State Of Karnataka Vs. Sathish Kharvi - Court Judgment

R1IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE20H DAY OF JUNE, 2022 PRESENT THE HON’BLE MR.JUSTICE K.SOMASHEKAR AND THE HON’BLE Mr. JUSTICE SHIVASHANKAR AMARANNAVAR CRIMINAL APPEAL No.1260 OF2016BETWEEN: State of Karnataka By C.P.I. Kundapura Circle Rep. by State Public Prosecutor High Court Building Bengaluru – 01. … Appellant (By Sri. Vijaykumar Majage - Addl. SPP) AND: Sathish Kharvi Age 32 years S/o Sri. Venkappa Kharvi R/o Deepanilaya Tarimane Gangolli Village Kundapura Taluk Udupi District – 576201. … Respondent (By Sri. Umesh P.B - Advocate for Sri. R.B. Deshpande – Advocate) 2 This Criminal Appeal is filed under Section 378(1) and (3) Cr.P.C praying to a) grant leave to appeal against the judgment and order of acquittal passed by the learned Addl. District and Sessions Judge, Udupi (sitting at Kundapura) Kundapura in S.C.No.5/2014 dated 04.02.2016 thereby acquitting accused / respondent of the offences punishable under Sections 302 and 201 of IPC; b) set aside the aforementioned judgment and order of acquittal passed by the learned Addl. District and Sessions Judge, Udupi (sitting at Kundapura) Kundapura in S.C.No.5/2014 dated 04.02.2016 thereby acquitting accused / respondent of the offences punishable under Sections 302 and 201 of IPC and; c) convict and sentence the respondent / accused for the offences punishable under Section 302 and 201 of IPC. This Appeal coming on for Further Arguments this day K.Somashekar J, Delivered the following; JUDGMENT

This appeal is directed against the judgment of acquittal rendered by the trial Court in S.C.No.05/2014 dated 04.02.2016 acquitting the accused for the offences punishable under Sections 302 and 201 of IPC, 1860. In 3 this appeal, State / appellant seeks to consider the grounds urged and to set aside the judgment of acquittal rendered by the Trial Court for the aforesaid offences and thereby to convict the accused for the offences punishable under Sections 302 and 201 of IPC, 1860.

2. Heard learned Addl.SPP for the State and learned counsel Sri. P.B Umesh for the respondent/accused. Perused the judgment of acquittal in S.C.No.05/2014.

3. Factual matrix of the appeal is as under: The deceased – Mangala was wife of G.T Nagaraj who is arraigned as CW-8 and she was residing with her husband at Manganese road, Tarimane locality of Gangolli Village, Kundapura Taluk. Deceased – Mangala got married with G.T.Nagaraj and the said couples did not had any issues. Deceased – Mangala was working as a maid servant in Konkani house. The accused – Sathish Kharvi is brother of CW.8 – G.T.Nagaraj and deceased – Mangala 4 becomes sister-in-law to the accused. The accused was residing nearby the deceased house. Deceased – Mangala had a habit of visiting house of the accused – Sathish Kharvi who is none other than her brother-in-law. She was frequently visiting his house and then illicit relationship was developed between them. This relationship between the accused and deceased had became very close and ultimately they developed physical contact. In the meanwhile of this kind of physical contact between the accused and deceased, marriage of accused – Sathish Kharvi was to be settled with some other girl. When deceased – Mangala heard about the marriage of the accused she insisted him to continue their illicit relationship ever after his marriage with some other girl. When accused – Sathish Kharvi resisted for the same, she started threatening the accused that she would inform the girl with whom he was engaged for marriage about their illicit relationship and forced him to continue physical contact with her. 5

