Dismissed

Sri. Mohankumar. N v. State of Karnataka

Karnataka HC21 Nov 2022CRL.A/473/2017

Case brief

AI extract

What is this about?

Conviction appeal by a husband sentenced to life for strangulating his wife and disposing of her body in a channel. The High Court re-appreciated the circumstantial evidence — motive of an illicit relationship, extra-judicial confession, last-seen evidence, autopsy and DNA findings — rejected the plea of alibi and upheld the conviction under Sections 302, 201 and 498A IPC.

What did the court decide?

Appeal dismissed as devoid of merits; the judgment of conviction and sentence dated 20.02.2017 in S.C.No.154/2015 confirmed, all sentences to run concurrently.

Sri. Mohankumar. N Vs State of Karnataka — Dowry and Cruelty | Karnataka HC (2022)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 21^ST DAY OF NOVEMBER, 2022

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PRESENT

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THE HON’BLE MR. JUSTICE B. VEERAPPA

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AND

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THE HON’BLE MRS. JUSTICE K.S. HEMALEKHA

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CRIMINAL APPEAL No.473/2017

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BETWEEN:

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SRI MOHANKUMAR .N S/O. LATE NAGENDRAPPA .K AGED ABOUT 33 YEARS, SDC IN DFO OFFICE, BHADRAVATHI, RESIDENT OF 2^ND CROSS, 1^ST MAIN, RANGANATHA SWAMY EXTENSION, SHIVAMOGGA – 577 205. ... APPELLANT

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(BY SRI R. KIRAN, ADVOCATE)

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AND:

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STATE OF KARNATAKA THROUGH THUNGANAGAR POLICE STATION, SHIVAMOGGA – 577 201, REPRESENTED BY STATE PUBLIC PROSECUTOR. HIGH COURT OF KARNATAKA, HIGH COURT BUILDING, BANGALORE – 560 001. ... RESPONDENT

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(BY SRI VIJAY KUMAR MAJAGE, ADDL. SPP)

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THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374(2) CR.P.C. PRAYING TO SET ASIDE THE ORDER OF CONVICTION AND SENTENCE DATED 20.02.2017 PASSED BY THE III ADDITIONAL SESSIONS JUDGE, SHIVAMOGGA IN S.C.NO.154/2015 - CONVICTING THE APPELLANT/ACCUSED FOR THE OFFENCE PUNISHABLE UNDER SECTIONS 498-A, 302, 201 R/W 34 OF IPC.

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THIS APPEAL COMING ON FOR FURTHER HEARING THIS DAY, B.VEERAPPA J., DELIVERED THE FOLLOWING:-

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J U D G M E N T

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The accused who is none other than the husband

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of the deceased-Anitha has filed the present appeal against the impugned judgment of conviction and order of sentence dated 20.02.2017 passed in S.C.No.154/2015 on the file of the III Additional Sessions Judge, Shivamogga convicting the accused to undergo imprisonment for life with fine of Rs.1,00,000/- and in default, to undergo further simple imprisonment for a period of one year for the offence punishable under the provisions of Section 302 of the Indian Penal Code (hereinafter referred to as ‘IPC’ for short), also to undergo imprisonment for a period of three years with fine of Rs.5,000/- and in default to undergo further simple imprisonment for a period of three months for the offence punishable under Section 201 of IPC and also to undergo

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imprisonment for a period of two years with fine of Rs.5,000/- and in default to undergo further simple imprisonment for a period of three months for the offence punishable under Section 498A of IPC.

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It is the case of the prosecution that the marriage between deceased G.B. Anitha and the appellant-Mohan Kumar .N was solemnized approximately three years nine months prior to the date of occurrence of the incident and accused No.1 was working in Forest Department as SDC at Bhadravathi. Subsequent to marriage, the accused and the deceased were on cordial relationship for 7 to

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8 months and out of their wedlock, they had a male child aged about two years. It is further case of the prosecution that accused Nos.1 to 3 started to ill-treat the deceased on trifle, flimsy reason and sometimes for no reason. It is further alleged that accused No.4 used to visit the house of accused No.1 and used to

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assault the deceased and further alleged that P.W.1 and his family members have conducted several panchayaths between accused No.1 and the deceased. It is also stated that about two years prior to the incident, a criminal case was registered against accused No.1 for misusing the funds of forest department and the police have arrested accused No.1 along with the deceased. In the meanwhile, the accused started to construct a house at Gopala Layout, Shivamogga and entrusted the construction work to one Vijayendra, Civil Engineer. During the construction period, accused No.1 developed illicit relationship with the wife of said Vijayendra i.e., accused No.4 and because of illicit relationship, the relationship between accused No.1 and the deceased putrid and there was a quarrel between the accused and the deceased to that effect. When things stood thus, on 13.11.2011 at about 11.15 a.m., accused No.1 had conveyed message to P.W.1 about missing

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of the deceased from the house. Immediately, P.W.1 and P.W.5 came to the house of the accused however, they found the footwear and vanity bag of the deceased in the house. Thereby, a missing complaint was lodged before Thunganagara Police Station on 14.11.2011. Despite the sincere efforts of the complainant and their relatives, till 17.11.2011 they did not find any clue about the deceased. On 17.11.2011 at about 8.00 p.m. the complainant while searching had noticed the dead body of the deceased on the embark of Anupinakatte new Channel in the decomposed condition. Suspecting the involvement of the accused, the complainant had lodged the complaint on 17.11.2011. Accordingly, the jurisdictional police at the first instance registered a case in Crime No.397/2011 on 14.11.2011 at 8.00 a.m. on man missing and subsequently, on the second complaint on 17.11.2011 at about 11.00 p.m. the jurisdictional police registered a case in Crime

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No.400/2011 for the offence punishable under Sections 302, 201, 114 read with Section 34 of IPC against the accused and others. After investigating, the jurisdictional police filed the charge-sheet against accused Nos.1 to 4 for the offence punishable under Sections 498A, 302, 201, 109 read with 34 of the IPC.

