STATE OF KARNATAKA vs K. NAGARAJA
- Court
- Karnataka High Court
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CRL.A No. 740 of 2018
C/W CRL.A No. 450 of 2018
CRL.RP No. 83 of 2013
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
R
TH
DATED THIS THE 29 DAY OF AUGUST, 2026
PRESENT
THE HON'BLE MR. JUSTICE H.P.SANDESH
AND
THE HON'BLE MR. JUSTICE B.PRAMOD
CRIMINAL APPEAL NO.740 OF 2018
C/W
CRIMINAL APPEAL NO.450 OF 2018
CRIMINAL REVISION PETITION NO.83 OF 2013
IN CRL.A NO.740/2018:
BETWEEN:
1. STATE OF KARNATAKA
BY POLICE INSPECTOR
ANIT DOWRY CELL, C.O.D., BENGALURU
REPRESENTED BY STATE PUBLIC PROSECUTOR
HIGH COURT BUILDING
BENGALURU-560 001.
…APPELLANT
(BY SRI. SUHAS GOWDA M., HCGP)
AND:
1. K. NAGARAJA
S/O KEMPANKE KARIGOWDA
AGED ABOUT 52 YEARS
2. PUTTAMMA
W/O KEMPANKE KARIGOWDA
AGED ABOUT 77 YEARS
3. SHRIMAN
S/O LATE KEMPANKE KARIGOWDA
AGED ABOUT 44 YEARS
Digitally signed
by DEVIKA M
Location: HIGH
COURT OF
KARNATAKA
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CRL.A No. 740 of 2018
C/W CRL.A No. 450 of 2018
CRL.RP No. 83 of 2013
ALL ARE
R/AT DODDAMALUR GRAMA
CHANNAPATNA TALUK
RAMANAGARA DISTRICT-571501.
…RESPONDENTS
(BY SRI. P. PRASANNA KUMAR, ADVOCATE FOR R1 AND R3;
VIDE ORDER DATED 18.02.2026,
APPEAL AGAINST R2 STANDS ABATED)
THIS CRIMINAL APPEAL IS FILED UNDER SECTION
378(1) AND (3) OF CR.P.C PRAYING TO GRANT LEAVE TO FILE
AN APPEAL AGAINST THE JUDGEMENT AND ORDER DATED
28.10.2017 PASSED IN S.C.NO.131/2006 ON THE FILE OF I
ADDITIONAL DISTRICT AND SESSIONS JUDGE, RAMANAGARA,
ACQUITTING THE RESPONDENT/ACCUSED NO.1 TO 3 FOR THE
OFFENCES PUNISHABLE UNDER SECTIONS 498(A), 304(b) AND
306 R/W 34 OF IPC AND SECTIONS 3, 4 AND 6 OF DOWRY
PROHIBITION ACT AND ETC.
IN CRL.A NO.450/2018:
BETWEEN:
1. SRI. SHIVANNA
S/O LATE SIDDAIAH
AGED ABOUT 74 YEARS
OCC: AGRICULTURE
R/O SATHANUR VILLAGE
KASABA HOBLI
MANDYA TALUK AND DISTRICT.
...APPELLANT
(BY SRI. G.B. SHARATH GOWDA, ADVOCATE)
AND:
1. STATE OF KARNATAKA
BY ANTI DOWRY CELL
COD, BENGALURU
REPRESENTED BY STATE PUBLIC PROSECUTOR
HIGH COURT BUILDING
BENGALURU-560001.
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C/W CRL.A No. 450 of 2018
CRL.RP No. 83 of 2013
2. K.NAGARAJA
S/O LATE KEMPANKE KARIGOWDA
AGED ABOUT 54 YEARS
3. PUTTAMMA
W/O LATE KEMPANKE KARIGOWDA
AGED ABOUT 79 YEARS
4. SHRIMAN
S/O LATE KEMPANKE KARIGOWDA
AGED ABOUT 46 YEARS
ALL ARE R/AT DODDAMALUR VILLAGE
CHANNAPATNA TALUK
RAMANAGARA DISTRICT.
...RESPONDENTS
(BY SRI. SUHAS GOWDA M., HCGP FOR R1;
SRI. P. PRASANNA KUMAR, ADVOCATE FOR R2 AND R4;
VIDE ORDER DATED 18.02.2026,
APPEAL AGAINST R3 STANDS ABATED)
THIS CRIMINAL APPEAL IS FILED UNDER SECTION 372
OF CR.P.C PRAYING TO SET ASIDE THE JUDGMENT AND
ORDER OF ACQUITTAL DATED 28.10.2017 PASSED BY THE I
ADDITIONAL DISTRICT AND SESSIONS JUDGE, RAMANAGARA
IN S.C.NO.131/2006 ACQUITTING THE RESPONDENTS/
ACCUSED NO.1 TO 3 FOR THE OFFENCES PUNISHABLE UNDER
SECTIONS 498(A), 304(B) AND 306 R/W 34 OF IPC AND
SECTIONS 3, 4 AND 6 OF DOWRY PROHIBITION ACT AND ETC.
IN CRL.RP NO.83/2013:
BETWEEN:
1. MR. SHIVANNA
AGED ABOUT 66 YEARS
S/O LATE SIDDAIAH
RESIDING AT SATHANURU VILLAGE
MANDYA TALUK AND DISTRICT-571401
...PETITIONER
(BY SRI. P.B. AJIT, ADVOCATE)
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CRL.RP No. 83 of 2013
AND:
1. THE STATE OF KARNATAKA
BY THE INSPECTOR OF POLICE/STATION
HOUSE OFFICER,
CHANNAPATNA RURAL POLICE STATION
RAMANAGARAR DISTRICT-562138
REPRESENTED BY THE
STATE PUBLIC PROSECUTOR.
2. MR. K. NAGARAJU
S/O LATE KEMPANKE KARIGOWDA
AGED ABOUT 47 YEARS
RESIDING AT DODDAMALURU VILLAGE
CHANNAPATNA TALUK
RAMANAGARA DISTRICT-562138.
3. MRS. PUTTAMMA
W/O LATE KEMPEMKE KARI GWODA
AGED ABOUT 72 YEARS
RESIDING AT DODDAMALURU VILLAGE
CHANNAPATNA TALUK
RAMANAGARA DISTRICT-562138
4. MR. SRIMAN
S/O LATE KEMPEMKE KARI GOWDA
AGED ABOUT 39 YEARS
RESIDING AT DODDAMALURU VILLAGE
CHANNAPATNA TALUK
RAMANAGARA DISTRICT-562138.
...RESPONDENTS
(BY SRI. SUHAS GOWDA M., HCGP FOR R1;
SRI. P. PRASANNA KUMAR, ADVOCATE FOR R2 AND R4;
VIDE ORDER DATED 18.02.2023,
PETITION AGAINST R3 STANDS ABATED)
THIS CRL.RP IS FILED UNDER SECTION 397 R/W 401 OF
CR.P.C PRAYING TO SET ASIDE THE ORDER DATED
25.09.2012 IN S.C.NO.107/10 ON THE FILE OF THE FTC,
RAMANAGARA AND DIRECT THE CONTINUATION OF THE TRIAL
AGAINST THE 2ND TO 4TH RESPONDENTS IN ACCORDANCE
WITH LAW AND ETC.
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CRL.RP No. 83 of 2013
THESE CRIMINAL APPEALS AND CRL.RP HAVING BEEN
HEARD AND RESERVED FOR JUDGMENT ON 14.08.2026, THIS
DAY , THE COURT PRONOUNCED THE FOLLOWING:
CORAM: HON'BLE MR. JUSTICE H.P.SANDESH
and
HON'BLE MR. JUSTICE B.PRAMOD
CAV JUDGMENT
(PER: HON'BLE MR. JUSTICE H.P.SANDESH)
Heard the counsel appearing for the revision petitioner
and also the counsel for defacto complainant and State on
behalf of the appellant in both the appeals and counsel for the
respondent in revision and also the respondent in appeal.
2. The Crl.R.P.No.83/2013 is filed by the complainant
against the order dated 25.09.2012 passed in S.C.No.107/2010
on the file of the Fast Track Court, Ramanagara in discharging
the accused persons for the offence punishable under Section
302 of IPC and prayed this Court to direct the Trial Court to
continue the proceedings against accused Nos.2 to 4.
3. The Crl.A.No.450/2018 is filed by the complainant
against the judgment and order of acquittal dated 28.10.2017
st
passed in S.C.No.131/2006 by the 1 Additional District and
Sessions Judge, Ramangara for the offences punishable under
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Sections 498A, 304B and 306 read with Section 34 of IPC and
under Sections 3, 4 and 6 of Dowry Prohibition Act (for short
‘DP Act’) and prayed this Court to convict the accused persons
for the said offences.
4. The Crl.A.No.740/2018 is filed by the State against
the judgment and order dated 28.10.2017 passed in
st
S.C.No.131/2006 by the 1 Additional District and Sessions
Judge, Ramanagara for the offences punishable under Sections
498A, 304B and 306 read with Section 34 of IPC and under
Sections 3, 4 and 6 of the DP Act and prayed this Court to
convict the accused persons for the said offences.
5. The complainant/appellant before the Trial Court in
PCR No.60/2005 made an allegation that the police have not
properly conducted the investigation and failed to invoke the
offence under Section 302 of IPC and only filed the charge
sheet against the accused persons for the offences punishable
under Sections 498A, 306, 304B read with Section 34 of IPC
and Sections 3, 4 and 6 of the Dowry Prohibition Act. In the
private complaint filed under Section 200 of Cr.P.C, the
complainant prayed the Court to take cognizance for the
offence punishable under Section 302 of IPC, since there is a
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specific allegation against the accused persons, apart from
dowry harassment and subjecting her for harassment and
cruelty. In page No.3 of the complaint, specific allegation is
made that on 07.10.2004, the accused persons have
committed the murder of the daughter of complainant and
grandson. It is alleged that when he went to the spot, he found
both the dead bodies with injuries. The Tahsildar has conducted
the inquest on both the dead bodies and found the injuries over
the dead body of Madhu near the left ear the pressing wound
and near the eye and the same is also mentioned in the inquest
and injuries found on the chest of his daughter, which is red in
colour and in the grandson's dead body also, injuries were
found near the neck and chin. The doctor who conducted the
post mortem given the opinion in the report that cause of death
of the daughter of the complainant is on account of suicidal
hanging and it is a case of murder of his grandson by throttling.
Hence, it is very clear that the death of his grandson is a
murder. But police did not invoke the offence punishable under
Section 302 of IPC in respect of the grandson and not
conducted the proper investigation by the Channapatna Rural
Police and case was also entrusted to the COD. While
conducting the mahazar also taken note of height of place
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where bodies were hanging with the sarees which were used to
hang them and clear distance is also mentioned and sarees
which were used to hang them was also seized. Even COD
Police also not properly conducted the investigation and only
invoked the offences punishable under Sections 498A, 304B,
306 and other offences.
6. It is contended in the complaint that when his
grandson was murdered by throttling, what was the need to
hang him and there was a injury on the back side of his neck
measuring 6 inches x 1 inch. It appears that a club was kept on
the back side of the neck and pressed the neck from front side.
If the child is hanged, there would be a ligature mark
surrounding the neck. When post mortem was conducted, there
was no such ligature mark was found around the neck. Hence,
to this effect also, not conducted proper investigation. Even if it
is the case of investigation that mother had committed the
murder of her son, ought to have invoked Section 302 of IPC
and filed the charge sheet and the said offence become abated
consequent upon committing of suicide by the mother. The
lady-Rekha who went to the matrimonial home at around 03.15
p.m., found that door was opened. If, mother committed the
murder of her son and she has committed the suicide, she
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would have locked the door from inside. What was the need of
keeping open the room. But when said Rekha came out, she
says that she found accused No.2 mother-in-law. How a mother
can hang her child to the tube light hook. There was a chance
of child escaping from the clutches of the mother if she made
an attempt to murder of her son and the neighbourers would
have heard the screaming sound. It is alleged in the complaint
that death of both is on account of accused persons'
involvement and these are the circumstances which circumvent
the role of the accused persons. The injuries found on the
daughter of the complainant also very clear that she has
sustained injuries on the cheek, near the eye, near the ear and
also on the chest and those injuries are ante-mortem in nature.
