State of Karnataka  INSC 996 (8 May 2009)
IN THE SUPREME COURT
OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 965 OF 2009
(Arising out of SLP (Crl.) No.7379 of 2007) K.N. Narendranath ......Appellant
Versus State of Karnataka ....
Dr. ARIJIT PASAYAT,
in this appeal is to the judgment of a Division Bench of the Karnataka High
Court upholding his conviction for offence punishable under Section 302 of the
Indian Penal Code, 1860 (in short the `IPC'). The appellant was found guilty by
III Additional Sessions Judge, Tumkur in Sessions Case No.55/1999.
facts in a nutshell are as follows:
(hereinafter referred to as the `deceased') daughter of PW3 was married to the
accused. Accused had allegedly developed intimacy with Kalavathi (PW11) and on
05.12.1998 at about.8 p.m., in the house of the accused at Sadara Street,
Koratagere Town, the accused strangulated the neck and caused death of his wife
- Kumadavathi and thereby, committed the offence punishable under Section 302
IPC. Mother of deceased (PW3) and her father (CW1) were informed about the
death of their daughter and they went to the house of the accused and found
that their daughter was dead. CW1, the father of Kumadavathi filed complaint as
per Ex.P2. The said complaint was registered in U.D.R. No. 40/98. Inquest was
conducted as per Ex.P1. Dead body of Kumadavathi was sent for postmortem
examination to PW6, who conducted the postmortem examination and issued
postmortem report as per Ex. P3. PW6 also furnished opinion as per Ex. P3(c)
stating that death was due to asphyxia as a result of manual strangulation.
After completion of investigation, charge sheet was filed against the accused.
The accused pleaded not guilty and claimed to be tried. The prosecution examined
PWs. 1 to 17 and got marked Exs. P1 to P11 and M.O. Nos. 1 to 4. Exs. D1 to D4
were got marked in the evidence of PWs. 3 and 13. Statement of the accused
under Section 313 of the Code of Criminal Procedure, 1973 (in short the `Code')
was recorded. The defence of the accused is that his wife Kumadavathi fell down
from the stair case and died. The accused did not lead any defence evidence.
The trial Court after considering the contentions of the learned Public
Prosecutor and the learned counsel appearing for the accused and appreciating
the oral and documentary evidence on record adduced by the prosecution, held
that Kumadavathi suffered homicidal death by manual strangulation by the
accused and the prosecution has proved beyond reasonable doubt that the accused
appellant has committed the offence punishable under Section 302 IPC., and
sentenced him as aforesaid by the impugned judgment of conviction dated
07.12.2004 and order of sentence dated 09.12.2004. Trial Court primarily relied
on purported extra judicial confession made by the accused.
The High Court did
not accept the stand of the accused that the deceased sustained injuries due to
fall from the stair case as probabilized by the material on record. Stand of
the accused was that the so called extra judicial confession made by the
accused before PWs. 10 and 13 is not reliable and truthful. PW-13 was examined
to prove the so called extra judicial confession. According to the prosecution
accused had made the extra judicial confession. The High Court held that the
extra judicial confession stated to have been made does not prove the
PW-13 had stated in
his statement before the police that he had gone to see the dead body of the
deceased after her death and the accused informed him that the deceased fell
down from the staircase and died having sustained injury. It was also stated in
his cross examination that the accused told him about the incident after about
two months. The accused was in custody from 5.3.1999 to 1.9.1999 and, therefore,
it was highly improbable that accused informed PW-13 that his wife fell down
form the staircase and died. But the High Court relied on the evidence of PW-13
to the extent that it was helpful to the prosecution to show that the accused
was in love with Kalavathi PW- 11. Interestingly, PW-10 told the police about
the extra judicial confession.
counsel for the appellant re-iterated the stand taken before the High Court.
counsel for the respondent-State on the other hand supported the judgment.
case primarily rested on the so called extra judicial confession which has been
dis-believed by the High Court. The evidence of PW-10 has been referred to by
the High Court. It is not on record as to who called PW- 10 to the spot of
occurrence. No witness has spoken about PW-10 being called. On the contrary,
Dr. Mallikarjuna has categorically stated in his examination that he told the
investigating officer that the lady had died when he had examined her. After
Dr. Mallikarjuna had already declared the deceased to be dead, there was no
necessity for calling PW-10.
being the position, it would be unsafe to convict the accused appellant. His
conviction is therefore set aside. He shall be released forthwith unless to be
required in custody in connection with any other case.
appeal is allowed.
(Dr. ARIJIT PASAYAT)
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