Sri.pandu S/o Vittal Mallur Vs. The State Of Karnataka - Court Judgment

Excerpt:
1 ® in the high court of karnataka dharwad bench dated this the1t day of october2020present the hon’ble mr. justice b.m. shyam prasad and the hon’ble mrs. justice m.g.uma criminal appeal no.100153/2018 c/w criminal appeal.no.872/2018 in criminal appeal no.100153/2018: between: sri.pandu s/o vittal mallur, age:34 years, occ. agriculture, r/o mugalkhod, dist. bagalkot. ... appellant (by sri. srinand a. pachhapure, adv.) and: the state of karnataka through mudhol police station now represented by state public prosecutor high court of karnataka dharwad bench at dharwad. ... respondent (by sri.v.m.banakar, addl. spp) this criminal appeal is filed under section3742) of cr.p.c., praying to call for the records in2sessions case no.95/2015 and set aside the judgment of conviction and order of.....

Judgment:

1 ® IN THE HIGH COURT OF KARNATAKA DHARWAD BENCH DATED THIS THE1T DAY OF OCTOBER2020PRESENT THE HON’BLE MR. JUSTICE B.M. SHYAM PRASAD AND THE HON’BLE MRS. JUSTICE M.G.UMA CRIMINAL APPEAL NO.100153/2018 C/W CRIMINAL APPEAL.NO.872/2018 IN CRIMINAL APPEAL NO.100153/2018: BETWEEN: SRI.PANDU S/O VITTAL MALLUR, AGE:34 YEARS, OCC. AGRICULTURE, R/O MUGALKHOD, DIST. BAGALKOT. ... APPELLANT (BY SRI. SRINAND A. PACHHAPURE, ADV.) AND: THE STATE OF KARNATAKA THROUGH MUDHOL POLICE STATION NOW REPRESENTED BY STATE PUBLIC PROSECUTOR HIGH COURT OF KARNATAKA DHARWAD BENCH AT DHARWAD. ... RESPONDENT (BY SRI.V.M.BANAKAR, ADDL. SPP) THIS CRIMINAL APPEAL IS FILED UNDER SECTION3742) OF CR.P.C., PRAYING TO CALL FOR THE RECORDS IN2SESSIONS CASE NO.95/2015 AND SET ASIDE THE

JUDGMENT

OF CONVICTION AND

ORDER

OF SENTENCE DATED2704.2018 PASSED BY THE I ADDL. DISTRICT & SESSIONS, BAGALKOT SITTING AT JAMAKHANDI IN SESSIONS CASE No.95/2015 FOR THE OFFENCE PUNISHABLE U/SEC.498-A & 302 R/W SEC.34 OF IPC AND ACQUIT THE APPELLANT/ACCUSED NO.1. IN CRIMINAL APPEAL.NO.872/2018: BETWEEN: SRI RAMESH S/O VITTAL MULLUR, AGE:

28. YEARS, OCC: AGRICULTURE, R/O: MUGALKHOD, DIST: BAGALKOT. ... APPELLANT (BY SRI. SRINAND A.PACHHAPURE, ADV.) AND: THE STATE OF KARNATAKA THROUGH MUDHOL POLICE STATI THROUGH MUDHOL POLICE STATION, NOW REP. BY CPI, HIGH COURT OF KARNATAKA DHARWAD, BENCH AT DHARWAD. ... RESPONDENT (BY SRI.V.M.BANAKAR, ADDL. SPP) THIS CRIMINAL APPEAL IS FILED UNDER SECTION3742) OF CR.P.C., PRAYING TO SET ASIDE THE

JUDGMENT

OF CONVICTION AND

ORDER

OF SENTENCE DATED2704.2018 PASSED BY THE I ADDL. DISTRICT & SESSIONS, BAGALKOT SITTING AT JAMAKHANDI IN SESSIONS CASE No.95/2015 CONVICTING THE ACCUSED No.2 FOR THE OFFENCE PUNISHABLE U/SEC.498-A OF IPC. 3 THESE CRIMINAL APPEALS HAVING BEEN HEARD AND RESERVED FOR

JUDGMENT

ON2509.2020, COMING ON FOR PRONOUNCEMENT ON THIS DAY, M.G.UMA, J., DELIVERED THE FOLLOWING:

JUDGMENT

The accused in S.C.No.95/2015 on the file of the learned I Additional District and Sessions Judge, Bagalkot, sitting at Jamakhandi, (‘the trial Court’ for short) are the appellants in these appeals.

2. The accused No.1 is the appellant in Crl. A. No.100153/2018 and the accused No.2 is the appellant in Crl.A.No.872/2018. The accused have challenged the judgment dated 27.04.2018 passed by the trial Court convicting them for the offence punishable under Section 498A and the accused No.1 for the offence punishable under Section 302 of Indian Penal Code ( ‘the IPC’ for short) and sentencing them to undergo imprisonment and to pay fine, with default sentence.

3. The parties are referred as per their original rank before the trial court for the sake of clarity. 4

4. Heard Sri. Srinand A.Pachhapure, learned Counsel and Sri.V.M.Banakar, learned Additional SPP for the parties.

5. Brief facts of the prosecution case are that Sumithra (referred as 'the deceased' for short) was the wife of accused No.1. Accused No.2 is the brother of accused No.1. They were suspecting the deceased’s fidelity and insisted that she should not go out of the house. They even prevented her from going to coolie work and mingling with other persons. They were assaulting the deceased with common intention and thereby treated her with cruelty. With the intention of causing her death, they tried to commit murder by tying a plastic wire around her neck on 22/06/2015 at 10:00 pm in the land of Basappa Mandgani Hulyal bearing Survey No.43 situated at Mugalkhod village and discarded the dead body in the land of Gatageppa Shivapura bearing Survey No.41 of the same village.

