Karnataka High Court

Manju vs The State Of Karnataka By on 7 November, 2024

Author: K.Somashekar

Bench: K.Somashekar

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                                                           NC: 2024:KHC:45039-DB
                                                             CRL.A No. 178 of 2018




                        IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                             DATED THIS THE 7TH DAY OF NOVEMBER, 2024

                                              PRESENT

                              THE HON'BLE MR JUSTICE K.SOMASHEKAR

                                                AND

                               THE HON'BLE MR JUSTICE RAJESH RAI K

                               CRIMINAL APPEAL NO. 178 OF 2018 (C)

                      BETWEEN:

                          MANJU
                          S/O ITAPPA
                          AGED ABOUT 53 YEARS
                          OCC: COOLIE
                          R/O LOKAVALLI VILLAGE
                          MUDIGERE TALUK
                          CHIKKAMAGALURU DISTRICT-577 132.
                                                                      ...APPELLANT
                      (BY SRI. N.R.KRISHNAPPA, ADVOCATE)

                      AND:
Digitally signed by
HARIKRISHNA V
Location: HIGH            THE STATE OF KARNATAKA BY
COURT OF                  MUDIGERE POLICE STATION
KARNATAKA
                          CHIKKAMAGALURU DISTRICT-577 132.
                          (REPRESENTED BY
                          THE STATE PUBLIC PROSECUTOR,
                          HIGH COURT BUILDINGS,
                          BENGALURU-560 001)
                                                                    ...RESPONDENT
                      (BY SRI. VIJAYAKUMAR MAJAGE, SPP-II)

                           THIS CRL.A. IS FILED U/S.374(2) OF CR.P.C PRAYING TO
                      SET ASIDE THE JUDGMENT OF CONVICTION DATED
                      09.03.2017 AND ORDER OF CONVICTION DATED 10.03.2017
                      PASSED BY THE PRINCIPAL DISTRICT AND SESSIONS JUDGE,
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                                           NC: 2024:KHC:45039-DB
                                           CRL.A No. 178 of 2018




CHIKKAMAGALURU IN S.C.NO.10/2016 - CONVICTING THE
APPELLANT/ACCUSED FOR THE OFFENCE P/U/S 302 OF IPC.

    THIS APPEAL, COMING ON FOR HEARING, THIS DAY,
JUDGMENT WAS DELIVERED THEREIN AS UNDER:

CORAM:     HON'BLE MR JUSTICE K.SOMASHEKAR
           and
           HON'BLE MR JUSTICE RAJESH RAI K

                      ORAL JUDGMENT

(PER: HON'BLE MR JUSTICE RAJESH RAI K)

This appeal by the convicted accused is directed against

the judgment of conviction and order of sentence dated

09.03.2017 and 10.03.2017 respectively passed in

S.C.No.10/2016 by the Principal District and Sessions Judge,

Chikkamagaluru, wherein the learned Sessions Judge convicted

the accused for the offence punishable under Sections 302 of

IPC and sentenced him to undergo imprisonment for life and to

pay a fine of Rs.5,000/-, in default, to undergo simple

imprisonment for a further period of three months, for the

offence punishable under Section 302 of IPC.

2. The factual matrix of the prosecution case in brief is as

under:

The complainant-Prema is a resident of Sattihalli,

Machagondanahalli Village, Chikkamangaluru District. Her

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mother Kalyanamma @ Rathna i.e., the deceased in the instant

case was married to the accused-Manju about 12 years prior to

the date of the incident. The accused and the deceased were

residing at Lokavalli Village.

3. It is further established in the case of the

prosecution that owing to family matters there were frequent

rows between the accused/appellant and the deceased-

Kalyanamma. Such being the scenario, on 30.10.2015 at

about 10-00 p.m., when the complainant-PW.1 and her

husband were at home, she received a phone call from her

brother-Vasantha-PW.5, who in-turn informed her that her

mother owing to illness was admitted to MGM Hospital,

Mudigere. As there was no public conveyance, the following

morning, i.e., on 31.10.2015 at about 11.00 a.m., the

complainant, her husband Munjunath, Vasantha-PW.5, her

aunt-Lakshmi and others visited Lokavalli Village and met her

mother's neighbours i.e., PW.6, PW.7 and PW.8. Upon enquiry,

they informed that her mother was admitted to the hospital

citing that on 30.10.2015 at about 3.30 p.m., her husband

assaulted her with a club as there was a quarrel between them.

