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2020 DIGILAW 1209 (KAR)

Manjunath v. State Of Karnataka

2020-06-24

B.A.PATIL, M.G.UMA

body2020
JUDGMENT B.A.Patil, J. - The appellant-accused has approached this Court by way of appeal seeking the intervention in the Judgment passed by the District and Sessions Judge, Koppal (herein after referred to as the trial Court), in Sessions Case No.74/2015 dated 21.01.2017 whereunder the accused appellant was convicted and sentenced for the offence punishable under Section 302 of IPC. 2. We have heard the learned counsel Sri.S.S.Yadrami for the appellant-accused and the learned Additional S.P.P. Sri V.M. Banakar for the respondent-State. 3. The case of the prosecution in brief is that the daughter of the complainant was given in marriage to accused about 15 years back and they have begotten a daughter. It is further alleged that since two to three years prior to the incident, accused without there being any reason used to quarrel and also used to abuse and assault his wife. It is further alleged that on 7/8/2015 at 3.00 p.m., the accused again quarreled with his wife and abused her. The same was witnessed by some of the witnesses who were present infront of the house. Though they advised the accused, suddenly accused became enraged and thereafter, he told that he will not leave his wife and assaulted on her head, face and legs with fire wood and caused grievous injuries on her head and other parts of the body. Because of the injuries, she died on the spot. 4. On the basis of the complaint, a case has been registered in Crime No.174/2015. Thereafter, the Investigating Officer investigated the case and filed the charge sheet. 5. The learned Magistrate took the cognizance and after compliance of the provisions of Section 207, he committed the case to the Sessions Court. The trial Court secured the presence of the accused and after hearing the learned Public Prosecutor and the learned counsel for the accused, the charge was prepared, read over and explained to the accused. Accused pleaded not guilty. He claims to be tried and as such, the trial was fixed. 6. In order to prove the case of the prosecution, prosecution got examined 12 witnesses and got marked 21 documents and 7 material objects. Accused was questioned under Section 313 of Cr.P.C. by putting incriminating material as against him. He denied the said incriminating materials, but he has not led any evidence nor got marked any documents. 6. In order to prove the case of the prosecution, prosecution got examined 12 witnesses and got marked 21 documents and 7 material objects. Accused was questioned under Section 313 of Cr.P.C. by putting incriminating material as against him. He denied the said incriminating materials, but he has not led any evidence nor got marked any documents. After hearing both the sides, the Court below found that there is no material as against the accused under Section 498-A, acquitted the accused and as there is sufficient evidence to convict the accused under Section 302, convicted him with imprisonment for life. Challenging the legality and correctness of the said judgment, the appellant accused is before this Court. 7. It is the submission of the learned counsel for the appellant-accused that the deceased is none other than the sister's daughter given in marriage to the accused. Though PWs.-2 and 6 have deposed that accused used to ill-treat and harass since 2 to 3 years and have deposed that they have advised the accused by taking the elders. But, they have not named who are the elders who went to pacify the quarrel or to give advise to the accused. It is his further submission that PW-1 in his cross examination has admitted the fact that the accused and the deceased had a daughter of 14 years, who was staying with them. But if really there was ill-treatment and harassment by the accused in the house since two to three years, definitely, the daughter will be a material witness to substantiate the said fact. Daughter has neither been examined by the Investigating Officer nor she has been cited as witness before the Court. Under such circumstances, it is nothing but suppression of the material witness and it goes to the root of the case of the prosecution and it creates doubt in the case of the prosecution. The same could have been given the benefit to the accused. It is his further submission that the elders who advised the accused have not been named and they have not been cited as witnesses. It is his further submission that the complainant PW-2- the father of the deceased has stated that they have come and made an enquiry and they came to know that the accused has assaulted. But he has not named them. It is his further submission that the complainant PW-2- the father of the deceased has stated that they have come and made an enquiry and they came to know that the accused has assaulted. But he has not named them. It is his further submission that though it is alleged that since 2 to 3 years the accused is assaulting, no complaint has been registered in any police station in that behalf. It is his further submission that the prosecution has to clearly establish the fact of the presence of the accused at the time of alleged incident. But none of the witnesses, who have been examined before the Court deposed that on the alleged date of incident, the accused was present and he has committed the alleged offence. It is his further submission that PW-5- the Doctor who came to be examined before the Court has clearly admitted during the course of cross examination that the ligature mark found on the neck of the deceased can be caused if a person falls from the roof on a rope that which has been tightly tied for drying the cloth. He has admitted that it is possible. It is his further submission that the lacerated wound over the left occipital and fracture dislocation of right middle finger, fracture of left inter phalangeal joint of the