- 1 - CRL.A No.100541/2022 IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE 07TH DAY OF APRIL 2025 PRESENT THE HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM AND THE HON'BLE MR. JUSTICE G BASAVARAJA CRIMINAL APPEAL NO. 100541 OF 2022 (A) BETWEEN: STATE OF KARNATAKA REP. BY THE POLICE SUB-INSPECTOR, KAGINELE POLICE STATION, THROUGH THE ADDITIONAL STATE PUBLIC PROSECUTOR, ADVOCATE GENERAL OFFICE, HIGH COURT OF KARNATAKA, DHARWAD BENCH, DHARWAD. …APPELLANT (BY SRI. M.B. GUNDAWADE, ADDL. SPP.) AND: ARUN SHEKAPPA KALER AGE: 28 YEARS, R/O: KOPPAGONDADAKOPPA, TQ. HANGAL, DISTRICT HAVERI-581110. …RESPONDENT (BY SRI. GANAPATHI M. BHAT, AMICUS CURIAE) THIS CRIMINAL APPEAL IS FILED UNDER SECTION 378(1) AND (3) OF CR.P.C. SEEKING TO GRANT LEAVE TO APPEAL AGAINST THE JUDGMENT AND ORDER OF ACQUITTAL DATED 25.11.2021 PASSED BY THE II ADDITIONAL DISTRICT AND SESSIONS JUDGE, HAVERI (SITTING AT RANEBENNUR) IN S.C.NO.4/2019 AND TO SET ASIDE THE II ADDITIONAL DISTRICT AND SESSIONS JUDGE, HAVERI (SITTING AT RANEBENNUR) IN S.C.NO.4/2019 AND TO CONVICT THE RESPONDENT/ACCUSED FOR THE OFFENCES PUNISHABLE UNDER SECTION 376, 302, 404 OF IPC. THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR JUDGMENT ON 27.03.2025, COMING ON FOR PRONOUNCEMENT OF ORDERS THIS DAY, THE COURT DELIVERED THE FOLLOWING: Digitally signed by V N BADIGER Location: HIGH COURT OF KARNATAKA, DHARWAD BENCH, DHARWAD - 2 - CRL.A No.100541/2022 CORAM: HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM AND HON'BLE MR. JUSTICE G BASAVARAJA CAV JUDGMENT (PER: HON'BLE MR. JUSTICE G BASAVARAJA) State has preferred appeal against the judgment of acquittal dated 25th November 2021 passed in SC No.4 of 2019 by the II Additional District and Sessions Judge, Haveri sitting at Ranebennur (for short hereinafter referred to as the “trial Court”). 2. For the sake of convenience, the parties herein are referred to as per the rank before the trial Court. 3. Brief facts leading to this appeal or that Kaginele Police submitted charge-sheet against the accused for the offences punishable under Sections 376, 302 and 404 of the Indian Penal Code. One Vilas Khandekar lodged complaint on 21st September 2018 at 11:30 AM before PSI, Kaginele Police Station alleging that in the year 2017, he has given contract to one Malatesh of Koopagondanakoppa for construction of dwelling house. Subsequently, when the construction work was under progress, due to difference of opinion, it came to standstill. After a month, the accused who was working under - 3 - CRL.A No.100541/2022 Malatesh, approached the complainant and assured that he will complete the construction work. Accordingly, the complainant agreed and the construction of house was completed on 10th May 2018 and after opening ceremony of the newly constructed house, they started to reside in the new house. Thereafter, accused used to frequently visit the house of the complainant even in his absence and he developed intimacy with the wife of the complainant. The wife of the complainant used to tell him that accused is insisting for illicit relation with him, failing which he has threatened to kill her. The complainant assured his wife that he will enquire about the same with the accused. On 20th September 2018 at about 6.30 p.m., after delivering milk to the Dairy when the complainant returned to home at about 7:30 PM, his wife was not in the house. He enquired his father about his wife. His father informed that she went to attend nature call and not yet returned. Complainant searched for his wife around the house and also on the terrace, but he could not found her. Thereafter, he went to the place where his wife usually attend to nature call and while he was so searching with the help of mobile torch, the accused ran away from that place. He went further and noticed that his wife was lying supine. When he called her, she did and subsequently he came to know - 4 - CRL.A No.100541/2022 that she was dead. Blood was oozing from her nose and there was a small injury to her chin and the nightie worn by her was open near her ribs and Taali (mangalasutra) was missing. It is alleged in the complaint that since the wife of the complainant did not co-operate with the accused for illicit relation, holding grudge on her, accused murdered his wife. The complainant was under shock and only after the elders of the village asked him to lodge the complaint, he filed complaint. On the basis of the complaint FIR was registered, and after completion of investigation, accused was charge-sheeted. After filing charge- sheet, cognizance was taken against the accused and a case was registered in CC No.73 of 2018 and the same was committed to the Sessions Court, Haveri as the alleged offence was exclusively triable by the Court of Sessions. After committal, case in SC No.4 of 2019 was registered. On hearing charges, learned Judge has framed charges for alleged commission of offences under Sections 376, 302 and 404 of Indian Penal Code and the same was read over and explained to the accused in the language known to him. Accused denied the charges and claimed to be tried. 