SATHISHA v. THE STATE OF KARNATAKA

assaulted her. In this background, accused No.1 hatched a conspiracy with accused Nos.2 and 3 to commit the murder of his wife Vanajakshi. On 29th November, 2015, Vanajakshi, along with her child had proceeded to the HC-KAR - 4 - NC: 2026:KHC:36813-DB CRL.A No. 884 of 2019 CNR: KAHC010369242019 native village of accused No.1 at Basavanamathikere. When she was near Canara Bank at Kunigal, accused No.1, coaxed her to go to the temple and took her near Karnataka Engineering Club, Bangalore in a bus. From there, he took her and the child in his Santro car bearing registration No.KA-02/MB-3955 towards Bellur Cross Toll on Bangalore-Mangalore Highway. He booked a room at Sri Krishna Lodge in Hassan and informed accused No.2. Thereafter, accused No.1 brought his wife and the child to Thirumala Dhaba. Accused Nos.2 and 3 also came there on a motor motorcycle bearing registration No.KA-50/Q-1940. They went towards Savanadurga Forest Area, Dabbaguli- Veeregowdanadoddi Road and accused No.1, followed them in the car, along with his wife and child. They stopped the vehicles at Savanadurga Forest area. When the deceased Vanajakshi suspected some foul play and tried to escape along with her child, accused 1 to 3 chased her. Accused No.3 snatched the child and accused Nos.1 and 2 held her tightly. Accused No.1 then assaulted her HC-KAR - 5 - NC: 2026:KHC:36813-DB CRL.A No. 884 of 2019 CNR: KAHC010369242019 with the wheel spanner on the head. Both accused Nos.1 and 2 squeezed her neck with legs and also assaulted on her head and committed the murder. Thereafter, to screen the evidence, the accused hid the dead body in the bushes of Savanadurga forest area.

On noticing an unidentified dead body of a woman near Savanadurga Forest area on Dabbaguli- Veeregowdanadoddi Road, Magadi Taluk, informant by name Nandeesh (PW5) informed the matter to the Magadi Police. PW19-ASI of the said Police Station, on the complaint of Nandeesh, registered a case against unknown persons for the offences punishable under Section 302 and 201 of Indian Penal Code in Crime No.289 of 2015. The investigation was took over by CPI-PW20, who proceeded to the spot, conducted spot mahazar, and inquest Mahazar. The dead body was subjected to post- mortem examination. In the course of investigation, the accused were arrested and their voluntary statements HC-KAR - 6 - NC: 2026:KHC:36813-DB CRL.A No. 884 of 2019 CNR: KAHC010369242019 were recorded. On completion of investigation, charge- sheet was filed against accused Nos.1 to 3.

Before the trial Court, the prosecution got examined PWs1 to 28 and got marked Exs. P1 to P51 and material objects MO1 to 10. In the statement recorded under Section 313 of Code of Criminal Procedure, accused No.1 has stated that he along with his wife and child had gone to the Hotel, and from there they went to Channakeshava Temple in Hassan and returned to their house at 4.00 pm. His wife took prasada and went to her parental home. On the same night, Vanajakshi's father telephoned and informed him about her death and he went and brought his child back to his house.

It is the case of the prosecution that marriage of accused No.1 and deceased Vanajakshi @ Vanaja was a love marriage and accused No.1 had not disclosed about the said marriage to his family members. However, Vanajakshi had informed about their marriage to the HC-KAR - 7 - NC: 2026:KHC:36813-DB CRL.A No. 884 of 2019 CNR: KAHC010369242019 brother of accused No.1. Hence, accused No.1 had assaulted her. Further, accused No.1 had illicit relationship with the wife of accused No.2, which came to the knowledge of the deceased and therefore, she had quarrelled with accused No.1. Hence, both accused No.1 and 2 had assaulted her. In this background, accused No.1 conspired with accused No.2 to commit the murder of his wife, Vanajakshi @ Vanaja. On 29th November, 2015, when she had gone to Basavanamathikere, to the native place of accuse No.1, and while waiting near Canara Bank in Kunigal, Accused No.1 enticed her and took her to Karnataka Engineering Club, Bengaluru in a bus and from there took her in his car to Bellur Cross Toll on Bangalore- Mangalore Highway. Further on 30th November 2015, he booked a room at Sri Krishna Lodge in Hassan, and from there he took her towards Savanadurga Forest area on Dabbaguli-Veeregowdanadoddi road and in the meantime, informed accused No.2, who along with accused No.3 came near Tirumala Dhaba on a motorcycle and from HC-KAR - 8 - NC: 2026:KHC:36813-DB CRL.A No. 884 of 2019 CNR: KAHC010369242019 there, accused No.1 followed accused Nos.2 and 3, and near Savanadurga Forest area, all the three accused committed the murder of Vanajakshi and dumped the dead body in the bushes.

