A husband's convictions for cruelty and murdering his wife by strangulation were upheld. The court rejected the defence of suicide by hanging, found the offences proved beyond reasonable doubt, and declined to interfere with the sentences. The appeal was dismissed.
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IN THE HIGH COURT OF KARNATAKA DHARWAD BENCH
DATED THIS THE 17TH DAY OF DECEMBER, 2021
PRESENT
THE HON’BLE MR.JUSTICE SURAJ GOVINDARAJ
AND
THE HON’BLE MS.JUSTICE J.M. KHAZI
CRIMINAL APPEAL NO.100316/2018
BETWEEN
H.GOVINDA NAIK, S/O.H.DENYA NAIK, AGE: 31 YEARS, OCC: HOTEL BUSINESS, R/O: RAYARAL THANDA, TQ: H.B.HALLI, DIST: BALLARI.
…APPELLANT
(BY SRI. ANWAR BASHA B, ADVOCATE)
AND
THE STATE OF KARNATKA, REPRESENTED BY SPP HIGH COURT DHARWAD THROUGH, CPI, SANDUR POLICE STATION, BALLARI DISTRICT, DHARWAD.
…RESPONDENT
(BY SRI.V.M.BANAKAR, ADDL. SPP)
THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374(2) OF CR.P.C., PRAYING TO SET ASIDE THE JUDGMENT AND ORDER OF CONVICTION DATED 03.04.2010 AND SENTENCE DATED 05.04.2010 PASSED IN S.C. NO.37/2009 BY THE FAST TRACK COURT, BALLARI AND TO ACQUIT THE APPELLANT FOR THE OFFENCES PUNISHABLE UNDER SECTIONS 302 AND 498-A OF IPC
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THIS CRIMINAL APPEAL HAVING BEEN HEARD AND RESERVED FOR JUDGMENT ON 14.12.2021, COMING ON FOR PRONOUNCEMENT OF JUDGMENT THIS DAY, J.M.KHAZI J., DELIVERED THE FOLLOWING:
JUDGMENT
The appellant has filed this appeal under Section 374(2) of Cr.P.C. challenging his conviction dated 03.04.2010 and sentence dated 05.04.2010 in S.C. No.37/2009 for the offences punishable under Sections 498A and 302 of IPC.
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years prior to the date of incident and they were having a son aged 15 months. Accused was running a Tea hotel on the cross road of H.R.G. Mines and living with his wife i.e., deceased and son. It is alleged that accused was addicted to drinking and frequently used to quarrel with the deceased as she was not paying him money for his addiction. Even though a number of panchayats were held and accused was advised not to do so, he continued harassing and ill-treating the deceased. Ultimately, on 05.08.2008 accused committed the murder of the deceased by strangulating her with the help of a plastic rope (nylon rope) and left the house taking his son and thereby he committed the offences punishable under Sections 498A and 302 of IPC.
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prosecution side. In response to question No.6, he has stated that “on the date of incident his sister-in-law Nagibai was present in the house and a quarrel took place between her and the deceased; he took his son to the hospital and by the time he returned, he found his wife having committed suicide by hanging and Nagibai was not present in the house”.
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evidences and as such, it is liable to be set aside. He would further submit that the Trial Court has not appreciated the fact that complainant being the father of the deceased has given a false statement. He is not an eye witness and his evidence is hear say. The allegations and circumstances made out against the appellant suffer from serious suspicion and doubt.
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PWs.1 and 2 have deposed that after some time, accused wanted to start a hotel at the H.R.G. Cross and PW.1 arranged Rs.15,000/- and with the said money, the accused started a hotel in the Thatched roofed hut and in the same place, both accused and deceased were living with their son. Infact a suggestion is made to PW.2 that it was PW.1 who arranged Rs.15,000/- for the accused to start the said hotel.
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and 12. PW.8 Takara Naik is also an acquaintance of the complainant and his family members. PW.14 Lakshman Naik is a friend of the accused and he is also an acquaintance of complainant and his family members. The evidence of these witnesses proves that accused was frequently quarreling with the deceased and in this regard panchayats were held and accused was advised. The evidence of PWs.1 to 5, 7 and 8 prove the fact that even during the fair (eÁvÉæ) when deceased along with accused visited the house of complainant, he quarreled with her and snatched her Mangal Sutra (ªÀÄAUÀ¼À¸ÀÆvÀæ) and at that time also a panchayat was held and he was advised not to do so.
