Research › Search › Judgment

Karnataka High Court · body

2020 DIGILAW 1387 (KAR)

Subhashachandra v. State Of Karnataka

2020-07-13

B.A.PATIL, M.G.UMA

body2020
JUDGMENT B.A.Patil, J. - Appellant accused is before this Court seeking intervention of this Court in the judgment of conviction dated 20.09.2017 and order of sentence dated 21.09.2017 passed by 1st Additional District and Sessions Judge, U.K. Karwar, sitting at Sirsi in S.C. No.66 of 2012. 2. We have heard the learned counsel Sri.M.B.Gundawade on behalf of Sri.Patil M.H. for the appellant-accused and the learned Additional S.P.P. Sri.V.M.Banakar for the respondent State. 3. The factual matrix of the case are that the accused and the deceased got married about ten years back and there was some marital discard between the deceased and the accused. In this regard, mediation efforts were also made and the deceased used to reside in her parent's house. On 09.05.2012, the accused picked up the deceased, who was working in TSS Areca Godown on his motorcycle bearing registration No.KA-31/7724 and on the way, near Malenalli cross, the accused strangulated the neck of the deceased and assaulted with a stone and thereby caused the death of the deceased. The informant- Shrikant Hegde saw the accused running from the spot and found the dead body and he informed the complainant about the said fact. On the basis of the complaint, a case has been registered in Crime No.52/2012 and after investigation, charge sheet came to be filed. 4. The Committal Court committed the case to the Sessions Court after following the procedure, as the said case is pertaining to the jurisdiction of Sirsi, same was madeover to the Court of I-Addl. District and Sessions Judge, Karwar sitting at Sirsi (for short, referred to as trial Court). The trial Court took cognizance, secured the presence of the accused and after hearing both sides, charge was prepared, read over and explained to the accused. Accused pleaded not guilty. He claims to be tried and as such, trial was fixed. 5. In order to prove the case of the prosecution, it got examined 19 witnesses, marked 33 documents and 13 material objects. Thereafter, accused was questioned under Section 313 of Cr.P.C. and he denied all the incriminating materials as against him. The accused has not led any defence evidence on his behalf nor produced any documents. After hearing the learned counsel appearing for the parties, the trial Court came to a conclusion that the accused has committed the alleged offences and has been convicted. The accused has not led any defence evidence on his behalf nor produced any documents. After hearing the learned counsel appearing for the parties, the trial Court came to a conclusion that the accused has committed the alleged offences and has been convicted. Challenging the legality and correctness of the judgment, the accused-appellant is before this Court. 6. The main grounds urged by the learned counsel for the appellant accused are that the judgment of conviction and order of sentence is contrary to law, facts and materials placed on record. It is his further submission that the entire case rests on the circumstantial evidence, but all the circumstances have not been established by the prosecution. Though it is alleged by the prosecution that PW5 is a witnesses, who has seen the accused running away from the place of the incident, but he has not supported the case of the prosecution and he has been treated as hostile. It is his further submission that PWs.9 to 12 are the co-workers of the deceased, who said to have seen the deceased going along with the accused on the motorcycle in the evening hours after the work. They have also not supported the case of the prosecution. Under such circumstances, the trial Court ought not have accepted the evidence of PW1 and convicted the accused. It is his further submission that though there are no incriminating materials as against the appellant-accused, the trial Court without looking into the factual aspect, has come to a wrong conclusion and has wrongly convicted the accused. On these grounds, he prayed to allow the appeal and to set aside the judgment of conviction and order of sentence. 7. Per contra, learned Additional S.P.P. vehemently argued and contended that the evidence of PW1, spot mahazar pancha clearly goes to show that near the place of incident, the motorcycle bearing registration No.KA-31/7724 was found and the accused has not come up with any explanation as to how his motorcycle has come over there. In the absence of any such explanation, the trial Court has rightly drawn the presumption that it is the accused who has committed the alleged offence. In the absence of any such explanation, the trial Court has rightly drawn the presumption that it is the accused who has committed the alleged offence. It is his further submission that the prosecution has also established that the deceased has died due to homicidal death and that the accused has also not come up with any explanation as to how the deceased died an unnatural death. Taking into consideration the said materials placed on record, the trial Court has came to a right conclusion that the evidence of mother, younger sister and younger brother, speaks with regard to ill-treatment and harassment caused by the accused to the deceased and that substantiates the case of the prosecution. 