State appeal against acquittal of the accused for murder and destruction of evidence; death by strangulation proved but circumstances linking the accused were not. Court held confessional FIR inadmissible and acquittal not perverse, dismissing the appeal.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 19TH DAY OF JANUARY 2024
PRESENT
THE HON'BLE DR. JUSTICE H.B.PRABHAKARA SASTRY
AND
THE HON'BLE MR JUSTICE UMESH M ADIGA
CRIMINAL APPEAL No.1798 OF 2017 (A)
BETWEEN:
THE STATE OF KARNATAKA THROUGH CPI, SOMWARPET CIRCLE, SHANIVARSANTHE P.S. REPRESENTED BY STATE PUBLIC PROSECUTOR, HIGH COURT BUILDING, BENGALURU - 560 001. ... APPELLANT
(BY SRI. B.N. JAGADEESHA, ADDITIONAL SPP)
AND:
SRI B S NAVEENA @ GURUPADASWAMY S/O LATE SADASHIVA, COOLIE, PRESENTLY R/O LINE HOUSE OF GUNDAPPA, NIDTHA VILLAGE, KANIVE BASAVANAHALLI VILLAGE, SHANIVARASANTHE HOBLI, SOMWARPET TLAUK.
PERMANENT R/O BADAKYATHANAHALLI, HALLIMYSORE HOBLI, HOLENARASAPURA TALUK, HASSAN DISTRICT – 573 211. … RESPONDENT (BY SRI. S. JAVEED, AMICUS CURIAE)
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THIS CRIMINAL APPEAL IS FILED UNDER SECTION 378(1) AND (3) OF CR.P.C. PRAYING TO GRANT LEAVE TO APPEAL AGAINST THE JUDGEMENT AND ORDER DATED 15.06.2017 PASSED BY THE PRINCIPAL DISTRICT AND SESSIONS JUDGE, KODAGU, MADIKERI IN S.C.NO.36/2016 ACQUITTING THE RESPONDENT/ACCUSED FOR THE OFFENCES PUNISHABLE UNDER SECTIONS 302, 201 OF IPC.
THIS CRIMINAL APPEAL COMING ON FOR FURTHER ARGUMENTS HAVING BEEN HEARD THROUGH PHYSICAL HEARING/VIDEO CONFERENCE AND RESERVED FOR JUDGMENT ON 08.12.2023, COMING ON FOR PRONOUNCEMENT, THIS DAY, UMESH M. ADIGA J., DELIVERED THE FOLLOWING:
JUDGMENT
This is a State’s appeal against the judgment passed in S.C.No.36/2016 on the file of Principal District and Sessions Judge, Kodagu, Madikeri, acquitting the accused of the offences punishable under Section 302 and 301 of IPC.
that:
Deceased Smt. Mani was live-in relationship with
accused. It appears, she was married to PW-9 – Ningaraju. About four years prior to the incident,
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deceased quarrelled with PW-9, left his company and started living with accused. Initially, accused was living at Abbur village in Arkalagudu Taluk along with deceased Smt. Mani. Both of them were serving as a coolie. Thereafter, both of them shifted to Kannive Basavanahalli Village and serving in the coffee garden of one Mr.Gundappa. There were line of houses in the said coffee garden, one of such houses was given to deceased Smt. Mani and accused; and both were residing in the said house and serving in the coffee garden of Mr. Gundappa. It appears there is a pond situated in the coffee garden of Mr. Gundappa, which was situated about 150 to 200 metres away from line houses situated in the coffee garden.
prior to death of deceased Smt. Mani, she had been suffering from uterus cancer. Accused had spent more than rupees two lakhs for her treatment; inspite of that, she was not cured. Accused had provided treatment to
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her from Father Muller’s Hospital at Mangaluru. He had to take her frequently to the said hospital for treatment. It appears accused had spent for treatment of deceased Smt. Mani by obtaining loan from others and he did not repay the same. It appears that deceased Smt. Mani had severe stomach pain due to the cancer. Even she was unable to do coolie work as well as household work. She was requesting the accused to prepare the food for them. Due to lot of spending on treatment of Smt. Mani by obtaining loan as well as she was unable to do any work and he had to work at home also to prepare the food to both of them, he was very much frustrated and angry against the deceased Smt. Mani. Often he was thinking to murder her.