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Since the offence was exclusively triable by

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the Sessions Court, the matter was committed to the learned Sessions Court, Shivamogga in SC

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No.154/2015.

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After committal of the matter, the learned Sessions Judge secured the presence of accused Nos.1 to 4, framed the charge on 10.06.2016 and read over

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the same to accused Nos.1 to 4 in the language known to them, who pleaded not guilty and claimed to be tried.

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In order to prove the case of the

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prosecution, the prosecution examined 20 witnesses as P.Ws.1 to 20 and marked the documents at Exs.P.1 to P.32 and Material Objects at M.Os.1 to 7 and marked the documents at Exs.D.1 and D.2 on behalf of the accused.

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After completion of the evidence of the prosecution witnesses, the statement of the accused as contemplated under the provisions of Section 313 of the Code of Criminal Procedure was recorded. The accused denied all the incriminating circumstances adduced by the prosecution witnesses against him. However, accused No.1 has taken a plea of alibi that on 12.10.2011 he went to Channagiri to see his mother, as she was not well and next day he came back to the house, by that time his wife was not in the house.

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8. Considering the entire material on record,

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the learned Sessions Judge framed the following points for consideration:

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“1. Whether the prosecution proves beyond all reasonable doubt that accused No.1 since 2 years had an illicit relationship with accused NO.4, when it came to the knowledge of his wife deceased G.B.Anitha, she started to object his relationship and on account of that accused No. 1 on the instigation/abetment of accused NO.2 to 4 on 12.11.11 at 11.30 p.m. in his rented house situated at Ranganathaswamy Extension, Shivamogga, had committed murder of his wife G.B.Anitha, aged about 29 years by strangulating by veil and thereby committed an offence punishable under Section 302 of IPC?

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Whether the prosecution further proves beyond all reasonable doubt that accused NO.2, 3 and 4 prior to 12.11.2011 were engaged with accused NO.1 in a conspiracy for doing an illegal act i.e., murder of deceased G.B. Anitha wife of accused NO.1 and in pursuance of that conspiracy and abetment, accused NO.1 committed the murder of

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G.B.Anitha and thereby accused No.2 to 4 committed an offence punishable Under Sec.302 R/w Section 109 of IPC?

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Whether the prosecution further proves beyond all reasonable doubt that accused No.1 on the instigation/abetment of accused NO.2 to 4 committed the murder of G.P. Anitha and in pursuance of that conspiracy and abetment accused NO.1 with an intention of causing disappearance of evidence of an offence, had thrown the dead body on the embankment of Thunga Upper Channel in Anupinakatte Village, and thereby all the accused persons have committed the offence punishable under Section 201 R/w 109 of IPC?

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Whether the prosecution further proves beyond all reasonable doubt that accused No.1 married the deceased G.B.Anitha 3 years 9 months prior to murder ie, on 12.11.2011 and accused NO.1 to 3 being husband, brother-inlaw and mother-in-law of deceased G.B.Anitha respectively, since from her marriage with accused No. 1 with the common intention of all, subjected her to mental and physical harassment and cruelty and thereby accused NO.1 to 3 have committed an offence

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punishable Under Section.498-A R/w 34 of IPC?”

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After considering both the oral and

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documentary evidence on record, the learned Sessions Judge answered point No.1 in the affirmative and recorded a finding that since two years accused No.1 had illicit relationship with accused No.4 and when it came to the knowledge of the deceased, the deceased started to oppose the relationship and on account of the same, accused No.1 on instigation of accused Nos.2 to 4 on 12.11.2011 at about 11.30 p.m. in a rented house situated at Ranganathaswamy Extension, Shivamogga had committed murder of his wife by strangulating by veil. Thereby, committed the offence under Section 302 of the IPC. Further, the learned Sessions Judge answered point No.2 in the negative holding that the prosecution failed to prove beyond all reasonable doubt that accused Nos.2 to 4 prior to 12.11.2011 were engaged with accused No.1

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in a conspiracy for committing illegal act i.e., the murder of the deceased G.B. Anitha, wife of accused No.1 and thereby, accused Nos.2 to 4 have been acquitted for the offence punishable under Sections 302, 201 and 109 of the IPC. Learned Sessions Judge answered point No.3 partly in the affirmative holding that the prosecution proved beyond all reasonable doubt that accused No.1 on the instigation of accused Nos.2 to 4, committed the offence of murder of his wife and with an intention to cause disappearance of evidence of an offence, he had thrown the dead body on the embankment of Thunga Upper Channel in Anupinakatte Village and thereby, accused No.1 committed an offence under Section 201 of the IPC. Learned Sessions Judge answered point No.4 partly in the affirmative holding that accused No.1 married the deceased Anitha about 3 years 9 months prior to the incident and accused Nos.1 to 3 being husband, brother-in-law and mother-in-law of the deceased

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with the common intention, subjected her to mental and physical cruelty and thereby committed the offence under Sections 498A read with Section 34 of IPC.

