Karnataka High Court

Sri. Changulanda vs State Of Karnataka on 6 November, 2024

Author: K.Somashekar

Bench: K.Somashekar

                           -1-
                                   CRL.A No. 2020 of 2017



     IN THE HIGH COURT OF KARNATAKA AT BENGALURU
       DATED THIS THE 6TH DAY OF NOVEMBER, 2024
                        PRESENT
         THE HON'BLE MR JUSTICE K.SOMASHEKAR
                           AND
           THE HON'BLE MR JUSTICE S RACHAIAH
         CRIMINAL APPEAL NO. 2020 OF 2017 (C)
BETWEEN:

1.    SRI. CHANGULANDA
      RAKESH @ RAKI
      S/O SRI RAJU
      AGED ABOUT 31 YEARS,
      MANAGER OF THE HOME STAY
      R/AT POMPE VALLEY HOME STARY
      OF TOM D'SOUZA
      PERMANENTLY R/AT
      NEAR MAHADEVA TEMPLE HUDIKERI
      VIRAJPET TLAUK
      KODAGU DISTRICT- 571 249.

      SINCE DEAD APPEAL AGAINST APPELLANT NO.1 IS
      DISMISSED
      AS PER ORDER DATED 17/11/23

2.    SMT BAYADA DEENA
      W/O SRI PRASANNA
      AGED ABOUT 37 YEARS,
      COOK IN THE HOME STARY OF
      UNNIKRISHNA, JAYANAGAR
      MADIKERI
      PERMANENTLY R/AT KANNANDABANE
      MADIKERI-571201

                                            ...APPELLANTS

(BY SRI. JAGADISH BALIGA N , ADVOCATE FOR
         APPELLANT NO.2)
                               -2-
                                      CRL.A No. 2020 of 2017




AND:

    STATE OF KARNATAKA
    BY MADIKERI TOWN POLICE
    MADIKERI, KODAGU DISTRICT
    REPRESENTED BY
    STATE PUBLIC PROSECUTOR
    HIGH COURT BUILDING
    BENGALURU - 560 001.

                                               ...RESPONDENT

(BY SRI. VIJAYAKUMAR MAJAGE, SPP-II)

     THIS CRL.A. IS FILED U/S.374(2) CR.P.C PRAYING TO
SET ASIDE THE IMPUGNED JUDGMENT OF CONVICTION AND
SENTENCE DATED 14.11.2017 PASSED BY THE I ADDITIONAL
DISTRICT AND SESSIONS JUDGE, KODAGU, MADIKERI IN
S.C.NO.46/2010.

    THIS CRIMINAL APPEAL HAVING BEEN RESERVED FOR
HEARING, COMING ON FOR PRONOUNCEMENT THIS DAY,
S RACHAIAH .J, DELIVERED THE FOLLOWING:

CORAM:       THE HON'BLE MR JUSTICE K.SOMASHEKAR
             AND
             THE HON'BLE MR JUSTICE S RACHAIAH


                        CAV JUDGMENT

(PER: THE HON'BLE MR JUSTICE S RACHAIAH)

1. This appeal is directed against the judgment of

conviction and order of sentence passed in S.C.No.46/2010

dated 14.11.2017 by the learned I Addl. District and Sessions

Judge, Kodagu, Madikeri for the offences punishable under

Sections 302 and 201 of IPC.

The brief facts of the case:

2. The case of the prosecution is that deceased and

accused No.2 were husband and wife. The complainant was

the father of the deceased. As per the averments of the

complaint, initially, accused No. 2 and the deceased were living

at Kannadabade Village for ten years and the deceased was

working as electrical decorator. The deceased and accused No.2

initially were working in a home stay which was situated at DAR

police quarters. Thereafter, they have shifted to another home

stay which was being run by C.W.11.

