Allowed

Neelappa S/O. Dyamappa Khandekar v. the State of Karnataka

Karnataka HC7 Oct 2020CRL.A/2557/2012

Case brief

AI extract

What is this about?

The Hon'ble High Court allowed the criminal appeal against conviction and sentence under Section 304 Part-II IPC. The court set aside the trial court's judgment, holding that the prosecution failed to prove guilt beyond reasonable doubt due to hostile material witnesses and lack of conclusive circumstantial evidence, thereby acquitting the appellant.

What did the court decide?

Judgment and order of conviction under Section 304 Part-II IPC set aside; accused acquitted; bail bond cancelled; fine refunded if deposited.

Neelappa S/O. Dyamappa Khandekar Vs the State… — Murder and Culpable Homicide | Karnataka HC (2020)

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IN THE HIGH COURT OF KARNATAKA DHARWAD BENCH

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DATED THIS THE 07^th DAY OF OCTOBER 2020

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BEFORE

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THE HON’BLE MR. JUSTICE MOHAMMAD NAWAZ

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CRL.A. NO.2557 OF 2012

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BETWEEN:

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SHRI. NEELAPPA S/O DYAMAPPA KHANDEKAR AGE:25 YEARS, OCC:AGRICULTURE, R/O KUMBALAVATHI, TQ:KUSHTAGI, DIST:KOPPAL.

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…APPELLANT (BY SRI. S.S. YADRAMI, ADVOCATE)

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AND:

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THE STATE OF KARNATAKA BY HANAMASAGAR POLICE REP. BY THE STATE PUBLIC PROSECUTOR, HIGH COURT OF KARNATAKA, CIRCUIT BENCH, DHARWAD.

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…RESPONDENT

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(BY SMT. SEEMA SHIVA NAIK, HCGP)

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THIS APPEAL IS FILED UNDER SECTION 374(2) OF CR.P.C. SEEKING TO SET-ASIDE THE JUDGMENT AND ORDER OF CONVICTION AND SENTENCE DATED 29.12.2011 PASSED BY THE SESSIONS JUDGE, FAST TRACK COURT-I, KOPPAL IN SC NO.54/2011 AND ACQUIT THE APPELLANT.

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THIS APPEAL COMING ON FOR FINAL HEARING THIS DAY, THE COURT MADE THE FOLLOWING:

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JUDGMENT

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This appeal is preferred by the accused challenging his conviction and sentence passed in SC No.54/2011 on the file of the Fast Track Court-I, Koppal (for short, ‘trial Court’), whereby he was convicted for the offence punishable under Section 304-II of IPC.

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I have heard the learned counsel for the appellant and the learned HCGP for the respondent-State.

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Brief facts:- the case of the prosecution is that, one Sharanappa was having illicit relationship with Smt. Neelavva, wife of the accused. On 16.6.2011 at about 2.30 p.m., when the accused went to his house, he saw both of them in a compromising position. Enraged by the same, the accused assaulted Sharanappa with a wooden club and strangulated both Sharanappa and his wife Neelavva with a rope and committed their murder.

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Charges were framed against the accused for the offence punishable under Section 302 of IPC, to which the accused pleaded not guilty and claimed to be tried.

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In order to prove the case, the prosecution got

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examined PW1 to 24 and got marked Exs.P1 to P24 and MOs1 to 11. The defence of the accused was one of total denial.

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The trial Court by judgment and order dated 29.12.2011 acquitted the accused of the charge under Section 302 of IPC and convicted him for the offence punishable under Section 304-II of IPC. He was sentenced to undergo rigorous imprisonment for a period of eight years and to pay a fine of Rs.5,000/- and in default of payment of fine, to undergo simple imprisonment for a period of three months.

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Assailing the aforesaid judgment of conviction

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and order of sentence passed by the trial Court, the learned counsel appearing for the appellant/accused has contended that there is no incriminating evidence against the accused. None of the material witnesses have supported the case of prosecution. The prosecution has not established beyond all reasonable doubt that it is the accused who has committed the offence. The trial Court

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has erroneously convicted the accused on the basis of the evidence of official witnesses, namely police officials. Even otherwise, the said evidence does not implicate the accused as perpetrator of the crime. He submits that the trial Court has committed a serious error on the basis of imagination, surmises and hypothesis, which formed the basis for conviction of the accused. The entire approach of the trial Court in convicting and sentencing the appellantaccused is illegal. Therefore, he seeks to allow the appeal by setting aside the impugned judgment passed by the trial Court.

