IN THE HIGH COURT OF KARNATAKA CIRCUIT BENCH AT DHARWAD DATED THIS THE 29TH DAY OF NOVEMBER, 2011 PRESENT THE HON’BLE MRJUSTICE MOHAN SHANTANAGOUDAR AND THE HON’BLE MR,JUSTICE RAVI MALIMATH CRIMINAL APPEAL NO2857/2O1O BETWEEU: RU DRA PPA TY.WPA .3 APR U R/ O..{L 4 T TQ Ci C; RAN P PU J..A NT (ICC SRI TC .M U: I..\D\D MATH. ADS C N D: 51f\lt (P1’ ICECT MATE Pt 13 LJ( ]1F;C)SEJU TOP tARMAC). RFiCC,)\DENT 313 CR. RI . BA NUNS F, ASPIC T H IS OPt M (115 L A 113SF: 1FF El LED U /• CR ) 5 TI ‘AT T H E P U F)(...F EM NCR AND OP P AS • CT BY TB F FAST TRACU A ADDL. SET 511)115 .1Ur.( F. HLFPKERI, IF: •( : •.., 23 1CR 2 () 1, 1) SECATE N) Cf N) A 131 III N, L:\ 1111 F C.) } 151 N 5CC Fl. IN iN) H All 1.H I N) 11 I I 1) 1 AN) U 1212 1 DiN: (21.111 N LL/ANT 11 •; U N F) N P20 LI .EE .10 FRI SON NI 12.111 AN I) ii. 53 N N 2 .0CC) — N N C) I N C) .013. U LI F(•..) U N : F; Pt.. i1) P 1 . PC) F IF ‘‘s-Y?\i-. ‘—, ;‘ \nc—_’ \ \ ‘‘‘ • ! p ,•• !‘ \ .‘ ‘fi i U ‘ ‘‘ ‘fli V !\ !‘. \ • —L ‘ : ‘ • n ‘‘it n• •. ; IjI . • S “it ‘it !‘.L 1 “1 ‘ lfl ‘‘L E’’ 1flg’ ;;‘. ‘ • it.’ • ; ‘ S li-ITS ‘ PIMIr4L ‘prrs’L ((jP1,i (‘, ff4’ PIE API,’L. T1 1 [AL I”HA’ ShMFi’.4NAuOUDAP .1.. DELIVERED THE- FOL.LC WING. JUDGMENT This apptal is filed by the convicted accused against the judgment and order passed in S.C.No 128/2009 by Fast Track and Addi. Sessionc Judge, Hukkeri, sitting at Gokak. rive accused ere tried for the offences vunishable u ‘Ss 1 43, 1 17. 302, 201. •w 14 of IPC T[ie trial rourt U i hU ‘d tcw 3 cd IJos 2 to 3 dJ oni’ed ac ‘ stc 14. .1 (hi, tpn h fiteg by bLtj:. 4 v.i 1 , 1 - t? —u 1 IL r rc... ‘t r in ‘ : . 4 jc. . -...;n. 3 1l-,. 1’ 1:1 VJ rf J- cowti..i ‘‘ hci ‘itt .-;t:.” j.i tq %rv,t .,_ r’_ .‘ R i ;‘ •••! t_•.. it.. . . jIi t I•. ,t • . I, - No.1 frequcntly; on account nf th’s. decoa’d Ku’hv’ wa’ quarrellinj vuth accused No.1 at about 1.30 p iii on 15 11 ?008, Ganja’wva tcflit to thc hotii-e or -v No.1 nd the dectastd F uchavva uair.&led ith her and her husband. In this connection, accused No.1 allegedly took the help of accused Nos.2 to 5 in the night inter”ening between 1St and 16’ of November, 2008 and committed the murder of thc deceased by strangulating her with th€ hell, of a rope. On th€ next day morning, the accused sent words to the family members of the deceased thtot gh PV’ - 7 md I that hc dccs as’ d hac died bcau’t -A hr art atti fr •t fft her Auordiigls tw farr’ y i en”L i- f .[ cai C h. sprr n’ 1c’ m’ tn a’i flJ ‘ ‘‘ 1w ‘c - J V • .[i •.— I, ., ,.vII’ C, t, a’ dt y C — .- d 1 ecl r,c •aL 1r (j 1: C.- I it’•t U . b(tj tOu ii 1i’tjI& .r r[ . 1” it tC’ 4. ) C. . ‘‘ I cr ‘ ii.. •r”rt .1 -4- police by lodging a complaint. The complaint was lodged by the father of the deceased namely Bhimappa Gaddi as per Ex.P.31 before PW-29. The body was subjected to Post Mortem examination by the doctor PW-23. Post Mortem report is at Ex.P.29. Based on the Post Mortem report and other material collected during the course of investigation, charge sheet is filed against all the five accused. During the course of trial, the prosecution in all examined 30 witnesses and got marked 38 exhibits and 10 material objects. On behalf of defence, accused No.1 examined himself as DW-1 and got marked 4 exhibits. The trial court on evaluation of the material on record and after hearing, acquitted accused Nos.2 to 5 and convicted accused No.1 i.e., the appellant herein for the offences punishable u/ss.302 and 201 of IPC. I 3. s,i.Mulwaomatt learned counS3 ppear’9 for the subm’- that the ose01tl°” has not come appe11a1t ina5mul1 at . has suPPre5& the out wit)’ tflW tOfl! of the matter; that thP case o rigi1l and genesis on circum5tan1t evidence inaSmu prosewtl0fl restS es have turned nostll that the chain asmu as there are as the eyeWithless is not complete in of circum5t 5 inks in the case ot the prOSe0.1ti0t1 that various missing’ 0 uding that it %s a the trial court s not 1 ustified n : the attentbonl of the case of strangutbott e draw Mod’ in his Med11& court to the comme1ts made b contend that t is 3 case and Tox1c0 1 0 9 V to ranoutiO He further jutisprudence of nQin and not a caSe of of the evidence of PW-2 6 i tne brother ,cnfl9 attat” the s .nttrestet d’La’r cfl the q 0 nd tl’dt 3, falbt cted a’ 0 there’ that arC0” NO 1. i ‘.O” rea30’ c1OQr& h’! ‘,m , , c. vS 1 - ni’ d it DV t,e ‘nat C’1. ,inl th’ ‘p. -6- just and proper and therefore he prays for acquittal of the accused. 