4. It is further stated that on 19.09.2013, accused – Sathish Kharvi who is by avocation a fisher man and he was in his house without any work as fisher man work is only a seasonal occupation, deceased – Mangala informed and insisted him to meet at Udupi Krishna Mata. Accordingly, accused as well the deceased – Mangala proceeded to Udupi and took darshan of lord Krishna and then both proceeded from Udupi at 4.00 p.m. reached Kundapura at 6.00 p.m. and then proceeded to Maravanthe Varaha Swamy temple and offered pooja and took darshan and then proceeded to beach which was in front of the temple. But at that time also deceased – Mangala was insisting the accused to continue their illicit relationship even after his marriage with some other girl and failing to do so, she would inform about their illicit relationship to the girl with whom he was engaged. Accused having felt that deceased – Mangala will create a problem in his marital life decided to eliminate her and 6 pretended as if he is in intimate relation with her and immediately encircled her neck with the help of border of her saree and compressed her neck. As a result of that deceased – Mangala died due to manual strangulation and compression of her neck. Subsequently, suspecting that the deceased – Mangala must be still alive while she was in semi conscious state, he lifted her from beach and dropped her in Arabian Sea and threw her vanity bag and other belongings in the sea and then he came to Gangolli by boarding private bus.

5. In pursuance of act of the accused and death of Mangala, CW.30 – Raveesh Holla who was working as Station House Officer in Gangolli Police Station received a report from CW.12 and registered the case in UDR.No.15/2013 and dispatched FIR to the Court of law. Thereafter, proceeded to the place where the dead body was lying and secured 2 panch witnesses and prepared inquest over the dead body of Mangala and then handed 7 over investigation to the investigating officer who is cited as CW.1 – Sampath Kumar A.

6. CW.1 – Sampath Kumar A, registered the case in UDR No.15/2013 for investigation. On 21.09.2013 he received post mortem report of deceased – Mangala and it disclosed that deceased died due to asphyxia and compression of neck by manual strangulation and felt that it was culpable homicide amounting to murder. Accordingly, CW.1 – Sampath Kumar A, proceeded further for investigation of death of Mangala and registered the case in Cr.No.101/2013 for the offences punishable under Sections 302 and 201 of IPC, 1860. Subsequent to registration of the case, criminal law was set into motion by forwarding FIR to the Court of law which included investigated papers conducted by CW.10 – Raveesh Holla in UDR No.15/2013 of Gangolli Police Station. Since offences were grievous in nature, handed over the investigation to CW.32 – Divakara P.M. who is Circle 8 Inspector of Police. Further CPI / CW.32 - Divakara P.M. took up the case for investigation and investigated the case thoroughly and laid down the charge sheet against the accused on primary enquiry about unnatural death of deceased – Mangala. But in continuance of the investigation on 20.09.2013 he proceeded to the place where the dead body was found and drew mahazar as shown by CW.12 – Dasi Venkatramana Kharvi and other panch witnesses and also prepared rough sketch at the place where dead body was found and recorded statements of witnesses and so also drew mahazar in the presence of panch witnesses and secured post mortem report at Ex.P13 and laid charge sheet against the accused before the committal Court. Subsequently, the Committal Court had passed an order as contemplated under Section 209 of Cr.P.C committing the case to the Sessions Court for trial whereby the case was registered in S.C.No.15/2013. 9

7. Subsequently the Trial Court on hearing the arguments advanced by the learned Public Prosecutor and the defence counsel, framed charges against the accused for the offences under Sections 302 and 201 of IPC, 1860. However, the accused did not plead guilty but claimed to be tried. Accordingly, it was recorded.