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Accordingly, the learned Sessions Judge by the impugned judgment of conviction and order of sentence dated 20.02.2017 convicted accused No.1 and sentenced to undergo imprisonment for life with fine of Rs.1,00,000/- and in default, accused to undergo further simple imprisonment for a period of one year for the offence punishable under the provisions of Section 302 of the Indian Penal Code (hereinafter referred to as ‘IPC’ for short), also to undergo imprisonment for a period of three years with fine of Rs.5,000/- and in default to undergo further simple imprisonment for a period of three months for the offence punishable under Section 201 of IPC and also to undergo imprisonment for a period of two

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years with fine of Rs.5,000/- and in default to undergo further simple imprisonment for a period of three months for the offence punishable under Section 498A of IPC and acquitted accused Nos.2 to 4 for the offence punishable under Sections 302 and 201 read with Section 109 of the IPC, 498A read with Section 34 of the IPC. Hence, accused No.1 filed the present appeal.

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State has not filed any appeal against the impugned judgment of acquittal acquitting accused Nos.2 to 4 for the offence punishable under Sections 302 and 201 read with Section 109 of the IPC, 498A read with Section 34 of the IPC.

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We have heard the learned counsel for the parties.

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Sri. R. Kiran, learned counsel for the

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accused/appellant contended with vehemence that the

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impugned judgment of conviction and order of sentence convicting accused No.1 under the provisions of Sections 302, 201 and 498A of IPC is erroneous and contrary to the material on record and the same cannot be sustained. He further contended that the entire case of the prosecution is only based on the circumstantial evidence and admittedly, there are no eye witnesses to the incident to prove that accused has committed murder of his wife and the prosecution has not proved beyond reasonable doubt about the involvement of the accused in the homicidal death of the deceased. He further contended that the prosecution has failed to prove or establish how the deceased was murdered and the manner in which the dead body was shifted, as there are no eye witnesses to the incident. At the first instance on 14.11.2011 as per Ex.D.1-missing complaint was lodged and thereafter, after due deliberations by P.W.1 and others, a second complaint was lodged as per Ex.P.1

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on 17.11.2011 and falsely implicated the accused without there being any basis.

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He further contended that doctor-P.W.11

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who conducted the post mortem of the deceased, deposed that body was in a decomposed condition and was also subjected to criminal activity. Thereby, the theory of strangulation cannot be believed as stated by the prosecution. He further contended that P.W.4 witness to Ex.P.5-inquest Mahazar deposed that the body was in a decomposed condition and it was not be in a position to be identified that the body belongs to the deceased. Learned counsel further contended that P.W.5-brother of the deceased was not aware about the family affairs of the deceased and the accused, including the involvement of the accused and the deceased in misusing the fund of forest department. Thereby, his evidence in no way helps the case of the prosecution.

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He further contended that P.W.6, a friend of P.W.5 also deposed on par with P.W.5 and the statements of P.W.5 and 6 no way help to prove the involvement of the accused in the homicidal death of the deceased. Thereby, the impugned judgment of conviction and order of sentence cannot be sustained. He further contended that the prosecution very much relied upon the evidence of P.W.8-the neighbor of the deceased who deposed that she heard the quarrel from the house of the accused on previous night of the incident at about 10.00 p.m. The evidence of P.W.8 and the evidence P.W.1-father of the deceased

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are contradictory and cannot be relied upon. He further contended that extra judicial confession is a weak piece of evidence given by P.W.9 and same needs to be discarded. The motive and mens rea are also not established by the prosecution. He further contended that P.W.10 Tractor Driver who deposed that he has seen the accused for the first time on the

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date of the incident near his house where the body was found and also deposed that the accused used to visit on his motorcycle from Gopala Pura to Anupinakatte everyday and has seen the accused about three to four days and identified M.O.5-Motor bike and the accused. In the absence of the identification parade, the learned Trial Judge ought not to have relied upon the evidence given by P.W.10, which in no way helps to prove the case of the prosecution.

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He further contended that P.W.19 Assistant Director, Department of Toxicology Section, Forensic Science Laboratory deposed that DNA test, confirmed the probability of the certainty to the extent of 99.999%. In the absence of any corroborative evidence, only on the basis of the DNA Test by P.W.19, accused ought not to have been convicted. He further contended that P.W.11 who issued Ex.P.8-

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Post Mortem report has given opinion on Ex.P.24-DNA report that the death was due to ligature strangulation. Thereby, the prosecution has failed to prove beyond reasonable doubt that the accused has committed an offences punishable under Sections 302, 201 and 498A of the IPC. Thus, the conviction order passed by the Sessions Court cannot be sustained and thereby, sought to allow the appeal.

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Per contra , Sri. Vijaykumar Majage, learned Additional SPP while justifying the impugned judgment of conviction and order of sentence would contend that in order to prove the motive of the accused to kill the deceased, the prosecution examined P.W.1, P.W.2, P.W.5, P.W.7, P.W.8 and P.W.9. He would further contend that the conduct of the accused has to be taken into account, as on the date of the incident, he was in the house and if his wife was missing from 12.11.2011, he should have lodged a complaint

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immediately when he came back from his mother’s native place Channagiri and he could not wait till P.W.1 came and filed a missing complaint on 14.11.2011 and the second complaint was made on 17.11.2011 and when the accused has taken a plea of alibi that was not with the wife on 12.11.2022 and that he came back only on the next day and the accused having taken a plea of alibi, burden is on the accused to prove under Section 103 of the Evidence Act, however, he has not examined any villagers nor his mother to prove his contention.

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He further contended that the accused has made an extra judicial confession that he has committed murder of his wife before his friend P.W.9. P.W.9 categorically stated on oath that the accused had disclosed about the death of his wife and committing murder of his wife on 12.11.2011 and was afraid of the dead body and he used to go everyday to

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check the dead body. At the first instance, P.W.9 did not believe the statement of the accused thereafter on seeing daily news paper, he came to know the statement made by the accused is true. Nothing has been elicited in the cross-examination about the extra judicial confession made by the accused before P.W.9.