The theory of death note is found after 13 days and the same is
doubtful. It cannot be assumed that for a period of 13 days,
they did not clean the house. The very seizure of death note is
nothing but creation of the same and shows involvement of the
IO as well as the accused persons since the same is not in the
handwriting of the deceased and she has studied upto II PUC
and she was having good handwriting. On comparison of earlier
handwriting of the deceased and the handwriting in the alleged
recovered death note, it discloses that both are different and
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not belongs to the deceased. Hence, it is clear that prompt
investigation is not conducted. Hence, complaint was given to
DIG making specific allegation that the IO - Smt. Andalamma
has not properly conducted the investigation and created the
story of the case of suicidal and real facts were not considered
by the Investigating Officer. Even though, COD conducted the
further investigation in the matter, they have also not properly
conducted the investigation and carried away with the earlier
investigation conducted by the Rural police and committed an
error in not invoking the offence of Section 302 of IPC.
7. Having filed the private complaint, the Court of
JMFC recorded the sworn statement and taken the cognizance
and committed the matter to the Sessions Court and the same
is numbered as S.C.No.107/2010. Accused persons have filed
an application under Section 227 of Cr.P.C paying the Court to
discharge them for the offences punishable under Section 302
of IPC. The Trial Court who considered the application
committed an error by considering the Order dated 22.08.2009
wherein, a discussion was made that the lady Rekha who found
the dead bodies at the first instance which was hanging to the
hook where the place for hanging fan and coupled with that of
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statement, the statement of other independent witnesses,
Mahendra, Naveen, Channegowda, Srinivas and Mamata and
inquest and also considering the death note of the deceased
which was left by her would indicates the allegation of theft
against her and the expert certified that the writing made in the
death note is that of the deceased. An observation is made that
the Court can alter the charge invoking Section 302 of IPC
during the trial if sufficient material is placed for the offence
under Section 302 of IPC and Court could exercise the
discretion to frame the charge for the said offence in
S.C.No.131/2006 and discharged the accused persons. The said
order is challenged before this Court in Crl.R.P.No.83/2013.
8. This Court issued the notice against the
respondents and admitted the revision petition on 28.06.2013
and posted the matter for hearing. But the same is pending.
Even trial was conducted in S.C.No.131/2006 and acquitted the
accused. Hence, filed other two appeals by the complainant and
the State respectively against the judgment of acquittal.
9. This Court clubbed all the matters for common
consideration.
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10. This Court would like to refer the grounds urged in
the revision petition wherein Sri P.B. Ajith, learned counsel
would contend that the impugned order dated 25.09.2012 is
solely on the ground that investigation for the offences under
Sections 498A, 304B and Section 34 of IPC is pending
adjudication in S.C.No.131/2006 and taken note of the order
dated 22.08.2009 which discloses that at the time of framing
charges, declined to frame charge for the offence punishable
under Section 302 of IPC observing that if sufficient materials
were placed on record during the trial, appropriate charge can
be framed against respondent Nos.2 to 4 for the offence
punishable under Section 302 of IPC and allowed the discharge
application.
11. The counsel further contend that the learned Judge
failed to appreciate the material evidence upon which
cognizance was taken by the learned Magistrate for the offence
punishable under Section 302 of IPC stating that the same was
not part of the charge sheet material in S.C.No.131/2006,
inasmuch as the police have not recorded the material
statements which established the fact that respondent Nos.2 to
4 were responsible for the homicidal death of the petitioner's
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daughter and grandson and the Assistant Professor of Forensic
Medicine, Medical college, Mandya was not cited as a witness in
S.C.No.131/2006. The learned Judge has ignored the fact that
prosecution has filed an application under Section 210(2) of
Cr.P.C requesting the learned Judge to try both the cases i.e.,
in S.C. No.131/2006 and present case in S.C.No.107/2010
together as contemplated under the said provisions as both the
proceedings are out of the same set of facts but for different
offenses. It is contended that without following the procedure
as contemplated under Section 210(2) of Cr.P.C, discharge
application was considered without considering the cognizance
which was taken for the offence invoking Section 302 of IPC
and committed serious irregularity in ignoring the mandate that
the court shall try together the complainant case and also the
case arising out of the police report as both the cases arise out
of the police report. Hence, prayed the Court to set aside the
order of discharge.
12. In Crl.A.No.450/2018, Sri G.B.Sharath Gowda,
learned counsel appearing for complainant mainly contend that
the Trial Court dwelling on hyper-technicalities ignoring the
statutory presumption available under Section 113A and 113B
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and mechanically acquitted the accused persons and the same
is not sustainable in law. It is contended that the Trial Court
while passing the impugned order has elaborately discussed the
evidence on record appreciating the evidence of witnesses -
PW1, PW2, PW3 and PW7, PW8, PW9, PW10, who are the
deceased relatives and also coordinated in getting the jewelry
for the marriage made and who was instrumental in booking
the motorcycle in the name of the first respondent herein and
PW12 who has deposed about the pre-marriage talks and also
the fact that deceased-Madhu had informed him about the
harassment she is facing in the matrimonial home. Such
appreciation of evidence gives conclusion that there was a
dowry demand at the time of marriage and there was demand
and harassment for further dowry and comes to the conclusion
that material available before the Court corroborates with the
case of the prosecution. But in the instant case,
notwithstanding the fact that there is no delay, even presuming
that there is some lapse of time in lodging the complaint, the
same becomes totally irrelevant as the evidence of persecution
witnesses points only towards the guilt of the accused persons.
The Trial Court committed an error in acquitting the accused
only on the ground that there was a delay. The Trial Court has
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grossly erred in acquitting the accused persons ignoring the
fact that the death of Madhu and Likhith Gowda has come to
light on 06.10.2004 at about 03.15 p.m., when PW4 first saw
the dead bodies of both of them and both of them were in
hanging posture from the ceiling of matrimonial house of the
deceased-Madhu. The Trial Court has erroneously brushed
aside the evidence of PW1 who has categorically stated that on
06.10.2004 he had been to Bengaluru on account of some work
and returned to his village only during the late hours of the
night at 01.00 a.m. and he went to matrimonial house of
deceased Madhu on the next day morning on 07.10.2004. The
piece of evidence of PW1 has not been discredited in the cross
examination. The FIR is registered on 07.10.2004 at 10.15
a.m. It is only after the complaint was lodged by the
complainant herein, the Tahsildar was intimidated for
conducting the inquest of the dead bodies and police came to
the spot, inquest proceedings were conducted and thereafter,
bodies were sent for post mortem. In this scenario, it cannot be
said that there is delay in lodging the complaint as the
sequence of events has been well explained by the prosecution.
There was no room for any deliberation, manipulation or
improvements enlarged in the complaint.
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13. It is also contended that the appellant being the
eldest male member in the family came to know about the
death of his daughter and grandson only in the midnight at
about 01.00 a.m. on 07.10.2004 and he has gone to the
matrimonial house of the deceased-Madhu in the morning and
case was registered thereafter. There is no material to show
that he was aware of the same earlier to that and with
deliberation, complaint was filed. It is also contended that
injury marks were present over the dead bodies of both of
them and said injuries are antemortem in nature and same is
also not in dispute. The Post Mortem report at Ex.P21 and 22
clearly reveals that there were injuries present on the dead
bodies and there is no explanation whatsoever has been offered
by the accused persons. It is also contended that Trial Court
has grossly erred in acquitting the accused persons ignoring the
presumption available under Section 113A and 113B of the
Indian Evidence Act when the death was taken within a period
of 7 years from the date of her marriage and presumption
would have been drawn in favour of the prosecution that
deceased-Madhu was subjected to cruelty by the accused
persons and also have abetted even for assuming it is a
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commission of suicide as contained under Section 113A of the
Indian Evidence Act. When the records clearly establish that
deceased-Madhu had been subjected to cruelty by the accused
persons in connection with the demand of dowry, presumption
would have been drawn under Section 113B. So also under
Section 106 of the Indian Evidence Act, a burden is cast upon
the person, who have the knowledge of the fact, when the
death was taken place within the premises of the matrimonial
home.
14. It is also contended that Trial Court has lost sight of
the fact that accused persons have not reported the unnatural
death of deceased-Madhu and Likhith Gowda to the police and
have been absconding ever since the fact of the unnatural
death of Madhu and Likhith Gowda came to light. The fact of
death has come to the knowledge of the police only when the
appellant/complainant lodged the complaint on 07.10.2004.
This conduct clearly establishes that respondent Nos.2 to 4 are
responsible for the death of the deceased-Madhu and Likhith
Gowda. It is also contended that the post mortem report and
inquest report is very clear that there were injuries on the face
and eyes of Madhu that too measuring 6x4 cm, over cheeks
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4x4 cm. The face was congested and cyanosed. Dissection of
her neck found bruising of subcutaneous tissue and neck
muscle seen. Likewise, the post mortem report of Likhith
Gowda at Ex.P22 reveals the injuries on his body of contusion,
brown in colour, running horizontally measuring 6x1 cm seen
over nape of neck. The victim had injury on the back of his
neck. The injuries found on the dead bodies are not taken note
of by the Trial Court while passing the judgment. This
circumstance weighs against the accused persons as they have
not discharged their burden in terms of Section 106 of the
Indian Evidence Act. The only defence which was taken that
family members have demanded a sum of Rs.10,00,000/- and
though examined two witnesses as DW1 and DW2, their
evidence is very clear that DW1 admitted that he has not
participated in the said panchayat and the evidence of DW2
also not inspires the confidence with regard to the defence is
concerned. It is not considered by the Trial Court while passing
the judgment of acquittal.
15. Sri Suhas Gowda, the learned High Court
Government Pleader for the State in Crl.A.No.740/2018
contended that the PW1 is the father of the deceased-Madhu
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and grandfather of deceased - Likhith Gowda and complainant
who lodge the complaint as per Ex.P1 and he categorically
stated regarding demand and acceptance of the dowry during
the marriage and additional dowry was also demanded. He
categorically stated that his daughter deceased Madhu has
complained about giving physical and mental harassment to
her. He further stated that accused were also making false
allegation that deceased Madhu was a thief and she had
committed theft of money. The accused have demanded and
accepted the additional dowry and ill-treated her but nothing is
elicited from the mouth of PW1 to disbelieve his evidence. So
also, the evidence of PW2, PW3, PW7, PW8 to PW10 and PW12
corroborates the evidence of PW1.
16. Though Trial Court comes to the conclusion that the
material available on record clearly discloses the demand and
acceptance of dowry and additional demand of dowry and
evidence of these witnesses corroborates with each other, but
fails to draw the presumption under Sections 113A and 113B of
Indian Evidence Act. Apart from that a flimsy reason is given to
acquit the accused that there was a delay. The material is very
clear that PW1 is the elder member of the family and he has to
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take a decision to give a complaint to the police. Having come
to know about the said incident, PW1 immediately lodged the
complaint i.e., when he came to know about the said incident in
the late night, in the early morning, he has given the complaint
and police came to the spot and investigated the matter. The
counsel would contend that Trial Court failed to take note of the
medical evidence available on record.
17. The counsel appearing for the complainant in
Crl.R.P.No.83/2013 in his arguments would vehemently
contend that marriage of deceased Madhu was taken place on
29.11.1998 and child was born in the year 1999. The bodies
were found on 06.10.2004 that too in the matrimonial home
when the same was seen by the neighbour at 03.15 p.m. in the
hanging posture. All accused persons are living in the same
house, but they did not bring to the notice of anyone and they
left the house. The counsel also vehemently contend that police
did not conduct proper investigation. Hence, private complaint
was filed and cognizance was taken. When the case was
pending before the Fast Track Court, the accused were
discharged since the Trail Court failed to consider the material
with regard to Section 302 of IPC. Hence, the revision petition
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is filed before this Court challenging that the Trial Court ought
not to have discharged the accused and would have invoked
Section 210(2) of Cr.P.C to consider the matter together.
Hence, the counsel prayed this Court to set aside the order
passed in S.C.No.107/2010 in discharging the accused.
18. The counsel appearing for the respondents would
submit that in view of disposal of the case on merits, the
question of entertaining the revision petition does not arise and
the same become infructuous since trial has been completed
and material available on record has been considered and
passed the order of acquittal.