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not to do so. PW.14 Lakshman Naik, who is a friend of the accused has deposed that both of them studied at Hampa town. He has also spoken to about the frequent quarrel by accused with his wife. Even though PWs.1 to 5 and 14 are cross-examined at length, nothing worthy is elicited to disbelieve their testimony. Admittedly all the material witnesses belong to the same community and absolutely there is no ill-will between the accused and any of the witnesses and all of them are common acquaintance with the deceased as well as the accused. Such being the case, they have no ill-will or grudge against the accused to speak against him. Through the testimony of these witnesses, the prosecution has proved that on account of his drinking habit, accused was frequently quarrelling with his wife, as she was not allowing him to squander the money they earned by running the hotel and that was the reason for him to assault her frequently. Their testimony also prove the fact of accused ill-treating and harassing her within the knowledge of her family members as well as his friend circle and in this regard, number of panchayats were held and accused was advised.
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enquired him about the said information and when he confirmed the said information, he along with 10-12 persons went to H.R.G. Cross at around 4.30 pm and saw the dead body of his daughter. Infact this Thotyanaik is examined as PW.6, wherein in addition to deposing that every day accused used to quarrel with the deceased under the influence of alcohol and he had advised him not to do so, he has deposed that on the date of incident, at about 11-00 am, he saw the accused going out of the house along with his son and at that time, he thought that he may be going for making purchase. He has also deposed that he saw some people gathered at the Hotel of the accused and therefore he also went and saw the dead body of the deceased with ligature mark on her neck and he also saw a plastic rope fallen near her. He has identified the MO.1 as the said rope. He has also deposed that the parents of deceased called him over telephone and enquired about their daughter and at that time he confirmed the fact of death of the deceased and that the accused had gone out with the child.
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evidence of PW.6 which is to the effect that after receiving the information of death of the deceased, they cross verified it with PW.6 through PW.14.
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18 has also stated that when he enquired accused as to how he committed the murder, the accused snapped him saying that it is none of his business and therefore he did not probe further. This important piece of evidence brought on record through the evidence of PW.18 is not disputed by the accused.
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to be examined in the light of medical evidence regarding the cause of death of the deceased.
i.Female body aged 20 years moderately built and nourished. Body measures 5 feet 3 inches in length. Rigor mortis present, eyes are congested and prominent, pupils are dilated not reacting to light, tongue is prominently seen, scalp hair are black in colour measures 35 c.m., from occipital area. There is no other injuries on the body other than ligature mark.
ii.Ligature mark: Ligature mark measuring about 11 inches in length and 2 c.m., broad encircling the neck. Above the thyroid cartilage, sparing the posterior part of the neck. Above cervical vertebrae.
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iii.Ligature mark is more prominent in the front and on both sides of the neck equally and gradually tapern on to back. On dissection of the ligature mark small echymosis present on superficial tarcia hyroid cartilage and hyroid bone are not injured.
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caused by MO.1. In this regard he has specifically deposed that the ligature material MO.1 was in a sealed cover and the seal was in tact and after opening the same he examined and found that the ligature mark could be made with the same and the death of the deceased could be possible if strangulated with MO.1. He has given opinion as per Ex.P-9. After examining the MO.1 he has sealed and sent it back to the Police.
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is situated. He has further deposed that in case of strangulation using a rope the ligature mark may be over or under the Thyroid Cartilage, whereas in case of hanging it will be always over the Thyroid Cartilage. He has also deposed that in case of strangulation when the portion over the ligature mark is opened we would find echymosis (bleeding in subcutaneous tissues), whereas in case of death by hanging, the ligature mark portion will be hard. He has also deposed that in case of strangulation, usually the Tongue would be protruding, whereas in case of death by hanging it will not be the case. In case of strangulation the contusion of eye and brain portion will be dominant whereas in case of death by hanging it may not be so prominent. He has also deposed that in case of strangulation, there may be fracture of Thyroid Cartilage bone whereas in case of death by hanging this will not be the case. He has also deposed that in case of strangulation if the deceased tried to escape and resist, there may be some other injuries on the person, but it may not be the case in all such strangulation. When questioned that if a person is strangulated with the help of a nylon rope such
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as MO.1, the ligature mark would surround the entire neck, he has replied that in case of women, except the partition where the Braid (dqÉ) would come in the back side of the neck the remaining area would be covered by the ligature mark. When questioned that in case of death by strangulation, there would be injuries on account of resistance, the witness has deposed that this would depend on the place where the incident has taken place i.e., whether it is a rough surface. When suggested that the injuries sustained by the deceased was on account of hanging, PW.23 has denied the said suggestion. The evidence of PW.23 makes it amply clear that it is not a case of death by hanging, but on the other hand it is a case of death by strangulation by using MO.1 rope. Inspite of this witness being cross examined at length the defence has failed to demonstrate that it is a case of death by hanging.
