No Adverse Inference U/S 114 Indian Evidence Act If Prosecution Fails To Prove Presence Of Accused At Murder Scene: Karnataka High Court

A division bench of Justice B Veerappa and Justice S. Rachaiah partly allowed the appeal filed by an accused convicted to life imprisonment for murdering his wife. The bench said,

"No witnesses have deposed about the presence of the accused, at the place of occurrence. Since the prosecution has failed to prove the presence of the accused, as on the date of incident, it would not be appropriate to draw the adverse inference as per the provision under section 114 of the Indian Evidence Act and the Court cannot invoke the provision under section 106 of Indian Evidence Act and ask the appellant to say the reasons for murder of his wife."

Further it said, "Initially, the prosecution has to discharge the initial burden that as on the alleged date of incident, the accused alone was present along with the deceased. In this case, as stated above, no witnesses have supported or deposed that the appellant was present along with his wife. Hence, the trial Court could not have concluded that the accused is the only person who killed his wife in the alleged incident."

Case Details:

Accused Suresh had approached the court challenging judgement of conviction and order of sentence passed by the Addl. Sessions Judge, under Sections 498A and 302 of IPC.

It is alleged that at the time of marriage of the accused with the complainant's daughter, there was a demand by the accused to pay Rs.50,000 and gold chain. The complainant however has paid only Rs.20,000 and a gold chain.

The accused persons were demanding the balance amount from the deceased. She was being subjected to cruelty and harassment for not having paid the amount of balance dowry. Besides the demand of dowry, the accused was suspecting the fidelity of the deceased and used to assault her.

The complainant and other elders convened a panchayath and advised the accused No.1 to adjust with the deceased in the family life and lead a happy life. In the panchayath, a decision was taken by the elders that a separate house is required for them to make them happy and also have a better understanding.

The complainant constructed a separate house for the sake of his daughter and accused to make them live happily. However, accused did not change his suspecting character. Such being the fact, on 14.12.2012, at about 6.00 a.m, the complainant was informed that the doors of the house of the daughter were not opened. When he went to her place it was found that his daughter was lying on the floor and she was dead. Following which he lodged a police complaint on December 15, 2012.

Submissions of the Appellant:

Advocate Nagaraja Reddy D appearing for the appellant submitted that the entire case is based on circumstantial evidence. The trial Court has erroneously read the evidence on record and concluded that the Appellant has committed an offence which is against to the evidence on record.

Further it was said that witnesses have turned hostile, except the relatives and interested witnesses. Such being the fact, a conviction based on assumption and presumption is alien to the criminal jurisprudence.

Moreover, the prosecution has failed to establish the presence of the accused either on the previous day or at the time of the incident. As the prosecution has not established the presence of the accused, the accused need not answer in the statement recorded under section 313 of Cr.P.C. since the prosecution has not discharged the initial burden the question of invoking section 106 of the Indian Evidence Act would not arise.

Prosecution Arguments:

Advocate Viajayakumar Majage, for the prosecution said the trial Court has rightly convicted the accused after having gone through both oral and documentary evidence on record, which requires no interference by this Court.

Further, the evidence of the father, mother, and elders of the village is consistent with the suspecting character of accused towards the deceased and also for demanding of additional dowry. Since there is motive for murder and trial court rightly convicted the accused No.1 interference to the well reasoned judgment is uncalled for.

Court findings:

The bench went through the evidence of the witnesses and said,  "On careful reading of the entire evidence of all the witnesses, it appears that some of the witnesses have supported the case and some of the witnesses have turned hostile. Those who have supported the case of the prosecution are relatives and interested witnesses and also other witnesses are official witnesses."

Relying on judgement of the Supreme Court in the case of Manoj Kumar Roop Singh v. State of Himachal Pradesh, 2016 Criminal Law Journal 5015, the bench observed, "Evidence of related witnesses cannot be discarded by the relationship existing between the deceased and the relatives."

Then the court said the entire case is based on circumstantial evidence. It observed, "It is the settled principle of law that when the case is based on circumstantial evidence, the changed circumstances has to be proved by the prosecution without leaving any missing link to form the chain."

It opined,

"Suspicion however strong it may be, but it is not the substitute for proof. The prosecution has to prove the case beyond all reasonable doubt to base a conviction. There is a long distance between "may be true" and "must be true" and the prosecution has to travel all the way to prove the case beyond all reasonable doubt."

Accordingly it held, 

"After having analysed the oral and documentary evidence available on record, we are of the opinion that the trial Court committed a grave error in convicting the accused/appellant for the offence under section 302 of IPC. Hence, the conviction for the said offence is liable to be set aside."

It observed, "The presence of the accused is sine-qua-non to draw the adverse inference against the accused. To invoke the adverse inference as envisaged under section 114 r/w section 106 of the Indian Evidence Act, the presence of the accused either before death or immediately after death is essential."

Further it held, "It is proven fact from the evidence of the witnesses that, the harassment and cruelty in connection with the demand of additional dowry and accused No.1 suspecting the fidelity of the deceased. The same fact has been proved by the panchayathdars who are examined in this case as witnesses."

Following which it said appellant/accused No.1 is acquitted for the offence punishable under Section 302 of IPC. The impugned judgment of conviction dated 13.12.2018 and order of sentence dated 17.12.2018, convicting the appellant/accused No.1 for the offence punishable under Section 498-A of IPC is hereby confirmed.

Case Title: Suresh v. State of Karnataka

Case No: CRIMINAL APPEAL No. 981/2019

Citation: 2022 LiveLaw (Kar) 140

Date of order: 22ND DAY OF APRIL, 2022

Appearance: Advocate NAGARAJA REDDY D for appellant; Special Public Prosecutor VIJAYAKUMAR MAJAGE for respondent

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