
contemplated under the provisions of Section 313 of
Cr.P.C. The accused denied the same. However, the
accused neither choose to examine any witness on their
behalf nor got marked any document.
7. After assessment of oral and documentary
evidence placed before the learned Sessions Judge, the
learned Sessions Judge raised following points for
consideration.
"1. Whether the prosecution proves beyond all
reasonable doubt that accused No.1, having
married Shainaz daughter of Complainant on
25/8/2015, used to reside at Kolikeri with his
parents and as there was no co-ordination in
between Shahanaz and his parents at their ill
advice accused No.1, used to harass Shahanaz
physically and mentally by saying that she has
not brought much dowry and used to insist her
to sell the site of her mother and bring money
and thus subjected her to cruelty and thereby
all the accused have committed an offence
punishable under section 498(A) R/W Sec.34 of
I.P.C.?
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2. Do the prosecution further proves beyond all
reasonable doubt that accused Nos. 2 to 5 along
with accused Nos. 6 and 7 being relatives of
accused No.1 used to say that by marrying
Shainaz accused No.1 did not get anything and
used to abet accused No.1 to commit crime
against Shahanaz and thereby accused Nos.2 to
5 have committed an offence punishable under
section 109 I.P.C. ?
3. Do they further proves beyond all reasonable
doubt that accused No.1 on 18/11/2016 at
11.45 p.m., at his house situated at Kolikeri oni,
has committed the murder of Shahanaz by
doing an intentional act of cutting her neck with
a blade and thereby committed an offence
punishable under Section 302 I.P.C.?
4. Whether the prosecution further proves beyond
all reasonable doubt that accused No. 1, on the
above said date, time and place, caused bodily
injuries to deceased Shaniaz by cutting her neck
with Topaz blade, caused her death within seven
years of her marriage subjecting her to cruelty
and such cruelty and harassment by accused
Nos. 1 to 7 was in connection with their illegal
demand for dowry and money and thereby
committed an offence punishable under section
304(B) RIW Sec.34 of I.P.C.?
5. What order?"
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8. The learned Sessions Judge answered point
No.1 partly in the affirmative, point No.2 in the negative,
point No.3 in the affirmative, point No.4 in the negative
and point No.5 as per the final order and acquitted
accused Nos.2 to 5 for the offences punishable under
Sections 498A, 109, 302, 304B r/w Section 34 of IPC and
convicted the appellant/accused No.1 for the offence
punishable under Sections 498A and 302 of Indian Penal
Code and sentenced him as stated supra. The said
judgment is under challenge in this appeal.
9. Heard the learned counsel Sri.J.Basavaraj
appearing for the accused and also learned Additional SPP
for the State.
10. Learned counsel for the appellant/accused No.1
vehemently contends that judgment under appeal suffers
from perversity and illegality. The learned Sessions Judge
failed to appreciate the evidence placed before the court
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and based on surmises and conjectures convicted the
accused. According to the learned counsel, the entire case
rests on the circumstantial evidence. Further he submits
that the material witnesses P.Ws.1, 5, 7 and 9 are close
relatives of the deceased and they are interested
witnesses, as such their evidence cannot be relied by the
prosecution to convict the accused for the charges leveled
against him.
11. It is the case of the accused that deceased
Shahnaaz is characterless lady. In the absence of her
husband, she used to be in the company of one Basavaraj
Belur and on fateful night, accused No.1 had been to
Kalaghatagi for his work and while he returned home post
11.00 p.m. and on opening the door he noticed that
Basavaraj and his wife were having sexual coitus in the
bedroom and when he saw the accused who was in rage,
said Basavaraj flew away from the house. Though accused
chased him, he could not catch hold of him. Thereafter, he
submits that post accused returning home, he witnesses
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that his wife now deceased has sacked herself with the
blade on her neck and died due to bleeding injuries. The
accused immediately informed the said aspect to P.W.9
i.e., brother of P.W.1 and in turn, P.W.9 informed the
same to P.W.1 and thereafter, P.W.1 along with other
family members rushed to the spot. At that point of time,
accused was very much present. Hence, according to the
learned counsel, the accused himself informed about the
incident to the police and the family members of the
deceased, at the earliest point of time. In spite of that,
respondent-police without making proper investigation,
registered the FIR against the accused and his family
members out of vengeance, colluding with the family
members of the deceased i.e., P.W.1 and others.
12. Further, the learned counsel for the
appellant/accused also contend that, except the presence
of the accused in the scene of occurrence, on the fateful
night, the prosecution has failed to prove all other
circumstances including recovery of material objects which
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is used for the commission of the crime. Hence, in such
circumstances, the prosecution failed to complete the
chain of circumstance to prove the guilt of the accused. He
contends that, the learned Sessions Judge, without
considering the said aspects, has proceeded to convict the
accused for the offences punishable under Sections 498A
and 302 of IPC, which is not sustainable in law or on facts.