Thereafter, the deceased was hospitalised. Immediately, the

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complainant and others visited Mudigere hospital where the

demise of Kalyanamma was communicated to them. On seeing

the dead body, they identified the injuries on her left thigh,

right hand and elbow. Accordingly, PW.1, the complainant

lodged a complaint against the accused on 31.10.2015 before

the respondent/police as per Ex.P1.

4. Based on the said complaint, the respondent-police

registered an FIR in Crime No.150/2015 dated 31.10.2015

against the accused for the offence punishable under Section

302 of IPC as per Ex.P22. Thereafter, the investigation officer-

PW.15 conducted the investigation by drawing the inquest

panchanama on the dead body, and other relevant mahazars.

Thereafter, the accused was arrested and his voluntary

statement was recorded. Based on the said voluntary

statement, the weapon i.e., MO.1 which is said to have been

used for the commission of the crime was seized by drawing

seizure mahazar as per Ex.P9. Subsequently, after recording

the statement of the material witnesses so also obtaining the

necessary documents from the concerned authorities, PW.14

laid the charge sheet against the accused for the offence

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punishable under Section 302 of IPC before the committal

Court.

5. After committal of the case before the Sessions

Court, the learned Sessions Judge framed the charges for the

offence punishable under Section 302 of IPC and the same was

read verbatim to the accused. However, the accused pleaded

not guilty for the charges leveled against him and claimed to be

tried.

6. In order to bring home the guilt of the accused for

the charges levelled against him before the trial Court, the

prosecution examined in total 15 witnesses as PW.1 to PW.15

and got marked 25 documents as per Ex.P1 to Ex.P25 and also

identified 5 material objects as MO.1 to MO.5.

7. After assessment of oral as well as documentary

evidence available on record, the learned Sessions Judge

convicted the accused for the charges leveled against him and

sentenced him as stated supra. The said judgment is

challenged under this appeal.

8. We have heard Sri N.R.Krishnappa, learned counsel

for the appellant/accused and Sri Vijaya Kumar Majage, learned

SPP-II for the respondent-State.

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9. It is the primary contention of the learned counsel

for the appellant/accused that the prosecution miserably failed

to prove the guilt of the accused beyond reasonable doubt.

However, the learned Session Judge convicted the accused

based on the surmises and conjectures. As such, the impugned

judgment is liable to be set aside.

10. He further contended that the eye-witnesses i.e.,

PW.6 to PW.8 have collectively turned hostile to the prosecution

case. As such, absolutely, there is no evidence available on

record to connect the accused for the homicidal death of the

deceased. He further contended that the family members of

the deceased i.e., PW.1 to PW.5 have also turned hostile to the

prosecution case. In such circumstances, except the evidence

of official witness, no other corroborative pieces of evidence are

available on record. Despite, the learned Sessions Judge

convicted the accused, causing miscarriage of justice to the

accused. Accordingly, he prays to allow the appeal.

11. Per contra, the learned SPP-II for the respondent-

State contended that the learned Sessions Judge after

meticulously examining the evidence on record, passed a well

reasoned judgment, which does not call for any interference by

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this Court. He further contended that the evidence of PW.1 to

PW.5 unambiguously establishes the fact that the accused and

the deceased were residing in the same house at the time of

the incident. Following the incident, the accused fled from the

house and he failed to provide any explanation for the

homicidal death of the deceased. In such circumstances, the

provision of Section 106 of Indian Evidence Act, 1872, clearly

attracts against the accused. He further contended that PW.1

to PW.5 have divulged about the strained relationship between

accused and deceased. In such circumstances, the prosecution

has proved the motive for the alleged incident. Further, he also

contended that PW.9, the witness for recovery mahazar i.e.,

MO.1 under Ex.P9, also supported the case of prosecution.

Hence, the prosecution has successfully proved the guilt of the

accused. Accordingly, he prays to dismiss the appeal.

12. Having heard the learned counsel of the respective

parties, so also having perused the evidence and documents

made available before us, the sole point arising for our

consideration is:

"(i) Whether the impugned judgment challenged under this appeal suffers from any perversity and illegality and calls for interference?"

