State Of Karnataka vs Basappa Bailappa Ullagaddi
2021 Latest Caselaw 6066 Kant

                                          Crl. A No.100054/2017

                             1


            IN THE HIGH COURT OF KARNATAKA
                    DHARWAD BENCH

     DATED THIS THE 14th DAY OF DECEMBER, 2021

                         PRESENT

 THE HON'BLE MR. JUSTICE SURAJ GOVINDARAJ
                           AND
         THE HON'BLE MS. JUSTICE J.M.KHAZI

            CRIMINAL APPEAL No.100054/2017

BETWEEN:

STATE OF KARNATAKA,
REPRESENTED BY BAILHONGAL POLICE STATION,
THROUGH THE ADDL. STATE PUBLIC PROSECUTOR,
ADVOCATE GENERAL OFFICE,
HIGH COURT OF KARNATAKA,
DHARWAD BENCH.
                                                ... APPELLANT

(BY SRI. V.M.BANAKAR, ADDL. SPP)

AND:

1.     BASAPPA BAILAPPA ULLAGADDI,
       AGE 41 YEARS, OCC: AGRICULTURE,
       R/O. SAMPAGAON, TAL: BAILHONGAL,
       BELAGAVI DISTRICT.

2.     MALLAPPA BAILAPPA ULLAGADDI,
       AGE 43 YEARS, OCC: AGRICULTURE,
       R/O. SAMPAGAON, TAL: BAILHONGAL,
       BELAGAVI DISTRICT.

3.     VIMALA MALLAPPA ULLAGADDI,
       AGE 35 YEARS, OCC: HOUSEHOLD,
       R/O. SAMPAGAON, TAL: BAILHONGAL,
                                             Crl. A No.100054/2017
                              2


     BELAGAVI DISTRICT.
                                            ... RESPONDENTS

(SMT. ANURADHA DESHPANDE, AMICUS CURIAE FOR
RESPONDENTS)

      THIS CRIMINAL APPEAL IS FILED UNDER SECTION 378 (1)
& (2) OF CR.P.C., SEEKING TO GRANT LEAVE TO APPEAL AND TO
SET ASIDE THE JUDGMENT AND ORDER OF ACQUITTAL DATED
16.11.2015 PASSED IN SESSIONS CASE NO.102 OF 2014 BY THE
IX ADDL. DISTRICT AND SESSIONS JUDGE, BELAGAVI, AND TO
CONVICT THE RESPONDENT/ACCUSED OF THE OFFENCES
PUNISHABLE UNDER SECTIONS 302 AND 506 READ WITH
SECTION 34 OF IPC.

     THIS CRIMINAL APPEAL HAVING BEEN HEARD AND
RESERVED FOR JUDGMENT, COMING UP FOR 'PRONOUNCEMENT
OF JUDGMENT', THIS DAY, SURAJ GOVINDARAJ J.,
DELIVERED THE FOLLOWING:

                          JUDGMENT

1. The State is on appeal challenging the Judgment of

acquittal passed by the IX Additional District and

Sessions Judge, Belagavi, dated 16.11.2015 in

Sessions Case No.102/2014 arising out of Crime

No.281/2012.

2. The case of the prosecution is that:

2.1. Accused No.1 Basappa Ullagaddi and deceased

Mallavva were married long ago, they had two Crl. A No.100054/2017

children, namely Bharati and Abhishek. After the

marriage, both the deceased Mallavva and

accused No.1, were living with the mother of the

deceased i.e. P.W.6 in Mohare, accused No.1 was

taking care of the properties and affairs of the

maternal family of the deceased, upon the

brothers of the deceased coming of age and the

partition being effected in the family of accused

No.1, they shifted to the house of the accused at

Sampagavi, which comes within the limits of

Bailhongal Police Station. There was constant

friction between the deceased and her husband

i.e. accused No.1, brother of accused No.1, who

is accused No.2 and wife of accused No.2 i.e.

accused No.3.