13. On the contrary, refuting the above submission
made by the learned counsel for the appellant, the learned
Additional SPP would vehemently contend that, the
Judgment under this appeal does not suffer from any
perversity or illegality, the learned Sessions Judge has
rightly convicted the accused, after appreciating the entire
evidence and documents available on record. He would
further contend that the learned Sessions Judge,
appreciated the evidence of the material witnesses i.e.
P.W.1, 5, 7 and 9, who have categorically deposed about
the harassment meted out by the accused to the
deceased, prior to the date of incident. According to the
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learned Addl. SPP, it is not in dispute that, the marriage of
the deceased Shahanaz was performed with the accused
No.1 on 25.08.2015 and the incident has occurred on
18.11.2016, which goes to show that, the said incident
has occurred within one year three months from the date
of marriage. It is also not in dispute that, the accused
No.1 was residing with his wife i.e., deceased, along with
small kids in the house of one Smt. Indu W/o. Pandurang
Tondle i.e., C.W.23 at Dharwad. This was proved by the
contents of Ex.P.2-spot mahazar. In such circumstances,
the presence of the accused in the house on the date of
incident in the midnight was very much proved by the
prosecution. As such, the incident was well within the
knowledge of the accused, if the accused failed to explain
the probable defence denying his involvement in the crime
and in the absence of such break-in evidence, the
interference can be drawn against the accused as
contemplated under the provisions of Section 106 of the
Indian Evidence Act. Further, the learned Addl. SPP would
contend that, though the accused has offered some
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explanation at the time of recording 313 statement, orally,
so also has filed a written explanation under Section 313
(3) of Cr.P.C., the said defence totally contradicts his
version at the time of cross-examination of the material
witnesses. Hence, it is the contention of the learned
Addl.SPP that the defence of the accused was not a
probable one and cannot be considered as a valid defense
as per Section 106 of Indian Evidence Act.
14. He also contends that, the Doctor who
conducted autopsy over the dead body as per Ex.P.18, has
clearly opined in his evidence that the murder of the
deceased was by cut injury on her neck with the blade i.e.,
M.O.1 and the Doctor has clearly denied the suggestion
that, if a person by holding M.O.1 blade in a emotional
mood inflicted to threaten to others, in such a
circumstance, the injuries mentioned in the postmortem
report over the dead body would have been caused.
Accordingly, learned Addl. SPP submits that, the medical
evidence of the Doctor corroborates with the ocular
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evidence of P.W.1, P.W.5, P.W.7 and P.W.9 and as such,
the prosecution has proved the guilt of the accused
beyond all reasonable doubt. Hence, the learned Sessions
Judge, convicted the accused for the charges leveled
against him in a well reasoned Judgment which does not
call for any interference by this Court. Accordingly, he
prays to dismiss the appeal.
15. Having heard the learned counsel for the
appellant, so also the learned Addl. SPP and also on
perusal of the evidence and the documents available on
record, including the trial Court records, the points that
would arise for our consideration are :
"i) Whether the Judgment under this appeal
suffers from any perversity or illegality?
ii) Whether the learned Sessions Judge is
justified in convicting the accused No.1/appellant for
the offences punishable under Sections 498A and
302 of IPC?"
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16. Since both these questions are interlinked with
each other, both these questions are taken up for
discussion together.
17. This Court being the appellate Court, re-
appreciation of the entire evidence is required.
Accordingly, on a cursory glance of the evidence available
on record -
P.W.1 -Smt. Shakeela is the complainant and mother
of the deceased.
P.W.2-Jailani Mohammad Hussain Khaji is the
mahazar witness of Ex.P.2 i.e. spot mahazar, wherein,
M.O.1 and M.O.2 i.e. weapon which is said to have been
used for the commission of crime seized by the
Investigating Officer.
P.W.3-Niyazahamed Riyazahamed Kakkargol, P.W.14
Naseer Malliksab Shaik and P.W.17 Smt. Noorjan W/o.
Buddasab Shaik are the inquest mahazar witness as per
Ex.P.3.
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P.W.4-Smt. Nirmala W/o. Manjunath Pujar is the
neighbor to the house where the crime is said to have
been committed.
P.W.5-Smt. Khadarbi Yaragatti is the elder sister of
P.W.1 and also a circumstantial witness who partly turned
hostile to the prosecution case.
P.W.6-Smt. Salma W/o. Saleem Betageri is an
eyewitness to the alleged incident, who has also turned
hostile to the prosecution case.
P.W.7-Noorulla Mohammadali Byadagi and P.W.9-
Abubkar Mohammadali Byadagi are the brothers of P.W.1
and soon after the incident, the accused informed about
the incident to P.W.9 Abubkar Byadagi, in turn he
informed the same to the P.W.7 and P.W.7 has informed
the same to P.W.1 and thereby P.W.1 lodged the
complaint -Ex.P.1.
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P.W.8-Smt. Dilshad Byadagi is the wife of P.W.7 and
the neighbor of P.W.1.
