Karnataka High Court
Hanamant S/O Pandurang Bhajantri vs State Of Karnataka on 3 March, 2025
Author: Shivashankar Amarannavar
Bench: Shivashankar Amarannavar
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CRL.A No. 100117 of 2017
C/W CRL.A No. 100127 of 2019
IN THE HIGH COURT OF KARNATAKA,
DHARWAD BENCH
DATED THIS THE 3RD DAY OF MARCH, 2025
BEFORE
THE HON'BLE MR. JUSTICE SHIVASHANKAR AMARANNAVAR
CRIMINAL APPEAL NO.100117 OF 2017
C/W
CRIMINAL APPEAL NO.100127 OF 2019
IN CRL.A.NO.100117/2017:
BETWEEN:
SRI SHIVAKUMAR
S/O. GURUPADAYYA MISI,
AGE: 33 YEARS, OCC: COOLIE,
R/O: JAMAKHANDI, PIN: 581 105,
TQ: JAMKHANDI,
DIST: BEAGALKOT.
...APPELLANT
(BY SRI SHAIKH SAOUD, ADVOCATE)
AND:
THE STATE OF KARNATAKA,
Digitally signed by R/BY STATE PUBLIC PROSECUTOR,
ASHPAK
KASHIMSA
MALAGALADINNI
JAMKHANDI RURAL POLICE STATION,
Location: High
Court of
BAGALKOT DISTRICT.
Karnataka ...RESPONDENT
(BY SRI ABHISHEK MALIPATIL, HCGP)
THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374 (2) OF
CR.P.C., SEEKING TO ALLOW THE CRIMINAL APPEAL AND TO SET
ASIDE JUDGEMENT AND ORDER OF CONVICTION AND SENCTENCE
DATED 13.12.2016 PASSED BY THE LEARNED I ADDL. DISTRICT AND
SESSIONS JUDGE, BAGALKOT SITTING AT JAMAKHANDI, IN
SESSIONS CASE NO. 7 OF 2013 PUNISHABLE UNDER SECTION 304,
201, 511 READ WITH 34 OF IPC AND ACQUIT THE APPELLANTS.
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CRL.A No. 100117 of 2017
C/W CRL.A No. 100127 of 2019
IN CRL.A.NO.100127/2019:
BETWEEN:
HANAMANT
S/O. PANDURANG BHAJANTRI,
AGE: 30 YEARS, OCC: DRIVER,
R/O: JAMAKHANDI,
DIST: BEAGALKOT - 587 301.
...APPELLANT
(BY SRI SHAIKH SAOUD, ADVOCATE)
AND:
THE STATE OF KARNATAKA,
BY JAMKHANDI RURAL POLICE
REPRESENTED BY:
THE STATE PUBLIC PROSECUTOR
HIGH COURT OF KARNATAKA,
DHARWAD - 560 011.
...RESPONDENT
(BY SRI ABHISHEK MALIPATIL, HCGP)
THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374 (2) OF
CODE OF CRIMINAL PROCEDURE, SEEKING TO, THE APPEAL MAY
PLEASED BE ALLOWED. THE RECORDS IN RESPECT OF
S.C.NO.07/2013 FOR THE OFFENCE UNDER SECTIONS 376, 304,
201, 511 READ WITH 34 IPC MAY PLEASED BY CALLED FOR FROM
THE 1ST ADDITIONAL DISTRICT AND SESSIONS JUDGE BAGALKOT
SITTING AT JAMKHANDI. THE JUDGMENT AND ORDER OF
CONVICTION AND SENTENCE DATED 13.12.2016 PASSED BY THE 1ST
ADDITIONAL DISTRICT AND SESSIONS JUDE BAGALKOT SITTING AT
JAMKHANDI IN S.C.NO.07/2013 AT ANNEXURE - A MAY PLEASED BY
SET-ASIDE AND THE ACCUSED/APPELLANT MAY PLEASED BY
ACQUITTED TO MEET THE END OF JUSTICE AND EQUITY AND ETC.,
THESE CRIMINAL APPEALS, COMING ON FOR PRELIMINARY
HEARING, THIS DAY, ORDER WAS MADE THEREIN AS UNDER:
CORAM: THE HON'BLE MR. JUSTICE SHIVASHANKAR
AMARANNAVAR
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CRL.A No. 100117 of 2017
C/W CRL.A No. 100127 of 2019
ORAL JUDGMENT
Crl.A.No.100127/2019 is filed by accused No.1 and
Crl.A.No.100117/2017 is filed by accused No.2. Both
accused have challenged the judgment of conviction dated
13.12.2016 passed in S.C.No.7/2013 by the I Additional
District and Sessions Judge, Bagalkot to sit at Jamakhandi,
wherein appellants -accused Nos.1 and 2 have been
convicted for offences punishable under Section 376, 304,
201, 511 read with Section 34 of Indian Penal Code
(hereinafter referred to as "IPC" for brevity).
