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2020 DIGILAW 1282 (KAR)

D. Thippaiah @ Thippanna v. State Of Karnataka

2020-06-30

B.A.PATIL, M.G.UMA

body2020
JUDGMENT B.A.Patil, J. - The present appellant is before this Court assailing the judgment of conviction and order of sentence passed by the Principal Sessions Judge, Ballari in S.C. No.40/2015 dated 15.07.2016. 2. We have heard the learned counsel Sri.J.Basavaraj 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 on 02.02.2015 at about 09:00 a.m., the complainant, his parents, brother, sister had meals. Thereafter, the accused started quarrelling with his deceased wife Neelamma. The complainant and others pacified the quarrel and thereafter complainant went to the school. His sister and brother went to the land to pluck the chilly. At about 12:15 p.m., the complainant received a phone call that his mother is dead. Immediately he rushed to the house and found his mother lying in the kitchen and blood was oozing from her right ear and she had injury on right side lip, left elbow and found mark on the neck. On enquiry, with his younger brother, he came to know that at about 11:30 a.m. his brother and sister have returned from the field and when they opened the door, their mother was lying in the kitchen in supine position. When they tried to speak with her she did not respond and she was dead. Immediately they started crying and also noticed the injuries. On the basis of the information received, complaint came to be filed. On the basis of the complaint, crime came to be registered in Crime No.16/2015. Thereafter, after investigation charge sheet has been filed. The Committal Court committed the case to the Sessions Court and Sessions Court secured the presence of the accused and charge was framed. Accused pleaded not guilty, he claims to be tried and as such, trial was fixed. 4. To prove the case of the prosecution, it got examined 21 witnesses, marked 19 documents and 7 material objects. Thereafter, statement of the accused was recorded by putting incriminating material as against him and accused denied the same. He has not led any evidence nor got marked any documents. After hearing the learned counsel appearing for the parties, the Trial Court convicted the accused. Challenging the legality and correctness, the accused is before this Court. 5. Thereafter, statement of the accused was recorded by putting incriminating material as against him and accused denied the same. He has not led any evidence nor got marked any documents. After hearing the learned counsel appearing for the parties, the Trial Court convicted the accused. Challenging the legality and correctness, the accused is before this Court. 5. It is the submission of the learned counsel for the appellant that the judgment of conviction and order of sentence passed by the Trial Court is contrary to law, evidence and materials placed on record. It is his further submission that all the material witnesses have not supported the case of the prosecution. The Trial Court only on presumption and assumption that the deceased died in the house, has came to a conclusion that it is the accused who had committed the murder of the deceased wife. It is his further submission that the motive has also not been established by the prosecution as to for what reasons they used to quarrel. It is his further submission that P.W.8 in her evidence has clearly stated that the accused had been to Siruguppa to bring the medicine. Inspite of that, the Trial Court ignoring the said evidence has taken hasty decision and has convicted the accused. 6. It is his further submission that though the recovery of the shirt of the accused has not been proved by substantiating the said fact with any evidence, the Trial Court only on the ground that the said shirt is stained with blood has linked to the accused and on the basis of such evidence, it has taken the decision to convict the accused though there is no material. It is his further submission that the Trial Court has taken the circumstance of abscondance of the accused. Abscondance of the accused till the date of arrest is not a criteria to convict the accused for an offence which is punishable with imprisonment for life or death. It is his further submission that neighbouring witnesses have also not supported the case of the prosecution. Under such circumstances, the Trial Court ought to have given a benefit of doubt and ought to have acquitted the accused. On these grounds, he prayed to allow the appeal and to set aside the judgment of conviction and order of sentence and acquit the accused. 7. Under such circumstances, the Trial Court ought to have given a benefit of doubt and ought to have acquitted the accused. On these grounds, he prayed to allow the appeal and to set aside the judgment of conviction and order of sentence and acquit the accused. 