Allowed

K M Eshwara v. State of Karnataka by:

Karnataka HC4 Nov 2024CRL.A/1272/2017

Case brief

AI extract

What is this about?

Appeal against conviction for murder and causing disappearance of evidence based solely on circumstantial evidence. The court found the motive rested on hearsay, last-seen witnesses untrustworthy, and recovery witnesses hostile, so the chain of circumstances was incomplete. Conviction set aside and the appellant acquitted.

What did the court decide?

Conviction and sentence in S.C.No.40/2013 set aside; accused acquitted of Sections 302/201 IPC; bail bond cancelled; fine refunded; order on MO.12–MO.20 kept intact.

K M Eshwara Vs State of Karnataka by: — Murder and Culpable Homicide | Karnataka HC (2024)

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NC: 2024:KHC:45188-DB CRL.A No. 1272 of 2017

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 4^TH DAY OF NOVEMBER, 2024

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PRESENT

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THE HON'BLE MR JUSTICE K.SOMASHEKAR

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AND

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THE HON'BLE MR JUSTICE RAJESH RAI K

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CRIMINAL APPEAL NO. 1272 OF 2017 (C)

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BETWEEN:

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K.M ESHWARA S/O MARIYAPPA AGED ABOUT 26 YEARS OCCUPATION-AGRICULTURIST, RESIDENT OF KELAGANAHALLI VILLAGE, RAVANDUR HOBLI, PIRIYAPATTANA TALUK-571 107, MYSORE DISTRICT.

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…APPELLANT

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Digitally signed by HARIKRISHNA V Location: HIGH COURT OF KARNATAKA

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(BY SRI. HASHMATH PASH, SENIOR COUNSEL ALONG WITH SRI. KARIAPPA N.A, ADVOCATE)

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AND:

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STATE OF KARNATAKA BY: CIRCLE INSPECTOR OF POLICE, KUSHALNAGAR CIRCLE, KODAGU-577 401, MADIKERI DISTRICT. (REPRESENTED BY LEARNED STATE PUBLIC PROSECUTOR, HIGH COURT OF KARNATAKA BANGALORE). …RESPONDENT (BY SMT. SOWMYA R, HCGP)

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THIS CRL.A. IS FILED U/S.374(2) OF CR.P.C PRAYING TO SET ASIDE THE JUDGMENT AND ORDER OF CONVICTION AND SENTENCES DATED 13.7.2017 PASSED BY THE I ADDITIONAL DISTRICT AND SESSIONS JUDGE, KODAGU, MADIKERI IN S.C.NO.40/2013 - CONVICTING THE APPELLANT/ACCUSED FOR THE OFFENCE P/U/S 302 AND 201 OF IPC.

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THIS APPEAL, COMING ON FOR HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:

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CORAM: HON'BLE MR JUSTICE K.SOMASHEKAR and HON'BLE MR JUSTICE RAJESH RAI K

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ORAL JUDGMENT

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(PER: HON'BLE MR JUSTICE RAJESH RAI K)

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This appeal by the convicted accused is directed against the judgment of conviction and order of sentence dated 13.07.2017 passed in S.C.No.40/2013 by the I Additional District Sessions Judge, Kodagu, wherein the learned Session Judge convicted the accused for the offence punishable under Sections 302 and 201 of IPC and sentenced him to undergo rigorous imprisonment for life and to pay fine of Rs.7,500/- for the offence punishable under Section 302 of IPC. Further, the accused also sentenced to undergo rigours imprisonment for five years and to pay fine of Rs.5,000/- for the offence punishable under Section 201 of IPC. It is held that

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substantive sentence of imprisonment imposed on the convict shall run concurrently.

