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)