left middle finger, incised wound over the left palm, incised wound over the right side of forehead that they are possible if a person falls from the roof. 8. It is his further submission that PW-6 is none other than the son of PW-2 has clearly admitted during the course of cross examination that in case of mud roof in order to stop the leakage, the silt used to be put and that there was aperture to the said house and he has also admitted the fact that infront of the house, there is a big stone. All these materials supports the case of the accused that the deceased had been to roof for closing the aperture and at that time, she slipped and came in contact with the stone which was infront of the house and sustained the injuries and it is also supported by the evidence of the Doctor. All these materials supports the case of the accused that the deceased had been to roof for closing the aperture and at that time, she slipped and came in contact with the stone which was infront of the house and sustained the injuries and it is also supported by the evidence of the Doctor. Though all these material was available before the Court, the Trial Court without properly appreciating the said fact has come to a wrong conclusion and has wrongly convicted the accused. 9. It is his further submission that there are lot of contradictions in the evidence of the prosecution. P.W.2 has deposed that the house is not having mud roof and that there is no aperture and there is no big stone in front of the house. But P.W.6 has admitted the same. Under such contradiction, the evidence of this witness is not creditworthy to rely upon the same and convict the accused. In order to substantiate the said fact, he has relied upon the decision in the case of Krishnegowda and others vs. State of Karnataka, (2017) 13 SCC 98 . On these grounds, he prayed to allow the appeal and set aside the judgment of conviction and order of sentence and acquit the accused. 10. Per contra, learned Additional S.P.P. vehemently argued and submitted that though panch witnesses have not supported the case of the prosecution, but the Investigating Officer has drawn the mahazar Ex.P-2 and spot mahazar clearly goes to show the scattering of the blood inside the house of the accused and it falsifies the case of the accused or the defence of the accused. Accused has not come up with any explanation. Under such circumstances, the said circumstance is relevant under Section 8 of the Evidence Act. It is his further submission that the accused has given an extra judicial confession to the son of the complainant, P.W.6 and the said evidence has remained unchallenged and the accused has also not come up with any explanation. Under such circumstances, the evidence is acceptable that it is the accused, who has committed the murder of his deceased wife. He further submitted that P.Ws.2 and 6 have clearly deposed before the Court that the accused used to ill-treat her, harass her and assault and many a times the accused was advised by the elders. Under such circumstances, the evidence is acceptable that it is the accused, who has committed the murder of his deceased wife. He further submitted that P.Ws.2 and 6 have clearly deposed before the Court that the accused used to ill-treat her, harass her and assault and many a times the accused was advised by the elders. Coupled with this, the evidence of P.W.5 Doctor, it clearly goes to show that there is a ligature mark and as well as the deceased has also sustained injuries on vital part i.e., on her head and other parts of the body including the fingers. Taking into consideration the said aspects, the Trial Court has rightly convicted the accused. There are no good grounds to interfere with the judgment of the Trial Court. The judgment of the Trial Court deserves to be confirmed. 11. We have carefully and cautiously gone through the submissions made by learned counsel appearing for the parties and perused the records, including the Trial Court records. 12. Before going to consider the evidence and material placed on record, it is the tenets of the law that the prosecution has to establish the fact that the deceased died a homicidal death. In order to establish the said case, prosecution got examined P.W.4, the inquest mahazar pancha to Ex.P-6 and the Doctor, who has conducted autopsy over the body of the deceased and has issued postmortem report as per Ex.P-7. Even the complainant and his son P.W.6 have also deposed that they have noticed some injuries over the body of the deceased. The Doctor, who has conducted autopsy over the body of the deceased has clearly stated that the death of the deceased is due to shock and hemorrhage, as a result of injury to vital organ and brain. In that light, the prosecution has established the fact that the deceased died a homicidal death. 13. Be that as it may. Even the defence of the accused, the deceased had been to the roof to close the aperture and at that time, due to slip, she had fallen on the stone and she sustained the injuries and died. So in that light also it can be safely held that the deceased has died a homicidal death. 14. Further to prove the case of the prosecution, prosecution got examined 12 witnesses. So in that light also it can be safely held that the deceased has died a homicidal death. 14. Further to prove the case of the prosecution, prosecution got examined 12 witnesses. P.W.1 is a panch witness to the scene of the offence Ex.P-1, seizure of the articles and weapons Ex.P-2 and the seizure of the clothes of the deceased Ex.P-3, another panch witness is P.W.3. These two witnesses have not supported the case of the prosecution and they have been treated as hostile. 