ESHWARAPPAversusSTATE OF KARNATAKA

                    [2015] 8 S.C.R. 979


                      ESHWARAPPA                              A
                             v.
                 STATE OF KARNATAKA
            (Criminal Appeal No. 1951 of2012)
                                                              8
                      JULY24, 2015
    [T.S. THAKUR AND ADARSH KUMAR GOEL, JJ.]
        Penal Code, 1860: ss.3'>2, 498-A and 201 - Dowiy
death - Death by strangulation - Circumstantial evidence - c
A/legation that the appellant-husband developed illicit
relationship with another woman and mistreated his wife and
made demand of dowiy- On the fateful day, wife requested·
the appellant to give some money to her so .that she could
take her ailing son to hospital-Appel/ant asked her to come ·D
to his field and later the deceased was found dead with
ligature marks around her neck- Trial court found him guilty
ulss. 302, 498-A and 201 - High Court upheld conviction
holding that deceased was last seen alone in the company
of the appellant and the conduct of appellant of not informing E
the police or parents of the deceased regarding the incident
and absconding from the place of incident was unnatural -
On appeal, held: All prosecution witnesses deposed on
similar lines regarding the treatment given to the deceased
by the appellant and the illicit relationship with the other F
woman - The material facts were fully established - Theory
of suicide also rejected - Conviction u/ss.302 and 201
upheld - However, conviction uls. 498-A set aside.           ·

       Partly allowing the appeal, the Court                 G

      HELD: 1. The trial court as also the High Court
found the version given by PW-1, the mother of the
deceased, to be fully reliable. This witness had deposed
that the deceased used to frequently visit her parental       H
                         979
980       SUPREME COURT REPORTS                [2015] 8 S.C.R.


A house and tell her parents about the illicit intimacy
    between the appellant and A-2.          She would also
    complain to her parents that the appellant was living with
    A-2. PW-1 advised the appellant to end his illicit
    relationship with A-2 but the appellant paid no heed to
B that advice even after a panchayat was convened to
    resolve the matter. The panchayat was attended by PW-
    6 and PWs 12 to 14. The appellant had, before the
    panchas agreed to discontinue his illegal liaison and lead
    a happy married life with the deceased. It was on that
C assurance given to the panchas, that the latter had
    advised the parents of the deceased not to lodge any
    complaintagainst the appe.llant. However, the deceased
    had returned to her parents' house just about 15 days
    after the pancyahat, whereupon PW-1 questioned the
0
  · appellant whether he would end his illicit relationship
    with A-2. He had in reply said that he would rather give
    up his wife than to discontinue his relationship with f.-2.
    PW-6 and PWs 12 to 14 have similarly deposed about
E the panchayat held in the village and the advice given to
    the appellant regarding discontinuation of his illicit
    relationship with A-2. These witnesses have deposed
    that the appellant had before the panchayat promised
    that he would end his relationship with A-2 and lead a
F happy married life with the deceased which he had failed
    to abide by. Both the Trial Court and the High Court have
    found the depositions of these witnesses to be free from
    any blemish. It was found that these witnesses do not
    bear any enmity· or grudge against the appellant to make
G them unreliable. [paras 6, 7) [987-E-H; 988-A-E]

         2. The deposition of PW-1 in regard to the events
  that took place on the date of incident has also been
  found to be reliable. This witness has deposed that when
H she came to the house of the appellant to see her
       ESHWARAPPA v. STATE OF KARNATAKA                  981


daughter, she·found that the deceased had. taken her A
child to the hospital and returned home in the evening
on 61h November, 2005. The appellant had, however,
stayed in the house of A-2 tha't night. The next day, the
deceased had demanded money from the appellant so
that she could take the child back to the hospital. The B
accused asked the deceased to come to the field where
he would. pay the money tQ her. The witness and her
husband left for the bus stand to return home while the
deceased had along with her child gone to the field where
the appellant had called her to collect the money. She C
was sometime later found dead under a tree which
information was conveyed to the parents the same day.
PW-4 is another witness who deposed that he saw the
deceased going in front of his shop towards the land of
                                                          0
her husband along with her child. About 15 minutes later
the appellant came to the shop of this witness who asked
him to return the money which he had borrowed. PW-5
is the father of the deceased who has also deposed on
the same lines as PW-1 regarding the treatment given to E
the deceased by the appellant and the illegal dema·nd
for dowry made upon them. PW-11 is the real brother of
PW-1 and brother-in-law of PW-5. He too has supported
the prosecution case in regard to the illicit intimacy
between the appellant and A-2. PW-12 is also the F
maternal uncle of the deceased has supported the
prosecution case. PW-14 is one of the panchas who too
has supported the prosecution case and clearly deposed
that he attended the panchayat in which the appellant's
illicit affair with A-2 was discussed. [para 8 to 10, 12] G
[988-F-H; 989-A-G; 990-C-E]