19. The counsel appearing for the
appellant/complainant in Crl.A.No.450/2018 also reiterates with
regard to the date of marriage and child was born within one
year of the marriage. The counsel brought to notice of this
Court that both the dead bodies were found in a hanging
posture. The fact that all the accused persons are living in the
same house and the same is not in dispute. The counsel mainly
contend that when the P.M. was conducted, the doctors have
not given opinion regarding time of death. Hence, IO wrote a
letter to clarify the same and the same was clarified by the
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doctor that death has occurred prior to 24 to 48 hours. The
counsel brought to notice of this Court the Ex.P21-PM report of
the Madhu and also the reply at Ex.P23. Ex.P22 is the PM
report of the child, who was aged about 4½ years. The counsel
vehemently contend that when there is an ante-mortem
injuries on both the dead bodies, the Trial Court fails to
consider the same while passing the order and erroneously
proceeded only to consider the charges levelled against the
accused and ought to have taken note of both medical evidence
as well as ante-mortem injuries found on both dead bodies. The
counsel would vehemently contend that when the complainant
came to know about the incident in the midnight of the
previous day at around 01.00 a.m., he went to matrimonial
home of his daughter on the next day and immediately lodged
the complaint on 07.10.2004 at 10.15 a.m. and no delay. The
police came to the spot only based on the complaint of PW1
and thereafter secured the Tahsildar. Tahsildar conducted the
inquest and found the injuries all over the body i.e., on the
chest, cheek and near the neck and ear and no dispute that
post mortem report also discloses the same.
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20. The counsel would vehemently contend that as the
investigation was not properly conducted, the private complaint
was filed and cognizance was taken and matter was committed
to the Sessions Court. But the Sessions Judge committed an
error in discharging the accused for the offence under Section
302 of IPC. The Sessions Judge ought not to have relied upon
the death note which came into existence after 13 days of the
incident and the said reason is given for discharge. The counsel
also vehemently contend that when the specific allegations are
made that it is a case of murder, ought to have invoked Section
302 of IPC but not done the same. The very IO who conducted
the investigation had indulged in creation of document of death
note and the same is disputed in the private complaint filed by
the complainant. The counsel would contend that even the Trial
Judge also not accepted the said document as believable one,
but committed an error in acquitting the accused only on the
ground of delay. Even though the Trial Court comes to the
conclusion that all the materials available on record
corroborates the case of prosecution, but carried away only the
aspect of delay is concerned but there was no such delay since
when the elder member of the family i.e., complainant came to
know about the incident, immediately lodged the complaint.
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The counsel would contend that Ex.P8 to P10 discloses having
purchased the bike and jewels to give dowry prior to the
marriage. The Ex.P11-Inquest is very clear that rigor mortis on
the dead body was disappeared at the time of conducting Post
Mortem. The counsel would contend that when the doctors
have not given proper opinion, clarification was also sought in
terms of Ex.P23. PW1 and PW2 are the parents; PW3 is the
brother and PW4 is the neighbour who found the dead bodies in
the matrimonial house and PW5 has turned hostel. However,
PW9 and PW10 who are brother and sister have also supported
the case of prosecution and independent witness PW12 who
participated in the marriage talk also supported the case of
prosecution. But PW13 has not supported the case of the
prosecution. But PW14 who is the relative of the family of the
victims, supported the case of the prosecution. But only a stray
admission of PW14 that PW1 was present in the previous day
and the Trial Court committed an error in relying upon the
evidence of PW14 and there is no any positive evidence that
PW1 was very much present in the previous day. The counsel
would vehemently contend that delay cannot be attributed.
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21. Sri G.B. Sharath Gowda, learned counsel appearing
for the appellant in Criminal Appeal No.450/2018, in support of
his arguments relied upon the judgment of the Apex Court
reported in (2015) 3 SCC 724 in the case of SHER SINGH
ALIAS PARTAPA vs STATE OF HARYANA wherein the Apex
Court held that after the prosecution establishes the
foundational circumstances of the offence, the burden is then
placed on the accused to prove their innocence and the counsel
brought to notice of this Court paragraphs 16 to 19 wherein
discussion was made with regard to Section 113B of the
Evidence Act and Section 304B of IPC and Apex Court held that
it must ordinarily be assumed that Parliament intentionally
used the word “deemed” in Section 304-B to distinguish this
provision from the others. It is also the acceptable meaning to
these provisions, unless the word “shown” is used in
synonymous to “prove” and the word “presume” as freely
interchangeable with the word “deemed”. In criminal
legislation, however, it is unpalatable to adopt this approach by
toto and also the death of a woman has been caused in
abnormal circumstances and if it is within 7 years of marriage
and she was subjected to cruelty or harassment by her
husband or any relative of her husband in connection with any
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demand for dowry and that cruelty or harassment meted out to
her continued to have a casual connection or a live link with the
demand of dowry. The word “soon” finds place in Section 304-
B. The counsel brought to notice of this Court paragraph 17
wherein discussion was made with regard to the width and
amplitude of a provision deeming the guilt of a person in a legal
system founded on a Constitution needs to be briefly reflected
on. If the Constitution expressly affirms or prohibits a particular
state of affairs, all the statutory provisions which are
incongruent thereto must be held as ultra vires and, Article 20
of our Constitution while not affirming the presumption of
innocence does not prohibit it, thereby, leaving it to Parliament
to ignore it whenever found by it to be necessary or expedient.
The counsel also brought to notice of this Court paragraphs 18
and 19 wherein discussion was made with regard to invoking of
Section 303 of IPC.
22. The counsel also rely upon the judgment of the
Apex Court reported in (2016) 12 SCC 759 in the case of
SATISH SHETTY vs STATE OF KARNATAKA wherein it is
held that delay must be assessed with sensitivity, including the
family's possible involvement in the treatment, death
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formalities, inquest and funeral arrangements and brought to
notice of this Court paragraph 13 wherein it is held that the
court should not be hypertechnical approach in blaming the
mother of the deceased for lodging a delayed complaint. It will
be useful to remember that delay in lodging the FIR or
complaint is not fatal in all cases. The Court must show some
sensitivity in cases of the present nature where the victim’s
closest relation – mother is a poor helpless lady. The
prosecution in such cases is likely to be delayed further if the
deceased has left behind children.
23. The counsel also relied upon the judgment of the
Apex Court reported in (1973) 3 SCC 114 in the case of
APREN JOSEPH @ KUNJUKUNJU AND OTHERS vs THE
STATE OF KERALA wherein the Apex Court held that no
duration of time in the abstract can be fixed as reasonable for
giving information of a crime to the police, the question of
reasonable time being a matter for determination by the Court
in each case and brought to notice of this Court paragraph 11
wherein discussion was made with regard to the giving of
information and recording of information by the police is not a
condition precedent to the setting in motion of a criminal
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investigation. Nor does the statute provide that such
information report can only be made by an eyewitness. First
information report under Section 154 is not even considered a
substantive piece of evidence. It can only be used to
corroborate or contradict the informant’s evidence in court. It is
very useful if recorded before there is time and opportunity to
embellish or before the informant's memory fades. Undue
unreasonable delay in lodging the F.I.R, therefore, inevitably
gives rise to suspicion which puts the court on guard to look for
the possible motive and the explanation for the delay and
consider its effect on the trustworthiness or otherwise of the
prosecution version.
24. Per contra, the counsel appearing for the
respondents/accused would vehemently contend that the Court
has to take note of the charge number 2, 3 and 4 and having
perused the charge number 2, 3 and 4, it is very clear that it is
a case of suicide and before committing the suicide by the
mother, committed the murder of her child. When such being
the case, burden of proving the same is on the prosecution.
The counsel also would vehemently contend that Court has to
take note of Q1 and S1 document of death note. The death
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note is very clear that she was blamed as thief and hence, she
took the extreme step of committing suicide and the same is
also taken note of by the Trial Court. The counsel also would
vehemently contend that accused No.2 was not at the spot
when PW4 having gone to the house of the deceased and found
the dead bodies in a hanging posture. The counsel contend that
the Trial Court has taken note of Ex.P11-Inquest and so also
Ex.P21 and P22-PM reports of the mother and the child. The
counsel would vehemently contend that PW2, PW3, PW7, PW8,
PW10, PW12, PW14, PW15, PW16 were present having come to
know about the death of the mother and child. When those
persons were present, they ought to have given the complaint
but not given complaint. Even material discloses that PW1 also
very much present in the previous date and there is
contradictions in the contents of the complaint at Ex.P1 as well
as the evidence of PW1 with regard to that he came to know
about the death of his daughter and grandson. When all these
materials were available on record, the Trial Court rightly
considered the same and comes to the conclusion that there
was a delay in lodging the complaint.
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25. The defence of the accused also very clear that on
the previous day of incident, negotiated for compensation.
When the accused family did not agree for the same, an after
thought, a complaint was lodged on the next day. The same
was taken note of by the Trial Court. The evidence of DW1 and
DW2 is very clear that there was a Panchayath held on the
previous day and they were aware of the same. All these
factors were taken note of by the Trial Court. Though the Trial
Court taken note of the evidence with regard to the marriage
and demand of dowry and acceptance and comes to the
conclusion that there was a material, but it is elicited from the
mouth of witnesses that there is a practice in the said
community for performing of marriage and giving the same.
Thus, the same will not amounts to a dowry. The counsel would
vehemently contend that when the Trial Court rightly
considered the material on record, the question of reversing the
findings of Trial Court does not arise. Only in an exceptional
circumstances, this Court can interfere with findings and the
said circumstances is not warranted. The counsel also would
vehemently contend that the investigation is properly
conducted and even Investigating Officer has got it clarified the
time since death though it is not mentioned in the PM report at
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Ex.P21 and P22 and there are no materials to come to other
conclusions to exercise the appellate jurisdiction. The counsel
also would vehemently contend that the evidence of the
prosecution witnesses are properly appreciated by the Trial
Court, hence, question of reversing the finding of Trial Court
does not arise and it is not a case for reversing the same.
26. Having heard the learned counsel appearing for the
respective parties and also on perusal of the material on
record, the Points that would arise for the consideration of
these matters before the Court are :
1. Whether the Trial Court committed an error in
discharging the accused persons for the offence
punishable under Section 302 of IPC in
S.C.No.107/2010 and whether it requires
interference of this Court?
2. Whether the Trial Court committed an error in
acquitting the accused persons without invoking
the offence punishable under Section 302 of IPC
even though an observation was made while
discharging the accused that if materials are found
to invoke Section 302 of IPC would be invoked?
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3. Whether the approach of the Trial Court is
erroneous in not properly appreciating the medical
evidence available on record and whether there is
any defect in the investigation conducted by the
Investigating Officer as alleged in the private
complaint filed by the family of the victims and
whether the findings of the Trial Court amounts to
a miscarriage of justice in not considering the
material on record and whether this Court can
exercise the appellate jurisdiction having re-
appreciated the material on record?
4. What order?
Point No.1:
27. Now the first question before this Court is whether
the Trial Court committed an error in discharging the accused
persons for the offence punishable under Section 302 of IPC
and whether it requires interference of this Court?
S.C.No.107/2010 arise out of the private complaint filed in PCR
No.60/2005. Having perused the contents of the complaint, a
specific allegation is made in the complaint that the
Investigation Officer has not conducted proper investigation
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and failed to invoke Section 302 of IPC while filing the charge
sheet, except invoking the IPC offence of Section 498A, 304B
and 306 and Sections 3, 4 and 6 of Dowry Prohibition Act. The
specific grounds are urged in the PCR from page No.3 onwards
in detail. It is stated in the complaint that the injuries found on
the body of Smt. Madhu and the child Likith Gowda are ante
mortem in nature. The report of the doctor, who conducted the
post mortem, is clear that it is a case of murder of Likith Gowda
i.e., case of throttling. It is contended that though
Channapatna Rural Police conducted the investigation,
thereafter, the matter was referred to the COD and both failed
to take note of that the body of Likith Gowda was in a hanging
posture even though it is a case of throttling and what made
the mother to hang him if allegedly the mother had taken the
life of the son. When the case of taking away the life of the
child was invoked, ought to have invoked the offence under
Section 302 of IPC. Whether it is by the mother or by anybody
else, the police cannot decide the same. Even if the police had
come to the conclusion that the mother had killed the child,
ought to have invoked Section 302 of IPC and filed the abated
charge-sheet. But the same is not done and that is one of the
contentions. When the ante-mortem injuries are found on the
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neck of the child, that too on the back side of the neck, if it is
throttling, there is no explanation by the Medical Officer. It is
also an allegation that there are several injuries on the
deceased Smt. Madhu, that too on the left side near the ear
and also the eye, cheek and chest. If it is death by suicidal
hanging, there is no any reasoning given by the Investigation
Officer as well as the doctor and the inquest discloses injury on
the chest. But post mortem report does not disclose injury on
the chest and hence, the very report of the Medical Officer and
also the Investigating Officer is not consistent. There was no
any ligature mark over the surrounding of neck. The
photographs of the deceased are produced before the Court,
which discloses not in the nature of upward shape in a case of
suicidal hanging as “v” shape, but it was horizontal in nature
as depicts in photo. All these questions were raised and even
complaint runs from page Nos.3 to 17 for invoking Section 302
of IPC and the Magistrate took cognizance considering the
pleadings and grounds.
