ESHWARAPPA Vs STATE OF KARNATAKA
Bench: T.S. THAKUR,ADARSH KUMAR GOEL
Case number: Crl.A. No.-001951-001951 / 2012
Diary number: 29178 / 2012
Advocates: RANBIR SINGH YADAV Vs
V. N. RAGHUPATHY
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REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.1951 OF 2012
Eshwarappa …Appellant
Versus
State of Karnataka …Respondent
J U D G M E N T
T.S. THAKUR, J.
1. This appeal arises out of a judgment and order dated 10th
August, 2011 passed by the High Court of Karnataka at Bangalore,
whereby the High Court has dismissed Criminal Appeal No.1676 of
2007 filed by the appellant thereby affirming his conviction for
offences punishable under Sections 302, 498A and 201 of the
Indian Penal Code, 1860 and the varying sentences of
imprisonment and fine awarded to him for the same.
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2. The deceased-Latha and the appellant herein got married to
each other on 20th March, 2003. The prosecution version is that the
deceased-Latha and her husband the appellant herein lived happily
for a few months after their marriage in March 2003 during which
time Latha conceived and gave birth to a female child. The marital
relationship, however, soured when the appellant developed illicit
relations with one Sarpina @ Sarfunnisa arrayed as accused no.2
before the Trial Court. The deceased-Latha, but naturally took
exception to this relationship and informed her parents about the
same who had a panchayat convened in the village to resolve the
matter. The panchayat, according to the prosecution, advised the
appellant to end his relationship with Sarpina, his paramour, which
the appellant agreed to do. That commitment was however
observed but only in breach as the illicit relationship between the
appellant and Sarpina continued resulting in frequent quarrels
between the appellant and the deceased-Latha. The prosecution
case is that although the parents of the deceased had given dowry
articles to the deceased including a sum of rupees one lakh
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towards cash, the appellant was demanding more money for
purchase of a site. In order to satisfy that demand, the parents of
the deceased had mortgaged their land and paid a sum of
Rs.50,000/- to the appellant. It is also alleged that the appellant
was neglecting the deceased and was residing with Sarpina,
accused no.2. The deceased was provoked by this conduct and is
alleged to have gone to the house of Sarpina (A-2) to lodge her
protest in an attempt to wean the appellant away from the illicit
relationship. This provoked the appellant, who assaulted the
deceased. The parents of the deceased had in that background
taken the deceased away to her parental home with her minor
child. The prosecution case is that a day prior to the incident the
parents of the deceased brought the deceased-Latha back to her
matrimonial home in village Lakya, but the appellant’s cruel
behaviour towards her continued unabated. On the fateful day, the
deceased appears to have asked the appellant to pay her some
money so that she could take her sick child to the doctor. The
appellant is alleged to have asked her to come to the field, where
the appellant was going for work to collect the money. According to
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the prosecution, Latha followed her husband to the field while her
parents returned to their village, but only to receive by evening the
sad news that their daughter was lying dead under a tamarind tree
near the land of the appellant in his village. They rushed to the
village and the place of occurrence only to find that the deceased
had died of strangulation. The matter was, thereupon, reported to
the police who registered a case, commenced and completed the
investigation and filed a charge-sheet not only against the
appellant whom the prosecution accused of committing offences
punishable under Sections 498A, 302 and 201 IPC but even against
the parents of the appellant and Sarpina, the alleged lady love of
the appellant.
3. At the trial, the prosecution examined as many as 20
witnesses to prove the charges against the accused persons. The
Trial Court, however, came to the conclusion that the prosecution
had failed to prove its case against the accused persons except the
appellant who was found guilty for offences punishable under
Sections 498A, 302 and 201 IPC. He was accordingly sentenced to
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undergo imprisonment for life and to pay a fine of Rs.25,000/-
under Section 302 IPC. The fine amount was directed to be paid to
the grandparents of the child left behind by the deceased. He was
also sentenced to undergo imprisonment for three years and to pay
a fine of Rs.2,000/- under Section 498A IPC. In default, three
months imprisonment was prescribed. For the offence punishable
under Section 201 IPC, the appellant was sentenced to undergo
imprisonment for three years and to pay a fine of Rs.2,000/-. In
default of payment of fine, he was sentenced to undergo
imprisonment for three months. All the sentences were directed to
run concurrently.