8. It is his further submission that immediately after the incident, the accused has called over phone and confessed that he has committed the alleged offence before PWs.7 and 8. That evidence is sufficient to connect the accused to the alleged crime. It is his further submission that the appellant-accused has not made out any good ground so as to discard the evidence of these witnesses. Taking into consideration the said facts and circumstances, the trial Court has rightly convicted the accused. On these grounds, he prayed to dismiss the appeal. 9. 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. 10. It is the case of the prosecution that the accused used to ill-treat and harass the deceased. Mediation had took place and the deceased used to reside in her parent's house and thereafter she started to go for work in TSS Areca godown. The accused came there and took the deceased and on the way near Malenalli cross, the accused strangulated the deceased by crushing her neck and assaulted with stone and caused the death of the deceased. 11. In order to establish the case of the prosecution, prosecution has relied upon the evidence of PW5, who saw the accused running away from the place of incident and immediately thereafter, he has seen the dead body of the deceased and he informed the same to PW4. On perusal of the evidence of PW5, nothing has been elicited to substantiate the said fact and he has been treated as hostile. On perusal of the evidence of PW5, nothing has been elicited to substantiate the said fact and he has been treated as hostile. Even during the cross-examination, nothing has been elicited so as to substantiate the contention taken by the prosecution. 12. The prosecution has also relied upon the evidence of last seen theory. As per the case of the prosecution, the deceased had been to work at TSS Areca Godown and after the work, the accused came and took the deceased on his motorcycle and the same has been seen by PWs.9 to 12. But these witnesses have not supported the case of the prosecution and they have been treated as hostile. In that light, the prosecution is not having any strength so as to bring home the guilt of the accused beyond all reasonable doubt. 13. One more circumstance on which the prosecution is intending to rely upon is the evidence of PW1 the spot mahazar pancha. He has deposed that near the body of the deceased, the motorcycle bearing No.KA-31/7724 with its key was found at a distance of 25 feet from the spot. This witness speaks the said aspect while drawing the spot mahazar at Ex.P1. Even if the said motorcycle belongs to the appellant-accused and if it has been found near the body of the deceased, only on that basis no inference can be drawn that the accused has committed the murder of the deceased, until and unless the presence is also established with cogent and acceptable evidence. In that light, the evidence of these witnesses does not bring home the guilt of the accused beyond all reasonable doubt. 14. The prosecution has also relied upon the evidence of PW6 the mother of the deceased, PW8 younger sister of the deceased, PW13 younger brother of the deceased. Though, PW6 in her evidence has deposed that the accused was harassing her daughter and demanding to bring money and in that light, there was some quarrel. The deceased used to tell the said fact as and when she came to her house and in this regard, three to four times, panchayat was held. The accused was advised by the elders and still the harassment was continued by the appellant-accused. The deceased used to tell the said fact as and when she came to her house and in this regard, three to four times, panchayat was held. The accused was advised by the elders and still the harassment was continued by the appellant-accused. In the cross-examination of PW6, it is seen that she has admitted the fact that the accused was looking after her daughter and his son properly and happily by doing some small business. She has further admitted that when her daughter had come alongwith her son to their house for performing the marriage of her son, at that time, the accused had spoken with her and his son on phone, who were residing in their house. She further admitted that at the time of marriage, the accused had come along with her daughter to her house, they were happy and there was no quarrel between them. 15. Even on perusal of evidence of PW8 and PW13, they have also spoken with regard to harassment said to have been caused by the accused, but the evidence of PW6, shows that they were happy and the accused was running a shop. Under such circumstances, even that evidence does not appear to be trustworthy and reliable so as to bring home the guilt of the accused beyond all reasonable doubt. 