IN THE HIGH COURT OF KARNATAKA AT BENGALURU

DATED THIS THE 15TH DAY OF OCTOBER, 2020

PRESENT

THE HON' BLE MR. JUSTICE B. VEERAPPA

AND

THE HON’BLE MR. JUSTICE K.NATARAJAN

CRIMINAL APPEAL No.586/2015

BETWEEN:

SMT.GULNAZ,

W/O SYED BAKSHU, @ SOWDE MANDI BASKHU,

AGED 42 YEARS, RESIDING AT

MAHABOOBNAGAR, SHIDLAGHATTA TOWN,

CHIKKABALLAPURA DISTRICT-560131.

...APPELLANT

(BY SRI NANJUNDA GOWDA M. R., ADVOCATE)

AND:

STATE OF KARNATAKA BY.SHIDLAGHATTA TOWN POLICE

SHIDLAGHATTA (TQ) CHIKKABALLAPURA DISTRICT 560131.

…RESPONDENT

(BY SRI VIJAYAKUMAR MAJAGE, ADDITIONAL SPP *****

R

2

THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374(2)

OF THE CODE OF CRIMINAL PROCEDURE, 1973, PRAYING TO SET ASIDE THE JUDGMENT OF CONVICTIN AND ORDER DATED

16.4.2015 AND ORDER OF SENTENCE DATED 22.4.2015 PASSED IN S.C. No.54/2013 ON THE FILE OF THE II ADDITIONAL

DISTRICT AND SESSIONS JUDGE, CHIKKABALLAPURA (SITTING AT CHINTAMANI) CONVICTING THE APPELLANT/ ACCUSED NO.2

FOR THE OFFENCES PUNISHABLE UNDER SECTION 302 & 201 R/W 34 OF IPC.

THIS CRIMINAL APPEAL IS COMING ON FOR HEARING

THIS DAY, NATARAJAN. J., DELIVERED THE FOLLOWING:

J U D G M E N T

This appeal is filed by the Accused No.2 against the

judgment of conviction and order of sentence dated

16/22.4.2015 passed in S.C. No.54/2013 by the II Addl.

District & Sessions Judge, Chickballapur (sitting at

Chintamani) {hereinafter referred to as the ‘Trial Court’}

for having convicted her for the offences punishable under

Sections 302 and 201 r/w Section 34 of the Indian Penal

Code (‘IPC’ for short) and sentencing her to undergo

imprisonment for life with fine of Rs.10,000/- for the

offence punishable under Section 302 of IPC and Simple

3

Imprisonment for 3 years with fine of Rs.5,000/- for the

offence punishable under Section 201 of IPC with default

sentence.

2. For the sake of convenience, the parties are

referred to as per their ranking before the Trial Court.

3. The case of the prosecution is that on the complaint

of PW.1 (son of the deceased and Accused No.2),

Shidlaghatta Town Police registered a case against the

Accused No.1 – Aslam and present appellant (Accused

No.2) for the above said offences. It is alleged by the

complainant – PW.1 in his complaint filed as per Ex.P1 that

his parents (the deceased and Accused No.2) along with

himself and his wife, son and brother were staying in the

house. The Accused No.1 was doing silk handloom work in

the house of the deceased and used to sleep in their house

and speak with Accused No.2 leniently and the intimacy

developed between them and the deceased after coming to

4

know of the fact, removed the Accused No.1 from work.

Subsequently, on the request made by Accused No.1, the

deceased permitted him to work and stay in his house with

a warning to be careful in future. When things stood

thus, on 21.1.2013 at about 4.30 a.m. when he was

sleeping in the house, his son came and informed him that

his father was found dead in the sump tank in front of their

house. Immediately, he went there and saw the dead

body of his father and then, he suspected that the Accused

No.1 and his mother (Accused No.2) having illicit intimacy,

they might have committed the murder of his father and

thrown the dead body in the sump tank in order to destroy

the evidence. Based upon the complaint, the Police

registered the case and during the investigation, they

arrested Accused Nos.1 and 2; recorded their voluntary

statements; seized MO.1 – rope alleged to have been used

by the accused for strangulation and to commit murder of

the deceased; and recorded the statements of the

5

witnesses. After completion of the investigation, the CPI,

Shidlaghatta filed the charge sheet against the accused.

