R IN THE HIGH COURT OF KARNATAKA DHARWAD BENCH DATED THIS THE10H DAY OF JUNE, 2020 PRESENT THE HON’BLE MR.JUSTICE B.A.PATIL AND THE HON’BLE MRS. JUSTICE M.G. UMA CRIMINAL APPEAL No.100174/2016 BETWEEN: SRI. DASHIRATH S/O IRAPPA NAGARAL, AGE:
25. YEARS, OCC: AGRICULTURE, R/O: CHIKANAL VILLAGE, TAL: HUNGUND, DIST: BAGALKOT.-. APPELLANT (BY SRI S.S. KOTI, SENIOR COUNSEL AND SRI SRINAND A. PACHHAPURE, ADVOCATE) AND: STATE OF KARNATAKA REP. BY AMMINAGAD POLICE STATION, NOW REPRESENTED BY SPP, HIGH COURT OF KARNATAKA, BENCH AT DHARWAD.-. RESPONDENT (BY SRI V.M. BANAKAR, ADDL. S.P.P.) THIS CRIMINAL APPEAL IS FILED U/S3742) OF CR.P.C. AGAINST THE JUDGMENT
OF CONVICTION AND ORDER
OF SENTENCE PASSED BY THE LEARNED PRL. DIST. & SESSIONS JUDGE, BAGALKOT IN S.C. No.44/2015 & ETC. :
2. : THIS CRIMINAL APPEAL COMING ON FOR FINAL HEARING THIS DAY, B.A.PATIL,J., DELIVERED THE FOLLOWING: JUDGMENT
The appellant aggrieved by his conviction and sentence in S.C. No.44/2015 dated 22.04.2016 passed by the learned Principal District & Sessions Judge, Bagalkot (hereinafter referred to as the ‘trial Court’), is before us.
2. We have heard the learned senior counsel Sri S.S. Koti for Sri Srinand A Pachhapure, appearing on behalf of the appellant-accused. We have also heard the learned Additional SPP Sri V.M. Banakar, for the respondent-State.
3. The case in brief as averred by the complainant is that the daughter of the complainant was given in marriage to the accused-appellant, their marriage being :
3. : performed on 11.04.2013. Thereafter the deceased and the accused started leading matrimonial life in the farmhouse situated in R.S. No.35/1. Out of the wedlock they have begotten a daughter by name Chi.Srusthi. At that time, the accused was looking after the deceased well and after six months he started subjecting her to physical and mental cruelty, demanding her to bring cash and motorcycle as nothing has been given to him at the time of marriage. The said fact used to be told by the deceased to the complainant over phone. It is further averred in the complaint that the complainant and her relatives advised the accused not to ill treat and harass the deceased. Despite the same, the accused did not stop the said act of ill treatment and harassment towards the deceased. About a month prior to the alleged incident, the accused had beaten the :
4. : deceased and he has sent her back to the parental house. On 12.02.2015 at about 9 AM the accused called the complainant over the phone and stated that there is “chowla ceremony” of his daughter and requested the complainant to send his daughter and the complainant advised the accused not to ill treat his daughter and sent her and his grand daughter to the house of the accused. Thereafter, on the same day at about 1 PM the accused called the complainant over phone saying that, he would kill his daughter. The complainant requested the accused not to do so. At that time, the call was ended. After one hour when the complainant called upon one Mahesh who is the villager of the accused over the phone and enquired, he told the complainant that the accused has strangulated his wife to death by tying her neck tightly with a rope. Immediately :
5. : the complainant along with his relatives came to the house of the accused and saw the body of the deceased lying in the living room and found bleeding injuries over her head and a rope was tied around her neck. On the basis of the complaint, a case was registered in Crime No.10/2015 of Amengad Police Station against the accused, his mother and sister. After investigation, charge sheet was filed against the accused alone dropping his mother and sister. The committal Court took cognizance of the crime, secured presence of the accused and after following the procedure as contemplated under Section 209 Cr.P.C., committed the matter to the Court of Principal Sessions Judge. The trial Court secured the presence of the accused and after hearing the learned Public Prosecutor and the learned counsel for the accused, charge was framed, :
6. : read over and explained to the accused. He pleaded not guilty and claimed to be tried and as such the trial was fixed.
