Judgment:
R1IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE21T DAY OF JUNE, 2022 PRESENT THE HON’BLE MR.JUSTICE K.SOMASHEKAR AND THE HON’BLE MR. JUSTICE SHIVASHANKAR AMARANNAVAR CRIMINAL APPEAL NO.1274 OF2017BETWEEN: SRI.NARASIMHAMURTHY S/O.MUNINARASIMHAPPA AGED:
30. YEARS R/O.NARAYANADASARAHALLI SHIDLAGHATTA TALUK CHIKKABALLAPUR DISTRICT - 562 105. ...APPELLANT (BY SRI.MADHAV KASHYAP, ADV. FOR SRI.P.PRASANNAKUMAR, ADV.) AND: STATE OF KARNATAKA, REP. BY SUB-INSPECTOR OF POLICE, SHIDLAGHATTA RURAL POLICE STATION, SHIDLAGHATTA, CHIKKABALLAPUR DISTRICT, REP. BY THE STATE PUBLIC PROSECUTOR HIGH COURT OF KARNATAKA BENGALURU - 560 001. ...RESPONDENT (BY SMT.RASHMI JADHAV, HCGP) 2 This Criminal Appeal filed under Section 374(2) of Code of Criminal Procedure praying to allow the appeal by setting aside the judgment of conviction dated 11.07.2017 and order of sentence dated 13.07.2017 made in S.C.Nos.22/15, 61/15, 36/16 by the court of II-Addl. District and Sessions Judge, Chikkaballapura sitting at Chinthamani and acquitting him of all the charges leveled against him. This Criminal appeal coming on for dictating judgment this day, K. Somashekar .J delivered the following:
JUDGMENT
This appeal is directed against the judgment of conviction and order of sentence rendered by the trial Court in S.C.No.22/15 dated 11.07.2017, for the offence punishable under Section 302 of IPC, 1860 against Accused No.1 namely Narasimhamurthy, but acquittal judgment render against Accused No.2 and Accused No.3 in S.C.No.61/15 and S.C.No.36/16 in a common judgment.
2. Heard Sri.Madhav Kashyap, learned counsel for the appellant / accused and representing Sri P.Prasanna 3 Kumar, who is on record and so also, Smt.Rashmi Jadhav, learned HCGP appearing for the State. Perused the judgment of conviction rendered by the Trial Court in S.C.No.22/2015, 61/15, 36/16 dated 11.07.2017.
3. The factual matrix of the appeal are as under:- It is transpired from the case of the prosecution that on 11.11.2014 one Chikkanarayanappa has lodged the complaint against the accused by approaching the Shidlaghatta Rural Police alleging that his daughter namely, Lakshmidevamma @ Lakshmamma was given in marriage to accused Narasimhamurthy about 3 years back. During her marriage with him, her parents had given dowry in terms of cash of Rs.1,00,000/-, so also gold ornaments. The couple were blessed with a female child aged about 1-1/2 years namely Siri. While she was residing in her husband's house i.e., accused No.1 - Narasimhamurthy along with the parents of accused No.1 who are arraigned as accused Nos.2 and 3, they had 4 extended physical as well as mental harassment to her and also insisted her to bring additional dowry from her parental house. Despite receipt of dowry in terms of cash and so also gold jewellery, on 10.11.2014 again accused No.1 - Narasimhamurthy, as well as his parents being arraigned as accused Nos.2 and 3 have sent Lakshmidevamma @ Lakshmamma to her parental house in order to bring additional dowry of Rs.20,000/- and also threatened with dire consequences in case she fails to bring money and caused mental harassment, for which, the complainant replied that he will arrange for money within one or two months. But on the same day since the deceased demanded the accused persons to get her gold ornaments released which were pledged by them in Bank, accused Nos.1 to 3 planned and committed murder of deceased by tying her neck with the help of the nylon thread which was in the neck of the deceased. 5
4. In pursuance of the act of the accused and also on a complaint being filed by PW.1, criminal law was set into motion by recording FIR for the offences reflected in the substance of the FIR. Subsequent to registration of the case, the I.O. had taken up the case for investigation and thoroughly investigated the case and laid charge-sheet against the accused persons in Cr.No.323/2014 registered by Shidlaghatta Rural Police Station. After completion of the investigation, the investigating officer laid the charge sheet before the Committal Court.
5. Subsequently, the committal Court has passed an order under the relevant provision of Section 209 of Cr.P.C and case was committed to the Sessions Court assigning the case in S.C.Nos.22/2015, 61/2015, 36/2016. Subsequently, accused Nos.1 to 3 were secured and had faced trial whereby charges were framed against them accused for the offences punishable under Sections 498-A, 304-B, 302 read with Section 34 of IPC, beside 6 Sections 3 and 4 of the Dowry Prohibition Act. Charges framed were read out to the accused in language known to them but accused did not plead guilty and claimed to be tried. Accordingly, plea of the accused Nos.1 to 3 were recorded by the trial Court separately.
6. Subsequent to framing of charges by the trial Court by following the requisite conditions of Cr.P.C, prosecution had examined PW-1 to PW-15 and got marked several documents at Exhibits P1 to P24 and so also material objects were got marked as MO-1 to MO-5. Subsequent to closure of the evidence on the part of the prosecution, incriminating statements appearing against accused Nos.1 to 3 were recorded as contemplated under Section 313 Cr.P.C., whereby accused Nos.1 to 3 had denied the truth of the evidence of the prosecution adduced so far. Subsequently, accused Nos.1 to 3 were called upon to adduce defence evidence as contemplated under Section 233 Cr.P.C. But accused Nos.1 to 3 did not 7 come forward to adduce any defence evidence on their side. Accordingly, it was recorded.