4. To prove the case, prosecution, in all, examined 22 witnesses as PWs1 to 22, 66 documents were marked as - 5 - CRL.A No.100541/2022 Exhibits P1 to P66 and 21 material objects were marked as MOs.1 to 21. Prosecution has given up evidence of CWs5, 15, 26 & 27. Evidence of CWs17, 20, 21, 22 & 23 was dropped. On closure of prosecution side evidence statement of accused under Section 313 of Code of Criminal Procedure was recorded and the accused totally denied all the incriminating evidence appearing against him, but he has not chosen to lead any defence evidence on his behalf. Having heard the arguments on both sides, trial Court has acquitted the accused. Being aggrieved by this judgment of acquittal, State has preferred this appeal. 5. Sri M.B. Gundawade, learned Additional State Public Prosecutor appearing for the State, would submit that the judgment and order of acquittal passed by the trial Court are contrary to law, facts and evidence on record placed by the prosecution and the same is liable to be set aside. He would submit that PW1 is the complainant and husband of the deceased. He has clearly stated before the Court that after the incident, he had seen the dead body of his wife where he had noticed that the Taali of his wife was missing and the same has not been properly read and appreciated by the trial Court at the time of appreciating the evidence. He would further submit - 6 - CRL.A No.100541/2022 that the Taali was recovered by Investigating Officer from the custody of the accused on the basis of voluntary statement and at his instance, under Exhibit P38. The same has been identified by PWs1 & 4 before the trial Court. The recovery is also supported by the evidence of panch witness PW4. It is further submitted that parents of PW1 have also identified the Taali and the same has not been properly read appreciated by the trial Court in its proper perspective. He would submit that the material used it for commission of offence i.e. veil and one mobile phone has been seized on the basis of voluntary statement and at the instance of the accused. The said evidence has been discarded by the learned trial Judge on the ground that the panch witnesses have not supported the case of prosecution. It is submitted that the evidence of Investigating Officer is not sufficient to prove the recovery in case if panch witnesses not supporting the case. Further, he would submit that on the next day of incident, police have arrested the accused and on the basis of voluntary statement and at his instance, the veil used for commission of offence and also the ornament i.e. Taali has been recovered and the same has been identified by the prosecution witnesses. PW20-Doctor who has conducted the autopsy on the deceased and has issued - 7 - CRL.A No.100541/2022 the postmortem report has opined that he has noticed the injuries as shown in the postmortem report. He has also opined that the death of deceased was due to asphyxia and also opined that there was a sexual assault on the deceased and he has issued the final opinion as per Exhibit P50. During the course of investigation, the Investigating Officer has also recovered mobile phone of the accused and deceased from the custody of the accused and call details disclose that there were continuous calls between the accused and the deceased. The said evidence has not been considered and appreciated by the trial Court at the time of appreciation of evidence and thereby erroneously passed the impugned judgment of acquittal, which is not sustainable in the eye of law and is liable to be set aside. On all these grounds, the learned Additional S.P.P. sought to allow the appeal. 6. On the other hand, Shri Ganapathi M Bhat, learned Amicus Curiae appearing for respondent-accused would submit that the trial Court has properly appreciated the evidence on record in accordance with law and facts and absolutely, there are no materials to interfere with the impugned treatment of acquittal and accordingly sought for dismissal of the appeal. Having heard the learned Counsel appearing on both sides, and - 8 - CRL.A No.100541/2022 on perusal of records, the following points who arise for our consideration: 1. Whether the impugned judgment and order acquittal passed by the trial Court suffers from legal infirmities requiring this court to intercede? 