8. Subsequent to closure of the evidence on the part of the prosecution and subjected to examination of PWs.1 to 17 and got marked several documents as per Exs.P1 to 21 and so also MOs.1 to 6 were also got marked. Incriminating statement as contemplated under Section 313 of Cr.P.C. was recorded and whereby the accused declined the truth of the evidence on part of the prosecution. Subsequently, accused was called upon to adduce defence evidence as contemplated under Section 233 Cr.P.C. But the accused did not come forward to adduce any defence evidence on their side. 10

9. Subsequent to closure of the evidence on the part of the prosecution in entirety and analysis, the evidence on part of the prosecution such as PW.1 – Sampath Kumar A who is official witness and based upon his information FIR has been recorded as per Ex.P1 and several documents were got marked at Ex.P2 – Spot mahazar and whereby subscribed the signatures PWs.1, 12, 13 and 14. Similarly, spot mahazar at Ex.P5 in the presence of PWs.2 and 7 and inquest mahazar at Ex.P10 whereby subscribed the signatures of PWs.10, 11 and 16. Post Mortem report at Ex.P13 issued by PW.15 is the doctor who conducted autopsy over the dead body of Mangala. These are all the evidence on part of the prosecution have been closely scrutinized by the trial Court. But entire case is on the evidence of PWs.3 and 5 who have seen the deceased with the accused which is to be termed as last seen theory and also relating to the company of accused with the deceased between 6.30 p.m. to 7.00 p.m. at Varaha Swamy temple and both accused and deceased – Mangala have been to 11 Maravanthe beach. Then observing accused coming alone from company of the deceased – Mangala. These are all the material evidence required to be established by the prosecution relating to the last seen theory in respect of accused – Sathish Kharvi and deceased – Mangala and the same was not proved by the prosecution by facilitating worthwhile evidence and these two witnesses i.e. PWs.3 and 5 inclusive of PW.4 have been supported the theory of the prosecution, even though homicidal death of the deceased – Mangala has been putting on part of the prosecution subjected to examination of PW.15 being doctor who conducted autopsy over the dead body of the Mangala and issued post mortem report at Ex.P13. Mere because there was evidence on the part of PW.15 – Doctor but the death of Mangala was caused due to compression of neck and manual strangulation and also drowning her by the accused has not been established by the prosecution by facilitating worthwhile evidence and securing conviction for offences punishable under Sections 12 302 and 201 of IPC, 1860. But circumstances in totality on the part of prosecution and even the trial Court have been strongly believed that accused alleged to have committed the murder of his sister-in-law namely Mangala. But accused had physical contact with deceased and even the Court believed the theory in respect of accused and same was taken into consideration by the trial Court. The case was registered against the accused after 1 month 27 days and it is whereby accused was apprehended by the police on 16.11.2013. After lapse of 1 and ½ months, criminal law was set into motion against the accused only on suspicion that accused had illicit relationship with deceased – Mangala and investigating agency took up the case for investigation and PWs.3 and 5 were main and primary witnesses on the part of the prosecution who are president and priest of temple where said to have seen deceased – Mangala in the company of accused – Sathish Kharvi on 19.09.2013 at about 6.30 p.m. to 7.00 p.m. But these witnesses withstood the 13 version of statement said to have been recorded by police but there are series of chain of circumstances to be established by the prosecution to prove the guilt against the accused. But they did not unmistakably point the guilt against the accused and did not give scope or any doubtful theory to the motive and suspicion and it cannot be taken as truth and genuinity and reality of death of the deceased – Mangala. These are all the evidence has been considered by the trial Court inclusive of the evidence of PW.17 being the investigating officer and whereby secured call details of accused and the deceased. The telephonic call details has been got marked as per Ex.P21. But on perusal of telephonic calls existed between accused and the deceased makes clear that telephone number belonging to accused – Sathish Kharvi was operating in the tower covering of Maravanthe as on somewhere on 13.09.2013 and also on 19.09.2013 in between 6.20 p.m. to 8.30 p.m. These are all the evidence that has been appreciated by the trial Court for rendering acquittal judgment for the 14 offences under Sections 302 and 201 of IPC, 1860. It is the said judgment which is under challenge by urging various grounds.