16. The prosecution has also relied upon the evidence of PW7 and PW8 to show that immediately after the next date of the incident, he has called over the phone and confessed that he has committed a mistake and killed his wife Chandrakala and PW7 told him to go and surrender to the Police. During the course of crossexamination of this witness, he has admitted that it is the mobile No.9480362171 to which the phone call had come. Mobile No.9480362171 is not standing in his name and it is registered in the name of one Smt.Arpita. The said mobile has not been seized by the Police nor the call details have been produced to the effect that the accused not made a call to the Mobile No.9480362171 and he has informed that he has committed a mistake and killed his wife. Under such circumstances, the evidence of these two witnesses does not help the prosecution to bring home to guilt of the accused beyond all reasonable doubt. 17. Under such circumstances, the evidence of these two witnesses does not help the prosecution to bring home to guilt of the accused beyond all reasonable doubt. 17. The prosecution has got examined the inquest mahazar, PW2 and PW3 and got marked Ex.P14 and have got examined the Doctors as PW14 and PW15. In their evidence, they have deposed that they have conducted autopsy over the body of deceased Chandrakala and they have noticed as many as 16 injuries and the said injuries were anti-mortem and PW14 issued the postmortem report as per Ex.P25. He has also given the opinion as per Ex.P26. On perusal of Ex.P25 postmortem report, the cause of death is due to respiratory failure as a result of combined effect of head injury and strangulation. 18. A perusal of the evidence of PW-1 indicates that the place of incident is near Sondha bus stand near Malenalli cross and there are number of shops and stalls situated in the said cross and he has also further admitted that one flower pot with one red rose was found near the head of the dead body and also other flower plants were seen in the photograph marked as Ex.P.2. When the alleged incident took place near Sondha bus stand that too around 6 or 6.30 p.m., under such circumstances, one cannot imagine that nobody was there and have not witnessed the accused committing the offence. 19. Though the prosecution has established the fact that the deceased died a homicidal death with 16 injuries but it has utterly failed to point out that it is the accused who assaulted the deceased and strangulated her and thereby caused her death. We are conscious of the fact that the eye witnesses have not supported the case of the prosecution and even if the other circumstances point towards the guilt of the accused, under such circumstances, accused cannot be convicted for the alleged offence. Though, the prosecution has established the fact that the motor-cycle of the accused was found near the dead body at a distance of 25 ft., only on the basis of the said fact it cannot be held that it is the accused who has committed the alleged offence. No inference can be drawn on the basis of such fact that too when the alleged incident has taken place on a public road near Sondha bus stand. No inference can be drawn on the basis of such fact that too when the alleged incident has taken place on a public road near Sondha bus stand. Taking into consideration all the factual situations discussed as above, the evidence which has been produced is scanty and not trustworthy and reliable wherein the trial Court has erroneously come to the conclusion and has wrongly convicted the accused. In the light of the discussion made by us as above, the judgment of the trial Court requires interference at the hands of this Court. 20. In the result, we pass the following: ORDER The appeal is allowed. The judgment of conviction dated 20.09.2017 and order of sentence dated 21.09.2017 passed by the learned I Addl. District and Sessions Judge, U.K.Karwar, sitting at Sirsi, in S.C.66/2012 is set aside and the appellant/accused-Subhashachandra s/o Bangari @ Bangarya Gouda, is acquitted of all the charges levelled against him and he is set at liberty forthwith, if he is not required in any other case. The jail authorities are hereby directed to release him forthwith. The registry is directed to communicate the operative portion of this order to the learned Prl. District Judge, U.K. Karwar, as well as the jail authorities through e-mail to release the appellant/accused-Subhashachandra S/o Bangari @ Bangarya Gouda, forthwith, if he is not required in any other case. The registry is directed to send back the trial Court records forthwith.