2. What order? 7. Our answer to the above points would be: Point number one: In the negative; Point number two: As per final order Regarding Point No.1: 8. Before adverting to the actual facts of the case and appreciation of evidence, it is necessary to refer the dictum of Hon'ble Supreme Court regarding scope and power of Appellate Court in appeal against the order of acquittal. 9. In the case of MOTIRAM PADU JOSHI & OTHERS v. STATE OF MAHARASHTRA reported in 2018 SCC ONLINE SC 676, at paragraph 23 of the judgment, it is held thus: “23. While considering the scope of power of the appellate court in an appeal against the order of - 9 - CRL.A No.100541/2022 acquittal, after referring to various judgments, in Chandrappa v. State of Karnataka (2007)4 SCC 415, this Court summarised the principle as under:- “42. From the above decisions, in our considered view, the following general principles regarding powers of the appellate court while dealing with an appeal against an order of acquittal emerge: (1) An appellate court has full power to review, reappreciate and reconsider the evidence upon which the order of acquittal is founded. (2) The Code of Criminal Procedure, 1973 puts no limitation, restriction or condition on exercise of such power and an appellate court on the evidence before it may reach its own conclusion, both on questions of fact and of law. (3) Various expressions, such as, “substantial and compelling reasons”, “good and sufficient grounds”, “very strong circumstances”, “distorted conclusions”, “glaring mistakes”, etc. are not intended to curtail extensive powers of an appellate court in an appeal against acquittal. Such phraseologies are more in the nature of “flourishes of language” to emphasise the reluctance of an appellate court to interfere with acquittal than to curtail the power of the court to review the evidence and to come to its own conclusion. (4) An appellate court, however, must bear in mind that in case of acquittal, there is double presumption in favour of the accused. Firstly, the presumption of innocence is available to him under the fundamental principle of criminal jurisprudence that every person shall be - 10 - CRL.A No.100541/2022 presumed to be innocent unless he is proved guilty by a competent court of law. Secondly, the accused having secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the Sessions court. (5) If two reasonable conclusions are possible on the basis of the evidence on record, the appellate court should not disturb the finding of acquittal recorded by the Sessions court.” 10. In the case of MUNISHAMAPPA & OTHERS v. STATE OF KARNATAKA & CONNECTED APPEALS reported in 2019 SCC ONLINE 69, at paragraph 16 of the judgment it is held as under: “16. The High Court in the present case was dealing with an appeal against acquittal. In such a case, it is well settled that the High Court will not interfere with an order of acquittal merely because it opines that a different view is possible or even preferable. The High Court, in other words, should not interfere with an order of acquittal merely because two views are possible. The interference of the High Court in such cases is governed by well-established principles. According to these principles, it is only where the appreciation of evidence by the Sessions court is capricious or its conclusions are without evidence that the High Court may reverse an order of acquittal. The High Court may be justified in interfering where it finds that the order of acquittal is not in accordance with law and that the approach of the Sessions court has led to a miscarriage of justice. …” - 11 - CRL.A No.100541/2022 11. In the case of HARI RAM & OTHERS v. STATE OF RAJASTHAN reported in 2000 SCC ONLINE 933, at paragraph 4 of the judgment, it is observed thus: “4. Mr. Sushil Kumar Jain, the learned Additional Advocate General for the State of Rajasthan on the other hand contended that the power of the High Court while hearing an appeal against an order of acquittal is in no way different from the power while hearing an appeal against conviction and the Court, therefore was fully justified in re- appreciating the entire evidence, upon which the order of acquittal was based. The High Court having examined the reasons of the learned Sessions Judge for discarding the testimony of PWs 6 & 7 and having arrived at the conclusion, that those reasons are in the realm of conjectures and there has been