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State Of Karnataka vs Mr Nagasundar on 9 December, 2019

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

DATED THIS THE 09TH DAY OF DECEMBER, 2019

BEFORE

THE HON’BLE MR.JUSTICE B.A.PATIL

CRIMINAL APPEAL No.397 OF 2019

BETWEEN:

State of Karnataka
By Chandra Layout Police Station
Bengaluru City
Through the State Public Prosecutor
O/o the Advocate General
High Court Building
Dr. Ambedkar Veedhi
Bengaluru-560001. …Appellant

(By Sri.M.Divakar Maddur, HCGP)

AND:

Mr. Nagasundar
S/o late Rajashekar
Aged 41 years
Resident of Jyothi Nilaya Main Road
Kollegal Town
Chamarajanagar District-571440. …Respondent

(By Sri.L.K.Srinivasamurthy, Advocate)

This Criminal Appeal is filed under Section 378(1)
and (3) of SectionCr.P.C. praying to grant leave to appeal against
the judgment and order of acquittal dated 23.8.2018
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passed by the LXXI Additional City Civil and Sessions
Judge, Bengaluru city CCH-72 in S.C.No.681/2012.

This Criminal Appeal coming on for Admission, this
day the Court delivered the following:-

JUDGMENT

This appeal has been preferred by the State

challenging the legality and correctness of the judgment

and order of acquittal passed by the LXXI Additional City

Civil and Sessions Judge, Bengaluru city in

S.C.No.681/2012 dated 23.8.2018.

2. I have heard the learned High Court Government

Pleader for the appellant-State and the learned counsel for

the respondent-accused.

3. Though this case is listed for admission, with the

consent of learned counsel for the parties, it is taken up for

final disposal.

4. The facts leading to the case are that the marriage

of the respondent-accused and the deceased got performed
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on 7.7.2002. The accused-respondent was working as a

Driver in BMTC, Bengaluru and after the marriage, started

to reside at Byraveshwarnagar, Nagarbhavi, Bengaluru.

Out of the said wedlock, they have a son by name Veeresh.

On 14.3.2007, at about 10.45 p.m., accused informed

C.W.1, the mother of deceased, that her daughter

committed suicide and that he will bring the dead body to

Kollegal for cremation. Thereafter, he took the dead body

and the body was buried hurriedly. After two and a half

moths of burial, complainant and her relatives suspected

the conduct and attitude of the accused and on 30.5.2007

accused threatened C.W.1 to return his son to his custody

and also lodged a complaint in this regard. However,

C.W.1 handed over the son to the custody of the accused.

Subsequently, complainant lodged the complaint as per

Ex.P1. After investigation, charge sheet was filed for the

offence punishable under Sections 498A, Section306 and Section201 of

IPC. Thereafter, by following the procedure, case was

committed and the Sessions Court took cognizance of the
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offence and secured the presence of the accused. After

hearing the learned counsel for the accused and the

learned Public Prosecutor, charge was prepared and read

over to the accused. Accused pleaded not guilty and

claimed to be tried, as such, trial was fixed. In order to

prove the case of prosecution, it has examined 22

witnesses as P.Ws.1 to 22 and got marked Exs.P1 to P31.

During the course of cross-examination of P.W.1, the

accused got marked Exs.D1 and D2. Thereafter, statement

of the accused was recorded under Section 313 of Cr.P.C.

He has not examined any witnesses on his behalf.

However, he denied all the incriminating materials. After

hearing the learned counsel appearing for the parties, the

trial Court acquitted the accused. Challenging the legality

and correctness of the said judgment, the State is before

this Court.

5. The main grounds urged by the learned High Court

Government Pleader are that the judgment of acquittal

passed by the Court below is contrary to law and evidence
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placed on record. It is his further submission that P.W.1-

mother of the complainant, P.W.3-sister of the deceased,

P.W.4-brother of the deceased have categorically deposed

about the ill-treatment and harassment caused by the

accused to the deceased. They have also clearly deposed

that the deceased committed suicide because of the

demand of site made by the accused. The conduct of the

accused clearly shows that he has hidden the act

committed over the deceased and has hurriedly took the

body without informing to the police and by threatening

the witnesses has buried the body. It is his further

submission that P.W.6, the owner of the house of accused

has clearly stated that when they asked about the death of

deceased, he has confessed that deceased committed

suicide. The said fact has not been properly appreciated by

the trial Court. Even though there was ample material,

without considering the same, the trial Court has wrongly

acquitted the accused. When the accused has suppressed

the material of deceased committing suicide that itself goes
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to show that he has removed the ligature and has

destroyed the evidence. Under such circumstances, the

accused ought to have been convicted for the offence under

Section 201 of IPC. On these grounds, he prayed to allow

the appeal and to convict the accused by setting aside the

impugned judgment.