The learned JMFC after taking cognizance, committed the

case to the Court of Sessions. Accordingly, the Trial Court

after securing the presence of the accused, framed the

charges for the offences punishable under Sections 302 and

201 of IPC r/w Section 34 of IPC. The accused pleaded

not guilty and claimed to be tried.

4. In order to prove the charges, the prosecution, in

all, examined 24 witnesses as per PWs.1 to 24, got marked

18 documents as per Ex.P1 to P18 and 6 material objects

as per MOs.1 to 6. After completion of the prosecution

evidence, the statements of the accused under Section 313

of the Code of Criminal Procedure have been recorded.

The incriminating evidence appeared against the accused,

was read over and explained to the accused. The case of

the Accused Nos.1 and 2 was one of total denial, but not

chosen to lead any defence evidence on their behalf. After

6

hearing the arguments, the learned Trial Judge found the

Accused Nos.1 and 2 guilty and convicted them for the

offences punishable under Sections 302 and 201 r/w 34 of

IPC and imposed sentence of seven years with fine of

Rs.10,000/- as against Accused No.1 and life imprisonment

with fine of Rs.10,000/- against Accused No.2 for the

offence under Section 302 of IPC and three years Simple

Imprisonment with fine of Rs.5,000/- and default sentence

against Accused Nos.1 and 2 for the offence under Section

201 of IPC as stated supra.

5. Being aggrieved by the same, the Accused No.2

alone preferred this appeal against the judgment of

conviction and order of sentence. Accused No.1 has not

filed any appeal before this Court challenging his conviction

and sentence imposed by the Trial Court. Even though the

Trial Court found the Accused No.1 guilty for the offence

under Section 302 of IPC, but sentenced him to undergo

Rigorous Imprisonment for seven years with fine of

7

Rs.10,000/-. Unfortunately, the State has not preferred

any appeal for enhancement of sentence even though

Section 302 of IPC mandates minimum sentence of life

imprisonment.

6. We have heard the learned counsel for the parties.

7. Sri M.R. Nanjunda Gowda, learned counsel for the

Accused No.2 vehemently contended that the judgment of

conviction and order of sentence passed by the Trial Court

is not sustainable in law and even though the case of the

prosecution based upon circumstantial evidence, none of

the circumstances were proved by the prosecution beyond

all reasonable doubt. The complainant along with his

brother and family members have all turned hostile and not

supported the prosecution case. The motive aspect also

not proved by the prosecution. Based on the alleged extra

judicial confession made before PWs.11 to 13, the Trial

Court proceeded to convict the accused which is not

8

correct. Even otherwise, as per the evidence of PWs.11 to

13, they have given statements before the Police on the

date of the incident i.e., 21.1.2013, whereas PW.23 –

Investigating Officer has stated that the statements of

these witnesses were recorded only on 28.3.2013 and

5.4.2013. The inordinate delay of 67 days in recording

the statements of PWs.11 and 12 and 74 days in recording

the statement of PW.13, is not explained by the

prosecution. On perusal of overall evidence of the

prosecution, none of the circumstance are proved by the

prosecution to connect the accused with the guilt.

Therefore, learned counsel for the appellant – Accused No.2

prays for allowing the appeal and setting aside the

impugned judgment of conviction and order of sentence

passed against Accused No.2.

8. In support of his arguments, learned counsel for the

Accused No.2 relied upon the following judgments of the

Apex Court:

9

1. Balakrushna Swain –vs- State of Orissa {(1971)3

SCC 192}

2. Anil Kumar Singh –vs- State of Bihar {(2003)9 SCC

67}

9. Per contra, Sri Vijaykumar Majage, learned Addl.

SPP supported the judgment of conviction passed by the

Trial Court, but fairly admitted that the sentence passed

against Accused No.1 is not sustainable in law. Section 302

of IPC mandates minimum punishment of life imprisonment

and awarding of lesser punishment is impermissible in law.

After verifying from the office and website of High Court, he

admits that the State has not preferred any appeal for

enhancement of sentence in respect of Accused No.1.

Learned Addl. SPP further contended that Accused NO.1 did

not file any appeal, but he has accepted the finding of

conviction and undergoing sentence. The prosecution

successful in proving the guilt of the accused and motive

aspect as spoken to by PW.1, who is son of the deceased.