2.2. The deceased was always raising an issue as

regards the partition not being effected and the

amounts due to the deceased and accused No.1

not being given by accused Nos.2 and 3.

Crl. A No.100054/2017

2.3. It is in this background, on 25.10.2012, there

was an altercation between the deceased and

accused No.3 as regards the collection of water

from the common water point in the village. Later

on, at 9.30 p.m. there was an altercation

between the deceased and the accused persons

in connection with the partition of the property

and payment of monies towards the sugarcane

crop sold. At that time, it is alleged that accused

No.1 slapped the deceased and pushed her head

against the wall, resulting in her

unconsciousness, as also blood flowing from her

nose and ears. Thereafter, on 26.10.2012 at

about 1.00 a.m., when they found the deceased

alive, they poured kerosene on the deceased and

set her on fire.

2.4. It is alleged that C.W.11, Bharati-daughter of the

deceased was the eyewitness to the incident. The

accused has caused life threat to C.W.11 and Crl. A No.100054/2017

C.W.11 had not spoken the truth, it is thereafter

on recording her statement that a charge-sheet

was laid against the accused for the crime of

committing murder of the deceased Mallavva and

threatening the life of C.W.11 - Bharati,

punishable under Sections 302, 506 read with

Section 34 of the Indian Penal Code (for brevity

'IPC').

3. The accused were heard and charges were framed,

accused entered a plea of not guilty and claimed to be

tried.

4. In furtherance of the same, the learned Principal Civil

Judge and JMFC Court, Bailhongal took cognizance of

the offence against the accused, registered the case in

in C.C.No.207/2014. Since the offence alleged against

the accused were exclusively triable by the Court of

Sessions, the matter came to be committed to the

Principal Sessions Court, Belagavi, S.C.No.102/2014

was registered and made over to FTC I, Belagavi and Crl. A No.100054/2017

later on to IX Additional District and Sessions Court,

Belagavi.

5. The prosecution in order to prove its case, has

examined in all 16 witnesses (P.W.1 to P.W.16), got

marked 30 Exhibits i.e. Ex.P.1 to Ex.P.30 and 9

material objects i.e. MO-1 to MO-9.

6. The incriminating evidence against the accused was put

across to the accused, the accused denied all the

evidence against them, the statements of accused

under Section 313 of Cr.P.C. were recorded, the

accused however did not lead any evidence on their

behalf.

7. After hearing the arguments of both sides the trial

court acquitted the accused of the crimes alleged.

8. Sri.V.M.Banakar, learned Additional SPP for the

appellant-State has submitted as under:

8.1. The trial Court has not properly appreciated the

facts of the matter. There is more than enough Crl. A No.100054/2017

evidence on record to indicate that it is the

accused who have committed the murder of the

deceased. The witnesses have spoken about the

altercation between the deceased and the

accused. There is constant friction and quarrels

as regards the property is not properly

partitioned and the amounts due on account of

the sale of sugarcane crop not having been paid.

Therefore, the accused had a motive to cause the

death of the deceased.

8.2. CW.11 is an eyewitness to the incident who has

deposed about the manner in which the incident

occurred, has clearly identified accused Nos.1 to

3 to be the cause of the death, who have

committed the murder of the deceased.

8.3. CW.11 being the daughter of accused No.1 and

the death having been caused of her mother

Mallavva, the evidence of the daughter ought to

have been taken into consideration by the trial Crl. A No.100054/2017

Court, inasmuch as the daughter would not

depose against her father.

8.4. The postmortem report indicates that the death

was caused due to asphyxia on account of the

burns which are ante-mortem i.e. prior to the

death caused in the house of accused No.1 and

therefore, the accused not having explained the

situation in terms of Section 106 of the Indian

Evidence Act as regard the facts which are to the

special knowledge, the trial Court ought to have

appreciated these and convicted the accused.

9. Notice had been issued to the respondents. Despite

service, they did not enter appearance. Hence, this

Court vide its order dated 29.05.2018 appointed

Smt.Anuradha Deshpande as Amicus Curie to represent

the respondents-accused.