3. It is further stated in the complaint that accused

No.1 was also working in the said home stay where accused

Nos. 2 and deceased had joined. It is stated that accused No.1

said to have developed illicit relationship with accused No.2 and

the said fact was got to know to the deceased. Consequently,

there were frequent quarrels between accused No.2 and the

deceased. The owner of the home stay being frustrated for the

said quarrel, thrown out the deceased from the home stay. The

deceased after being thrown out from the home stay, started

living with his father in Madikeri. Thereafter, the deceased said

to have gone to Bengaluru and working there in the hotel for

two years. After some days, he had been to Aiyappaswamy

temple returned to his native place. After advice of his father

and others, he left the job at Bengaluru and started residing

with his parents. During the said period, the well wishers and

advisers have resolved the difference of opinion of the couple.

4. As per the said panchayath, accused No.2 was

advised to stay along with the deceased. The deceased joined

the home stay of P.W.2 wherein he was allotted outhouse. In

the said house, accused No.2, two children and deceased were

staying and working in the home stay.

5. It is further stated that on 08.02.2010, the Manager

of the home stay who has been examined as P.W.10 came to

work and saw that the front door of the house of the deceased

was locked from inside. However, the back door was opened

and he entered inside the house where he said to have seen

that accused No.2 and C.W.16 were confined in the bathroom.

6. It is further stated that P.W.10 had seen that the

deceased was laid on the floor in a pool of blood. Immediately,

he informed the said fact to P.W.2 who is the owner of the

home stay. P.W.2 came to the spot and stated to have

enquired accused No.2 about the incident. However, he could

not get any satisfactory answers. Thereafter he called P.W.11

to the said spot.

7. P.W.1 being the father of the deceased after

received the information said to have lodged the complaint on

09.02.2010 around 7.30 a.m., the jurisdictional police after

conducting the investigation, submitted the charge sheet.

8. To prove the case of the prosecution, the

prosecution has examined twenty witnesses as P.Ws.1 to 20

and got marked 25 documents as Ex.Ps.1 to 25 and also

identified 17 material objects as M.Os.1 to 17. On the other

hand, the defense examined one witness as D.W.1 and got

marked two documents as Ex.D1 and D2.

9. The Trial Court after appreciating the oral and

documentary evidence on record, recorded the conviction for

the offences punishable under Sections 302 and 201 read with

34 of IPC.

10. Being aggrieved by the said judgment of conviction

and order on sentence, the appellants are before this Court

seeking to set aside the judgment of conviction and order on

sentence.

11. Heard Sri. Jagadish Baliga N, learned counsel for

the appellants and Sri.Vijayakumar Majage, learned SPP-II for

respondent.

12. It is the submission of the learned counsel for the

appellants that the judgment of conviction passed by the Trial

Court is contrary to the evidence on record and also opposed

facts and circumstances. Therefore, the same is liable to be set

aside.

13. It is further submitted that the entire evidence is

based on the circumstantial evidence and the prosecution has

not proved the case beyond reasonable doubts.

14. It is further submitted that the evidence of P.Ws.1,

3, 5 and 6 who stated to be the material witnesses of the case,

even though stated to have supported the case of the

prosecution, that may not be sufficient to prove that accused

Nos. 1 and 2 had illicit relationship and the deceased was killed

for the said reasons.

15. It is further submitted that though P.Ws.2, 10 and

11 have supported the case of the prosecution in respect of

seizure of bucket, clothes and torch in the house of the

deceased, that may not be sufficient to hold that the accused

Nos. 1 and 2 have conspired and killed the deceased.

16. It is further submitted that even though the FSL

report would indicate that the blood stain found on the material

objects was of 'O' group, in the absence of independent witness

in respect of seizure of the clothes of accused No.1, it cannot

be said that accused No.1 has killed the deceased. Moreover,

the Investigating Officer who conducted the investigation has

not been examined by the prosecution.

17. It is further submitted that the prosecution has not

proved the guilt beyond reasonable doubt regarding the

involvement of accused No.1 in committing the murder of

deceased and also not proved the motive for committing the

murder of the deceased. Therefore, the conviction recorded by

the Court below is not proper and reasonable. Hence, the same

is liable to be set aside. Making such submissions, the learned

counsel for the appellants prays to allow the appeal.