4. In support of the case of the prosecution 31 witnesses have been examined and 46 documents so also two material objects were got marked. Thereafter, the statement of the accused was recorded by putting incriminating materials as against him. He totally denied the incriminating materials on record, but has not led any defence evidence nor got marked any documents. After hearing the learned counsels appearing for the parties, the impugned judgment of conviction and order of sentence came to be passed. Challenging the same, the appellant-accused is before this Court. :
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5. The main grounds urged by the learned Senior Counsel appearing on behalf of the appellant are that the judgment of the Court below is perverse, capracious and delivered without applying the proposition of law laid down by this Court as well as by the Hon’ble Supreme Court. It is his further submission that the Court below has erred in holding that the appellant is guilty of the offence punishable u/s 302 of IPC. It is his further submission that, except the official witnesses, all the independent witnesses have not supported the case of the prosecution. Even then the trial Court has come to a wrong conclusion and by drawing inference and presumption under Section 106 of the Indian Evidence Act (hereinafter referred to as ‘the Act’, for short), has wrongly convicted the accused. :
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6. It is his further submission that though the accused has not given any explanation either during the course of cross- examination or in his statement recorded u/s 313 of Cr.P.C, the initial burden is always there upon the prosecution to prove before invoking the provision of Sec. 106 of the Act to the effect that in the said premises it is the accused and the deceased alone were staying and that the said premises was not accessible to any stranger and the accused was seen in the vicinity of the premises where the alleged offence has taken place.
7. It is his further submission that Section 106 of the Act if it is seen in its letter and spirit, though it shifts burden upon the accused to explain the ground for unnatural death of his wife, when the wife is found dead in :
9. : his premises, the Section cannot be used to undermine the well established rule of law that, save in a very exceptional class of cases the burden is on the prosecution and it never shifts. In order to substantiate the said contention, he has relied upon the decision in the case of Shambunath Mehare Vs. State of Ajmer reported in AIR1956SC404 8. It is his further submission that, it is relevant for the prosecution to prove that the accused and the deceased were last seen together in the premises and any outsider may not have any access. But, in the instant case no such material has been placed to substantiate the said fact. It is his further submission that the accused may disprove the case of the prosecution during the course of cross- examination of the witnesses or by producing :
10. : records or by raising probable defence in the statement of the accused or by bringing some records before the Court. But, when the prosecution has utterly failed to prove the case on probabilities, then the burden will not shift on the accused to explain regarding the unnatural death of his wife.
9. It is his further submission that, on close reading of Section 106 of the Act, it is clear that the accused has to explain the circumstances under which an unnatural death has occurred only when the said fact is “especially within his knowledge”. If the prosecution has failed to prove that it was “especially within his knowledge”, then under such circumstances the provision of Section 106 of the Act cannot be attracted and accused cannot be convicted. The trial Court has grossly :
11. : erred in relying upon the evidence of only official witnesses and has convicted the accused by drawing presumption u/s 106 of the Act. Further, the evidence of PW26 the Head Constable to the effect that the accused appeared before him and had given a confession statement, is also not admissible in view of provision of Section 25 of the Act. The confession or admission made to the Police whether in the course of investigation or otherwise, is protected u/s 25 and 26 of the Act. In this regard he relied upon the decision in the case of Aghnoo Nagesia V. State of Bihar reported in AIR1966SC119 Without looking into these aspects, the trial Court has erroneously convicted the accused. On these grounds he prayed to allow the appeal and to set aside the judgment of conviction and order of sentence and to acquit the accused. :
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10. Per contra, it is the submission of the learned Addl. SPP for the respondent-State that though all the material witnesses have not supported the case of the prosecution, the evidence and materials placed on record clearly goes to show that the unnatural death of the deceased has taken place in the house of the accused. It is his further submission that the appellant and the deceased were the only occupants of the said house. Therefore, it is incumbent upon the accused to have tendered some explanation in order to avoid any suspicion as to his guilt. In the instant case, the accused has kept mum without there being any explanation, which led to the conclusion that the accused is the author of the crime.
11. In the case on hand, the accused has kept mum without there being any explanation. :
13. : It is submitted that the trial Court has rightly convicted the accused by taking into consideration the ratio laid down by the Hon’ble Apex Court in catena of decisions. It is his further submission that the evidence of PW24 – ASI goes to show that the deceased had complained on 24.08.2013 about the ill- treatment and harassment given by the accused and the said matter has been compromised in the police station in LPT No.91/2013. It is his further submission that there is ample material to show that the accused used to ill-treat and harass the deceased and in that context, on the alleged date of incident, he has assaulted on the head of the deceased and committed murder by strangulating her neck. It is his further submission that the place of the alleged incident has not been disputed by the accused and no explanation has been given in this behalf. :
14. : Under these circumstances, the presumption has to be drawn as against the accused and in the absence of any explanation the only inference which can be drawn is that it is the accused who has committed it and therefore, the trial Court has rightly convicted the accused. The appellant/accused has not made out any good grounds to allow the appeal and to acquit the accused. On these grounds, he prayed to dismiss the appeal.
