Allowed

Nagaraj S/O Shekappa Mattihalli @ Guddadahalli v. the State of Karnataka

Karnataka HC18 Nov 2023CRL.A/100223/2015

Case brief

AI extract

What is this about?

In this criminal appeal, the High Court of Karnataka, Dharwad Bench, set aside the conviction and acquited the appellant. The court found that the prosecution failed to prove the case beyond reasonable doubt due to lack of corroborative evidence from eye witnesses and discrepancies in the complaint.

What did the court decide?

The judgment and order of conviction and sentence passed in SC No. 28/2012 by the Sessions Judge, Haveri, are set aside. The appellant is acquitted and entitled for a refund of any fine deposited.

Nagaraj S/O Shekappa Mattihalli @… — Murder and Culpable Homicide | Karnataka HC (2023)

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NC: 2023:KHC-D:13502 CRL.A No. 100223 of 2015

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IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE 18^TH DAY OF NOVEMBER, 2023

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BEFORE

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THE HON'BLE MR JUSTICE SHIVASHANKAR AMARANNAVAR

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CRIMINAL APPEAL NO. 100223 OF 2015

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BETWEEN:

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NAGARAJ S/O SHEKAPPA MATTIHALLI @ GUDDADAHALLI, AGE: 35 YEARS, OCC: AGRICULTURE, R/O: SOMANAHALLI VILLAGE, TQ: HIREKERUR, DIST: HAVERI.

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… APPELLANT

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(BY SRI. K.M. SHIRALLI, ADVOCATE)

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AND:

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THE STATE OF KARNATAKA, BY HIREKERUR P.S., R/BY S.P.P., HIGH COURT OF KARNATAKA, BENCH DHARWAD.

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… RESPONDENT

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(BY SRI. P.N. HATTI, HCGP)

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VIJAYALAKSHMIM KANKUPPI Digitally signedbyVIJAYALAKSHMIM KANKUPPI Date: 2023.11.2813:21:17 +0530

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THIS CRIMINAL APPEAL IS FILED U/SEC. 374(2) OF CR.P.C., SEEKING TO SET ASIDE THE JUDGMENT AND ORDER OF CONVICTION AND SENTENCE UNDER SECTION 354 & 306 IPC DATED 05/10/2015 AND 08/10/2015 PASSED IN S.C. NO.28/2012 BY THE HON'BLE II ADDL. DISTRICT AND SESSIONS JUDGE HAVERI, SITTING AT RANEBENNUR AND ACQUIT THE APPELLANT / ACCUSED OF THE OFFENCES WITH WHICH HE HAS BEEN CONVICTED AND SENTENCED.

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THIS APPEAL, COMING ON FOR DICTATING JUDGEMENT, THIS DAY, THE COURT DELIVERED THE FOLLOWING:

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NC: 2023:KHC-D:13502 CRL.A No. 100223 of 2015

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JUDGMENT

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This appeal is filed against the judgment of conviction and order of sentence dated 05.10.2015 passed in S.C.No.28/2012 by II Additional District and Sessions Judge, Haveri (Sitting at Ranebennur) convicting the appellant/accused for the offences punishable under Sections 354 and 306 of Indian Penal Code (hereinafter referred as ‘IPC’ for brevity).

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The appellant/accused has been

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sentenced to undergo simple imprisonment for a period of six months and to pay fine of Rs.1,000/for the offence punishable under Section 354 of IPC and simple imprisonment for a period of four years and to pay fine of Rs.5,000/- for the offence punishable under Section 306 of IPC.

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The factual matrix of the case is that the deceased-Nirmala was given in marriage to PW.4Somanagouda and she was residing in Somanahalli

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village along with her husband and his family members. Her husband was working in Ranebennur, daily coming to the Ranebennur from his home. Deceased-Nirmala was doing house hold work as well as going to the coolie work in the farm lands belonging to the others. On 23.10.2011 at about 11.30 a.m. deceased-Nirmala was going towards the land for doing coolie work belonging to the Basu Sab Sheksandi, when she was near the land of Hanumathappa Jeekinakoppa this accused came from her behind and dragged by side of the road and pulled her saree and skirt and made an attempt to outrage of her modesty. At that time, when she was struggling to come out of the captivity of the appellant/accused, one Manjawwa and two others, who was walking on the road have saved her from the hands of the appellant/accused. Deceased-Nirmala went back to her house and she did not disclose this fact with anybody. On the next day, she made a phone call

