1 1 IN THE HIGH COURT OF KARNATAKA CIRCUIT BENCH AT DHARWAI) DATED THIS THE 13th DAY OF JANUARY 2011 PRESENT THE HON’BLE MR.JUSTICE K. SREEDHAR RAO AND THE HON’BLE MR. JUSTICE C.R.KUMARASWAMY CRL.APPEAL NO.228/2008 Ciw. CRL.APPEAL NO.342/2008 CRL.APPEAL NO.228/2008 BETWEEN: Smt. Savitri W/o Laxman @ Honnappa Bajantri. Aged about 25 years, 0cc: Primary School Teacher, Rio 5th Cross. Kalyan Nagar, Dharwad. . ..Appellant (By Sri. K. M. Shiralli, Advocate) AND: The State of Karnataka, Through ACP. Dharwad Sub-Division ... Respondent (By Sri. G. Bhavani Siugh. S.P.P.) I 2 This criminal appeal is filed u/s.374(2) of Cr.P.C.. by the Advocate for the appellant against the Judgcment dated: 23-01-2008 passed by the Prl. Sessions Judge, Dharwad C/c. II Addl. Sessions and Spl. Judge, Dharwad In Spi. (SC & SI’) C.C. No.3/2006 - convicting the appellant/accused No.2. for the offence P/U/S.302 r/w Sec.34 of IPC.. and sentencing him to undergo RI.. for life and to pay fine of Rs.l0,000/- and I.D., to pay fine amount to undergo S.l., for a period of one year for the offence P/U/S. 302 of TPC. CRL.APPEAL NO.342/2008 BETWEEN: Mahantesh S/o Puttappa Neelanagoudar. Aged about 25 years 1 0cc: Student and Pvt.. Service. R/o Holesiragerl Village, Tq: Harihar. Dist: Dhavanagere. Now at ls1 Cross. Kalyan Nagar. Dharwad. ...Appellant (By Sri. K. M. Shiralli, Advocate) AND: The State of Karnataka. Through ACP, Dharwad Sub-Division ...Respondent This criminal appeal is filed u/s.374(2) of Cr.P.C., by the Advocate for the appellant against the Jttdgerneni dated: 23-01-2008 passed by the Pri. V 3 Sessions Judge. Dharwad C/c. II Addl. Sessions and Spi. Judge. Dharwad in Spi. (SC & ST) C.C. No.3/2006 — convicting the appellant/accused No.1, for the offence P/U/S.302 r/w Sec.34 of IPC., and sentencing him to undergo R.I.. for life and to pay fine of Rs.10.000/- and 1.D., to pay fine amount to undergo S.I., for a period of one year for the offence P/U/S.302 of IPC. These appeals coming on this day for final hearing. C.R. Kumaraswamy. J.. delivered the following: - COMMON JUDGMENT Crl.Appeal No.342/2008 is flied by the appellant/accused No.1 U/s.374(2) of Cr.P.C. against the Judgment of conviction dated 23-01-2008 passed by the Prl. Sessions Judge, Dharwad. concurrent charge of court of Spl. Judge, Dharwad in Spl. (S.C. & S.T.) C.C.No.3/2006 convicting him for the offence punishable U/s.302 r/w 34 of IPC and sentencing him to undergo rigorous imprisonment for life and to pay a fine of Rs.l0.000/- and in default. to undergo simple imprisonment for one year. I 4 2. Crl.Appeal No.228/2008 is filed by the appellant/accused No.2 U /s.374(2) of Cr.P.C. against the Judgment of conviction dated 23-01-2008 passed by the Prl. Sessions Judge, Oharwad. concurrent charge of Court of Spl. Judge, Dharwad, in Spi. (S.C. & S.T.) C.C.No.3/2006 convicting her for the offence punishable U/s.302 r/w 34 of IPC and sentencing her to undergo rigorous imprisonment for life and to pay a fine of Rs.l0.000/- and in default. to undergo simple imprisonment for one year. 3. Both these appeals arise out of Spi. (S.C. & S.Tj C.C.No.3/2006. Therefore, these matters are taken together. 4. The contents of FIR Ex-P-43 discloses that Sub-Inspector of Police, Vidyagirl Police Station. Dharwad. has registered a case in Crinic No 219/2005 for the offence punishable under section 302 read with Section 34 of Indian Penal Code p..... q 5 against accused No.1 -Mahantesh Puttappa Neelangoudra. resident of Kalyan Nagar. on the complaint of shivananda Bajantri. Son of Hanamantappa Bajantri. 39 Years. Primary School Teacher. resident of Dannu Nagar. The occurrence of the offence Is on 9-12-2005 at 14-30 hours. The FIR was received by the learned Magistrate on 10-12-2005 at 4-30 am through Head Constable No: 568 of Vidya Nagar Police Station with a enclosure. The enclosure is the complaint. 5. The contents of the complaint is as under: The complainant has 4 brothers. They were living separately. His second brother Honnappa @ Laxman was residing at 5th Cross, Kalyan Nagar, Dharwad. His another brother was living In Kaladgi. His 4”’ brother Chidanand is living in Danu Nagar. 6. His Second brother Honnappa. aged about 30 years. fell in love with Savitri and he married her in the year 2001. They were residing at Kalyan Nagar. €7 0 6 They had one child aged about 2 ½ Years by name Rachana. His younger brother was running a Dial Center and Stationery shop in the name and style of Rachana. In order to look after the shop he engaged the services of Mahantesh Puttapa. He was residing In the house of Honnappa and he was also taking food there. He was studying In final year B.A. Degree Course. His second brother’s wife Savitri was working as a Primary School Teacher at Banichi village. 