       3. The trial court and so also the High Court has
rejected the story of suicide by the deceased and rightly
so, for reasons more than one. Firstly, because the death H
982      SUPREME COURT REPORTS ·             [2015] 8 S.C.R.


A in the case at hand occurred because of strangulation/
   constriction force around the neck leading to asphyxia
   and shock as observed by the doctor which is possible
  .not necessarily by hanging, although the doctor has
   opined it could be caused probably by hanging also.
B Secondly, because if death had occurred because of
   hanging, she would have been discovered by the
   witnesses in a hanging position, unless of course
   somebody had upon seeing her hanging, brought her
   down and placed the body on the ground or the rope by
C which she hung herself had itself snapped in which
   event there would have been a rope partly tied to the
   branch of the tamarind tree and partly around her neck
  with a noose which the witnesses say was not there.
   Thirdly, because it is nobody's case that she was
0
   carrying a rope with herself when she was seen going
   towards the field. The presence of the rope and the heap
   of stones before the branch was obviously a make-
   believe situation created by the appellant, who was seen
E by the witness, returning from the field. Fourthly,
   because there was no immediate provocation for the
   deceased to take the step to commit suicide. All that she
   wanted was money from her husband to take her child
   to the hospital for treatment. Besides, the parents of the
F deceased were also present in the village around the time
  the deceased went towards the field which only shows
   that there was no intense or great provocation that could
  have led her to commit suicide. Fifthly, because the
  classic signs of death by hanging were all conspicuously
G absent in the case at hand as is evident from the post-
  mortem report prepared by the doctor. [Para 16-17] [991-
  A-G; 992-F-H]
      Modi's Medical Jurisprudence and Toxicology (23'd
H     Edition)- referred to.
        ESHWARAPPA v. STATE OF KARNATAKA                       983


         4. The judgment and order passed by the Trial A
  Court as affirmed by the High Court is upheld in soJar
  as the same convicts and sentences the appeiiant to
  imprisonment for the offence punishable under Section
  49BA of the Indian Penal Code shall stand set aside.JThe
  appeal insofar as the same challenges the conviction B
  and sentence of imprisonment awarded to the appellant
· for the offence under Section 302 IPC as alsoi.the
  sentence awarded under Section 201 IPC together with
  the amount of fine imposed and the.sentence in default
  shall stand dismissed. [para 18) [993-8-D]               C
      CRIMINAL APPELLATE JURISDICTION: Criminal
Appeal No.1951 of2012
       From the Judgment and Order dated 10.08.2011 of the
 High Court of Karnataka at Bangalore in Criminal Appeal No.   D
 1676 of 2007
       Ranbir Singh Yadav for the Appellant.
       K. Parameshwar, V.N. Raghupathyforthe Respondent.
                                                               E
       The Judgment of the Court was delivered by
       T. S. THAKUR, J. 1. This appeal arises out of a ·
judgment and order dated 101" August, 2011 passed by the
High Court of Karnataka at Bangalore, whereby the High Court
has dismissed Criminal Appeal No.1676 of 2007 filed by the F
appellant thereby affirming his con'viction for offences
punishable under Sections 302, 498A and.201 of the Indian
Penal Code, 1860 and the varying sentences of imprisonment
and fine awarded to him for the same.                  - ::.
                                                             G
       2. The deceased-Latha and the appellant hereilfgot
married to each other on 201h M,arch, 2003. The prosecution
version is that the deceased-Latha and her husband the
appellant herein lived happily for a few mon~hs after' their   H
984          SUPREME COURT REPORTS                     [2015] 8 S.C.R.