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He further contended that the evidence of P.W.10-Tractor driver depicts that on the day of the incident, he has seen the accused going about 11 to 11.30 a.m. from Gopalapura village towards Anupinakatte in a red color motor bike and he used to see the said person coming from Gopalapura to Anupinakatte everyday for about three to four days. P.W.10 came to know that the accused has involved in the homicidal death of his wife, after police came near channel along with the accused. He identified M.O.5motor bike and the accused. Nothing has been elicited in the cross-examination of P.W.10 to

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disbelieve his statement. He further contended that P.W.11 who is Associate Professor, Forensic Medicine, SIMS, Shivamogga deposed that on examination of the dead body, he found external injuries and in the cross-examination deposed that the death might have been caused by infliction of injuries by some weapon or strangulation by using veil. He further contended that P.W.19 deposed about the conduct of DNA test, confirmed the probability of certainty to the extent of 99.999%. He denied the suggestion that it is false to suggest the DNA test only serve the probability of the person claiming the biological parent of the child. He has voluntarily stated that in the absence of identical twins the certainty of proving the paternity is always to the extent of 100% in the DNA and accordingly, issued Ex.P.24-DNA report. Thereby, the prosecution has proved beyond reasonable doubt of the circumstantial evidence to link from the beginning of the incident till the end of the investigation about the

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involvement of the accused in the homicidal death of the deceased. Therefore, sought to dismiss the appeal.

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In view of the aforesaid rival contentions

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urged by the learned counsel for the parties, the only point that arises for our consideration is:

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“Whether the accused No.1/appellant has made out a case to interfere with the impugned judgment of conviction and order of sentence convicting the accused for the offence punishable under Sections 302, 201 and 498A of the IPC in the facts and circumstances of the present case?

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We have given our anxious consideration to the arguments advanced by the learned counsel for the appellant as well as the learned Additional State Public Prosecutor and perused the entire material including the original records carefully.

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In order to re-appreciate the evidence of

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the prosecution witnesses, it is relevant to consider the evidence of the prosecution witnesses and the material evidence on record relied upon:

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(i) P.W.1 – K. Basappa, who is complainant and father of the deceased lodged the first complaint as per Ex.D.1 on 14.11.2011 on the information given by accused No.1. When he along with P.W.5 went to the house of the accused and the deceased, the deceased was missing and for three to four days, they searched the deceased but were not able to find. He further stated that the body of the deceased was found at a distance of 2.5 kms from the house of the appellant. He also deposed that after the marriage, about six to seven months, the deceased and accused No.1 were happy and thereafter, misunderstanding emanated between the accused and the deceased. After celebrating naming ceremony of the child, they sent

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the deceased with accused No.1 and thereafter, the accused and his family members started ill-treating the deceased on trivial matters and in that regard panchayath was convened in the presence of P.W.7 in the house of accused No.1 and in the meantime, on the allegation of misusing of the departmental funds, the Forest Department had lodged a complaint against accused No.1. He further deposed that accused No.1 started to construct a house at Gopalapura Layout and engaged one Vijayendra, Civil Engineer for the construction work and accused No.1 had developed illicit relationship with accused No.4-Sheetal wife of the engineer. When the same was opposed by the deceased, the accused has killed his wife. The first missing complaint was lodged on 14.11.2011 and second complaint was lodged on 17.11.2011 after dead body found near the embark of Thunga channel near Anupinakatte. He identified M.Os.1 to 4 belongs to the deceased and also identified M.O.5-motor bike

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was given by him to accused No.1 at the time of the marriage. Nothing has been elicited in the crossexamination of P.W.1 to disprove the statement and thereby, supported the case of the proseuction.

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(ii) P.W.2-Umesha is a witness to the spot mahazar

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at Ex.P.2 in the house of accused No.1 and he has signed Ex.P.2. He deposed that accused No.1 took him and the police personnel to the house situated at Ranganatha Extension and also to the embark of Thunga channel, where he showed the dead body, which was in a decomposed condition and police drawn the mahazar as per Ex.P.3 and he identified the material objects found on the dead body and also ankle chain recovered from the house of accused No.1 in his presence. In the cross-examination, he deposed that he does not know the contents of Exs.P.2 and P.3 But he deposed that the police have written about the recovery of clothes and chain. He further deposed that

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there is a distance of 30 feet between his house and the house of accused and supported the case of the prosecution.

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(iii) P.W.3-Prakash is a witness to the recovery of clothes found on the dead body of the deceased in the Hospital. He stated that the police have conducted mahazar in his presence on 03.01.2012 as per Ex.P.4. This witness has not been cross-examined by the defence counsel.

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(iv) P.W.4-Manjappa, who is a witness to the Inquest Mahazar at Ex.P.5 deposed that when he went to Mc. Gann. Hospital to see the dead body of the deceased, the Tahsildar had conducted the inquest on the dead body in his presence and took his signature. He deposed that the dead body was in a decomposed condition. He identified the said articles as per M.Os.1 to 4.

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(v) P.W.5-Rameshkumar, who is none other than

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the brother of the deceased, stated on par with P.W.1 that deceased and accused No.1 were residing together at the Forest quarters at Bhadravathi, Jannapura. He deposed that about seven to eight months after their marriage, they were in cordial terms, thereafter, accused Nos.1 to 3 have subjected deceased to cruelty for a trivial matters. He further deposed that he came to know that the accused has an illicit relationship with accused No.4, wife of Vijayendra, civil engineer, who was engaged by accused No.1 to construct the house in Gopalapura. He identified M.Os.1 to 4. In the cross-examination, he deposed that he came to know about the illicit relationship of accused No.1 and 4 through the deceased and supported the case of the prosecution.