6. The deceased’s brother - PW1 lodged the first information against six persons as per Ex.P1 and set the criminal law into motion. The investigating officer, after 5 completing the investigation filed charge sheet only against these two accused for the above said offences. On the matter being committed by the committal court, the trial Court secured the presence of the accused 1 and 2; they denied the charges and claimed to be tried.

7. The prosecution therefore examined 20 witnesses to prove its case and got marked 40 documents and three materials objects. The accused denied all the incriminating circumstances in their statements recorded under Section 313 of Cr.P.C., but not chosen to lead any evidence in support of their defence.

8. The trial Court after taking into consideration all the material on record has come to the conclusion that the prosecution is successful in proving the guilt of the accused 1 and 2 for the offence punishable under Sections 498A r/w 34 of IPC and that of accused No.1 for the offence punishable under Section 302 of IPC. However it has acquitted accused No.2 of the offence punishable under Section 302 of IPC. 6

9. The accused 1 and 2 are sentenced to undergo imprisonment for a period of 3 years for the offence punishable under Section 498A r/w 34 of IPC and to pay fine of Rs.50,000/- each and in default to undergo imprisonment for a period of one year. Accused No.1 is sentenced to undergo imprisonment for life for the offence punishable under Section 302 of IPC and pay fine of Rs.1,00,000/- by the impugned judgment.

10. Aggrieved by the same accused 1 and 2 have preferred the above appeals on various grounds. However the State has not preferred any appeal against acquittal of accused No.2 for the offence punishable under Section 302 of IPC.

11. The learned counsel for the appellants submits that there are no eye-witnesses to the incident. The prosecution is relying on circumstantial evidence to prove its case. Motive is one of the circumstances relied on by the prosecution. 7

12. Charge No.2 is framed alleging specific overt acts by these accused giving an impression that there are eye- witnesses to the crime. But, the prosecution has not proved either the overt acts as alleged or the motive. Thus there is absolutely no link to connect the accused to the offence.

13. The learned counsel also argues that since the dead body was found in the open field and away from the house of accused No.1, it could be accessed by any outsider, as such, no burden could have been placed on the accused No.1 under Section 106 of the Indian Evidence Act to explain the cause of death.

14. The learned counsel further submits that according to the prosecution the deceased had gone out at about 9.00 pm., on 22/6/2015, but did not return till 6.00 am on the next day i.e. 23/6/2015. When accused No.1 went in search of her, , he found the body in the open place. He informed PW1 and other family members about the same. Therefore, it cannot be said that accused No.1 had played any role in causing death. Nor could he be expected to explain special circumstances and from the evidence on record 8 there is nothing to connect even the accused No.1 to the offence.

15. The learned counsel urges that only bald allegations are made against accused 1 and 2 that they were suspecting the deceased’s fidelity and ill-treated her saying that she should not go out of the house etc., without adducing convincing evidence in that behalf; mere allegation cannot take the place of proof. Unless the prosecution proves willful conduct on the part of the accused 1 and 2 as is likely to drive the deceased to commit suicide or to cause herself grave injury etc., there cannot be any conviction for the offence U/s 498A of IPC.

16. The learned counsel lastly argues that when the prosecution relies on circumstantial evidence to prove the guilt of the accused, it is the well settled proposition of law that the prosecution must prove all such circumstances as would be necessary to form a complete chain which unmistakably should point to the accused’s guilt. The prosecution has not proved any of the circumstances relied on 9 by it and therefore, both the accused are entitled for the benefit of doubt and for an acquittal.

17. The learned Addl. SPP supporting the impugned judgment of conviction and order of sentence submits that even though there are no eye-witnesses to the incident, the prosecution is successful in proving the fact that the deceased has died a homicidal death. Further, almost all the material witnesses examined by the prosecution categorically state that the accused No.1 and the deceased were residing together in the house situated near the scene of occurrence. The accused No.1 in these circumstances should have had the special knowledge as to why the deceased had gone out late in the evening and why she did not return to the house till 6.00 am. on the next day. The accused No.1 being the husband of the deceased, could not have pleaded ignorance about these details. Nor could he have denied the knowledge of the facts surrounding the circumstances of the death of the deceased. No prudent husband would keep quite till the next day morning, if the wife were to go out and not return the entire night. 10

18. The learned Addl. SPP submits that the trial Court has rightly placed the burden on accused No.1 to explain why the deceased had gone out during night hours and did not return home, and what he did to ascertain as to why the deceased did not return home through the night. The accused’s conduct in not explaining his strange behaviour, supplies an additional link to prove his guilt.

19. The learned Additional SPP further submits that the prosecution has placed materials to prove that the accused 1 and 2 were treating the deceased with cruelty suspecting her fidelity, which is the main reason for them to cause her death. He alternatively contends that even if this Court were to hold that the materials placed on record are not sufficient to attract Section 498A of IPC, the motive for the accused to commit the offence under Section 302 of IPC cannot be rejected. The overall circumstances surrounding the death of the deceased, which is proved to be homicidal death, unmistakably point to the accused No.1, as the author of the crime. He has no explanation whatsoever even in this regard in the statement recorded under Section 313 of Cr.P.C. Under such circumstances, the trial Court was right in 11 convicting him for the offence punishable under Section 302 of IPC.