P.W.10-Smt. Dilshad Kattimani is the cousin of P.W.5
and P.W.11. She is a circumstantial witness who deposed
about the strained relationship of accused Nos.1 and the
deceased before the incident and on the date of incident
also she had been to the spot of the incident. However,
She has turned hostile to the prosecution case.
P.W.11-Mohammad Sharif Abdulsab Agasanahalli is
the relative of both the accused and the complainant, who
deposed about the panchayat held in respect of the
matrimonial dispute between the deceased and the
accused prior to the date of incident.
P.W.12-Hazarat Allabax Shaik and P.W.13 Punit
Basavaraj Javoor are the seizure mahazar witness i.e.
seizure of T-Shirt of accused which he had worn at the
time of the incident as per M.O.8 and also witnesses to the
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seizure of M.O.3 to M.O.7 i.e., clothes of the deceased
under Ex.P.10 and Ex.P.11, respectively.
P.W.15 Sayedgouse Makusab Golandaj is the Head
Constable who has produced the accused before the
Medical Officer for medical test and he brought the seized
clothes. P.W.16 Shankarappa Devappa Kurtkoti is the
police constable who was on the beat on the fateful night
of 18.11.2016 and he has been asked to go to the place of
the incident in the night hours by the Investigating Officer.
P.W.18 Smt. Nazima W/o. Asif Shaikh is the
neighbour to the house where the crime is said to have
been committed. She is a circumstantial witness, who
turned hostile to the prosecution case.
P.W.19-Smt. Bindumati W/o. Kariyappa is a another
circumstantial witness who identified M.O.1 blade.
P.W.20-Mohammad Hussain Babalal Khazi, P.W.21-
Babusab Fakruddin Akki and P.W.22-Nazeerahamed
Babusab Attar are the elders of the community who have
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deposed about the strained relationship of accused No.1
and the deceased that after the marriage when the dispute
aroused between the accused and deceased, these
witnesses advised the accused and the deceased to lead
happy and fruitful marital life.
P.W.23-Smt. Indu W/o. Pandurang Tondle is the
owner of the house where the accused and the deceased
were residing.
P.W.24-Smt. Yashoda W/o. Guddappa Chunchikoppa
is the Women Police Constable who carried the articles to
the FSL. P.W.25-Sharanabasayya Kallayya Aradimallimath
was a Head Constable who produced the FIR before the
Magistrate Court.
P.W.26-Aneesahmed Mohammad Hanif Kattimani is
the relative of P.W.1. She deposed about the relationship
of accused Nos.1 and the deceased. She is a hearsay
witness.
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P.W.27-P.B.M.Mahesh Shastry S/o. Kedarnath is the
Assistant Executive Engineer, drawn spot sketch as per
Ex.P.16.
P.W.28 Dr. Mohan Hanumaraddi Rangannavar and
P.W.32 Dr. Kavita D/o. Prabhakar Pattanshetty are the
Medical Officers who have conducted autopsy over the
dead body and issued postmortem report as per Ex.P.18
and gave their opinion as per Ex.P.20 that, "death is due
to hemmorrhagic shock secondary to incised cut throat
injury to the neck".
P.W.29-Hanumareddi Dharmareddi Rangannavar is
the police constable who assisted the Investigating Officer
to prepare spot mahazar as per Ex.P.2 and he also
tendered his assistance to draw seizure mahazar as per
Ex.P.10 and Ex.P.11.
P.W.30-Shivappa Rudrappa Tegur, Assistant Sub-
Inspector who arrested the accused.
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P.W.31 Ramachandra Vasudev Katti is the Taluka
Executive Magistrate on a request, attended to the
procedure contemplated in drawing the inquest mahazar
as per Ex.P.3.
P.W.33 Mahadevswamy Y.H. S/o. Y. C.
Hanumantnayak is the Chemical Analyst, issued report as
per Ex.P.34.
P.W.34 and P.W.36 are the Investigating Officers to
the case, among them P.W.36 registered FIR as per
Ex.P.15 based on the complaint of P.W.1 as per Ex.P.1.
P.W.34 is the Investigating Officer who laid chargesheet
against the accused for the aforesaid offences.
P.W.35 Dr. Sharanappa Annappa Katti is who treated
the accused No.1 and issued the report as per Ex.P.40.
18. On careful perusal of the above evidence
available evidence on record, in order to prove the
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homicidal death of the deceased the prosecution has
mainly relied upon the evidence of the Doctors i.e. P.W.28
and P.W.32 and the Post-Mortem report at Ex.P.18 and
opinion of the Doctor as per Ex.P.20 i.e. by P.W.22. On
perusal of Ex.P.18, the postmortem report, the doctor has
observed that the death has occurred due to an incisor cut
wound measuring 9 centimeter x 2 cm width in the centre
and 2 centimeter depth in the middle of the neck,
extending from left lateral side of the neck to the right
lateral side of the neck present over right upper 1/3rd of
anterior aspect of the neck. On examination of the said
injury, the Doctor has given final opinion as to the cause
of the death which is 'due to hemorrhagic shock secondary
to incised cut throat injury of the neck'.