4. It appears on 10.10.2015, during the mid-night,
around 12.00 hours, accused hatched a plan to murder deceased Smt. Mani and threw her body in the pond situated in the land of Mr.Gundappa. He went outside his house and verified. He found no movement of people or
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vehicle; even house of his neighbour was locked since they had gone to their native place. Accused thought it fit to commit the crime since there were nobody to see the same.
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of deceased. PW-3 informed said fact to PW-6. In the afternoon, PW-6 found that accused was inside his house. He informed about the finding of slippers of deceased Smt. Mani on the stair case of pond and enquired accused whereabouts of deceased Smt. Mani. Accused told him that deceased Smt. Mani had gone to her parents house.
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removed from the pond with the help of PW-10 – Subramani and PW-11 – Shivaji. PW-15 drew inquest on the dead body in the presence of witnesses and requested PW-13 – Dr. Shivaprasad H.S, Medical Officer, Shanivarasante Government Hospital to conduct the post mortem at the spot since the body was decomposed. Accordingly, PW-13 conducted the post mortem. Thereafter, PW-15 shifted the body to the mortuary of Government Hospital, Shanivarasanthe.
Report was indicating that death was due to asphyxia, as
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a result of strangulation with fracture of thyroid cartilage. Even considering the inquest also, PW-15 suspected that it was not unnatural death but homicidal death. He prepared self report as per Ex.P14 and on that basis registered Cr.No.157/2015 and submitted the FIR to the Magistrate as per Ex.P15.
he would show the place wherein he had committed crime and also produce incriminating materials. PW-17 recorded his confession.
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Thereafter, accused took police and others to the pond, wherein he had thrown the dead body. PW-17 drew the mahazar in the said spot. PW-17 recorded the statement of witnesses; collected the relevant documents and on conclusion of the investigation submitted the charge sheet to the Court of JMFC for the offences punishable under Sections 302 and 201 of IPC.
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and framed the charges for the offence punishable under Sections 302 and 201 of IPC. Accused pleaded not guilty. The prosecution to prove its case examined PW-1 to 17, got marked Ex.P1 to P17 and M.Os 1 to 6 and closed its evidence. The learned Sessions Judge examined the accused under Section 313 of Cr.P.C., and recorded answers of the accused. Accused did not offer defence evidence when called upon.
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specifically denied in the cross-examination by the accused, it is proved that accused and deceased, were living together in the house situated in the coffee garden of Mr.Gundappa. On 10.10.2016, PW-3 – Smt. Manjula, met deceased in her house and the deceased was telling her that she was very much depressed since she had been suffering from cancer. The deceased had taken treatment from different hospitals at the cost of accused. These facts were not denied by the accused. Postmortem report and inquest reveal that deceased Smt. Mani died due to asphyxia as a result of strangulation. The learned Additional SPP would further submit that accused himself has given a report to police as per Ex.P7, informing that deceased slept in the house on 10.10.2015, but he did not find her on the next day morning. The said statement of accused clearly indicates that accused had last seen deceased on 11.10.2015 around 6.00 a.m. Thereafter, her dead body was found in the pond. Therefore, it is for the accused to explain the cause of death of Smt. Mani. Accused did not give
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any explanation. Hence, under Section 106 of Indian Evidence Act, onus shift on the accused to give explanation/evidence regarding cause of death of Smt. Mani.
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would submit that there are no evidence to connect the accused with the guilt. The case was built up on circumstantial evidence. No circumstances are proved by the prosecution. Deceased was said to be suffering from cancer and regularly taking treatment. No medical records are produced to prove that she was suffering from cancer. Accused had said to be spent lot of amount for her treatment and he had obtained loans. No evidence is let in to prove the said fact. There are no materials to prove that accused alone could be responsible for death of Smt. Mani. Her dead body was found in the pond, which is in an open area. Deceased left her legally married husband and children and was said to be residing with accused. Her husband might have grievance about her illicit relationship with accused. There are chances that he might be involved in this crime. There are no evidence to prove that there were frequent quarrels between accused and deceased and that resulted
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in murder of Smt. Mani. In the absence of these facts
and only on the basis of evidence of police officer, the accused cannot be convicted. The learned Sessions Judge, properly appreciated the evidence. The learned trial Judge, considering the law laid down by this Court and Hon’ble Apex Court, held that prosecution was not able to prove circumstances to convict the accused. Therefore, the impugned judgment is a well reasoned order and does not call for any interference and prayed to dismiss the appeal.
