Allowed

Smt. Manjula Malleshi Navi v. the State of Karnataka

Karnataka HC3 Jul 2019CRL.A/100188/2017

Case brief

AI extract

What is this about?

A murder conviction rested on circumstantial evidence and an alleged extra-judicial confession concerning the death of the husband's second wife. The court held that guilt was not proved beyond reasonable doubt, allowed the appeal, set aside the conviction and sentence, and directed release on a personal bond with surety.

What did the court decide?

Conviction and sentence set aside; release directed on a personal bond with one surety, effective until expiry of the appeal period or six months, whichever is later.

Smt. Manjula Malleshi Navi Vs the State of… — Murder and Culpable Homicide | Karnataka HC (2019)

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IN THE HIGH COURT OF KARNATAKA DHARWAD BENCH

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DATED THIS THE 3^RD DAY OF JULY 2019

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PRESENT

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THE HON’BLE MR. JUSTICE G. NARENDAR

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AND

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THE HON’BLE MR. JUSTICE BELLUNKE A.S.

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CRL.A.No.100188/2017

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BETWEEN :

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SMT. MANJULA MALLESHI NAVI AGE: 40 YEARS, OCC: HOUSE WIFE, R/O: NO.15/184, KSRP QUARTERS, 2^ND BATTALION MACHE, TQ & DIST: BELAGAVI.

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…APPELLANT

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(BY SRI. S. B. DEYANNAVAR, ADV.)

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AND:

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THE STATE OF KARNATAKA, THROUGH BELAGAVI RURAL POLICE, BELAGAVI, R/BY SPP, HIGH COURT OF KARNATAKA BENCH AT: DHARWAD.

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…RESPONDENT

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(BY SRI. V.M. BANAKAR, ADDL. SPP )

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THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374(2) OF CR.P.C., SEEKING TO CALL FOR RECORDS AND ORDER THE ACQUITTAL OF THE APPELLANTS/ACCUSED HEREIN THE CHARGE LEVELED AGAINST HER AND SET ASIDE THE JUDGEMENT PASSED DATED 24.04.2017 BY THE PRINCIPAL SESSIONS JUDGE, BELAGAVI IN

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S.C.NO.11/2015 FOR THE OFFENCE PUNISHABLE UNDER SECTION UNDER SECTION 302 OF IPC.

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RESERVED FOR JUDGMENT ON: 28.03.2019 JUDGMENT PRONOUNCED ON: 03.07.2019

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THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR JUDGMENT, COMING ON FOR PRONOUNCEMENT OF JUDGMENT, THROUGH VIDEO CONFERENCE, THIS DAY, BELLUNKE A.S., J., DELIVERED THE FOLLOWING :

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JUDGMENT

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This is an appeal filed by the accused against the judgment of conviction and sentence passed by the Principal Sessions Judge, Belagavi in Sessions Case No.11/2015, dated 24.04.2017 for the offence punishable under Section 302 of IPC.

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By the above said impugned order the accused came to be convicted and sentenced to undergo imprisonment for life for the offence punishable under Section 302 of IPC.

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Brief facts of the case for the purpose of this appeal are :

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The complainant and the appellant are husband and wife. They were residing at

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Karnataka State Reserve Police Force Quarters No.15/174, KSRP 2^nd Battalion, Machche, Belagavi. The complainant is working as barber in Karnataka State Reserve Police Force. The appellant was married to complainant about 15 years back. Earlier she had given birth to three children. All of them died. Therefore, they become issueless. Hence, the appellant forced her husband to go for second marriage. But, the husband was initially not interested. On account of say of the appellant, the complainant married one Laxmi. All of them started residing together under same roof. The said Laxmi gave birth to two babies. The appellant suspected that her husband-complainant has entered the name of second wife-Laxmi in his Service records. Therefore, she used to quarrel with him. She forced her husband-complainant to erase the name of the second wife from the records. Even though the complainant has not entered the name

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of Laxmi in his service record, but she was not satisfied.

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According to the prosecution case, on 08.10.2014 at about 6.00 a.m. the complainant got up and after completing his morning functions he went to his duty by 7.00 a.m. At that time the second wifeLaxmi was sleeping in the house. At about 8.30 a.m. the appellant gave missed call to the complainant. Therefore, the complainant called back the appellant, i.e., his first wife. But she did not receive the phone. Then he returned to the home at 9.00 a.m. He found that the door was closed. Hence, he knocked the door. The appellant opened the door and she looked frightened. Then, the complainant enquired the appellant. She told him that the deceased Laxmi does not attend to any household work and some Galata took place between them. Therefore, PW1 went near the bed of Laxmi and found that the deceased had sustained injury to her neck and blood was oozing. He found her dead. Then the complainant made hue and cry.