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(vi) P.W.6-Prakasha, who is a friend of P.W.5 deposed that he came to know about the illicit

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relationship of accused Nos.1 and 4 through his friend-P.W.5. He identified the dead body of the deceased at the time of inquest mahazar in the presence of Tahsildar.

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(vii) P.W.7-Hiriyanyappa is the mediator for the marriage of accused No.1 and the deceased and stated that about one year after the marriage, they were cordial and later there was quarrel between the accused and the deceased with respect to the illicit relationship of accused No.1 with one lady and in that regard, he convened a panchayath in the house of accused No.1 and advised the accused persons. But the accused persons have not mend their way but increased their cruelty on the deceased. In the crossexamination, he deposed that P.W.1 is his cousin brother. He has stated before the Tahsildar about the panchayath conducted by him between the husband

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and wife in respect of their quarrel and supported the case of the prosecution.

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(viii) P.W.8-Saroja is a star witness to the

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prosecution, who has deposed that deceased and accused No.1 were residing in the house situated in front of her house since two years. Deceased had stated about accused No.1 working in the forest department and there was always quarreling between

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the deceased and the accused in the house, but she never visited their house during quarrel. One day evening, the deceased Anitha was standing near the gate with her child, at that time, when she enquired the deceased about why they are quarrelling all time, deceased had stated with her about the illicit relationship of accused No.1 with one lady and ill treatment by her husband. Thereby, she advised the deceased to go to her parents house. She further deposed that on the previous day evening of missing

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of deceased, she had talked with her. On the same night at about 10.00 p.m. when she was washing utensils inside the compound, at that time, she heard the altercation from the house of the accused and since it was frequent, she had not paid much attention on that and she kept quiet. On the next day morning, she came to know about the missing of the deceased but she had not bothered about the matter by presuming that she might have gone to her parental home and only after three to four days police came near the house of accused No.1, then she came to know about the murder of the deceased and she had given statement before the police. In the crossexamination, she has admitted that before the police she has not stated deceased came near the gate on that day by feeding her child and she had advised her to go to her parental home and also admitted that accused No.3 was not residing in the house of accused No.1 and supported the case of the prosecution.

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(ix) P.W.9-Prakasha .R Ligadi the friend of accused No.1 deposed that accused No.1 was constructing a house at Ranganatha Extension of Gopalapura and he was working in Forest Department at Tarikere and his father was a social activist. He further stated that accused No.1 had informed him about the murder of his wife and that he had thrown the dead body near Anupinakatte Thunga Channel and he is scared about the same. But he thought that accused No.1 is telling a lie before him, but on seeing the newspaper, he came to know that what accused said is true. The police have enquired him about the incident and he revealed the fact and had given statement. In the cross-examination, he has stated that himself and accused No.1 belong to the same Taluk. He knows his father since 15 years and he has not revealed the said fact before the police as they have not enquired about the same. He deposed that accused No.1 and himself

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used to go for breakfast and lunch together. He thought the accused was saying lie about commission of murder of his wife, but he has not stated before the police that as he was scared to reveal it to others. In his evidence in categorical terms he has stated that the accused has disclosed about the murder of his wife. Nothing has been elicited in the crossexamination to disprove the said statement and

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thereby, supported the case of the prosecution.

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(x) P.W.10-Arunkumar, one of the witness from the

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locality where the dead body has been thrown out by accused No.1. He has stated that, one and half years

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prior to the date of his examination, at about 11.00 p.m. to 11.30 p.m. when he was going back to his home by walk, a red colored bike came in a high speed from the direction of Anupinakatte towards Gopalapura. Thereafter, he was at home for 3 to 4 days without any work, during that time, he noticed

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that one person in red colored motor cycle regularly used to go towards Anupinakatte and back to Gopalapura. Then he came to know about the murder of a person near that channel and in respect of the same, the police had enquired with him whether he had seen any person in that locality, at that time, he had identified the person who was sitting inside the police jeep, he had informed the same to the police. He identified M.O.5-red color motor cycle and the accused. He deposed in the cross-examination that the distance between the channel and his house is 100 to 150 feet. He has stated that he had seen the accused in the police jeep. When asked whether prior to that night, when he had seen the accused, he has stated that he does not know him. He has stated that he had first time seen the accused in the night time, then he had seen him in daytime and supported the case of the prosecution.

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(xi) P.W.11 – Dr. Chidanand, who conducted autopsy

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of the deceased stated on oath that at the time of

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examination of dead body, he had seen the following articles:

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Organic issue stained one chudidar top with label as XL, torn on back lower part and soiled.

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Black colored brassier

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Portion of the green color veil with red color flower designs at places shows scorching due to burns

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Yellow metallic ear stud on right ear

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Dull red colored thread with yellow metal thayitha.

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He further identified M.Os.1 to 4 and deposed that the

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dead body was discolored, disfigured, decomposed partially skeletonized and emits foul smell. Rigor mortis was passed off and he has issued Postmortem Report as per Ex.P.8. In the cross-examination, he

¶140

has deposed that in the letter sent by the police, he had given a history of case that the death might have

¶141

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been caused by infliction of injuries by some weapon or strangulation by using veil. He admitted that in case, if the body in decomposed condition, it is difficult to analyze the cause of death. He has stated that ligature mark was incomplete. Thereby, supported the case of the prosecution.

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(xii) P.W.12-Thairaj is the carpenter who had supplied furniture to the accused deposed that he know the accused and he was working in ACF Office Tarikere. About 4 to 5 years back, accused ordered for sofa set, dining table, cot and other furniture and accordingly, he had prepared, out of them one sofa set was delivered to Davanagere and another one to Bhadravathi. He had sent C.W.21 for fitting the furniture. The suggestions made by the defence that police have enquired him in respect of murder and he had given a statement before the police has he denied.

