Karnataka High Court
Rama S/O Timmanna Gubbewad @ Gollar vs The State Of Karnataka on 8 January, 2025
Author: S.Sunil Dutt Yadav
Bench: S.Sunil Dutt Yadav
-1-
NC: 2025:KHC-K:89-DB
CRL.A No. 200209 of 2022
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 8TH DAY OF JANUARY, 2025
PRESENT
THE HON'BLE MR JUSTICE S.SUNIL DUTT YADAV
AND
THE HON'BLE MR JUSTICE RAJESH RAI K
CRIMINAL APPEAL NO.200209 OF 2022
(374(Cr.PC)/415(BNSS)
BETWEEN:
RAMA S/O TIMMANNA GUBBEWAD @ GOLLAR
AGED ABOUT: 32 YEARS,
R/O: GOLLAR'S STREET, SINDAGI TOWN,
DIST: VIJAYAPUR.
...APPELLANT
(BY SRI RAJESH DODDAMANI, ADVOCATE)
AND:
THE STATE OF KARNATAKA,
BY CIRCLE POLICE INSPECTOR,
SINDAGI CIRCLE,
Digitally signed
DIST: VIJAYAPURA
by RAMESH
MATHAPATI
REPRESENTED BY ASPP
Location: HIGH HIGH COURT OF KARNATAKA
COURT OF
KARNATAKA AT KALABURAGI BENCH.
...RESPONDENT
(BY SRI SIDDALING P. PATIL, ADDL. SPP)
THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374
OF CR.P.C., PRAYING TO ALLOW THIS APPEAL BY SETTING
ASIDE JUDGMENT AND ORDER DATED 24.11.2017 PASSED IN
S.C.NO.17/2016 BY THE COURT OF III ADDL. SESSIONS
JUDGE AT VIJAYAPURA, FURTHER TO ACQUIT THE
ACCUSED/APPELLANT IN THE INTEREST OF JUSTICE AND TO
GRANT ANY OTHER REMEDY TO WHICH THIS APPELLANT IS
FOUND ENTITLED IN THE FACTS AND CIRCUMSTANCES OF THE
CASE.
-2-
NC: 2025:KHC-K:89-DB
CRL.A No. 200209 of 2022
THIS APPEAL, COMING ON FOR FINAL HEARING, THIS
DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE MR JUSTICE S.SUNIL DUTT YADAV
AND
HON'BLE MR JUSTICE RAJESH RAI K
ORAL JUDGMENT
(PER: HON'BLE MR. JUSTICE RAJESH RAI K.,)
This appeal by the convicted accused directed against
the judgment of conviction and order of sentence dated
24.11.2017 passed by the III Additional Sessions Judge in
S.C.No.17/2016, wherein the learned Sessions Judge
convicted the accused for the offence punishable under
Section 302 of IPC and sentenced him to undergo
imprisonment for life and to pay a fine of Rs.10,000/- and
in default of payment of fine directed to undergo rigorous
imprisonment for a period of six months for the offence
punishable under Section 302 of IPC.
2. The abridged facts of the prosecution case is
that, on 01.06.2015 at about 4.00 a.m., in the tin shed
bearing Khata No.1404 belonging to one Thimanna S/o
Bhimanna Gollar, situated in Gollar street at Sindagi Town,
accused-appellant suspected infidelity of his wife-Sridevi.
NC: 2025:KHC-K:89-DB
On becoming enraged with the same and also that she
declined paying him to gratify his vices, with an intention
to commit her murder, used plastic wire (Bombay ghat) as
noose around her neck and smothered her to death and
thereafter, fled the spot. Subsequently, P.W.1,
grandmother of the deceased-Sridevi lodged a complaint
before the respondent-police, Sindagi as per Ex.P1 and
based on the same, the respondent-police registered an
FIR against the accused for the offence punishable under
Section 302 of IPC in Crime No.146/2015 dated
01.06.2015 as per Ex.P17. Later, Investigating Officer i.e.,
P.W.18 conducted investigation by drawing spot mahazar,
inquest panchanama on the corpse of the deceased as per
Exs.P4 and P10 respectively. The accused was
apprehended the following day i.e., on 02.06.2015. Based
on the voluntary statement of the accused, Investigating
Officer recovered both his clothes which he wore at the
time of incident and the material object M.O.5 i.e., the
plastic wire which was used in the crime. Subsequently,
after obtaining necessary documents from the concerned
NC: 2025:KHC-K:89-DB
authorities, P.W.18 laid the charge sheet against the
accused for the offence punishable under Section 302 of
IPC before the committal Court. Upon committal of the
case before the Sessions Court, the learned Sessions
Judge by securing presence of the accused framed charges
for the offence punishable under Section 302 of IPC and
the same was read to him verbatim. However, the
accused denied the charges and claimed to be tried.