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Seeing his Galata the appellant went in her bed room and locked the door from inside. After hearing the sound of the complainant, nearby people gathered there. The appellant came out of her bed room and disclosed as to how the galata started between herself and Laxmi. She also disclosed the mode of assault. Thereafter, the complainant informed the same to the relatives of Laxmi. Then he went to police station and filed a complaint. Based on the said complaint, the Police registered the case in crime No.206/2014 for the offence under Section 302 of IPC. The Police commenced their investigation. The accused was arrested. During the course of investigation, the Police recorded the voluntary statement of the accused. They seized material objects used for commission of offence. Statements of witnesses were recorded. The deceased body was subjected to post mortem. Post Mortem report was obtained. After completion of investigation the Investigation Officer submitted the charge sheet against the appellant-accused for the offence

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punishable under Section 302 of Indian Penal Code before the jurisdictional JMFC. The learned JMFC committed the case to the Sessions Court under Section 209 of Cr.P.C. for trial.

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The Learned Sessions Judge took cognizance of the offence alleged and registered SC No.11/2015 against the accused. The presence of the accused secured. After hearing both the sides, charge was held for the offence punishable under Section 302 of IPC. The accused pleaded not guilty and claimed to be tried.

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The Sessions Court held trial of the case. The learned Sessions Judge found the accused guilty of the offence punishable under Section 302 of IPC as the same has been proved beyond any reasonable doubt. Accordingly, the learned Sessions Judge passed the impugned judgment and order of conviction and sentenced the accused to undergo imprisonment for life. The said judgment has been questioned by the appellant-accused on following grounds :

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The impugned judgment of conviction and order of sentence passed by the trial Court is opposed to the weight of evidence on record and probabilities of the case.

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The impugned judgment of conviction is unsustainable.

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The trial Court committed error in believing the evidence of PW1 and PW6 i.e., the complainant and his brother, they are the most interested witnesses.

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The evidence of said witnesses on record was not at all corroborated by independent witnesses.

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Neighbourers and pancha witnesses have not supported the case of the prosecution.

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The witnesses are brought up witnesses only with an intention to involve the accused in the alleged case. The intention was to save the skin of PW1. Because there was strained relation between PW1 and his second wife Laxmi. Since she was forcing to enter

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her name in the records, as she being the second wife had no status/value in the eye of law. Every day there used to be quarrel in the house. The complainant might have committed the alleged murder and dumped the same on appellant. Since he being the police personnel knows all the officers in the department. The trial court did not accept the defence theory and came into a wrong conclusion.

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There is no consistency between PW1 and PW6. Both have given different evidence and hence their evidence cannot be believed.

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The mode of attack does not tally with prosecution case and P.M. report. There is no corroboration of evidence of prosecution witnesses among themselves. There are no eye witness to the incident. The case is full of suspicion and not believable.

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The neighbourers, did not come forward to give evidence. That goes to show that the entire case has been manipulated

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concocted against the appellantaccused.

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There is abnormal delay in filing the complaint. That has not been properly explained by the prosecution. Admittedly, the deceased had sustained grievous injuries. But, actually who assaulted the deceased, at what time, has not come on record. PW1 is not an eye witness. But he has involved the appellant in the alleged crime by suppressing the genuine story. The trial court failed to consider the important aspects of the case and came to a wrong conclusion.

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The trial Court completely failed to understand the case of the prosecution. PW1 in order to support himself created a case. The judgment is bad in law and arbitrary one. Hence, interference of the Court is just and necessary.

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There was no sufficient evidence to convict the accused. The court below wrongly came to a conclusion that the prosecution has succeeded in proving the case. The defence taken is that the prosecution has foisted a false case. But, the court below did not

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consider/accept the same and convicted the accused.

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Looking to the entire case papers and the evidence recorded in the case, it reveals that nobody knows the real facts of the case, the court below convicted the appellant.

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When the incident happened nobody was there near the spot except the complainant. But later, with an ulterior motive to grab the property belonging to the appellant and with an intention to

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save his skin PW1 created a false case involving the innocent accusedappellant.

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Looking to the complaint version would go to show that something had happened. She disclosed the same before Police. But, the Police were not ready to heed the request and registered the case by colluding with PW1, as he working in KSRP.

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The learned counsel for the appellant reiterated the appeal grounds. In addition to that, the learned counsel submitted that absolutely there is no evidence against the accused. She has been falsely implicated by husband only. Except extra judicial confession, there is no evidence against the accused. The accused alone was not in the house. The complainant was in the house for the whole night. By

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excluding himself and that of his relative in the house, the poor lady has been implicated in this case.

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Motive on the part of the accused to commit the murder has not been proved. The accused herself has consented to bring the deceased as second wife to her husband for want of children. Therefore, she could not have committed the murder of the deceased. There is no evidence by any independent witness corroborating the version of the complainant. If the evidence of complainant is disbelieved then absolutely there is no evidence against the accused. Hence, the learned counsel for the appellant has prayed to allow the appeal by setting aside the judgment passed by the trial Court and to acquit the accused.