18. Per contra, the learned SPP-II for respondent-State

vehemently justified the judgment of conviction passed by the

Trial Court and submitted that the prosecution has proved the

motive for murder through the evidence of P.W.1, 3, 5 and 6.

P.W.1 being the father of the deceased has categorically

supported the case of the prosecution and deposed that when

accused No.2 and the deceased were working in the home stay

of the C.W.11, accused No.1 was also working in the same

place. The deceased was informing about the illicit relationship

of accused No.2 with accused No.1 to P.W.1, as such, he was

aware about the said fact.

19. It is further submitted that admittedly, the death

had occurred in the out house of P.W.2. P.W.10 said to have

seen the incident at the first instance and thereafter, he

informed about the incident to P.W.2. In turn P.W.2 called

P.W.11 and all the three of them were present and assisted the

jurisdictional police in conducting the investigation.

20. It is further submitted that the material objects were

recovered and seized at the instance of accused No.1 in the

presence of panch witnesses namely P.Ws.2, 10 and 11. They

have supported the case of the prosecution. Such being the

fact, the prosecution has proved that accused Nos. 1 and 2

have committed the murder of the deceased. Therefore, the

findings of the Trial Court in recording the conviction is just

and proper and therefore, the same is liable to be upheld.

Making such submissions, the learned SPP-II prays to dismiss

the appeal.

21. After having heard learned counsel for the

respective parties and also on careful perusal of the finding of

the Trial Court in recording the conviction, it is appropriate to

reappreciate the evidence of the witnesses for the purpose of

arriving at a conclusion.

22. P.W.1 being a father of the deceased deposed in his

evidence that accused No. 2 was the wife of the deceased. Both

his son and accused No.2 were initially working in the home

stay of C.W.11. The deceased used to suspect the fidelity of

accused No.2 and also quarrelling with accused No.2 stating

that she had illicit relationship with accused No.1. He further

deposed that the said quarrel was known to him through his

deceased son. P.W.1 has supported the case in respect of

motive for murder. Though, he has been cross examined at

length, nothing has been elicited to discredit his

trustworthiness. However, he never stated about the presence

of Accused No.1 in that place where the incident had occurred.

23. P.W.2 was the owner of the home stay namely

'Harihara Holiday'. He deposed that the deceased and accused

No.2 were working in his home stay and the deceased was

exclusively looking after the kitchen. According to him, both

deceased and accused No.2 along with their children were

residing in the out house situated in the vicinity of the home

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stay. He further deposed that he has received an information

from P.W.10 regarding the death of the deceased. He went to

the spot and saw that the deceased was laid on the floor in the

pool of blood. Further he deposed that accused No.2 was

present at the spot of crime.

24. P.W.3 was the manager of home stay of P.W.2 and

he is the witness to Ex.Ps.7 and 8. According to him, in his

presence M.O.Nos. 9-12 were seized.

25. P.W.4 brother of the deceased deposed in his

evidence about the illicit relationship between accused Nos. 1

and 2 and supported the case.

26. P.W.5 has been examined to depose about the

presence of accused No.2 at the scene of occurrence.

Accordingly, she supported the case of the prosecution.

27. P.W.6 mother of the deceased deposes about the

illicit relationship of accused Nos. 1 and 2.

28. P.W.7 brother-in-law of the deceased and husband

of P.W.5. He deposed about the presence of accused No.2 on

08.02.2010 with the deceased. He has supported the case of

the prosecution.

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29. P.W.8 the owner of the home stay namely 'Pompei

Valley'. He supposed to depose about the presence of accused

Nos. 1 and 2 along with the deceased in his home stay.

However, he has turned hostile.

30. P.W.9 who is the witness to Ex.P.9 under which

rubber hand glouse-M.O.13, blood stained T-shirt-M.O.14,

torch-M.O.15 and bag-M.O.16 were seized. However, he has

turned hostile to the case.