As per the post-mortem report, marked as Ex.P26, the death of Vanajakshi was due to coma, as a result of head injury sustained. As many as ten external injuries are noticed on the dead body. It is not seriously disputed that the death of Vanajakshi was homicidal in nature.

Learned Sessions Judge, on appreciation of the oral and documentary evidence on record, has held accused Nos.2 and 3 not guilty of the charges levelled against them and accused No.1 was also acquitted of the offence punishable under section 120-B and 201 read with Section 34 of Indian Penal Code. However, Accused No.1 was convicted for the offence punishable under section 302 of Indian Penal Code. It is relevant to extract HC-KAR - 9 - NC: 2026:KHC:36813-DB CRL.A No. 884 of 2019 CNR: KAHC010369242019 paragraphs 58 to 60 of the impugned judgment. The same reads as under: "58. The prosecution has proved that the death Vanajakshi is homicidal and she might have died

30.11.2015 at 10.30 p.m. Accused No.1, Vanajakshi and their kid left the Lodge at 5.20 p.m., as per MO.10 CD its footage has not been disputed by the accused No.1. The distance between Hassan and Basaveshwaranagar, Bengaluru is 183 Kms. Considering present density of vehicular movement, it require at least 4 hours to reach Bengaluru. As per the say of the accused No.1, after visiting Chennakeshava Temple, they have reached their house, at 4 p.m. That is highly and humanly impossible and that statement of the accused No.1 is contrary to the time found in MO.10 CD.

59. It is the statement of accused No.1 that at 4 p.m., Vanajakshi left the home and on the same day, his father-in-law called him and stated that Vanajakshi is dead and accordingly, he had gone to the place and taken back the daughter. That abnormal conduct of accused No.1 is yet another strong circumstance which points finger towards him that he has involved in the elimination of his wife Vanajakshi.

60. From the evidence discussed above, it is proved that accused No.1, his wife and child left the Lodge at 5.20 p.m. Vanajakshi was killed on the same day at 10.30 p.m. The proximity of time is very short. HC-KAR - 10 - NC: 2026:KHC:36813-DB CRL.A No. 884 of 2019 CNR: KAHC010369242019 Even after accused No.1 coming to know about the death of his wife, he has not participated in her last rites. He has not lodged any complaint with regard to mysterious death of his wife. It is not his statement that he has seen the dead body of his wife. Therefore, the abnormal conduct of the accused would show that he has taken a false defense. "

According to the prosecution, PWs 1 to 3 and 7 are the eye-witnesses to the incident. However, the said witnesses have turned hostile and not supported the case of prosecution. Their evidence is in no way helpful to the case of the prosecution. The witnesses have denied having given statement before the police. Nothing worthwhile has been elicited in their cross-examination, which is in favour of the prosecution.

The prosecution has also got examined PWs13 and 22 to prove the seizure mahazars marked as Ex.P1 to P25. However, both the witnesses have not supported the case of prosecution. They were treated as hostile witnesses. In their cross-examination, nothing is elicited which incriminates the accused. HC-KAR - 11 - NC: 2026:KHC:36813-DB CRL.A No. 884 of 2019 CNR: KAHC010369242019

The prosecution has relied on the evidence of PW12, father of the deceased, to prove the motive for accused No.1 to commit the murder. In his testimony, PW12 has stated that the marriage between his daughter and accused No.1 was a love marriage and after the marriage, she was living along with accused No.1 in Bengaluru, along with their child. After the marriage, his daughter used to visit his house and at that time, she was complaining that her husband was having an illicit relationship with the wife of Nagendra Nayaka (accused No.2) and troubling her etc.

The learned Senior Counsel appearing for the appellant, drawing the attention to the cross-examination of PW12, contended that PW12 has admitted in the cross- examination that both the husband and wife i.e. accused No.1 and the deceased, were on cordial terms, and she had never informed about the quarrel to him when she had visited the house. HC-KAR - 12 - NC: 2026:KHC:36813-DB CRL.A No. 884 of 2019 CNR: KAHC010369242019

In the cross-examination, PW12 has admitted that after the marriage, his daughter was visiting his house once a week and at that time they were cordial. He further admitted that his daughter had informed him about her husband quarrelling with her. From the evidence of PW12, it cannot be held that the prosecution has proved the motive for accused No.1 to commit the murder. The prosecution has also examined PW6, viz. the owner of the house, where accused No.1 and deceased were staying, to prove the motive. However, he has turned hostile to the case of prosecution.

It is the specific case of the prosecution that accused No.1, took his wife and child to one Sri Krishna Lodge in Hassan and booked a room on 30th November, 2015 and from there he took her near Tirumala Dhaba in his car bearing registration No.KA-02/MB-3955, from where he followed accused 2 and 3 and took the deceased to Savanadurga Forest area, and committed her murder. HC-KAR - 13 - NC: 2026:KHC:36813-DB CRL.A No. 884 of 2019 CNR: KAHC010369242019

PWs23 and 24 are the Security Guards of Karnataka Engineering Club. They are examined by the prosecution to prove that accused No.1 had parked his Car near the Club and they having seen the deceased and the child along with accused No.1. However, both the said witnesses have turned hostile and not supported the case of the prosecution.