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Per contra, the learned HCGP has contended that the accused was suspecting the fidelity of his wife deceased Neelavva and in this connection, he used to quarrel with her frequently. This is spoken to by the witnesses. On 16.6.2011, when he went to his house at about 2.30 p.m., he saw his wife with her paramour. Enraged by the same, he assaulted deceased Sharanappa with MO8-wooden club and strangulated both the deceased using MO1-rope and committed their murder. She submits

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that the accused himself has made extra judicial confession before PW1 and thereafter, both of them have gone to the police station and PW1 has lodged the complaint. The police have immediately gone to the spot and conducted mahazars and they seized the wooden club (MO8) and rope (MO1). She further submits that the trial Court after appreciating the entire facts and material evidence on record, has convicted the accused for an offence punishable under Section 304-II of IPC, which does not call for interference. Accordingly, she seeks to dismiss the appeal.

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The case of the prosecution is that the accused was suspecting the fidelity of his wife, Smt. Neelavva. On 16.6.2011 at about 2.30 p.m., when he went to his house, he saw his wife in a compromising position with per paramour namely Sharanappa. Seeing the same, he picked a wooden club and with an intention to commit the murder of said Sharanappa, hit him on his head and thereafter, strangulated both Sharanappa as well his wife

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Neelavva with the help of a rope and committed their murder.

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Homicidal death of Neelavva and Sharnappa is not disputed by the defence. According to the prosecution, after committing the murder, the accused went to PW1 and confessed before him that he has committed the murder of his wife and Sharanappa. PW1 took him to the police station and lodged a complaint as per Ex.P1. PW18PSI of Hanumagiri police station, registered a case against the accused in Crime No.33/2011 for the offence punishable under Section 302 of IPC and transmitted the FIR-Ex.P20 to the jurisdictional Court. Thereafter, PW18 handed over the investigation to the CPI-PW23, who took over the investigation, visited the spot and conducted the inquest mahazars, spot mahazars and seized the articles. Thereafter, the investigation was handed over to PW24. After completion of the investigation, PW24 filed the charge sheet against the accused for the offence under Section 302 of IPC.

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In Ex.P1-complaint, it is stated that on

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16.6.2011 at about 3.30 p.m., when the first informant

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was standing near the bus stand along with one Sharanappa Kondaji (PW2), the accused came running and confessed before him that at about 2.30 p.m., when he went to his house, he saw his wife along with Sharanappa and therefore, he committed their murder. It is stated that the accused requested the complainant to inform the matter to the police, as he was scared to go to the police station. Both PW1 and PW2 went along with the accused to his house and saw the dead bodies of Neelavva and Sharanappa in the house. Thereafter, PW1 took the accused to the police station and lodged the complaint.

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The first informant, who is examined as PW1, has totally turned hostile. In his evidence, PW1 has stated that when he was standing along with CW2(PW2) near a hotel at Kumbalavati bus stand, the PSI telephoned him and asked him to come. Accordingly, he along with CW2 went to the house of accused and saw the dead bodies of Sharanappa and Neelavva inside the house. PW1 has not

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stated that the accused has confessed before him having committed the murder of his wife and Sharanappa and that he took him to his house and showed the dead bodies. PW1 has not corroborated the averments made in the complaint.

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CW2 is examined as PW2. He has also not supported the case of prosecution. He has stated that when he was standing along with PW1 near the bus stand at Kumbalavati village, at about 3.30 p.m., the police called PW1 over phone, thereafter, they went to the house of the accused and saw the dead bodies of Sharanappa and Neelavva.

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The prosecution has treated PW1 to 12, 14 and 20 as hostile witnesses. Nothing is elicited from their cross-examination which incriminate the accused. According to the prosecution, the accused was picking up quarrel with his wife suspecting her fidelity. All the witnesses who are supposed to speak about the motive have turned hostile and they have not supported the case of prosecution.

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PW3 to 7, 11, 12, 14, 15 and 20 have denied

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that the accused was suspecting the fidelity of his wife and that he was picking up quarrel with his wife. PWs. 13 & 14 are the parents of deceased Neelavva and PWs.20 & 21 are the parents of deceased Sharanappa. PWs.14 and 20 have totally turned hostile. PW.13 has stated that the accused and his deceased daughter were living cordially and accused was not giving any trouble to her daughter suspecting her fidelity, but once the elders have advised them with regard to some petty quarrel.