2. The appellant -accused No. 1 has been
sentenced to undergo rigorous imprisonment for a period
of 07 years and pay fine of Rs.25,000/- for offence
punishable under Section 376 of IPC; appellants -accused
Nos.1 and 2 have been sentenced to undergo
imprisonment for a period of 10 years and pay fine of
Rs.10,000/- each for offence punishable under Section 304
of IPC; imprisonment for a period of 05 years and pay fine
of Rs.10,000/- for offence punishable under Section 201
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read with Section 511 of IPC. The trial Court has ordered
that all sentences to run concurrently.
3. The factual matrix of the prosecution case is as
under:
P.W.1 - P.S.I. crime branch Jamakhandi Town P.S.
has lodged a complaint with Jamakhandi Rural P. S. on 11-
11-2010 at 01-15 A. M. when he was on patrolling duty of
Jamakhandi Town in his jeep. He went near Milan Dhaba
situated on Jamakhandi- Bijapur road. At that time owner
of the said Dhaba namely Basavaraj Irappa Dalawai
(P.W.7) stopped the jeep and informed the complainant
that one Indica car had been parked near Main entrance of
Alagur Rehabilitation Centre and there are two persons in
the said car and one women was lying on the back on rear
seat of said car and her cloths were in disorder. The
complainant took said Basavaraj along with him in his jeep
to aforesaid main entrance where he found one white
Indica car bearing No. KA- 48 -2084. There were two
persons and one woman around 40 years old was lying on
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back side in rear seat. The complainant enquired said two
persons and they have not gave proper answers. On
further enquiry he came to know that said women died
and her name was Alaka W/o. Manohar Raut of
Jamakhandi. The said two persons were inside the car
were smelling alhocal. The complainant came under
impression that accused No 1 and 2 had raped her and
killed her. P.W.1 -complainant seized the said car and
arrested accused Nos.1 and 2 under mahazar and filed
complaint as per Ex.P2. The said report has been
registered in Crime No.175/2010 of Jamakhandi Rural
Police Station for offences punishable under Sections 376,
302 read with Section 34 of IPC. The Investigating Officer
after completing investigation has filed charge sheet for
offences punishable under Sections 376, 304, 201, 511
read with Section 34 of IPC against accused Nos.1 and 2.
4. The case came to be committed to the Sessions
Court. The Sessions Court has framed charges for
offences punishable under Sections 376, 304, 201, 511
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read with Section 34 of IPC. The prosecution in order to
prove the charges has examined thirteen witnesses as
P.W.1 to 13, got marked documents as Ex.P1 to Ex.P27
and material objects as M.O.1 to 5. Statements of
accused persons came to be recorded under Section 313
of Cr.P.C. Learned Sessions Judge after hearing
arguments on both sides has formulated points for
consideration and passed the impugned judgment of
conviction of appellants -accused Nos. 1 and 2. The said
judgment of conviction has been challenged by appellants
-accused Nos.1 and 2 in these two appeals.
5. Heard learned counsel for appellants in both
appeals and learned High Court Government Pleader for
the respondent -State.