i. Whether prosecution proved beyond reasonable doubt that on 10.10.2015 during the mid-night around 12.00 hours in Kannave Basavanahalli village, with an intention to murder Smt. Mani strangulated her with the help of scarf and murdered her and thereby accused has committed an offence punishable under Section 302 of IPC?
II. Whether the prosecution has proved beyond reasonable doubt that after the murder of Smt. Mani to destroy/conceal evidence against him, threw the dead body of Smt. Mani in the pond situated in the land of Mr. Gundappa at Kannive Basavanahalli and thereby committed an
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offence punishable under Section 201 of IPC? III. Whether the findings of the learned trial Judge is perverse and arbitrary and interference by this Court is required? iv. What order?
The prosecution has to prove each circumstances to connect the accused with the guilt. The prosecution has to prove the following circumstances:
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is a homicidal death, the prosecution examined PW-1, who is one of the co-owner of the land wherein pond is situated and also co-owner of the coffee garden of Mr. Gundanna. In his evidence, he has stated about the finding of the dead body of Smt. Mani, in the pond; removal of the same by the Police and drawing of inquest as per Ex.P1. He also identified dress material found on the dead body as M.Os. 1 to 5. He did not fully support the case of prosecution, therefore, the learned Public Prosecutor partially treated him as hostile witness and cross-examined him. In the cross-examination of learned SPP, he denied of seeing ligature mark on the neck of dead body. The accused has not cross-examined the witness.
Mani on 14.10.2015 and witness to Ex.P1. He
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corroborated evidence of PW-1. He did not fully support the case of prosecution, therefore, the learned Public Prosecutor partially treated him as hostile witness and cross-examined him. In the cross-examination of learned SPP, he denied of seeing ligature mark on the neck of dead body. The accused has not cross-examined the witness.
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Prosecutor treated her as hostile witness and crossexamined her. In the cross-examination of learned SPP, she denied her previous statement given to police as per Ex.P1 (e) and Ex.P4. The accused has not crossexamined the witness.
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of the inquest on the body and post-mortem near the pond. These facts were not disputed by the accused. The said witnesses have not fully supported the case of the prosecution and in the cross-examination by the learned prosecutor nothing was brought out to show that they were not deposing true fact before the Court. However, there evidence regarding cause of death is not consistent with the case of the prosecution. They pleaded ignorance about cause of death and also have stated that they had not seen ligature mark on the neck of dead body. Two of them have stated that she died due to cancer. Evidence of the above said witnesses will not help the case of prosecution to connect the accused with the guilt.
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Ex.P12. According to his evidence, death was due to “asphyxia as a result of strangulation. Due to that impact, reddened area seen around the neck with fracture of thyroid cartilage. The said mark is antimortem. Duration of the death might be 3 to 4 days prior to post-mortem. If a person tied the scarf around the neck then thyroid cartilage can be fractured and due to that death can be caused.” In his cross-examination by the accused, he has stated that he did not mention time of death or duration of death before post mortem in the post mortem report. He denied the suggestions of the accused that such a strangulation mark can be caused by creepers. Nothing is brought out to disbelieve his evidence. It is true that in Ex.P12, he has not stated that the said ligature mark was by scarf. According to Ex.P1, the said scarf was found around the neck of dead body. The investigating officer appears to be not sent the said scarf and obtained the opinion of PW-13 to prove ligature article. However, in the cross-examination
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of PW-13 by the accused, he was not questioned regarding the said scarf used for strangulation.
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circumstances, on the basis of such mahazars accused cannot be convicted in such a heinous crime.
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to be admitted as evidence, entire contents of documents has to be accepted. Prosecution cannot contend that statement which is in its favour has to be accepted and which is against its case has to be rejected; that is not permissible.
Where the FIR is given by an accused himself to a police officer and amounts to a confessional statement, proof of the confession is prohibited by Section 25 of the Evidence Act.