10. Smt.Anuradha Deshpande, learned Amicus Curie in

reply submitted that:

Crl. A No.100054/2017

10.1. PWs.1 to 5 have not supported the case of the

prosecution. They were treated as hostile but

nothing much is elicited during the course of

cross-examination to support the case of the

prosecution.

10.2. When the complaint was filed by CW.1 at Ex.P.8,

the complainant mother had suspected the role

of the accused in the death of the deceased.

However, at that point of time the statement

given by CW.11-daughter Bharati indicated that

the deceased slipped and fell down on the steps

while holding a kerosene lantern. The kerosene

spilt and the deceased caught fire, which

statement came to be changed on 30.10.2013

after more than a year of the incident and this

time CW.11/PW.7 implicated the accused in the

murder of the deceased. The said statement was

recorded after more than a year. By that time,

CW.11/PW.7 was residing in the house of Crl. A No.100054/2017

CW.1/PW.6 and it is at the behest of CW.1/PW.6

that such a statement was given to support the

complaint of CW.1/PW.6.

10.3. When such a belated statement was made and

the said statement not being supported by any

other evidence, the trial Court has rightly

acquitted the accused. Therefore, this Court

ought not to intercede in the matter and the

appeal is liable to be dismissed.

11. We have gone through the entire file including all the

evidence, deposition, cross-examination and the

exhibits marked.

12. PW.1 is a panch witness who has turned hostile.

13. PW.2-Gadigeppa Bailappa Ullegaddi, who is the witness

to the spot panchanama has stated that he has never

seen the dead body of the deceased nor any injuries on

her. He has further categorically stated that the police

have not seized anything in his presence.

Crl. A No.100054/2017

14. PW.3-Shivabasappa Veerabhadrappa Nandennanavar,

who is an alleged witness to the inquest panchanama

has denied that he has seen the dead body of the

deceased. He states that the police have not seized

anything in his presence.

15. PW.4-Shantavva Shivabasappa Nandennanavar, the

alleged witness to the inquest panchanama has also

stated that she has never seen the dead body of the

deceased nor any injuries on her and that the police

have not seized any articles in her presence.

16. PW.5-Ramalingappa Channabasappa Badennanavar, an

alleged witness to the seizure panchanama has stated

that when he had been to the Taluka Office, the police

have taken his signature and nothing was seized in his

presence.

17. PWs.1 to 5 were treated as hostile, cross-examined by

the Public Prosecutor. Nothing was elicited from them

during the course of the cross-examination to support

the case of the prosecution.

Crl. A No.100054/2017

18. PW.6-the complainant (mother of the deceased) has

deposed that she knows the accused before the Court.

PW6 had four children, namely Neelavva, Mallavva

(deceased), Malagouda and Subhash. The marriage of

Mallavva was performed with accused No.1. Accused

No.2 is elder brother of accused No.1. Accused No.3 is

the wife of accused No.2. From the wedding of accused

No.1 and the deceased Mallavva, two children, Bharati

and Abhishek were born.

19. After the marriage of Mallavva with accused No.1, both

of them started living in the house of PW.6 in Mohare

for a period of 4-5 years. Since accused No.1 got share

in properties, accused No.1 and Mallavva started

residing in the property allotted to them in Sampagavi,

where they lived for 4-5 years. During the said period,

accused Nos.2 and 3 were ill-treating the deceased

with regard to the properties. The deceased had

informed PW.6 that accused Nos.2 and 3 were not

giving share to her husband. Hence, she was insisting Crl. A No.100054/2017

on accused No.1 husband to demand a share from

accused Nos.2 and 3. 15 days prior to the incident,

accused No.2 had received certain amounts out of the

sale of sugarcane to the factory. Hence, the deceased

Mallavva demanded the share from accused No.2 which

was not given.

20. On 23.10.2012 her granddaughter Bharati CW.11/PW.7

informed her over the telephone that accused Nos.2

and 3 had quarrelled with the deceased Mallavva. On

25.10.2012 she received one more phone call from

Bharati CW.11/PW.7 at about 9.00 p.m. and she

informed that the accused were quarrelling with the

deceased Mallavva.