28. It is also important to note that the Trial Court
having considered the material on record, has taken the
cognizance in a private complaint and matter was referred to
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the Sessions Court and the same is numbered as
S.C.107/2010. Having perused the order dated 25.09.2012,
passed by the Presiding Officer, Fast Track Court at
Ramanagara, while discharging the accused, failed to take note
of the fact that S.C.No.131/2006 was pending before the First
Additional District and Sessions Judge, Ramanagara. An
observation is made in paragraph No.9 that the prosecution has
argued and urged to frame charge for the offence punishable
under Section 302 of IPC in S.C.No.131/2006. It appears this
Court by its order dated 22.08.2009 has made an observation
that one Rekha - P.W.4 has first seen the deceased’s dead body
hanging to the hook placed for hanging fan. The said
statement was taken note of, but failed to take note of the
ante-mortem injuries. An observation is also made that much
before the death, a death note of the deceased was left, which
indicates the allegation of theft was made against her and the
expert certified that the writing made in the death note is that
of the deceased. The Trial Court failed to take note of that the
very death note is disputed, which came to light under
suspicious circumstances after 13 days of the incident, that too
while cleaning the matrimonial home of the deceased. These
reasons would not have been given while discharging the
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accused when a serious allegation is made against the accused
persons. The Trial Court while taking the cognizance, taken
note of the grounds which have been urged in the PCR. The
other observation is made that this Court has already declined
to frame the alternative charge for Section 302 of IPC and kept
open the objection that during the trial if sufficient material is
placed for charge of Section 302 of IPC, then also the Court
could exercise the discretion to frame charge for the said
offence in S.C.No.131/2006. The very approach of the Trial
Court in discharging the accused persons is erroneous. It has to
be noted that when the police report was filed,
S.C.No.131/2006 is registered and when a separate private
complaint was filed and cognizance was taken,
S.C.No.107/2010 was registered based on reference was made
for consideration.
29. This Court would like to extract Section 210 of
Cr.P.C, which reads as under:
“210. Procedure to be followed when there
is a complaint case and police investigation in
respect of the same offence.
(1) Where in a case instituted otherwise than on
a police report (hereinafter referred to as a
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complaint case), it is made to appear to the
Magistrate, during the course of the inquiry or trial
held by him, that an investigation by the police is in
progress in relation to the offence which is the
subject-matter of the inquiry or trial held by him,
the Magistrate shall stay the proceedings of such
enquiry or trial and call for the report on the matter
from the police officer conducting the investigation.
(2) If a report is made by the investigating
police officer under section 173 and no such report
cognizance of any offence is taken by the
Magistrate against any person who is an accused in
the complaint case, the Magistrate shall inquire into
or try together the complaint case and the case
arising out of the police report as if both the cases
were instituted on a police report.
(3) If the police report does not relate to any
accused in the complaint case or if the Magistrate
does not take cognizance of any offence on the
police report, he shall proceed with the inquiry or
trial, which was stayed by him, in accordance with
the provisions of this Code.”
30. Having read the provisions of Section 210 of Cr.P.C,
it is the procedure to be followed when there is a complaint
case and police investigation in respect of the same offence
i.e., where in a case instituted otherwise than on a police
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report, it is made to appear to the Magistrate, during the
course of the inquiry or trial held by him, that an investigation
by the police is in progress in relation to the offence which is
the subject-matter of the inquiry or trial held by him, the
Magistrate shall stay the proceedings of such inquiry or trial
and call for the report on the matter from the police officer
conducting the investigation. Sub-section (2) is very clear that
if a report is made by the investigating police officer under
Section 173 and no such report cognizance of any offence is
taken by the Magistrate against any person who is an accused
in the complaint case, the Magistrate shall inquire into or try
together the complaint case and the case arising out of the
police report as if both the cases were instituted on a police
report. The judge who discharged the accused failed to take
note of sub-section (2) of Section 210 of Cr.P.C. Based on the
police report, the trial judge in S.C.No.131/2006 has not taken
the cognizance in respect of the offence punishable under
Section 302 of IPC. Even though charge was not alleged
against the accused under Section 302 of IPC, but he shall
proceed with the inquiry or trial. Sub-section (3) of Section 210
of Cr.P.C also contemplates the same.
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31. This Court would like to rely upon the judgment of
the Apex Court in the case of SANKARAN MOITRA v.
SADANA DAS AND ANOTHER reported in (2006) 4 SCC 58.
Paragraph Nos.75 to 81 of the said judgment reads as follows:
“75. In my view, even Section 210 of the Code
has no application to the facts of the case on hand.
Section 210 requires procedure to be followed when
there is a complaint case and police investigation in
respect of the same offence and reads thus:
210. Procedure to be followed when there
is a complaint case and police investigation in
respect of the same offence.– (1) When in a
case instituted otherwise than on a police
report (hereinafter referred to as a complaint
case), it is made to appear to the Magistrate,
during the course of the inquiry or trial held
by him, that an investigation by the police is
in progress in relation to the offence which is
the subject matter of the inquiry or trial held
by him, the Magistrate shall stay the
proceedings of such inquiry or trial and call
for a report on the matter from the police
officer conducting the investigation.
(2) If a report is made by the investigating
police officer under Section 173 and no such
report cognizance of any offence is taken by
the Magistrate against any person who is an
accused in the complaint case, the Magistrate
shall inquire into or try together the
complaint case and the case arising out of the
police report as if both the cases were
instituted on a police report.
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(3) If the police report does not relate to
any accused in the complaint case or if the
Magistrate does not take cognizance of any
offence on the police report, he shall proceed
with the inquiry or trial, which was stayed by
him, in accordance with the provision of this
code.
76. A bare reading of the above provision
makes it clear that during an inquiry or trial relating
to a complaint case, if it is brought to the notice of
the Magistrate that an investigation by the police is
in progress in respect of the same offence, he shall
stay the proceedings of the complaint case and call
for the record of the police officer conducting the
investigation.
77. The object of enacting Section 210 of the
Code is three fold:
(i) it is intended to ensure that private
complaints do not interfere with the course of
justice;
(ii) it prevents harassment to the accused twice;
and
(iii) it obviates anomalies which might arise from
taking cognizance of the same offence more than
once.
78. The Joint Committee of Parliament
observed:
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"It has been brought to the notice of the
Committee that sometimes when serious case is
under investigation by the police, some of the
persons file complaint and quickly get an order of
acquittal either by cancellation or otherwise.
Thereupon the investigation of the case becomes
infructuous leading to miscarriage of justice in
some cases. To avoid this, the Committee has
provided that where a complaint is filed and the
Magistrate has information that the police is also
investigating the same offence, the Magistrate shall
stay the complaint case. If the police report (under
Section 173) is received in the case, the Magistrate
should try together the complaint case and the case
arising out of the police report. But if no such case
is received the Magistrate would be free to dispose
of the complaint case. This new provision is
intended to secure that private complainants do not
interfere with the course of justice.
79. It is thus clear that before Section 210 can
be invoked, the following conditions must be
satisfied.
(i) There must be a complaint pending for
inquiry or trial;
(ii) Investigation by the police must be in
progress in relation to the same offence;
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(iii) A report must have been made by the police
officer under Section 173; and
(iv) The magistrate must have taken cognizance
of an offence against a person who is accused in
the complaint case.
80. In the impugned order passed by the High
Court, no such contention appears to have been
raised by the appellant. On the basis of the
complaint filed by the complainant and on being
satisfied on the material placed on record, the
learned Chief Judicial Magistrate, Alipore had
proceeded with the case which cannot be said to be
illegal.
81. It may also be stated here that the High
Court in its order, dated June 20, 2003 considered
this contention and observed that Section 210 of
the Code could not arrest the proceedings initiated
by the complainant, since the 'basic tenor of the
two cases were different.' Relying on the decision of
this Court in Harjinder Singh v. State of Punjab,
(AIR 1985 SC 404), it was submitted that both the
cases could not be clubbed together since the
prosecution version was quite different in those
cases. It may be stated that Special Leave Petition
against the order of the High Court was dismissed
by this Court on July 28, 2003. Even this ground,
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therefore, cannot take the case of the appellant
anywhere.”
32. This Court also would like to rely upon the
judgment of the Apex Court in the case of
DILAWAR SINGH
v. STATE OF DELHI reported in (2007) 12 SCC 641. This
Court would like to extract paragraph Nos.13 and 14 of the said
judgment, which reads as follows:
“13. The principle has been statutorily
recognised in Section 210 of the Cr.P.C. which
enjoins upon the Magistrate, when it is made to
appear before him either during the inquiry or the
trial of a complaint, that a complaint before the
police is pending investigation in the same matter,
he is to stop the proceeding in the complaint case
and is to call for a report from the police. After the
report is received from the police, he is to take up
the matter together and if cognizance has been
taken on the police report, he is to try the
complaint case along with the G.R. Case as if both
the cases are instituted upon police report. The aim
of the provision is to safeguard the interest of the
accused from unnecessary harassment.
14. The provisions of Section 210, Cr.P.C, are
mandatory in nature. It may be true that non-
compliance of the provisions of Section 210,
Cr.P.C., is not ipso facto fatal to the prosecution
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because of the provision of Section 465 Cr. P.C.,
unless error, omission or irregularity has also
caused the failure of justice and in determining the
fact whether there is a failure of justice the Court
shall have regard to the fact whether the objection
could and should have been raised at an earlier
stage in the proceedings. But even applying the
very same principles it is seen that in fact the
appellant was in fact prejudiced because of the
non-production of the records from the police.”
33. Having considered Section 210 of Cr.P.C as well as
the principles laid down in the judgments referred supra, it is
very clear that merely because on the same set of facts with
the same allegations and averments, earlier the complaint is
filed, there is no bar to lodge the FIR with police station with
the same allegations and averments. The Trial Court while
discharging the accused failed to take note of Section 210 of
Cr.P.C. The provisions of Section 210 of Cr.P.C can be invoked
when there is a complaint case pending enquiry or trial and the
investigation by the police is in progress in relation to the same
offence in other case. Having taken note of Section 210 of
Cr.P.C as well as the principles laid down in the judgments
referred supra, the Trial Court instead of discharging the
accused, ought to have taken up both the matters together for
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consideration in order to invoke Section 302 of IPC i.e.,
S.C.No.107/2010 arising out of private complaint and police
report in S.C.No.131/2006 and the same are in respect of the
same set of facts and same incident and specific case is that it
is a case for invoking of Section 302 of IPC apart from Section
304B of IPC and other offences and the reasons given for
discharge is erroneous. The Trial Court before discharging
accused ought to have taken note of the averments made in
the complaint and also the cognizance taken considering the
grounds urged in the private complaint as specific contention
was taken that Investigating Officer has not investigated the
matter properly for the offence under Section 302 of IPC. The
each averments made in the complaint suggests the very
commission of offence under Section 302 of IPC and failed to
consider the error on the part of Investigating Officer and also
the medical evidence as per the post mortem report. Hence,
this Court would like to set aside the order passed by the Trial
Court in S.C.No.107/2010 in discharging accused Nos.1 to 3 for
the offence punishable under Section 302 read with Section 34
of IPC and hence, we answer the point accordingly.
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Point Nos.2 and 3 :
34. This Court also framed the point for consideration
whether the Trial Court committed an error in acquitting the
accused persons without invoking the offence punishable under
Section 302 of IPC even though an observation was made while
discharging the accused that if materials are found to invoke
Section 302 of IPC it could be invoked. Whether the approach
of the Trial Court is erroneous in not properly appreciating the
medical evidence available on record and whether there is any
defect in the investigation conducted by the Investigating
Officer as alleged in the private complaint filed by the
complainant i.e., father of the deceased Smt. Madhu and
whether the findings of the Trial Court amounts to miscarriage
of justice in not considering the material on record and whether
this Court can exercise the appellate jurisdiction as contended
by the counsel appearing for the defacto complainant appellant
and also the advocate appearing for the State. The common
grounds are urged in both the appeals.