4. Sri.Banakar, learned Additional State Public Prosecutor argued in support of the judgment of the court below. 5. PW5-1, 2 and 3 are the eye-witnesses to the incident. PW-1 is the sister of the deceased. PWs-2 and 3 are the son and daughter of the deceased and accused No.1 respectively. They have turned hostile. PWs-4 and 6 are brothers of the deceased who were supposed to depose about the motive for commission of the offence. They have also turned hostile. PW-5 is an Engineer of Electricity Board who speaks about the flow of electricity during the relevant night in the area in question. PWs-7 and 8 are the persons who went to the place of in-laws of accused No.1 and allegedly informed the in-laws of accused No.1 and other family members about the death \i%) 01 the deceased. They hate also turned h ,‘tilc. Ws-9 arid 10 werc. supposeJ to speak about the motivt I hey arc. the ieiglbour a.id uncle cr ht lecea’cd respectiely. They have turned host’lc PW 11 and 1’ attended the funeral of the Jcteased. Both uf them have turned hostile. PW-13 is the paramour of accused No.1. She has turned hostilt. PWs 14, ‘0, 24 and 2% are the panchas in respect of various panchanarnas such as scene of offence panc.hanama, inquest panc’ianama, seliure panrhanama etc. All of them have turned hostile PW-21 is the Poiice Constable who cat riPo the FIR to th j i isd ctional ‘1 g”trotc. 22 t ‘5 SEc nt ut In 3 pectu’ of ‘ohce :,h rre&cr” rtn i’el PviI 23 h. ioc”r c oiiut C fr F r !o. •r)n’(r 2.1 ci .1v 1 tn.ttce* d.i . p P ‘ r x F ‘ ‘V’ 16 1 h r ‘ t. :0 j ‘‘j It Ynfn_t. r” ) • . [ t . 4 .. •1 i C. . . I. t I,. -8- PW-28 is the photographer who has taken the photographs of the dead body. PW-29 is the PSI who registered the complaint and investigated the case in part. PW-30 is the Investigating Officer who laid the charge-sheet after the completion of the investigation. 6. From the above, it is clear that all the eye witnesses have turned hostile. All the panchas have turned hostile. All the witnesses who were supposed to speak about the motive and illegal intimacy between accused No.1 and PW-13 have turned hostile except PW 26, the brother of the deceased. PW-23 is the doctor who conducted the Post Mortem examination. The trial court after considering the relevant material on record convicted accused No.1. 7. It is also relevant to note that accused No.1 got examined himself as DW-1 and produced 4 documents. The defence of the accused is that the deceased was 4’ — L) suffering from health problems and she has been operated in the year 2003 and has taken treatment from that day onwards and that as she could not recover from illness, she committed suicide by hanging. 8. The complainant is the father of the deceased. Unfortunately, he expired prior to commencement of the trial. The case of the prosecution as aforementioned is that accused No.1 with the help of accused Nos.2 to 5 have throttled the deceased with the help of a rope measuring about 80 inches in the matrimonial house of accused and the deceased during the intervening night between 15 th and 16 th of November, 2008. However, the trial court on evaluation of the material on record acquitted accused Nos.2 to 5 by giving them benefit of doubt. The State has not filed appeal. The material on record reveals that accused Nos.2 to 5 were not living with accused No.1 and were living separately. In view of the same, the trial court rightly thought fit to acquit I — 10 — accused Nos.2 to 5 more particularly when there is no connecting link between accused Nos.2 to 5 with the offence in question. 