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fact that deceased was 5.4 inches in height, the possibility of she having committed suicide inside the hut, that too by using MO.1 rope which is measuring around 2 ft., 6 inches cannot be accepted. Admittedly the ligature material is 2 ft., 6 inches. With the said ligature material it is not possible to commit suicide that too inside the hut. Moreover the medical evidence is contrary to the concept of death by hanging.
| Hanging | Strangulation | |||
|---|---|---|---|---|
| 1. | Most suicidal. | 1. | Mostly homicidal. | |
| 2. | Face – Usual pale and petechiae rare. |
2. | Face – Congested, and marked petechiae. |
livid with |
| 3. | Saliva – Dribbling out of mouth down on the chin and chest. |
3. | Saliva – No dribbling. |
such |
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| 4. | Neck – Stretched and elongated in fresh bodies. |
4. | Neck – Not so. |
|---|---|---|---|
| 5. | External signs of asphyxia usually not well marked. |
5. | External signs of asphyxia, very well marked (minimal if death due to vasovagal and carotid sinus effect). |
| 6. | Ligature mark- Oblique, non- continuous placed high up in the neck between the chin and the laryns, the base of the groove or furrow being hard, yellow and parchment-like. |
6. | Ligature mark- Horizontal or transverse continuous, round the neck, low down in the neck below the thyroid, the base of the groove or furrow being ofe and reddish. |
| 7. | 7Abrasions and ecchymoses round about the edges of the ligature mark, rare. |
7. | Abrasions and ecchymoses round about the edges of the ligature mark, common. |
| 8. | Subcutaneous tissues Under the mark-White, hard and glistening. |
8. | Subcutaneous tissues under the mark- Ecchymosed. |
| 9. | Injury to the muscles of neck-Rare. |
9. | Injury to the muscles of the neck–Common. |
| 10. | Carolid arleries, internal coats ruptured in |
10. | Carlid arleries, internal coats ordinarily ruptured. |
| 11. | Fracture of the Laynx and trachea-Very rare and may be found that too in judicial hanging. |
11. | Fracture of the laryns, trachea and hyoid bone. |
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| 12. | Fracture-dislocation of the cervical vertebrae- Common in judicial hanging. |
12. | Fracture-dislocation of the cervical vertebrae- Rare. |
|---|---|---|---|
| 13. | Scratches, abrasions and bruises on the face, neck and other parts of the body- Usually not present. |
13. | Scratches, abrasions fingernail marks and bruises on the face, neck and other pars of the body-Usually present. |
| 14. | No evidence of sexual assault. |
14. | No evidence of sexual assault. |
| 15. | Emphysematous bullae on surface of the lungs- Not present. |
15. | Emphysematous bullae on the surface of the lungs-May be present. |
Medical Officer at the Government Hospital Sandur, where the Postmortem was conducted. He has also deposed that along with PW.23 Dr. Thippeswamy, he has conducted the Postmortem examination. His evidence also corroborate with the testimony of PW.23. Thus through the testimony of PW.23 and 16, the prosecution has proved that the death of the deceased was on account of strangulation using the ligature material MO.1 and it is not a case of death by hanging. Therefore, the defence of the accused
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that deceased committed suicide by hanging herself falls to the ground.
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other hand on account of the humiliation meted out by Nagibai, the deceased has committed suicide.
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was due to strangulation using ligature material MO.1, this falsify the testimony of DW.1 that the deceased committed the suicide. On the other hand through his cross examination, the prosecution has proved that on the date of the incident, accused was very much present in the house. On this aspect, DW 1 has deposed that on the date of incident, while he and his wife were going to Sandur, the accused was present in his house and he was giving bath to his son and deceased was also in the house.
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witness has seen the accused and the deceased together and by 12-00 noon, when they returned, they found accused missing with his son and the dead body of the deceased was found in the kitchen fallen on the ground with the ligature material by her side and her neck bore the ligature mark.
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the neighbors came to the spot, Accused was not found. Similarly when the complainant and all the relatives of the deceased came to the spot and he was not found. He has gone along with the child. His conduct is contrary and inconsistent with the plea of innocence put forth by him. The evidence of the prosecution witnesses is reliable consistent and corroborates with each other. We find no reason to disbelieve their testimony. They have no ill will or grudge against the accused to falsely implicate him.
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ORDER
The appeal filed by the accused fails and accordingly it is dismissed.
Sd/JUDGE
Sd/JUDGE
PJ
3 issues framed by the court
Whether the prosecution proved cruelty and murder by the husband beyond reasonable doubt?
Whether the wife's death was homicidal strangulation or suicide by hanging?
Whether the sentences imposed warranted interference?
Colour shows how this judgement treated each authority
Javed Abdul Rajjaq Shaikh V/S. State of MaharashtraRelied on¶84
(2019) 10 SCC 778 · Who else cites this
2 provisions across 1 enactments
H.GOVINDA NAIK
THE STATE OF KARNATKA
SURAJ GOVINDARAJ
J.M. KHAZI
As recorded by the court registry
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