7. Per contra, the learned Additional S.P.P. vehemently argued and submitted that it is not in dispute that the deceased died a homicidal death in the house of the accused. He further submitted that accused has not come up with any explanation. Under such circumstances, only presumption which can be drawn is that it is the accused who has committed the murder of the deceased, that too when prior to the alleged incident, he has quarrelled in the presence of the other witnesses. It is his further submission that M.O.1 the blood stained shirt which has been recovered at the instanced of the accused has been seized by the Police and the same has been sent to FSL and even the FSL report Ex.P-19 indicates that it is stained with human blood. Under such circumstances, the Trial Court has rightly convicted the accused. It is his further submission that immediately after the incident, the accused absconded and he was apprehended only after eight days. All these materials points out the guilt of the accused and accused alone. On these grounds, he prayed to dismiss the appeal. 8. We have carefully and cautiously gone through the submissions made by the learned counsel appearing for the parties and perused the records, including the Trial Court records. 9. In order to establish the case of the prosecution, prosecution got examined as many as 21 witnesses. P.W.1 is the son of both accused as well as the deceased and he is the complainant, who has filed the complaint, as per Ex.P-1, on the information received from P.W.12. He is not an eyewitness to the alleged incident. He has not supported the case of the prosecution and he has been treated as hostile. P.Ws.2 and 3 are the panch witnesses to inquest mahazar Ex.P- 3 and the clothes of the deceased Ex.P-6, as per M.Os.2 to 4 and the seizure of the shirt of the accused and a rope, as per Ex.P-5. These two witnesses have also not supported the case of the prosecution and they have been treated as hostile. P.W.4 is the married daughter of the accused. These two witnesses have also not supported the case of the prosecution and they have been treated as hostile. P.W.4 is the married daughter of the accused. She has also not supported the case of the prosecution and she has been treated as hostile. P.Ws.5 and 6 are the spot mahazar pancha to Ex.P-2 and seizure mahanzar panch of shirt of the accused and a rope as per Ex.P-5. They have not supported the case of the prosecution and they have been treated as hostile. P.W.7 is the panch witness to the seizure mahazar pancha namely Ex.P-6, whereunder the clothes of the deceased have been seized as per M.Os.2 to 4. P.W.8 is another daughter of the accused and the deceased, so also P.W.9 is the son of the accused and the deceased. They are suppose to speak with regard to the motive and presence of the accused. But they have not supported the case of the prosecution and they have been treated as hostile. 10. P.Ws.10 and 11 are the younger brothers of the accused, who are residing in the neighbouring vicinity. They have not supported the case of the prosecution and they have been treated as hostile. P.W.12 is the informant. In his evidence, he has deposed that about six months back after coming to know about the death of Neelamma, he informed the said fact to one Shivappa and P.W.9 Veeresh over phone and at about 10:00 a.m. people were gathered in the house of the accused and he went inside and saw the body. Thereafter, he informed to P.Ws.1 and 9. This witness has not been cross-examined by the accused. 11. P.W.13 is the Police Constable, who has carried the FIR Ex.P-11 to the jurisdictional Court and submitted the same. P.W.14 is the Police Constable, who has carried the seized articles for chemical examination. P.W.15 is the Investigating Officer, who further investigated and filed the charge sheet. P.W.16 is the Police Inspector, who registered the complaint. On the basis of the complaint, he issued the FIR, as per Ex.P-11. P.W.17 is the brother of the deceased and he has not supported the case of the prosecution and he has been treated as hostile. P.W.18 is the PDO, he has issued the house property extract, as per Ex.P-13. P.W.19 is the Doctor, who conducted postmortem and has given the report, as per Ex.P-15. P.W.17 is the brother of the deceased and he has not supported the case of the prosecution and he has been treated as hostile. P.W.18 is the PDO, he has issued the house property extract, as per Ex.P-13. P.W.19 is the Doctor, who conducted postmortem and has given the report, as per Ex.P-15. P.W.20 is the CPI, who partly investigated the case and P.W.21 is the Officer, who is working in Forensic Lab and has given the report, as per Ex.P-19. 12. On perusal of the evidence which has been produced before the Court, the prosecution has got examined P.W.9. Doctor, who conducted autopsy over the body of the deceased. In his evidence, he has deposed that mouth was slightly opened, partially protruded tongue is seen, blood clots are seen, external ear canal and right nostril, congestion and cyanosis seen around the mouth and patedial haemorrhages seen over the upper eye lids conjunctival haemorrhage present bilaterally, a brown coloured ligature mark, running horizontally around the neck. He has opined that manually strangulated with M.O.5 rope, it may cause the death. During the course of crossexamination of this witness, nothing has been elicited. On perusal of the postmortem report Ex.P-15 and the evidence of this witness, it clearly indicates the fact that the deceased Neelamma died a homicidal death. Be that as it may. Even the learned counsel for the appellant accused has not disputed the said fact. 13. On coming to the evidence of the prosecution witnesses, none of the witnesses have supported the case of the prosecution, either to establish the fact that the accused and the deceased were quarrelling and in that heat of passion, the accused has assaulted and