10

Further, PWs.11 to 13 specifically stated that the deceased

told them regarding illicit intimacy of Accused NO.1 with

Accused No.2 (wife of the deceased) and they have

advised Accused NO.1 not to continue the illicit relationship

and subsequently they also came to the house of the

deceased after knowing the death of the deceased and then

in presence of the public, Accused Nos.1 and 2 admitted

that they have killed the deceased by using the rope,

which amounts to extra judicial confession made by the

accused in presence of these witnesses. Merely because

there is delay on the part of the Investigating Officer in

recording statements of PWs.11 to 13, the same is not fatal

to the prosecution case. He further contended that the

accused not at all challenged the homicidal death of the

deceased, who died in the suspicious circumstances due to

strangulation though there was ligature mark around the

neck of the deceased. The evidence of PW.4- doctor has

also not been challenged by the accused. It clearly goes to

11

show that the motive, the homicidal death and extra judicial

confession made by the accused connect the accused with

the guilt beyond reasonable doubt. Therefore, conviction

and sentence passed against Accused No.2, is just and

proper and not liable to be set aside by this Court and

prayed for dismissal of the appeal.

10. Upon hearing the arguments of the learned

counsel for the parties, the point that arises for our

consideration is:

“Whether the judgment of conviction and

order of sentence passed by the Trial Court

against Accused No.2 for the offences under

Sections 302 and 201 of IPC, calls for

interference ?”

11. Upon considering the arguments of learned

counsel on both sides, in order to re-appreciate evidence

on record, it is necessary to have a cursory look at the

evidence adduced by the prosecution, which is as under:

12

PW.1 – Jabir (son of the deceased and Accused No.2)

is the complainant. He has turned hostile and not

supported the prosecution case. Even he has denied the

lodging of the complaint as per Ex.P1 and panchanama

prepared by the Police as per Ex.P2. Therefore his evidence

is not useful to the prosecution case. Even though he has

stated in the cross-examination that there was compromise

among Accused Nos.1 and 2 and himself, that itself is not a

ground to accept his evidence in favour of the prosecution.

PW.2 – Abida is daughter of the deceased. PW.3 –

Zameer is the 2nd son of the deceased Syed Bakshu. Both

have turned hostile and not supported the prosecution case.

PW.4 – Dr. K.N. Sudhakar is the doctor who

conducted autopsy on the dead body of the deceased. He

has given evidence before the Court that the deceased met

with homicidal death and issued Ex.P5 – post-mortem

report and also given opinion as per Ex.P6 that if a person

13

is tied with the rope on the neck, the death would be

caused. The evidence of this witness not challenged by the

accused in the cross-examination, which goes to show that

the deceased met with homicidal death.

PW.5 – Raghukumar H.R. is the Junior Engineer, who

prepared the spot sketch. However, the sketch was not

marked as it is photocopy. The dead body was found in

the house of the accused and the deceased and the same

was not in dispute.

PW.6 – Vinaya Kumar is a shop owner. As per the

prosecution case, Accused No.1 purchased MO.1 – rope

from his shop. He has not identified the accused.

However, in the cross-examination, he has admitted that he

has given statement to the Police that the accused

purchased rope – MO.1 from his shop.

14

PW.7 – Salma is the wife of PW.1 and daughter-in-law

of Accused No.2 and the deceased. He turned hostile to the

prosecution case except stating that she has seen the dead

body.

PW.8 is the son of PW.1 and grand-son of the

deceased and Accused No.2. He also turned hostile and not

supported the prosecution case.

PW.9 – Moula is brother of Accused No.1. According

to his evidence, the Accused No.1 was arrested and arrest

intimation was given by the Police to him.

PW.10 - Gulzar Begum is sister of Accused No.2.

According to her evidence, the Police gave arrest intimation

to her after arresting Accused No.2.

PW.11 – Amjad Nawaz, PW.12 – Ansar Khan and

PW.13 – Akram Pasha have given evidence in support of

the prosecution case that on 21.1.2013, they went to the

15

house of the deceased for seeing the dead body of the

deceased. While bathing the dead body, they found the

injury on the neck of the deceased. When they visited the

spot, nearly 200 to 400 people were near the house.