9. According to the defence, the deceased committed suicide by hanging herself in the matrimonial house whereas the case of the prosecution is that she was done to death by the accused. In order to find out the actual cause of death, the relevant evidence is of the doctor PW-23 and the Post Mortem examination report as per Ex.P.29. The Post Mortem report reveals that the ligature mark is present around the neck measuring 1 inch breadth and 20 inch in length. The deceased had sustained two other simple injuries such as abrasions on the chin and on the right leg. The doctor has specified that there is dark coloured rope mark around the neck. The doctor has thus opined that there is a ligature mark which is circular around the neck measuring 20 inch in length and 1 inch in breadth. The same is anti-mortem. (4 — II — He has given his opinion that the death is due to asphyxia as a result of strangulation with rope. The time of death is more than 12 hours prior to post mortem examination. Thus, the definite opinion given by the doctor in the post-mortem report that it is a case of strangulation and not the case of hanging. In his evidence, the doctor who conducted the post-mortem examination deposed in support of his opinion. Before the court also, he has deposed that there is a circular ligature mark around the neck measuring 20 inches X 1 inch and that the death has occurred more than 12 hours prior to post-mortem examination. The police have sought the opinion of the doctor as to whether the rope M.O.1 can cause strangulation. On examining the rope, the doctor has opined that the strangulation can occur by using the rope in question around the neck. He has further deposed that the rope is about 80 inches in V - 12 - length and 3 cms in breadth. Such opinion given by him in relation to the rope is at Ex.P.30. In the cross-examination, he admits that he has not measured the circumference of the neck of the deceased. He has also admitted that without measuring the circumference of the neck, the measurement of the ligature mark could not be disclosed, however he has added that he has measured the ligature mark only. Though he was cross-examined at length by the defence to show that the ligature mark is due to hanging, the doctor has withstood in the cross-examination and has asserted that it is a case of strangulation. He has further deposed that hyoid bone is fractured. 10. Sri.Mulwadmath, learned counsel appearing on behalf of the appellant contends that the evidence of the doctor cannot be taken as a gospel truth to come to the conclusion that it is a case of strangulation and not the (a’n ot hanging. H relies upnn th commentarle% found in Modi’s Medical Jurisprudence and Toxicology to onteid that v r r U ac if hanjing, thert possibility of the ligaturt mark fnund in circular manner around the. neck. According to him, th ircular marks need not be present in the case of strangulation only May be he i justified in arguing so. But wt arc. concerned with the case on hand. rhe doctor who conducted the post mortem examination w is questioned by the defence in his cross-examination that such circular ligature marks ar iund thc neck m iv b€ possiblc in flit. Lace cf hanaina alco But, tn’ loctir ‘a r1p1i vallj r’.co U . i ii n’.atte, th 1 ic, i.ur rflari fcbnd - es t Ot src’gu;t’cr. Ciru rti hi ‘) : ci i 3,,!