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to her husband at about 7.30 a.m. told him that she has to disclose something about the act committed by the accused. At about 8.30 a.m., one Basu Sab Sheksanadi made phone call to PW.4husband of deceased-Nirmala and told that his wife has consumed poison and they are shifting her to

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Government hospital of Hirekerur. DeceasedNirmala was taken to Government hospital and after initial treatment, she was sent to C.G. hospital, Davangere and thereafter, she was sent to Bapuji hospital, Davangere. On 24.10.2011, the said deceased-Nirmala had little recovered from consuming the poison and at that point of time her husband and parents asked her about the reasons for consuming poison and she has disclosed about the attempt made by the appellant/accused to outrage her modesty and for that she has consumed poison and she died on 25.10.2011 at about 2.30 p.m. PW.1-father of the deceasedNirmala lodged the complaint. Police after

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completing the investigation, filed charge sheet. The case came to be committed to the Sessions Court and charge has been framed against the appellant/accused for the offences punishable under Sections 354 and 306 of IPC. Prosecution in order to prove the charges has examined 16 witnesses as PWs.1 to 16 and got marked Exs.P.1 to 17 and M.O. Nos.1 to 4. The statement of the accused under Section 313 of Cr.P.C was recorded.

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After hearing the arguments of both sides, the trial Court framed the point for consideration and convicted the appellant/accused for the offences under Sections 354 and 306 of IPC. The judgment of conviction and order of sentence has challenged by the appellant/accused in this appeal.

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Heard the arguments of learned counsel for the appellant and learned High Court Government Pleader for respondent-State.

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Learned counsel for the appellant would

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contend that there was enmity between the father of the deceased-Nirmala and accused and therefore

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a false complaint has been lodged against him. The alleged dying declaration said to have been made by the deceased-Nirmala before the PWs. 1, 2 and 4 in the hospital is not corroborated by eye witnesses namely PWs 6 to 8. P.W.4 who has not stated in his evidence that he wrote the contents of the complaint as per the instruction of the PW.1. In inquest-Ex.P.13 there is mention of injury

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on the cheek of the deceased-Nirmala but same is not forthcoming in the PM report. Even though P.W.1 has supported the case of the prosecution in his chief examination but he has not supported the case of the prosecution in his cross examination. Even PW.2 who was supported the case of the prosecution in her chief examination did not supported the case of the prosecution in the cross examination by the accused but she has admitted

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the case of the prosecution in the cross examination by learned public prosecutor. The investigating officer who has recorded the statements of the P.Ws.6 to 8 has not been examined to prove their statements. The filing of the Ex.P.1-complaint is doubtful, since PSI (P.W.16) has not received complaint on that day. P.W.4 has denied the suggestions for having written the contents of complaint as a scribe. PW.4 himself has admitted the deceased-Nirmala to the hospital and case sheet bears his signature and immediately after coming to know from the mouth of deceased regarding reason for consuming poison on 24.10.2011, he did not chose to file the complaint. The doctor who treated the deceased has not been examined. The true genesis of the case has been suppressed. There is no record produced pertaining to the Bapuji hospital. There is no record to show that the deceased was in a fit condition to make a statement. The hospital

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authority has not issued any MLC report and has not recorded any statements of the deceasedNirmala while she was admitted in the hospital. With these contentions, he prayed to allow the appeal and acquit the appellant/accused.

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Per contra learned High Court

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Government Pleader would contend that evidence of P.Ws.1, 2 and 4 itself establish that the deceased made dying declaration before them in the hospital that she has consumed poison to commit suicide as the accused has outraged her modesty. The trial Court on proper appreciation of evidence on record has rightly convicted the appellant/accused. He has supported the reasons assigned by trial Court. On these grounds, he sought for dismissal of the appeal.

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On the grounds made out and considering

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the arguments advanced, the following point arises for my consideration:

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“Whether the trial Court was right in convicting appellant/accused for the offences under Sections 345 and 306 of IPC?”

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My answer to the above point is in the negative

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for the following reasons:

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The deceased-Nirmala was married to P.W.4-Somanagouda and she was residing along with her husband and his parents in Somanahalli village of Hirekerur. As per the averments of the complaint, her husband was working in the Ranebennur and he used to daily travel from Somanahalli to Ranebennur to attend work. The alleged incident has occurred on 23.10.2011 at about 11.30 a.m. and it is witnessed by P.Ws.6 to 8. P.W.6 to 8, who are the eye witnesses to the incident of outraging the modesty of the deceasedNirmala by the appellant/accused. They have not supported the case of the prosecution and they have turned hostile.