3. In order to prove the charges levelled against
the accused, prosecution in total examined 18 witnesses
as P.Ws.1 to 18, marked 24 documents as Exs.P1 to P24
and identified 05 material objects as M.Os.1 to 5.
4. After assessing both oral and documentary
evidence, the learned Sessions Judge convicted the
accused for aforesaid offence; he was charged and
sentenced as stated supra. The said judgment is
challenged in this appeal.
5. We have heard the learned counsel, Sri. Rajesh
G. Doddamani, for the appellant-accused and the learned
NC: 2025:KHC-K:89-DB
Additional State Public Prosecutor Sri. Siddaling P. Patil,
for the respondent-State.
6. The primary contention of the learned counsel
for the appellant is that the judgment under this appeal
suffers from perversity and illegality since the learned
Sessions Judge failed to appreciate the collective evidence
in right perspective. According to the counsel, all the
material witnesses examined by the prosecution to prove
the charges levelled against the accused have turned
hostile. Despite, the learned Sessions Judge convicted the
accused merely based on surmise and conjecture.
7. According to him, albeit the prosecution proved
homicidal death of the deceased by way of strangulation,
however, there is absolutely no material evidence placed
by the prosecution to connect the accused with the said
crime. The complainant who is the grandmother of the
deceased is a hearsay witness and other pivotal witness
i.e., P.W.6 before whom the accused purportedly made his
extrajudicial confession also turned hostile. Further,
NC: 2025:KHC-K:89-DB
P.Ws.8 and 9 who are the circumstantial witnesses and
relatives of the deceased also turned hostile to the
prosecution case. Nevertheless, the prosecution
additionally failed to prove other circumstances like
recovery of material object which was said to have been
used for commission of the crime. As such, according to
the learned counsel, prosecution has to prove its case
beyond reasonable doubt by placing cogent evidence.
However, in the instant case, there is no such reliable
evidence placed by the prosecution to prove it's
contention. Hence, he prays to allow the appeal by setting
aside the impugned judgment of conviction and order of
sentence.
8. Per contra, the learned Additional State Public
Prosecutor for the respondent-State contended that,
judgment under this appeal neither suffers from perversity
nor illegality as the learned Sessions Judge has
meticulously examined the evidence on record and passed
a well reasoned judgment which does not call for any
interference. According to the learned Additional State
NC: 2025:KHC-K:89-DB
Public Prosecutor, deceased is none other than the wife of
the accused and they both were residing in a rented
residence at Gollar Oni at Sindagi. As such, the onus is on
the accused to place before this court the cause of
deceased's death.
9. According to him, by the evidence of P.Ws.1, 7
to 9, prosecution has successfully proved that the accused
and deceased were residing together and on the date of
incident, the accused was very much present in the house.
Against this backdrop, should the accused fail to provide
reasonable explanation for the cause of death of the
deceased, under such circumstances by invoking Section
106 of the Indian Evidence Act, the Court can draw
presumption under Section 114 of the Indian Evidence Act.
Nevertheless, other witnesses examined by the
prosecution, the family members i.e., P.Ws.1, 7 to 9 also
deposed that the accused mistreated the deceased owing
to his suspecting her fidelity and also when the deceased
declined monetary demands by the accused to gratify his
vices. In such circumstance, the prosecution successfully
NC: 2025:KHC-K:89-DB
established the guilt of the accused beyond reasonable
doubt. Further, the Investigating Officer P.W.18 also
deposed similarly. He also contended that, the oral
testimony of P.W.1 categorically corroborates with the
medical evidence of P.W.15, stating that the death was
caused due to homicidal strangulation by way of
smothering. In such circumstances, the prosecution has
proved the guilt of the accused beyond reasonable doubt
and the learned Sessions Judge rightly convicted the
accused for the charges levelled against him. Accordingly,
he prays to dismiss the appeal.