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The learned Additional SPP strenuously argued that the accused was alone in the house when the incident took place. The accused was quarrelling with the complainant on account of her name having been entered in the service records. Therefore, the

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deceased was alive and she was in the house alongwith the accused and there was no other person who has any motive to kill the deceased. Therefore, it is the accused, who has committed the murder of the deceased. The prosecution proved the guilt of the accused beyond any reasonable doubt. Therefore, the learned Additional SPP prays to dismiss the appeal filed by the appellant.

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On the basis of the above, the following points would arise for consideration :

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Whether the prosecution had proved beyond any reasonable doubt before the trial Court that the accused had committed offence punishable under Section 302 of IPC ?

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Whether the appellant-accused proves that the judgment of the trial Court is perverse, capricious against to the law and therefore, it is liable to be interfered with ?

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What order?

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Point No.1 : Answered in the negative Point No.2 : Answered in the affirmative. Point No.3 : As per final order.

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In this case, there is no direct evidence against the accused. Even the complainant who is husband of the accused has not seen the accused assaulting the deceased with iron rod and slitting the throat with a shaving blade. Therefore, the case of the prosecution rests on the circumstantial evidence. In such a case, the motive to commit the offence gains relevance and importance.

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Before discussing the evidence on record, we would like to analyze the facts of the case to find out whether the accused prima facie had any motive to kill the deceased. Based on the facts of the case and allegations in the prosecution records, it has to be setrate whether any other person had any motive to kill the deceased. The accused is the first wife of the complainant and the deceased was the second wife of the complainant. All the three were residing in the

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same house, where the incident took place. It is a Government quarters allotted to the complainant as he is working in the Police Department. Therefore, merely because the dead body of the deceased was found in the house where the accused was residing would not by itself raise an inference that the accused is involved in the murder of the deceased. Therefore, the last seen theory which the complainant has made out in his complaint that the deceased, when alive, was in the house and the accused was also there would not by itself raise an inference that the accused alone was with the deceased. Because the whole night this complainant was also there in the house. He claims to have gone to his work in the morning as he is an official barber. The whole story begins only after he comes to the house at about 9.00 a.m. Therefore, what he has stated in the complaint with regard to the incident in question, that is assaulting and killing of the deceased, is only as said to have been told by the accused. It is also important to note that an in-law by name

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Appasaheb was also there in the house. He also left the house at 6.45 a.m. to whom the accused is said to have prepared food. There is also no allegation that there was any preparation by the accused to commit the offence. The time of incident as alleged in the complaint is at about 8.00 a.m. in the morning. The complaint was received at 10.30 a.m. It is a well computerized typed complaint which is marked at Ex.P-1. Drafting of the complaint goes to show that it was drafted with forethought. It does not look natural.

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Now coming to the motive on the part of the accused, the allegation is that since four years, the accused was asking complainant to leave the second wife i.e., deceased Laxmi on the ground that he will enter her name as nominee or successor in his department service records. The complainant used to pacify her and tell her that he will not enter her name as his nominee or a successor etc., It is important to note that out of the first marriage with the accused, three children were born and all of them died. Since the

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complainant had no children, it is the accused who pressurized the complainant to go for second marriage and she herself performed the second marriage of the complainant with the deceased. Thereafter, they begot two children and all of them were residing in one house happily.

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It is important to note that the marriage of the accused with the complainant was not cancelled by any order or decree of the Court, including a decree of divorce. Therefore, in the eye of law, it is the first wife who would have been immediate successor to the assets of the complainant. Even in the absence of any nomination, it is the accused who would have got all the terminal benefits in the event of untimely death of her husband. If she was pressurizing the complainant to leave the second wife on suspicion that her husband will enter her name in the service records. She has kept quite without taking any coercive steps for a period of four years. If that is so, then it is unimaginable that all of a sudden how the accused would get a motive to

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finish off the deceased? Therefore, the motive for commission of offence stated by the complainant in his complaint at Ex.P-1 does not appear to be a strong motive so as to develop into an intention on the part of a lady like the accused to take an extreme step of killing the lady who was brought into the house by herself. It is also important to note that whether by killing of this lady, the accused would have been safe and secured. Any person will have minimum knowledge that he will have to go to jail if he kills any person. Therefore, if at all the accused had any intention to drive out the deceased; she would have resorted to other methods. Now who would be benefited by killing this lady?

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At the time of arguments it was submitted that the complainant has contracted another marriage and the photographs were also shown. Therefore, a reasonable suspicion can be raised, as to whether this complainant has tried to hit two birds with one stone? Further, whether the accused would have stayed in the scene of offence after commission of the offence?