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The factual matrix of the prosecution case is that, the deceased in this case, one Roopa, daughter of PW.2-Swamy Shetty and CW.3-Jayamma, was married to one Vasu Shetty, who was the brother of PW.3-Revanna Shetty, about six to seven years prior to the date of incident, i.e., 19.10.2012. Out of the said wedlock, they have begotten two female children. The said Vasu Shetty, i.e., the husband of Roopa, died four years prior to the incident. It is further alleged that since two years prior to the incident, the deceased Roopa, had developed an illicit relationship with the accused/appellant and all the family members of the accused knew about her relationship with the accused, and they were quarreling to that effect. The deceased Roopa was pressuring the accused to marry her and to take her to Coorg. Due to the same, the accused lost his peace of mind and decided to commit her murder.

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Accordingly, on 19.10.2010, the accused took the deceased Roopa, in his motorcycle bearing registration No.KA9-EJ-8157 towards Coorg. He brought her to Hosakadu Paisary Forest in Annekadu of Basavanahalli Village and made her

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consume juice, which was mixed with sleeping pills. At that time also, she insisted the accused marry her. Hence, there was a quarrel took place between them. Enraged by the same, the accused strangulated her, pressing her neck with his hands. When she became unconscious and fell down facing the ground, the accused again strangulated her with a cloth piece and committed her murder. Thereafter, he dropped a big stone on her head in order to conceal her identity. Later, he fled away from the spot by taking her purse, voter ID card, and a key bunch.

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On 20.10.2012, PW.1, one Prasanna, lodged a complaint before Kushalnagara Police, Kodagu, about the unidentified dead body of a lady found at Hosakadu Paisary, at Kushalnagara. Based on the said complaint, Kushalnagara Police registered a case against unknown persons for the offences punishable under Section 302 and 201 of IPC in Crime No.196/2012 dated 20.10.2012 as per Ex.P28.

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Subsequently, on 22.10.2012, PW.3-Revanna Shetty, i.e., the brother-in-law of deceased, lodged a missing complaint about deceased Roopa and the same has been registered in Crime No.150/2012 dated 22.10.2012, by the

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Bettadapura Police Station, Mysuru, for a man missing as per Ex.P20. Later, the said police gave a lookout notice about the missing Roopa. As such, on 06.11.2012, Bettadapura Police called PW.3-Revanna Shetty to identify a dead body. Accordingly, PW.3 identified the photos of the dead body and the video shown to him is that of deceased Roopa.

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During the course of investigation, since the accused was having an illicit relationship with the deceased, the respondent-police i.e. Kushalnagara police arrested him on 14.11.2012. Based on his voluntary statement, implicated him in the alleged crime and thereafter, he led the police to the spot where the dead body was found. Subsequently, recorded the statement of all the witnesses, also drawn the necessary mahazars and after obtaining relevant documents from the concerned Authority, PW.26 laid a charge sheet against the accused for the offences punishable under Sections 302 and 201 of IPC before the committal Court.

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After committal of the case to the Sessions Court, after securing the presence of the accused, the learned Sessions Judge framed the charges for the offence punishable under Sections 302 and 201 of IPC read over the same to the

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accused. However, the accused pleaded not guilty for the charges levelled against him and claimed to be tried.

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In order to bring home the guilt of the accused for the charges levelled against him, the prosecution examined in total 27 witnesses as PW.1 to PW.27 and marked 28 documents as per Ex.P1 to Ex.P28 and also identified 24 material objects as MO.1 to MO.24. After completion of the trial, the learned Sessions Judge recorded statements under Section 313 of Cr.P.C., wherein the incriminating portion of the evidence read over to the accused and the accused denied the same. The defence of the accused is one of total denial and that of false implication. However, the accused neither examined any witnesses nor produced any documents in his favour.

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After hearing the learned counsel appearing on both the sides and on assessment of the oral as well as documentary evidence available on record, the learned Sessions Judge convicted the accused for the aforesaid offences charged against him. The said judgment is challenged under this appeal.

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We have heard Sri Hashmath Pasha, learned Senior counsel for the appellant/accused and Smt. Sowmya R., learned HCGP for the respondent-State.