21. On the same night she received a call around 1.30 a.m.

from Sampagavi stating that her daughter Mallavva

died due to burns. Hence, she along with other children

and relatives travelled to Sampagavi and found the

dead body of Mallavva in the house of accused No.1

with burn injuries, blood was oozing from her nose and Crl. A No.100054/2017

ear. There were injuries on the head and the backside.

On seeing the same she came to a conclusion that the

accused had killed Mallavva and set her on fire.

22. At her instruction CW.17/PW.9 wrote down a complaint

as per Ex.P.8 and submitted the same to Bailhongal

Police Station. She has further stated that she took her

granddaughter Bharati to her house and that police had

taken the photographs of the incident.

23. During the course of cross-examination, she has stated

that she has never enquired with accused No.1 with

regard to his income and maintenance of the family.

She has admitted that accused No.1 never informed

and told her that accused No.2 had not given a share in

the property. She has stated that the houses of

accused Nos.1 and 2 were abutting each other and

there was a common roof. Accused Nos.2 and 3 had

two sons and were of the same age as CW.11/PW.7.

The children of accused No.1 were going to the house Crl. A No.100054/2017

of accused No.2 and the children of accused No.2 were

coming to the house of accused No.1.

24. She has stated that she had given a she buffalo to

accused No.1 about one year prior to the incident. That

herself and Abhishek had gone to the house of accused

No.1 two months prior to the incident but she could not

meet accused No.1 on that date. She has further stated

that whenever there was a school holiday CW.11/PW.7-

Bharati would come to her house and stay in the house

of PW.6 during the vacations. She has further stated

about her having given a mobile to CW.11/PW.7.

25. She has stated that she came to know that Mallavva

died due to burn injuries. About 15 members including

her two sons went to Sampagavi where many people

had gathered. When they saw the dead body for the

first time, it was lying in the cow shed. They were in

the house till 10.30 a.m. Thereafter they went to

Bailhongal and lodged a complaint which had been

written by CW.17, who is the distant relative of PW.6.

Crl. A No.100054/2017

26. She has denied her knowledge of the land allotted and

or the price of the sugarcane. She has deposed that

the people who had gathered there had informed her

that Mallavva fell down on the step between the

kitchen and the cow shed during night time while

holding kerosene lamp, due to which she caught fire.

27. She has stated that both Bharati and Abhishek are

residing with her and that even the she buffalo has

been taken back by her.

28. PW.7/CW.11 is the daughter of the deceased and

accused No.1 who had initially given a statement on

26.10.2012 and a further statement on 30.10.2013.

Initially on 26.10.2012 she had stated that her mother

fell down on the steps and caught fire. But

subsequently, in her statement on 30.10.2013 she has

retracted the same and she has stated that accused

Nos.1 to 3 are responsible for the death of her mother.

29. In her chief-examination she stated that on 25.10.2012

at around 9.30 p.m. there was a quarrel between the Crl. A No.100054/2017

deceased and the accused, when accused No.1 slapped

asked accused No.1 whether accused No.1 would shut

the mouth of the deceased or should they have to do

it. At that time, accused No.1 held the neck of the

deceased and hit her head to the wall, due to which

blood started oozing from the nose and ear of the

deceased. She lost consciousness and fell down.

Afterwards, all the accused left the place and they

came back again at 1.00 a.m. and noticing that the

deceased was still alive decided that something should

be done and accused No.1 brought a kerosene can and

poured it on the deceased. Accused No.3 brought the

matchbox and despite the resistance of CW.11/PW.7 he

set the deceased ablaze. All the accused threatened

her that she should not inform the same to anyone.

Afterwards, she has stated that she has informed CW.1

over phone who came at 4.00 a.m. along with others.

Since the accused were observing her she could not

inform CW.1 of the truth of the matter and is only after Crl. A No.100054/2017

one year that she has given true statement to the

police.