7. Subsequent to closure of the evidence on the part of the prosecution, as well as the defence side, the trial Court heard the arguments advanced by the learned Public Prosecutor and also the arguments of the learned defence counsel. The trial Court had appreciated the evidence of PW.1 who is the author of complaint at Ex.P1, Spot Mahazar at Ex.P2, Seizure Mahazar at Ex.P14, Inquest Mahazar at Ex.P15 and also contents in the post mortem report at Ex.P17. PW.8 was the Doctor who conducted autopsy over the dead body of the deceased - Lakshmamma @ Lakshmidevi. Further evidence of PW-11 - Liyakathulla(PSI) and PW-13 - Sanna Thimmappa, who were the Investigating Officers, after completion of the investigation laid the charge sheet against the accused persons and they were also subjected to examination. 8
8. These are all the evidence which has been appreciated by the trial Court in rendering conviction judgment in S.C.Nos.22/2015, 61/2015, 36/2016 for the offences reflected in the operative portion of the impugned judgment. It is this judgment which is under challenge in this appeal by urging various grounds.
9. Sri Madhav Kashyap, learned counsel for appellant / accused No.1 - Narasimhamurthy has taken us through the evidence of PW-1 - Chikkanarayanappa, who had approached Shidlaghatta Police Station by filing a complaint as per Ex.P1 and based upon his complaint, criminal law was set into motion. Accused No.1 - Narasimhamurthy, who is the husband of the deceased had extended physical and mental harassment to the deceased and also insisted her to bring additional dowry from her parental house. Lakshmidevamma @ Lakshmamma informed the same to her father. With great difficulty, the complainant adjusted the amount of 9 Rs.1,00,000/- and gave it to accused No.1 and also advised not to extend any sort of physical or mental harassment to her daughter. But, for sometime, no ill- treatment was extended by accused No.1. After some days, the ill-treatment continued. Due to the harassment panchayath was convened in the presence of the elderly persons namely, Ashwath, Narayana, Rathnamma, Gangaraja and Babaiah. Accordingly, appellant was advised to look after Lakshmamma cordially. On 10.11.2014 at about 1.00 p.m., Lakshmamma came to the house of the complainant and informed that her husband and his parents have sent her to bring Rs.20,000/- and if she returns without amount certainly she would have to face consequence. Accordingly, PW-1 complainant and his wife informed deceased - Lakshmamma that they do not have any money and they will adjust that amount in a month or two and sent her back saying so. On the same day at about 1.00 a.m. Smt Ratnamma W/o.Muniswamy Gowda came to house of PW-1 - complainant and informed 10 that Babaiah, S/o.Chennappa of Narayana Dasarahalli telephonically informed her that complainant's daughter has died in her house. The complainant and relatives of his wife went to Narayana Dasarahalli and saw that Lakshmamma was dead and her dead body was on a cot in the room. On verifying the dead body of the Lakshmamma, there was an injury on the neck. There were no injuries either on the right side or the left side of her neck. But Lakshmamma @ Lakshmidevamma was murdered. In pursuance to the complaint filed by the father of the deceased, a case in Crime No.323/2015 came to be registered by recording FIR as per Ex.P18.
10. It is in this background, learned counsel for the appellant / accused No.1 - Narasimhamurthy contended that the impugned judgment of conviction rendered by the trial Court on the basis of oral and documentary evidence on the part of the prosecution has not been properly appreciated and on that count alone it requires re- 11 appreciation of evidence, if not, certainly there shall be miscarriage of justice to accused No.1 - Narasimhamurthy.
11. It is further contended by referring to the evidence of PW-8 - Dr.Sudhakar, who conducted autopsy over the dead body of the deceased and post mortem report as per Ex.P17, whereby he had given information relating to the cause of death of the deceased - Lakshmamma @ Lakshmidevamma, whereas the trial Court had misinterpreted and misdirected the evidence of PW-8, so also the evidence of PW-13 - Sanna Thimmappa, being the Investigating Officer, who in his evidence revealed that the dead body of Lakshmamma was found on the cot. However, the trial Court held that the prosecution has failed to prove the guilt against the accused under Sections 498-A, 302, 304-B read with Section 34 of IPC, inclusive of offences under Sections 3 and 4 of the Dowry Prohibition Act in respect of accused Nos.2 and 3, who are the parents of this accused No.1 namely, Narasimhamurthy. Therefore, 12 it ought to have disbelieved the entire case of the prosecution, whereas the case of accused Nos.2 and 3 was ended in acquittal and the same benefit would have been extended to accused No.1. But the trial Court has failed to extend that kind of benefit to the appellant / accused No.1. But the entire case is based upon the circumstantial evidence, whereby the prosecution has failed to prove the guilt of the accused No.1.
12. The second limb of the argument that has been advanced insofar the status of accused Nos.2 and 3 who are the parents of appellant - accused No.1 and their case was ended in acquittal. But the trial Court has failed to consider the recital in Ex.P2, it revealed that the door of the bed room where it is alleged that the dead body of Lakshmamma was found damaged. But the trial Court had give more importance to the evidence of PW-1 - Chikkanarayanappa, who is the father of the deceased. The evidence of PW-1 revealed that the door of the room 13 was broke opened at about 7.00 to 8.00 a.m. on the following morning and at that time the parents were also present there. The trial Court did not appreciate the evidence of PW-1 and so also PW-13, who is the Investigating Officer. PW-13 in his evidence has revealed that the room where the dead body was found on the cot was broke open. But the trial Court did not consider the evidence of these witnesses, but rendered conviction of judgment against accused No.1 - Narasimhamurthy.