Accused Nos.1 and 2 admitted the guilt that they have

committed the murder of the deceased by tying with the

rope (by strangulation). The evidence of PWs.11 to 13 has

been disputed by the accused. PWs.11 to 13 have given

evidence in the cross-examination that their statements

were recorded by the Police on the same day i.e.,

21.1.2013 when the Police came to the spot. Their

evidence will be discussed in detail in subsequent part of

the judgment.

PW.14 – Jabiulla and PW.20 – Jabee are the panch

witnesses to the spot mahazar – Ex.P2 and seizure of MO.1

– rope from the Accused No.1 under Ex.P7.

16

PW.15 – Mehaboob Pasha is a silk labourer. According

to his evidence, he has seen the ligature mark on the neck

of the deceased while bathing the dead body.

PW.16 – Babu and PW.17 – Jameer are the inquest

panch witnesses to Ex.P11 – inquest panchanama

conducted by the Police on the dead body of the deceased.

PW.17 turned hostile and not supported the prosecution

case. However, holding the inquest on the dead body of

the deceased is not in dispute.

PW.18 –S. Muniyappa is the Head Constable, who

arrested Accused NOs.1 and 2 on 21.1.2013 and produced

before the PSI and gave report as per Ex.P13.

PW.19 – Girish is the Police Constable, who was spot

panch witness to mahazar - Ex.P7 drawn at the shop of

PW.6, where Mo.1 rope was purchased and MO.4 is the

photo taken at the shop.

17

PW.21 – Dastagir is the panch to the inquest

conducted by the Police on the dead body of the deceased

as per Ex.P11. According to his evidence, the inquest

panchanama was conducted on the dead body of the

deceased in the Shidlaghataa hospital. In fact the inquest

panchanama conducted by the Investigating Officer in the

house of the deceased.

PW.22 – Ismail Sab is the ASI. According to his

evidence, the Accused No.2 given voluntary statement

before the Police in Urdu language and he translated the

same into Kannada language and he identified the

voluntary statement of the Accused No.2 as per Ex.P15.

Of course, he has to speak about translating the statement

made by the Accused No.2 from Urdu to Kannada. There

is no recovery after the voluntary statement made by

Accused No.2. Therefore, Ex.P15 – confession statement

made before the Investigating Officer during the custody

18

without any recovery under Section 27 is inadmissible as

per Sections 25 and 26 of the Indian Evidence Act.

PW.23 – S. Mahesh Kumar is the Circle Inspector of

Police. According to his evidence, he has arrested Accused

Nos.1 and 2 and recorded their voluntary statements as per

Ex.P15 and Ex.P16. He also visited the spot and conducted

the inquest panchanama as per Ex.P11 and took up

photograph of the dead body with the help of photographer

and sent the dead body to the post-mortem examination

and obtained the post-mortem report from the doctor. He

also recorded the statements of all the witnesses including

PWs.11 to 13. He has filed the charge sheet after

completion of investigation.

PW.24 – Purushotham is the PSI of Shidlaghatta Town

Police Station, who received the complaint from PW.1 as

per Ex.P1 and registered the FIR as per Ex.P18 and he

appointed the Police Constable for apprehending the

19

Accused persons. Then, handed over investigation to the

Circle Inspector of Police – PW.23. On 3.4.2013, he has

sought for opinion of the doctor by sending rope to the

doctor as per Ex.P6.

12. Upon considering the entire oral and documentary

evidence on record including the original records, it is clear

that the case of the prosecution mainly rests on the

circumstantial evidence. The prosecution relied upon the

following circumstances:

i) Motive

ii) Homicidal death of the deceased

iii) Extra judicial confession made before PWs.11 to 13

iv) Recovery of rope – MO.1

13. The Hon’ble Supreme Court in the catena of

decisions including the recent judgment in the case of

Digamber Vaishnav –vs- State of Chhattisgarh reported in

(2019)4 SCC 522 has laid down the principles to be

20

followed while considering the case based on the

circumstantial evidence. In the said judgment, the Hon’ble

Supreme Court held at paragraph 16 as under:

16. In order to sustain the conviction on the basis

of circumstantial evidence, the following three

conditions must be satisfied:

(i) the circumstances from which an

inference of guilt is sought to be drawn,

must be cogently and firmly established;

(ii) those circumstances should be of a

definite tendency unerringly pointing

towards the guilt of the accused; and

(iii) the circumstances, taken

cumulatively, should form a chain so

complete that there is no escape from

the conclusion that within all human

probability the crime was committed by

the accused and none else, and it should

also be incapable of explanation on any

other hypothesis than that of the guilt of

the accused.