35. Having considered the reasons assigned by the Trial
Court in acquitting the accused for the offences punishable
under Sections 498A, 304B and 306 of IPC, the Trial Court
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comes to the conclusion on appreciation of evidence of the
prosecution witnesses that case of the prosecution
corroborates, but only reason assigned by the Trial Court is
that there was a delay in lodging the complaint. The Court has
to take note of the fact that it is the specific case of the
prosecution witnesses that the father of the deceased Madhu
had come to the village in the late night. It is also the evidence
of the father, who has been examined before the Trial Court as
P.W.1 that he went to Bangalore and came back to his house in
the late night at around 1.00 a.m. and he went in the early
morning and taken note of the dead body of daughter and
grandson and had lodged the complaint at 10.15 a.m. No
doubt, one minor discrepancy is found that he came in the late
night at 1.00 a.m. and informed the same to his labourers. But
in the complaint at Ex.P.1 he says that he came to know about
the incident in the early morning at 5.30 a.m. But throughout
the witnesses were cross-examined with regard to the very
arrival of the complainant in the previous day itself and P.W.2,
P.W.3 and other witnesses have categorically denied the same.
But the Trial Court taken note of the evidence of P.W.14,
wherein P.W.14 says that P.W.1 was also present and this
answer is elicited in cross examination. No doubt, P.W.14 is
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also a close relative. P.W.14 says that Shivanna i.e., P.W.1
and his two sons were also present when he himself and his
sister had come to Doddamaluru. But that is not the statement
of P.W.14 made before the police under Section 161 that he
was there. But only in the cross-examination of P.W.14, he
deposes the same and not in the chief evidence, since he has
not made any statement before the police that he saw
Shivanna on the previous day. But only in the cross-
examination, this answer is elicited. This stray admission of
P.W.14 was relied upon by the Trial Court in order to come to a
conclusion with regard to the delay is concerned. It has to be
noted that the complaint Ex.P.1 was given by the complainant
and there is an endorsement in Ex.P.1 that this complaint was
given on 07.10.2004 at 10.15 a.m. and case was registered in
Crime No.240/2004 for the offences punishable under Sections
498A, 304B read with Section 34 of IPC. An allegation of
murder of his daughter and grandson was stated in the
complaint, but not invoked Section 302 of IPC while registering
the case itself at the first instance.
36. It is also important to note that the police official
who has been examined as P.W.25 before the Trial Court, in his
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evidence he says that he was in-charge of the SHO on
07.10.2004 at about 10.15 a.m. He categorically says that the
complainant came and lodged the written complaint and hence,
he registered Crime No.240/2004 and issued the FIR in terms
of Ex.P.27. The other police witness, who has been examined
as P.W.21 speaks about he took over the further investigation
from PSI and went through the papers. He visited the spot and
conducted panchanama and also he secured the Tahsildar and
requested him to conduct an inquest. He has also taken the
photographs at the spot by securing the photographer. The
other police witness, who conducted the further investigation
on 15.10.2004 was also examined as P.W.24. Nothing is
suggested to these witnesses that during the course of
investigation, they came to know about the complainant was
very much present in the previous date. When there is no
effective cross-examination with regard to the presence of the
complainant P.W.1 in the previous day, by considering only the
stray admission of P.W.14, the Trial Court comes to the
erroneous stray conclusion that there was a delay in lodging
the complaint and accepted the theory of the defence.
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37. It is also important to note that D.W.1, who has
been examined on behalf of the accused, though he says that
panchayath was held in the previous day and the family of the
deceased demanded an amount of Rs.10,00,000/- as
compensation for the pain and agony, but in the cross-
examination, he categorically admits that he cannot say who
was the yajaman of the panchayath and also he did not
participate in the said panchayath. But he volunteers that he
was also present in the gathering. It is not his evidence that he
was also the part of panchayath. He categorically admits that
even though he stayed there during the night, he did not
attempt to lodge any complaint and even he did not intimate
the police about the death. When such evidence is placed
before the Court, the evidence of D.W.1 cannot be accepted.
He deposes that the parents of the deceased and others came
there, who were 100 in number and that accused Nos.1 to 3
were present at the spot. But none of the witnesses speaks
about the very presence of accused Nos.1 to 3 when they went
to the matrimonial home of the deceased.
38. The other witness D.W.2 also reiterates in the line
of the evidence of D.W.1 that around 4.30 p.m. or 5.00 p.m.,
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the parents of the deceased and others came there, who were
100 in number and after sometime, panchayath was convened
near the house of the accused persons and village elders and
others gathered and he was also present. He deposes that the
family members of the deceased demanded around
Rs.10,00,000/- as compensation for the pain and agony. But
not stated that P.W.1 demanded the amount and no specific
evidence in the chief evidence that P.W.1 was very much
present at the time of panchayath. In the cross-examination,
he says that he did not observe any injuries and worms over
the dead body of Smt. Madhu and baby. He says that he came
to know that Smt.Madhu committed suicide by hanging. He
does not know where the hanging happened and also he does
not know who intimated the family members of the deceased
Madhu. But only says that when he went to the spot, her
family members were present, but not stated that P.W.1 was
present. He admits that in the panchayath the leading persons
were Sri Thotanna and Chairman Sri Ramasidda. He says that
one Shivanna belonging to the family of the deceased
demanded Rs.10,00,000/-. It is suggested that the said
Shivanna at the time of panchayath was in Bengaluru and he
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came to the place of incident during night and the said
suggestion was denied.
39. Throughout the evidence of the prosecution
witnesses, except P.W.14, all witnesses deposes that P.W.1 was
not present in the previous day. This Court also found that
P.W.14 only in the cross-examination says that P.W.1 was
present in the previous day and the same is a stray admission.
If really panchayath was held and the same was led by Sri
Thotanna and Chairman Sri Ramasidda, they would have
examined them. The evidence of P.W.1 Shivanna is very clear
that he came to know about the incident only in the previous
night at 1.00 a.m. and he went to the matrimonial home of the
deceased where death was taken place in the next day
morning. This Court also pointed out that while cross-
examining the prosecution witnesses nothing is elicited that
P.W.1 Shivanna was very much present in the previous day
itself. When such being the case, the Trial Court ought not to
have acquitted the accused only on the ground of delay and the
reason assigned by the Trial Court that there was a delay in
lodging the complaint cannot be the ground to acquit the
accused persons. The son of P.W.1 categorically deposed that
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father is the person who has to take the decision for lodging
the complaint. The incident was taken place in the previous
day and incident came to light at 3.15 p.m. in the previous day
to the neighbour and it is emerged during the course of the
evidence that police station is nearby i.e., three and a half
kilometers. It is evident that no one, either D.W.1 or D.W.2 or
any villagers of the said village have lodged the complaint or
intimated to police and material is clear that the relatives of the
deceased waited till the arrival of P.W.1, who has to take the
decision to lodge the complaint as senior member of the family
i.e., father of the victim. When such material is found, the Trial
Court proceeded in acquitting the accused on the ground that
there was a delay in lodging the complaint and no effective
cross-examination to that effect. Merely because other family
members rushed to the village along with their relatives, it
cannot be a ground. It is not the case of the police also that
they came to know about the incident in the previous day itself.
It is a cognizable offence and only the Investigation Officer
could act on the information and FIR Ex.P.27 is very clear that
information was received at 10.15 a.m. on 07.10.2004 that too
based on the complaint of P.W.1. The further statement of
P.W.1 was recorded on 16.10.2004. When such being the
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case, the Trial Court in a case of heinous offence of losing of
two lives i.e., daughter and grandson of P.W.1, ought not to
have proceeded on the ground of delay and hence, the very
appreciation of evidence by the Trial Court on the ground of
delay is nothing but perverse and fails to consider the intrinsic
evidence available before the Court.
40. Now the question before this Court is with regard to
not invoking of Section 302 of IPC. Having perused the
complaint Ex.P.1, it is very clear that specific allegation was
made in the complaint that the accused persons have killed the
daughter and also the grandson. But it is unfortunate that the
Investigation Officer registered the case only for the offences
punishable under Sections 498A and 304B read with Section
306 r/w Section 34 of IPC. It is also important to note that
other material is also placed before the Court with regard to
Section 498A of IPC and Sections 3, 4 and 6 of the Dowry
Prohibition Act and the same is accepted by the Trial Court that
the same corroborates with the case of the prosecution
considering the documents of Exs.P.8, 9 and 10. But while
considering the case with regard to Section 302 of IPC,
admittedly when the application was filed to frame the charge
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for Section 302 of IPC, the same was dismissed and while
discharging also made an observation that if sufficient material
is placed during the course of evidence, going to frame the
charge. But P.W.1, P.W.2 and other relative witnesses as well
as P.W.12 spoken with regard to the taking the life by the
accused persons.
41. Now the Court has to consider the document of
Ex.P.11 inquest report of Madhu, which came into existence on
the very day of registration of the case. Inquest was conducted
by the Tahsildar. In column No.7, the Tahsildar noted the
injuries near the left ear i.e., pressed wound and also found
ligature mark measuring 8 x 1 inch near the left ear and the
same is not around the neck as per the inquest. It is also
important to note that there was an injury in between both the
breast on the chest and the same is also a reddish injury and
rigor mortis was not there. Hence, the Court has to take note of
the ligature mark only on the back side of left ear and the same
is also 8 x 1 inch and if it is caused from using the saree, it
should not have been 1 inch in size, unless the same is in the
nature of rope. It is also important to note that in Ex.P.21 post
mortem report of Madhu, in respect of external injuries, it is
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mentioned parchment like membrane over right side of the face
and eye 6 x 4 cm. and over the cheek 4 x 4 cm. While
considering the more detailed description of injury of the
deceased, it is stated that ligature mark over the neck was
obliquely situated, right side 6 cm. from the midline from 1 cm.
below the mandible and extend 6 cm. below the mandible on
left side and size is around 8 x 1 inch. But the same is not
found in the inquest, which is marked as Ex.P.11. It is also
important to note that the doctor who conducted the post
mortem, did not mention anything about the injury found in
between the breast on the chest of the deceased. The doctor
ought to have been intensive while conducting the post
mortem, since the same is done by an expert and inquest is not
by an expert. The doctor could have mentioned the nature of
injuries found on the chest of the deceased in his post mortem
report and the same is missing. It is also important to note
that cause of death mentioned in Ex.P.21 is due to asphyxia
due to suicidal hanging.
42. Having perused the photographs, which are
produced before the Court, the photographs are very clear that
ligature mark is not in the upward shape, if it is a case of
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suicidal hanging. The ligature mark is in the nature of
horizontal, not oblique, as stated by the doctor and photo
depicts it is horizontal. In respect of Ex.P.22 post mortem
report of the boy, there was an injury on the back side of the
neck. If it is a case of throttling as per Ex.P.22, what made an
injury behind the neck is not explained by the doctor and the
Investigation Officer has not obtained further report from the
doctor. The photographs which are found, is very clear that the
mother had sustained the injury near the ear and no
explanation on the part of the Investigation Officer as well as
the doctor who have been examined before the Court with
regard to the ante-mortem injuries found on the body of both.
The photographs also clearly discloses that there was an injury
on the chest so also on the left side of the ear, cheek and near
the eye. There is no proper consideration of evidence by the
Trial Court with regard to these documents which have been
marked. It is the duty of the doctor to give the opinion with
regard to the time since death when the post mortem was
conducted and when the same was not found, the Investigation
Officer sought for clarification and the same was given in terms
of Ex.P.23. It is stated that time since death is 24 hours to 48
hours. It is important to note that rigor mortis was not found as
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per the inquest. But rigor mortis disappears after 36 to 48
hours and the same is also not considered by the Trial Court
and no question was put to the Doctor either by the prosecutor
or by the Court. It is also important to note that the Trial Court
proceeded in an erroneous approach and when all these
materials were found, ought to have framed the charge for the
offence under Section 302 of IPC as observed earlier when I.A.
is rejected and also while discharging. When the private
complaint was filed and cognizance was taken and when the
discharge was made, the Trial Court made an observation that
if sufficient material is placed during the course of evidence,
going to consider Section 302 of IPC, but not considered the
same and got carried away with regard to the charges which
have been framed only for the offences punishable under
Sections 498A, 304B and 306 of IPC and not taken note of the
evidence available on record. It appears that the doctor has
not properly conducted the post mortem of both the deceased
as per Exs.P.21 and 22 and no reasons are given with regard to
the nature of injuries which are ante-mortem and whether such
injuries could be caused in a case of suicidal hanging or
involvement of third parties. It is evident that both the child as
well as the mother have sustained the injuries and particularly
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with regard to the child in terms of Ex.P.22, he has sustained
the injury on the back of the neck. If the cause of death is on
account of throttling, how he can sustain injury on the backside
of the neck, there is no explanation. The Investigation Officer
also has not properly conducted the investigation when specific
accusation is also made that the Investigation Officer has not
conducted the proper investigation in the private complaint and
the Court also taken cognizance with regard to no proper
investigation. Having found the material on record, the Trial
Judge ought not to have been a mute spectator and should
involve in conducting the Trial. It is the duty of the Presiding
Officer to look into all the material available on record and to
apply his judicious mind while considering the matter and even
Court can put Court questions. The duty of the Court is to quest
for the truth.