15. P.W.2 is the complainant. In his evidence, he has deposed that he had given his daughter to the accused who is none other than that of the sister's son and the accused used to consume alcohol and used to assault and as and when he came to know the said fact, he used to take elders and used to advise the accused but he had not heeded to the advise. He has further deposed that he received information about the death of his daughter and he went to Munirabad Government Hospital and there, already his daughter was dead and he saw the injuries over the body of the deceased. He has further deposed that, he made an enquiry and came to know that the accused has assaulted and due to that his daughter has died and subsequently, he made enquiries with the villagers, who told that the accused used to abuse everyday and used to assault and they have also advised and he has not heeded to their advise. During the course of cross-examination, he has deposed that P.W.6 was also there along with him in the autorickshaw and he has admitted the fact that he used to visit the daughter's house. He has further deposed that the deceased and accused have got 14 years old daughter. Except that nothing has been elicited from the mouth of this witness. 16. P.W.6 is none other than the son of the complainant. He has reiterated the evidence of P.W.3 and in his evidence, he has further deposed that when he made an enquiry with P.W.10 Hulagappa, he informed about the accused assaulting and at that time, the accused was also present and when he questioned him, he told that he had assaulted. P.W.6 is none other than the son of the complainant. He has reiterated the evidence of P.W.3 and in his evidence, he has further deposed that when he made an enquiry with P.W.10 Hulagappa, he informed about the accused assaulting and at that time, the accused was also present and when he questioned him, he told that he had assaulted. During the course of cross examination, he has deposed that the Police called the accused and by that time, they went to the Hospital and the Police were already there and have apprehended the accused and have made him to sit in the hospital. He has admitted that in order to avoid the leakage during the rainy season, silt will be put on the mud roof. He has admitted that to the house of the accused, there is aperture. He has further submitted that there is a big stone in front of the house of the accused. Except that nothing has been elicited from the mouth of this witness. 17. P.Ws.7 and 8 are the sisters of the accused. They have not supported the case of the prosecution and they have been treated as hostile. P.Ws.9 and 10 are the villagers, who said to have been seen the accused assaulting the deceased and have advised. But they have not supported the case of the prosecution. P.W.11 is the Police Officer, who registered the case and issued FIR, as per Ex.P-12. P.W.12 is the Investigating officer, who investigated the case and filed the charge sheet. 18. On perusal of the evidence of P.Ws.2 and 6 which has been produced before the Court, they have spoken with regard to the ill-treatment and harassment given by the accused to the deceased. But the said evidence has not been accepted by the Trial Court, so as to bring home the guilt of the accused under Section 498A of IPC and admittedly, the State has not preferred any appeal against the said finding given by the learned Sessions Judge. 19. Be that as it may. Even if the said evidence of P.Ws.2 and 6 is accepted as it is, the said witnesses only told that the accused used to quarrel with the deceased and used to assault. 19. Be that as it may. Even if the said evidence of P.Ws.2 and 6 is accepted as it is, the said witnesses only told that the accused used to quarrel with the deceased and used to assault. But in the examination-in-chief, P.W.2 has deposed that he used to take the elders to advise the accused, but in his examination-in-chief, he has not named the persons whom he has taken to advise the accused and even no such witnesses have been examined before the Court. Under such circumstances, the evidence of P.Ws.2 and 6 does not repose the confidence of the Court to the effect that the accused used to assault the deceased and they have advised. Even no complaint has been registered in this behalf. Under such circumstances, the evidence which has been produced is not corroborated with any independent witness and only on the interested testimony of P.Ws.2 and 6, we cannot come to the conclusion that the accused used to quarrel by consuming alcohol and used to assault and harass the deceased. 20. Even the evidence of P.Ws.2 and 6 does not substantiate the case of the prosecution to the effect that it is the accused, who has assaulted the deceased and caused the injuries and the deceased died due to the said injuries. The material witnesses P.Ws.9 and 10, who were present as per the case of the prosecution, have not supported the case of the prosecution. When they have not supported the case of the prosecution, no other material or evidence is there to substantiate the fact that it is the accused who was present at the place of incident. 21. Be that as it may. P.W.2 in his crossexamination has admitted that the deceased and accused have a daughter of 14 years old. Surprisingly when she was present in the house itself, the Investigating Officer has neither enquired her during the course of investigation nor she has been cited as witness, for the reasons best known to the prosecution and she was not considered to be a material witness. In that light, even the evidence if it has been analyzed, there is no material to connect the accused to the alleged offence of assault and causing the death of the deceased. 22. In that light, even the evidence if it has been analyzed, there is no material to connect the accused to the alleged offence of assault and causing the death of the deceased. 22. At this juncture, the learned Additional S.P.P. brought to the notice of this Court that the accused has made a confession before P.W.6 son of the complainant and same has not been challenged. We are conscious of the fact that if an extra judicial confession has been made and that on the basis of such extra judicial confession, if other circumstance corroborates, then the accused can also be convicted for the alleged offences. 