31. P.W.10 was also working as a manager of home

stay of P.W.2 who stated to have seen the deceased in the

earliest point of time.

32. P.W.11 who is the neighbor of P.W.1. He deposed

that he was called and informed regarding the death of the

deceased by P.W.2. After receiving the information, he said to

have gone to the place of occurrence and he was present

during the investigation.

33. P.W.12 police constable was present in the hospital

where post mortem of the deceased had taken place. After the

post mortem getting done, he collected the clothes of the

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deceased and handed over the same to the Investigating

Officer.

34. P.W.13 was working as a junior engineer of PWD.

He stated to have prepared the spot sketch as per Ex.P.11.

35. P.W.14 was photographer said to have taken some

photographs of the deceased as per the direction of the

Investigating Officer.

36. P.W.15 was working as a Commissioner, Municipal

Council of Madikeri. On requisition, he said to have submitted

the records to the Investigating Officer as per Ex.P.14.

37. P.W.16 was working as a police constable. He was

deputed to secure accused Nos. 1 and 2. According to him he

received credible information on 09.02.2010 that accused no. 2

is staying in her mother's house. Therefore, he along with

others went to the spot and secured accused No.2 to their

custody. Thereafter, he went to home stay of P.W.8 situated at

Thalathamane and arrested accused No.1.

38. P.W.17 was working as PSI, he said to have

registered FIR on the basis of complaint given by P.W.1 and the

said FIR came to be registered on 09.02.2010 around 7.30

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a.m. He said to have conducted partial investigation and

handed over the same to C.W.31- CPI.

39. P.W.18 has been examined for the purpose of

deposing about seizure mahazar which is marked as Ex.P.6. He

supported the case of the prosecution.

40. P.W.19 was working as a Medical Officer at

Government Hospital, Madikeri in the year 2009-10 and

according to her, she conducted post mortem report and

submitted the report as per Ex.P.21. As per the report, the

death was due to shock and hemorrhage as a result of chop

injury sustained.

41. P.W.20 was working as Assistant Director of RFSL,

Mysuru. He said to have examined the articles which were sent

to him. After examining those articles, he submitted his report

as per Ex.P.20.

42. On the other hand, the defense has examined

D.W.1 who is the son of accused No.2. According to D.W.1, on

the date of alleged incident, he and his mother had been to the

house of his grand mother to attend Sathyanarayana pooja. He

further stated that he received a phone call regarding the death

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of his father on 09.02.2010 around 7.00 a.m. Immediately, he

rushed to his house along with his mother and brother and also

saw that police were assembled in front of his house. Though

he has been cross examined at length by the prosecution,

nothing has been elicited to discredit his trustworthiness.

ANALYSIS

43. The case of the prosecution is that the deceased

and accused No.2 had two children and they were working in

the home stay of P.W.2. As per the prosecution version,

accused No.2 along with accused No.1 conspired with each

other and committed murder of the deceased in order to clear

their route to continue their illicit relationship.

44. The prosecution has examined several witnesses to

speak about the motive for the murder of the deceased. They

are P.Ws.1, 4, 5 and 6. P.W.1 is the father of the deceased.

P.W.4 is the brother of the deceased. He deposed that his

brother was not living with accused No.2 as she had illicit

relationship with accused No.1. Thereafter, the family members

of accused No.2 have compromised the matter. Consequently,

accused Nos. 2 and deceased started living together in the said

home stay.

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45. P.W.5 is the sister of the deceased and she also

deposed regarding illicit relationship of her sister-in-law who is

arraigned as accused No.2.

46. P.W.6 is the mother of the deceased and she is also

reiterated the same words as that of other witnesses which is

relating to illicit relationship of her daughter-in-law who is

arraigned as accused No.2.