43. This Court would like to rely upon the judgment of
the Apex Court in the case of STATE OF RAJASTHAN v. ANI
ALIAS HANIF AND OTHERS reported in (1997) 6 SCC 162.
Paragraph Nos.12 and 13 of the judgment reads as follows:
“12. Reticence may be good in many
circumstances, but a judge remaining mute during
trial is not an ideal situation. A taciturn Judge may
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be the model caricatured in public mind. But there
is nothing wrong in his becoming active or dynamic
during trial so that criminal justice being the end
could be achieved. Criminal trial should not turn out
to be a bout or combat between two rival sides with
the judge performing the role only of a spectator or
even an umpire to pronounce finally who won the
race. A judge is expected to actively participate in
the trial, elicit necessary materials from witnesses
at the appropriate context which he feels necessary
for reaching the correct conclusion. There is nothing
which inhibits his power to put questions to the
witnesses, either during chief examination or cross-
examination or even during re-examination to elicit
truth. The corollary of it is that if a judge felt that a
witness has committed an error or a slip it is the
duty of the judge to ascertain whether it was so,
for, to err is human and the chances of erring may
accelerate under stress of nervousness during
cross-examination. Criminal justice is not to be
founded on erroneous answers spelled out by
witnesses during evidence collecting process. It is a
useful exercise for trial judge to remain active and
alert so that errors can be minimised.
13. In this context it is apposite to quote the
observations of Chinnappa Reddy, J. in Ram
Chander v. The State of Haryana (AIR 1981 SC
1036):
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"The adversary system of trial being what
it is, there is an unfortunate tendency for a
judge presiding over a trial to assume the
role of a referee or an umpire and to allow
the trial to develop into a contest between
the prosecution and the defence with the
inevitable distortions flowing from combative
and competitive elements entering the trial
procedure. If a Criminal Court is to be an
effective instrument in dispensing justice, the
presiding judge must cease to be a spectator
and a mere recording machine. He must
become a participant in the trial by evincing
intelligent active interest by putting questions
to witnesses in order to ascertain the truth."
We respectfully concur with the aforesaid
observations. We find no wrong in the trial court
interjecting during cross-examination of PW-3 with
a view to ascertain the correct position.”
44. This Court would also like to rely upon the
judgment of the Apex Court in the case of BABLU KUMAR
AND OTHERS v. STATE OF BIHAR AND ANOTHER reported
in (2015) 8 SCC 787. Paragraph No.22 of the said judgment
reads as follows:
“22. Keeping in view the concept of fair trial, the
obligation of the prosecution, the interest of the
community and the duty of the Court, it can
irrefragably be stated that the Court cannot be a
silent spectator or a mute observer when it presides
over a trial. It is the duty of the Court to see that
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neither the prosecution nor the accused play
truancy with the criminal trial or corrode the
sanctity of the proceeding. They cannot expropriate
or highjack the community interest by conducting
themselves in such a manner as a consequence of
which the trial becomes a farcical one. Law does
not countenance a “mock trial”. It is a serious
concern of the society. Every member of the
collective has an inherent interest in such a trial. No
one can be allowed to create a dent in the same.
The Court is duty bound to see that neither the
prosecution nor the defence takes unnecessary
adjournments and take the trial under their control.
The Court is under the legal obligation to see that
the witnesses who have been cited by the
prosecution are produced by it or if summons are
issued, they are actually served on the witnesses. If
the Court is of the opinion that the material
witnesses have not been examined, it should not
allow the prosecution to close the evidence. There
can be no doubt that the prosecution may not
examine all the material witnesses but that does
not necessarily mean that the prosecution can
choose not to examine any witness and convey to
the Court that it does not intend to cite the
witnesses. The Public Prosecutor who conducts the
trial, has a statutory duty to perform. He cannot
afford to take things in a light manner. The Court
also is not expected to accept the version of the
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prosecution as if it is sacred. It has to apply its
mind on every occasion. Non-application of mind by
the trial court has the potentiality to lead to the
paralysis of the conception of fair trial.
45. This Court would like to rely upon the judgment of
the Apex Court in the case of DINESH KUMAR v. STATE OF
HARYANA reported in (2023) 20 SCC 49. The Apex Court in
this judgment referring Sections 165 and 45 of the Evidence
Act, 1872, held that, it is the duty of trial Judge to ask
pertinent questions. Paragraph Nos.22, 23, 24 and 25 of the
said judgment reads as follows:
“22. We are afraid that by pointing out the
weakness in the cross-examination of the defence
the Presiding Judge indirectly admits to the
weakness in the trial itself. We say this for the
reasons that under Section 165 of the Act, a trial
Judge has tremendous powers to “ask any question
he pleases, in any form, at any time, of any
witness, or of the parties about any fact relevant or
irrelevant”. It is in fact the duty of the Trial Judge
to do so if it is felt that some important and crucial
question was left from being asked from a witness.
The purpose of the trial is after all to reach to the
truth of the matter.
23. Section 165 of the Act reads as under:
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“165. Judge’s power to put questions or order
production.– The Judge may, in order to discover or
to obtain proper proof of relevant facts, ask any
question he pleases, in any form, at any time, of
any witness, or of the parties about any fact
relevant or irrelevant; and may order the
production of any document or thing; and neither
the parties nor their agents shall be entitled to
make any objection to any such question or order,
nor, without the leave of the Court, to cross-
examine any witness upon any answer given in
reply to any such question:
Provided that the judgment must be based
upon facts declared by this Act to be relevant, and
duly proved:
Provided also that this section shall not
authorize any Judge to compel any witness to
answer any question, or to produce any document
which such witness would be entitled to refuse to
answer or produce under Sections 121 to 131, both
inclusive, if the question were asked or the
document were called for by the adverse party; nor
shall the Judge ask any question which it would be
improper for any other person to ask under Section
148 or 149; nor shall he dispense with primary
evidence of any document, except in the cases
hereinbefore excepted.”
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24. The powers of a Presiding Judge in a
criminal trial and his duty to get to the truth of the
matter have been laid down in a seminal judgement
of this Court authored by O. Chinnappa Reddy, J.
which is Ram Chander v. State of Haryana. O.
Chinnappa Reddy, J. in the said judgment refers to
his earlier Judgment given by him as a Judge of the
Andhra Pradesh High Court, where it was said :
(Intha Ramana Reddy case, SCC Online AP para 2)
“2. …..Every criminal trial is a
voyage of discovery in which truth is
the quest. It is the duty of a Presiding
Judge to explore every avenue open to
him in order to discover the truth and
to advance the cause of justice. For that
purpose he is expressly invested by
Section 165 of the Evidence Act with
the right to put questions to witnesses.
Indeed the right given to a Judge is so
wide that he may, ask any question he
pleases, in any form, at any time, of
any witness, or of the parties about any
fact, relevant or irrelevant. Section
172(2) of the Code of Criminal
Procedure enables the court to send for
the police diaries in a case and use
them to aid it in the trial. The record of
the proceedings of the Committing
Magistrate may also be perused by the
Sessions Judge to further aid him in the
trial.”
25. The duty of the Presiding Judge of a
criminal trial is not to watch the proceedings as a
spectator or a recording machine but he has to
participate in the trial “by evincing intelligent active
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interest by putting questions to witnesses in order
to ascertain the truth.” While referring to a decision
of Lord Denning in Jones v. National Coal Board
(1957) 2 WLR 760 (CA) the learned Judge had said
that it is the duty of the Judge to ask questions to
the witnesses when it becomes necessary to clear
up any point that has been overlooked or left
obscure, then he goes on to say as under: (Ram
Chander v. State of Haryana (1981) 3 SCC 191)
Scc p.194, para 3)
“3. ….We may go further than Lord
Denning and say that it is the duty of a
Judge to discover the truth and for that
purpose he may "ask any question, in
any form, at any time, of any witness,
or of the parties, about any fact,
relevant or irrelevant" (Section 165,
Evidence Act). But this he must do,
without unduly trespassing upon the
functions of the Public Prosecutor and
the defence counsel, without any hint of
partisanship and without appearing to
frighten or bully witnesses. He must
take the prosecution and the defence
with him. The Court, the prosecution
and the defence must work as a team
whose goal is justice, a team whose
captain is the judge. The Judge, 'like
the conductor of a choir, must, by force
of personality, induce his team to work
in harmony; subdue the raucous,
encourage the timid, conspire with the
young, flatter and (sic the) old'.”
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46. This Court only given glimpses of defective
investigation and role of the doctor without expressing any
opinion on merits, since no charge of Section 302 of IPC is
framed even when material found during the course of
evidence.
47. The Doctors examined as P.W.22 and P.W.23, who
have conducted the post-mortem together speak about the
nature of injuries found on the dead body of both the victims
and have given the opinion that death is due to asphyxia,
suicidal hanging in respect of Madhu and as a result of
homicidal throttling in respect of child. The age of injuries are
not mentioned. But, their evidence is very clear that all the
injuries were ante-mortem and they have not mentioned the
time since death but clarified as query of Investigating Officer
that it might have happened 24 to 48 hours but failed to take
not of rigor mortis disappeared. But, ligature mark is shown as
1 inch. If the saree is used, ligature size would be more than 1
inch and if rope is used, then it would be 1 inch. In the cross-
examination also stated that homicidal throttling means
physically with hands, strangulation is done in respect of the
child is concerned, the death is due to throttling. But, answer is
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very clear that death of Likith Gowda is not due to hanging and
the same is due to throttling and answer is elicited that cannot
mention the difference of time between death of Likith Gowda
and death of Madhu. This is the crux of the issue whether death
of Likith Gowda has happened subsequent to the death of
Madhu or prior to death of Madhu is the clinching issue and the
evidence of Investigating Officer and Doctor on record not gives
any answer to the issue involved in the matter. The Court also
to take note of that if mother committed the murder of her son
by throttling what made her to once again hang her son and
the same is doubtful and this aspect has not been taken note of
by the Court as well as Investigating Officer and the Doctor.
48. The evidence of P.W.23 is that she was along with
P.W.22 and conducted the post-mortem. This witness also
clearly says that she cannot mention the difference of time
between death of Likith Gowda and death of Madhu and both
the Doctors, who have examined before the Trial Court have
not given proper answer with regard to time since death of
both Likith Gowda as well as death of Madhu considering the
injuries found on both the bodies. The time since death of both
Likith Gowda and Madhu is very crucial to come to a definite
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conclusion whether both homicidal or suicidal. Hence, further
examination of both the Doctors is very much necessary and
they have not spoken and given any opinion with regard to
ante-mortem injuries found on the dead body of both Likith
Gowda and Madhu when it occurred i.e., the age of the injuries.
Even if it is not possible to come to such a conclusion, even the
Court can get opinion from the Medical Board to come to such a
conclusion, if need arises, while conducting further trial in the
matter and also can get further opinion from Forensic Expert.
49. This Court has already noted the timings of setting
of rigor mortis and if it is between the timings of 24 to 48 hours
as opined and as deposed by the Doctors, visible signs also to
be taken note of. The first visible external indicator appears as
a greenish discoloration of the skin, typically starting in the
lower right abdomen (right iliac fossa) over the cecum, where
intestinal bacteria are concentrated and advanced decay starts
within 3 to 10 days. But, this time frame is heavily dependent
on external conditions. It is also very clear that rigor mortis
commences within 1 to 4 hours of death of a person. But, no
doubt, it changes from person to person and rigor mortis will be
24 to 36 hours depending upon the weather. However, in the
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case on hand, it has to be noted that when the inquest was
conducted by the Tahasildar, the rigor mortis was already
released. This issue also to be considered while considering the
matter during further trial, keeping in view the ligature mark
size over the neck as the case of police is that saree was used
for committing suicide. The points raised regarding width of the
ligature mark of the unexplained external facial marks are vital.