23. It is well settled proposition of law that before whom the extra judicial confession has to be made, in the first instance, the prosecution has to establish the fact that the accused has reposed confidence so as to disclose or confess before him. Admittedly, in the instant case on hand, the father-in-law P.W.2 himself was present, he is none other than the sister's brother, before whom he has not stated anything and as to how he repose confidence with P.W.6, so as to confer the same, is a question. Even the said evidence of P.W.6 is only a stray sentence and in fact it is not a confession at all in the eye of law. 24. Be that as it may. Even assuming the statement of P.W.6 is a confession, but even if the confession is there, it is very weak type of evidence and only on basing upon such confession, the accused cannot be convicted and sentenced for an offence under Section 302 of IPC. In that light, whatever the submissions which has been submitted by the learned Additional S.P.P. is not having any force and it is not going to bring home the guilt of the accused beyond all reasonable doubt. 25. When the evidence of related witnesses is not corroborated with any other independent witnesses, it would be trite of law to have an independent witness, when the evidence of related eyewitnesses is found to be incredible and not trustworthy. Admittedly, P.Ws.2 and 6 are not present and their evidence is also shaky and not creditworthy. Under such circumstances, there are lot of contradictions which go to the root of the matter. Hence, it is not credible. Admittedly, P.Ws.2 and 6 are not present and their evidence is also shaky and not creditworthy. Under such circumstances, there are lot of contradictions which go to the root of the matter. Hence, it is not credible. This proposition of law has been laid down by the Hon'ble Apex Court in the case of Krishnegowda and others vs. State of Karnataka quoted supra, at paras 32 and 33, it has been observed as under: "32. It is to be noted that all the eyewitnesses were relatives and the prosecution failed to adduce reliable evidence of independent witnesses for the incident which took place on a public road in the broad day light. Although there is no absolute rule that the evidence of related witnesses has to be corroborated by the evidence of independent witnesses, it would be trite in law to have independent witnesses when the evidence of related eyewitnesses is found to be incredible and not trustworthy. The minor variations and contradictions in the evidence of eyewitnesses will not tilt the benefit of doubt in favor of the accused but when the contradictions in the evidence of prosecution witnesses proves to be fatal to the prosecution case then those contradictions go to the root of the matter and in such cases accused gets the benefit of doubt. 32. It is the duty of the Court to consider the trustworthiness of evidence on record. As said by Benthem, "witnesses are the eyes and ears of justice". In the facts on hand, we feel that the evidence of these witnesses is filled with discrepancies, contradictions and improbable versions which draw us to the irresistible conclusion that the evidence of these witnesses cannot be a basis to convict the accused." Taking into consideration the above said facts, we are of the considered opinion that the evidence produced by the prosecution in this behalf is not acceptable so as to hold that the accused has committed the murder of the deceased. 26. At this juncture, the learned Additional S.P.P. brought to the notice of this Court that the Doctor, who has conducted autopsy over the body of the deceased has deposed that there were as many as five injuries and that the ligature mark is also found in Ex.P-7. 27. We have carefully and cautiously gone through the evidence of this witness and also the evidence of P.Ws.2 and 6. 27. We have carefully and cautiously gone through the evidence of this witness and also the evidence of P.Ws.2 and 6. When a suggestion has been made to P.W.2 to the effect that the house of the accused is having mud roof with aperture and infront of the house, there is a big stone, he has denied all the suggestions. But the said suggestion has been admitted by P.W.6. When the eyewitness have not supported the case of the prosecution and the accused has made out a case that the deceased has climbed the roof of the house and she slipped and as a result of the same, she sustained the said injuries and even the Doctor has also admitted the fact that if by slip while falling, if neck comes in contact with the rope which has been tied for the purpose of drying the clothes, there is possibility of ligature mark on the neck and if a person falls on the stone, then definitely there will be lacerated wound on the left ospital area and dislocation of the right middle finger and fracture of the left phalangeal joint of left middle finger and incised wound over the right side of the forehead and above the right eyebrow. Therefore, the defence which has been taken up by the accused, appears to be probable and reasonable. Under such circumstances, we are of the considered opinion that the Trial Court without looking into these aspects has erroneously came to a wrong conclusion and has wrongly convicted the accused. The Trial Court order requires the interference at the hands of this Court. 28. The appeal is allowed. The judgment of conviction and order of sentence passed by the District and Sessions Judge, Koppal in S.C. No.74/2015 dated 21.01.2017 is set aside and appellant accused is acquitted of the charges levelled against him. His bail bonds and surety bonds are cancelled. The learned District Judge is hereby directed to refund the fine amount if the same has been deposited by the appellant accused on proper identification and acknowledgment.