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13. On careful perusal of the entire evidence on record,

in order to prove the homicidal death of the deceased, the

prosecution has relied on the evidence of PW.12 -

Dr.Vijayalakshmi, who conducted autopsy on the dead body

and issued PM report as per Ex.P14. On perusal of Ex.P14, the

cause of death is stated "hemorrhage and shock as a result of

head injury sustained". Further, the Doctor has opined that

there are as many as 8 injuries on the body of the deceased.

The Doctor further stated that the injuries mentioned are ante

mortem in nature. Apart from this evidence, the prosecution

also relied on the inquest panchanama conducted on the dead

body, as per Ex.P3. PW.1 to PW.4 were present at the time of

drawing inquest panchanama by PW.15. Ex.P3 also depicts

similar injuries on the dead body of the deceased. In such

circumstances, a conjoint reading of Ex.P3 and Ex.P14 coupled

with the evidence of PW.12 - Doctor, PW.1 to PW.4 so also

PW.15 - investigating officer, we are of the considered view

that the prosecution has proved the homicidal death of the

deceased beyond reasonable doubt.

14. In order to connect the accused in the homicidal

death of the deceased, the prosecution has mainly relied on the

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evidence of PW.7 to PW.9, who are the eye witnesses to the

incident. On perusal of the evidence of these witnesses, all of

them have collectively turned hostile to the prosecution case.

Though the learned Prosecutor cross-examined these

witnesses, nothing worthwhile has been elicited from their

mouth in respect of the incident as stated by them in their 161

statement before the police. Further, the prosecution also relied

on the evidence of PW.1 to PW.5, who are the relatives of the

deceased. Among them PW.1 - complainant, who is the

daughter of the deceased has deposed that on the date of the

incident, PW.3 made a telephone call and informed about the

incident. However, on the following morning i.e. on

31.10.2015, she came to the house of the accused along with

PW.3 and other relatives. By that time, the injured was shifted

to the hospital and there they identified the dead body. It is

the specific say of PW.1 that PW.5 had informed her about the

demise of the deceased and that the accused had committed

the murder of the deceased by assaulting her with M.O.1.

15. As it is apparent from the evidence of PW.5, he has

denied the evidence of PW.1. According to PW.5, the incident

was narrated to him by the neighbor of the deceased i.e., PW.6

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to PW.8. In turn, he informed the same to PW.1. Hence, on

careful perusal of the PW.1 and PW.5, both are considered as

hearsay witnesses to the incident. As far as the evidence of the

neighbors i.e., PW.6 to PW.8 are concerned they informed the

incident to PW.5 and PW.1 to PW.3. Subsequently, they all

have collectively turned hostile to the prosecution case. Hence,

much evidentiary value cannot be attached to the evidence of

PW.1 and PW.5.

16. The Hon'ble Apex Court in the case of Kalyan

Kumar Gogoi vs. Ashutosh Agnihotri and others reported

in AIR 2011 SC 760 in respect of, reliability of hearsay

witnesses is quoted verbatim as under:

"37. Here comes the rule of appreciation of hearsay evidence. Hearsay evidence is excluded on the ground that it is always desirable, in the interest of justice, to get the person, whose statement is relied upon, into court for his examination in the regular way, in order that many possible sources of inaccuracy and untrustworthiness can be brought to light and exposed, if they exist, by the test of cross-examination. The phrase "hearsay evidence" is not used in the Evidence Act because it is inaccurate and vague. It is a fundamental rule of evidence under the Indian law that hearsay evidence is inadmissible. A statement, oral or written, made otherwise than by a witness in giving evidence and a statement contained or recorded in any book, document or record whatsoever, proof of which is not admitted on other grounds, are deemed to be irrelevant for the purpose of proving the truth of the matter stated. An assertion other than one made by a person while giving oral evidence in the proceedings is inadmissible as evidence of any fact asserted. That this species of evidence cannot be tested by cross-examination and that, in many cases, it supposes some better testimony which ought to be offered in a particular case, are not the sole grounds for its exclusion. Its tendency to protract legal investigations to an embarrassing and dangerous length, its

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intrinsic weakness, its incompetence to satisfy the mind of a judge about the existence of a fact, and the fraud which may be practiced with impunity, under its cover, combine to support the rule that hearsay evidence is inadmissible.

38. The reasons why hearsay evidence is not received as relevant evidence are:

(a) the person giving such evidence does not feel any responsibility. The law requires all evidence to be given under personal responsibility i.e. every witness must give his testimony, under such circumstance, as expose him to all the penalties of falsehood. If the person giving hearsay evidence is cornered, he has a line of escape by saying "I do not know, but so and so told me",

(b) truth is diluted and diminished with each repetition, and

(c) if permitted, gives ample scope for playing fraud by saying "someone told me that...". It would be attaching importance to false rumour flying from one foul lip to another. Thus statements of witnesses based on information received from others is inadmissible.