A      marriage in March 2003 during which time Latha conceived
       and gave birth to a female child. The marital relationship,
       however, soured when the appellant developed illicit relations
       with one Sarpina @. Sarfunnisa arrayed as accused no.2 before
       the Trial Court. The deceased-Latha, but naturally took
B      exception to this relationship and informed her parents about
       the same who had a panchayat convened in the village to
       resolve the matter. The panchayat, according to the
       prosecution, advised the appellant to end his relationship with
      ·Sarpina, his paramour, which the appellant agreed to do. That
C      commitment was however observed but only in breach as the
       illicit relationship between the appellant and Sarpina continued
       resulting in frequent quarrels between the appellant and the
       deceased-Latha. The prosecution case is that although the
       parents of the deceased had given dowry articles to the
0
       deceased including a sum of rupees one lakh towards cash,
       the appellant was demanding more money for purchase of a
       site. In order to satisfy that demand, the parents of the
       deceased had mortgaged their land and paid a sum of
E      Rs.50,000/- to the appellant. It is also alleged that the appellant
       was _neglecting the deceased and was residing with Sarpina,
       accused no.2. The deceased was provoked by this conduct
       and is alleged to have gone tp the house of Sarpina (A-2) to
       lodge her protest in an attempt to wean the appellant away
F      from the illicit relationship. This provoked the appellant, who
       assaulted the deceased. The parents of the deceased had in
       that background taken the deceased away to her parental
       home with her minor child. The prosecution case is that a day
       prior to the incident the parents of the deceased brought the
G      deceased-Latha back to her matrimonial home in village
       Lakya, but the appellant's cruel behaviour towards her
       continued unabated. On the f~teful day, the deceased appears
       to have asked the appellant to pay her some money so that
       she could take her sick child to the doctor. The appellant is
H      alleged to have asked her to come to the field, where the
        ESHWARAPPA v. STATE OF KARNATAKA                        985
                [T. S. THAKUR, J.J.

appellant was going for work to collect the money. According A
to the prosecution, Latha followed her husband to the field while
her parents returned to their village, but only to receive by
evening the sad news thattheirdaughterwas lying dead under
a tamarind tree near the land of the appellant in his village.
They rushed to the village and the place of occurrence only to B
find that the deceased had died of strangulation. The matter
was, thereupon, reported to the police who registered a case,
commenced and completed the investigation and filed a
charge-sheet not only against the appellant whom the
prosecution accused of committing offences punishable under C
Sections 498A, 302 and 201 IPC but even against the parents
of the appellant and Sarpina, the alleged lady love of the
appellant.

        3. At the trial, the prosecution examined as many as 20 D
witnesses to prove the charges against the accused persons.
The Trial Court, however, came to the conclusion that the
prosecution had failed to prove its case against the accused
persons except the appellant who was found guilty for offences
punishable under Sections 498A, 302 and 201 IPC. He was E
accordingly sentenced to undergo imprisonment for life and
to pay a fine of Rs.25,000/- under Section 302 IPC. The fine
amount was directed to be paid to the grandparents of the
child left behind by the deceased. He was also sentenced to F
undergo imprisonment for three years and to pay a fine of
Rs.2,000/- under Section 498A IPC. In default, three months
imprisonment was prescribed. For the offence punishable
under Section 201 IPC, the appellant was sentenced. t?
undergo imprisonment for three years and to pay a fine.,of G
Rs.2,000/-. In default of payment of fine, he was sentenced to .
                                                          . ',
undergo imprisonment for three months. All the sentences "'!.ere
directed to run concurrently.

       4. Aggrieved by the judgment and order passed by ihe     H
Trial Court, the appellant preferred Criminal Appeal No .1676
986         SUPREME COURT REPORTS                  [2015] 8 S.C.R.