¶144

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(xiii) P.W.13-Srinivas, Police Constable of Shivamogga Rural Circle deposed that he had graphed the entire mahazar procedure took place where dead body found. He had taken photographs as per Ex.P.12 to 19 and the CD marked as Ex.P.20 and supported the case of the prosecution.

¶146

(xiv) P.W.14-Vijaykumar, Police Constable,

¶147

Shivamogga Rural Circle deposed that on 18.11.2011, he had secured C.W.2 and C.W.3 to witness the mahazar drawn at the house of accused No.1 and supported the case of the prosecution.

¶148

(xv) P.W.15-Nagaraj, owner of the house where accused No.4 was residing, deposed that he had given his house situated at Nijalingappa Layout, Davanagere to accused No.1 on lease. He made lease agreement with accused No.4. He has stated that the lease amount was paid by accused No.4, accused No.1 was

¶149

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working in Forest Department. Further he has stated that one or two times, he had seen accused No.1 while he coming to the house of accused No.4. He identified accused Nos.1 and 4. In the crossexamination, nothing has been elicited to disbelieve or discard the evidence of the witness and supported the case of the prosecution.

¶151

(xvi) P.W.16-John D’Souza, ASI of Thunganagara Police Station deposed that on 18.11.2011 the CPI of Shivamogga Rural Circle had deputed him to trace out

¶152

the accused persons and supported the case of the prosecution.

¶153

(xvii) P.W.17-Noor Basha, Carpenter, who was working with P.W.12 deposed that as per the direction of P.W.12, he delivered two sofa sets, one to Bhadravathi and another one to Davanagere. He has stated that in the house at Davanagere, one lady was there at the time of delivering the sofa set, but he has

¶154

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not identified the accused and supported the case of the prosecution.

¶156

(xviii) P.W.18-H. Sharifiulla, the PSI of Thunganagara Police Station deposed that he has registered the FIR on 17.11.2011 on the basis of the written complaint given by the complainant as per Ex.P.1. He deposed that he had registered FIR on 17.11.2011 at 11.30 p.m. with PC 990 he had dispatched the FIR to the judicial Magistrate and supported the case of the prosecution.

¶157

(xix) P.W.19-Dr. Vinodh Janardhan, Assistant Director of Toxicology, State Forensic Science Laboratory deposed that on 13.02.2012, the PC 1123 of Thunganagara Police Station had produced four sealed articles in connection with Crime No.400/2011 of Thunganagara Police Station. The seals found on the articles were intact and tallied with the sample seals

¶158

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sent along with and supported the case of the prosecution.

¶160

(xx) P.W.20-C.N. Manjunatha, Tahsildar of

¶161

Shivamogga who conducted inquest on the body of the deceased deposed that at the time of inquest, body was in a decomposed condition. He found one black colour bra, chudiddar top, torned red green color flowers print veil, talisman with thread, white stone metal ear stud in the right ear. He recorded the statement of C.Ws.6 to 8 and had recorded the statement of the relatives of the deceased and after completion of inquest mahazar, he requested the Medical Officer to conduct autopsy and to collect materials in order to send the same for DNA examination. He identified M.Os.1 to 4 and nothing has been elicited in the cross-examination of P.W.20.

¶162

Based on the aforesaid material on record, the learned Sessions Judge has proceeded to convict

¶163

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accused No.1 for the offences made out in the charge memo.

¶165

The material on record clearly depicts that the accused had a motive to murder his wife as stated

¶166

by P.W.1, 2, 5, 7, 8 and 9, who categorically stated that the accused and deceased along with child were residing together and the accused was working in Forest Department and there was a quarrel between the accused and the deceased. It has also come in their evidence that accused started constructing the house at Gopalapura and work was entrusted to one Vijayendra, Civil Engineer to supervise the construction work. In the meantime, accused No.1 had developed an illicit relationship with accused No.4-Sheetal i.e., wife of Vijayendra, Civil Engineer and thereby, there was quarrel between accused No.1 and the deceased and accused No.1 has caused infliction of injuries by some weapon or strangulation

¶167

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by using veil. The said evidences clearly depict that the accused was involved in the homicidal death of the deceased.

¶169

P.W.11-Dr. Chidanand stated on oath that

¶170

since 8 years, he was working as Assistant and Associate Professor in Department of Forensic Medicine and Toxicology in SIMS, Shivamogga. On 18.11.2011 on the requisition made by Taluk Executive Magistrate, Shivamogga, he conducted autopsy of the deceased Anitha, aged about 29 years on the same day between 7.00 p.m. to 8.15 p.m. on the body. He found external injuries and ultimately opined that the death might have been caused by infliction of injuries by some weapon or strangulation by using veil. Ex.P.8-Postmortem report clearly depicts that the cause of death was due to ligature strangulation. Thereby, the prosecution has proved

¶171

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beyond all reasonable doubt the homicidal death of the deceased.

¶173

P.W.8-Saroja, star witness deposed in

¶174

categorical terms that there was quarrel on the day of

¶175

the incident between accused No.1 and on the next day the deceased was missing from the house and after three to four days she came to know that the deceased was murdered and thereafter, the body was

¶176

found near Thunga Channel and the body was recovered at the instance of the police. Thereby, quarrel between accused No.1 and the deceased was proved.