13. MO-5 is the Mangalya thread which was allegedly used by the accused in order to strangulate the neck of the deceased, but the same was sent to PW-8 being the Medical Officer who conducted Autopsy over the dead body of the deceased MO-5 - Mangalya thread was sent to the Medical Officer - PW-8, but no opinion was obtained as to whether the person can be murdered with the help of such a material object. 14
14. PW-3 - Gangaraju in his evidence has revealed that on reaching the scene of offence, he learnt that the deceased committed suicide.
15. PW-4 - Kodanda, who is none other than the son of PW-1 reveals that the room where it is alleged that the dead body of the deceased was found was not the part of the house of the accused.
16. PW-5 - Rathnamma, in her evidence has revealed that by the time they went to the scene of offence, the door of the house was broke opened by the Villagers.
17. The trial Court has failed to see that it is not the case of prosecution or evidence of any prosecution witness that the room where the dead body of the deceased was found was used as bed room by the appellant and the deceased.
18. These are all the evidence which have not been properly appreciated by the trial Court. The entire 15 evidence appreciated by the trial Court is full of surmises and conjectures and without considering the evidence on record. The statements of witnesses has not been appreciated in a proper perspective. On this premise, learned counsel for the appellant submits that the evidence let in by the prosecution has to be re-appreciated.
19. Further, learned counsel for the appellant submits that PW-8 being the Medial Officer who conducted the autopsy over the dead body of the deceased - Lakshmamma @ Lakshmidevi opined that the death was due to the strangulation. In support of his contention, counsel has referred to the Authority of Modi's Medical Jurisprudence and Toxicology relating to the difference between the Hanging and Strangulation. The differences between hanging and strangulation are given below in tabulated form: Hanging Strangulation 1 Mostly suicidal 1 Mostly homicidal 2 Face – Usually pale and Face – Congested, livid and petechiae rare marked with petechiae 16 3 Saliva – Dibbling out of the 3 Saliva – No such dribbling mouth down on the china nd chest 4 Neck-Stretched and elongated in 4 Neck – Not so fresh bodies 5 External signs of asphyxia, 5 External signs of asphyxia, usually not well marked very well marked (minimal if death due to vasovagal and carotid sinus effect) 6 Bleeding from the nose, mouth 6 Bleeding from the nose, mouth and ears very rare. and ears may be found 7 Ligature mark-Oblique, non- 7 Ligature mark – Horizontal or continuous placed high up in transverse continuous, round the neck between the chin and the neck, low down in the neck the larynx, the base of the below the thyroid, the base of groove or furrow being hard, the groove or furrow being soft yellow and parchment like. and reddish. 8 Abrasions and ecchymoses 8 Abrasions and ecchymoses round about the edges of the round about the edges of the ligature mark, rare. ligature mark, common. 9 Subcutaneous tissues under the 9 Subcutaneous tissues under mark – White, hard and the mark – Ecchymosed. glistening. 10 Injury to the muscles of the 10 Injury to the muscles of the neck – Rare neck-Common. 11 Carotid arteries, internal coats 11 Carotid arteries, internal coats ruptured in violent cases of a ordinarily ruptured. long drop. 12 Fracture of the larynx and 12 Fracture of the larynx and trachea – Very rare and that too trachea – Often found also in judicial hanging hyoid bone. 13 Fracture-dislocation of the 13 Fracture –dislocation of the cervical vertebrae – Common in cervical vertebrae-Rare. judicial hanging 14 Scratches, abrasions and 14 Scratches, abrasion fingernail bruises on the face, neck and marks and bruises on the fact, other parts of the body – Usually neck and other parts of the not present. body-Usually present. 15 No evidence of sexual assault. 15 Sometimes evidence of sexual assault. 16 Emphysematous bullae on the 16 Emphysematous bullae on the surface of the lungs-Not present. surface of the lungs-May be present. 17
20. Learned counsel has placed reliance on the judgment of the Hon'ble Supreme Court in the case of NAGENDRA SAH v. THE STATE OF BIHAR - Criminal Appeal No.1903/2019. Paragraph No.16 reads as under:-
"16. As the entire case is based on circumstantial evidence, we may make a useful reference to a leading decision of this Court on the subject. In the case of Sharad Birdhichand Sarda v. State of Maharashtra, in paragraph 153, this Court has laid down five golden principles (Panchsheel) which govern a case based only on circumstantial evidence. Paragraph 153 reads thus:- “153. A close analysis of this decision would show that the following conditions must be fulfilled before a case against an accused can be said to be fully established: (1) the circumstances from which the conclusion of guilt is to be drawn should be fully established. It may be noted here that this Court indicated that the circumstances concerned ‘must or should’ and not ‘may be’ established. There is not only a grammatical but a legal distinction between ‘may be proved’ and “must be or should be proved” as was held by this Court in Shivaji Sahabrao Bobade & Anr.v.State of 18 Maharashtra where the following observations were made: Certainly, it is a primary principle that the accused must be and not merely may be guilty before a court can convict and the mental distance between ‘may be’ and ‘must be’ is long and divides vague conjectures from sure conclusions. (2) The facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty, (3) the circumstances should be of a conclusive nature and tendency, (4) they should exclude every possible hypothesis except the one to be proved, and (5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.” (emphasis added) Paragraphs 158 to 160 of the said decision are also relevant which read thus:
19. “158. It may be necessary here to notice a very forceful argument submitted by the Additional Solicitor-General relying on a decision of this Court in Deonandan Mishra v. State of Bihar, to supplement his argument that if the defence case is false it would constitute an additional link so as to fortify the prosecution case. With due respect to the learned Additional Solicitor- General we are unable to agree with the interpretation given by him of the aforesaid case, the relevant portion of which may be extracted thus: But in a case like this where the various links as started above have been satisfactorily made out and the circumstances point tot he appellant as the probable assailant, with reasonable definiteness and in proximity tot eh deceased as regards time and situation, ... such absence of explanation or false explanation would itself be an additional link which completes the chain.”].