20. The learned Addl. SPP argues that the evidence of PWs.1, 6, 7, 8 and 17 prove that the accused Nos.1 and 2 are guilty of the offence punishable under Section 498A of IPC and therefore, the trial Court is right in convicting both the accused for the said offence. The learned Addl. SPP thus puts forth that the impugned judgment of conviction and order of sentence passed by the trial Court does not suffer from any illegality or perversity and accordingly, he prays for dismissal of both the appeals as devoid of merits.

21. In the light of the above, if the evidence on record is re-appreciated, the deceased’s brother (PW1) while filing the first information as per Ex.P1 has stated that accused No.1 and his family members were suspecting the deceased’s character and they were ill treating her; and the deceased had informed this to him over phone. That a month before the incident, accused No.2 along with his mother and brother - Shivananda, visited their house complaining that the deceased is in illicit relationship with her brother-in-law - 12 Paramananda and also showed a photograph of the deceased with the said Paramananda. When he enquired the deceased about the same, she denied the same and said that the photograph shown must be morphed.

22. This witness has further stated that about a month thereafter, i.e. on 23/6/2015, accused No.1 called him on phone at about 8.00am, and informed that the deceased, who had gone out to answer the nature call at 9.00pm on the previous day i.e. on 22/6/2015, did not return home and she was found dead in the morning, in the land belonging to Shivapura.

23. The deceased’s father - PW6, her elder sister - PW7 and the deceased’s the cousin- PW8 have also spoken about the fact that the accused used to pick up quarrel with the deceased and assault suspecting her fidelity. All these witnesses have deposed that the deceased was assaulted and ill-treated by her husband-accused No.1, the in-laws and other family members. It is pertinent to note here that the parents of accused No.1 are not arrayed as accused and 13 there are general allegations against other family members. Further no specific allegations are made against accused No.2.

24. If the cross examination of these witnesses on cruelty meted out to the deceased is considered, they have stated that the accused would assault the deceased and treat her cruelly and the deceased informed them about the same, they have said that there was a panchayat wherein the accused No.1 was advised to mend his behaviour and to look after his wife properly. Even though the prosecution has examined PWs.12 to 16 to speak about the accused’s conduct in treating the deceased with cruelty, none of them have spoken about the facts that are necessary to establish the necessary ingredients of the offence. The Prosecution has also not examined any elderly persons who acted as panchyathdars and advised accused No.1 and 2.

25. Except the above evidence regarding cruelty meted out to the deceased by accused 1 and 2, the prosecution has not placed any material on record nor examined any witness to establish the acts that amount to cruelty as defined in the explanation appended to Section 14 498A of IPC. It is not even the case of the prosecution that accused No.1 and 2 drove the deceased to commit suicide or cause grave injury or danger to her own limb or life. Therefore, we are of the opinion that the prosecution is not successful in proving the guilt of accused 1 and 2 for the offence punishable under Section 498A of IPC.

26. The prosecution contends that the deceased’s death is homicidal. In proof of this it relies on the inquest mahazar Ex.P2, photographs–Exs.P3 to P9, post mortem report Ex.P18 along with the evidence of PWs.1, 2, 6, 7, 8 and 10. As per the inquest mahazar-Ex.P2, the dead body was found in the sugar cane field owned by Gatageppa Shivapura of Mugalkod village. Bleeding injuries were present in her eyes, ear and cheek; and bleeding was present in the mouth. There was ligature mark on the neck and a plastic wire tied around her neck, There were abrasions over her hands, her back and on both her legs. The ornaments worn by the deceased were intact on the body and no other injuries were found on any part of her body, including her private parts. These circumstances rule out the possibility of murder for gain or sexual assault. 15

27. PW.2, a witness to the inquest mahazar, has spoken about the condition of the body and the various injuries found on it. In the cross examination the condition of the body as spoken by him is not denied.

28. Ex.P18 is the postmortem report which goes to show that at the time of post mortem examination conducted on 23/6/2015 between 4.45pm to 7.25pm,the following external injuries were found on the dead body:- i) CLW over the right cheek infront of right ear about 1” X ½” ii) Contusion over the right cheek about 4”X3” iii) Contusion over the left cheek about 4”X3½” iv) Contusion over both the eyes and v) CLW on the back about 2”X1”, The above injuries are in addition to the thin and superficial ligature mark found across the front of the neck and directed on both sides.

29. The doctor who conducted post mortem examination is examined by the prosecution as PW10. He has reiterated the contents of the post mortem report, i.e. 16 regarding five external injuries with a thin superficial ligature mark on both sides of the neck, hyoid bone being intact, blood oozing from mouth and ears. In his opinion, the ligature mark found on the deceased's neck could be caused by the plastic wire - M.O.1. The cause of death is due to asphyxia secondary to hanging and time since death is about 12 to 18 hours, i.e between 10.45 pm on 22/6/2015 and 4.45 am on 23/6/2015.

30. In the cross examination it is elicited from Pw10 that the opinion regarding MO.1 was not obtained by the investigating officer. The doctor has denied the suggestion that the external injuries Nos.1 and 5 could be caused by sharp edged weapons. It is pertinent to note that the learned counsel suggested to the doctor that the external injury Nos.2 to 4 could be caused by assault with stone and club and the same has been admitted by the witness.

31. Apart from PW10, the first informant - PW1, the inquest pancha- PW2, the deceased’s father - PW6, the deceased’s elder sister - PW7 and a relative of the deceased - PW8 have all spoken about the deceased’s homicidal death. 17 But nothing has been elicited from any of these witnesses to discredit the same. Several external injuries found on her body as suggested by the accused and admitted by the doctor, could be caused due to assault by stone and clubs. The ligature mark with a very thin plastic wire around the neck is suggestive of throttling with the hyoid bone intact. Even according to the learned counsel for the accused the deceased died a homicidal death.