19. Though the learned defense counsel
vehemently contended that, the prosecution has failed to
demonstrate homicidal death of the deceased, since the
deceased herself has committed suicide by inflicting
injuries on her neck from M.O.1 i.e., blade and to that
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effect, the defense has made an attempt to cross-examine
the Doctor i.e. P.W.28 as to the possibilities of a person
inflicting such injuries upon herself by holding M.O.1 blade
in an emotional mood to threaten others. But the Doctor
has denied the said suggestion. In the evidence of both
witnesses i.e. P.W.28 and P.W.32 the medical officers, the
defense of the accused has been turned down. In their
clear terms, both the medical officers have denied the
version of the accused No.1 that the injuries found at
Ex.P.18 could be self-inflicted injuries.
20. Nevertheless, P.W.31, the Taluka Executive
Magistrate conducted Inquest Panchanama on the dead
body of the deceased as per Ex.P.3 and P.W.3, P.W.14,
P.W.17 to P.W.31 are the witnesses for the same. All these
witnesses have categorically deposed that, they identified
the injuries found on the dead body of the deceased and
they also identified their signatures at Ex.P.3 the Inquest
Panchanama and their signatures have been marked at
Ex.P.3A to Ex.P.3E. In such circumstances, we are of the
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considered view that, the prosecution has proved
homicidal death of the deceased in this case.
21. In order to connect the accused/appellant for
the homicidal death of the deceased, the prosecution
mainly relied on the evidence of P.W.1, P.W.4, P.W.5,
P.W.7 and P.W.9. On careful perusal of the evidence
available on record, P.W.1 in her evidence has
categorically stated that, P.W.9- Abubkar was informed by
the accused that deceased has killed herself by blade
M.O.1 by cutting her neck and PW.9 informed the brother
of PW.1 Sri. Noorulla and he in-turn has informed the
PW.1. Consequently, she rushed to the spot where the
accused was also present. P.W.1 also admitted in her
cross-examination that, the police were also present at the
scene of occurrence before she reached to the spot.
Though the evidence of P.W.1 inspires confidence of this
Court in respect of the harassment meted out by the
accused to his wife/deceased before the incident, as far as
the alleged incident is concerned, P.W.1 being a hearsay
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witness and her evidence only enlightens the events
unfolded, post she reaching the scene of crime in the
night. Hence, her version cannot be relied upon to prove
the charges leveled against the accused for the offence
punishable under Section 302 of IPC.
22. PWs.7 and 10 have also deposed similarly as
that of PW.1 that, based on the information of PW-1, they
rushed to the spot where accused was present and
witnessed that the deceased had sustained cut injury to
her throat, thereafter, the police visited the spot and
subsequently, on the next day early morning, PW.1 lodged
the complaint before the police.
23. PW-18, who is the neighbour of the accused
and the deceased, deposed about the harassment meted
out by the accused to the deceased before the date of
incident. According to her, the relationship between the
accused and the deceased was feigned and the accused
was harassing the deceased both physically and mentally
before the incident and that aspect was informed by the
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deceased to her. However, this witness is also silent as to
the perpetrator who caused the homicidal death of the
deceased. Further, there is no whisper about she
witnessing the involvement of accused in the crime.
24. PWs.20 to 22 are the Zamat elders. All these
witnesses have categorically deposed that the accused and
the deceased were quarreling with each other and on that
account, a panchayat was held and in the said panchayat,
PWs-20 to 22 were present and they advised the accused
not to harass his wife/the deceased and in spite of that,
the accused continued to harass his wife/the deceased.
Except these aspects, these witnesses have specifically
denied the incident itself.
25. PW-23 is the land lady of the house where the
accused and the deceased were residing. On perusal of
her evidence, she has deposed that the accused and the
deceased were residing in the rented house belong to her
and both were quarrelling for silly reasons. So far as the
incident is concerned, she has stated that she was not
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there at her house at the time of the incident and
subsequently, she came to know that the accused had
committed murder of his wife. Hence, on careful perusal
of the evidence of above witnesses, except deposing about
the strained relationship between the accused and the
deceased, none of them have not deposed anything with
respect to the alleged incident.
26. As it is the admitted case of the prosecution
that there are no eye-witnesses to the alleged incident,
hence, the learned Sessions Judge has totally relied on the
evidence of the above witnesses to prove the charges
leveled against the accused. Admittedly, the above
witnesses are circumstantial witnesses. The Hon'ble Apex
Court has laid down the principles to appreciate the
evidences that are circumstantial in nature and held in the
case of Sharad Birdhichand Sarda v State of Maharashtra
reported in (1984) 4 SCC 116, reiterating the principles to
prove the case based on circumstantial evidence, has held
as follows:
- 28 -
NC: 2024:KHC-D:707-DB
"153. A close analysis of this decision would show
that the following conditions must be fulfilled before a
case against an accused can be said to be fully
established:
(1) the circumstances from which the conclusion of
guilt is to be drawn should be fully established.