4. Aggrieved by the judgment and order passed by the Trial
Court, the appellant preferred Criminal Appeal No.1676 of 2007
which was heard and dismissed by the High Court in terms of its
order impugned in this appeal. The High Court, on a careful
reappraisal of the evidence on record, came to the conclusion that
the appellant had been rightly found guilty by the Trial Court. The
High Court found the following circumstances to have been fully
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established by the evidence on record:
(1) That the appellant had developed illicit intimacy with
Sarpina (A-2) because of which there was no cordiality
between the appellant, on the one hand, and his wife,
the deceased on the other.
(2) On the date of the incident at about 7.00 a.m. when the
deceased requested the appellant to give some money to
her so that she could take her child to the hospital, the
appellant asked the deceased to come to the field where
he would give her the money she required.
(3) The deceased followed the instructions given to her and
went to the field where the appellant was working. She
was thus last seen alone in the company of the
appellant.
(4) The death of the deceased was homicidal in nature
caused due to asphyxia. The ligature marks found
around the neck of the deceased proved that there was
constriction of the neck of the deceased because of
exertion of force.
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(5) The appellant had piled a heap of stones and tied a rope
to the branch of the tamarind tree, only to support a
false plea in defence that the deceased had committed
suicide.
(6) The conduct of the appellant was unnatural and
incompatible with his innocence. He did not inform the
police or the parents of the deceased and disappeared
from the scene of occurrence, after the commission of
the offence.
5. The High Court, at the same time, held that the depositions of
the parents of the deceased regarding demand and acceptance of
dowry before or after marriage were neither consistent nor credible
to provide a basis for convicting the appellant under Section 498A
IPC. The High Court held that the financial condition of the parents
of the deceased was precarious as they were living in a Janatha
house and working as labourers in a saw-mill in village
Gavanahalli. Having said that the High Court dismissed the appeal
in toto although on the finding recorded by it the High Court could
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and indeed should have set aside the conviction of the appellant
under Section 498A IPC.
6. We have heard learned counsel for the parties at some length
who have taken us through the evidence on record and the
judgments delivered by this Court. The Trial Court and so also the
High Court have both concurrently held the material facts to have
been fully established. For instance the Trial Court as also the High
Court have found the version given by Chandramma (PW-1), who
happens to be the mother of the deceased-Latha, to be fully
reliable. This witness had deposed that the deceased used to
frequently visit her parental house and tell her parents about the
illicit intimacy between the appellant and Sarpina (A-2). She would
also complain to her parents that the appellant was living with
Sarpina (A-2). Chandramma (PW-1) advised the appellant to end
his illicit relationship with Sarpina (A-2) but the appellant paid no
heed to that advice even after a panchayat was convened to
resolve the matter. The panchayat was attended by PW-6 and PWs
12 to 14. The appellant had, before the panchas agreed to
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discontinue his illegal liaison and lead a happy married life with the
deceased. It was on that assurance given to the panchas, that the
latter had advised the parents of the deceased not to lodge any
complaint against the appellant. Despite the panchayat and the
advice given to the appellant, however, the deceased had returned
to her parents’ house just about 15 days after the pancyahat,
whereupon Chandramma (PW-1) had gone to Lakya village and
questioned the appellant whether he would end his illicit
relationship with Sarpina (A-2). He had in reply said that he would
rather give up his wife deceased-Latha than to discontinue his
relationship with Sarpina (A-2).
7. PW-6 and PWs 12 to 14 have similarly deposed about the
panchayat held in the village and the advice given to the appellant
regarding discontinuation of his illicit relationship with Sarpina
(A-2). These witnesses have deposed that the appellant had before
the panchayat promised that he would end his relationship with
Sarpina (A-2) and lead a happy married life with the
deceased-Latha wherein he had failed to abide by. Both the Trial
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Court and the High Court have found the depositions of these
witnesses to be free from any blemish. It was found that these
witnesses do not bear any enmity or grudge against the appellant
to make them unreliable. These witnesses had also advised the
appellant to maintain cordial relationship with the deceased and to
discontinue his illicit relationship with Sarpina (A-2) who was ten
years older to him.