¶177

Accused No.1 has made a confession

¶178

before his friend-P.W.9 that he has killed his wife. P.W.9 who categorically stated that he knows the accused, who was working in the Forest Department and accused No.1 was constructing the house in Gopalapura. After three days of the incident, accused

¶179

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No.1 approached P.W.9 and stated that about three days prior, he has killed his wife and the body was thrown at Anupinakatte, Thungabhadra channel and that he was scared of the consequences. At that time, P.W.9 thought that accused No.1 is telling lie but after

¶181

seeing the newspaper, he came to know that confession made by accused is true. Nothing has been elicited to disprove the statement of the witness

¶182

in the cross-examination by the defence.

¶183

P.W.10, who is the tractor driver who

¶184

deposed that about five years back after finishing his work, he came near bus stand between 11.00 p.m. and 11.30 p.m. by walk by that time, the accused came from Anupinakatte Channel towards Gopalapura in a red colored motor bike. Thereafter, when he was in the house, he has seen one person in a red color motor bike going from Gopala pura to Anupinakatte about 3 to 4 days and thereafter, he came to know

¶185

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about the incident. He identified the accused, who was sitting in the jeep, that the same person was moving around two to three days earlier from the place of the incident to Gopalapura and he identified M.O.5-motor bike of the accused and nothing has been elicited in the cross-examination to disbelieve his statement.

¶187

P.W.19-Dr. Vinodh Janardhan, Assistant Director, Toxicology Department, State Forensic

¶188

Science stated on oath that DNA test may confirm or deny the biological parent of the child. He denied the suggestion that it cannot prove with certainty that the person claiming is the biological parent of the child and he voluntarily stated that the probability of the certainty is to the extent of 99.9999999 percent. It is false to suggest that it can only serve as a probability of the person could or could not be the parent of the child. The witness voluntarily deposed

¶189

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that in the absence of identical twins, the certainty of proving the paternity is always to the extent of 100% in DNA test. Thereby, he concluded that the deceased individual to whom the molar tooth belongs to sent item No.2 is the biological daughter of Sri. K. Basappa and Smt. Jayamma from whom the blood samples were collected and same in item Nos.3 and 4 respectively. Thereby, the prosecution has proved that the dead body found near the Thunga channel was that of the deceased Anitha.

¶191

The accused has taken plea of alibi in the statement under Section 313 of Cr.P.C. that on the date of the incident, he had been to his mother’s place as she was not well. However, the mother or the villagers, where mother resides, have not been examined. Once the prosecution discharged the initial burden and when a plea of alibi is taken by the defence, it is for the accused to prove that he was at Channagiri.

¶192

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But in this case, no such effort has been made by the accused to prove that he was in Channagiri on the date of the incident, in view of the provisions of Section 103 of the Indian Evidence Act, 1872, the burden of proof lies on the accused. The Hon’ble Supreme Court in the case of State of Haryana vs. Sher Singh [AIR 1981

¶194

SC 1021] at paragraph No.4, it is held as under:

¶195

“4. When an accused pleads alibi, the burden is on him to prove it under Section 103 of the Evidence Act which provides:

¶196

"103. The burden of proof as to any particular fact lies on that person who wishes the Court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie on any particular person.”

¶197

It is also not in dispute that accused while

¶198

recording the statement as contemplated under Section 313 of Cr.P.C except taking a plea of alibi, he has denied all other averments and the accused has failed to offer any explanation. Thereby, an adverse

¶199

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inference has to be drawn against the accused. Our view is fortified by the dictum of the Hon’ble Apex Court in the case of Prahlad vs. State of Rajasthan reported in [(2019) 14 SCC 438] wherein at paragraph No.11, it has been as under:

¶201

“11. No explanation is forthcoming from the statement of the accused under Section 313 CrPC as to when he parted the company of the victim. Also, no explanation is there as to what happened after getting the chocolates for the victim. The silence on the part of the accused, in such a matter wherein he is expected to come out with an explanation, leads to an adverse inference against the accused.”

¶202

On reconsideration of entire material on record clearly depicts that incriminating circumstances enumerated above unmistakably and inevitably lead to the guilt of accused No.1. In the defence, nothing has been brought on record to make the facts, which were proved by the prosecution or the circumstances established against accused No.1 to be in any manner

¶203

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is in consonance with the innocence at any rate of accused No.1. All the circumstances cumulatively taken together lead to the only irresistible conclusion that accused No.1 alone is the preparatory of the crime. The prosecution has established each and every incriminating circumstances by reliable and clinching evidence.

¶205

It is well settled that in the case of circumstantial evidence, five golden principles laid down in the case of Sharad Birdhichand Sarda v. State of Maharashtra [ Sharad Birdhichand Sarda v. State of Maharashtra , (1984) 4 SCC 116, wherein the Hon’ble Supreme Court in the latest judgment in the case of Mohd. Firoz v. State of M.P., reported in ( 2022) 7

¶206

SCC 443 held at paragraph No.35 as under:

¶207

“35. The law with regard to the appreciation of evidence when the case of the prosecution hinges on the circumstantial evidence is very well settled. The five golden

¶208

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principles laid down by this Court in Sharad Birdhichand Sarda v. State of Maharashtra [ Sharad Birdhichand Sarda v. State of Maharashtra , (1984) 4 SCC 116 : 1984 SCC (Cri) 487] and followed in catena of decisions, are worth reproducing : (SCC p. 185, para 153)

¶210

“ 153 . A close analysis of this decision would show that the following conditions must be fulfilled before a case against an accused can be said to be fully established:

¶211

(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established.

¶212

It may be noted here that this Court indicated that the circumstances concerned “must or should” and not “may be” established. There is not only a grammatical but a legal distinction between “may be proved” and “must be or should be proved” as was held by this Court in Shivaji Sahabrao Bobade v. State of Maharashtra [ Shivaji Sahabrao Bobade v. State of Maharashtra , (1973) 2 SCC 793 : 1973 SCC (Cri) 1033] where the observations were made : (SCC p. 807, para 19)

¶213

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‘ 19 . … Certainly, it is a primary principle that the accused must be and not merely may be guilty before a court can convict and the mental distance between “may be” and “must be” is long and divides vague conjectures from sure conclusions.