- e r.. . . •‘.j’’ ;. — r ja .11! j. IC. .elrat.sJ Fj’ i• : i’ S rm ILL •Ofl ‘t. Cu ra ‘ i 1, bcc I- Ite.i:.i r I • ‘I mortem examination, we (annOt refuse to acept th opinior of the do tor rhu, in our ODi ‘ii n, the tria rust i justificd in . nclid Kj that it a Cm if homicidal death by stranqu’at’on 11. As aforcrncntioned, the tyt witnesses have turned hostile. Thus, the case rests on circumstantial evidence We are conscious of the well settled principle that the circumstances from which the conclusion of the guilt is to be drawn should bc. fully established. ‘he circum tances concerned m ist r should and not r iay b€’ stabli hed The fact so °stablished choufri x cOlSiCtc’it ‘3n’y viti; ttL2 hypothc’i’- of tr quilt f ht accuea that s to say tI.v %I,nui. nut be xpid!nnbie .j otnir I potrit. -ic A’ t-pt mat- 1 ’e •s Jr ‘:‘i “I gity. Ti. -‘‘Ja -. cj.:.r,., 4 .4 rr’ 1r urn .tu’k,c ‘5.’ ivJi! 1I;jt •1J€v’ ;i rh — I.: . •j r . sr I. •9 ‘• ;..$f t 1’ a Ire deith has occurred in the matrimonial iouse d inng midnight ‘n’et nr 4 tw n V & N enbe 2008 b) No evidence i forthcoming to show U’ it the third parties have entered the houce dunng the midnight (c The presence of tht a cu e n the ‘luu e luring thc eievant n ght b idmitted by the ac use d th.. nt or omm o fth th Cc d ne J a qqr hi tIe 3 j 13 r h t h - 16 - (f) The accused keeping silent without informing the police till the complaint is lodged by the father of the deceased. (g) Homicidal death in the house of accused No.1 and false explanation by the accused before the Court. It is no doubt true that all the witnesses, except PW-26, who were supposed to depose about the motive and the illicit relationship have turned hostile. But, PW 26-brother of the deceased has supported the case of the prosecution. Even PW-1 - the sister of the deceased though turned hostile, has supported the case of the prosecution to a certain extent by deposing that Gangavva — alleged paramour of accused No.1, used to come to the house of the accused and the deceased very oftenly. However, she has deposed that she does not know the relationship between accused No.1 and said Gangavva. PW-26 has deposed that there used to be VP-) - 17 - frequent quarrels between the accused and the deceased as the deceased was not liking the conduct of accused No.1 having illicit relationship with Gangavva (PW-13). He has further deposed that accused No.1 used to come along with PW-13 to the house. In the cross-examination it is brought out by the defence that PW-26 has got grouse against accused No.1. They are not in talking terms. The wife of PW-26 is the daughter of uncle of accused No.1 and the accused No.1 and his uncle did not guide the wife of PWt26 properly by advising her to go to her matrimonial house and consequently, the wife of PW-26 is not living with PW 26, but she is residing with her parents i.e., the uncle of accused No.1. He has further admitted that deceased was suffering from stomach ache and that she was operated two to three years prior to the incident. He has denied the suggestion of the defence that he is telling falsehood before the Court on that ground that cc) Is .3((IisCd No 1 tia tne reason for hreakinq the matrimonial life o’ PW 26. Merely bcauct there was ill tviil between PW 26 and accusc.d No I, the aj at PVI-26 cannot be disbelieved. Admittedly, ho es the brzther of the deceased. Hence, he reliablj knew about the illicit relationship between accused drid Gangavvi i.e., PW 13 He has also spoken in undisputable words that there used to be frequent quarrels between the deteased and the accused because of illicit relation’hip From the above it i’ clear that the appellant herein was not lIdj.spy with the deceased a the dnreacnci vas nblertinq for the dppe;lant illicit relatonsliip •v’t;’ PW 13 and h ‘4 re th r ‘ cc tc x reoucrit 4Uu1, Is Ii. fl t aa t niir r a rh e Jt v ..‘ P,’ ‘c t_. t: ‘ •_ J1 • J ‘ bit Ii I?’ i!—,lj’ •.a’i c • :ct ,Jr I . . (iILlLrI.r,s 3’tC.Jctht. T p., i. j. •, nc . tlit_ r.i La F I- — 19 — the motive. As aforementioned, PW-1 who has turned hostile, has also supported the case of the prosecution by deposing that Gangavva (PW-13) used to come to the house of the accused frequently. 