30. In the cross-examination she has stated that she does

not know when her father and his brother started living

separately and she does not know the extent of

agricultural land allotted to her father. She has

deposed about the deceased insisting on her father-

accused No.1 to get property share. She has stated

that her father was very affectionate towards her and

insisted on her education. The relationship between the

deceased and accused No.1 was cordial.

31. She has stated that on 25.10.2012 at about 9.30 p.m.

both accused Nos.2 and 3 entered the house, when the

deceased and PW.7 were in the kitchen. Accused Nos.2

and 3 asked why the deceased was quarrelling since

they were giving money as and when demanded by the

deceased. The deceased once again demanded the

money, accused No.2 stated that he would not give any

money. She has admitted that on 26.10.2012 she has Crl. A No.100054/2017

given a statement to the police saying that at that time

the deceased in rage had hit herself against a stone. At

that point of time, PW7 tried to comfort her.

32. She has however now stated that accused No.1 had at

11 pm dashed the head of her mother on the wall

situate on the northern side, when she fell down,

thinking that she was dead the accused left the place,

they came back at 1.00 am when finding that the

deceased was still alive poured kerosene on her and set

her ablaze.

33. At the time of setting fire to the deceased, she has

stated that she was screaming but nobody came there.

She has stated that the accused poured kerosene and

lit fire on the deceased at 1.00 p.m. she was there at

the time of pouring kerosene at a distance of four steps

from her mother. She was frightened and tried her

level best to avoid the incident by holding and falling

on her mother. When the kerosene started to spread

on her dress also, at that time accused No.1 removed Crl. A No.100054/2017

her from her mother and she fell down. She started

screaming that the accused were killing her mother.

34. She has further stated that she had thrown a wet

bedsheet on her burning mother, despite which her

mother caught fire. She tried to pour water on her

mother and that she was frightened. She has stated

that when the police first came, she could not say the

truth since the accused held a threat to her life. On

25.10.2012 she did not accompany CW.1 from

Sampagavi to Mohare. She continued to stay at

Sampagavi.

35. She has further stated that on 26.10.2012 the accused

were arrested and she continued to remain in

Sampagavi by herself preparing food. Neither CW.1 nor

her uncles came to take her back from Sampagavi nor

did she request her uncles and grandmother to take

her. After accused No.1 obtained bail and returned

home, she was preparing food for herself and accused

No.1. Thereafter on being frightened accused No.1 will Crl. A No.100054/2017

do something to her life, after 4-5 days she left for

Mohare to her grandmother's house without informing

accused No.1. Thereafter, she never visited the house

of accused No.1. Since there was no fear for her in the

house of CW.1, she revealed the true facts in her

statement dated 30.10.2013. She has denied rest of

the suggestions which have been put across to her.

36. PW.8/CW.9 is the brother of the deceased Mallavva. He

has stated that at 9.30 p.m. on 25.10.2012 Bharati had

talked to him over phone and informed him that there

was a quarrel between the deceased and accused. At

2.00 a.m. he received a phone call from Sampagavi

stating that Mallavva was dead, hence he along with

CW.1 and 10 others went to Sampagavi at about 5.00

a.m. when they found the dead body of Mallavva in the

house of accused No.1.

37. During the course of the cross-examination, he states

that he does not know when the partition in the family

of accused No.1 took place but he has admitted that Crl. A No.100054/2017

the deceased and accused No.1 after partition went

and stayed in the house allotted to accused No.1. He

states that he does not know about any dispute

between the deceased and accused No.1. He has stated

that the deceased Mallavva never informed him with

regard to any quarrel or dispute with accused No.1. At

1.30 a.m. he has stated that CW.1 received a call but

does not know who called her. He has denied the rest

of the suggestions which have been put across.

38. PW.9/CW.17 had accompanied CW.1 and others to

Sampagavi at 4.30 a.m. He has stated that he has

found the dead body of Mallavva in the house of

accused No.1, blood was oozing from the nose of the

dead body. He had written the complaint as per Ex.P.8

which bears his signature at Ex.P.8(c).