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Deceased-Nirmala consumed the poison

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on the next day i.e. on 24.10.2011 at about 7.30 a.m. As per inquest-Ex.P.13 and PM report Ex.P.7 there are injuries found on the face and body of the deceased-Nirmala. The doctor conducted PM examination on the dead body of the deceased. P.W.-9 has disposed that there are 6 injuries found on the body of the deceased and they are antimortem injuries. As per Ex.P.13-inquest mahazer deceased had abraded injury on her cheek. As per PM report Ex.P.7, there are abrasion on her left forearm, left elbow joint, inner the aspect of forearm, left shoulder joint, and scratch on tip of grater toe. These injuries are opined to the antimortem injuries. As per the suggestion of the accused to PW.4, these injuries have been caused as he has assaulted his wife which has been denied by him. As there was injury on the cheek of the deceased, her husband and family members ought to have noticed the same during the day on

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23.10.2011, till she consumed poison on 24.10.2011 at about 7.30 a.m. There is no

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explanation by P.W.4 of no enquiry by him to his wife regarding cause of injury on her cheek. There is no reasons forthcoming from the prosecution records that the deceased has not intimated regarding incident to her husband in the night of 23.10.2011. Even PW.4 husband of deceased has not stated what happened on the night of 23.10.2011 and whether he was in the house or not.

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Even though the husband of the deceased-P.W.4 was in the hospital at the time of death of deceased, he has not chosen to file any complaint. The complaint has been filed by P.W.1father of the deceased. The said complaint bears the signature of P.W.4-husband of the deceased. It is the husband of the deceased who ought to have filed the complaint, as he is also aware, as per the

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case of the prosecution that the deceased intimated him that cause of her suicide is outrage of her modesty by the accused. Therefore, the filing of the complaint by P.W.1 against the accused persons appears to be doubtful, in view of the defence taken by accused persons of enmity by P.W.1 against accused person. P.W.4 in his cross examination, he has shown his ignorance to the suggestion that there is enmity between accused and his father-in-law. He has not denied the said suggestion.

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P.W.1 even though he has deposed in his chief examination supporting the case of the prosecution he has not supported the case of the prosecution in cross examination. Even after he has treated as hostile nothing has been elicited in the cross examination by the learned public prosecutor.

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The case of the prosecution is solely based on the dying declaration made by the deceased before P.Ws.1, 2 and 4 in the hospital. The doctor who was treating deceased in the hospital has not been examined. There is nothing on record to show that deceased was in condition to speak or give statement. In Ex.P.16 the case sheet of the Chigateri District hospital, Davangere, does not contain condition of the deceased-Nirmala on 24.10.2011 the date on which she alleged to have made statement before P.Ws.1, 2 and 4 regarding her cause for consuming poison.

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In view of PW-4 to 6 eye witnesses have not supported the case of the prosecution and half hearted evidence of PW-1 and 2 and non filing of complaint by the husband, defence of enmity by PW-1 against the accused, the evidence of PW-1, 2 and 4 is not reliable. Even though the contents of the complaint Ex.P-1 was written by the PW-4,

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there is no wishper of his presence when deceased alleged to have made the statement before the PW-4 in the hospital. In view of all above, the prosecution has failed to prove the case beyond all reasonable doubts and the appellant/accused entitled for benefit of doubt. The learned Sessions Judge has not considered all the above aspects and erred in convicting the appellant/accused for offence punishable under Section 354 and 306 of I.P.C. In the result, the following

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ORDER

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The appeal is allowed.

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Judgment of conviction and order of sentence dated 05.10.2015 and 08.10.2015 passed in S.C.No.28/2012 by II Additional Distinct and Sessions Judge, Haveri sitting at Ranebennur is set aside. The appellant/accused is acquitted for offence punishable under Section 354 and 306 of

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I.P.C. The appellant is entitled for refund of fine

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amount, if any deposited by him.

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Sd/JUDGE

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AM, AC & DSP CT:BCK List No.: 1 Sl No.: 14

Nagaraj S/O Shekappa Mattihalli @ Guddadahalli v. the State of Karnataka

Case brief

What is this about?

What did the court decide?

Nagaraj S/O Shekappa Mattihalli @ Guddadahalli v. the State of Karnataka

Case brief

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What did the court decide?

What the court decided

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