10. Learned Addl.SPP for the State has taken us through the evidence of PW.2 and even mahazar at Ex.P5 relating to connecting accused in respect of mobile call details produced at Ex.P21 regarding conversation between the accused and deceased. At relevant point of time and also connected accused in respect of the offences of eliminating Mangala by compression of her neck and manual strangulation and also drowning her body into Arabian Sea as well as her belongings. But the trial Court has failed to appreciate the evidence on part of the prosecution but mere because case registered in UDR No.15/2013 and based upon post mortem report at Ex.P13 issued by PW.15 criminal law was set into motion by registering the case in Cr.No.101/2013. Insofar as evidence of PW.15 and also post mortem report at Ex.P13, 15 it is on the part of prosecution to make clear that death of the deceased – Mangala was due to asphyxia as well as cumulative effect of manual strangulation and also drowning. These are all the evidence facilitated by the prosecution but the trial Court was misdirected and also misinterpreted evidence of PW.2 in respect of mahazar and whereby PW.2 was spell about commission of murder and also throwing the dead body to Arabian Sea. There was some articles of the deceased such as vanity bag and material objects along with clothes of the deceased have been identified by PW.2 who is mahazar witness and supported the case of the prosecution. Despite of this the trial Court rendered acquittal judgment. Therefore, in this appeal it requires for re-appreciation of evidence and also re-visiting of impugned judgment. If not, certainly there shall be some miscarriage of justice in respect of gravamen of the complainant who narrated in his complaint made in respect of death of Mangala. 16

11. The second limb of the argument has been advanced by the learned Addl.SPP for State by referring to the evidence of PWs.3 and 5 and they are material witnesses and also president and priest and of Udupi Krishna Temple. They have been specifically stated in their evidence that on the fateful day both accused and deceased came to the temple and also got darshan and thereafter they went towards beach. Both of them were often coming to the temple to get darshan so they identified both of them. Though PWs.3 and 5 cited in their evidence on part of the prosecution even for time and frequently both deceased and accused and deceased had physical contact between them. But trial Court did not gave more credentiality to the aforesaid witnesses on the part of prosecution and inclusive of evidence of PW.4 who is also a material witness in respect of last seen theory who has seen accused and deceased and also stated specifically in his evidence that the deceased – Mangala travelled in bus wherein he was working as conductor and asked the 17 deceased as where she is proceeding and deceased said that she was proceeding to temple and got down and thereafter she went to temple and met accused. Both of them went to nearby beach and there accused committed the murder. Therefore, evidence of PWs.3, 4 and 5 inclusive of PW.10 relating to the circumstantial in nature and also there was some illicit relationship in between deceased – Mangala and accused. The deceased insisted accused to continue physical contact with her even after his marriage with some other girl and threatening him that she would disclose their affairs to the girl with whom he was engaged. For the said reasons accused felt that she would become problem to his future marital life. Same has been seen even in the evidence on part of the prosecution mainly relied upon evidence of PWs.3, 4 and 5 relating to last seen theory. Accused on 19.09.2013 at around 8.00 p.m. near Maravanthe beach intentionally caused death of the deceased – Mangala behaving cordially with her and immediately he encircled her neck with saree worn by her 18 and compressed her neck as a result of that she lost her breath due to the effect of manual strangulation and compression of neck by accused. These are all the evidence produced by the prosecution and evidence has not been appreciated by the trial Court and whereby accused committed murder of the deceased – Mangala as she was threatening him to disclose their illicit relationship with the girl he was engaged to get married. These are all the submissions and contentions made by the learned Addl.SPP for the State challenging acquittal judgment rendered by the trial Court. On all these premises, learned Addl.SPP for the State seeks intervention to consider grounds urged in this appeal and if not certainly there will be injustice to the prosecution case and consequently seeks to set aside acquittal judgment rendered by the trial Court in S.C.No.05/2014 and convict the accused for the offences punishable under Sections 302 and 201 of IPC, 1860. 19

12. Per contra, the learned counsel for the respondent/accused namely Sri. P.B Umesh has taken us through the evidence of PWs.3, 4 and 5. Initially case is in UDR No.15/2013 was registered against the accused based upon the statement at Ex.P12. But PW.16 being official witness and recorded FIR at Ex.P15. PW.15 – Doctor issued post mortem report at Ex.P13 and based upon the said post mortem report criminal law was set into motion by registering the case in Cr.No.101/2013.