6. Per-contra, learned counsel appearing on behalf of

the respondent-accused has vehemently argued that there

is a delay of seven months in filing the complaint. It is his

submission that when the body of the deceased was

buried, the relatives and friends of deceased were present

and at that time no such allegations were made. Even the

evidence of P.W.1 clearly shows that when they demanded

to give back their grand son, the accused refused and as

such, with an intention to take revenge, a false complaint

has been registered. It is his further submission that the

post mortem report Ex.P21 and the opinion given as per

Ex.P22 clearly shows that there were no signs of deceased

having committed suicide. The FSL report Ex.P16 also
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clearly shows that no toxic material has been detected to

come to the conclusion that it is a homicidal death. It is

his submission that all the witnesses have subsequently

stated with regard to the ill-treatment and harassment by

the accused. When the body was present, at that time,

they have not raised any objection and if really, there was

ill-treatment and harassment demanding site, definitely

they could have informed the police. He further submitted

that during the course of cross-examination of P.W.1, she

has admitted the execution of Ex.D1, which clearly shows

that deceased and accused were cordial and no such ill-

treatment and harassment was there and they have also

categorically admitted that she has died a natural death.

When all the materials are taken into consideration, it

clearly shows that the trial Court has come to a right

conclusion and has rightly acquitted the accused. There

are no good grounds to interfere with the judgment of the

trial Court. On these grounds, he prayed to dismiss the

appeal.

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7. I have carefully and cautiously gone through the

submissions made by the learned counsel appearing for

the parties and perused the records, including the lower

Court records.

8. The prosecution, in support of its case, has

examined 22 witnesses.

P.W.1 is the mother of the deceased and she is also

the complainant. In her evidence, she has deposed

that her deceased daughter has been given in marriage to

the accused on 7.7.2002 and thereafter they started living

at Bengaluru. After one and half years of marriage, her

daughter gave birth to a male child. When her daughter

used to come to her parental house, she used to tell that

there was ill-treatment and harassment by the accused.

The accused used to insist for transfer of site standing in

the name of the complainant to the name of the deceased

and if not, she can go and stay in her parental house. She

has further deposed that on 4.3.2007 accused and

deceased came to marriage ceremony and on that day,
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accused did not allow her to speak with her daughter and

as such, she did not exchange her feelings on that day.

Further on 14.03.2007 at about 10.45 p.m., accused called

to the mobile phone of her son and intimated that her

daughter Veena has committed suicide and asked them to

come to Kollegal. He did not reveal any details properly

and when they called back, he did not respond to the call.

Thereafter, they went to Kollegala in a car. At about 1.30

p.m. in the midnight they were taken to P.G.Palya and

there the accused and his other relatives brought the body

of her daughter in a Tata Sumo vehicle and took inside the

house. When she asked as to why deceased committed

suicide, accused told that she had become pregnant. As

they did not wanted a child, for that reason, she has

committed suicide. Accused had told that deceased

committed suicide by locking the door and by breaking

open the door, body was removed. At that time, she did not

suspect the accused and subsequently, after she came to

know that because of ill-treatment and harassment meted

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out to her, her daughter has committed suicide, she went

to the police station and filed the complaint as per Ex.P1.

During the course of cross-examination, she has admitted

that earlier it was decided to perform the marriage in ‘Guru

Nanjappa choultry’, but because of financial difficulty,

marriage has been performed in the choultry belonging to

the joint family of her first son-in-law free of cost.

She has further deposed that after the marriage of

the deceased till her death no complaint has been filed

before the police. The burial was made by taking

procession in the village and she has attended the burial.

She has further deposed that her first daughter Hemavathi

tried to commit suicide when her maternal family members

refused to give them property. Other suggestions have

been denied by this witness.

P.W.2 is the resident of P.G.Palya. He has deposed

that about 2-3 years back, Bengaluru police exhumed the

body and he was not in the village on that day. During the

course of cross-examination he has deposed that when the

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burial was done, mother of deceased, her sister and

brother were present and about 300-400 persons were

present at the time of burial of the dead body.

P.W.3 is the sister of the deceased. She has also

reiterated the evidence of P.W.1.

P.W.4 is the brother of the deceased. He has also

reiterated the evidence of P.W.1.

P.W.5 is the seizure mahazar pancha of the marriage

invitation card and marriage photographs of accused and

deceased, as per Exs.P4 and P5.

P.W.6 is the owner of the house. In her evidence, she

has not supported the case of prosecution. But, however,

she has deposed that about 8-10 days after the incident

accused came to their house and she made an enquiry. At

that time, accused told that deceased committed suicide

when he had been to work. When he came back and

knocked the door, there was no reply, as such, he along

with neighbours broke open the door and saw that

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deceased had committed suicide by hanging. During the

course of cross-examination nothing has been elicited.

P.W.7 is the witness to Exs.P6 and P11. He has

partly turned hostile.

P.W.8 is the spot mahazar pancha to Ex.P2. He has

not supported the case of prosecution and was treated

hostile.

P.W.9 speaks about the ill-treatment and harassment

said to have been caused by the accused. During the

course of cross-examination nothing has been elicited so as

to discard his evidence.