21

14. Keeping the above principles laid down by the

Hon’ble Supreme Court with regard to the circumstantial

evidence, we shall deal with the circumstances relied upon

by the prosecution.

(i) Motive:

15. Coming to the motive aspect relied upon by the

prosecution, as per the prosecution story, the Accused No.1

who came to the house of the deceased for working under

him in silk handloom, used to stay in the house of the

deceased. During that time, he had developed intimacy

with Accused No.2 (wife of the deceased), which came to

the knowledge of the deceased and he has warned him and

also the Accused No.2 and also thrown out Accused No.1

from the house for some time. Subsequently, it is alleged

that Accused No.1 came and requested the deceased to

permit him to continue to work and stay in his house and

assured that he will not repeat such mistakes in future.

Believing the words of Accused No.1, the deceased allowed

22

the Accused No.1 to stay in the house. Inspite of the same,

again Accused Nos.1 and 2 continued the illicit intimacy and

they wanted to eliminate the deceased. That on 21.1.2013

during night hours, when the deceased came out for

attending nature call, the Accused No.1 tied the neck of the

deceased with the rope (by strangulation) and Accused

No.2 held the legs of the deceased and caused the death.

In order to prove the motive aspect, PW.1 - complainant

(son of the deceased and Accused No.2), PW.2 and PW.3

(children of the deceased and Accused No.2) have turned

hostile by denying the very factum of illicit intimacy

between Accused Nos.1 and 2. PW.7 (wife of PW.1) and

PW.8 (son of PW.1) were also staying in the same house

and they also turned hostile and not supported the

prosecution case. During the cross-examination after

treating them hostile, learned Public Prosecutor unable to

elicit anything about the motive aspect and the illicit

intimacy between Accused Nos.1 and 2 in their evidence.

23

Therefore, the evidence of these witnesses – PWs.1,2,3,7

and 8 was not useful to the prosecution case.

16. Apart from these witnesses, PWs.11 to 13 have

stated in their evidence that prior to the death of the

deceased, the deceased used to inform them that the

Accused No.1 developed intimacy with his wife (Accused

No.2) and they have warned Accused No.1. However, they

have given evidence before the Court that Accused Nos.1

and 2 have admitted the guilt of committing the murder.

But, the evidences of PWs.11 to 13 are not consistent in

respect of advising Accused NO.1 or Accused No.2, but they

came to know only through the deceased regarding illicit

relationship. Without any positive evidence on record, it is

not possible to believe that there was illicit intimacy

between Accused Nos.1 and 2 without support of the family

members of the deceased and further the

complainant/PW.1 himself turned hostile and denied the

Ex.P1 - complaint made to the Police. Therefore, we are of

24

the considered opinion that the prosecution failed to prove

the circumstance of motive for committing the murder of

the deceased by Accused Nos.1 and 2.

(ii) Homicidal death:

17. The 2nd circumstances relied upon by the

prosecution is homicidal death of the deceased. The same

is not in dispute. PW.4 – Dr. K.N. Sudhakar, who

conducted post-mortem examination has given evidence

before the Court that he has conducted the autopsy on the

dead body of the deceased at the request of the Police and

issued Ex.P5 – post-mortem examination report. The

doctor has opined that the death was caused due to

asphyxia as a result of strangulation and he has stated that

it can be caused due to squeezing with the rope and he has

given opinion as per Ex.P6. There is no cross-examination

regarding causing of death due to strangulation with the

25

help of rope. It goes to show that the deceased met with

homicidal death.

(iii) Extra Judicial Confession:

18. The third circumstance relied upon by the

prosecution is extra judicial confession alleged to have been

made by Accused Nos.1 and 2 in presence of PWs.11 to 13.