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Normally culprit will try to escape from the scene of offence. She claims to have used a shaving blade to slit the throat of the deceased. Before slitting she is alleged to have assaulted the deceased with an iron rod for three or four times. When the deceased tried to get up then the accused cut the throat of the deceased with a shaving blade. The shaving blade would be easily available at home, likewise in kitchen a knife would also be there in the house. If the accused wanted to cut the throat of the deceased, she could have very well used a knife. She did not run away from the place of incident. Then the question of hiding iron rod, gown and shaving blade would not arise. Therefore, Ex.P-30 voluntary statement of the accused recorded by the Investigating Officer does not inspire any confidence in the minds of the Court. The photo of the dead body is taken only in the hospital mortuary at Ex.P-10. We do not find any other photographs of the scene of offence or the dead body which was lying in the house. Nothing prevented the Investigating Officer to take few photos of the scene

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of offence. Even the bloodstains at the scene of offence and recovery of MOs near lavatory could have been photographed. The explanation given by the accused in her statement recorded under Section 313 of Cr.P.C. is also worth noticing. The said statement reads as under:

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“There was no any dispute between me and deceased Laxmi and there was cordial and good relations of myself with the deceased and in this regard, no any previous incident had taken place.

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But, there was a dispute and quarrel between the deceased Laxmi and my husband Malleshi regarding the nomination to the Government service benefits of my husband. My husband already nominated my name to his service benefit but the deceased Laxmi was forcing my husband for change of nomination i.e. in place of my name, her name is to be entered. But, my husband was not ready for the same. So, on and often, there was a quarrel between my husband and deceased Laxmi.”

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On perusal of the above said explanation referred to, the inference that can be drawn based on the facts that are borne out from the records, we find that the evidence on record needs to be re-appreciated meticulously to find out whether the prosecution has proved the guilt of the accused beyond any reasonable doubt.

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According to the case made out by the prosecution and also according to PW-1 himself, it is the accused who pressurized him to go for second marriage as the children born to accused did not survive. The marriage of the deceased and PW1 was performed about six years ago. Out of the second wedlock, PW-1 and the deceased had two children. Even the sister’s son of PW1 was also residing with them. If everything was going smoothly and happily, then how did the accused suddenly developed ill-will against the deceased to go to the extent of committing the murder. The reasons stated by PW-1 regarding motive to commit the murder is nonexistent. Further, it does not appear to be a strong

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enough so as to motivate any ordinary person placed in similar circumstance to develop an idea of killing a lady. Moreover, even according to PW-1, he had told the accused that he has not entered the name of the deceased in the service records and he is not going to do so. Therefore, there was no reason for the accused to develop such a hatred intention of killing a lady, whom she herself had brought in as second wife to her husband.

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Another grave suspicion that occurs in the mind is, the meticulous way of PW-1 being not present in the house including his sister’s son. Admittedly, even according to PW-1, there was no quarrel between accused and the deceased either on the previous night or in the morning. He claimed to have received a missed call while he was on duty, but, to corroborate it, the call details are not collected by the Investigation Officer. When he questioned the accused as to what happened she told him that she had called the deceased Laxmi for filling the water, she did not wake up and

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therefore a quarrel took place. That is not the motive made out by the prosecution so as to commit murder of the deceased by the accused.

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PW-1 further deposed that accused told him that she had hit the deceased with iron rod on two to three times. She doubted whether the deceased died or not and therefore, she took up a shaving blade and slit her throat. Whereas in the complaint at Ex.P-1, the complainant has stated that after the quarrel, the accused had hit the deceased with rod three or four times. When the deceased stood up, immediately she took up a shaving blade and slit her throat. Therefore, there is material improvement in the evidence of PW-1 than what has been stated in the complaint at Ex.P-1. Nobody would get a killer intention merely because the deceased refused to do the household work. Therefore, the evidence of PW-1 cannot be believed without corroboration by independent witness. There is absolutely no evidence to demonstrate any ill-will between the accused and the victim nor is there any

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material to show that the accused and victim ever quarreled over the issue of nomination in the service records. More so, when in law and in accordance with the service law, the name of the victim could not have been entered.

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The accused is said to have voluntarily shown the iron rod, which it is alleged is used for removing the punctured tyre of a vehicle. In that case, the said article should have been brought and kept by the complainant himself. If the incident has taken place as stated by PW-1 then the deceased should have fallen on the ground or else she must have been assaulted while she was sleeping. If she was having conscious before slitting her throat then definitely there would have been resistance by the deceased.

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PW-1 has stated in the cross-examination that he had placed the deceased on his lap and his pant was also bloodstained. But that has not been seized. Neither the complainant nor CW-10 have seen the

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incident. In the complaint, PW-1 has not stated that the accused had used the rod which is used for removing punctured tyres. He refers it only a rod. The complainant is said to have been left the house at 7.00 a.m. His sister’s son is said to have been left the house at 8.00 a.m. The deceased was sleeping in the bedroom with her children. There was every possibility that the complainant himself could have committed the act and could have gone away as if nothing has happened. That possibility cannot be ruled out. Because the death of the deceased would be more beneficial to him rather than for the accused. The fact that he has undergone one more marriage within a short span of time after the death of deceased would raise a serious suspicion in the minds of the Court. Very strangely police have not collected fingerprints on the material objects or at the scene of offence. He was also questioned about the raising and movement of the sun so as to remind the time at which he left the house. He was not able to say anything as he was under stress and tension and

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therefore, he did not observe these things. That statement does not inspire any confidence in the minds of the court as the complaint is well thought out and in detail.