he strangulated with the rope and admittedly there are no eyewitnesses to the alleged incident. When all the material witnesses have not supported the case of the prosecution, then under such circumstances, the only inference which can be drawn is one under Section 106 of the Evidence Act, it is for the accused to explain how the deceased died a homicidal death in his house. When all the material witnesses have not supported the case of the prosecution, then under such circumstances, the only inference which can be drawn is one under Section 106 of the Evidence Act, it is for the accused to explain how the deceased died a homicidal death in his house. But in order to attract the provisions of Section 106 of the Evidence Act, the prosecution has to first establish the fact that the said death must be within the exclusive knowledge of the accused and the accused must be present at the place of the incident and that there will not be access to any other persons other than the accused. As could be seen from the evidence of P.Ws.1, 8 and 9, they have clearly deposed before the Court that himself, his mother and father and another brother, used to stay in the said house. Under such circumstances, the provision of Section 106 of the Evidence Act is not attracted. 14. Be that as it may, even presuming for the time being that if father and deceased alone were there, then under such circumstances, the accused has to explain how the unnatural death has taken place in respect of his wife. But the evidence of P.Ws.8 and 9 indicates that the deceased mother was in the house and his father might have gone to Siruguppa to bring the medicine. When that evidence is available before the Trial Court, then under such circumstances, the Trial Court ought not to have drawn the presumption under Section 106 of the Evidence Act and ought not have been convicted the accused. In this regard, the Trial Court has glaringly committed an error in convicting the accused. 15. Another circumstance on which the Trial Court has came to the conclusion that the accused was absconding for a period of eight days till his arrest. Merely because the accused has been absconding, no inference can be drawn. Naturally when a rumor starts that the wife has been murdered and under the apprehension that he might be arrested and humiliated under the hands of the Police, then under such circumstances, the accused might not have came before the Police. Merely because the accused has been absconding, no inference can be drawn. Naturally when a rumor starts that the wife has been murdered and under the apprehension that he might be arrested and humiliated under the hands of the Police, then under such circumstances, the accused might not have came before the Police. But no inference can be drawn that it is the accused who has committed the offence and then thereafter he is absconding from the scene of offence, until and unless some corroboration is there to the evidence of the prosecution to the effect that it is the accused who has committed the alleged offence and thereafter he has been absconded. Under such circumstances, the Court could not have given weightage to the abscondance of the accused. In the absence of any other material, mainly on the ground of absconding, the Court cannot infer the fact that it is the accused who had committed the offence and absconded. 16. Further when the seizure mahazar panchas of the shirt M.O.1 have not supported the case of the prosecution and they have been turned hostile, then under such circumstances, on the FSL report Ex.P-19, the Trial Court could not have been relied upon the stains of the blood to conclude that it was the accused who has committed the offence. 17. Looking from any angle, though there is no material or iota of evidence to convict the accused to the alleged crime, only on presumption and assumption, the Trial Court has erroneously convicted the accused. 18. We have carefully and cautiously gone through the judgment of the Trial Court. The judgment of the Trial Court is neither based upon any facts, law or circumstance. It requires interference at the hands of this Court and the same is liable to be set aside. 19. In that light, we pass the following order: ORDER Appeal is allowed. The judgment of conviction dated 15.07.2016 and the order of sentence dated 23.07.2016 passed by the learned Principal Sessions Judge, Ballari in S.C. No.40/2015 is set aside. The appellant accused is acquitted of all the charges levelled against him. He is set at liberty forthwith, if he is not required in any other case. The Jail Authorities are hereby directed to release the appellant accused D.Thippaiah @ Thippanna S/o.D.Rudrappa forthwith, if he is not required in any other case. The appellant accused is acquitted of all the charges levelled against him. He is set at liberty forthwith, if he is not required in any other case. The Jail Authorities are hereby directed to release the appellant accused D.Thippaiah @ Thippanna S/o.D.Rudrappa forthwith, if he is not required in any other case. Registry is directed to send the operative portion of this order to the Principal Sessions Judge, Ballari and the concerned Jail Authorities through e-mail to release the appellant accused D.Thippaiah @ Thippanna S/o.D.Rudrappa forthwith, if he is not required in any other case. Registry is directed to send back the Trial Court records forthwith.