A of 2007 which was heard and dismissed by the High Court in
  terms of its order impugned in this appeal. The High Court, on
  a careful reappraisal of the evidence on record, came to the
  conclusion that the appellant had been rightly found guilty by
  the Trial Court. The High Court found the following
B circumstances to have been fully established by the evidence
  on record:

      (1)    That the appellant had developed illicit intimacy with
             Sarpina (A-2) because of which there was no cordiality
c            between the appellant, on the one hand, and his wife,
             the deceased on the other.
      (2)    On the date of the incident at about 7.00 a.m. when
             the deceased requested the appellant to give some
             money to her so that she could take her child to the
D
             hospital, the appellant as~ed the deceased to come
             to the field where he would give her the money she
             required.
      (3)    The deceased followed the instructions given to her
E            and went to the field where the appellant was working.
             She was thus last seen alone in the company of the
             appellant.
      (4)    The death of the deceased was homicidal in nature
F            caused due to asphyxia. The ligature marks found
             around the neck of the deceased proved that there
             was constriction of the neck of the deceased because
             of exertion of force.
      (5)    The appellant had piled a heap of stones and tied a
G            rope to the branch of the tamarind tree, only to support
             a false plea in defence that the deceased had
             committed suicide.
      (6)   The conduct of the appellant was unnatural and
H           incompatible with his innocence. He did not inform the
        ESHWARAPPA v. STATE OF KARNATAKA .                               987
                [T. S. THAKUR, J.]

         police or the parents of the deceased and A
         disappeared from the scene of occurrence, after the .1
         commission of the offence.                        it.:

                                                                 ..,n·
        5. The High Court, at the same time, held that the
depositions of the parents of the deceased regarding demand B
and acceptance of dowry before or after marriage were neither·
consistent nor credible to provide a basis for convicting the
appellant under Section 498A IPC. The High Court held that
the financial condition of the parents of the deceased was
precarious as they were living in a Janatha house and working C
as labourers in a saw-mill in village Gavanahalli. Having said
that the High Court dismissed the appeal in toto although on
the finding recorded by it the High Court could and indeed
should have set aside the conviction of the appellant under
Section 498A IPC.                                              D
          6. We have heard learned counsel for the parties at
 some length who have taken us through the evidence on record
 and the judgments delivered by this Court. The Trial Court and
 so also the High Court have both concurrently held the material         E
 facts to have been fully established. For instance the Trial Court
 as also the High Court have found the version given by
 Chandramma (PW-1 ), who happens to be the mother of the
 deceased-Latha, to be fully reliable. This witness had deposed
that the deceased used to frequently visit her parental house            F
and tell her parents about the illicit intimacy between the
appellant and Sarpina (A-2). She would also complain to her
parents that the appellant was living with Sarpina (A-2).
 Chandramma (PW-1) advised the appellant to end his illicit
relationship with Sarpina (A-2) but the appellant paid no heed           G
to that advice even after a panchayat was convened to resolve
the matter. The panchayat was attended by PW-6 and PWs
12 to 14. The appellant had, before the panchas agreed ,,.,      to
discontinue his illegal liaison and lead a happy married life            H
988         SUPREME COURT REPORTS                   [2015] 8 S.C.R.


A     with the deceased. It was on that assurance given to the
      panchas, that the latter had advised the parents of the deceased
      not to lodge any complaint against the appellant. Despite the
      panchayat and the advice given to the appellant, however, the
      deceased had returned to her parents' house just about 15
B     days after the pancyahat, whereupon Chand ram ma (PW-1)
      had gone to Lakya village and questioned the appellant whether
      he would end his illicit relationship with Sarpina (A-2). He had
      in reply said that he would rather give up his wife deceased-
      Latha than to discontinue his relationship with Sarpina (A-2).
c
           7. PW-6 and PWs 12 to 14 have similarly deposed
  about the panchayat held in the village and the advice given to
  the appellant regarding discontinuation of his illicit relationship
  with Sarpina (A-2). These witnesses have deposed that the
D appellant had before the panchayat promised that he would
  end his relationship with Sarpina (A-2) and lead a happy
                                                    .
  married life with the deceased-Latha wherein he had failed to
  abide by. Both the Trial Court and the High Court have found
  the depositions of these witnesses to be free from any blemish.
E It was found that these witnesses do not bear any enmity or
  grudge against the appellant to make them unreliable. These
  witnesses had also advised the appellant to maintain cordial
  relationship with the deceased and to discontinue his illicit
F relationship with Sarpina (A-2) who was ten years older to him.