13. CW.1 – Sampath Kumar who is the investigating officer and initially case was registered in UDR No.15/2013 based upon the post mortem report as per Ex.P13 and the deceased died due to asphyxia and compression of neck and manual strangulation. Then case was registered by recording FIR at Ex.P1 and bears signature of PW.1 inclusive of spot mahazar at Ex.P2 in the presence of PW.12, 13 and 14. On 17.11.2013 recorded the statements of CWs.4, 5, 6, 7, 8, 9, 10, 11, 13 20 and 15 to 17 and also statement of CW.12 and 18 and also recoded statements of CW.20 to 22, CW.27 to 31 and on 18.11.2013 received chemical examination report and collected Grama Panchayath record pertaining to house of accused and also revenue records pertaining to place of incidence and having found sufficient materials against accused submitted charge sheet before the committal Court, Kundapura. But it cannot be said that prosecution has proved the guilt of the accused beyond all reasonable doubt.

14. The second limb of the argument advanced by referring evidence of PWs.3, 4 and 5. The entire case of the prosecution revolves around the evidence of those witnesses and even evidence of PW.6 – G.T Nagaraj who is none other than husband of the deceased – Mangala and also brother of accused. There was illicit relationship between accused and deceased – Mangala. PW.8 – Rajesh Kharvi is neighbour of PW.6 has stated that dead body of 21 deceased was lying at sea shore and was murdered and came to know that accused has committed murder of deceased – Mangala under the impression that she may disclose the fact relating to sharing illicit relationship with accused to the girl with whom accused was engaged. But there was no evidence on part of the prosecution even though subjected to examination of so many witness but evidence facilitated by the prosecution to prove the guilt of the accused by link evidence to show deceased – Mangala and accused proceeded in bus towards Trashi even by subjected to examination of PW.4 – Raghavendra Kharvi in totality of evidence on part of the prosecution witness that to be evidence of PWs.3 and 5. But the prosecution did not facilitate the worthwhile evidence in respect of the motive factor and last seen theory. Therefore, trial Court had appreciated the evidence and rendered acquittal judgment by assigning sound reasons. Therefore, in this appeal it does not arise for call for interference in terms of 22 re-appreciation of evidence or re-visiting the impugned judgment of acquittal rendered by the trial Court.

15. Lastly, the counsel submits that the contentions made by learned Addl.SPP for the State insofar as preferred appeal by challenging the acquittal judgment as it does not hold any substance to call to any interference and seeks dismissal of the appeal being devoid of merits by confirming acquittal judgment rendered by the trial Court.