7. Its contents further discloses that on 9-12-2005 at 3-45 P.M. complainant was participating in a meeting held at office of the Adult Education. His colleague B.B. Sutar informed that Hampamma through mobile phone informed him that Honnappa’s condition was serious. After receipt of the information complainant proceeded to 5;ti Cross. Kalyan Nagar. When he came to the house of his brother Honnappa it was 4 p.m. Dead body of his P 7 brother was kept at veranda. There were Injury marks found on the neck. Blood was clotted on the stomach and palm. Then he enquired Mahantesh. He told him that he came to the house at 2-30 p.m. to take food and he tried to wake up Flonnappa but he did not woke up. Therefore. he with help of his friends shifted Honnappa to veranda. Then the complainant telephoned to his brothers and also to his sister. He also telephoned to Savitri. Then the Savitri came to the house. Then Chandrakala and Hanmantappa Bajantri examined the dead body at 11-30 pm. Then they suspected that Mahantesh along with his friends might have committed this crime. 8. Its contents further discloses that since complainant found injury on the neck and palm. he suspected that his younger brother has been murdered by Mahantesh along with his friends on 2.. B 9-12-2005 at 14-30 hours. On the basis of the suspicion he lodged this complaint. 9. The contents of the Charge sheet discloses as under: - That on 8-12-2005 at 11-30 pm accused No. 1 and 2 were having Illicit connection and in case if this information is revealed to Savitri’s husband, he will obstruct the illicit relationship between them. So in order to overcome this, they thought that in case If they kill him. there will be no impediment to continue the illicit relationship between them. Therefore they both joined together and with the aid of veil strangulated Honnappa and the deceased belongs to scheduled caste and thereby accused Nos.1 and 2 alleged to have committed the offence punishable under section 302 read with Section 34 of Indian Penal Code and also under section 3(2)(v) of SC & ST (Prevention of Atrocities) Act, 1989. ‘I 9 10. PW. 1 Shivanand Hanumantappa Bajantri has deposed that his deceased brother was running a STD Booth and Stationary Shop at Kalyan Nagar. On 02-12-2001, his deceased brother married with accused No.2. After his marriage, he was residing with his wife separately. After his marriage, the accused No.2 was appointed as a Teacher in a place, which Is at a distance of 20 Kms. from Dharwad. Daily she was travelling from Dharwad to attend the School. Accused No.2 belongs to Nekar caste, which does not come under the category of SC or ST. Two years prior to his murder. his deceased brother engaged the services of accused No. 1 to look after his STD Booth. Accused No. I Mahantesh is Lingayat by caste. which does not come under (he category of SC or ST. While accused No. I was looking after the STD Booth of his deceased brother, he was taking his food in the house of his brother. On 09-12-2005 at about 3-45 pm. when he was attending the meeting in the (0- 4 ]0 Office of the Adult Education, he received a mobile call from CW.20-Smt. Hampamma Madar that his brother Honnappa is in serious condition. Immediately he went to the house of his brother and saw the dead body of his brother In the veranda. He noticed ligature mark and injuries on his forehead. He enquired the accused No.1 as to what happened. He told him that he was not feeling well and when he came to the house for meals, with the assistance of his friends, he shifted his brother to the veranda. He suspected that it was a case of murder and immediately. he informed accused No.2 over telephone by obtaining her telephone number from accused No. 1. He also informed his maternal Uncle Hanumantappa Bajantri and his sister Chandralekha and his other relatives. All of them asked him to wait till their arrival and not to shift the dead body. Accused No.2 reached the house at about 5-30 or 6- 00 pm. CW. 12 and his wife and other relatives came t. S ‘I at about 11-30 pm. After their arrival, they meticulously saw the dead body and noticed blood clots on the left side of his chest, stomach, and a ligature mark around his neck, Injuries on his forehead and some abrasions on his face and it was confirmed that he has been murdered. At that time, he suspected that accused No. 1 was behind the murder of his brother. He also observed illicit relationship of the accused Nos. I and 2. Immediately, he went to Vidyagiri Police Station and lodged a complaint at about 3-00 am. on the intervening night of 09.12.2005 and 10.12.2005. He gave oral complaint, which was reduced into writing as per Ex.P. 1. The Police conducted Inquest Panchanama of the dead body In the presence of two panchas i.e., CV.2 and 3. He identified the clothes seen by him on the dead body of his brother. they were pant, banian, underwear of his brother. By seeing the ligature mark around the neck of his 1• 4, 12 brother, it appeared to him that he has been murdered by strangulation. Article Nos.2. 