39. During the cross-examination he stated that there were

5-6 people who left for Sampagavi. During the cross-

examination he has denied the suggestions put to him.

Crl. A No.100054/2017

40. PW.10 is the constable of Bailhongal Police Station who

has received the MOs.1 to 3, 5 to 7 and 9 and delivered

the same to FSL.

41. PW.11 is the doctor who conducted the postmortem of

the deceased. He has deposed that the body of the

deceased was burnt and charred and the percentage of

the burn was 90. There was a fracture of nasal bone,

bleeding from the left nostril and rigor mortis were

present, black particles of soot were present covering

the lining of air passages in trachea and larynx. He has

opined that the cause of death was due to asphyxia as

a result of burns (ante-mortem). He has issued the

postmortem report which has been marked at Ex.P.13,

which was conducted in the presence of Dr.Deepa. He

has further stated that the injuries found on the dead

body can also be due to accidental fire.

42. PW.12 is the PSI of Bailhongal Police Station, who

registered the case in Crime No.281/2010 on the basis

of the complaint given by CW.1 and investigated the Crl. A No.100054/2017

matter. He stated that accused Nos.1 to 3 were

arrested on 08.11.2012.

43. PW.13 is the Assistant Engineer of PWD, Kittur who has

drawn the sketch of the place of the incident.

44. PW.14 is the Circle Inspector of police, Bailhongal who

upon receipt of information from PSI, Bailhongal

(PW.12) took up further investigation. He has

conducted the inquest mahazar of the dead body in the

presence of CWs.2, 3 and 6. At that time, the dead

body was near the place where the cattles were tied.

The dead body was burnt from neck to waist. On the

left shoulder, there was a burnt white colored blouse

and there were three glass bangles on each hand. From

waist to right knee and till left knee, there were burnt

injuries. There was a half burnt petticoat and knicker

on the dead body. Both the eyes were closed, blood

was oozing from nose, mouth and ear. He has stated

that at the time of recording inquest mahazar, the

complainant has stated that the said act was Crl. A No.100054/2017

committed by all the three accused. After the inquest

the body was sent to Government Hospital, Bailhongal

for postmortem. Spot mahazar was conducted in the

presence of CWs.2 and 3. MOs.5 to 10 were seized,

etc. He has denied all the suggestions which have been

put across during the course of cross-examination.

45. PW.15 took over the investigation form PW.14. He

received the map at Ex.P.20, delivered the properties

to FSL and collected the report.

46. PW.16 is another investigating officer, who has

recorded the statements of the witnesses including the

statement dated 30.10.2013 of PW.7 and laid the

charge sheet.

47. It is in the background of the deposition of various

witnesses that we have re-examined and re-

appreciated the facts on record to ascertain if the

prosecution has proved the guilt of the accused or not.

Crl. A No.100054/2017

48. CW.11/PW.7 is the only alleged eyewitness to the

incident. Initially when she gave a statement on

26.10.2012, she has stated that the deceased fell down

on the steps and accidentally caught fire, which she

came to know at 1 O'clock when she saw the fire.

Subsequently in the statement dated 30.10.2013, she

has stated that there was an altercation at 9.30 p.m.

on 25.10.2012 and at 11.30 p.m. the accused had hit

the head of the deceased to the wall due to which she

fell down and lost consciousness. Thereafter, the

accused left and on coming back at 1.00 a.m. finding

the deceased alive, poured kerosene and set her on fire

and she was threatened not to inform anybody. It is

this evidence which has been relied on by the

prosecution to drive home the point that the accused

have committed the murder of the deceased.

49. PW.6 has only referred to what has been informed by

PW.7 to her over phone as regards to fight which

occurred on 25.10.2012. She has no personal Crl. A No.100054/2017

knowledge of the same. PW.6 has however stated that

she is aware of the quarrels which were happening

between the deceased and accused Nos.2 and 3.