They highlight notable gaps and medial inconsistencies in the
post-mortem report. The width paradox and contradiction in
the report regarding ligature mark. The flaw in the report
without clarifying whether these are ante-mortem abrasions,
post-mortem desiccation or post mortem damage, neither the
material object nor the Investigating Officer provided a
mechanism for how these large lesions occurred. Though, it
was obliquely situated according to post-mortem report, as per
the photographs which are available before the Court, this
Court already pointed out that it was horizontal, not in ‘V’
shape in the cause of death of Madhu and cause of death is
given as suicidal hanging, it should be in ‘V’ shape and the
same is not depicted in the photographs which are available on
record before the Court and so also, the nature of injuries
parchment-like membrane over right side of the face which is
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mentioned in the post-mortem report unexplained facial
abrasions/bruises are classic signs of a physical struggle prior
to asphyxiation (e.g., smothering attempts, pinning the victim
down, or forcibly tightening ligature). The absence of
histopathological evaluation of these facial injuries to confirm
whether they are ante-mortem (shading tissue reaction/blood
extravasations) leaves a major gap in providing a disproving
homicidal violence before hanging. Unexplained facial injury,
Hyoid bone fracture, the ligature width discrepancy are key
evidence supporting homicidal suspicion. The forensic important
point also to be considered to distinguish hanging from ligature
strangulation whether the ligature mark is complete or
incomplete, exact level of ligature mark in relation to thyroid
cartilage and hyoid bone, the direction and obliquity of the
mark, whether there is an area of spared skin between portions
of the mark, whether there is subcutaneous hemorrhage
beneath the ligature mark. These are the important forensic
points which have to be considered while considering the
matter, whether it is a case of throttling, strangulation or
suicidal hanging and there is no effort made by the Investing
Officer as well as the Doctors with regard to whether the
injuries are ante-mortem or post-mortem injuries and how
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those ante-mortem injuries have occurred prior to death,
whether while causing those injuries struggle was made and
whether the same was defensive injuries. It is important to
note that multiple bruises/contusions of the neck may
potentially indicate application of external force to neck;
gripping or pressure; an attempt to strangle the deceased;
impact against another object; or injuries associated with the
process of hanging.
50. The Court has to take note that mark extends from
1 cm. below the mandible and the right side (6 cm. from the
midline) to 6 cm. below the mandible on the left side,
measuring approximately 8 cm. x 1 cm. The forensic
significance is also necessary that a ligature mark runs
obliquely. Though, it is stated by the Doctor that it is oblique,
but the photographs which are available before the Court is
different and there is no oblique shape and the same is
horizontal. This is a hallmark feature commonly seen in
hanging (suicidal or accidental) and dimensions 8 cm. x 1 cm.
reflects a relatively narrow ligature material (such as a cord,
thin rope, or belt) that exerted focus pressure on the neck
tissues. But, in the case of hand, saree was used for hanging
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and the size of the same would be more than 1 inch and it has
to be ascertained on further examining the Doctors before the
Court and no dispute with regard to cause of death in respect
of the child is concerned. But, serious dispute is with regard to
cause of death in respect of deceased Madhu. The Investigating
Officer also did not clarify all these while filing the charge sheet
and simply filed charge sheet for other offences. The question
before the Court is also whether mother committed murder of
child or accused persons committed murder and hanged him
also.
51. The Court has to take note of ligature dimension
which is mentioned as 8 cm. x 1 cm. and material used is saree
according to the prosecution and suicidal hanging typically
produces an inverted ‘V’ shaped mark that fades toward the
nape where the knot or point of suspension sits. Extensive
parchmentization of the face and eye is mentioned in the post-
mortem report (6 cm. x 4 cm. and 4 cm. x 4 cm.): while
parchmentization indicates epidermal damage, extensive drying
on the side of the face and eye often occurs when a body has
been dragged, face down on a rough surface, or subjected to
post-mortem handling/staging. If the Doctors, who have been
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examined as P.W.22 and P.W.23 were not able to clarify the
same during the course of further cross-examination,
clarification also can be obtained from the Medical Board and
also an opinion can be obtained from the Forensic Expert as to
whether multiple anterior contusions and 1 cm. ligature width
are consistent with a saree hanging or suggest ante-mortem
homicidal violence/strangulation prior to suspension and it
requires re-examination of Doctors and if required, seek re-
examination from Forensic Panel and if discrepancies remain,
seek a opinion from the Board of Forensic Medicine Experts
reviewing the autopsy, scene photos and post- mortem report
together and both prosecutor as well Court involve in quest for
truth.
52. Having taken note of these are the materials
available before the Court and discrepancies in the evidence of
the Doctors as well as the Investigating Officer, it requires
clarification while considering the issue by framing a charge for
the offence under Section 302 of IPC and a definite finding has
to be given whether it is a suicidal hanging, strangulation or
throttling of deceased Madhu and for the limited purpose of
considering the offence under Section 302 of IPC and to give a
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definite finding, this matter requires reconsideration by
remanding the matter to the Trial Court.
53. This Court would like to consider the principles laid
down in several judgments of the Apex Court with regard to
invoking of offence under Section 302 of IPC. This Court would
like to rely upon the judgment of the Apex Court in MULAKH
RAJ AND OTHERS v. SATISH KUMAR AND OTHERS
reported in (1992) 3 SCC 43 and while considering whether it
is a homicide or suicide, it is held that all post-mortem
symptoms found on the dead body consistent with the medical
jurisprudence view that death was due to constriction or
pressure on the neck (asphyxia). Post-mortem report as well as
evidence of the doctor conducting the post-mortem
examination and Doctor’s opinion whether it is reliable or
acceptable to be taken note of. The Apex Court also discussed
with regard to asphyxia, ante-mortem and post-mortem
injuries, since the case rests upon circumstantial evidence. In
paragraph No.4, it is observed that the Court must weigh the
evidence of the cumulative effect of the circumstances and if it
reaches the conclusion that the accused committed the crime,
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the charge must be held proved and conviction and sentence
would follow.
54. This Court would like to rely upon judgment of the
Apex Court in MANDHARI v. STATE OF CHATTISGARH
reported in (2002) 4 SCC 308, wherein also discussion was
made with regard to circumstantial evidence whether death
was caused by strangulation, when defence was taken that wife
committed suicide by hanging herself. The post-mortem report
shows that there was ligature mark on the neck of the
deceased which was ante-mortem. The opinion of the doctor is
clear and definite that such ligature mark cannot be caused by
hanging but could have been caused by strangulation. In the
case on hand, whether it is a suicidal hanging, strangulation or
throttling is to be considered by examining medical report
available on record by examining the medical expert as
observed above.
55. This Court also would like to rely upon judgment of
the Apex Court in RADHA MOHAN SINGH ALIAS LAL SAHEB
AND OTHERS v. STATE OF U.P. reported in (2006) 2 SCC
450, wherein discussion was made with regard to Section 174
of Cr.P.C. with regard to investigation, scope and necessary
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contents of inquest report and it is held that the said
investigation is limited in scope and is confined to
ascertainment of apparent cause of death. It is concerned with
discovering whether in a given case the death was accidental,
suicidal or homicidal or caused by animal, and in what manner
or by what weapon or instrument the injuries on the body
appear to have been inflicted. In this judgment, in paragraph
No.15, it is held that, it is well settled by a catena of decisions
of this Court that purpose of holding an inquest is very limited
viz., to ascertain as to whether a person has committed suicide
or has been killed by another or by an animal or by machinery
or by an accident. But, in the case on hand, in the inquest, it is
specifically mentioned that there was an injury on the portion
of the chest between the breast. However, the post-mortem
report is very silent and the nature of injury is mentioned as
reddish in the inquest. But, the Doctor, who conduct post-
mortem failed to notice the same.
56. This Court would like to rely upon the judgment of
Apex Court in RAJBIR ALIAS RAJU AND ANOTHER v. STATE
OF HARYANA reported in (2010) 15 SCC 116, wherein also
discussion was made with regard to Sections 302 and 304-B. In
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this judgment, the Apex Court directed all trial courts in India,
to ordinarily add Section 302 to charge of Section 304-B, so
that death sentences can be imposed in such heinous and
barbaric crimes against women. But, in the case on hand, there
was a specific allegation in the private complaint that
Investigating Officer intentionally left out the offence under
Section 302 of IPC and private complaint was filed and
cognizance was taken. But, unfortunately, accused was
discharged for the offence under Section 302 of IPC.
57. This Court also would like to rely upon the
judgment of Apex Court in BABUBHAI v. STATE OF GUJARAT
AND OTHERS reported in (2010) 12 SCC 254, wherein also
discussion was made with regard to registration of second FIR
and scope of second FIR. But, in paragraph No.45, it is held
that not only fair trial, but fair investigation is also part of
constitutional rights guaranteed under Articles 20 and 21 of the
Constitution of India. In the case on hand, specific allegations
are made against the Investigating Officer that they have
conducted defective investigation.
58. No doubt, the Apex Court in the judgment in
JASVINDER SAINI AND OTHERS v. STATE (GOVERNMENT
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OF NCT OF DELHI) reported in (2013) 7 SCC 256, taken
note of principles laid down in the judgment of Rajbir’s case
and held that even the Court can alter the charge in a case of
304-B and 302 and detailed discussion was made and observed
that there is unrestricted power to add or alter any charge,
whenever Court finds that defective charge has been made or
addition of new charge becomes necessary after
commencement of trial, for such addition or alteration has to be
made before pronouncement of the judgment. But, in the case
on hand, when the serious evidence is found with regard to
allegation for the offence under Section 302 of IPC, even
though an observation was made earlier by discharging the
accused for the offence under Section 302 of IPC and when the
prosecution witnesses were examined, the Trial Judge did not
apply his mind. The Apex Court in this judgment in paragraph
No.15 held that the question whether it is murder punishable
under Section 302 IPC or a dowry death punishable under
Section 304-B IPC depends upon the fact situation and the
evidence in the case. If there is evidence whether direct or
circumstantial to prima facie support a charge under Section
302 IPC, the trial court can and indeed ought to frame a charge
punishable under Section 302 IPC, which would then be the
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main charge and not an alternative charge as is erroneously
assumed in some quarters.
59. This Court also would like to reply upon judgment of
the Apex Court in RAVIRALA LAXMAIAH v. STATE OF
ANDHRA PRADESH reported in (2013) 9 SCC 283, wherein
also discussion was made with regard to circumstantial
evidence. The accused claim of commission of suicide (by
hanging) by deceased falsified by evidence and homicidal death
established. In this judgment, the Apex Court held that medical
jurisprudence, whether it is suicide or not and whether
circumstances disclose the same, ought to have been
considered while considering the material on record whether it
is a case of homicide by strangulation or by hanging. When the
prosecution witnesses categorically depose before the Court
that it is a case of murder having found the nature of injuries
on the dead body and the same are ante-mortem, ought to
have been considered by the Trial Court, even though earlier
rejected the application to invoke Section 302 of IPC when the
material available before the Court suggests matter requires
reconsideration, ought to have framed the charge.
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60. This Court would like to rely upon the judgment of
the Apex Court in VIJAY PAL SINGH AND OTHERS v. STATE
OF UTTARKHAND reported in (2014) 15 SCC 163, wherein
also discussion was made with regard to Section 302 or Section
304-B - Murder or dowry death - Proper approach for making
out a case of culpable homicide or dowry death and role and
duty of Investigating Officer, prosecution and Court highlighted
that it is not only the duty of Investigating Officer, even also
the prosecution as well as duty of the Judge and the Judge
should not be a mute spectator and consider overall material
available on record while considering the case. In paragraph
No.16, it is held that Section 304-B IPC is not a substitute for
Section 302 IPC and both are independent offences and
independent ingredients. In paragraph No.18, it is held that in
cases where there is evidence, direct or circumstantial, to show
that the offence falls under Section 302 of IPC, the trial court
should frame the charge under Section 302 of IPC even if the
police has not expressed any opinion in that regard in the
report under Section 173(2) of the Cr.P.C. Section 304-B of
IPC can be put as an alternate charge if the trial court so feels.
In the course of trial, if the court finds that there is no
evidence, direct or circumstantial, and proof beyond reasonable
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doubt is not available to establish that the same is not
homicide, in such a situation, if the ingredients under Section
304-B of IPC are available, the trial court should proceed
under the said provision. The Apex Court also discussed the
judgment of Jasvinder Saini’s case in paragraph No.19 of the
judgment.