3 and 4 are marked as M.O.Nos.1, 2 and 3. Though the suggestion was put to this witness that for the sake of money, he has falsely implicated accused Nos. 1 and 2 in the case, this witness denied the said suggestion. He gave complaint against accused No. I on suspicion on seeing his behaviour with accused No.2 prior to the incident. At no point of time, Mos.1 to 4 were shown to him by the Police in the Police Station after the incident. 11. PW.2-Umarsab Khadarsab Sagar, Is panch witness for inquest and spot panchanama. He states in his evidence that he saw the dead body of Laxman and there was a ligature mark around his neck and blood clots on the left side of his body apart from scratch injury caused by nail on his face. The Police conducted Inquest Panchanania as per Cx.P. IS in his a. 13 presence. He showed the spot of the incident to the Police, and the Police conducted spot panchanama as per Ex.P.13. 12. PW.3-Abdul Wahab speaks about recovery of veil, which was of Rose colour, marked as M.O.4. Accused No.2. opening the front door of her house. showed the spot. She also opened the almerah and thereafter she produced M.O-4. Photographs were also taken. 13. PW.4-James Manes Dara was panch witness for seizure of clothes of the deceased. He states in his evidence that he noticed the nail injuries on the left cheek of accused No.1. When he enquired accused No. I as to how he sustained the nail Injuries, he volunteered that at the time of strangulating deceased Laxman, in order to defend himself Laxman scratched on his face with nails and thereby he sustained injury. The Police prepared C-.. 1’ 14 panchanarna in his presence as per Ex.P.22. The evidence of PW.5-Shlvayogi Fakkirappa Bavikatti is on the same line as that of PW.4. 14. PW.6-Chandralekha Huchchappa Bajantri states in her evidence that PW. 1-Shivanand is her elder brother and the deceased Laxman was her younger brother. Her deceased brother married with accused No.2, which was a love marriage. After the marriage, accused No.2 was appointed as a Teacher In a Primary School at Benachi near Alnavar. Accused No.1 developed illicit relationship with accused No.2, taking advantage of absence of the husband of accused No.2 for his business purpose. By seeing their behaviour he was ashamed. Later on, she came to know from her elder brother Shivanand the rumors about the illicit relationship of accused Nos.1 and 2. The evidence of PW.7, PW.8, PW.9, PW.1O, PW.1l, PW.12. PW.13. PW.14. and PW.15 S.; 15 speak about the illicit relationship of accused Nos. 1 and 2. 15. PW. I 6-Baburao Bhlmarao Sutar was working in Zilla Saksharatha Samithi, Dharwad City. He states in his evidence that on 09-12-2005 there was a meeting in the office of Zilla Saksharatha Samithi, which was attended by him and Shivanand apart from others and at about 3-20 pm.. while he was in the meeting. Hampamma Madar contacted him over his mobile and stated that brother of Shivanand by name Honnappa Is serious. PW. 17-Parashuram Subbarayappa Subanavar speaks about dropping of PW. 1 from the office of Saksharatha Samiti to the spot of offence. PW. 1 8-SanJeev Yallappa Madiwalar. is room mate of accused No.1. This witness has turned hostile. 16. PW.19-Dr.K.Devendrappa. who conducted P.M. examination on the dead body of deceased 16 Honnappa © Laxman, Sb Hanamantappa Bhajantri, aged 32 years, gave opinion that cause of death of the deceased is due to asphyxia as a result of strangulation. He also gave opinion with regard to M.O.4, which was used for commission of offence. He examined it and opined that death might have been caused by strangulation with the aid of M.O-4. veil. 17. PW.20-Dr.Balappa Basappa Oni speaks about the injuries sustained by accused No.1. He states in his evidence that if a person is attempted to kill by strangulation by another person, and If the victim resists the same. such type of injury can be caused. 