gross miscarriage of justice and the mis-appreciation of the evidence on record is the basis for acquittal, was fully entitled to set aside an order of acquittal and no error can be said to have been committed. It is too well settled that the power of the High Court, while hearing an appeal against an acquittal is as wide and comprehensive as in an appeal against a conviction and it had full power to re- appreciate the entire evidence, but if two views on the evidence are reasonably possible, one supporting the acquittal and the other indicating conviction, then the High Court would not be justified in interfering with the acquittal, merely because it feels that it would sitting as a Sessions court, have taken the other view. While re- appreciating the evidence, the rule of prudence requires that the High Court should give proper weight and consideration to the views of the learned Sessions Judge. - 12 - CRL.A No.100541/2022 But if the judgment of the Sessions Judge was absolutely perverse, legally erroneous and based on wrong appreciation of the evidence, then it would be just and proper for the High Court to reverse the judgment of acquittal, recorded by the Sessions Judge, as otherwise, there would be gross miscarriage of justice.…” 12. In the case of STATE OF RAJASTHAN v. KISTOORA RAM reported in 2022 SCC ONLINE 684, at paragraph 8 of the judgment it is held as under: “8. The scope of interference in an appeal against acquittal is very limited. Unless it is found that the view taken by the Court is impossible or perverse, it is not permissible to interfere with the finding of acquittal. Equally if two views are possible, it is not permissible to set aside an order of acquittal, merely because the Appellate Court finds the way of conviction to be more probable. The interference would be warranted only if the view taken is not possible at all.” 13. In the case of MAHAVIR SINGH v. STATE OF MADHYA PRADESH reported in (2016)10 SCC 220, at paragraph 12 of the judgment, it is observed thus: “12. In the criminal jurisprudence, an accused is presumed to be innocent till he is convicted by a competent court after a full-fledged Sessions, and once the Sessions court by cogent reasoning acquits the accused, then the reaffirmation of his innocence places more burden on the appellate court while dealing with the - 13 - CRL.A No.100541/2022 appeal. No doubt, it is settled law that there are no fetters on the power of the appellate court to review, reappreciate and reconsider the evidence both on facts and law upon which the order of acquittal is passed. But the court has to be very cautious in interfering with an appeal unless there are compelling and substantial grounds to interfere with the order of acquittal. The appellate court while passing an order has to give clear reasoning for such a conclusion.” 14. We have examined the material placed before the court. It is a case of the prosecution that Vilas Khandekar the husband of the deceased lodged complaint on 21st September 2018 at 11:30 AM before PSI Kaginele Police Station alleging that in the year 2017, that accused used to frequently visit the house of the complainant even in his absence and developed intimacy with the wife of the complainant. The wife of the complainant used to tell him that accused is insisting for illicit relation with him, failing which he has threatened to kill her. The complainant assured his wife that he will enquire about the same with the accused. That on 20th September 2018 at about 6.30 p.m., after delivering milk to the Dairy when the complainant returned to home, his wife was not in the house. Upon enquiry with his father, it was made known that she went to attend nature call and not yet returned. Complainant - 14 - CRL.A No.100541/2022 searched for his wife around the house, but did not find her. Thereafter, he went to the place where she usually attend to nature call and while he was so searching, the accused ran away from that place. He went further and noticed that his wife was lying supine and when he called her, she did and subsequently, he came to know that she was dead. Blood was oozing from her nose and there was a small injury to her chin and the nightie worn by her was open near her ribs and Taali (mangalasutra) was missing. Thus the accused committed the alleged offences. 15. The Investigating Officer has cited 31 witnesses in the charge-sheet. Out of them, 22 witnesses have been examined as PW1 to 22. 