159. It will be seen that this Court while taking into account the absence of explanation or a false explanation did hold that it will amount to be an additional link to complete the chain but these observations must be read in the light of what this Court said earlier, viz., before a false explanation can be used as additional 20 link, the following essential conditions must be satisfied: (1) various links in the chain of evidence led by the prosecution have been satisfactory proved, (2) the said circumstance points to the guilt of the accused with reasonable definiteness, and (3) the circumstances is in proximity to the time and situation.
160. If these conditions are fulfilled only then a court can use a false explanation or a false defence as an additional link to lend an assurance to the court and not otherwise. On the facts and circumstances of the present case, this does not appear to be such a case. This aspect of the matter was examined in Shankarlal case where this Court observed thus: Besides, falsity of defence cannot take the place of proof of facts which the prosecution has to establish in order to succeed. A false plea can at best be considered as an additional circumstance, if other circumstances point unfailingly to the guilt of the accused.
21. In the same decision, Section 106 of the Evidence Act has been discussed in paragraph No.18. Paragraph No.18 reads as under:- 21 18. Now we come to the argument of the prosecution based on Section 106 of the Evidence Act. Section 106 reads thus:- “106. Burden of proving fact especially within knowledge. – When any fact is expecially within the knowledge of any person, the burden of proving that fact is upon him. Illustrations (a) When a person does an act with some intention other than that which the character and circumstances of the act suggest, the burden of proving that intention is upon him. (b) A is charged with travelling on a railway without a ticket. The burden of proving that he had a ticket is on him.
22. Further, Paragraph Nos.20 and 21 reads as under:- 20. Thus, Section 106 of the Evidence Act will apply to those cases where the prosecution has succeeded in establishing the facts from which a reasonable inference can be drawn regarding the existence of certain other facts which are within the special knowledge of the accused. When the accused fails to offer proper explanation about the existence of said other facts, the Court can always draw an appropriate inference.
21. When a case is resting on circumstantial evidence if the accused fails to offer a reasonable explanation in discharge of burden placed on him by 22 virtue of Section 106 of the Evidence Act, such a failure may provide an additional link to the chain of circumstances. In a case governed by circumstantial evidence, if the chain of circumstances which is required to be established by the prosecution is not established, the failure of the accused to discharge the burden under Section 106 of the Evidence Act is not relevant at all. When the chain is not complete, falsity of the defence is no ground to convict the accused.
23. This said decision is squarely applicable to the facts of the present case.
24. Counsel has also placed reliance on the judgment of the Hon'ble Supreme Court in SATISH NIRANKARI v. STATE OF RAJASTHAN - (2017) 8 SCC497 whereby Sections 302 and 309 of IPC has been discussed. The relevant portion of Head Note (A) reads as under:- "A.Penal Code, 1860 - Ss.302 and 309 - Murder trial - Circumstantial evidence - Links in the chain of circumstances - Not established - Attempt to commit suicide by appellant and deceased due to opposition to their love affair by consuming poison, not successful - Deceased found to have committed suicide later by handing herself - Recovered suicide note, proved to be in her handwriting - Conduct of accused on the date of incident, creating dent in 23 prosecution case - Benefit of doubt - Entitlement to - Conviction reversed."
Head Note(B) reads as under:- "B.Criminal Trial - Circumstantial evidence - Generally - Obligation of prosecution in a case which rest on circumstantial evidence, discussed - Murder trial - Case resting on circumstantial evidence - Herein, there are lurking doubts in the story of prosecution and many missing links are there - Hence, conviction of appellant - accused is set aside- Penal Code, 1860, Ss. 302 and 309 Held: Herein, the Supreme Court is dealing with a criminal matter where the appellant - accused is charged with committing murder. Criminal cases cannot be decided on the basis of hypothesis. Another aspect which is to be kept in mind is that it is for the prosecution to prove the guilt of the accused charged for such an offence and that too, beyond reasonable doubt. In a case where there is no eyewitness and, which rests on circumstantial evidence, the prosecution is obligated to prove all those circumstances which leave no manner of doubt to establish the guilt of the accused person i.e., chain of circumstances must be complete and must clearly point to the guilt of the accused. Chain of continuous circumstances means that all the circumstances are linked up with one another and the chain does not get broken in between. Circumstantial evidence of the following character needs to be fully established: (i) Circumstances should be fully proved. (ii) Circumstances should be conclusive in nature. 24 (iii) All the facts established should be consistent only with the hypothesis of guilt. (iv) The circumstances should, to a moral certainty, exclude the possibility of guilt of any person other than the accused. It also needs to be emphasised that what is required is not the quantitative, but qualitative, reliable and probable circumstances to complete the claim connecting the accused with the crime. Suspicion, however grave, cannot take place of legal proof. In the case of circumstantial evidence, the influence of guilt can be justified only when all the incriminating facts and circumstances are found to be not compatible with the innocence of the accused or the guilt of any other person.