32. In the instant case, admittedly the prosecution is relying on the circumstantial evidence as there are no eye witnesses to speak about the crime. It is well settled that when the prosecution relies on the circumstantial evidence to prove the guilt of the accused, such circumstances should be conclusive and it should be consistent only with the hypothesis of guilt of the accused and inconsistent with his innocence and such circumstances should exclude the possibility of guilt of a person other than the accused. This position is reiterated by the Hon’ble Apex Court in State of U.P. Vs. Dr. Ravindra Prakash Mittal1 where in paragraph 20 it is held as under:- 1 AIR1992SC204518 “20. As pointed out supra, there is no direct evidence to connect the respondent with this offence of murder and the prosecution entirely rests its case only on circumstantial evidence. There is a series of decisions of this Court so eloquently and ardently propounding the cardinal principle to be followed in cases in which the evidence is purely of circumstantial nature. We think, it is not necessary to recapitulate all those decisions except stating that the essential ingredients to prove guilt of an accused person by circumstantial evidence are: (1) The circumstances from which the conclusion is drawn should be fully proved; (2) the circumstances should be conclusive in nature. (3) all the facts so established should be consistent only with the hypothesis of guilt and inconsistent with innocence; (4) the circumstances should, to a moral certainty, exclude the possibility of guilt of any person other than the accused.” Therefore, if in the circumstances of a case it could be concluded that the guilt of the accused is proved beyond reasonable doubt and if the evidence is incompatible with the plea of the accused No.1 that he is innocent, then the 19 accused No.1 can be held guilty of the offence charged against him.

33. In a case where the prosecution relies on circumstantial evidence to prove its contention, motive would be one of the links in the chain of circumstances to establish the guilt of the accused. It may not be possible for the prosecution in all cases to place on record substantive evidence to establish the motive to commit the crime as it constitutes a mental element i.e., the reason for doing something. Therefore, motive for the crime, in a given case will have to be gathered from the surrounding circumstances prevailing just before and after the commission of the offence.

34. Further, even if the prosecution is not able to prove the motive for the crime, if the other circumstances relied on by the prosecution are sufficient to prove beyond reasonable doubt that the accused has committed the offence, and if such circumstances points towards the accused and none else, then it can definitely be held that the prosecution is successful in proving the guilt of the accused for the said offence beyond reasonable doubt. 20

35. Now coming to the motive for the accused No.1 to commit the offence under Section 302 of IPC, the allegation is that accused No.1 and his family members were suspecting the deceased’s fidelity. PWs.1, 6, 7, 8, 9 and 17 have deposed to that effect and stated that accused No.1 was showing photos of the deceased with her brother-in-law - Paramanand. They have also stated that there were frequent quarrels between the deceased and accused No.1 in this regard. During cross examination PW7 has stated that the deceased’s photo with another man was shown by accused No.1 and nothing more is extracted during his further cross examination on this fact. Nor is the same denied or disputed. In the cross examination of PW8 it is elicited that PW6 informed him about the same.

36. If the entire evidence led by the prosecution is taken into consideration, it reveals that accused No.1 has not seriously disputed that he suspected the deceased’s fidelity. At the cost of repetition, it is to be stated that PWs.1, 6, 9 and 17 have not been cross examined on this point. This incriminating material found in the evidence of PWs.1, 6 to 9 and 17 is put to accused No.1 in his statement under Section 21 313 of Cr.P.C. But the accused No.1 has said nothing in this regard except denying the same.

37. The next circumstance relied on by the prosecution is the fact that the accused No.1 and the deceased were residing together separately from other members of the family. PWs.1, 6 to 8, 12 to 16 have categorically stated in their evidence that about a year before the incident, the accused No.1 separated from other members of the family and started residing in his house along with the deceased. This version is not at all controverted, and none of the aforesaid witnesses have been cross-examined in this regard.

38. The prosecution witnesses, especially PW1 has categorically stated that on 23/6/2015 at 8.00 am., accused No.1 had called and informed him that on the previous night the deceased had gone out of the house to answer nature’s call at 9.00 pm., but had not returned to the house during the whole night. When he saw in the morning, her dead body was found in the land belonging to Gatageppa Shivapura. It is relevant to note that PW1- who lodged 22 Ex.P1 on 23/6/2015 at 12.00 noon, i.e. immediately after coming to know about the death of his sister and on confirming the same, has specifically mentioned about accused No.1 calling him at 8:00 am to inform the same. This material fact is not denied by the accused No.1 during cross examination. Therefore, this piece of evidence that accused No.1 had called PW1 on 23/6/2015 to inform that the deceased had left the house on the previous night at 9.00 pm. But not returned the whole night and that he fund her dead in the morning remains uncontroverted.

39. The evidence on record, also goes to show that till 8.00 pm, on 22/6/2015 the deceased was in the company of accused No.1 and he was the first person to find her dead body at 6.00 am., on 23/6/2015. When the prosecution is successful in placing clinching material to establish that the deceased was last seen in the company of the accused No.1 just before her homicidal death, and when the time gap between the two events i.e, the accused seeing the deceased going out to answer nature call from the shared household and then finding her dead body in a nearby land, is so short that the possibility of any person other than the 23 accused being the author of the crime becomes impossible. When such is the evidence placed before the Court, it is for accused No.1 to explain about the circumstances under which the deceased parted and met with the homicidal death. But the accused No.1 has absolutely failed to explain the developments during this time gap.