6. Learned counsel for appellants -accused Nos.1
and 2 would contend that the investigation has been
commenced without registering case even after P.W.1
coming to know the commission of cognizable offences as
reported by P.W.7. He submits that without registering
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case, the Investigating Officer has drawn mahazar, seized
car and arrested appellants -accused Nos.1 and 2 and
thereafter gave report/complaint as per Ex.P2 against
accused persons. He submits that P.W.7 has stated in his
evidence that there was dead body lying on the road and
there was no cross examination by the Public Prosecutor in
that regard. Even though Ex.P15 -post mortem report has
been marked by consent. Even though opinion regarding
the cause of death and commission of offence punishable
under Section 376 of IPC which is at Ex.P15(b) has not
been proved by examining the Author i.e. Doctor who
conducted the post mortem examination of the dead body
of the deceased. Even as per final opinion -Ex.P15 (b),
the doctor has opined that cause of death is due to
respiratory failure as a result of consumption of alcohol.
The said cause of death cannot be related to accused
persons and their acts. He further submits that even on
perusal of Ex.P16 and 17 -FSL reports, there is no
evidence regarding accused persons committed sexual
assault on the deceased. Even in Ex.P15(b), the doctor
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noted absence of seminal stains on the cloths of the
deceased and absence of spermatozoa in vaginal smear
slide the possibility of sexual intercourse involving the
deceased lady cannot be completely ruled out. In order to
prove Ex.P15(b), the doctor has not been examined and
Ex.P15(b) has been marked in the evidence of P.W.12.
Accused persons have not given consent for marking
Ex.P15(b). Even though the doctor has opined that sexual
intercourse involving in deceased lady cannot be
completely ruled out and that cannot be related to accused
persons since nothing is found in the FSL report -Ex.P16
against accused persons. He submits that it is not case of
the prosecution that accused persons forced the deceased
to consume alcohol. On the point urged, learned counsel
has placed reliance on the decision of the Hon'ble Apex
Court in the case of Lalita Kumari Vs Government of
Uttar Pradesh and ORs1. He also placed reliance on the
decision of the Hon'ble Apex Court in the case of Ashok
Reported in 2014 (2) SCC 1
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Vs State of Uttar Pradesh2, on the point that when
there is no legal evidence, accused persons cannot be
convicted, the Hon'ble Apex Court has reversed the
judgment of conviction. On these grounds, he prays to
allow the appeal, set aside the impugned judgment of
conviction and acquit accused persons.
7. Learned High Court Government Pleader for the
respondent -State would contend that reasons assigned
by the trial Court are based on the evidence on record.
The circumstances established by the prosecution pointed
out guilt of accused persons. Accused persons were found
in the car wherein dead body of the deceased was found
on the rear seat of the car. Accused persons are not
explained what is cause of death of the deceased. With
these, he supported reasons assigned by the trial Court
and prays for dismissal of the appeal.
8. Having heard learned counsels, this Court has
perused the impugned judgment of conviction and trial
Reported in 2024 INSC 919
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Court records. Considering the grounds urged, the
following point arises for my consideration is
"Whether the trial Court has erred in
convicting appellants -accused Nos.1 and 2 for
offences punishable under Sections 376, 304,
201 and 511 of IPC?"
My answer to the above point is in the affirmative
for the following reasons
P.W.1 -PSI and his jeep driver P.W.8 were on
patrolling duty on 11.11.2010 and at that time P.W.7 -
owner of the Milan Dhaba has stopped them and informed
about two persons in white Indica car bearing No.KA-48 -
2084 and there is woman on the rear seat and her cloths
were in disorder. P.W.1 and 8 along with P.W.7 went to
the said spot. Evidence of P.W.1, 7 and 8 indicate that
they found accused Nos.1 and 2 in the Indica Car bearing
No.KA-48-2084 and there was woman on the rear seat of
the said car and her cloths were in disorder. P.W.1 has
filed his report/complaint as per Ex.P2 after drawing
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mahazar, seizing car and arresting accused Nos.1 and 2.
The evidence of P.W.1, 7 and 8 will establish that accused
Nos.1 and 2 were in Indica Car bearing No.KA-48 -2084
and the dead body of the deceased -Alaka was lying on
the rear seat of the car and her cloths were in disorder.