It may be noted here that this Court indicated
that the circumstances concerned 'must or
should' and not 'may be' established. There is
not only a grammatical but a legal distinction
between 'may be proved' and 'must be or should
be proved' as was held by this Court in Shivaji
Sahabrao Bobade v. State of
Maharashtra [(1973) 2 SCC 793] where the
following observations were made:
19. ..."Certainly, it is a primary principle
that the accused must be and not
merely may be guilty before a court can
convict and the mental distance between
'may be' and 'must be' is long and divides
vague conjectures from sure conclusions."
(2) the facts so established should be consistent
only with the hypothesis of the guilt of the
accused, that is to say, they should not be
explainable on any other hypothesis except that
the accused is guilty,
(3) the circumstances should be of a conclusive
nature and tendency,
- 29 -
NC: 2024:KHC-D:707-DB
(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."
27. The Hon'ble apex Court also in the case of
Ramesh Bhai v State of Rajasthan reported in 2009 Crl.L.J.
2991 has summarized the principles and opined that,
'there is no doubt that conviction can be solely based on
circumstantial evidence, but it should be tested by the
touchstone of law relating to circumstantial evidence laid
down by this Court as far back as in 1952' and has held as
follows:
"11. In Hanumant Govind Nargundkar and Anr.
v. State of Madhya Pradesh, (AIR 1952 SC 343),
wherein it was observed thus:
"It is well to remember that in cases where the
evidence is of a circumstantial nature, the
circumstances from which the conclusion of guilt is to
be drawn should be in the first instance be fully
established and all the facts so established should be
consistent only with the hypothesis of the guilt of the
- 30 -
NC: 2024:KHC-D:707-DB
accused. Again, the circumstances should be of a
conclusive nature and tendency and they should be
such as to exclude every hypothesis but the one
proposed to be proved. In other words, there must be
a chain of evidence so far complete as not to leave
any reasonable ground for a conclusion consistent
with the innocence of the accused and it must be
such as to show that within all human probability the
act must have been done by the accused."
Hence, when all these settled principles are looked
into along with the case on hand, this Court cannot places
much evidentiary value to the evidence of PWs.1, 7, 10
and 20 to 23 in order to prove the guilt of the accused for
the offence punishable under Section 302 of IPC as they
categorically concede to the fact about the relationship
between the accused and deceased but not about the,
crime that has been committed by the accused.
28. In order to prove the circumstance of recovery
of M.O.1-Blade, which is said to have been used at the
time for committing the crime by the accused, the
prosecution mainly relied on the evidence of PW-19-who is
the owner of the petty shop where the accused is alleged
- 31 -
NC: 2024:KHC-D:707-DB
to have purchased M.O.1. On perusal of the evidence of
PW-19, she deposed that the accused came to her shop
along with the police and he himself informed her that he
had purchased M.O.1 from her shop. She also admitted in
her cross-examination that she cannot confidently admit
that she had sold M.O.1 to the accused. Hence, on
perusal of the evidence of PW.19, the prosecution has also
failed to prove recovery of M.O.1. So far as recovery of
M.Os.3 to 7 are concerned, the prosecution relied on the
evidence of PWs.12 and 13, under Exs.P-10 and 11.
However, both these witnesses have turned hostile to the
case of the prosecution.
In order to connect the accused with the alleged
crime, the prosecution mainly relied on the evidence of
PW-33-FSL Officer and alleged that M.O.8-T-shirt-said to
have been worn by the accused at the time of the incident,
was sent to FSL and in the FSL report-the Scientific Officer
has opined that the blood stains were found on M.Os.1 to
8 and those articles were stained with human blood group
- 32 -
NC: 2024:KHC-D:707-DB
'B'. As stated supra, since PWs.12 and 13 have turned
hostile, the prosecution has failed to prove the
circumstances of recovery of M.O.8 at the instance of the
accused. Hence, the prosecution has also failed to prove
that the circumstances of recovery of those shirt. In
support of the same, we would rely upon the decision of
Hon'ble Apex Court in the case of Subramanya v. State
of Karnataka, reported in 2022 SCC OnLine SC 1400
has observed thus:
"82. Keeping in mind the aforesaid
evidence, we proceed to consider whether
the prosecution has been able to prove
and establish the discoveries in accordance
with law. Section 27 of the Evidence
Act reads thus:
"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
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."
- 33 -
NC: 2024:KHC-D:707-DB
83. The first and the basic infirmity in the
evidence of all the aforesaid prosecution
witnesses is that none of them have
deposed the exact statement said to have
been made by the appellant herein which
ultimately led to the discovery of a fact
relevant under Section 27 of the Evidence
Act.