40. Generally, the behavior of a person around the time of the alleged offence is a strong circumstance that has be taken into consideration; criminals are invariably careful not to leave behind direct evidence and will try to avoid demonstration of criminal intent. Under such circumstances, the prosecution usually resorts to circumstantial evidence. Section 8 of the Indian Evidence Act refers to not only motive but also previous or subsequent conduct as relevant facts to be taken into consideration. The conduct of the accused immediately prior to and after commission of the offence is relevant to be considered.

41. Now in this back ground, we have to consider the conduct of accused No.1. In the natural course of events, if the wife goes out at 9.00 pm to answer nature call and does 24 not return within a reasonable time, any prudent husband would go looking for her and make efforts to ascertain as to what happened to her. Even though the learned counsel for the accused has cross examined the material witnesses including Pw1, nothing is suggested to explain this strange conduct of the accused No.1. Nor has accused No.1 himself explained the same in his statement under 313 Cr.P.C. Such conduct of accused No.1 on the intervening night of 22- 23/6/2015 virtually acts as an additional link in the chain of circumstances put forth by the prosecution.

42. The learned counsel for the appellant has relied on the decision in Sri.Dashirath S/o Erappa Nagaral Vs. State of Karnataka2 wherein it is held that when the scene of occurrence is a farm house which is also accessible to other persons, the burden to prove the relevant fact cannot be placed on the accused under Section 106 of Evidence Act. In this case the Division Bench considered the fact that the farm house was situated in a land which could be accessed by any person. It was found that it was not only the accused and the deceased who were staying in the said farm house, but 2 Crl.A.100174/2016 dated 10/6/2020 25 the mother and the sister of the accused were also staying with them and the premises was accessible to other persons. Therefore, it was held that no inference could be drawn under Section 106 of the Evidence Act, drawing strength from the decision of the Hon’ble Apex Court in Dnyaneshwar Vs. State of Maharashtra3 wherein at para 10 it is held 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 in 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.

43. In the present case, the incident did not take place inside the house where the accused and the deceased were living together, but the deceased's body was found in a nearby land. In the facts and circumstances discussed 3 (2007) 10 SCC44526 earlier, the accused No.1, merely because there are houses in the immediate vicinity of this land, cannot avoid the obligation to explain his own conduct, especially when nothing is suggested to build the possibility of a third party intervention. The only suggestion to the witnesses is that there are some Janata houses near by the scene of occurrence but nothing has been stated about the reason for an outsider or a third person to commit her murder.

44. Section 106 of the Indian Evidence Act deals with shifting the onus of proving a particular fact on the accused or when that particular fact is especially within his knowledge. This Section is applicable once the prosecution proves the necessary ingredients against the accused. Hence, Section 106 speaks about the evidentiary burden and the onus of proving the same gets shifted to the accused. It is an exception to Sections 101 and 102 of the Indian Evidence Act. Its applicability does not extend to taking away the legal burden from the prosecution’s shoulders. Therefore, when it is established that the deceased had gone out late in the evening from the shared household but not returned throughout the night, the onus would definitely shifts on the 27 accused to explain the situation that resulted in the homicidal death of his wife.

45. The witnesses PWs.12 to 16 being the residents of Mugalkhod village where accused No.1 and deceased were residing, are cited as witnesses for having seen the deceased lastly in the company of accused Nos.1 and 2. But none of them have supported the case of the prosecution. However, it cannot be said that such hostility on the part of the local witnesses will always enure to the benefit of the accused. Many successful criminal prosecutions often rely largely on circumstantial evidence or indirect evidence, unless explained it often has an edge over direct evidence by virtue of being difficult to suppress and fabricate.

46. All the material circumstances placed before the Court demonstrate that the deceased and accused No.1 were residing together and it was accused No.1 who informed PW1 that the deceased had gone out of the house on 22/6/2015, but never returned till 6.00 in the morning on 23/6/2015. The Accused No.1 has not denied the fact that the deceased was residing with him till the previous night. When it is the 28 prosecution’s case that the accused No.1 suspected the deceased’s fidelity and that is the motive for causing her death, the accused No.1 should have offered some explanation for his conduct after the deceased left the house in the evening to answer nature’s call until the body was found the next morning, or as to why any third person would use the opportunity of the deceased being in the open land so close to her residence, to commit her murder. The accused has not raised any probable defence to get the benefit of doubt. Therefore, we are convinced that the prosecution is successful in proving the guilt of accused No.1 for the offence punishable under Section 302 of IPC.

47. The learned counsel for the appellant finally argued that the charge framed by the Trial Court is irregular and misleading. It is his submission that there is an error and irregularity in charge No.2 framed by the Trial Court, as a result the accused is misled and he could not take any defence or offer any explanation in respect of the incriminating circumstances which were put to him at the time of examination under Section 313 of Cr.P.C. 29

48. The learned counsel drawing our attention to charge No.2 submits that the Trial Court has framed charges alleging specific overt acts against accused Nos.1 and 2 viz., that accused No.2 had caught hold of the deceased and accused No.1 tied the plastic wire around the neck, which has ultimately resulted in her death. But, prosecution has failed to prove such specific overt acts either against the accused No.1 or the accused No.2. The accused No.1, who expected to answer specific overt acts alleged against him, could not offer any explanation even in his statement under Section 313 of Cr.P.C for the so-called incriminating circumstantial evidences against him. The irregularity in mentioning the specific over acts against the accused No.1, instead of specific circumstances on which he is held guilty has ultimately resulted in denial of a fair trial to the accused No.1 and in turn in miscarriage of justice. The learned counsel also submits that the accused No.2 is acquitted, and in the above circumstance, the accused No.1 should also be given the benefit of doubt and acquitted.