25. In the instant case, the entire case revolves around the circumstantial evidence. But links in chain of circumstances are necessary to be established for conviction on basis of circumstantial evidence. The chain of circumstantial evidence against appellant - accused to prove charge is complete and incoherent to sustain conviction on basis thereof. Though evidence produced raises some suspicion towards appellant - accused but prosecution has failed to elevate its case from realm of "may be true" to "must be true" as indispensably required for conviction on criminal charge. Insofar as criminal trial, 25 suspicion, however grave, cannot substitute proof , besides, in case of circumstantial evidence, if two view are possible accused is entitled to benefit of one which favours him, then the appellants acquitted. In this concept, learned counsel has placed on the decision of the Hon'ble Supreme Court in DEVI LAL v. STATE OF RAJASTHAN - (2019)19 SCC447 26. In BASHEERA BEGAM v. MOHAMMED IBRAHIM AND OTHERS - (2020) 11 SCC174 the Hon'ble Supreme Court has addressed the issue with regard to the scope of Section 302/34 and 120-B. The relevant portion of Head Note (A) reads as under:- "A.Penal Code, 1860 - Ss. 302/34 and 120-B - Murder - Criminal conspiracy alleged - Circumstantial evidence - Motive - Recovery of murder weapon - Medical evidence - Chain of circumstances not excluding possibility of accidental death of deceased - Other serious lacunae in prosecution case - Existence of conspiracy not established - Reversal of conviction confirmed."
Head Note(C) reads as under:- 26 "C.Criminal Procedure Code, 1973 - S.378 - Appeal against reversal of conviction - Burden of proving an accused guilty beyond all reasonable doubt lies on the prosecution - If upon analysis of evidence two views are possible, on which points to the guilt of accused and the other which is inconsisten with the guilt of accsued, the latter must be preferred - Reversal of a judgment and order of conviction and acquittal of accused should not ordinarily be interfered with unless such reversal / acquittal is vitiated by perversity."
Head Note(D) reads as under:- "D.Criminal Trial - Circumstantial Evidence - Motive - Enmity - Suspicion however strong cannot substitute proof beyond reasonable doubt - Enmity as a result of property related disputes may give rise to suspicion - However, conviction can never be based on suspicion unless the prosecution clearly proves circumstances conclusively and all circumstances proved should only point to the guilt of accused - Possibility of any conclusion other than the conclusion of guilt of accused would vitiate a conviction.
27. In ANWAR ALI AND ANOTHER v. STATE OF HIMACHAL PRADESH - (2020) 10 SCC166 In this decision in paragraph No.16, SHARAD BIRDHICHAND SARDA v. STATE OF MAHARASHTRA - (1984) 4 SCC116and also BABU v. STATE OF KERALA - (2010) 9 SCC27189, have been referred. It is held in paragraph 16 that while dealing with circumstantial evidence, it has been held that the onus was on the prosecution to prove that the chain is complete and the infirmity or lacuna in prosecution cannot be cured by false defence or plea. The conditions precedent before conviction could be based on circumstantial evidence, must be fully established.
28. In NATHIYA v. STATE REPRESENTED BY INSPECTOR OF POLICE, BAGAYAM POLICE STATION, VELLORE - (2016) 10 SCC298 the Hon'ble Supreme Court has addressed the issue relating to circumstantial evidence. Head Note(A) reads as under:- "A. In a criminal trial - circumstantial evidence - Duty of court while scrutinizing circumstantial evidence - Culpability of accused - How ascertained - Principles summarised - Circumstances established must be of a conclusive nature consistent only with the hypothesis of the guilt of accused.
29. Whereas in the same decision, Section 302/34 - Murder trial - Circumstantial evidence, links in the chain 28 of circumstantial evidence, visibly incomplete and incoherent, to permit conviction of accused - benefit of doubt - entitlement to conviction reversed, has been discussed.
30. In KARTAREY AND OTHERS v.THE STATE OF U.P.-. (1976) 1 SCC172 the Hon'ble Supreme Court has held that "Criminal trial - Wounds and weapons - Injuries found on the deceased whether caused only by the weapon found or also by other weapons of similar kind - Medical witness not examined on this point by the Court - Weapon also not measured - Classification of wounds according to size supporting use of more than one weapon - Evidence Act, 1872, Section 45 - Medical witness - Medical Jurisprudence.
31. In the instant case MO-5 - Mangalya thread used by the accused to strangulate the neck of the deceased - Lakshmamma @ Lakshmidevi, as a result of which, she had sustained some injuries around her neck. 29
32. On all these grounds, learned counsel for the appellant is seeking to consider the grounds urged in this appeal to set aside the order of sentence rendered against accused No.1- Narasimhamurthy for the offence punishable under Section 302 of IPC and consequently, acquit appellant - accused No.1 for the charges levelled against him.