16. It is in this background of the contention made by learned Addl.SPP for the State by referring to evidence of PWs.3, 4 and 5 as well as counter arguments advanced by learned counsel for respondent / accused. The entire case of the prosecution rests upon the evidence of PWs.3, 4 and 5 inclusive of PW.17 being the investigating officer. But last seen theory in respect of company of the accused with the deceased – Mangala even though accused explained how and when he parted the company of deceased – Mangala. It is the domain vested with the 23 accused to offer some explanation about parting company of deceased. Taking into consideration evidence of PWs.3, 4 and 5 inclusive of PW.6 and 17 in order to establish principles of last seen theory and proximity of time and place. Principles have been laid that accused felt some sort of explanation for unnatural death of deceased. In the instant case, evidence of PW.3, 4 and 5 inclusive of Pw.6 has been appreciated by the trial Court. It is the domain vested with the prosecution relating to last seen theory of company of accused with deceased – Mangala. It has not been established through chain of circumstances as relied upon by the prosecution and the same are not completed even the evidence of PWs.3, 4 and 5. The alleged incident was taken place on 19.09.2013 at around 6.30 p.m. to 7.00 p.m. But the death of Mangala was unnatural on the basis on post mortem report at Ex.P13. Investigation was taken up by PW.17 based upon the medical report relating to culpable homicide and accused was apprehended by the investigating agency on 16.11.2013 after lapse of 1 month 24 27 days. During the investigation PW.17 secured call details as per Ex.P27 relating to the correspondence between deceased – Mangala and accused. Ex.P27 only indicates that some calls were made between these two persons. Investigating officer did not collect particulars of mobile belonging to deceased and to whom the sim was belonging and how many calls were made by the deceased to accused and accused to deceased. Primarily, prosecution has failed to prove that accused had taken deceased Mangala from Gangolli to Udupi, Udupi to Kundapura and Kundapura to Varaha Swamy Temple of Maravanthe. None of the witnesses, who were alleged to have seen these persons travelling in the bus on 19.09.2013 have supported the case of prosecution. PWs.3 and 5 who are temple trust president and priest respectively and said to have been seen the deceased – Mangala in the company of accused on 19.09.2013 between 6.30 p.m. to 7.00 p.m. have not supported the case of prosecution. Series of chain of circumstances as 25 furnished by the prosecution are incomplete and they do not unmistakably point to guilt of accused and does not give any scope for the Court of law to doubt that the accused caused the death of Mangala. The prosecution has not come up with proper evidence even for perfunctory investigation has been done but the investigating agency relating to the heinous offences under Sections 302 and 201 of IPC, 1860.

17. PW.17 took the case for investigation relating to death of Mangala and even charge sheet was laid by collecting materials and drew mahazar in the presence of panch witnesses and secured call details in respect of deceased and accused. It must be a strong evidence on part of the prosecution even there was a suspicion that accused – Sathish Kharvi and deceased – Mangala had illicit relationship. On 19.09.2013 at around 6.00 p.m. accused and deceased had been to Varaha Swamy temple then proceeded to Maravanthe beach. Even though that 26 accused came alone without company of the deceased – Mangala is not proved by the prosecution by facilitating worthwhile evidence. However, the trial Court had appreciated the evidence keeping in view the contents made in the UDR - FIR at Ex.P15 recorded by PW.16 and confessional statement made by the accused at Ex.P16. But in totality of the circumstances, the prosecution has miserably failed to prove the guilt against the accused for homicidal death of deceased. The death of Mangala was caused due to compression of neck by manual strangulation done by the accused. These are the important elements all that have to be established by the prosecution by subjected to examination of material witnesses. The trial Court appreciated the evidence and rendered acquittal judgment.

18. In this appeal, re-appreciation of evidence on record and re-visiting the judgment of acquittal rendered by the trial Court, but there was no perversity or even trial 27 Court has not applied its mind to appreciate the evidence. Consequently, this appeal does not survive for consideration and judgment of acquittal rendered by the trial Court does not suffer from any perversity and this appeal deserves to be rejected being devoid on merits by confirming the acquittal judgment rendered by the trial Court for the offences punishable under Sections 302 and 201 of IPC, 1860. It is the domain vested with the prosecution to prove the guilt of the accused by facilitating worthwhile evidence and it should establish evidence relating to the heinous offences. But in the instant case, there is no cogent, corroborative and positive evidence to probabalise that accused committed murder of the deceased – Mangala. Under these circumstances and also reasons assigned supra we proceed to pass the following : ORDER

Appeal preferred by the Appellant / State under Section 378(1) and (2) of Cr.P.C is hereby rejected. 28 Consequently, judgment of acquittal rendered by the trial Court in S.C.No.05/2014 dated 04.02.2016 is hereby confirmed. Sd/- JUDGE Sd/- JUDGE RJ