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PW-1 further admitted that accused was running a beauty parlor. She was attending outdoor customers also within the quarters complex. She was also having her own income from the beauty parlor which she was running in the village. The parlor also stands in one gunta land and it is standing in the name of accused. It is also admitted that she was happily carrying on the business and earning some income.

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Three bloodstained gowns have been seized by the police. PW-1 in his cross-examination has stated that he has never seen MOs-1 to 3 prior to police coming to his house. He denies that MO3 night gown was used by both the accused and deceased. This is not an uncommon fact. He claims to have kept MO1 with its wrapper which was sticked with a gum on a TV.

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MO 2 rod belongs to him. The wrapper of the blade has not been seized. He also do not know when his statement was recorded by the police.

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Even according to PW1, there was no quarrel between accused and deceased till he took tea. He did not remember the correct number of the cell phone from which the accused had called him. It is he who shifted the dead body to the ground. No investigation is made regarding the cell phone possessed by the accused. PW1 claims to have gone to the police station with the bloodstained pant which he was wearing but the police have not seized the same. He do not know whether the accused was in the police station while he lodged the complaint. He has reaffirmed the reasons for the accused to commit murder but the one he has stated is contrary. In fact, he admitted that he had already nominated the accused as his nominee in service records. If that is the case, there was no reason for the accused to commit the murder of the deceased. He denies that the deceased was quarreling with the

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accused for having transferred the land standing in the name of accused and he denied that the accused was pestering to nominate the deceased as his nominee and in this regard, there were continuous quarrel between himself and the deceased. Though the suggestion is denied, but it has got sufficient force and strong enough to raise doubt in the minds of the Court. Further the accused was not having any children therefore she would have given her own property to her husband or to the children of the deceased. Because it is she who brought the deceased as second wife to her husband. This sacrifice of a woman should not be forgotten. Because normally a woman does not tolerate another woman entering in her husband’s life.

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PW-1 denied the suggestion that in a heated quarrel, he committed the murder of the deceased and the accused in order to save him, took the blame on herself and accordingly he prepared the circumstances and went to the police station and lodged a complaint. This suggestion finds some force in the circumstances

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detailed above. The doubt is lingering in our mind. The Investigating Officer should have been careful and cautious in conducting the investigation. Something has gone wrong. Either negligence in believing the statement of the complainant as the gospel truth or for any extraneous consideration. Police have not investigated the case from this angle. In this case, if the evidence of PW-1 itself is full of suspicion, if his statement is not believed then there is no other evidence on record to prove the guilt of the accused beyond any reasonable doubt.

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PW-2 who claims to have come to the scene of occurrence after hearing galata and has stated that she does not know anything about the quarrel alleged to have taken place between accused and the deceased.

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PW-3 has also stated that he does not know about the quarrel that is said to have taken place between the accused and the deceased. She also does not know the cause of murder. That she has not gone

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inside the house. Further accused has not narrated anything in her presence regarding the incident. Whereas PW-2 claims that she was told by the accused as to how she committed the murder of the deceased. According to her, her statement itself was not recorded by the police. In fact, she heard from PW-1 that, accused has committed the murder. She admits that the accused did not directly tell anything regarding the commission of the murder. In fact PW-3 has not fully supported the prosecution case. On material point, her evidence does not corroborate the other evidence on record.

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PW-4 is the Police Constable who has deposed that he did not know that a quarrel took place between the accused and deceased. He does not know that accused was inside the house at that time. The accused has not told anything in his presence. Police did not record his statement. Therefore, he was treated as hostile. The evidence stated by him neither helps the

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prosecution case nor corroborate the evidence of PWs-1 to 3.

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PW-5 has not supported the case of the prosecution. His evidence is similar to that of PW-4. In the cross examination, he admitted that accused was coming out of her bedroom and has not stated before PW-1 that a quarrel took place between them and she has committed the act. He has stated that within five minutes, he went back. Police did not enquire with him. He did not hear accused telling that she has committed the murder of the deceased and the said fact was only told to him on the day of giving evidence before the Court by PW-1. He does not know the family affairs of others. He also admitted that accused did not tell him about any quarrel that took place between herself and the deceased.

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PW-6 is the elder sister of PW-1. She claims to have advised both the accused and the deceased regarding quarrels that were taking place regarding

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property. She does not say anything about the change of nomination in the service records of PW1. She is not a nearby resident. Police have not recorded her statement nor sought any information from her. She has not stated before the Investigating Officer that she was advising the deceased to live cordially. Therefore, the evidence of PW-6 does not help the case of the prosecution.

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PW-7 is the Police Constable who had accompanied the dead body to the hospital. The dead body was taken to hospital by 11.00 a.m. He did not know to whom the dead body was handed over back.

