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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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