13. It is not in dispute that the death of the deceased has taken place in the matrimonial house of the accused and the deceased. The accused admits his presence in the house during the relevant night. In his evidence, appellant has deposed that he was sleeping outside the house and when he went inside the house in the morning he found that the deceased has committed suicide by hanging. According to the appellant, the deceased committed suicide as she could nat tolerate the stomach ache. 14. From the above, it is clear that the presence of the accused is admitted in the house during the relevant night. He has sought to explain about the death of the \JN ‘0 deceased by deposing before the Court ac mentioned supra. But, hi’ evidence runs contrary to thc. medical evidence on re cii As aforemnt;jr.cd, th, ‘icdical evidence cIeari reveals that it ic j ‘ace of hoqii;jl death and not a suiudal death In this ‘iw of the matter, we find that the evidence ot the accused betore the Court is unbelievable. 15. 1 hough the accused was present on the night of the incident and though he knev about the death of the deceased he did not inform the same U the police. The lather ot the deceased carite to the ‘pot after getting ink r natio fr h a cuctd and w after or p in i l’dged. T ill SIjCil t,ni . tfle poli( e was ot •nfnrmea t’v the iccu a j • p ‘9 JSJ c r’- 3i t”rc. tt- .3 di ‘tX nc I ic t.•,. it r.t c.lr!ft_ tat k,,,,,” .:bc,t t F. ledth ‘‘t hi ce:c n’- 2 : U - r t)’ .c’ - ‘•‘_ ‘—:• ,., w - 2! - intimated to the police station about the death of the deceased. We are at a loss to understand as to how the PSI could know about the incident on 16 th November 2008 at 6.00 a.m. The police in the normal course ought to have come to the spot and ought to have investigated the matter immediately after getting the news of unnatural death. But, there is a lapse on the part of the police officers in not visiting the spot immediately after getting the information. Because of such lapse on the part of the police, the prosecution should not fail. The matter has to be viewed in its entirety. The case of the prosecution cannot be brushed aside because of the inaction on the part of the police in not visiting the spot immediately. But, the fact remains that the accused did not inform the police immediately after the incident. If the appellant was really innocent, there was no hurdle for him to boldly inform the same to the police immediately after the incident. - - 16. The incident has taken place during the night intervening between lS & 16 th November 2008. The accused were arrested on 3O” of November 2008, which means, the appellant was absconding for 15 days. There was no reason for the accused to abscond if really he is innocent. The abscondance of the accused has remained unexplained by him. 17. in view of the aforementioned material on record, we find that the Trial Court is justified in convicting the accused for the offence under Section 302 of IPC. Since accused No.1 was in the house along with minor children during the midnight and as nobody has entered the house during the relevant night, the only conclusion which can be reached is that accused No.1 alone is the cause for the commission of the offence of murder. The case of the prosecution is fully supported by the evidence of the doctor to the effect that the death is hr - - homicidal in nature and not suicidal in nature. Apart from the ligature marks, the deceased has sustained two other simple injuries on the body. Having regard to the totality of the facts and circumstances, we find that the Trial Court is justified in convicting the accused. Hence, no interference is called for. Appeal fails and accordingly, the same stands dismissed. Sd! sad ‘ t jm/bk