33. Learned HCGP for respondent – State namely Smt.Rashmi Jadhav has taken us through the evidence of PW.1 – Chikkanarayanappa who is the author of complaint at Ex.P1 and who is no other than the father of deceased Lakshmamma and whereby her marriage was performed with accused – Narasimhamurthy as per the customs prevailed in their society and during her marriage that her parents had provided dowry in terms of cash and so also in terms of gold jewellaries. Accordingly, her marriage was performed with him. Subsequent to her marriage when she was residing in the house of her husband she was 30 blessed with a female child aged about 1 ½ years namely Siri. But the allegations made against this accused that he had insisted her to bring additional dowry from her parents in terms of cash and so also that co-accused 2 and 3 assisted accused No.1 as a result of the physical as well as mental harassment meted out by the deceased from the hands of her husband, last her breath within a span of 7 years from the date of marriage. The same is seen in the evidence of PW.1 who is the author of the complaint at Ex.P1 and so also, the evidence of PW.4 – Kodanda and similarly, the evidence of PW.5 – Rathnamma. Their evidence finds corroborated with the evidence of PW.13 – Sanna Thimmappa who is the investigating officer and whereby he has laid the charge sheet against the accused. But PW.4 – Kodanda who had given evidence and also given statement before the police and he had gone to the spot on the next day of the incident at around 10.30 a.m. But PW.7 – Chennakeshava who has also given evidence that the police came to the scene of crime on the next day 31 of the incident in between 10 to 10.30 a.m. Under these circumstances, there is no delay on the part of the prosecution relating to the investigation taken up and also recording the statement of witnesses who present at the scene of crime. Therefore, it is even difficult to accept the defense version of the accused that they themselves with the help of villagers broke open the door even though it was causing some damages. Nowhere it is stated that he was not with deceased Lakshmamma. It is the domain vested with the accused and he has to explain under what circumstances the deceased committed suicide. It is the definite case of the prosecution that accused No.1 has caused the death of deceased – Lakshmamma with means of M.O.5 – Mangalya thread alleged to have been used by accused No.1 to strangulate her neck. Insofar as the direct acknowledgement against the accused and whereby the prosecution has bank upon the evidence of PW.1 who is the author of the complaint as per ex.P1 and so also, the fulcrum in the inquest mahazar at Ex.P15 which was 32 conducted by the investigating officer in the presence of PW.2 – Varadaraju and M.V.Venkataswamy and A.V.Manjunath and Padmamma and whereby it is conducted by the Taluka executive Magistrate at Shidlaghatta. The identification of cause of death has been given by the witnesses and the same finds corroborated with the evidence of PW.8 – Dr.Sudhakar who conducted post mortem over the dead body of deceased and issued report as per Ex.P17. Therefore, there is no doubt about the death of deceased took place in the house of accused No.1 – Narasimhamurthy as per the documents at Ex.P16 i.e., the map of scene of crime issued by the Engineer which is marked with consent that the dead body of Lakshmamma was found on the cot in the bedroom of accused No.1 and whereby the dead body was found on the cot even in the scene of crime and from this circumstance alone it can be inferred that accused No.1 – Narasimhamurthy who is none other than the husband of deceased he had caused the death of deceased. But it is 33 the domain vested with him to explain how the death took place because deceased – Lakshmamma, both were present in the said scene of crime. No doubt the death occurred within a span of 7 years from the date of her marriage with accused No.1 – Narasimhamurthy but the death of deceased is unnatural. There was harassment meted bout by her from the hands of her husband – Narasimhamurthy and whereby he demanded her to bring additional dowry from her parent’s house. It is the case of the prosecution that this accused with the help of accused Nos.2 and 3 causing for the death of deceased and more so, the evidence of PW.1 in respect of Ex.P1- complaint is in conformity with the evidence of PW.5 – Rathnamma who has given evidence on the part of the prosecution inclusive of evidence of PWs.3 and 4 and so also, PW.7 – Chennakeshava and even their evidence has been closely scrutinizes then a prudent man can infer that accused No.1 – Narasimhamurthy has caused the death of deceased whereby she meted out physical as well as 34 mental harassment from the hands of her husband. The same has been appreciated by the trial Court and rightly come to the conclusion that the prosecution has proved the guilt of accused – Narasimhamurthy resultant of physical as well as mental harassment she last her breath within a span of 7 years from the date of marriage. But the trial court had convicted the accused – Narasimhamurthy for the offence under Section 302 of IPC and not found guilty of the offence under Sections 3 and 4 of D.P.Act and so also, 498-A and 304-B of IPC. However, the trial Court has rightly come to the conclusion by appreciating the aforesaid evidence of the witness on the part of the prosecution. Therefore, in this appeal it does not call for interference of the impugned judgment and more so, there are no warranting circumstances that has arised to revisit the impugned judgment of conviction and order of sentence rendered by the trial Court in S.C.No.22/2015. 35
34. It is in this background of the contention made by learned counsel for the appellant and so also, learned HCGP for State, but on close scrutiny of the evidence of PWs.4 and 5, their evidence has not been corroborated with the evidence of PW.1 – Chikkanarayanappa who is no other than the father of deceased – Lakshmamma. PW.1 is the author of complaint at Ex.P1 and based upon his complaint, criminal law set into motion by recording FIR as per Ex.P18. Keeping in view Section 154 of Cr.P.C. when the information is secured by the police agency having jurisdiction to register the crime and to proceed with the case for investigation by following the relevant provision of Section 173(2) of Cr.P.C. for laying of charge sheet and whereby accused are required to facing of trial. In the instant case, the criminal law was set into motion by recording FIR as per Ex.P18 and it is based upon the complaint – Ex.P1, subsequently the spot mahazar at Ex.P2 has been conducted by investigating officer in the presence of panch witnesses and so also, drew the inquest 36 over the dead body of Lakshmamma as per Ex.P15 by the responsible Taluka Executive Magistrate. Similarly, the seizure mahazar was also conducted by the investigating officer in the presence of panch witnesses as per Ex.P14. PW.15 – D.N.Babaiah was subjected to examination but the contradictory portion of his statement is got marked at Ex.P24. M.O.5 is the mangalya thread which was used by the accused to cause death of Lakshmamma by strangulating and also causing some infliction of injuries on the front part of her neck in terms of U shape. But M.O.5 was not sent to Doctor who issued PM report as per Ex.P17 and whereby issued the opinion relating to the cause of her death is due to Asphyxia as a result of throttling. But evidence of PW.8 – Dr.Sudhakar is contrary to the evidence of PW.1 – Chikkanarayanappa who is the author of the complaint and so also given evidence relating to death of his daughter – Lakshmamma. 37
35. Subsequent to marriage of deceased with accused No.1 – Narasimhamurthy she was blessed with daughter aged about 1 ½ years namely Siri. But for some incompatibility in the family affairs in between the accused and deceased – Lakshmamma that accused No.1 with the assistance of accused Nos.2 and 3 alleged to have extended physical as well as mental harassment to her. But the case against accused Nos. 2 and 3 ended in acquittal and more so, they are the parents of accused No.1 as well as in-laws of deceased. No doubt the death occurred within a span of 7 years from the date of the marriage which was performed as per the customs prevailed in their family. Whereas the harassment was meted out by the deceased at the hands of her husband in order to bring additional dowry from her parents house. But the witness have nowhere stated specifically relating to the demanding of bringing additional dowry from her parents house. In the absence of ingredients relating to physical as well mental harassment which lead to death within span of 7 years 38 from the date of her marriage or even there was also motive factor resultant to commitment of murder of deceased. Keeping in view the absence of the ingredients relating to Sections 498A, 304-B and 302 of IPC, 1860 and so also, offence under Sections 3 and 4 of the D.P.Act insofar as the in-laws of the deceased was arraigned as accused Nos.2 and 3 and their case ended in acquittal, but the case against accused No.1 – Narasimha murthy ended in conviction and the same has been challenged under this appeal by urging various grounds.