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Sri Hasmath Pasha, learned Senior counsel for the accused, vehemently contends that the judgment under this appeal suffers from perversity and illegality, and the learned Sessions Judge convicted the accused for the offences as stated supra without appreciating the evidence on record from the right perspective, which caused miscarriage of justice to the accused. According to the learned Senior Counsel, the entire case of the prosecution rests on circumstantial evidence and the prosecution miserably failed to prove the chain of circumstances against the accused. Except the unbelievable evidence of PW.4 and PW.6, the witnesses for the last scene circumstance, i.e., the accused and deceased going together on a motorbike on 19.10.2012 at about 12.00 p.m. towards Kampalapura, absolutely no other evidence available on record to connect the accused in the homicidal death of deceased Roopa. He would contend that according to PW.4 and PW.6, they have informed the above aspect to PW.3 on 19.10.2012 itself, but PW.3 neither lodged any complaint nor expressed

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any doubt against the accused till 22.10.2012 and he did not mention the name of the accused in the missing complaint lodged by him as per Ex.P4 on 22.10.2012. Hence, the versions of PW.4 and PW.6 cannot be trust worthy to believe.

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Learned Senior counsel would further vehemence his submission that the prosecution has failed to prove the motive for the alleged incident. Though the prosecution examined PW.3, the brother-in law of the deceased and PW.4, PW.6 and PW.7, the close relatives of the deceased, to prove the motive aspect that the deceased and accused were having illicit relationships and the deceased insisted the accused to marry her, enraged by the same he committed her murder, the evidence of the above witness is only in the nature of hearsay that in the village, the people were whispering the illicit relationship of the accused and the deceased. Except for such hearsay evidence, there is no concrete evidence placed by the prosecution to prove the motive against the accused for the commission of the crime. He would also contend that since the case is based on the circumstantial evidence as per the settled principles of law laid down by the Hon’ble Apex Court in a catena of judgments, if the prosecution failed to prove all the

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circumstances by tendering conclusive nature evidence, the accused deserves an acquittal. Accordingly, he prays to set aside the impugned judgment.

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Per contra, the learned HCGP/SPP-II would contend that the learned Sessions Judge, after meticulously examining the evidence on record, passed a well reasoned judgment which does not call for any interference by this Court. He would submit that PW.4 and PW.6, the independent witnesses are categorically deposed that the deceased and accused were traveling on a motor bike belongs to the accused on 19.10.2012. According to them, the accused along with the deceased, were going towards Kampalapura on that day. As such, the accused has to explain when and where the deceased parted his company. If he failed to do so, then an adverse inference can be drawn against him. Learned HCGP/SPP further contend that PW.3 and PW.7 categorically deposed about the illicit relationship of deceased with the accused and also that the deceased was insisting the accused marry her. In such circumstances, the motive also proved by the prosecution. The learned SPP further contends that the recovery of the election ID card, key bunch and purse belongs to the deceased

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as per MO.21 to MO.23 respectively and are seized under Ex.P12. Nevertheless, MO.24, i.e., the cloth piece in which the accused said to have strangulated the deceased, also recovered at the instance of the accused. PW.17, the witness for the said recovery, supported the case of prosecution. Accordingly, the learned SPP prays to dismiss the appeal by confirming the impugned judgment.

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We have bestowed our anxious consideration on the oral and documentary evidence placed before us and also meticulously perused the material available on record including the trial Court records.

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Having heard the learned counsel for

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appellant/accused and the learned Additional SPP-II for the respondent/State, the points that would arise for our consideration are:

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“(i) Whether the judgment under this appeal suffers from perversity and illegality? and

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(ii) Whether the learned Sessions Judge is justified in convicting the appellant/accused for the offences punishable under Sections 302 and 201 of IPC?”

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This Court being the Appellate Court, in order to, re-appreciate the entire material available on record, it is relevant to consider the entire prosecution witnesses and the documents relied upon. On a cursory glance of the evidence deposed by the witness before the trial Court, are as under:

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(i) PW.1-Prasanna, a member of Gudde Hosuru Village Panchayath, lodged the complaint as per Ex.P1, based on the information provided by PW.14 about the unidentified dead body found at Hosakadu Forest. He reiterated the contents as per Ex.P1.