47. All these witnesses have spoken about illicit

relationship of the accused No.2 with accused No.1. Further,

they deposed that the said illicit relationship was developed

between the accused No.1 and 2 when they were working in

the home stay of P.W.8. However, P.W.8 denied that the

deceased and accused No.2 were working in his home stay at

any point of time. Moreover, the Investigating Officer did not

produce any documents to show that deceased and accused

No.2 were working in the said home stay.

48. As regards the death of the deceased in the home

stay of P.W.2 is concerned, three witnesses are material

witnesses to speak about the incident and they are P.Ws.2, 10

and 11. P.W.2 is the owner of the home stay. He stated that

when he was at his home, he was informed regarding the death

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of the deceased by P.W.10. On receiving the said information,

he went to the spot and found that the deceased was lying in

the pool of blood and also noticed that accused No.2 was sitting

in the bathroom. Similarly, P.W.10 stated in his evidence that

he was working as a manager of the home stay and came to

work around 6.30 a.m., and he noticed that the door of the out

house of the deceased was locked. He called the deceased,

however, he could not get any response. Therefore, he went

inside the house from the back door of the house. Further, he

noticed that accused No.2 was confined in the bathroom along

with C.W.16 who is her son. He is said to have opened the

bathroom door and he was informed that the deceased

committed suicide by cutting his neck.

49. Further, P.W.11 did not speak anything about the

presence of accused No.2 at the spot. None of the witnesses

have spoken about the presence of accused No.1 in the home

stay as on the date of alleged incident. Moreover, P.W.8 who is

the owner of the home stay where accused No.1 alleged to had

been working in the said home stay has not supported the case

of the prosecution and also did not speak about accused No.1.

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50. The Investigating Officer ought to have collected

the evidence in respect of presence of accused No.1 in the

vicinity of home stay of P.W.2. The Investigating Officer neither

collected the CC TV footage or produced any evidence to

substantiate the presence of accused No.1. In the absence of

proof regarding the presence of accused No.1 as on the date of

alleged incident, it cannot be arrived at a conclusion that

accused No.1 has committed murder of the deceased.

51. The Trial Court ought to have appreciated the

evidence of P.W. 10 who is working as a manager of home stay

of P.W.2. As per the evidence of P.W.10, accused No.2 and

C.W.16 were confined in the bathroom and he opened the door

of the bathroom on hearing the voice from inside. Such being

the fact, it cannot be said that she has invited accused No.1 to

commit the murder of the deceased. Moreover, C.W.16 has not

been examined by the prosecution, though he is a charge sheet

witness.

52. The evidence of D.W.1 would indicate that on the

previous date of the incident, his father and mother had

quarreled with each other. Consequently, her mother and other

brother and D.W.1 had been to his grand mother's house to

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attend the sathynarayana pooja and they received an

information regarding the death of the deceased and

immediately they rushed to the spot to see the dead body of

his father.

53. Further, the evidence of P.W.16 would indicate that

accused No.2 was arrested on 09.02.2010 around 6.30 p.m.,

from her parent's house. This would indicate that she was not

present at the spot.

54. On careful reading of the evidence of all the

witnesses, there are some contradictions, improvements and

omission in respect of presence of accused No.1 and 2 at the

spot where the deceased alleged to have been killed.

55. It is needless to say that when two views are

possible, the view which favours the accused has to be

considered and benefit of doubt should be extended to the

accused. However, the Trial Court has failed to consider this

aspects properly and recorded the conviction which appears to

be not proper and erroneous. Therefore, the conviction is liable

to be set aside. Hence, we are of the considered opinion that

the conviction of the accused is liable to be set aside.

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56. In the light of the observation made above, I

proceed to pass the following:

ORDER

(i) The criminal appeal is allowed

(ii) The judgment of conviction and order on

sentence dated 14.11.2017 passed in

S.C.No.46/2010 on the file of the I Addl.

                  District   and      Sessions    Judge,   Kodagu   at

                  Madikeri is hereby set aside.

       (iii)      Accused Nos. 1 and 2 are acquitted for the