12. We have carefully and cautiously gone through the submissions of the learned Senior counsel and the learned Addl. SPP and perused the materials including the trial Court records.
13. The prosecution in order to prove its case has got examined as many as 31 witnesses. It is an admitted fact that the relatives of the deceased, who have been examined before the :
15. : Court, have not supported the case of the prosecution and they have been treated as hostile. So also the panchas to spot mahazer and inquest mahazer. The persons who said to have seen the accused ill-treating and harassing the deceased, have deposed that they have not seen the accused assaulting and committing the murder of deceased. They have not supported the case of the prosecution and they have been treated as hostile.
14. It is not in dispute that the mother and sister of the accused were arrayed as accused at the final stage on the ground that they have also joined hands with accused No.1. But subsequently they have been dropped out and they have been transposed as witnesses viz., PWs. 20 and 21 and they have also not supported the case of the prosecution. :
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15. The prosecution has got examined the doctor - PW31 to prove the fact that the deceased died homicidal death. In his evidence he has deposed that he has found contused laceration present over the left side of the scalp measuring 3 x 2 cms, bleeding and condused ligature make present just below thyroid cartilage horizontal measuring 10 x 1 cms. He opined that the cause of death is due to asphyxia as a result of antemortem strangulation and has also given his opinion as per Ex.P43.
16. During the course of evidence, it has not been disputed that the deceased died homicidal death. In that regard, the prosecution has clearly established the fact that the deceased died homicidal death. The only question which boils out before us is that, even :
17. : though all the material witnesses have not supported the case of the prosecution and have been treated as hostile, whether the Court below is justified in convicting the accused only relying upon the provisions of Section 106 of the Act.
17. On a close reading of Section 106 of the Act, though it shifts burden upon the accused to establish the facts which are especially within his knowledge, but as per tenets of law the initial burden of proving the case is always on the prosecution and it never shifts. It only shifts when all probabilities establishes the basic ingredients of the offence. As per the case of the prosecution, the accused used to demand dowry in the form of cash and motorcycle, as no dowry has been given in the marriage of the accused and the deceased. But :
18. : the trial Court has come to a right conclusion and has held that the prosecution has not proved the guilt of the accused for the offence punishable under Section 498A of the IPC and acquitted the accused for the said offence. It is also an admitted fact that the State has not preferred any appeal against the said acquittal order. In that light, when the prosecution itself has failed to prove initially the fact that there was some demand of dowry in the form of cash and motorcycle, then the other circumstances have to be appreciated based on the said fact.
18. As rightly pointed out by the learned Senior Counsel that, though the accused has not given any explanation, but the prosecution has to initially establish the fact that it is the accused and the deceased alone who were staying in the said premises and they have last :
19. : seen together in the said premises to which an outsider may not have any access. Admittedly the alleged incident has taken place in the farm house situated in the land bearing R.S.No.35/1 of Chiknal village. But when the said farm house is situated in a land, it appears that it is accessible to some other persons also.
19. Be that as it may. The complaint – Ex.P1 itself discloses the fact that it is not only the accused and the deceased who are staying in the said farm house, but PW20 - mother of the accused and PW21 - sister of the accused were also residing along with them in the said farm house. When the said premises is accessible to other persons other than accused, then no inference could have been drawn under Section 106 of the Act. This proposition of law has been laid down by the Hon’ble Apex Court in the case :
20. : of Dnyaneshwar v. State of Maharashtra reported in (2007) 10 SCC445 At para 10 of the said judgment, it is observed as under: “10. It has not been disputed before us that the deceased was murdered in her matrimonial home. It is not the case of the appellant that the offence was committed by somebody else. It is, also not his case that there was a possibility of an outsider to commit the said offence. One of the circumstances which is relevant is that, when the couple was last seen n a premises to which an outsider may not have any access, it is for the husband to explain the ground for unnatural death of his wife.