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(ii) PW.2-Swamy Shetty, is the father of deceased Roopa deposed that his daughter married one Vasu Shetty about 6-7 years prior to the incident. Out of their wedlock, they have begotten two children and later, her husband Vasu Shetty died four years prior to the incident. He also deposed that the accused resides at a distance of 100 meters from the house of deceased. According to him his daughter was missed from 19.10.2012 and thereafter, she did not return. Later, he came to know that she was murdered at Paisary, Forest Area and he identified the dead body. Subsequently, he came to

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know that the deceased and accused were having illicit relationship.

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(iii) PW.3-Revanna Shetty is the brother of deceased Roopa and he lodged the missing complaint on 22.10.2012. Thereafter, on 06.11.2012, Bettadapura Police informed about the publication in the newspaper about the death of woman and he identified the dead body of deceased Roopa in the photo published in the newspaper. He also stated that the accused has caused her death for the reason that they both were having illicit relationship and the deceased insisted the accused to marry her.

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(iv) PW.4-Ramesh Shetty and PW.6–Chandrika are the husband and wife, according to them, on 19.10.2012, when they were returning from their village Hebburu, they saw accused and deceased going towards Kamplapura, infront of the Temple at Belalu Village on a motorcycle. According to them, later on the same day, they informed PW.7 to call the accused to find out where he was going with the deceased but the accused did not respond to the call. Thereafter, they came to know the death of the deceased and involvement of the accused.

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(v) PW.5-Suresh is the brother of PW-2 reiterated the evidence of PW.2.

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(vi) PW.7-Keerthi, deposed that on 19.10.2012, PW.4 and PW.6 informed her that they have seen accused and deceased going on motorcycle at about on 19.10.2012, when she called the accused in the evening hours, he informed that he is in his mother-in-law’s house at Harasukallalli and discontinued the call. Thereafter she came to know about the death of the deceased and the involvement of the accused.

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(vii) PW.8, is a neighbor of deceased and accused deposed that on 19.10.2012 at about 11.00 a.m. he saw the deceased Roopa in the Bus stand at Kelaganahalli Village. Thereafter, two days he came to know about her missing and subsequently about her death.

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(viii) PW.9, PW.10 and PW.13 are the witnesses for Ex.P6-Inquest Panchanama/Mahazar among them PW.9 and PW.13 are partly turned hostile to the prosecution case. However, PW.10 supported the case of prosecution by identifying his signature on Ex.P6-Inquest Panchanama.

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(ix) PW.11 and PW.12 are the witnesses for seizure mahazar as per Ex.P8 i.e. seizure of clothes and ornaments of the deceased as per MO.17. However, both these witnesses have turned hostile to the prosecution case.

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(x) PW.14 is a circumstantial witness, about recovery of MO.4 and MO.5 so also MO.16 to MO.20 seized under Ex.P9 and Ex.P10. However, he turned hostile to the prosecution case.

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(xi) PW.15 and PW.16 are the witnesses for Ex.P11 i.e. Spot Mahazar. However, both have turned hostile to the prosecution case.

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(xii) PW.17 and PW.18 are witnesses for Ex.P12 i.e. seizure of MO.21 to MO.23 i.e., belongings of the deceased.

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(xiii) PW.19, the medical officer, who conducted the autopsy on the dead body and issued postmortem report as per Ex.P13.

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(xiv) PW.20, a witness for Ex.P16 i.e. Mahazar drawn during the cremation of the deceased. However, he turned hostile to the prosecution case.

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(xv) PW.21, the then HSO of Bettadapura police station received Ex.P4 and registered FIR in Crime No.150/2012 as per Ex.P20.

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(xvi) PW.22, the then PSI of Bettadapura police got issued the publication in newspaper about the missing of deceased Roopa along with her photographs as per Ex.P21.

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(xvii) PW.23, the Scientific Officer issued FSL report as per Ex.P22.