PWs.11 to 13 have stated that when they went near the

house of the deceased after learning his death message on

21.1.2013, nearly 200 – 400 people were gathered near

the house and they have stated that when the deceased

came out for attending nature call, Accused No.1

strangulated the neck of the deceased with rope and

Accused No.2 held the legs of the deceased and caused

death and they thrown the dead body to the sump tank in

front of house of the deceased. They have also stated that

when they were staying in the house of the deceased, the

Police came to the spot and recorded their statements on

26

the same day. PW.1 (son of the deceased) gave complaint

to the Police. In the cross-examination, PW.11 admits that

when he went near the house of the deceased, there were

nearly 200 to 400 people gathered near the house of the

deceased and the Police came to the spot within 10 to 15

minutes and when the Police enquired him on the same

day, he gave statement to the Police. PW.12 also says on

the same lines that Accused No.1 admitted before them

that he strangulated the neck of the deceased with rope

and caused death. PW.13 says that he came to know that

the Accused committed the murder of the deceased through

the public who were discussing near the spot. However,

these three witnesses have stated their statements were

recorded by the Police on the same day and they have not

lodged any complaint against accused. On perusal of the

evidence of PWs.11 to 13, absolutely there is no evidence

to show that Accused No.2 admitted in presence of the

public and before these witnesses that she accompanied

27

Accused No.1 for committing the murder of the deceased

and held the legs of the deceased. The evidence of these

witnesses go to show that they came to know the above

aspects through the public, who were discussing near the

house of the deceased. That apart, though the presence

of these witnesses was found near the spot and the Police

came to the spot, but the Investigating Officer has not

recorded the statements of these witnesses. But, PW.23 –

Investigating Officer has categorically stated that the

statements of Pws.11 and 12 were recorded by him on

28.3.2013 and the statement of PW.13 was recorded on

5.4.2013. The inordinate delay of 67 days and 74 days in

recording the statement of these witnesses was not

explained by the prosecution. Even if any statements of

PWs.11 to 13 recorded by the Investigating Officer on

21.1.2013, the same were not produced before the Court

and it amounts to suppression of facts.

28

19. Learned counsel for the Accused No.2 relied upon

the judgment of the Apex Court in the case of Balakrishna

Swain –vs- State of Orissa reported in (1971)3 SCC 192,

wherein the Hon’ble Supreme Court held as under:

“Much reliance cannot be placed on the

evidence of a witness when for no justifiable

reason he was not examined by the investigating

officer for a number of days particularly when

the witness is found to be telling falsehood on

material aspects of the case and tries to conform

to the evidence of other witnesses.”

20. In view of the principle laid down by the Hon’ble

Supreme Court, the delay of 67 days and 74 days in

recording the statements of Pws.11 to 13 creates doubt and

delay was not properly explained. It is also well settled

that the extra judicial confession is a weak piece of

evidence and it is not safe to accept for proving the guilt of

the Accused. The statements of PWs.11 to 13 do not

inspire any confidence that they have given statements on

29

the same day regarding the confession statement made by

the accused. Even otherwise, there is no evidence against

Accused No.2 (present appellant) that she has given any

confession statement before PWs.11 to 13.

21. At this stage, it is useful to refer to the dictum of

the Hon’ble Supreme Court in the case of Sahadevan –vs-

State of T.N. reported in (2012)6 SCC 403, wherein at

paragraph 16 it is held as under:

16. Upon a proper analysis of the

abovereferred judgments of this Court, it

will be appropriate to state the principles

which would make an extra-judicial

confession an admissible piece of

evidence capable of forming the basis of

conviction of an accused. These precepts

would guide the judicial mind while

dealing with the veracity of cases where

the prosecution heavily relies upon an

extra-judicial confession alleged to have

been made by the accused:

30

(i) The extra-judicial confession is a

weak evidence by itself. It has to be

examined by the court with greater

care and caution.

(ii) It should be made voluntarily

and should be truthful.

(iii) It should inspire confidence.

(iv) An extra-judicial confession

attains greater credibility and

evidentiary value if it is supported

by a chain of cogent circumstances

and is further corroborated by other

prosecution evidence.

(v) For an extra-judicial confession

to be the basis of conviction, it

should not suffer from any material

discrepancies and inherent

improbabilities.

(vi) Such statement essentially has

to be proved like any other fact and

in accordance with law

31

22. As discussed above, absolutely the evidence of

PWs.11 to 13 does not inspire any confidence regarding the

extra judicial confession said to have been made by the

accused No.2 in their presence. Therefore, we hold that the

prosecution failed to prove the circumstance of extra

judicial confession made by Accused No.2 beyond all

reasonable doubt.