84. If, it is say of the investigating officer
that the accused appellant while in custody
on his own free will and volition made a
statement that he would lead to the place
where he had hidden the weapon of
offence, the site of burial of the dead
body, clothes etc., then the first thing that
the investigating officer should have done
was to call for two independent witnesses
at the police station itself. Once the two
independent witnesses would arrive at the
police station thereafter in their presence
the accused should be asked to make an
appropriate statement as he may desire in
regard to pointing out the place where he
is said to have hidden the weapon of
offence etc. When the accused while in
custody makes such statement before the
two independent witnesses (panch-
witnesses) the exact statement or rather
the exact words uttered by the accused
should be incorporated in the first part of
the panchnama that the investigating
officer may draw in accordance with law.
This first part of the panchnama for the
purpose of Section 27 of the Evidence
Act is always drawn at the police station in
the presence of the independent witnesses
so as to lend credence that a particular
statement was made by the accused
- 34 -
NC: 2024:KHC-D:707-DB
expressing his willingness on his own free
will and volition to point out the place
where the weapon of offence or any other
article used in the commission of the
offence had been hidden. Once the first
part of the panchnama is completed
thereafter the police party along with the
accused and the two independent
witnesses (panch-witnesses) would
proceed to the particular place as may be
led by the accused. If from that particular
place anything like the weapon of offence
or blood stained clothes or any other
article is discovered then that part of the
entire process would form the second part
of the panchnama. This is how the law
expects the investigating officer to draw
the discovery panchnama as contemplated
under Section 27 of the Evidence Act. If
we read the entire oral evidence of the
investigating officer then it is clear that the
same is deficient in all the aforesaid
relevant aspects of the matter."
29. Further, the learned Additional SPP vehemently
argued that on perusal of the evidence of the Doctor, who
conducted autopsy over the dead body of the deceased
i.e., PWs.28 and 32 and the opinion given by the Doctor,
depicts that the death was due to hemorrhage and shock
and secondary to the incised cut throat injury on the neck
and said Doctor has categorically denied the suggestion
- 35 -
NC: 2024:KHC-D:707-DB
put forth to him by the defence counsel that said injury is
self inflicted injury. Hence, under such circumstances, it is
the contention of the learned Additional SPP that accused
has to explain as to, if he has not caused said injury, then
who else has caused the same.
30. On perusal of the explanation offered by the
accused during the course of his 313 statement and also
the written explanation given by the accused under the
provisions of Section 313(2) of Cr.P.C. he has stated as
under:
"¢£ÁAPÀ 28-11-2016 gÀAzÀÄ ¨É½UÉÎ JzÀÄÝ PÀ®WÀlV HjUÉ ºÉÆÃV
£Á¼É §gÀÄvÉÛÃ£É CAvÁ £À£Àß ºÉAqÀw ªÀÄÈvÀ ±ÀºÀ£Ád½UÉ ºÉý ºÉÆÃVzÉÝ.
DzÀgÉ £Á£ÀÄ CzÉà ¢£À £À£Àß PÉ®¸À ªÀÄÄw¹PÉÆAqÀÄ ªÁ¥À¸À gÁwæ 12
UÀAmÉUÉ ªÀÄ£ÉUÉ §AzÀÄ 2-3 ¸Áj ¨ÁV®Ä §rzÉ. DzÀgÉ ªÀÄÈvÀ
±ÀºÀ£Ád¼ÀÄ ¨ÁV®£ÀÄß vÉUÉAiÀÄ°®è. ªÀÄvÉÛà JgÀqÀÄ ¨Áj ¨ÁV®Ä §rzÁUÀ
¨ÁV®Ä vÉgɬÄvÀÄ. £Á£ÀÄ M¼ÀUÀqÉ ºÉÆÃzÉ, ªÀÄ£ÉAiÉƼÀUÀqÉ PÀvÀÛ®Ä EvÀÄÛ.