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(xviii) PW.24, the then Woman Police Constable, guard of the dead body and handed over belongings of the deceased to the family.

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(xix) PW.25, the Police Constable apprehended the accused on 14.11.2012 and produce before the investigating officer.

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(xx) PW.26, the Investigation Officer, who conduct the investigation and laid the charge sheet against the accused before the committal Court.

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(xxi) PW.27, the then PSI Kushalnagar Police Station, received Ex.P1-complaint from PW.1 and registered FIR in Crime No.196/2012 as per Ex.P28 and apprehended the

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accused along with PW.24 on 14.11.2012 and produced before the investigation officer.

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By careful perusal of the above evidence, in order to prove the homicidal death of the deceased, the prosecution relied on the evidence of PW.19, the doctor, and the postmortem report issued by him as per Ex.P13. On careful perusal of Ex.P13, the doctor, has found four injuries on the dead body, and he opined that the death is due to comatose-asphyxia as a result of the combined effect of head injury sustained and strangulation. Apart from this evidence, the prosecution also relied on the inquest panchanama drawn by PW.26 as per Ex.P6 in the presence of PW.9, PW.10 and CW.16. All these witnesses have deposed that the injuries found on the dead body are antemortem in nature. On a conjoint reading of Ex.P6 and Ex.P13 coupled with evidence of PW.9, PW.10 and PW.26, we are of the considered view that the prosecution has proved the homicidal death of the deceased beyond reasonable doubt. Nevertheless, the accused has not seriously disputed the homicidal death of the deceased.

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In order to connect the accused to the homicidal death of the deceased, the prosecution mainly relied on the

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evidence of PW.2, PW.3, PW.4, PW.6 and PW.7. Among these witnesses, PW.2, PW.3, PW.6 and PW.7, deposed about the motive for the alleged incident, i.e., the illicit relationship of accused and the deceased. It is the case of prosecution that the deceased had illicit affair with the accused and accused married one year prior to the date of the incident, and as such, the deceased was insisting him to marry her. Hence, enraged by the same, the accused committed her murder. On careful perusal of the evidence of these witnesses, none of them have stated that, they personally known the illicit relationship between the accused and deceased. Per contra, they have stated that they heard through some of the villagers that the accused and deceased were having illicit relationship. Hence, their version in respect of the motive for the incident has to be considered as a hearsay evidence. Nevertheless, these witnesses have also deposed about the missing of deceased Roopa from 19.10.2012 and subsequent lodging of complaint by PW.3 i.e., the brother-in-law of the deceased, and later identification of the dead body of the deceased through photos and videos recorded by the police. Though PW.2 and PW.3 identified the belongings of the deceased as per MO.7 to

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MO.20, they failed to depose that the accused and the deceased were having an illicit relationship. It is the evidence of PW.2, PW.3 and PW.7 that after the arrest of the accused, based on the voluntary statement of the accused to the police, they came to know that the accused and the deceased were having illicit relationship, and subsequently, the accused committed the murder of deceased Roopa. Hence, on perusal of the above evidence, the prosecution failed to prove the motive for the alleged incident.

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One more circumstance on which the prosecution relied is the last scene theory based on the evidence of PW.4 and PW.6. On careful perusal of the evidence of these witnesses, they both deposed that on 19.10.2012, at about 12.00 noon, while they were returning to Hebburu village, they saw the accused and the deceased were going on motorbike. This fact was informed to PW.7-Keerthi. Though PW.7 called the accused, according to her, the accused informed her that he is in his mother-in-law's house and thereafter, he disconnected the call. It is further deposed by PW.4 and PW.6 that on 20.10.2012, they both informed the said fact to PW.3Revanna Shetty. However, the said Revanna Shetty neither