10. Having heard the learned counsel for the
respective parties so also perusing the entire evidence on
record including the impugned judgment, the following
points arise for our consideration.
1. Whether the judgment under this appeal
suffers from any perversity or illegality?
2. Whether the learned Sessions Judge is justified
in convicting the accused for the offence
punishable under Section 302 of IPC?
NC: 2025:KHC-K:89-DB
11. In the instant case, albeit the prosecution
examined 18 witnesses to prove the charges levelled
against the accused, it is redundant to delve into the nitty
gritty of individual evidence of all witnesses. In order to
prove the homicidal death of the deceased-Sridevi, the
prosecution has primarily relied on the evidence of P.W.15,
the doctor who conducted the autopsy on the corpse of the
deceased and subsequently, issued postmortem report as
per Ex.P18 and the inquest panchanama conducted on the
corpse by P.W.18, Investigating Officer as per Ex.P10. On
careful perusal of the contents of Ex.P18, i.e., post
mortem report, doctor has opined that 'the death was due
to asphyxia as a result of strangulation by ligature'.
Further, he stated that ligatures are ante mortem. Ligature
mark is found on the neck of the deceased-Sridevi. To
substantiate this, P.Ws.4 and 5, the witnesses for inquest
panchanama drawn on the corpse as per Ex.P10 stated
that, ante mortem ligature mark is found on the neck of
the deceased. Hence, a conjoint reading of the evidence of
P.W.15, the doctor and the evidence of P.Ws.4, 5 and 18,
- 10 -
NC: 2025:KHC-K:89-DB
the Investigating Officer along with the postmortem report
of doctor i.e., Ex.P18 and inquest panchanama Ex.P10, we
are of the considered view that prosecution has proved the
homicidal death of the deceased beyond all reasonable
doubt.
12. In order to connect the accused for homicidal
death of the deceased, prosecution has relied on evidence
of P.W.1 i.e., the grandmother of the deceased who has
set the criminal law into motion by lodging the complaint
that is Ex.P1. On perusal of Ex.P1, complaint, it is stated
that the deceased Sridevi was married to the accused at
about eight years prior to the date of incident. Thereafter,
they both were residing in a tin shed at Gollar Oni, at
Sindagi town. It is stated in the complaint that relationship
between the accused and deceased was strained. Further
she visited their place of residence and advised the
accused not to indulge in such activities. However, on
01.06.2015, P.W.9, her son-in-law informed her that the
accused had murdered the deceased by strangulating her.
Thereby, she along with P.W.10 and other relatives of
- 11 -
NC: 2025:KHC-K:89-DB
P.W.1 made haste to the deceased's residence and found
the corpse. According to P.W.1, at the house of deceased,
upon inquiring P.W.8 i.e., one Smt. Sunita divulged the
reasons for the incident. On perusal of the evidence of
P.W.1, she reiterated the averments of her complaint as
per Ex.P1 and also stated that she came to know about
the incident and accused was the perpetrator of the crime
through P.W.9. On perusal of evidence of P.W.9, Sri. Rama
Byakoda, who is also the relative of the deceased-Sridevi,
stated that he was informed about the incident by some of
the residents of the said colony where the accused and
deceased were residing. However, the respondent-police
have not made any effort to either to record the statement
of any of the residents of the said colony nor examined
them before the Court. Further, P.W.8, who is none other
than the wife of P.W.9 also stated similarly that Smt.
Yellawwa, P.W.6 informed her about the incident.
Interestingly, both these witnesses i.e., P.Ws.8 and 9
being the close relatives of the deceased have partly
turned hostile to the prosecution case.