18. PW.21-Dr.Mohan Hanmantarao Kulkarni has given opinion with regard to ligature mark and also gave opinion that wounds found on the dead body of the deceased were anti-mortem. PW.22-Allabaksh. [lead Const able f. A, 17 speaks about carrying of dead body of the deceased to the District Hospital for P.M. examination. PW.23- Anandkumar Nagappa Alawadi, kept watch on the dead body. 19. PW.24-Gregory Subramanya X’vier turned hostile. A suggestion was put to him that he went towards his house and peeped into the window of the bed room and he saw both the accused throttling deceased Laxman with veil and in order to rescue himself Honnappa @ Laxman was crying and accused No.1 was instigating accused No.2 that they should finish him and by saying so they intensified their act and thereby they killed him by throttling, and he has denied this suggestion. 20. PW.25-Basavaraj Shankreppa Ullagaddi, Head Constable, carried complaint and FIR in Crime No.219/2005 to concerned Jurisdictional Magistrate. Ct Pbt 18 21. PW.26 is Tanaveer B. Dadapeer. He has deposed about shifting of the dead body of the deceased from room to Hall. PT27.Abdtjlazeez Fathesha Badabade. drew a sketch of the scene of occurrence. PW. 28-Sanjeev Shivasharanappa Noola, Photographer. has taken photographs of the dead body and the spot of the incident. PW.29-Altaf Ahammad, carried the articles to the FSL. PW.30- Basavaraj, SDA of HDMC, furnished the property extract of house property standing in the name of Melwin S. Alagodi, resident of Kalyan Nagar on 08- 03-2006 as per Ex.P.50. PW.31-Nazirahammad is the Tahsildar. He has issued caste certificate stating that the accused No. 1 belongs to Hindu Lingayat caste and accused No.2 belongs to Hindu Nekar caste. PW.32-Shivappa Fakkirappa Doddamani is the AS!, who pointed out the spot to the PWD Engineer PW.2 7. PW. 33-Manohar Chanabasappa Yalavagi, speaks about registering the case U/s.302 nw 34 of 4* 19 IPC and forwarding the complaint and FIR to the Jurisdictional Magistrate. PW.34 is Abduisab Sultan Ghori, Dy.S.P. He took up further investigation of this càsê. He conducted inquest panchanama of the dead body, recorded statement of the witnesses, and sent accused No.1 to the Hospital for medical treatment. He also gave requisition to PWD Engineer to inspect the spot and to prepare the sketch of the spot of the offence. He sought opinion of PW. 19, as to whether blood clot found on the dead body was ante-mortem or postmortem and he handed over further investigation of this case to PW.37-Basappa Sunpamallappa Angadi, the Police Inspector. PW.35 P:t! Laxman Pas; ‘He is working.as a Deputy ::. Dltectcir of Regional Forensic Science labnatory, BegtuL fle speaks about absence,of poison n the Si 4. .: P*1i6-Yeliqppa wans Ka4*4sx,, A. caflied t1Lt ‘articles to RflL, Beruen3 Basapa Suanamaliappa Angath, dçpq$gd PW.36 to It 20 RFSL, Belgaum with 3 sealed articles to hand over the same for chemical examination. 22. The Sum and substance of the findings of the trail Court Is as under: The Trial Court mainly relied upon the evidence of PW.1 and PW.6 to PW.14. regarding motive and also illicit relationship between accused Nos. 1 and 2. The Trial Court also relied upon the evidence with regard to recovery of M.O.4-Veil. The Trial Court also relied on the injury caused on accused No.1 on the basis of Ex.P-37- wound certificate. The Doctor gave evidence that death was due to strangulation as per Ex.P.33. The death was occurred in the house of accused No.2, where the accused No.1 was working tinder the deceased. Taking into consideration of all these. the Trial Court came to the conclusion that accused Nos. I and 2 are guilty of the offence punishable under section 302 of IPC. Feeling it 21 aggrieved by the Judgment of conviction. accused No.1 and 2 have preferred these appeals. 23. We have heard the learned counsel for the appellants and also the learned state public prosecutor. We have perused the trail courts records. 24. It is the contention of the learned counsel for the appellants that the motive is an improved aspect and subsequently this aspect has brought out on record by the prosecution. but at the initial stage it was not mentioned in the Ex.P.1 complaint. At the first instance, P.M. examination was conducted between 1-00 pm, and 3-30 pm. on 10.12.2005. Inquest panchanama-Ex.P. 15 was conducted between 8-00 pm. and 10-00 pm. in the night on the same day. He further submits that the case of prosecution is not genuine. 6’ 22 25. The learned state public prosecutor supports the impugned Judgment and order. He further submits that there is sufficient evidence on record to hold that accused No. I and 2 are guilty of the offence charged. 