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PW-8 is the father of the deceased. He claims

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to have advised the accused and deceased to live harmoniously. He is residing at a distance of 40 to 60 km from the place of incident. Therefore, the evidence is not of much consequence. He is not an eye-witness and more over a interested witness.

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PW-9 is the mother of the deceased. Even she also does not disclose the cause of the quarrel between the accused and the deceased. She admits that she has not stated to anybody that deceased used to tell that the accused was quarreling with her. According to her, accused was asking PW-1 to keep the deceased separately. Even that is not the cause for the incident. Therefore, the said evidence does not in any way help the prosecution.

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PW-10 is the brother of the deceased. According to him, after sometime of marriage, accused, deceased and the complainant were living cordially. According to him, the accused had committed the murder thinking that PW-1 would give his service benefits to the deceased. The said fact is not at all supported or corroborated by any evidence on record.

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These are all interested witnesses. Moreover, they were not residing with the accused and deceased. Therefore, their evidence cannot be taken to

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hold that a serious incident of murder has taken place and act was committed by the accused herself and are hearsay witnesses. They have not stated that they have actually witnessed any quarrel between the deceased and the accused.

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According to PW-11, who is also an employee of KSRP claims to have attested the mahazar. According to him, the accused produced two iron rods, one shaving blade and one gown. All the articles were bloodstained. He deposed that accused has produced all the articles kept near the latrine of the house. If at all the accused wanted to hide then she would have taken them to a secluded place to hide them. It is only the inference on which MO’s were discovered on the voluntary statement of the accused alone would be admissible. Therefore, this seizure of the MOs alleged to have been recovered on the voluntary statement of the accused does not inspire any confidence in the minds of the Court. It is only a ground to strengthen the case of the prosecution. He is attestor to Ex.P-12. The witness

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was treated as hostile and cross examined. Then in the cross-examination, PW11 further affirmed that there were two iron rods but police have seized only one rod. The woman constable has not gone inside the toilet to recover MOs. Moreover, the articles were said to have been kept at a wall of the latrine. Further according to PW-11 both iron rods were solid iron rods and were not hollow. Both the iron rods were bloodstained.

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PW-12 is the witness to the inquest panchanama. He identified photograph of the dead body at Ex.P-10 that does not in any way prove the guilt of the accused beyond any reasonable doubt.

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PW-13 is the relative of PW-1. He do not know how the deceased died. He did not know that the accused was quarreling with the deceased. It is stated that on the date of incident, accused had not given any missed call and he has not telephoned her nor the accused has told anything to her. He was treated as hostile.

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PW-14 was residing with the accused and the deceased. He is a relative of the complainant as well as the accused and the deceased. He has not fully supported the case of the prosecution. In the crossexamination, he admitted the suggestions made by the learned Prosecutor. His evidence is not helpful the prosecution case.

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PW-15 is the doctor who has conducted postmortem examination of the dead body. No doubt, his evidence proved the death of the deceased was a homicidal. According to him, he examined the dead body at about 4:05 pm. to 5:00 p.m. The incident is said to have taken place in between 6 to 8 a.m. He has also collected the articles to be examined by the FSL. He has stated that MOs 1 and 2 could have caused injuries that were there on the body of the deceased. His further opinion is at Ex.P-22. The injury No.1 found on the dead body was sufficient to cause the death of the deceased.

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43. As per postmortem report, the external

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injuries are :

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Horizontal cut throat injury measuring 6.5X3 Cms. X neck structures deep is seen on the right side of the neck situated above the thyroid cartilage extending from mid line to right side. Margins were sharp and clean cut.

¶152

Split laceration measuring 6x3 CMs into bone deep was seen over right parietal eminence.

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Split laceration measuring 5x 3 Cms into bone deep was seen over right parietal area of scalp .5 CMs below injury No.2.

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Split laceration measuring 5x 1 CMs into bone deep was seen on right side of head .5 Cms. Below injury No.3.

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Split lacertation measuring 4x 1 Cms into bone deep seen vertically placed over right parietal area of scalp 3 CMs above the ear lobe.

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Abrasion measuring .5x.5 CMs was seen over outer aspect of right wrist and was bright red in colour.

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According to him, injury No.6 could have caused when the deceased either by fallen on the ground or coming into contact with the rod. He has also admitted that injury No.2 measuring 6 x 3 cms into bone deep could be caused when the deceased was sleeping.

¶159

He has also opined that the injury can be caused when both the assailant and the victim are at the same level. Possibility of defence wound is also not ruled out. Injury No.1 can be caused by right handed person by standing behind the victim. If the assailant and the victim were standing facing each other, it is unlikely to sustain the injury like injury No.1. External injuries No.2, 3, 4 and 5 described in postmortem report could be caused by the type of article No.2.

¶160

The Doctor has observed in the postmortem report that all the injuries are ante mortem in nature and death of the deceased was due to shock and hemorrhage as a result of cut throat injury. The dead

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body lying on the bed on its back prior to 6 hours conducting the postmortem.