- 12 -
NC: 2025:KHC-K:89-DB
13. Coming to the evidence of P.W.6 who allegedly
informed the incident to P.W.8, totally turned hostile to
the prosecution case and she has denied the said aspect in
her evidence. Though the learned public prosecutor cross
examined her at length, nothing worthwhile was elicited
from her to prove her statement before the police.
Further, it is also the case of the prosecution that accused
allegedly confessed his act before P.W.6. So far as that
part of the evidence is concerned, P.W.6 turned hostile to
the prosecution case. On careful perusal of the evidence
of P.Ws.6, 8 and 9, along with the evidence of P.W.1, all
these witnesses collectively failed to state who informed
them about the alleged incident and also on the aspect
that accused and deceased were together on the fateful
intervening night of 31.05.2015 and 01.06.2015.
14. The learned Additional State Public Prosecutor
vehemently contended that since the incident was caused
in a rented house where the accused and deceased were
residing and the accused being the husband of the
deceased, the onus is on him to explain the circumstances
- 13 -
NC: 2025:KHC-K:89-DB
and the cause for the death of the deceased as per the
provisions of Section 106 of the Indian Evidence Act.
15. We have no quarrel on the said preposition of
law. However, it is also settled law by this Court and the
Hon'ble Apex Court, before discharging such a burden by
the accused, primarily it is the duty of the prosecution to
prove by placing cogent evidence that accused was in the
company of the deceased on that fateful night as
discussed supra. On perusal of the entire evidence of the
material witnesses, there is no such evidence forthcoming
that the accused was in the company of the deceased on
the fateful night. Moreover, the accused has sought plea of
an alibi confirming that he was not at Sindagi and on the
date of incident, he was at a different place i.e., in
Gubbewad village. Under such circumstances, the duty is
cast upon the prosecution to prove the act of the accused
by relying on other circumstances. Admittedly, when a
case rests on circumstantial evidence, prosecution has to
prove each circumstance without breaking the chain-link.
- 14 -
NC: 2025:KHC-K:89-DB
16. In the instant case, except homicidal death of
the deceased by way of strangulation, none of the other
circumstances are proved by the prosecution. The
recovery of weapon which said to have been used for
commission of crime under mahazars Exs.P5 and P6 are
also not proved, since the witness for the same i.e.,
P.Ws.2 and 3 have turned hostile to the prosecution case.
The other circumstantial witnesses i.e., P.Ws.8 and 9 have
also partly turned hostile to the prosecution case. Though,
PWs.10 and 11 supported the case of prosecution, P.W.11
the scribe of the complaint, Ex.P1, P.W.10 is a hearsay
witness, hence much credence cannot be given to their
evidence.
17. As far as the contention raised by the learned
Additional State Public Prosecutor in respect of the
presumption under Section 106 of the Indian Evidence Act
is concerned, the Hon'ble Apex Court in the case of
Jaikam Khan vs. State of Uttar Pradesh reported in
(2021) 13 SCC 716 held in paragraph-73 as under:
- 15 -
NC: 2025:KHC-K:89-DB
"73. Insofar as the reliance placed by Shri
Vinod Diwakar, learned AAG on the burden not
being discharged by the accused and no explanation
given by them in their Section 313 CrPC statement
is concerned, it is trite law that only after the
prosecution discharges its burden of proving the
case beyond reasonable doubt, the burden would
shift on the accused. It is not necessary to reiterate
this proposition of law. It will suffice to refer to the
following observations of this Court in Joydeb Patra
v. State of W.B.: (SCC p. 447, para 10)
"10. We are afraid, we cannot accept
this submission of Mr Ghosh. This Court has
repeatedly held that the burden to prove the
guilt of the accused beyond reasonable doubt
is on the prosecution and it is only when this
burden is discharged that the accused could
prove any fact within his special knowledge
under Section 106 of the Evidence Act to
establish that he was not guilty. In Sucha
Singh v. State of Punjab this Court held:
(SCC p. 381 para 19)
'19. We pointed out that Section 106 of
the Evidence Act is not intended to relieve the
prosecution of its burden to prove the guilt of
the accused beyond reasonable doubt, but
the section would apply to cases where the
prosecution has succeeded in proving facts
for which a reasonable inference can be
drawn regarding the existence 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.'
