K.N.Narendranath vs State Of Karnataka

K.N. Narendranath ......Appellant

Versus

State of Karnataka ....

Respondent JUDGMENT

Dr. ARIJIT PASAYAT, J.

1. Leave granted.

2. Challenge in this appeal is to the judgment of a Division Bench of

the Karnataka High Court upholding his conviction for offence punishable

under Section 302 of the Indian Penal Code, 1860 (in short the `IPC'). The

appellant was found guilty by III Additional Sessions Judge, Tumkur in

Sessions Case No.55/1999.

3. Background facts in a nutshell are as follows:

Kumadavathi (hereinafter referred to as the `deceased') daughter of

PW3 was married to the accused. Accused had allegedly developed

intimacy with Kalavathi (PW11) and on 05.12.1998 at about.8 p.m., in the

house of the accused at Sadara Street, Koratagere Town, the accused

strangulated the neck and caused death of his wife - Kumadavathi and

thereby, committed the offence punishable under Section 302 IPC. Mother

of deceased (PW3) and her father (CW1) were informed about the death of

their daughter and they went to the house of the accused and found that their

2 daughter was dead. CW1, the father of Kumadavathi filed complaint as per

Ex.P2. The said complaint was registered in U.D.R. No. 40/98. Inquest was

conducted as per Ex.P1. Dead body of Kumadavathi was sent for

postmortem examination to PW6, who conducted the postmortem

examination and issued postmortem report as per Ex. P3. PW6 also

furnished opinion as per Ex. P3(c) stating that death was due to asphyxia as

a result of manual strangulation. After completion of investigation, charge

sheet was filed against the accused. The accused pleaded not guilty and

claimed to be tried. The prosecution examined PWs. 1 to 17 and got

marked Exs. P1 to P11 and M.O. Nos. 1 to 4. Exs. D1 to D4 were got

marked in the evidence of PWs. 3 and 13. Statement of the accused under

Section 313 of the Code of Criminal Procedure, 1973 (in short the `Code')

was recorded. The defence of the accused is that his wife Kumadavathi fell

down from the stair case and died. The accused did not lead any defence

evidence. The trial Court after considering the contentions of the learned

Public Prosecutor and the learned counsel appearing for the accused and

appreciating the oral and documentary evidence on record adduced by the

prosecution, held that Kumadavathi suffered homicidal death by manual

strangulation by the accused and the prosecution has proved beyond

reasonable doubt that the accused appellant has committed the offence

3 punishable under Section 302 IPC., and sentenced him as aforesaid by the

impugned judgment of conviction dated 07.12.2004 and order of sentence

dated 09.12.2004. Trial Court primarily relied on purported extra judicial

confession made by the accused.

The High Court did not accept the stand of the accused that the

deceased sustained injuries due to fall from the stair case as probabilized by

the material on record. Stand of the accused was that the so called extra

judicial confession made by the accused before PWs. 10 and 13 is not

reliable and truthful. PW-13 was examined to prove the so called extra

judicial confession. According to the prosecution accused had made the

extra judicial confession. The High Court held that the extra judicial

confession stated to have been made does not prove the prosecution case.

PW-13 had stated in his statement before the police that he had gone to see

the dead body of the deceased after her death and the accused informed him

that the deceased fell down from the staircase and died having sustained

injury. It was also stated in his cross examination that the accused told him

about the incident after about two months. The accused was in custody from

5.3.1999 to 1.9.1999 and, therefore, it was highly improbable that accused

informed PW-13 that his wife fell down form the staircase and died. But the

4 High Court relied on the evidence of PW-13 to the extent that it was helpful

to the prosecution to show that the accused was in love with Kalavathi PW-

11. Interestingly, PW-10 told the police about the extra judicial confession.

4. Learned counsel for the appellant re-iterated the stand taken before

the High Court.

5. Learned counsel for the respondent-State on the other hand supported

the judgment.

6. This case primarily rested on the so called extra judicial confession

which has been dis-believed by the High Court. The evidence of PW-10 has

been referred to by the High Court. It is not on record as to who called PW-

10 to the spot of occurrence. No witness has spoken about PW-10 being

called. On the contrary, Dr. Mallikarjuna has categorically stated in his

examination that he told the investigating officer that the lady had died

when he had examined her. After Dr. Mallikarjuna had already declared the

deceased to be dead, there was no necessity for calling PW-10.

7. Above being the position, it would be unsafe to convict the accused

appellant. His conviction is therefore set aside. He shall be released

forthwith unless to be required in custody in connection with any other case.

5

8. The appeal is allowed.

......................................J. (Dr. ARIJIT PASAYAT)

........................................J. (P. SATHASIVAM) New Delhi, May 08, 2009

6