8. The deposition of Chandramma (PW-1) in regard to the
events that took place on the date of incident has also been found
to be reliable. This witness has deposed that when she came to the
house of the appellant to see her daughter, she found that Latha
had taken her child to the hospital and returned home in the
evening on 6th November, 2005. The appellant had, however,
stayed in the house of Sarpina (A-2) that night. The next day, the
deceased had demanded money from the appellant so that she
could take the child back to the hospital. The accused asked the
deceased to come to the field where he would pay the money to
her. The witness and her husband left for the bus stand to return
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home while the deceased had along with her child gone to the field
where the appellant had called her to collect the money. She was
sometime later found dead under a tree which information was
conveyed to the parents the same day.
9. L.G. Shivaswamy (PW-4) is another witness who deposed
that he saw the deceased going in front of his shop towards the
land of her husband along with her child. About 15 minutes later
the appellant came to the shop of this witness who asked him to
return the money which he had borrowed. The witness also
deposed about the panchayat held two months prior to the
occurrence regarding the ill-treatment meted out to the deceased
by the appellant. In the course of the panchayat, the panchs had
advised the appellant not to assault his wife. In response, the
appellant had assured the panchas that he would maintain
cordiality with his wife. According to the witness, there was no
intimacy between the appellant and Sarpina (A-2). The witness
was at this stage declared hostile, cross-examined and confronted
with his statement under Section 161 Cr.PC. in which he had
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mentioned about the illicit relationship between the appellant and
Sarpina (A-2) and the assurance given to the panchas that he
would end the said relationship.
10. Mari Shetty (PW-5) is the father of the deceased-Latha who
has also deposed on the same lines as Chandramma (PW-1)
regarding the treatment given to the deceased by the appellant
and the illegal demand for dowry made upon them.
11. Reference may also be made to the deposition of L.L. Nagesh
(PW-6) who has deposed that the relationship between the
appellant and the deceased was not cordial because of the illicit
liaison between the appellant and Sarpina (A-2) since 2-3 years.
He also stated that because of the illicit relationship, the appellant
was always living in the house of Sarpina (A-2). A panchayat had
even taken place, according to this witness, in which the appellant
had given an assurance that he would end his illicit relationship. On
the date of the incident, the witness claims to have seen the
deceased and her parents near the shop of one master at about
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10.30 a.m.
12. Rangaswamy (PW-11) is the real brother of (PW-1) and
brother-in-law of (PW-5). He too has supported the prosecution
case in regard to the illicit intimacy between the appellant and
Sarpina (A-2). He has also supported the prosecution version for
demand for dowry. Chandrashekhar (PW-12) is also the maternal
uncle of the deceased has supported the prosecution case and had
visited the matrimonial house of the deceased to resolve the
dispute between the couple. K.B. Shekharappa (PW-14) is one of
the panchas who too has supported the prosecution case and
clearly deposed that he attended the panchayat in which the
appellant’s illicit affair with Sarpina (A-2) was discussed. The
panchas had advised the appellant to end his illegal relationship.
13. The only other witness whose deposition is relevant is Dr.
Nagesh S. Adiga (PW-15) who conducted the post-mortem
examination of the deceased and found ligature marks around her
neck. The witness in his deposition has said:
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“On further examination of the body, I did not
notice any external injuries except for the ligature mark
around the neck.
The ligature mark was oblique and was extending
across the front of the neck from the angle of left jaw
and measured 1.5 cms in width and 16 cms in length
and it was situated just 2.5 cms below the right mastoid
with knot mark measuring 2.5 cms over the left
mastoid.”
14. The witness has described the cause of death nearly 10 days
after the post-mortem examination in reply to a communication
received from the Circle Police Inspector in the following words:
“(i) The cause of death is due to constriction force
obliquely around neck leading to asphyxia and
shock is most probably due to hanging.
(ii) The cause of death is ante mortem in nature and
death has occurred in less than 24 hours.
(iii) The ligature mark is ante-mortem in nature.”
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15. In the light of the evidence on record, it was argued on behalf
of the appellant that there was no eye witness to the occurrence
and the entire prosecution case was based on circumstantial
evidence. It was also submitted that the circumstances sought to
be relied upon do not form a complete chain so as to lead the
Court to an irresistible conclusion that the death of the deceased
was homicidal and the appellant was responsible for the same. In
particular, reliance was placed by learned counsel for the appellant
upon the deposition of the doctor to suggest that the death could
have been caused by hanging.