16. CW1-Vilas Khandekar, complainant and the husband of deceased is examined as PW1. He has not deposed anything against the accused. He has deposed only as to the death of his wife. Further, he has clearly deposed that he do not know the contents of Exhibit P1 and he has not stated anything against the accused before the police and accused has not committed rape on his wife. He has also denied the further statement recorded by the police and also contents of Mahazar - 15 - CRL.A No.100541/2022 Exhibit P2 and the hand sketch Exhibit P10. This witness is treated as hostile witness with the permission of the court and was cross-examined in detail by the Public Prosecutor. Even in his cross-examination, the prosecution has not elicited any favourable answers from him to substantiate the case of prosecution. 17. CW2-Basavaraj Parappa, CW3-Mahadev Talwar said to be attesters to panchanama have deposed as to the inquest panchanama conducted by the police as per Exhibit P22. But they have denied the contents of seizure mahazar Exhibits P24 & 25. 18. CW6-Prabhu Doddamani said to be attester to seizure of Taali examined as PW4, has deposed in his evidence that the accused has produced MO1 and the police have seized the same in his presence under Exhibit P38. 19. CW4 attester to the inquest panchanama has partly supported the case of the prosecution. 20. CW7-Kuberappa Vasananda and CW8-Fakirappa Savanur said to be attesters to Spot panchanama Exhibits P2 & P10 examined as PWs6 & 7 respectively, have deposed as to mahazar conducted by the police as per Exhibits P2 & P10. - 16 - CRL.A No.100541/2022 These witnesses have not fully supported the case of prosecution. 21. CWs9 & 10 who are seizure mahazar witnesses examined as PWs8 and 9 have deposed in their evidence as to seizure panchanama of Exhibit P44. They have also not fully supported the case of prosecution. 22. CW11, who is examined as PW10 has not supported the case of prosecution. Even in his cross-examination made by the Public Prosecutor after treating him has hostile witnesses with the permission of the Court, he has not admitted the suggestions made by Public Prosecutor. 23. CW14- Mukta Bai Khandekar, mother-in-law of deceased-Radha and mother of the complainant, CW12- Lakshmi, CW13-Nagaraju Pullaiah, the elder brother of deceased-Radha examined as PWs11 to 13 or hearsay witnesses and have not deposed anything against the accused. 24. CW18-Puttappa Veerapura, the circumstantial witness who is examined as PW18 has also not deposed anything against the accused. - 17 - CRL.A No.100541/2022 25. CW19-Mahantesh examined as PW15 has not deposed anything against the accused. He is treated as hostile witness and was cross-examined by Public Prosecutor with the permission of the Court. Even in his cross-examination, the prosecution has not elicited any answer from him to substantiate the case of prosecution. 26. CW25-Dr. Vishwanath Salimath, Medical Officer, examined as PW16. He has deposed any evidence as to the examination of the accused and issuance of certificate Exhibit P45. 27. CW24-Dr. Pushpa examined as PW 17, has deposed as to post-mortem examination of the deceased and also issuance of postmortem report Exhibit P46. She has also deposed as to the opinion given by her on the basis of FSL report as per Exhibit P50. 28. CW16-Sanjeev Desai, scribe of Exhibit P1-complaint has deposed that he has written the complaint as per exhibit P1 at the instance of CW1. 29. CW-28 Sharanabasava Chowkimath, Medical Officer of KIMS Hospital, examined as PW19. He has deposed in his - 18 - CRL.A No.100541/2022 evidence as to examination of deceased-Radha and he has also deposed as to the issuance of report Exhibit P52. 30. CW29-Dr. Chaya Kumari examined as PW 20 has deposed as to the FSL report issued by her as per Exhibit P53 and also model seal Exhibit P54. 31. CW-30 Doddannagouwda Patil, Sub-Inspector of Police and CW21-women Police Inspector, examined as PWs21 and 22 have ddeposed as to their respective investigation. 32. Upon meticulous examination of the entire body of evidence placed before the Court, it becomes unequivocally evident that CW1, who is the husband of the deceased and examined as PW1, is a crucial witness in the case. However, PW1 has failed to support the prosecution's case. On the contrary, he has testified that his wife passed away due to abdominal pain and that he lodged the complaint only at the behest of the village elders. Furthermore, he categorically stated that he does not know the accused, Arun Kaler, and is unaware of the contents of the complaint marked as Exhibit P1. He also denied having made any further statement to the Investigating Officer on 21st September 2018, which was - 19 - CRL.A No.100541/2022 recorded in Exhibit P43 and allegedly contains allegations of rape against the accused. 