¶215

(2) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty,

¶216

(3) the circumstances should be of a conclusive nature and tendency,

¶217

(4) they should exclude every possible hypothesis except the one to be proved, and

¶218

(5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.’ ”

¶219

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The materials on record clearly depicts that the circumstances i.e., motive, conduct of the accused, extra judicial confession, the evidence of doctor P.W.11, Scientific Officer P.W.19 and in view of plea of alibi taken, is fully established by the evidence of the complainant and other prosecution witnesses. The material documents consistently establishes the hypothesis of the guilt of the accused. That is to say, it should not be explainable on any other hypothesis except that the accused is guilty and the accused is not able to explain any hypothesis except the accused any other person was involved. The circumstances in the present case establishes that the conclusive nature and tendency and there is no other person involved except the accused in the homicidal death of his own wife.

¶221

It is also not in dispute that the dead body

¶222

of the deceased i.e., wife of the accused was

¶223

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recovered at the instance of the accused and in the presence of the spot mahazar witnesses and the recovery of the dead body along with corroborative evidence, which is one of the circumstances for the learned Sessions Judge to come to the conclusion about the involvement of the accused. Hence, the conviction of the accused under Section 302 of IPC is justifiable. Our view is fortified by the dictum of the Hon’ble Supreme Court in the case of Manoj Suryavanshi v. State of Chhattisgarh , reported in (2020) 4 SCC 45 , wherein at paragraph No.20, 22.8, it is held as under:

¶225

“20.Now, the next important evidence against the accused is the recovery of dead bodies which were found from the places shown by the accused after his arrest. During the course of the investigation, the dead bodies were found from the places shown by the accused, the places which the accused alone could have known. Therefore, there is a recovery of the dead bodies along with the

¶226

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school dress and bags at the instance of the accused. It has been established and proved from the disclosure memo. The disclosure memo has been exhibited. Therefore, the aforesaid circumstance definitely goes against the accused.

¶228

22.8. Recovery of dead bodies of the minor children from the place shown by the accused, which are recovered from the place/places for which the accused alone could have the knowledge.”

¶229

Though learned counsel for the appellant

¶230

contended that there is no charge with regard to Section 498A, the materials on record clearly depicts that there was a constant harassment by the husband to the wife by having illicit relationship with another married lady, which itself is cruelty. Even in the absence of charge under Section 498A, yet a question that has been put to accused under Section 313 Cr.P.C. with regard to cruelty to the wife by the

¶231

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accused. Thereby, the accused is aware that he is facing the charge under Section 498A of IPC. The evidence on record clearly depicts that the accused was involved in the homicidal death of the deceased under Section 302 of IPC, which is major evidence in convicting the accused under Section 498A, which deals with cruelty and harassment. Admittedly, in the present case, there is specific and common charge, against accused Nos.1 to 3 under Section 498A read with Section 34 of IPC and there is a specific finding recorded by the learned Judge holding that the prosecution has proved the said charge against accused No.1. Therefore, the contention of the learned counsel cannot be accepted.

¶233

36 . The materials on record clearly depicts that the accused has involved in the homicidal death of the deceased and there are no circumstances have been made out by the defence that the accused has not

¶234

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involved in the homicidal death of the deceased. The learned Sessions Judge considering both oral and the documentary evidence on record recorded a finding that accused No.1 along has involved in the homicidal death of the deceased and he tried to destroy the evidence by throwing the dead body of the deceased on the embankment of Thunga Upper Channel in Anupinkatte. Thereby, the prosecution has proved beyond all reasonable doubt that the accused has involved in the homicidal death of the deceased and tried to destroy the evidence as contemplated under Sections 302 and 201 of IPC and the learned Sessions Judge while convicting the accused acquitted accused Nos.2 to 4 and against the order of acquittal, the State has not filed any appeal. Thereby, the impugned judgment of conviction and order of sentence passed by the learned Sessions Judge is just and proper. No interference is called for. Accordingly, the point raised for consideration is answered in the

¶236

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negative holding that the appellant has not made out a case to interfere with the impugned judgment of conviction and order of sentence passed by the Sessions Court convicting the accused for the offence punishable under Sections 498A, 302 and 201 of IPC.

¶238

Hence, we pass the following:

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ORDER

¶240

i. The appeal filed by the accused is hereby dismissed as devoid of merits.

¶241

ii. The impugned judgment of conviction and order of sentence dated 20.02.2017 passed in S.C.No.154/2015 on the file of the III Additional Sessions Judge, Shivamogga convicting accused No.1 to undergo imprisonment for life with fine of Rs.1,00,000/- and in default, accused to undergo further simple imprisonment for a

¶242

period of one year for the offence punishable

¶243

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under the provisions of Section 302 of IPC, also to undergo imprisonment for a period of three years with fine of Rs.5,000/- and in default to undergo further simple imprisonment for a period of three months for the offence punishable under Section 201 of IPC and also to undergo imprisonment for a period of two years with fine of Rs.5,000/and in default to undergo further simple imprisonment for a period of three months for the offence punishable under Section 498A of IPC is hereby confirmed.

¶245

iii. All the sentences shall run concurrently.

¶246

Sd/JUDGE

¶247

Sd/JUDGE

¶248

MBM

Sri. Mohankumar. N v. State of Karnataka

Case brief

What is this about?

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Sri. Mohankumar. N v. State of Karnataka

Case brief

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What did the court decide?

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