49. The learned Additional SPP asserted that there is no error or irregularity in the charge framed by the Trial Court 30 for the offence punishable under Section 302 of IPC or that there is no misleading of the accused No.1 or miscarriage of justice. He relied on the decision in K.Prema S.Rao and Another Vs. Yadla SrinivasA Rao and Others4 wherein the Hon’ble Apex Court, considering the situation where there was omission to frame charge for the offence punishable under Section 306 of IPC, has opined that the accused may still be convicted for the offence punishable under Section 306 of IPC on the basis of the evidence on record so long as the accused has not been mislead by any error or omission in framing the charge and no failure of justice has been occasioned.

50. A charge is defined under Section 2(b) of Cr.P.C, as including any head of charge, when the charge contains more heads than one. From this it is clear that the definition is merely illustrative and does not purport to exhaustively define a charge. A charge is a precise formulation of a specific accusation made against the person of an offence alleged to have been committed by him. As per Section 211 of Cr.P.C., every charge shall state the offence with which the 4 (2003) 1 SCC21731 accused is charged. If the law which creates the offence gives it any specific name, the offence may be described in the charge by that name only. The law and Section of law against which the offence is said to have been committed is to be mentioned in the charge. As per Section 212 of Cr.P.C., the charge shall contain such particulars as to the time and place of the alleged offence, and the persons (if any) against whom, or the thing (if any) in respect of which, it was committed, as are reasonably sufficient to give the accused notice of the matter with which he is charged.

51. The Hon’ble Apex Court in Ramesan & Others Vs. State of Kerala5 held as under:- “3. Section 211 of the Code deals with form of charges and contents of charge. The Form of Charge referred to in Section 211 of the Code is available in Form No.32 in Schedule II of the Code. It reveals that the details of each offence are to be stated with reference to the particular accused who committed the offence and the person against whom such offence is committed. It also shows that if the charge is having two or more heads, each charge must be separately 5 2007 Crl.J1637(1638). 32 detailed. Legislature intended that the court shall frame charge in such a way that the charge shall contain the necessary details of the distinct offence or offences which include date, time and place where the offence is committed and the person who committed the offence and the person against whom such offence is committed.

4. The provisions relating to the charge are mainly founded on the valuable right of the accused to have a fair trial in criminal cases. Those provisions are intended to ensure that no accused is prejudiced in his defence, in the absence of his knowing the real nature of allegations made against him. Those provisions are laid down to guarantee that the accused is given notice of at least the bare minimum details of the alleged acts committed by him against a particular person, for effectively defending himself. Those provisions are also set on the Principles of Natural Justice.” (Emphasis supplied) 52. The provision of Section 213 of Cr.P.C. makes it clear that when the nature of the case is such that the particulars mentioned in preceding Sections do not give the accused sufficient notice of the matter with which he is charged, only then the charge should contain such 33 particulars of the manner in which the alleged offence was committed as will be sufficient for that purpose. Illustration (e) appended to Section 213 states that when A is accused of the murder of B at a given time and place, the charge need not state the manner in which A murdered B. The provisions of Section 213 and Illustration (e) read as follows:

213. - When manner of committing offence must be stated.- When the nature of the case is such that the particulars mentioned in sections 211 and 212 do not give the accused sufficient notice of the matter with which he is charged, the charge shall also contain such particulars of the manner in which the alleged offence was committed as will be sufficient for that purpose. Illustrations (a) XXXXXXXXX (b) XXXXXXXXXXXX (c) XXXXXXXXXXXX (d) XXXXXXXX (e) A is accused of the murder of B at a given time and place. The charge need not state the manner in which A murdered B. 34

53. This Court, while considering the purpose that the Charges framed in a criminal case serve and the effect of any irregularity in framing the same in State of Karnataka Vs. Bojappa Hanumanthappaand other6 has reiterated the settled proposition of law referring the decision of the Privy Council in Lal Balla Mal Vs. Ahad Shah7. This Court held that the illustrations appended to the Section 215 Cr.P.C offer sufficient guidance to interpret the provisions of Section 215 and illustrations are to be taken as part of the Section. Para 9 of the judgment reads as under:- “9. A Division Bench of this Court in the case of M/s.A Amichand & Co. v. State of Karnataka ILR (Kar) 1979 (2) 2556 pointed out that Explanation to Section 537, Cr.P.C. 1898 covers cases of omission, error or irregularity in the charges, including misjoinder of charges providing in Sec.535 of the Code also. But the fact that objection to the defective framing of charge was not taken at an earlier stage, if it could and should have been taken, is a material circumstance weighing heavily against the accused particularly when he is 6 1994 CRL.L.J.

1543 7 AIR1918PC24935 represented by counsel throughout. Ordinarily, it will be very difficult to sustain a plea of prejudice unless the court is told just where the shoe pinches. This Court relied on a decision of the Supreme Court in the case of K.C.Mathew v.State of Travancore, Cochin, AIR1956SC241: (1956 Cri LJ444 that it would be very difficult to sustain a plea of prejudice unless the court is told just where the shoe pinches. Even in the decisions relied upon by the respondents’ Counsel it was pointed out that ultimately it is the question of prejudice that should determine whether the proceedings during trial were vitiated. We are of the view that Illustration (d) to Section 215, Cr.P.C. affords sufficient guidance in the interpretation of the scope of Section 215, Cr.P.C. and we respectfully agree with the Division Bench decision of this Court in the case of M/s.A Amichand & Co. (supra). Consequently we are of the considered view that the accused and more particularly A1 was not misled by this error in the charge and no failure of justice has occasioned. All the accused knew fully well right from the stage of committal proceedings till the disposal of the case by the Sessions Court what were the specific allegation against them, what was the part played by each of the accused persons and what were the weapons used.” 36 54. This declaration insofar as the illustrations appended to Section 215 of Cr.P.C would also apply to the significance of the illustrations appended to Section 213 of Cr.P.C. According to Section 213 of Cr.P.C, there would be an error in a Charge if the details of the manner of commission of an offence are not mentioned only in those cases where the details as required to be mentioned in accordance with Section 212 and 213 of Cr. P.C are not sufficient to notify the accused of the material against him. In a trial for murder, as provided under Section 213 and the illustration (e) appended thereto, a Court is not required to mention the manner in which the offence is committed. In other words, specific over acts leading to the commission of the offence need not be mentioned.