(iv) Recovery of MO1-Rope:

23. Coming to recovery of Mo.1 – rope, the same was

recovered from Accused No.1 on the voluntary statement

made by him. Accused No.1 was brought by PW.18 to the

Police Station and said to have been arrested by PW.23 and

recorded his voluntary statement and seized Mo.1 – rope.

But the evidence of PWs.11 to 13 go to show that the rope

was tied at the hip of Accused No.1 and the recovery

cannot be considered as disclosure statement of the fact on

the voluntary statement made by the accused. Therefore,

32

the recovery also was not at the instance of Accused NO.2

and therefore, the circumstance of recovery of MO.1 which

was used by the accused, is also not acceptable in evidence

as it was not recovered as per the provisions of Section 27

of the Indian Evidence Act. Even otherwise, the voluntary

statement made by the co-accused cannot be used against

Accused No.2.

24. Considering the entire material on record, except

the homicidal death of the deceased, no other circumstance

connected by the prosecution to prove the guilt of the

accused that Accused No.2 with the common intention with

Accused NO.1 committed the murder of her husband. The

children of Accused No.2 and the deceased so also son and

wife of PW.1 and relatives of the deceased turned hostile

and not supported the prosecution case. The Complaint-

Ex.P1 also went unproved. Therefore, we hold that the

prosecution failed to connect all the circumstances relied

33

upon in order to prove that the accused and the accused

alone caused death of the deceased beyond all reasonable

doubt. Therefore, the benefit of doubt has to be

extended to the Accused No.2 – appellant.

25. For the reasons stated above, we are of the

considered opinion that the Trial Court was not justified in

holding that Accused No.2 has committed the offence of

murder of her own husband and thrown the dead body to

the sump tank, in order to destroy the evidence so as to

attract Sections 302 and 201 of IPC. Therefore, we

answer point raised in the present appeal in the

affirmative holding that the judgment of conviction and

order of sentence passed by the Trial Court against Accused

No.2 for the offences under Sections 302 and 201 of IPC

calls for interference and liable to be set aside.

34

26. Accordingly, we pass the following order:

i) The appeal filed by the appellant -

Accused No.2 is allowed.

ii) The Judgment of conviction and

order of sentence passed by the Trial

Court against appellant - Accused

No.2 in S.C. No.54/2013 on the file

of the II Addl. District & Sessions

Judge, Chickballapur (Sitting at

Chintamani), for the offences

punishable under Sections 302 and

201 r/w 34 of IPC, is hereby set

aside. The appellant - Accused No.2

is hereby acquitted for the said

offences.

iii) The appellant - Accused No.2 shall be

released forthwith, if he is not

required in any other case, after

following the Standard Operating

Procedure including quarantine,

prescribed by this Court as well as the

State Government, in view of

35

Pandemic COVID-2019 and in

accordance with law.

27. Before parting with the matter, it has to be

stated that the learned Trial Judge though found Accused

No.1 guilty for the offence punishable under Section 302 of

IPC, but while awarding sentence, awarded meager

punishment lesser than the minimum prescribed for the

offence under Section 302 of IPC by sentencing him to

undergo Rigorous Imprisonment only for a period of seven

years, which is against the mandate of Section 302 of IPC.

Section 302 of IPC clearly depicts that whoever commits

murder shall be punished with death or imprisonment for

life and shall also be liable to fine. Such being the case,

awarding punishment lesser than minimum sentence of life

is impermissible in law. The Trial Court without applying its

mind in the proper perspective and without following the

mandate of the provisions of Section 302 of IPC, very

strangely imposed punishment of seven years for conviction

36

of the Accused No.1 for the offence punishable under

Section 302 of IPC. However, the State has not filed

Criminal Appeal challenging imposition of inadequate

sentence of seven years for the offence punishable under

Section 302 of IPC.

28. In view of the above, it is appropriate to make

an observation that whenever an accused person is

convicted for the offence punishable under Section 302 of

IPC, he/she shall be punished with death, or imprisonment

for life, with fine as per the mandate of the said provisions

and the Court has no option to impose a sentence lesser

than the life imprisonment for the offence punishable under

Section 302 of IPC.

29. The Registry is directed to send copy of the

observations made in the above two paragraphs, to all the

Principal District Judges with a request to circulate the

37

same among all the Officers working on the judicial side in

their Units.

Sd/-

JUDGE

Sd/-

JUDGE

Gss*