17. Thus, it is clear and pivotal that much evidentiary

value cannot be attached to the evidence of hearsay witnesses.

In the instant case, as PW.6 to PW.8 have turned hostile, there

is absolutely no other corroborative piece of evidence to rely on

the version of PW.1 to PW.4. Learned SPP-II vehemently

contended that the alleged incident took place in the house of

the accused and at the time of the incident, it was solely the

accused and deceased residing in the said house. As such the

onus is on the accused to explain the reason for death of the

deceased, if the accused did not perpetrate the crime then who

else has committed it? In such circumstance, according to the

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learned SPP as per the provisions of Section 106 r/w 114 of the

Indian Evidence Act, adverse inference can be drawn against

the accused. However, it is also settled preposition of law that

the prosecution has to discharge initial burden against the

accused by placing reliable evidence. If the prosecution

successfully discharges and absolves the initial burden by

placing cogent evidence, it is then that the burden shifts upon

the accused to explain the circumstance. Our view is fortified

by the judgment of the Hon'ble Apex Court in the case of

Jaikam Khan vs. State of Uttar Pradesh reported in (2021)

13 SCC 716.

18. In the case on hand, since the prosecution has

miserably failed to discharge the initial burden against the

accused, the contention of learned SPP cannot be accepted.

19. Another pertinent contention raised by the learned

SPP is that PW.9, who is the witness for the recovery mahazar

- MO.1, the wooden stick which is said to have been used for

commission of crime at the instance of the accused, supported

the case of the prosecution. As such, the recovery at the

instance of accused is proved. On careful perusal of the

evidence of PW.9, this witness partially turned hostile to the

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prosecution case. In his cross-examination, he has

categorically deposed that it is difficult to identify whether MO.1

was seized at the instance of the accused. He further stated

that he was unaware and unacquainted with contents

enumerated in Ex.P9. In such circumstances, our considered

view is that his evidence cannot be relied to prove the contents

of Ex.P9 and recovery of MO.1.

20. As regards other circumstances are concerned, it is

the contention of the learned SPP that as the homicidal death of

deceased is proved beyond reasonable doubt and PW.14 and

PW.15, being the investigating officers have categorically

deposed about drawing of mahazars and recording of

statements of eye witnesses, their evidence cannot be

discarded merely for the reason that they are official witnesses.

We are well aware of the said aspect. However, the Hon'ble

Apex Court in the case of Pradeep Narayan Madgaonkar vs.

State of Maharashtra reported in (1995) 4 SCC 255 held as

under:

"11. ..........Indeed, the evidence of the officials (police) witnesses cannot be discarded merely on the ground that they belong to the police force and are, either interested in the investigating or the prosecuting agency but prudence dictates that their evidence needs to be subjected to strict scrutiny and as far as possible corroboration of their evidence in material

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particulars should be sought. Their desire to see the success of the case based on their investigation, requires greater care to appreciate their testimony.........."

21. In the instant case, as stated supra, absolutely

there is no such corroborative piece of evidence available on

record to rely on the version of PW.14 and PW.15, the

investigating officers.

22. Further, on careful perusal of the contents of Ex.P1

- complaint lodged by PW.1 and her evidence before the Court,

there are clear discrepancies. The contents of complaint does

not corroborate with the evidence of PW.1. Further, the scribe

of Ex.P1 is also not examined by the prosecution. Hence, on

overall perusal of the entire evidence on record, except the

homicidal death of the deceased, the prosecution has miserably

failed to connect the accused for the same. Hence, we are of

the view that the prosecution has failed to prove the guilt of the

accused beyond reasonable doubt. The learned Sessions Judge

misread the evidence of material witnesses and passed the

impugned judgment. As such interference is required in the

impugned judgment. In that view of the matter, we answer the

point raised in 'affirmative' and proceed to pass the following:

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ORDER

Crl.A.No.178/2018 filed by the appellant / accused is

allowed.

The judgment of conviction dated 09.03.2017 and order

of sentence dated 10.03.2017 passed in S.C.No.10/2016 by the

Principal District and Sessions Judge, Chikkamagaluru is set-