9. It is case of the prosecution that accused Nos.1
and 2 took the deceased in their car and purchased alcohol
and when they were committing sexual intercourse on her,
she died due to acts of accused persons. Considering the
said aspect and charge levelled against accused persons,
the prosecution has to establish that accused persons have
committed the said sexual intercourse on the deceased
and committed culpable homicide.
10. The doctor has conducted post mortem
examination over the dead body of the deceased and his
report is at Ex.P15. Ex.P15 has been marked by consent
of accused persons. The doctor who conducted the post
mortem examination has kept pending opinion of cause of
death for want of chemical analysis report. RFSL reports
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are at EX.P16 and Ex.P17. The doctor who conducted post
mortem examination on the dead body of the deceased
has given his opinion as to cause of death and as to sexual
intercourse and it is at Ex.P15(b). Ex.P15(b) has not been
marked by consent and it is marked in the evidence of
P.W.12 -Investigating Officer who received it. The author
of Ex.P15(b) has not been examined. The doctor who
conducted post mortem over the dead body of the
deceased has opined in Ex.P15(b) as under:
1. On the perusal of inquest report, postmortem
examination and chemical analysis report the
cause of death to the best of my knowledge and
belief is due to respiratory failure as a result of
consumption of alcohol.
2. Even in the absence of seminal stains on the
cloths of deceased and absence of spermatozoa in
vaginal smear slide the possibility of sexual
intercourse involving the deceased lady can not be
completely ruled out.
11. The said opinion is based on the RFSL reports
which are at Ex.P16 and 17. On perusal of the said
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opinion regarding cause of death it cannot be said that
death of the deceased was due to acts of accused persons
since cause of death is respiratory failure as a result of
consumption of alcohol. It is not the case of the
prosecution that accused persons forcible made the
deceased to consume alcohol to the extent that can cause
the death. Therefore, the findings of the trial Court that
accused persons have committed culpable homicide is not
on the basis of legal evidence.
12. The Doctor even in absence of seminal stains on
the clothes of deceased and absence of spermatozoa in
the vaginal smear slide, he has opined that possibility of
sexual intercourse involving the deceased lady cannot be
completely ruled out. On plain reading of the said opinion,
the said possibility of sexual intercourse involving the
deceased cannot be related to the accused persons. Since,
as per examination report of the accused which are at
Ex.P-19 and Ex.P-20, no external injuries were found over
their bodies. Even though, in Ex.P-19 and Ex.P-20, it is
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stated that nicker of accused Nos.1 and 2 respectively, has
stated to be stained, but in RFSL report-Ex.P-16, it is
opined that those nickers which are at item Nos.8 and 11,
they are not found the presence of seminal stains.
Therefore, the opinion of possibility of sexual intercourse
cannot be related to the accused persons.
13. The trial Court without considering the above
material aspects has swayed away by the evidence of the
PWs-1, 7, 8, 9 and 10, that accused Nos.1 and 2 are found
in the car with the deceased and might have committed
the offences. There is no legal evidence to base conviction
against the accused for offences charged against them.
Therefore, the trial Court has failed to appreciate the
evidence of prosecution in proper perspective and erred in
convicting the accused persons. The judgment rendered by
the trial Court is perverse and not based on the legal
evidence. Therefore, the conviction of the
appellants/accused Nos.1 and 2 requires to be set aside
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and they are required to be acquitted for all the charges
leveled against them.
14. In the result the following:
ORDER
i. The appeals are allowed.
ii. The judgment of conviction and order on
sentence dated 13.12.2016 passed in
S.C.No.7/2013 by the I Additional District
and Sessions Judge, Bagalkot to sit at
Jamakhandi is set aside.
iii. The accused Nos.1 and 2 who are appellants
herein are acquitted of offences punishable
under Sections 376, 304, 201, 511 read
with Section 34 of IPC.
is ordered to be refunded to them.
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v. Issue release intimation to the concerned
jail authority. Accused Nos.1 and 2 are
ordered to be released, if they are not
required in any other case.
vi. In view of disposal of the case, interim
applications, if any, pending stands disposed
off.
Sd/-
(SHIVASHANKAR AMARANNAVAR)
JUDGE
DSP para 1 to 11
RKM para 12 to end