33. Although PW1 mentioned an incident relating to the accused allegedly snatching the taali (mangalsutra) of the deceased, he did not offer any substantive testimony in support of the prosecution's allegations. The prosecution, for its part, made no effective attempt to confront or contradict him on these crucial points or to elicit any favorable responses during cross-examination that could support the complaint or Exhibit P43. Additionally, the prosecution has not furnished any explanation as to why PW1, despite being the deceased's husband and a material witness, has turned hostile or failed to support the prosecution version. 34. It is also pertinent to note that the alleged incident took place on 20th September 2018 at around 6:30 PM, whereas the complaint was lodged only the next day, i.e., on 21st September 2018 at 11:30 AM, and subsequently submitted to the Court at 1:30 PM. PW1 has not provided any explanation regarding this delay, nor has the prosecution clarified the same, particularly in light of PW1’s categorical denial of the allegations. - 20 - CRL.A No.100541/2022 35. With respect to the seizure of the taali allegedly recovered from the possession of the accused under the mahazar marked as Exhibit P38, the prosecution’s case is that the accused was arrested on 21st September 2018, and his voluntary statement was recorded the same day under Exhibit P57(a). Based on this statement, the police claim to have recovered the taali from the accused and documented the seizure under Exhibit P38. The seized property was entered in Property Form No. 31/2018. 36. However, after the seizure, the Investigating Officer failed to produce the said property before the Court for obtaining permission to retain it, as mandated under Section 102 of the Code of Criminal Procedure. The record reveals that the property form along with the seizure mahazar was submitted only on 27thnSeptember 2018, reflecting an unexplained delay of six days from the date of seizure. No justification has been provided by the Investigating Officer for this lapse. 37. In addition to this, other property forms, namely, No. 32/2018, 33/2018, and 34/2018, which relate to other seized items on 22nd September 2018, were also submitted - 21 - CRL.A No.100541/2022 belatedly to the Court on 27th September 2018. This delay too remains unexplained. The cumulative effect of these procedural lapses demonstrates non-compliance with the mandatory provisions of Section 102 of the CrPC, thereby casting doubt on the reliability of the seizure process. 38. Furthermore, the Investigating Officer has not collected any documentary evidence to establish that the seized mobile phones belonged to either the accused or the deceased. Although call detail records (CDRs) were produced and marked as Exhibits P64 and P65, these alone are insufficient to connect the accused with the crime. In the absence of any evidence proving ownership or possession of the mobile phones by the accused or the deceased, the CDRs cannot be conclusively attributed to either party. Thus, the prosecution has failed to establish a link between the mobile data and the alleged incident. 39. Other than the statements of official witnesses, there is a complete absence of independent or corroborative evidence on record to establish the guilt of the accused. The prosecution has failed to bring forth any reliable material that would substantiate its case beyond reasonable doubt. In light of - 22 - CRL.A No.100541/2022 the evidentiary deficiencies, the trial Court has correctly evaluated the evidence in accordance with established legal principles and factual matrix, and consequently, has rightly rendered an order of acquittal. 40. Upon thorough reappreciation and re-evaluation of the entire evidence available on record, this Court finds no merit in the appeal and discerns no legal or factual error, irregularity, or infirmity in the judgment of the trial Court. The acquittal is supported by cogent reasoning and sound analysis of the facts and law involved. Accordingly, Point No. 1 is answered in the negative. Regarding Point No.2: 41. For the aforestated reasons and discussions, we proceed to pass the following: (i) Appeal is dismissed; (ii) Judgment of acquittal dated 25th November 2021 passed in SC No.4 of 2019 by the II Additional District and Sessions Judge, Haveri sitting at Ranebennur, is confirmed; - 23 - CRL.A No.100541/2022 (iii) Registry to transmit the tile court records along with copy of this judgment to the concerned court. Sd/- (SACHIN SHANKAR MAGADUM) JUDGE Sd/- (G BASAVARAJA) JUDGE lnn CT-CMU