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Doctor has also not noticed any bloodstains on MO2. He had not packed and sealed MO.7 to 9 before handing it over to the Police because the Police wanted to take them urgently. He had handed over the dead body to the Police in sleeping condition. That strengthens the suspicion raised in the minds of the Court that there was possibility of deceased being assaulted with the shaving blade while she was sleeping or by standing from her behind.

¶164

PW16 is the expert of Central Laboratory, BIMS, Belagavi. He had examined the blood sample of the deceased and he had issued certificate as per Ex.P25 stating that the said blood is human blood of ‘A Positive’. In his cross examination he has not denied the same.

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PW17 is the Head Constable, who has carried the FIR and complaint as per Ex.P1 and P2. Report given by him is Ex.P26. They cannot be disputed.

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PW18 is the Tahasildar and Taluka Executive Magistrate, Belagavi who had conducted inquest panchanama of the dead body as per Ex.P14. He had recorded the statements of relatives of the deceased. Suggestions are made and they are denied.

¶168

PW19 is the Scientific Officer, who had examined the bloodstained articles as per MOs.1 to 10. He found one bed cloth piece, cement pieces, sample cement pieces, one blade, iron rod etc., some articles were having bloodstains, they were of human origin. The Scientific Officer gave report as per Ex.P27. The articles examined by him at MO.1 to 10.

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PW20 is the Circle Inspector, Belagavi, had drawn the scene of offence panchanama in presence of

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two witnesses as per Ex.P12. He has prepared the rough sketch of the scene of offence as per Ex.P29. He identified the seizure panchanama which has already marked as Ex.P11. He seized one blade, one rod and gown. He arrested the accused and recorded her confession statement as per Ex.P30.

¶172

The Jurisdictional Tahasildar conducted the inquest mahazar and the statement of CW-17 and CWs19, 21. PW20 has collected the postmortem report and placed it on record.

¶173

The Investigating Officer has admitted the suggestion that he visited the scene of offence at 11.00 in the morning. Before he went to the spot, his staff already was there. At that time, dead body was lying at the spot. PW1 was not present. PW1 came there at the time of writing panchanama. The Investigation Officer was there till 4.00 P.M. in the house. He do not remember how many members gathered there and also do not remember at what time, he shifted the dead

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body. He has not seized two rods. He denies that he has not visited the scene of offence and also denied even though he had come to know that PW1 himself had committed the offence and falsely implicated the accused in the case. If the accused had admitted her guilt, then he ought to have recorded the confession statement of the accused before the Magistrate. No such attempt has been made. Therefore, the evidence does not inspire confidence in the minds of the court.

¶176

PW21 is the CPI, who has conducted further investigation. He has received the property extract of the quarters in which the accused and deceased were staying. He has collected the opinion of pathology and sent the opinion to the Jurisdictional Magistrate Court.

¶177

PW22 is the further investigating Officer, who was working as Police Inspector in Belagavi Rural Police Station. He had registered the complaint filed by PW1 as per Ex.P1 and sent the FIR as per Ex.P2. Thereafter, the investigation was handed over to CPI. In

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his cross examination, he has stated that the complainant came along with other person, he did not know the name of that person. As per the say of the complainant, the Policemen prepared the complaint in the computer. Nowhere, in the evidence it has come that any point of time any Investigating Officer examining the complainant suspected him to be involved in the crime is not at all forthcoming. It is very serious lapse in the case on hand. Because, looking at the circumstances inference that can be drawn, the motive for the incident, the manner of the incident, are all suggestive of PW1 himself being involved in this case. On the contrary, the investigation completely believed in this case and proceeded investigation on the forum of evidence i.e., extra judicial confession.

¶180

It is not the case of prosecution that material objects MOs 1 to 3 were brought by the accused as preparation for commission of offence. The rod like MO2 was in the house is not forthcoming. It is not

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disclosed that complainant had two wheeler or four wheeler. Why the Investigating Officer immediately did not register the crime and did not make any attempt to take finger prints experts to the house and why dog squad was not summoned to the spot ?

¶183

There is no material evidence on record to show that the gown which was blood strained belongings to be accused alone. There is also evidence to show that the deceased was also using a gown. If the gown is blood stained then the accused should have assaulted the deceased by standing. Even the face of the deceased would have been blood stained. Therefore, in totality on reappreciation of the evidence on record, we find that the case of the prosecution is free from doubt. The investigation done appears to be a stage managed and not a fair investigation.

¶184

In this case, two possibilities and doubts are very much forthcoming on the facts of the case. The manner in which the complainant claims absence from

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the house when the incident took place. The way in which the complainant has given timings in his complaint and evidence ratifies a serious doubt in the minds of the court, that timing is stated to see that the presence of his relative and himself is not suspected by Police. In a ruing AIR 2019 SCC 688 it is held that,

¶187

“Penal Code (45 of 1860), Ss.302, 120-B – Evidence Act ( 1 of 1872), Ss.3, 27, 24 – Murder and conspiracy –Circumstantial evidence – Accused allegedly entered into conspiracy with other and killed deceased – Dead body recovered from dry well – Absence of additional cogent circumstances on record to rely extra judicial confessionNo explanation as to how torn leaf came in possession of accused as said paper was torn from Bahi recovered from co-accused – Circumstances in totality raising suspicion in completing chain of commission of crime beyond doubt, being committed by accused persons – Suspicion, howsoever grave, cannot substitute proof – Accused persons entitled to benefit of doubt.