16. The Trial Court and so also the High Court has rejected the
story of suicide by the deceased and in our opinion rightly so, for
reasons more than one. Firstly, because the death in the case at
hand occurred because of strangulation/constriction force around
the neck leading to asphyxia and shock as observed by the doctor
which is possible not necessarily by hanging, although the doctor
has opined it could be caused probably by hanging also. Secondly,
because if death had occurred because of hanging, she would have
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been discovered by the witnesses in a hanging position, unless of
course somebody had upon seeing her hanging, brought her down
and placed the body on the ground or the rope by which she hung
herself had itself snapped in which event there would have been a
rope partly tied to the branch of the tamarind tree and partly
around her neck with a noose which the witnesses say was not
there. Thirdly, because it is nobody’s case that she was carrying a
rope with herself when she was seen going towards the field. The
presence of the rope and the heap of stones before the branch was
obviously a make-believe situation created by the appellant, who
was seen by the witness, returning from the field. Fourthly,
because there was no immediate provocation for the deceased to
take the step to commit suicide. All that she wanted was money
from her husband to take her child to the hospital for treatment.
Besides, the parents of the deceased were also present in the
village around the time the deceased went towards the field which
only shows that there was no intense or great provocation that
could have led her to commit suicide. Fifthly, because the classic
signs of death by hanging as reported in Modi’s Medical
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Jurisprudence and Toxicology (23rd Edition) like face being
usually pale; saliva dribbling out of the mouth down on the chin
and chest; Neck Stretched and elongated in fresh bodies; Ligature
mark being oblique, non-continuous and placed high up in the neck
between the chin and the larynx, the base of the groove or furrow
being hard yellow and parchment like; Abrasions and ecchymoses
around the edges of the ligature mark, subcutaneous tissues under
the mark being white or glistening; carotid arteries, internal coats
being ruptured; fracture or dislocation of the cervical vertebrae
were all conspicuously absent in the case at hand as is evident
from the post-mortem report prepared by the doctor.
17. In the totality of the circumstances and having regard to the
nature of the evidence which the courts below have found credible
on all material aspects of the prosecution case, we do not see any
compelling reason to interfere with the view taken by the Trial
Court as affirmed by the High Court. The only modification no
matter inconsequential in the facts and circumstances of the case
that we may make is the setting aside of the conviction of the
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appellant for the offence punishable under Section 498A Indian
Penal Code.
18. We, accordingly, allow this appeal but only in part and to the
limited extent that the judgment and order passed by the Trial
Court as affirmed by the High Court in so far as the same convicts
and sentences the appellant to imprisonment for the offence
punishable under Section 498A of the Indian Penal Code shall
stand set aside. The appeal insofar as the same challenges the
conviction and sentence of imprisonment awarded to the appellant
for the offence under Section 302 IPC as also the sentence
awarded under Section 201 IPC together with the amount of fine
imposed and the sentence in default shall stand dismissed.
………………………………….…..…J. (T.S. THAKUR)
………………………………….…..…J. New Delhi (ADARSH KUMAR GOEL) July 24, 2015
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ITEM NO.1D-For Judgment COURT NO.2 SECTION IIB S U P R E M E C O U R T O F I N D I A RECORD OF PROCEEDINGS Criminal Appeal No(s). 1951/2012 ESHWARAPPA Appellant(s) VERSUS STATE OF KARNATAKA Respondent(s) Date : 24/07/2015 This appeal was called on for pronouncement of JUDGMENT today. For Appellant(s) Mr. Ranbir Singh Yadav,Adv. For Respondent(s) Mr. V. N. Raghupathy,Adv.
Hon'ble Mr. Justice T.S. Thakur pronounced the judgment of the Bench comprising His Lordship and Hon'ble Mr. Justice Adarsh Kumar Goel.
The appeal is partly allowed in terms of the Signed Reportable Judgment.
(VINOD KR.JHA) (VEENA KHERA) COURT MASTER COURT MASTER
(Signed Reportable judgment is placed on the file)
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