61. This Court also would like to rely upon judgment of
the Apex Court in STATE OF GUJARAT v. KISHANBHAI AND
OTHERS reported in (2014) 5 SCC 108, wherein the Apex
Court in paragraph Nos.19 to 25 discussed in detail with regard
to defective or illegal investigation, a very heinous case, ended
in acquittal due to lapses committed by the investigating and
prosecuting agencies in the process of establishing the guilt of
the accused before the Trial Court and strict directions are
issued to conduct a periodical training and the defective
investigation cannot be a ground to acquit the accused. The
duty of prosecutor to cure the effective investigation by placing
material on record.
62. This Court also would like to rely upon judgment of
the Apex Court in STATE OF RAJASTHAN v. RAMESH
reported in (2015) 17 SCC 673 , wherein also discussion was
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made with regard to suicide by hanging or homicide by
strangulation, abrasion marks on neck and face suggesting
struggle before death. Medical opinion that injuries were ante-
mortem. But, autopsy report indicated that there were as many
as 12 abrasive marks on neck and face and medical report
concluded that all injuries were ante-mortem and death was
due to asphyxia. On a query made by Police, doctor further
clarified in writing that there was no ligature mark and death
occurred due to pressure put on neck, rather than by hanging.
In the case on hand also, when there were ante-mortem
injuries on both the victims and the same is not properly
investigated by the Investigating Officer and so also the
Doctors, who conducted post-mortem have not given definite
opinion with regard to time since death of both the victims i.e.,
son as well as mother and the same ought to have been
considered by the Trial Court and would have framed the
charge for the offence under Section 302 of IPC considering
whether there is material for offence under Section 302 of IPC
or not and i.e., the duty of the Court to consider the same.
63. This Court would like to rely upon judgment of the
Apex Court in JAVED ABDUL RAJJAQ SHAIKH v. STATE OF
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MAHARASHTRA reported in (2019) 10 SCC 778, wherein
also when the offences were invoked under Sections 498-A,
304-B and also 302, medical evidence of homicide by throttling
by appellant, clearly ruling out the suicide and acquittal of co-
accused, the Court has to consider the material on record,
particularly to keep the legislature tight after which insensibility
supervenes. The Apex Court also discussed the distinction
between throttling and strangulation, so also the distinction
between hanging and strangulation. It is held that in case of
hanging, fracture of larynx and trachea is very rare and that
too it may be found in judicial hanging. On the other hand,
fracture on larynx, trachea and hyoid bone indicates
strangulation. As far as injuries in the inquest report not being
noticed in the post-mortem report is concerned, there can be
no doubt that the medical doctor knows exactly what medical
injuries are and ordinarily in case of inconsistency, the medical
report of the doctor should prevail.
64. This Court also would like to rely upon judgment of
the Apex Court in SHIVAJI CHINTAPPA PATIL v. STATE OF
MAHARASHTRA reported in (2021) 5 SCC 626, wherein the
post-mortem report shows that cause of death was “asphyxia
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due to hanging” as given in the report, wherein also it is
observed that in a case of homicidal strangulation, bodily
resistance could have been reflected and observed that
admittedly, there are no marks on the body which would
suggest violence or struggle. But, in the case on hand, there
are number of ante-mortem injuries found near ear, face,
cheek and also the chest portion and the same has to be
examined.
65. This Court would like to rely upon judgment of the
Apex Court in GOUR ACHARJEE v. STATE OF TRIPURA AND
OTHERS reported in 2026 SCC ONLINE SC 931, wherein also
homicidal nature of death is discussed in paragraph No.7, so
also in paragraph No.8 with regard to literature on medical
jurisprudence and also discussed Modi’s Medical Jurisprudence
in paragraph No.9, one can safely say that death was due to
hanging, if, in addition to the cord mark, there was dribbling of
saliva from the angle of mouth, ecchymoses and slight
abrasions around the ligature-mark, laceration of the intima of
the carotid arteries with extravasation of blood within their
walls and the post-mortem signs of asphyxia, besides if there
are no evidence of a struggle, scratches and nail marks, fatal
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injuries or poisoning. But in the case on hand, there are
multiple number of external injuries all over the body, including
chest, face and neck. The Trial Court while considering the
charge for the offence under Section 302 of IPC to take note of
the principles laid down in the above judgments.
66. This Court also would like to rely upon judgment of
the Apex Court in GAJOO v. STATE OF UTTARAKHAND
reported in (2012) 9 SCC 532, wherein discussion was made
with regard to defective or illegal investigation and dereliction
of duty of Investigating Officer and even DG Police directed to
initiate disciplinary action against Investigating Officer
concerned and if he had since retired, to take action for
reduction/stoppage of pension in accordance with service rules
and limitation bar also to be waived.
67. This Court also would like to rely upon judgment of
the Apex Court in DAYAL SINGH & ORS. v. STATE OF
UTTARANCHAL reported in AIR 2012 SUPREME COURT
3046, wherein it is held with regard to methodology of
Investigating Officer to follow police manual and Doctor
connected to follow known canons of medical practice, both are
obliged to be diligent, truthful and fair in their approach to
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investigation and the same is discussed with regard to
misconduct and dereliction of duty in paragraph Nos.16 and 21.
It is also the duty of the Court to look upon Expert evidence
with greater sense of acceptability, but are not absolutely
guided by such evidence.
“16. With some vehemence, it has then been
contended on behalf of the appellant that the post-
mortem report and the statement of PW 3 Dr C.N.
Tewari, specifically state that no external or internal
injuries were found on the body of the deceased. In
other words, no injury was either inflicted by the
accused or suffered by the deceased. In the face of
this expert medical evidence, the statement of the
eyewitnesses cannot be believed. The expert
evidence should be given precedence and the
accused persons are entitled to acquittal. This
argument is liable to be rejected at the very outset
despite the fact that it sounds attractive at first
blush.
21. The investigating officer, as well as the doctor
who are dealing with the investigation of a criminal
case, are obliged to act in accordance with the Police
Manual and the known canons of medical practice,
respectively. They are both obliged to be diligent,
truthful and fair in their approach and investigation.
A default or breach of duty, intentionally or
otherwise, can sometimes prove fatal to the case of
the prosecution. An investigating officer is completely
responsible and answerable for the manner and
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methodology adopted in completing his investigation.
Where the default and omission is so flagrant that it
speaks volumes of a deliberate act or such
irresponsible attitude of investigation, no court can
afford to overlook it, whether it did or did not cause
prejudice to the case of the prosecution. It is
possible that despite such default/omission, the
prosecution may still prove its case beyond
reasonable doubt and the court can so return its
finding. But, at the same time, the default and
omission would have a reasonable chance of
defeating the case of the prosecution in some events
and the guilty could go scot-free. We may illustrate
such kind of investigation with an example where a
huge recovery of opium or poppy husk is made from
a vehicle and the investigating officer does not even
investigate or make an attempt to find out as to who
is the registered owner of the vehicle and whether
such owner was involved in the commission of the
crime or not. Instead, he merely apprehends a
cleaner and projects him as the principal offender
without even reference to the registered owner.
Apparently, it would prima facie be difficult to believe
that a cleaner of a truck would have the capacity to
buy and be the owner, in possession of such a huge
quantity i.e. hundreds of bags of poppy husk. The
investigation projects the poor cleaner as the
principal offender in the case without even reference
to the registered owner.”
68. In the case on hand, not only the investigation is
not proper, but also the medical evidence is very poor having
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discussed the same above. Apart from that the Judge, who
conducted the case also failed to take note of material on
record and failed to frame a charge for the offence under
Section 302 of IPC. Hence, the judgment of the Trial Court
requires to be set aside for the limited purpose to frame a
charge under Section 302 and consider the material on record
and also re-examine the Investigating Officer and the Doctors
in view of framing of additional charge under Section 302 of
IPC and if need be, secure further opinion from Forensic Expert
and also from the Medical Board, in order to arrive at a definite
conclusion, keeping in mind the principles laid down in the
judgments of the Apex Court referred supra. Having concluded
the trial, if Court comes to the conclusion that there is laxity
and misconduct on the part of the Investigating Officer and the
Doctors, who gave the opinion, order for disciplinary action
against both of them in respect of dereliction of their duty
keeping in view the principles laid down in the judgments in
Gajoo’s case and Dayal Singh’s case. Hence, we answer point
Nos.2 and 3 ‘accordingly, remanding the matter to the Trial
Court for reconsideration to frame charge for the offence under
Section 302 and give finding, in view of the observations made
hereinabove.
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Point No.4:
69. In view of the discussion made above, we pass the
following:
ORDER
(i) The Crl.R.P.No.83/2013 is allowed by setting
aside the order of discharge for the offence
punishable under Section 302 of IPC dated
25.09.2012 passed in S.C.No.107/2010 and
the Trial Judge is directed to club both
S.C.Nos.107/2010 and 131/2006 and
consider the matter for the offence under
Section 302 of IPC.
(ii) The judgment of acquittal passed by the Trial
Court dated 28.10.2017 in
S.C.No.131/2006 is set aside by allowing
Criminal Appeal No.740/2018 and Criminal
Appeal No.450/2018 and matter is remanded
to the Trial Court for the limited purpose to
frame a charge for the offence under Section
302 of IPC and give a definite finding to that
effect, keeping in view the observations made
by this Court and there is no need to re-
examine the material in respect of other
offences as already finding is given that
evidence corroborates with regard to other
offences.
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(iii) The State as well as the respondent/accused
are directed to appear voluntarily before the
Trial Court on 17.09.2026 , without fail and
not to expect any notice.
(iv) The Trial Court is directed to dispose of the
matter within a period of 4 months from
17.09.2026 , since incident took place in the
year 2004.
(v) The Registry is directed to communicate this
order forthwith to the concerned Court and
transmit the file to the concerned Court
forthwith to enable the Trial Court to take up
the matter on 17.09.2026 without fail.
(vi) The State as well as learned counsel for
respondent/accused are directed to assist the
Trial Court in disposal of the case within a
time bound period of four months by taking
up the matter on day-to-day basis.
(vii) The observations made hereinabove shall not
influence the Trial Court while considering
matter on merits invoking the offence under
Section 302 of IPC.
(viii) The Registrar General is directed to
communicate this judgment to the Director
General of Police and Inspector General of
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Police of the State to sensitize the
Investigating Officers of the State, who are
conducting investigation for serious offences
in the State and the present judgment
educates the role of the Investigating Officers
and make use of this judgment as a part of
training as already directed by this Court to
provide training to them in the earlier
Criminal Appeal No.232/2025 dated
16.02.2026, since lapses are noticed by this
Court on the part of the Investigating
Officers.
(ix) The Registrar General is also directed to
communicate this judgment to the Principal
Secretary to Health Department and sensitize
the Doctors, who conduct Post-mortem in the
State, since this judgment educates them to
conduct post-mortem, since lapses are
noticed by this Court on the part of the
Doctors in conducting post-mortem and
organize training programme to them
forthwith.
(x) The Registry is directed to send a copy of this
judgment, forthwith to the Director General
of Police and Inspector General of Police as
well as Principal Secretary to the Health
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Department, to enable them to comply with
directions of this Court.
(xi) The Director General of Police and Inspector
General of Police and Principal Secretary to
the Health Department are directed to comply
with the direction by communicating this
judgment within one month and report to this
Court within 45 days from the date of
pronouncement of this judgment and the
Registry is directed to list this matter before
this Court on 04.11.2026 regarding
compliance.
(xii) The State Public Prosecutor is directed to see
that this direction is complied within the time
stipulated above by both the departments.
(xiii) The Trial Judge is also directed to consider
the judgment of Apex Court GAJOO v.
STATE OF UTTARAKHAND reported in
(2012) 9 SCC 532 with regard to lapses on
the part of Investing Officer and so also the
judgment of the Apex Court in DAYAL
SINGH & ORS. v. STATE OF
UTTARANCHAL reported in AIR 2012
SUPREME COURT 3046 with regard to
methodology of Investigating Officer to follow
the police manual and doctor connected to
follow known canons of medical practice and
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pass appropriate order keeping in view the
principles laid down in the above judgments
with respect to the lapses on the part of the
Investigating Officer as well as the Doctors,
in view of the discussion made in the
judgments and also keeping in view the
observations made by this Court while
disposing of the case on merits and direct the
competent authority to initiate action against
both of them.
List these matters on 04.11.2026 to report
compliance.
Sd/-
(H.P.SANDESH)
JUDGE
Sd/-
(B.PRAMOD)
JUDGE
SN/MD/ST