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It is true that an extra judicial confession is used against its maker but as a matter of caustion, advisable for the Court to look for a corroboration with the other evidence on record. In Gopal Sah v. State of Bihar 2008(17) SCC 128, this court while dealing with extra judicial confession held that extra judicial confession is, on the face of it, a weak evidence and the Court is reluctant, in the absence of a chain of cogent circumstances, to rely on it, for the purpose of recording a conviction. In the instant case, it may be noticed that there are no additional cogent circumstances on record to rely on it. At the same time, Shambhu Singh (PW-3), while recording his statement under Section 164 CrPC, has not made such statement of extra judicial confession(Exh.D5) made by accused Babu Lal. In addition, there are no other circumstances on record to support it.”

¶190

It appears that the prosecution has tried to prove its case firstly on alleged extra-judicial confession made by the accused before her husband and also to the other witnesses. Then it has also tried to make out

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its case based on the theory of last scene. It is held by catena of decisions of the Hon’ble Apex Court as well as the Hon’ble High Court of Karnataka that extra-judicial confession is very weak form of confession. It cannot be sole basis for conviction. It should be corroborated by material evidence on record.

¶193

In this case, we find that the Investigating Officer has not made any attempt to get the confession statement of the accused recorded by Judicial Magistrate instead he has blindly relied on whatever the complainant has stated and proceeded with the investigation. He should have been made a fair investigation and should have tried to find out the real truth as already discussed above. From the facts and circumstances and the material available on record, we find that there is an element of implication of this accused by the complainant. Because it is he who alone is benefited by the death of the deceased. That is why we find that he has tried to hit two birds with one stone.

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Now the first wife is in jail, second wife is sent to heaven and he has got third one. This conduct of the complainant raises a very serious doubt and it is highly unsafe to rely on his evidence and to hold that the accused is guilty of offence of murder. If his evidence is disbelieved then there is no other evidence on record to prove the guilt of the accused because the alleged neibouring witnesses who were examined having seen the place of incident and hearing the accused about the incident etc. have not supported the case of the prosecution. If we analyze the case on the last seen theory to convict the accused on circumstantial evidence then the motive has to be proved. In this case, the motive stated by the complainant and in the prosecution papers and one stated in the evidence there is material contradiction. Further the accused is said to have assaulted the deceased for some other cause which is not stated in the complaint i.e., quarrel over household work. Moreover, that case is made out by the prosecution. Based on the interested testimony of

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PW-1. We find that the incident might not have happened in the manner as stated by the complainant. If the deceased was not hit while she was conscious, then there would have been resistance. It would not have been easy to slit the throat of a person who is in conscious state and that too with a shaving blade, one usually used by men. Therefore, she must have been asleep at the time of incident, when the deceased was sleeping or when she had lost conscious on account of assault by the rod her throat must have been slit. Moreover both the MOs belong to the complainant only. It is nobody’s case that those objects were secured by accused clandestinely and used for the commission of offence.

¶198

The learned Sessions Judge has not appreciated the evidence on record as stated in the above manner. He has blindly believed the case of the prosecution. The learned Sessions Judge has not even drawn any inference before appreciation of evidence,

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and of facts on record. The learned Sessions Judge referring the evidence of PW1 states that even though the complainant has married second wife he had love and affection for the accused also. He has married one more person after the death of the second wife. Hence, we find that the judgment of the trial Court is perverse, capricious against the facts and circumstances and evidence on record and against the law. We find that the prosecution had failed to prove the guilt of the accused beyond any reasonable doubt. Therefore, the point No.1 answered in the negative and point No.2 answered in the affirmative.

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63. The appeal filed by the accused is allowed .

¶202

The judgment passed by the Principal Sessions Judge, Belagavi in Sessions Case No.11/2015, dated 24.04.2017 sentencing the accused to undergo imprisonment for life and sentence of fine for the offence committed by the accused punishable under Section 302 of IPC is hereby set aside .

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The accused shall be released on executing personal bond of Rs.25,000/- with one surety for the likesum. The bail bond shall in force till expiry of the appeal period or for six months whichever is later.

¶205

Send back the records along with copy of this order forthwith to the trial Court for further needful action. Send the copy of the judgment to the concerned Jail Superintendent where the accused is lodged.

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Sd/JUDGE

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Sd/JUDGE

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MNS/NAA

Smt. Manjula Malleshi Navi v. the State of Karnataka

Case brief

What is this about?

What did the court decide?

Smt. Manjula Malleshi Navi v. the State of Karnataka

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Cases cited

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