55. Further, every error in framing a charge would not vitiate the trial or the judgment necessitating retrial unless prejudice is shown. The learned Division Bench of Bombay High Court in Chandru Parappa Kumbhar Vs. The State of Maharashtra8 while considering as to whether there was any defect in the charge framed by the Trial Court and 8 1995 Cri.L.J.

290 37 whether such defect had prejudiced the accused in his defence, held in para 7 as under:- “7. A perusal of the charge in the present case will, undoubtedly, indicate that the requisite Sections have not been set out under heads (1) and (2). These, however, have been set out at the end of charge (3). The short question that would arise is as to whether the accused have in any manner been prejudiced or, to put it more bluntly, whether they have been handicapped in their defence. In sum and substance, what the law requires is that at the commencement of the trial, the accused are required to be informed in the very clear cut language as to what exactly is the charge for which they have been put on trial or, in other words, that the charge must briefly set out what the prosecution alleges against them, the effects of their acts and the offences that these acts constitute so that the accused are aware of three things, firstly, the brief nature of what the prosecution has alleged against them. Secondly, the provisions of law under which they are liable to be punished as a result of those acts, and lastly, the consequences of the application of those provisions. These are what we are required to define as the basic ingredients that are required to be set out in the charge. If these ingredients are virtually 38 absent, or if they are distorted, or if they are lacking and the net result of such a situation is that the accused does not really know what cases are required to be met, then alone can the question of vitiation of proceedings come up. A mere defect in the language or in the narration or in the sequence or, for that matter, in the form of the charge would not necessarily vitiate the trial. It is in those circumstances that though we accept the position that a better job could have been done while framing the charge, we are not prepared to hold that the accused were either handicapped, prejudiced or adversely affected in the conduct of the evidence as a result of the manner in which the charges have been framed. The basic ingredients are present and to that extent, therefore, the objection that has been canvassed by Shri Pradhan with regard to the applicability of the principle of a defective charge that vitiate a trial must necessarily be overruled. (Emphasis supplied) 56. Even if there are errors or omissions in framing the charge, the same will not be considered as material, unless it is shown that the accused is misled by such error or omission and further that it has occasioned failure of justice. Summarizing the principles, it can be said that if the accused 39 suffers any prejudice by reason of an error or omission or surplusage, only then it can be said that there is failure of justice and the resultant trial could be held to be not fair.

57. In charge No.2 framed by the Trial Court, it is stated that on 22/6/2015 at 22 hours, accused Nos.1 and 2 have caused the murder of the deceased Sumitra, in the land bearing Survey No.43 of Mugalkhod village belonging to one Basappa Mandgani Hulyal, as these accused were suspecting her fidelity and accused No.2 caught hold of the mouth of the deceased and accused No.1 tied the plastic wire around her neck, with the common intention of causing her death. After causing the death, the dead body was thrown in Survey No.41 of Mugalkhod village in the land belonging to Gatageppa Shivapura and thereby they have committed the offence punishable under Section 302 r/w 34 of IPC.

58. It is obvious from a bare reading of the above that the accused No.1 was sufficiently notified about the Charge leveled against him. The necessary details such as the date, time and place, motive and the nature of the offence with its name and provision of law were all stated in the 40 charge. The grievance canvassed by the learned counsel for the appellant-accused No.1 is that the specific overt acts have been mentioned in the charge stating that accused No.2 held and gagged the deceased and the accused No.1 tied the plastic wire around her neck and thereby caused her death. The prosecution has not placed any material to prove these specific overt acts by accused Nos.1 and 2 in commission of the offence punishable under Section 302 of IPC, and there is no reference to circumstances relied upon to hold accused No.1 guilty.

59. Admittedly, the prosecution is relying on the circumstantial evidence and even the accused, right from the beginning knew that there are no eye-witnesses to the incident. There cannot be any distinction in framing of the charge between a case based on circumstantial evidence and a case based on direct evidence. It is for the prosecution to prove the guilt of the accused beyond reasonable doubt either by direct evidence or circumstantial evidence.. The charge framed by the trial Court for the offence punishable under Section 302 of IPC refers to the offence by nomenclature and 41 that itself gives sufficient notice of the offence with which the accused is charged.

60. When the prosecution is successful in proving that the offence was committed on the date, time and place mentioned in the charge, and the body of the deceased was found lying in the land belonging to Gatageppa Shivapura as stated in the charge and further when it is shown that a thin plastic wire tied around the neck of the deceased resulted in throttling leading to her death, the accused No.1 cannot contend that he was misled by the overt act alleged against him in the charge. Even otherwise, when the accused alleges irregularity in framing the charge, it is for him to show that there was in fact irregularity and it has resulted in miscarriage of justice as he was misled by such description of the overt act. There is absolutely no such attempt either before the trial Court or before us.