¯ÉÊmï ºÀaÑgÀ°®è. PÀvÀÛ®Ä EzÉ CAvÁ ¯ÉÊmï ºÀaÑzÁUÀ §¸ÀªÀgÁd ¨ÉîÆgÀ
£À£ÀߣÀÄß zÀÆr ªÀÄ£ÉAiÀÄ ¨ÁV°¤AzÀ ºÉÆgÀUÉ ºÉÆÃzÀ£ÀÄ. £Á£ÀÄ CªÀ£À£ÀÄß
¨É£ÀßnÖPÉÆAqÀÄ ºÉÆÃzÉ. CªÀ£ÀÄ ¹UÀ°®è. £À£Àß ºÉAqÀw ªÀÄÈvÀ ±ÀºÀ£Ád
ªÀÄvÀÄÛ ¸ÀzÀj §¸ÀªÀgÁd£À £ÀqÀÄªÉ C£ÉÊwPÀ ¸ÀA§AzsÀ ºÉÆA¢zÀݼÀÄ. »ÃUÁV
£Á£ÀÄ ªÀÄ£ÉAiÉƼÀUÉ §AzÀ vÀPÀët £Á£ÀÄ K£ÁzÀgÀÆ ªÀiÁqÀÄvÉÛãÉAzÀÄ
w½zÀÄ £À£ÀߣÀÄß ºÉzÀj¸ÀĪÀ ¸À®ÄªÁV ªÀÄvÀÄÛ £À£Àß PÉÊUÉ §¸ÀªÀgÁd£À eÉÆvÉ
EzÀÝzÀÄÝ ¹Q̺ÁQPÉÆAqÉ C£ÀÄߪÀ PÁgÀt¢AzÀ ¨ÉèÃr¤AzÀ vÀ£Àß PÀÄwÛUÉAiÀÄ£ÀÄß
PÉÆAiÀÄÄÝPÉÆAqÀ¼ÀÄ. DUÀ CzÀ£ÀÄß £ÉÆÃr £Á£ÀÄ £À£Àß aPÀÌ¥Àà C§Ä§PÀgÀUÉ
£À£Àß ºÉAqÀw ¨ÉèÃr¤AzÀ vÀ£Àß PÀÄwÛUÉ PÉÆAiÀÄÄÝPÉÆArzÁݼÉAzÀÄ ¥sÉÆãÀ
ªÀiÁr w½¹zÉ. DUÀ £À£Àß aPÀÌ¥Àà£ÀÄ ¥ÉÆð¸ï oÁuÉUÉ ºÉÆÃV £ÀqÉzÀ
«µÀAiÀĪÀ£É߯Áè ºÉüÀÄ CAvÁ £À£ÀUÉ ºÉýzÀ£ÀÄ. £Á£ÀÄ zsÁgÀªÁqÀ «zÁåVj
¥ÉÆðøï oÁuÉUÉ ºÉÆÃV ¸ÀzÀj «µÀAiÀĪÀ£ÀÄß w½¹zÉ."
- 36 -
NC: 2024:KHC-D:707-DB
31. on perusal of the above explanation, it is the
contention of the accused that, on the date of the incident,
when he returned to his house at about 12:00 O'clock in
the mid night, the door was locked and when he knocked
the door, subsequently went inside the house and
switched on the lights, Basavaraj Belur pushed him who
was alleged to have been committing consensual sexual
coitus with the deceased pushed the accused No.1 and ran
away. Consequently, accused No.1 also asserts that he
chased him but, he failed to catch hold of the said person
and after returning to his house, he saw the deceased with
cut throat injury lying in a pool of blood. Immediately, the
accused informed the said aspect to PW-9-Abubakar, who
is his uncle, and said PW-9 informed the accused to inform
the said incident to the police.
32. On careful perusal of Ex.P-1-compiant lodged
by PW-1 depicts that, PW-1 was informed by PW-7
through PW-9-Abubakar. Hence, the version explained by
the accused in his statement, reveals in Ex.P1 which was
- 37 -
NC: 2024:KHC-D:707-DB
lodged at the earliest point of time. The said defence of
the accused corroborates the evidence of PWs.1, 7 and 9.
In such circumstances, it cannot be said that the accused
has failed to explain the circumstance as contemplated
under the provisions of Section 106 of the Evidence Act.
Hence, we are unable to accept the argument advanced by
the learned Additional SPP.
33. Nevertheless, the incident had occurred at
about 1:00am and the police were present at the place of
incident, at that time, but FIR came to be registered at
about 5:15 am. It is the case of PW-1 that the police were
very much present at about 1:00 am at the place of
incident. PWs.7 and 10 have deposed before the Court
that they saw the accused in the police station before
registering the FIR. Hence, there is unreasoned delay in
registering the FIR by the prosecution. In such
circumstances, we are of the considered view that the
prosecution failed to prove the guilt of the accused for the
offence punishable under Section 302 of IPC beyond all
- 38 -
NC: 2024:KHC-D:707-DB
reasonable doubt. The Hon'ble Apex Court in the case of
Trimukh Maroti Kirkan v State of Maharashtra reported
in (2006) 10 SCC 681 has held in paragraph No. 14 of the
Order as follows:
"14. If an offence takes place inside the privacy
of a house and in such circumstances where the
assailants have all the opportunity to plan and
commit the offence at the time and in
circumstances of their choice, it will be extremely
difficult for the prosecution to lead evidence to
establish the guilt of the accused if the strict
principle of circumstantial evidence, as noticed
above, is insisted upon by the courts. A judge does
not preside over a criminal trial merely to see that
no innocent man is punished. A judge also presides
to see that a guilty man does not escape. Both are
public duties. (See Stirland v. Director of Public
Prosecutions - quoted with approval by Arijit
Pasayat, J. in State of Punjab v. Karnail Singh.) The
law does not enjoin a duty on the prosecution to
lead evidence of such character which is almost
impossible to be led or at any rate extremely
difficult to be led. The duty on the prosecution is to
lead such evidence which it is capable of leading,
having regard to the facts and circumstances of the
case. Here it is necessary to keep in mind Section
106 of the Evidence Act which says that when any
- 39 -
NC: 2024:KHC-D:707-DB
fact is especially within the knowledge of any
person, the burden of proving that fact is upon him.