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PW20 and PW21 have stated that the accused committed the murder of their daughter suspecting her fidelity. However, both the witnesses are hearsay witnesses. They have stated that, from others they came to know about the murder. PW20 has been treated hostile. He has denied having given any statement to the police as per Ex.P21. PW21 has stated in her crossexamination that she speculated that the accused has committed the offence. She has admitted that the police have not recorded her statement in her presence.

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Though PW11, 13 to 15 have stated that the

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accused has committed the offence, all these witnesses are hearsay witnesses. They have stated that they came to know about the incident from others. They have been treated hostile and their evidence is not helpful to the prosecution.

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It is the specific case of the prosecution that the accused himself confessed to PW1 having committed the murder of Neelavva and Sharanappa. According to the prosecution, PW.1 and PW.2 went to the house of the accused and after seeing the dead bodies, PW1 took the accused to the police station and lodged the complaint. As already discussed, both PWs.1 and 2 have turned hostile to the prosecution.

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According to PW.18, on 16.06.2011 at about 5.15 p.m., PW-1 came to the police station along with the accused and lodged a complaint and after registering the case and transmitting the FIR to the Court, he handed-

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over the investigation to PW.23. PW.23 took over investigation on 16.06.2011 itself and he went to the spot

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and conducted inquest mahazars as per Exs.P8 and P9 and spot mahazar as per Ex.P10. From the spot of incident, he seized a wooden club (MO8) and a rope (M.O.1).

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Interestingly, PW23 has not stated that when he went to spot and conducted mahazar, the accused was present. On the other hand, he has stated that he arrested the accused at 10.45 p.m., and thereafter, recorded his voluntary statement. In the crossexamination, it is elicited from PW.23 that he received a phone call between 5 to 5.30 p.m., about the incident but he was not informed as to who committed the murder. It is further elicited from him that, he straightway went to the spot and when he reached the spot, PSI and other staff were present, but the accused was not present there. From the evidence of PW.23, it is difficult to accept that, the accused along with PW1 and other police officials went to the spot and that he was also present at the spot while conducting the spot and inquest mahazars.

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Admittedly, there are no eye-witnesses to the incident in question. Case is based on circumstantial

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evidence. Dead bodies were no doubt found in the house of the accused. The same is not denied by the defence. However, the prosecution has to establish that it is the accused and accused alone who has committed the murder of his wife and Sharanappa.

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None of the material witnesses have supported the case of prosecution. Motive for the accused to commit the offence is not conclusively established. None of the witnesses have seen the accused near the scene of occurrence or in his house when the incident took place. The extra judicial confession made by the accused before PW.1 is also not proved. The seizure of M.O.1 and 8 are not at the instance of the accused. The investigating officer has seized those material objects from the spot.

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As already observed, there is no direct evidence regarding the involvement of the accused in the crime. The case of the prosecution is on the basis of circumstantial evidence. It is well settled that the circumstances relied upon by the prosecution should be of a conclusive nature and tendency. Suspicion however

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grave will not take the place of proof. The circumstances from which the conclusion of the guilt is to be drawn should be fully established.

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In the instant case, the prosecution has failed to prove the guilt of the accused beyond reasonable doubt.

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Even the trial court has observed that the material witnesses have not supported the prosecution case. The trial Court has recorded conviction on assumption and presumption. The reasons assigned by the trial Court for convicting the accused are not accordance with law.

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For the foregoing reasons, the impugned judgment and order passed by the trial Court is not sustainable in law and it is liable to be set aside. Hence, the following:

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ORDER

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a) Appeal is allowed.

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b) The judgment and order dated 29/30.12.2011 passed in S.C.No.54/2011

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on the file of the Fast Track Court-I, Koppal

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thereby convicting the accused for the offence under Section 304 Part-II of IPC is hereby set aside. Accused is acquitted.

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c) The bail bond of the accused shall stand cancelled.

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d) If the fine amount has been deposited, the

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same shall be refunded to the accused.

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Sd/JUDGE

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JTR/LAD

Neelappa S/O. Dyamappa Khandekar v. the State of Karnataka

Case brief

What is this about?

What did the court decide?

Neelappa S/O. Dyamappa Khandekar v. the State of Karnataka

Case brief

What is this about?

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