1 (1994) 2 SCC 467
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No part of the confessional statement can be proved or received in evidence, except to the extent it is permitted by Section 27 of the Evidence Act. The FIR recorded under Section 154 Cr.P.C. is not a substantive piece of evidence. It may be used to corroborate the informant under Section 157 of the Evidence Act or to contradict him under Section 145 of the Evidence Act in case the informant appears as a witness at the trial. Where the accused himself lodges the FIR, the facts of his giving the information to the police is admissible against him as evidence of his conduct under Section 8 of the Evidence Act and to the extent it is non-confessional in nature, it would also be relevant under Section 21 of the Evidence Act but the confessional part of the FIR by the accused to the police officer cannot be used at all against him in view of the ban of Section 25 of the Evidence Act.
In the present case the FIR discloses the motive for the murder and the manner in which the appellant committed the six murders. The appellant produced the bloodstained sword with which according to him he committed the murders. However, the FIR is not a wholly confessional statement, but only that part of it is admissible in evidence
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which does not amount to a confession and is not hit by the provisions of Section 25 of the Evidence Act. The relationship of the appellant with the deceased; the motive for commission of the crime and the presence of his sister-inlaw do not amount to the confession of committing any crime. Those statements are non-confessional in nature and can be used against the appellant as evidence under Section 8 of the Evidence Act. The production and seizure of the sword by the appellant at the police station which was bloodstained, is also saved by the provisions of the Evidence Act. However, the statement that the sword had been used to commit the murders as well as the manner of committing the crime is clearly inadmissible in evidence.”
The law laid down in the above said judgment is applicable to the facts of the present case. Hence, the submission of learned Additional SPP is not acceptable.
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was suffering from cancer and accused had spent more than rupees two lakhs for her treatment. They are material circumstances to prove the guilt of accused. However, no materials are collected to prove the said facts. Investigating officer has also not collected evidence to show that the accused was indebted by an extent of more than rupees two lakhs to treat the deceased. therefore, the said circumstances are not proved by the prosecution.
relationship cannot be ground to presume that he was responsible for her death. It is pertinent to note that dead body was not found in the house of accused on the contrary it was found in a pond, it was found which is open to public. Anybody could have access to the said pond. There might be chances of someone murdered her for some reason and thrown the dead body in the pond. Therefore, the accused is not responsible to explain cause of her death as provided under Section 106 of
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Indian Evidence Act. Merely accused did not give any explanation cannot be a ground to hold him guilty. For the sake of discussion, even if we consider Ex.P7, accused has given an explanation stating that on that day morning around 6.00 a.m., she left the house and did not return. These facts might be true and it cannot be held to be false merely because it was statement made by the accused. Hence, the contention of learned Additional SPP is not acceptable.
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There was no necessary for him to murder her and there is no motive to him to murder her. All these circumstances creates serious doubt to believe that accused alone was responsible for death of Smt. Mani and shifting her dead body to pond.
to 3 in the ‘Negative’ and proceed to pass the following:
ORDER
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Madikeri in Sessions Case No.36/2016
dated 15.06.2017 is confirmed.
iii. Office shall send back the Sessions Court records to trial court along with the copy of the judgment.
The Court, while acknowledging the services rendered by the learned Amicus Curiae Sri. S. Javeed, we direct the registry to pay the Honorarium of `6,000/- (Rupees Six Thousand only) to learned Amicus Curiae.
Sd/JUDGE
Sd/JUDGE
AG
3 issues framed by the court
Whether the prosecution proved the accused strangled the deceased and committed her murder under Section 302 IPC on circumstantial evidence?
Whether the accused concealed evidence by throwing the body in a pond under Section 201 IPC?
Whether the trial court's acquittal was perverse and required interference?
Colour shows how this judgement treated each authority
Bheru Singh S/o Kalyan Singh vs. State of RajasthanRelied on¶35
(1994) 2 SCC 467 · Who else cites this
5 provisions across 3 enactments
State of Karnataka through CPI, Somwarpet Circle, Shanivarsanthe P.S.
B S Naveena @ Gurupadaswamy S/o Late Sadashiva
H.B. Prabhakara Sastry
Umesh M Adiga
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