26. The Point that arises for our consideration is whether the impugned Judgment calls for interference or not? Our answer to above point is as under for the following reasons: The evidence of PW. 1 to PW. 14 are all omnibus statements. They only speak about illicit relationship of accused Nos. 1 and 24 They do not speak anything about the commission of offence. It is submitted by the learned counsel for the appellants that accused No.2 and deceased were in love with each other and later they married. Therefore, all the relatives were unhappy and accused Nos. I and 2 were falsely implicated in the crime. Therc is no : .— (4 ‘F 23 chain of circumstances established to point out the guilt of the accused. 27. We have carefully perused the evidence of all these witnesses. At the first instance the complaint was lodged on suspicion. The suspicion. however grave, cannot take place of proof. In this case, accused No.2 was in love with deceased Honnappa and they married. Accused No.1 was working under the deceased. Accused No. 1 was having illicit relationship with accused No.2, and on suspicion, they have been implicated in this crime. The evidence of prosecution witnesses do not speak about the involvement of the accused. They only mention about illicit relationship between accused 1 and 2. The material brought out by the prosecution is only about illicit relationship between the accused Nos.l and 2. None of the witnesses speaks about the 24 involvement of the accused in the commission of offence. 27. It is submitted by the learned counsel for the appellants that post mortem examination was conducted prior to inquest panchanama. We have carefully perused the inquest panchanama and also post mortem examination report. The inquest panchanama discloses that inquest was conducted on 10-12-2005. between 8-00 am and 10-00 am., The column No: 15 of the inquest panchanama reveals that on 10-12-2005 at 10-00 am head constable 1860, as per the direction of Police Inspector, sent the dead body to District Hospital, Dharwad. for post mortem examination. The post mortem examination report reveals that autopsy was conducted on 10-12- 2005 between 1-30 pm and 3-30 pm. Therefore it is incorrect to say that autopsy was conducted earlier to inquest panchanama. 4/ ‘C 25 28. During the cross-examination of PW-1O he clearly admits that himself, PW- I and Police discussed together and lodged the complaint on suspicion. PW-24 is the eye witness. He states in his evidence that he thought it is a quarrel between husband and wife and as such he returned to his house. He did not go to the house of accused to see what was going on there. He does not know the cause of death of Honnappa. PW-24 has turned hostile to the side of prosecution. At the first Instance, PW-19 medical officer kept his opinion pending for want of Forensic Science laboratory report. The name of accused No-2 is not found in the FIR. 29. The Trail Court mainly relied on the evidence of illicit relationship between accused Nos: 1 and 2. recovery of MO-4-veil and also Ex.P-7- wound certificate of accused No.1 to come to the conclusion that accused are guilty of the offence 4. 4-—- 26 charged. In this case there is a positive evidence to the effect that the complaint was lodged on suspicion. There is positive evidence to the effect that after due deliberation, complaint was lodged. There is improvement and omission in the evidence of relatives of PW-1. Accused No-2 was not present at the spot when the complainant came to the house of Honnappa. Seizure of MO-4-veIl, evidence relating to illicit connection and Ex.P-37-wound certificate of accused No. I are all corroborating piece of evidence. There is no evidence to support charge leveled against the accused. The Finding recorded by the Trail Court is not based on legal evidence. It is based on surmises and conjectures. The prosecution has failed to establish the case beyond all reasonable doubt. Therefore we are of the opinion that the Judgment of conviction suffers from infirmity and not sustainable in law and therefore the same is liable to be set aside 27 30. In that view of the matter. we pass the following: - ORDER Both Criminal Appeals No.228/2008 arid 342/2008 are allowed. The Judgment of conviction passed in Spl. (SC & ST) C.C.No.3/2006 on the file of II Sessions and Special Judge. Dharwad is hereby set aside. The appellant/accused No.1 in Crl.A.No.342/2008 & the appellant/accused No.2 in CR1.A.No.228/2008 are acquitted and they are set at liberty, if they are not required to be detained in any other case. Registry Is directed to communicate the operative portion of the order to the Trial Court as well as to the Jail authorities. Sdf JUDGE UDQE ‘uRN!