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Sunday, July 26, 2015

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 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 = 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.


                                             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.

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  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 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 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 established by the evidence on record:
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.
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.
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.
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.
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.
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
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
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 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 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
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
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:
      “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.”
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 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  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 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

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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