20. Though the trial Court has also referred to the said decision, for the reasons best known to it, it has not properly looked into the ratio laid down in the said decision and has come to a wrong conclusion and has wrongly convicted the accused. Even the prosecution has also not established the fact that the alleged :
21. : fact is especially within the knowledge of the accused and the accused alone. When the initial burden has not been established by the prosecution, the pendolium of burden will not shift on the accused to rebut the said presumption. It is well established principal of law that the burden of proof shifts to the accused only when the initial burden is established by the prosecution. If it is not established, then it will not tilt in favour of the accused and accused is not obliged to explain any things. It is as good as the prosecution has not proved its case. Under these circumstances, disproving the fact does not arise at all. In that light the trial Court has committed an error in coming to the conclusion that the prosecution has proved the guilt of the accused beyond all reasonable doubt. :
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21. Be that as it may. Admittedly, in the instant case on hand, including the complainant, the mother of the deceased and other relatives and even the eyewitnesses have not supported the case of the prosecution. When almost all the witnesses have not supported the case of the prosecution and the prosecution has failed to prove its case as it alleged, the trial Court ought not have taken shelter under Section 106 of the Act and ought not to have convicted the accused. In that light also, the trial Court has not properly appreciated the facts of the case on hand in its right perspective and it has come to a wrong conclusion.
22. During the course of arguments, learned Addl. SPP submitted that the accused himself has appeared before PW26 and has made :
23. : confession. We have cautiously gone through the deposition of PW26. In his evidence, PW26 has clearly deposed that, when he was working as Station House Officer in the police station, the accused appeared and confessed that, the deceased was sleeping with another person in his form house in between 1.00 pm and 2.30 pm, by seeing the same with his eyes, he assaulted her with stick on her head and strangulated with a wire and has committed her murder.
23. It goes without saying that PW26 – Chidanand, who was working as a head constable was the police officer within the tenets of Section 25 of the Act. It is well established proposition of law that, if a confession or admission is made to the police officer, whether in the course of investigation or otherwise, then :
24. : the same is protected under Section 25 of the Act and the said evidence is also not admissible in law. The confession made before the police is not admissible as discussed by the Hon’ble Apex Court in the case of Aghnoo Nagesia vs. State of Bihar reported in AIR1966SC119 Para 14 of the said judgment reads as under: “14. If proof of the confession is excluded by any provision of law such as S. 24, S. 25 and S.26 of the Evidence Act, the entire confessional statement in all its parts including the admissions of minor incriminating facts must also be excluded, unless proof of it is permitted by some other section under as S.27 of the Evidence Act. Little substance and content would be left in Ss. 24, 25 and 26 if proof of admission of incriminating facts in a confessional statement is permitted.
24. Be that as it may, even assuming that the accused went before PW26 and has made confession, when the entire case rests on the :
25. : circumstantial evidence and when all other circumstances have not been established by the prosecution, then the confession made before PW26 is also considered to be a very weak type of evidence and only on the basis of that, the accused cannot be convicted.
25. Keeping in view the ratio of the decisions of Hon’ble Apex Court and the tenets of law as discussed above, we are of the considered opinion that the scanty evidence placed before the Court is not going to prove the case of the prosecution beyond all reasonable doubt. If the evidence of PW26 is taken into consideration, that itself shows that the accused had stated that the deceased was sleeping with another person. If the said aspect is also taken into consideration, it is proved by the prosecution itself that the said farm house is :
26. : accessible to some other persons as well. If the prosecution case is looked into in the light of above circumstances, the trial Court ought not have convicted the accused by taking shelter under Section 106 of the Act.
26. Looking from any angle, there appears to be some force in the arguments advanced by the learned Senior Counsel. We accept the same and hold that the judgment of the trial Court is not sustainable in law.
27. We have perused the judgment of the trial Court. Taking into consideration the above said facts, the trial Court has not properly appreciated the evidence and has wrongly applied the proposition of law and has come to a wrong conclusion and as such, the same requires to be interfered with at the hands of this Court. :
27. : Hence the appeal is allowed. The judgment of conviction and order of sentence dated 22.04.2016 passed by the Principal District and Sessions Judge, Bagalkot in S.C.No.44/2015 is set aside and the accused/appellant – Dashirath, S/o. Irappa Nagaral is hereby acquitted. His bail bonds and surety bonds stand cancelled. The fine amount, if any, deposited by the appellant, may be refunded to him on proper identification and acknowledgement. Registry is directed to send back the trial Court records forthwith. Sd/- JUDGE Sd/- JUDGE Bvv – up to para 10 gab – para 11 to end