Illustration (b) appended to this section throws
some light on the content and scope of this
provision and it reads:
"(b) A is charged with travelling on a railway
without ticket. The burden of proving that he had a
ticket is on him."
34. The facts and circumstances of the present case
is similar to the facts mentioned in the aforementioned
case. Moreosver, the Hon'ble Apex Court in the case of
Jaikam Khan v. State of U.P., reported in (2021) 13 SCC
716 has held that Section 106 of the Indian Evidence Act
is not intended to relieve the prosecution of its burden to
prove the guilt of the accused beyond reasonable doubt,
burden would only shift to the cases in which the
prosecution has succeeded in proving the facts for which
a reasonable inference can be drawn regarding acceptance
of certain other facts, unless the accused by virtue of
special knowledge regarding such facts failed to offer any
explanation which might drive the Court to draw a
different inference. In the case on hand, the prosecution
- 40 -
NC: 2024:KHC-D:707-DB
failed to discharge the initial burden against the accused
by leading cogent evidence. The entire case of the
prosecution is based on the evidence of the
hearsay/circumstantial witnesses. The burden lies on the
prosecution to prove the guilt against the accused. If the
prosecution is able to discharge the initial burden, then a
presumption can be drawn against the accused as
contemplated under Section 106 of the Indian Evidence
Act, which in the current case on hand cannot be relied
upon.
35. Further, the Hon'ble Apex Court in the case of
Narendra Singh v. State of M.P., reported in (2004)
10 SCC 699 has opined that conviction when based on
circumstantial evidence, cannot be on the ground of 'may
be' but can only be on the ground 'must be'. The Hon'ble
Apex Court has also held that there is long distance
between 'may be' and 'must be' and in order to prove the
case of the prosecution as one under, must be that the
prosecution has to prove all the chains of link of
- 41 -
NC: 2024:KHC-D:707-DB
circumstantial evidence beyond reasonable doubt and also
all these chains should be so complete, living open no
rooms for differential interpretations and vague
conjectures from sure conclusions. But in the case on
hand, there seems no incriminating evidence pointing
directly towards the guilt of the accused so as connect him
to the homicidal death of the deceased is concerned.
36. Further, it is the cardinal principle of criminal
justice as reiterated by the Hon'ble Apex Court in
Pradeep Kumar v. State of Chhattisgarh, reported in
(2023) 5 SCC 350 that, in a case where ponderous
reliance is placed on circumstantial evidence and where
two views are possible i.e., one pointing to the guilt of the
accused and other towards his innocence, the one which is
favorable to the accused must be adopted.
37. By applying the dictums laid down by the
Hon'ble Apex Court to the case on hand, we are of the
opinion that, though the prosecution has successfully
proved the guilt of the accused for offence punishable
- 42 -
NC: 2024:KHC-D:707-DB
under Section 498A of IPC by relying on the evidence of
PWs.1, 5, 7 and 9, at the same time, has failed to prove
the involvement of the accused in the offence invoking
Section 302 of IPC by placing cogent evidence.
38. Hence, considering the facts and circumstances
of the case and for the reasons discussed supra, we are of
the considered opinion that the learned trial Judge has
failed to appreciate the evidence available on record in a
proper perspective and accordingly the impugned
judgment calls for interference in respect of the conviction
and sentence awarded for offence under Section 302 of
IPC.
Accordingly, we answer Point No.1 partly in the
affirmative and partly in the negative and point No.2 in the
negative and proceed to pass the following:
ORDER
i. The appeal is allowed in part.
- 43 -
NC: 2024:KHC-D:707-DB
ii. The judgment of conviction and order of sentence
dated 16.02.2019 passed in S.C. No.140/2017 by
the learned Principal Sessions Judge, Dharwad,
against the accused No.1/appellant insofar as the
offence punishable under Section 302 of the
Indian Penal Code is hereby set aside.
iii. The accused No.1/appellant is acquitted for the
offence punishable under Section 302 of IPC.
iv. The judgment of conviction and order of sentence
for the offence under Section 498A of IPC is kept
in-tact.
v. The accused No.1/appellant is in custody since
from seven years and one month. On payment of
the fine amount or undergoing the default
sentence for offence under Section 498A of IPC,
the Superintendent of Central Prison, Dharwad, is
directed to release the accused forthwith, if he is
not required in any other case.
- 44 -
NC: 2024:KHC-D:707-DB
Registry is directed to communicate this order to the
Jail Authorities concerned.
The operative portion of the judgment is already
communicated.
In view of disposal of the appeal, I.A.2/2019 does
not survive for consideration.
Sd/-
JUDGE
Sd/-
JUDGE
MBS para 1 to 10,
SVH para 11 to 18.
KMV from 19 till end