           8. The deposition of Chandramma (PW-1) in regard
  to the events that took place on the date of incident has also
  been found to be reliable. This witness has deposed that when
  she came to the house of the appellant to see her daughter,
G she found that Latha had taken her child to the hospital and
  returned home in the evening on 6'" November, 2005. The
  appellant had, however, stayed in the house of Sarpina (A-2)
  that night. The next day, the deceased had demanded money
H from the appellant so that she cou!d take the ch id back to the
  hospital. The accused asked the deceased to come to the
        ESHWARAPPA v. STATE OF KARNATAKA                        989
                [T. S. THAKUR, J.]

field where he would pay the money to her. The witness and      A
her husband left for the bus stand to return home while the
deceased had along with her child gone to the field where the
appellant had called her to collect the money. She was
sometime later found dead under a tree which information was
conveyed to the parents the same day.                           B

        9. L.G. Shivaswamy (PW-4) is a.nether witness who
deposed that he saw the deceased going in front of his shop
towards the land of her husband along with her child. About 15
minutes later the appellant came to the shop of this witness C
who asked him to return the money which he had borrowed.
The witness also deposed about the panchayat held two
months prior to the occurrence regarding the ill-treatment
meted out to the deceased by the appellant. In the course of
the panchayat, the panchs had advised the appellant not to D
assault his wife. In response, the appellant had assured the
panchas that he would maintain cordiality with his wife.
According to the witness, there was no intimacy between the
appellant and Sarpina (A-2). The witness was at this stage
declared hostile, cross-examined and confronted with his E
statement under Section 161 Cr.PC. in which he had
mentioned about the illicit relationship between the appellant
and Sarpina (A-2) and the assurance given to the panchas
that he would end the said relationship.
                                                               F
      10. Mari Shetty (PW-5) is the father of the deceased-
Latha who has also deposed on the same lines as
Chandramma (PW-1) regarding the treatment given to the
deceased by the appellant and the illegal demand for dowry
made upon them.                                             G

       11. Reference may also be made to the deposition of
L.L. Nagesh (PW-6) who has deposed that the relationship
between the appellant and the deceased was not cordial
because of the illicit liaison between the appellant and Sarpina H
990       SUPREME COURT REPORTS                   (2015) 8 $.C.R.


A (A-2) since 2-3 years. He also stated that because of the illicit
  relationship, the appellant was always living in the house of
  Sarpina (A-2). A panchayat had even taken place, according
  to this witness, in which the appellant had given an assurancr
  that he would end his illicit relationship. On the date of the
B incident, the witness claims to have seen the deceased and
  her parents near the shop of one master at about 10.30 a.m.
          12. Rangaswamy (PW-11) is the real brother of (PW-
  1) and brother-in-law of (PW-5). He too has supported the
C prosecution case in regard to the illicit intimacy between the
  appellant and Sarpina (A-2). He has also supported the
  prosecution version for demand for dowry. Chandrashekhar
  (PW-12) is also the maternal uncle of the deceased has
  supported the prosecution case and had visited the matrimonial
D house of the deceased to resolve the dispute between the
  couple. K.B. Shekharappa (PW-14) is one of the panchas who
  too has supported the prosecution case and clearly deposed
  that he attended the panchayat in which the appellant's illicit
  affair with Sarpina (A-2) was discussed. The panchas had
E advised the appellant to end his illegal relationship.
         13. The only other witness whose deposition is relevant
  is Dr. Nagesh S. Adiga (PW-15) who conducted the post-
  mortem examination of the deceased and found ligature marks
F around her neck. The witness in his deposition has said:
      "On further examination of the body, I did not notice any
      external injuries except for the ligature mark around the
      neck.
G
      The ligature mark was oblique and was extending across
      the front of the neck from the angle of left jaw and
      measured 1.5 ems in width and 16 ems in length and it
      was situated just 2.5 ems below the right mastoid with
H     knot mark measuring 2.5 ems over the left mastoid."
          ESHWARAPPA v. STATE OF KARNATAKA                        991
                  [T. S. THAKUR, J.]