- 16 -
NC: 2025:KHC-K:89-DB
Similarly, in Vikramjit Singh v. State of
Punjab this Court reiterated: (SCC p. 313
para 14)
'14. Section 106 of the Evidence Act
does not relieve the prosecution to prove its
case beyond all reasonable doubt. Only when
the prosecution case has been proved that
burden in regard to such facts which was
within the special knowledge of the accused
may be shifted to the accused for explaining
the same. Of course, there are certain
exceptions to the said rule e.g. where burden
of proof may be imposed upon the accused
by reason of a statue.'"
In that view of the matter, we do not
find any merit in the said submissions."
18. Hence, in view of the settled precedent, burden
of proving special knowledge cannot be shifted on the
accused merely on the basis of factum of place of
occurrence unless prosecution has proved its case beyond
all reasonable doubt, as stated supra.
19. The Hon'ble Apex Court in the case of
Nagendra Singh and Another vs. State of Madhya
Pradesh and others reported in (2004) 10 SCC 699
held that, the prosecution has to prove its case beyond
reasonable doubt and there is a difference between place
of proof "may be" and "must be". In the case on hand, on
- 17 -
NC: 2025:KHC-K:89-DB
careful perusal of the entire evidence on record, it could
be gathered that, the learned Sessions Judge convicted
the accused solely relying on the aspect that the accused
and deceased were residing together. Further, accused
failed to discharge the burden under Section 106 of the
Indian Evidence Act. However, as per the judgment stated
supra, we are unable to accept the reasoning of the
learned Sessions Judge. The Hon'ble Apex Court in the
case of Mousam Singha Roy v. State of W.B. reported
in (2003) 12 SCC 377 has made an observation in
respect of moral conviction that, wandering on strong
suspicion is not an option to decide a case by the Sessions
Court and held in paragraph No.27 as under:
"27. Before we conclude, we must place on
record the fact that we are not unaware of the
degree of agony and frustration that may be
caused to the society in general and the families of
the victims in particular, by the fact that a heinous
crime like this goes unpunished, but then the law
does not permit the courts to punish the accused
on the basis of moral conviction or on suspicion
alone. The burden of proof in a criminal trial never
shifts, and it is always the burden of the
prosecution to prove its case beyond reasonable
doubt on the basis of acceptable evidence. In a
similar circumstance this Court in the case
of Sarwan Singh Rattan Singh v. State of
- 18 -
NC: 2025:KHC-K:89-DB
Punjab [AIR 1957 SC 637 : 1957 Cri LJ 1014]
stated thus: (AIR p. 645, para 12)
It is no doubt a matter of regret
that a foul cold-blooded and cruel
murder should go unpunished. There
may also be an element of truth in the
prosecution story against the accused.
Considered as a whole, the prosecution
story may be true; but between 'may
be true' and 'must be true' there is
inevitably a long distance to travel and
the whole of this distance must be
covered by the prosecution by legal,
reliable and unimpeachable evidence
before an accused can be convicted."
20. In the instant case, albeit there is short of
evidence to prove the charges levelled against the
accused, the learned Sessions Judge convicted the
accused/appellant based on surmise and conjecture. In
our view the said conviction order cannot be sustained and
interference is required in the impugned judgment of
conviction and order of sentence. Accordingly, we answer
point No.1 in the affirmative and point No.2 in the
negative and proceed to pass the following:
ORDER
i. The Criminal Appeal No.200209/2022 is allowed.
- 19 -
NC: 2025:KHC-K:89-DB
ii. The judgment of conviction and order of sentence
dated 24.11.2017 passed in S.C.No.17/2016 by the
III Additional Sessions Judge, Vijayapura, is set
aside.
iii. The accused/appellant is acquitted for the offence
punishable under Section 302 of the Indian Penal
Code.
iv.The Superintendent of Jail Authority is directed to
release the appellant/accused forthwith, if he is not
required in any other cases.
Registry is directed to communicate this order to
the Jail Authorities concerned.
Sd/-
(S.SUNIL DUTT YADAV)
JUDGE
Sd/-
(RAJESH RAI K)
JUDGE
VNR, HKV
CT: PS