61. Section 313 of Cr.P.C. enables the accused to personally explain the incriminating materials appearing against him in the evidence led by the prosecution. It is an extension of the principle ‘Audi Alteram Partem’. Even though 42 Section 313 of Cr.P.C. is not per se evidence, since no oath could be administered, it is nevertheless subject to consideration by the Court to the limited extent of providing an opportunity to the accused to explain the incriminating circumstances and to draw an adverse inference against the accused for any false answers voluntarily offered by him and to provide an additional or missing link in the chain of circumstances. This Section confers a valuable right upon the accused to establish his innocence and can well be considered beyond a statutory right, as a constitutional right, to have a fair trial under Article 21 of the Constitution of India. No doubt right to silence is a valuable right available to the accused, but an accused cannot remain silent when incriminating materials/circumstances are placed by the prosecution, as it will provide additional link or missing link in the chain of circumstances.

62. The Hon’ble Apex Court in Suresh Charndra Bahri Vs. State of Bihar9 held in paragraphs 26 and 27 as under:-26. 9 1995 Supp (1) SCC8043 It is no doubt true that the underlying object behind Section 313 CrPC is to enable the accused to explain any circumstance appearing against him in the evidence and this object is based on the maxim audi alteram partem which is one of the principles of natural justice. It has always been regarded unfair to rely upon any incriminating circumstance without affording the accused an opportunity of explaining the said incriminating circumstance. The provisions in Section 313, therefore, make it obligatory on the court to question the accused on the evidence and circumstance appearing against him so as to apprise him the exact case which he is required to meet. But it would not be enough for the accused to show that he has not been questioned or examined on a particular circumstance but he must also show that such non- examination has actually and materially prejudiced him and has resulted in failure of justice. In other words in the event of any inadvertent omission on the part of the court to question the accused on any incriminating circumstance appearing against him the same cannot ipso facto vitiates the trial unless it is shown that some prejudice was caused to him. (Emphasis supplied) 63. When the trial Court puts the incriminating materials relied on by the prosecution and the attention of the 44 accused is specifically drawn to the same, the accused cannot blindly contend that he was prejudiced or that there is failure of justice, unless there are material on record to persuade a court to conclude there is failure of justice or that there was unfair or invalid trial. Breach of every provision of the Code does not necessarily make the trial invalid, if the criminal trial is conducted substantially in the manner provided by the Code of Criminal Procedure. Hence, we are not inclined to accept the contention of the learned counsel for the appellant in this regard.

64. The cherished principles of criminal justice system which runs through the web of the administration of justice in criminal cases is that the prosecution has to prove the guilt of the accused beyond reasonable doubt and if two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and other to his innocence, the view which is favourable to the accused should be adopted. This principle has a special relevance in cases where the guilt of the accused is sought to be established by circumstantial evidence. Therefore, unless the circumstantial evidence in the case is consistent with the hypothesis of the guilt of the 45 accused and is inconsistent with his innocence, the court should refrain from recording a finding of guilt of the accused. If the Court entertains a reasonable doubt regarding guilt of the accused, the benefit of doubt should enure to the accused.

65. In the present case, admittedly the accused was staying with the deceased in his house and admittedly he noticed the deceased going out to answer the nature’s call at 9.00 o’ clock in the night. Whether this conduct on the part of accused No.1 as husband of the deceased could be considered as reasonable?. The answer will be, certainly not. He does not suspect the role of any other person in the death of his wife. It is also not his contention that he acted as a prudent human being and immediately went in search of his wife to find her dead body in the neighbouring land. It is also not his defence that either PW1 or PWs.6 to 9 who are the relatives of the deceased or PWs.18 and 19-the investigating officers are inimically disposed towards him or that any of them have falsely implicated him in the case. On a close scrutiny and analysis of the circumstances surrounding the death of the deceased which is proved to be homicidal, the 46 accusing finger points to the accused No.1, and there can not be any other hypothesis to suspect the role of any other person. He could not have kept quite without explaining any of these glaring circumstances.

66. In view of the discussions held above, we are of the opinion that the prosecution is not successful in proving the guilt of accused Nos.1 and 2 for the offence punishable under Section 498A of IPC and therefore, both the accused are to be acquitted for the said offence. Consequently, the appeal preferred by accused No.2 is to be allowed and the appeal preferred by accused No.1 is to be allowed in part.

67. We are also of the opinion that the prosecution is successful in proving the guilt of accused No.1 for the offence punishable under Section 302 of IPC and he is to be convicted for the said offence. Therefore, the appeal preferred by accused No.1 challenging his conviction for the offence punishable under Section 302 of IPC is to be dismissed. 47

68. Hence, the following:

ORDER

Criminal Appeal No.872/2018 filed by the appellant- accused No.2 is allowed and Criminal Appeal No.100153/2018 filed by accused No.1 is allowed in part. Accused Nos.1 and 2 are acquitted of the offence punishable under Section 498A r/w Section 34 of IPC. Accused No.1 is found guilty of the offence punishable under Section 302 of IPC and the sentence recorded by the trial Court in respect of the said offence is hereby confirmed. The impugned judgment of conviction and order of sentence dated 27.04.2018 passed in S.C.No.95/2015 on the file of the learned I Additional District and Sessions Judge, Bagalkot, sitting at Jamakhandi is modified accordingly. Bail bonds executed by accused No.2 and that of his sureties stand cancelled. Fine amount, if any, deposited by accused No.1 and 2 for the offence punishable under Section 498A of IPC is ordered to be refunded, on due identification. 48 Trial Court is directed to secure the presence of accused No.1 to serve the sentence. Send the records to trial court along with the copy of the judgment. Sd/- JUDGE Sd/- JUDGE Vmb