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informed the said aspect to the police nor lodged any complaint against the accused. Nevertheless, though PW.3 lodged the missing complaint on 22.10.2012 at Bettadapura Police station, he has neither disclosed the information provided by PW.4 and PW.6 on 20.10.2012, nor expressed any doubt against the accused. Subsequently, on 06.11.2012, he identified the dead body of the deceased through the police publication i.e., the photographs as per Ex.P3. He also identified the dead body of the deceased Roopa through the videos which recorded by the Bettadapura Police. However, on that day also, PW.3 failed to inform the alleged information received by him from PW.4 and PW.6 to the police. Respondent-police arrested the accused on 14.11.2012 based on the statement of PW.4 and PW.6 which recorded on 10.11.2012. As such, the evidence of PW.4 and PW.6 cannot be considered as a gospel truth for the reason that, if they had informed seeing of accused and deceased on 19.10.2012 to PW.3 on 20.10.2012, then there is no reason for PW.3 not to disclose the same to the police till 10.11.2012 i.e., for a period of 20 days. Hence, there is a doubt arise in the mind of this Court about the evidence of PW.4 and PW.6. Moreover, in the evidence of PW.4, he categorically deposed

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that the accused himself is not on talking terms. Though the learned counsel for the accused suggested him that there is a civil dispute pending between the accused and the mother of PW.4 and they quarreled to that effect. Hence, considering all the above aspects, in the light of certain contradictions, the testimony of PW.4 and PW.6 is not trustworthy to believe on the face of it.

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One more circumstance relied by the prosecution is recovery of motorbike and MO.21 to MO.23 under Ex.P12 at the instance of the accused. Though PW.17 and PW.18, the panch witnesses partially supported the said recovery mahazars. Nevertheless, these witnesses have deposed that the accused produced MO.21 to MO.23 from the motorcycle. As such, these witnesses have treated hostile by the prosecution and in the cross-examination, PW.17 stated that MO.21 to MO.23 seized from the house of the father of the accused. Hence, there is a clear contradiction in the evidence of PW.17 and PW.18 in respect of seizure of MO.21 to MO.23 under Ex.P12. The other mahazar witness-PW.20 for Ex.P16 and PW.15 and PW.16 for Ex.P11 i.e., the spot mahazar, are totally turned hostile to the prosecution case. Even PW.14 also turned hostile to the

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recovery of MO.1, MO.4, MO.5 and MO.16 to MO.20 under Ex.P9 and Ex.P10. Hence, we have no hesitation to hold that the prosecution also failed to prove the circumstance of recovery of the material objects belongs to the deceased at the instance of the accused.

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Since the case on hand totally rests on circumstantial evidence, it is the settled principles of law that the prosecution has to prove the circumstance by completing the links in the chain of evidence by the witnesses. Further the said circumstances must point to the guilt of the accused with the definiteness, and also those circumstances are in proximity to the time and situation.

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22. The panchasheela/golden principles laid by the

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Hon’ble Apex Court in order to prove the guilt of the accused in a case based on circumstantial evidence, in the case of Sharad

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Birdhichand Sarda v. State of Maharashtra reported in (1984) 4 SCC 116 which was re-iterated by the Hon’ble Apex Court in the recent judgment i.e., Shankar v. State of Maharashtra reported in 2023 SCC OnLine SC 268 held as under.

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“(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established. 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 [(1973) 2 SCC 793] where the following observations were made: 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.”

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(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.

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

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

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(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.”

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Hence, the entire evidence and circumstances relied

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upon by the prosecution juxtapose with the guidelines issued by the Hon’ble Apex Court in the above judgment, we are of the considered view that the prosecution failed to prove the guilt of the accused beyond reasonable doubt. The learned Sessions Judge misread the evidence on record and wrongly convicted the accused for the offences punishable under

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Sections 302 and 201 of IPC. As such, interference by this Court in the impugned judgment is called for.

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In that view of the matter, we answer the points

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raised above in affirmative and proceed the following order.

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ORDER

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i. The Crl.A.No.1272/2017 preferred by the appellant/accused is hereby allowed .

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ii. Consequent, the judgment of conviction and order of sentence passed by the Court of I Addl. District and Sessions Judge, Kodagu at Madikeri in S.C.No.40/2013 dated 13.07.2017 is hereby set-aside.

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