36. Whereas in the impugned judgment of conviction the trial Court has made an observation that whether the prosecution proves that all the accused in furtherance of their common intention caused physical and mental harassment in order to bring dowry amount and thereby committed murder of deceased – Lakshmamma. But the charges against accused No.3 who is the mother of accused No.1 is that she caught hold the legs of deceased, 39 but there is no iota of evidence placed by the prosecution and there are no eye witnesses that accused No.3 caught hold legs of deceased and as a result accused No.1 committed murder of deceased – Lakshmamma. When this observation has been made and when the case against accused No.3 has resulted in acquittal, the same benefit of doubt has to be extended to accused No.1 also. The Doctrine of criminal justice system is that when once the clouds of doubt arise in the mind of Court, the benefit of such doubt has to be extended to the accused and even co- accused also. But in the instant case, deceased – Lakshmamma was blessed with daughter aged 1½ years namely Siri which indicates that there was some compatibility in between accused No.1 and the deceased in the family affairs.
37. Whereas in the instant case, the conviction held against this accused is for the offence under Section 302 of IPC, 1860. Therefore, it is deemed to refer the concept of 40 motive. Motive is a thing which is primarily known to the accused himself and it may not be possible for the prosecution to explain what actually prompted or excited him to commit a particular crime. This was extensively addressed by the Hon’ble Supreme Court in the case of Bipin Kumar Mondal vs. State of West Bengal (AIR2010SC368.
38. Insofar as motive in circumstantial evidence. In a case of circumstantial evidence the evidence indicating the guilt of the accused become untrustworthy and unreliable, because most often it is only the perpetrator of the crime alone, who has knowledge of the circumstances that prompted him to adopt a certain course of action, leading to the commission of the crime. Therefore, the evidence on record suggest sufficient/necessary motive to commit a crime, it may be conceived that the accused has committed the same. The same has addressed by the 41 Hon’ble Supreme Court in the case of Munish Mubar v. State of Haryana (AIR2013SC912.
39. Insofar as offence under Section 304-B of IPC the essential ingredients to attract the provisions of Section 304-B of IPC the main ingredient of the offence to be established is (a) that soon before the death the deceased she was subjected to cruelty and harassment in connection with the demand of dowry, (b) the death of deceased woman was caused by any burn or bodily injury or some other circumstance which was not normal, (c) such death occurs within seven years from the date of her marriage, (d) that the victim was subjected to cruelty or harassment by her husband or any relative of her husband, (e) such cruelty or harassment should be for or in connection with demand of dowry, and (f) it should be established that such cruelty and harassment was made soon before her death. The said issues has been 42 extensively by the Hon’ble Supreme Court in Kashmir Kaur v. State of Punjab (AIR2013SC1039.
40. Insofar as expression soon before her death: meaning of (i) ‘soon before her death’ means interval between cruelty and death should not be much. There must be existence of a proximate and live links between the effect of cruelty based on dowry demand and the concerned death. If the alleged incident of cruelty is remote in time and has become state enough not to disturb the mental equilibrium of the woman concerned, it would be of no consequence. The said issues has been addressed in the case of Mustafa Shahdal Shaikh v. State of Maharashtra (AIR2013SC851.
41. The expression ‘soon before her death’ used in the substantive Section 304B of IPC and Section 113B of the Evidence Act is present with the idea of proximity text. No definite period has been indicated and the expression ‘soon before her death’ is not defined. The determination 43 of the period which can come within the term ‘soon before’ is left to be determined by the courts, depending upon facts and circumstances of each case. Suffice, however, to indicate that the expression ‘soon before would normally imply that the interval should not be much between the concerned cruelty or harassment and the death in question. There must be existence of a proximate and live- link between the effect of cruelty based on dowry demand and the concerned death. If alleged incident of cruelty is remote in time and has become stale enough not to disturb mental equilibrium of the woman corned, it would of no consequence. It was reported in Kaliyaperumal v.State of Tamil Nadu (AIR2003SC3828.