P.W.10 is the seizure mahazar pancha to Ex.P6. He

has not supported the case of prosecution.

P.W.11 is also witness to Ex.P6. He has also not

supported the case of prosecution.

P.W.12 is the witness to spot mahazar and his

statement is as per Ex.P12. But, he has not supported the

case of prosecution and has been treated as hostile.

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P.W.13 participated in the burial. He has deposed

that deceased committed suicide by hanging and some

people were telling that she died because of heart failure

and some were telling that she was not keeping well for a

week. This witness has also been treated as hostile.

P.W.14 is the priest who performed pooja of the dead

body. He has deposed that the body was brought to

P.G.Palya and at the request of elders he performed pooja.

At that time, he enquired with the police as to how she died

and the villagers told that it is a natural death, but he did

not ask the accused as to how she died and as per the

rituals, burial was done. This witness has also been treated

as hostile.

P.W.15 is the Assistant Director of FSL who

conducted the FSL and issued the report as per ExP15.

P.W.16 is the Assistant Director of DNA Centre. He

has examined the hairs and other materials sent for

examination and has given the report as per Ex.P16.

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P.W.17 is the PSI who has sent the requisition to the

Assistant Commissioner for exhuming the dead body.

P.W.18 is the Doctor who has examined the materials

sent, after exhuming the dead body and he has given his

opinion as per Ex.P21 and final report as per Ex.P22.

P.W.19 is the Chairman of the P.G.Palya Gram

Panchayat. He has deposed that the body has been

brought to P.G.Palya for burial and the body has been

buried in the land situate in front of Gram Panchayath

office and she has given the certificate as per Ex.P23.

P.W.20 is the Police Constable who carried the seized

articles to FSL for chemical examination.

P.W.21 is the Dy.S.P. who received the complaint and

conducted part of investigation.

P.W.22 is also the Dy.S.P. who investigated the case

completely and filed the charge sheet as against the

accused.

9. On a close reading of the material on record, the

first and foremost aspect urged by the learned counsel for

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the respondent is that there is a delay of 7 months in filing

the complaint. Though it is contended by the learned High

Court Government Pleader that since the accused had

threatened the complainant and her family members there

is a delay in filing the compliant, in order to substantiate

the said fact nothing has been stated in the complaint. As

could be seen from Ex.D1, the letter written by the

complainant and her son, the brother of the deceased, the

deceased and accused were cordial without any differences

and they had a son aged about three and half years. Two

and half months prior to that date, on 14.3.2007 her

daughter by name H.V.Veena Kumari died suddenly and

they have received back all the gold articles and other

articles given at the time of marriage to the accused and

they are not having any suspicion on the accused. Even

during the course of cross-examination of P.W.1, she has

deposed that she has not filed any complaint about the ill-

treatment and harassment to the deceased. She has also

deposed that because of financial crisis the marriage which

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was arranged to be held in Guru Nanjappa Choultry was

not performed and it was performed free of cost in the

choultry belonging to her first son-in-law. All these

materials if taken into consideration, the contention of the

complainant that there was an ill-treatment and

harassment to the deceased for transferring the site

standing in the name of the complainant, appears to be

suspicious. The contention of the learned High Court

Government Pleader that due to the harassment and ill-

treatment she committed suicide by hanging is

unacceptable. Be that as it may.

10. Even as could be seen from Ex.P16, the FSL

report, it indicates that no poisonous substance or toxic

material was found in the body of the deceased. Further,

Ex.P22, the opinion of the doctor of the FSL clearly shows

that most of the soft tissues including the neck tissues of

the deceased were missing and no poison was detected in

FSL examination. On going through all the materials,

the prosecution has failed to establish the fact that

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deceased died a homicidal death. Though the learned High

Court Government Pleader vehemently argued that P.W.6,

the owner of the house has stated in her evidence that

accused confessed the fact of deceased committing suicide

and if the said confession statement is taken into

consideration, it may establish the fact that deceased

might have committed suicide by hanging, but does not

throw any light to the fact that because of ill-treatment and

harassment and instigation made by the accused, she

committed suicide by hanging.

11. It is a settled proposition of law that though the

statement of the accused could be considered as an extra

judicial confession, but it is considered to be very weak

piece of evidence unless it is corroborated by substantive

evidence. Further, it is also well settled proposition of law

that in case of presumption if any doubt arises, under such

circumstances, the benefit of doubt should go to the

accused.

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12. On a close scrutiny of the entire evidence on

record, it would not point out the guilt of the accused and

the prosecution has failed to establish the fact that the

deceased committed suicide because of the intolerable

torture and harassment caused by the accused. There are

no good grounds to interfere with the judgment of the trial

Court. The trial Court has rightly appreciated the evidence

and material placed on record and has come to a right

conclusion in acquitting the accused. There is no

perversity or illegality in the impugned order and as such,

it deserves to be confirmed.

Petition being devoid of merits, same is liable to be

dismissed and accordingly, it is dismissed.

Sd/-

JUDGE

bkp

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