         14. The witness has described the cause of death nearly A
10 days after the post-mortem examination in reply to a
communication received from the Circle Police Inspector in
the following words:
   "(i) The cause of death is due to constriction force obliquely B
         around neck leading to asphyxia and shock is most
         probably due to hanging.
   (ii)   The cause of death is ante mortem in nature and death
          has occurred in less than 24 hours. , """' •            c
   (iii) The ligature mark is ante-mortem in na.ture."
        15. In the light of the evidence on record, it was argued
on behalf of the appellant that there was no eye witness to the
occurrence and the entire prosecution case was based on D
circumstantial evidence. It was also submitted that the
circumstances sought to be relied upon do not form a complete
chain so as to lead the Court to an irresistible conclusion that
the death of the deceased was homicidal and the appellant
was responsible for the same. In particular, reliance was placed E
by learned counsel for the appellant upon the deposition of the ·
doctor to suggest that the death could have been caused by
hanging.
         16. The Trial Court and so also the High Court has F
rejected the story of suicide by the deceased and in our opinion
rightly so, for reasons more than one. Firstly, because the death
in the case at hand occurred because of strangulation/
constriction force around the neck leading to asphyxia and
shock as observed by the doctor which is possible not G
necessarily by hanging, although the doctor has opined it could
be caused probably by hanging also. Secondly, because if
death had occurred because of hanging, she wouldjiave been
discovered by the witnesses in a hanging position, unless of H
992         SUPREME COURT REPORTS                  (2015) 8 S.C.R.
                     ,
A course somebody had upon seeing her hanging, brought her
  down and placed the body on the ground or the rope by which
  she hung herself had itself snapped in which event there would
  have been a rope partly tied to the branch of the tamarind tree
  and partly around her neck with a noose which the witnesses
B say was not there. Thirdly, because it is nobody's case that
  she was carrying a rope with herself when she was seen going
  towards the field. The presence of the rope and the heap of
  stones before the branch was obviously a make-believe
  situation created by the appellant, who was seen by the witness,
C returning from the field. Fourthly, because there was no
  immediate provocation for the deceased to take the step to
  commit suicide. All that she wanted was money from her
  husband to take her child to the hospital for treatment. Besides,
  the parents of the deceased were also present in the village
0
  around the time the deceased went towards the field which
  only shows that there was no intense or great provocation that
  could have led her to commit suicide. Fifthly, because the
  classic signs of death by hanging as reported in Modi's
E Medical Jurisprudence and Toxicology (23"' Edition) like
  face being usually pale; saliva dribbling out of the mouth down
  on the chin and chest; Neck Stretched and elongated in fresh
  bodies; Ligature mark being oblique, non-continuous and
  placed high up in the neck between the chin and the larynx, the
F base of the groove or furrow being hard yellow and parchment
  like; Abrasions and ecchymoses around the edges of the
  ligature mark, subcutaneous tissues under the mark being
  white or glistening; carotid arteries, internal coats being
  ruptured; fracture or dislocation of the cervical vertebrae were
G all conspicuously absent in the case at hand as is evident from
  the post-mortem report prepared by the doctor.

             17. In the totality of the circumstances and having
      regard to the nature of the evidence which the courts below
H     have found credible on all material aspects of the prosecution
         ESHWARAPPA v. STATE OF KARNATAKA                             993
                 [T. S. THAKUR, J.]

  case, we do not see any compelling reason to interfere with A
  the view taken by the Trial Court as affirmed by the High Court.
  The only modification no matter inconsequential in the facts
  and circumstances of the case that we may make is the setting
. aside of the conviction of the appellant for the offence
  punishable under Section 498A Indian Penal Code.                 B

          18. We, accordingly, allow this appeal but only in part
· and to the limited extent that the judgment and order passed
  by the Trial Court as affirmed by t11e High Court in so far as the
  same convicts and sentences the appellant to imprisonment C
  for the offence punishable under Section 498A of the Indian
  Penal Code shall stand set aside. The appeal insofar as the
  sam.e challenges the conviction and sentence of imprisonment
  awarded to the appellant for the offence under Section 302
  IPC as also the sentence awarded under Section 201 IPC D
  together with the amount of fine imposed and the sentence in
  default shall stand dismissed ..
Devika Gujral                                Appeal partly allowed.
                                                  '·' ·~          .
                                                                      E




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