42. Insofar as presumption and its applicability (i) the presumption shall be raised only on proof of the following essentials : (1) the question before the court must be whether the accused has committed the dowry death of a women (2) The woman was subjected to cruelty or 44 harassment by her husband or his relatives. (3) Such cruelty or harassment was for, or in connection with, any demand for dowry (4) such cruelty or harassment was soon before her death.
43. In the instant case the trial Court while rendering the impugned judgment acquitted accused Nos.1 to 3 for the offence under Sections 3 and 4 of DP Act and acquitted accused Nos.2 and 3 for the offence under Sections 304(B), 498(A) of IPC and so also, acquitted for the offences under Section 302 of IPC. But convicted accused No.1 for the offence under Section 302 of IPC. He committed the murder of the deceased and mere because there was an injury found on her neck but PW.8 who conducted autopsy over the dead body of the deceased and issued PM report as per Ex.P17. But in the dowry death cases in most of such offences direct evidence is hardly available and such cases are usually proved by circumstantial evidence. This section as well as section 45 113B of the Evidence Act enact a rule of presumption i.e., if death occurs within seven years of marriage in suspicious circumstances. This may be caused by burns or any other bodily injuries. Thus, it is obligatory on the part of the prosecution to show that death occurred within seven years of marriage. If the prosecution would fail to establish that death did not occur within seven years of marriage, this section will not apply.
44. It is relevant to refer the judgment of the Hon’ble Supreme Court reported in Rampal Singh v. State of Uttar Pradesh (2012) 8 SCC289wherein the distinction has been made between culpable homicide and murder. Culpable homicide is the genus and murder is its species and all murders are culpable homicides but all culpable homicides are not murders. Whereas in the instant case accused – Narasimhamurthy was convicted for the offence under Section 302 of IPC relating to dowry death. The co- accused Nos.2 and 3 who were also facing of trial along 46 with accused No.1 but their case ended in acquittal. Therefore, it is deemed appropriate to state that insofar as concept of benefit of doubt, the said issue was addressed in the case of Chandu Bhai Shanabai Parmar vs. State of Gujarat (AIR1982SC1022 wherein it is held that when ocular evidence in murder case is unreliable, benefit of doubt to be given to all accused. In respect of acquittal of co-accused, whether acquittal of co-accused can form basis for acquittal of appellant. Acquittal of co-accused no ground to discard otherwise reliable evidence pointing towards complicity of appellant. The same has been addressed in the case of Pappi @ Mehboob v. State of Rajasthan (LNIND2019SC2150. In the instant case accused – Narasimha Murthy who is no other than the husband of deceased and the marriage was performed as per the customs prevailed in their society but within a span of 7 years from the date of marriage she last her breath but for the death of Lakshamma, her father PW.1 who had initiated criminal prosecution against the accused 47 by filing complaint at Ex.P1. But the evidence of PW.1 compared with the evidence of PW.8 – Doctor who conducted autopsy over the dead body and inclusive of evidence of PWs.4 and 5 with the evidence of PW.13 – Sanna Thimmappa who is the investigating officer but the trial Court rendering conviction judgment against this accused – Narasimhamurthy for the offence under Section 302 of IPC. But held that the prosecution has failed to prove the guilt against this accused as well as co-accused Nos.2 and 3 relating to the ingredients of Sections 3 and 4 of the D.P.Act and so also, the offences under Sections 498A and 304B r/w 34 of IPC. But found guilty against the accused – Narasimhamurthy for the offence under Section 302 of IPC. Similarly not found guilty against this accused in respect of Sections 3 and 4 of the DP Act and inclusive of Sections 498A and 304B of IPC. At a cursory glance of all these witnesses on the part of the prosecution there shall be same clouds of doubt it would arise in the mind of the Court. But when clouds of doubt arise, in a 48 criminal justice delivery system, the benefit of doubt should always be in favour of the accused and even if two views are possible to arrival of conclusion, but the view in favour of the accused by extending the benefit of doubt it is always in favour of the accused alone. Therefore, in this appeal we are of the opinion that the prosecution has failed to establish the guilt against accused – Narasimhamurthy by facilitating worthwhile evidence to secure the conviction for the offence under Section 302 of IPC. In a criminal trial insofar as murder trial it requires to be established the guilt of the accused by facilitating positive, corroborative, cogent and consistent evidence to probabalise that the accused had caused for the death of deceased in terms of murder. But in the instant case, no ingredients relating to Section 302 of IPC has been established by the prosecution by facilitating worthwhile evidence and there is no other view to say that accused No.1 – Narasimhamurthy is deserving for acquittal for the 49 offence under Section 302 of IPC. In view of the aforesaid reasons and findings we proceed to pass the following:
ORDERThe appeal preferred by appellant / accused No.1 under Section 374(2) of Cr.P.C. is hereby allowed. Consequently, the judgment of conviction dated 11.07.2017 and order of sentence dated 13.07.2017 rendered by the trial Court in S.C.No.22/2015 is hereby set-aside. The appellant / accused No.1 is acquitted for the offence punishable under Section 302 of IPC, 1860. The amount if any, deposited by the appellant / accused No.1 shall be returned to him, on due identification. The accused is in incarceration soon after held conviction by the trial court and even after apprehending the accused. Therefore, Registry of this Court is directed to forward copy of the operative portion of the judgment to 50 the Superintendent of jail authority, Central Prison, Parappana Agrahara, Bengaluru City where the accused is housed with a direction to set him at liberty forthwith, if he is not required in any other case. Ordered accordingly. Sd/- JUDGE Sd/- JUDGE VMB/DKB