The prosecution has also got examined PWs25, 26 and 28 receptionists of Sri Krishna Lodge and PW27 room-boy. However, PWs25 and 28 have turned hostile.

Learned High Court Government Pleader, contended that the evidence of PW25 goes to show that a person by name Sathisha (accused No.1) had visited the Lodge on 30th November, 2015 and he had spoken about the presence of the accused in the Lodge on 30th November, 2015.

PW25, in his chief-examination, has stated that, as per Ex.P39-the Register, on 30th November, 2015, a HC-KAR - 14 - NC: 2026:KHC:36813-DB CRL.A No. 884 of 2019 CNR: KAHC010369242019 person by name Sathisha had come to the Lodge. He has further stated that he has not given the Ledger to the Police and the signature found on Ex.P39 is not his signature. In the cross-examination conducted by the Public Prosecutor, he has denied that on 30th November, 2015 at about 7:45 am, accused No.1 had visited the Lodge, along with a woman and child and booked Room No.302. Hence, the evidence of PW25 is in no way helpful to the prosecution.

PW26 is another receptionist at Sri Krishna Hotel, Hassan. He has been examined by the prosecution to establish that accused No.1 had come and stayed in the lodge along with his wife and the child and they vacated the room on the next day. The said witness has stated that a couple along with a child had come to the lodge and they gave them a double room. They came in the evening and vacated room on the next day at 2-3 p.m. Ex.P39 is the register, wherein it is mentioned that room No.302 was given to one Satish (Accused No.1). HC-KAR - 15 - NC: 2026:KHC:36813-DB CRL.A No. 884 of 2019 CNR: KAHC010369242019 PW26 identified in the CCTV footage, one male person near the reception counter and one female with a child near the lounge. CD is marked as MO-10.

The learned Sessions Judge relying on MO.10, held that the footage has not been disputed by accused No. 1 and even after accused No.1 coming to know about the death of his wife, he has not participated in her last rites and not lodged any complaint with regard to her mysterious death and further holding that the explanation given by accused No.1 in the statement recorded under Section 313 Cr.PC was not satisfactory and his abscondence, after the death of his wife is another strong circumstance, proceeded to hold him guilty for the offence punishable under Section 302 of IPC.

In this case, the prosecution has got examined PW1 to PW3 and PW7 as the eyewitnesses. However, the said witnesses have turned hostile. Further, prosecution has failed to prove the motive for accused HC-KAR - 16 - NC: 2026:KHC:36813-DB CRL.A No. 884 of 2019 CNR: KAHC010369242019 No.1 to commit the murder. The panch witnesses to recovery mahazars - Ex.P11 and P25 have turned hostile. The two receptionists namely PW25 and PW28 as well as the room boy of the lodge examined as PW27 have also turned hostile and not supported the case of the prosecution.

In so far as PW26, another receptionist is concerned, he has stated that they gave a room to a couple who came along with a child and identified the said couple and the child in the CD marked as MO.10. However, he has not stated that it was accused No.1 who was seen in the CD near the reception counter. In the cross-examination conducted by the defence, he has categorically stated that he cannot identify the person seen in the CD, unless he sees the said person. His evidence does not indicate that he has identified accused No.1, as the person who come to the lodge along with the deceased and the child. HC-KAR - 17 - NC: 2026:KHC:36813-DB CRL.A No. 884 of 2019 CNR: KAHC010369242019

In view of the aforesaid discussion, the prosecution has failed to establish its case against accused No.1. The oral and documentary evidence relied upon by the prosecution are insufficient to prove the charges against the Appellant/Accused No.1 beyond all reasonable doubts. Accused No.1 is entitled to benefit of doubt. Therefore, the impugned judgment of the trial Court convicting and sentencing him is liable to be set-aside. Accordingly, the following: ORDER i. Appeal is allowed. ii. The Judgment and Order dated 22.04.2019 passed by the Court of the III Addl. District and Sessions Judge, Ramanagara in SC No.24/2016 convicting and sentencing accused No.1 for the offence punishable under Section 302 of IPC, is set aside and he is acquitted of the said offence. HC-KAR - 18 - NC: 2026:KHC:36813-DB CRL.A No. 884 of 2019 CNR: KAHC010369242019 iii. Accused No.1 is ordered to be released forthwith, if not required in any other case. iv. If fine amount is deposited, the same shall be refunded. v. Registry shall communicate this order to the concerned Jail Authority. Sd/- (MOHAMMAD NAWAZ) JUDGE Sd/- (G BASAVARAJA) JUDGE LNN, KBM List No.: 1 Sl No.: 30