50. PW.7 in her second statement and in her evidence has

stated that when the accused poured kerosene on the

deceased and they were seeking to set her on fire, she

has intervened and tried to protect the deceased. She

has further stated that after the deceased was set on

fire, she poured water and wet bedsheet on the

deceased in an attempt to douse the fire.

51. However, a perusal of the seizure memo indicates that

no such bedsheet was seized. The deposition of the

other witnesses to the spot mahazar and perusal of the

spot mahazar does not indicate the presence of water

at the place where the body was found. What is of

further importance is that the second statement was

given on 30.10.2013 after more than one year after

the incident.

Crl. A No.100054/2017

52. PW.7 during the course of her cross-examination has

admitted that after the event the complaint was filed

by PW.6 and she continued to reside in the house of

accused No.1. It is rather surprising or indeed shocking

that when a complaint is filed by the grandmother

against the accused alleging that the accused has

caused the murder of the deceased, PW.7-the daughter

continued to reside with accused No.1. There was no

attempt made by either the grandmother or the uncle

who had visited the spot to take her away to safety if

indeed they believed that the accused has caused the

murder of the deceased.

53. PW.7 has herself categorically admitted that she had

continued to reside in the house of accused and cook

for herself and her father until his arrest and even after

his release on bail. Though PW.7 has stated that the

accused were arrested on 26.10.2012, the same is not

correct, inasmuch as the arrest was only made on

08.11.2012. Therefore, from 26.10.2012 to 08.11.2012 Crl. A No.100054/2017

PW.7 continued to reside in the house of accused No.1

and even thereafter when the accused were arrested

and released on bail she continued to stay with accused

No.1 and cook for him. The grandmother PW.6 and her

paternal uncles did not make any attempts to take

away PW.7 to their house. In these circumstances,

there is grave and serious doubt raised in our mind as

regards the second statement given by PW.7 on

30.10.2013, pursuant to which the charge sheet was

filed against the accused.

54. The testimony of PW.7 eyewitness was recorded after

PW.7 started residing with the complainant PW.6.

When PW.7 was residing with her father for a long

period of time she has stated that the death of the

deceased was accidental. It is only after PW.7 started

residing with PW.6 that she has stated that the death

was homicidal and accused Nos.1 to 3 have caused the

death of the deceased. The reason given by PW.7 that

there was a threat held out to her cannot also be Crl. A No.100054/2017

believed. PW.7 had enough and ample opportunity to

say the truth if at all it was the truth.

55. Furthermore, PW.7 is stated to have gone to the house

of PW.6 in November-2012. The second statement was

recorded on 30.10.2013. If indeed she had been

frightened of the threat to her life, the said threat had

ended as soon as PW.7 started residing with PW.6. She

could have stated the truth thereafter which has not

been done.

56. PWs.1 to 5 being the spot/inquest/seizure

panchanamna witnesses, have not supported the case

of the prosecution. The spot mahazar, inquest mahazar

and the seizure mahazar have not been proven by the

prosecution. The testimony of the sole eyewitness is in

doubt. The prosecution has failed in establishing that

there was a homicide/murder of the deceased

Mallavva. The case put across by the defence during

the course of the cross-examination which is same as

the first statement given by PW.7 is plausible inasmuch Crl. A No.100054/2017

as at 1.00 a.m. the deceased using the kerosene lamp

moved from the kitchen towards cattle shed in order to

attend the natures call when she accidentally fell down

broke her nose and the kerosene spilt and set her on

fire.

57. The testimony of the PW.7 that at 1.00 a.m. accused

Nos.1 to 3 poured kerosene on the deceased and set

her on fire when PW.7 was screaming cannot be

believed since no one came to the spot and when any

body screams at 1.00 a.m. in the night in a village

where the houses are very close to each other, the

neighbours would have definitely heard the screams

and either would have come to the rescue of the

deceased and deposed about the screams, during the

enquiry by the police.

58. In the above circumstances, when there is a grave and

serious doubt as regards the manner in which the

death of the deceased occurred, we are of the

considered opinion that the judgment of acquittal Crl. A No.100054/2017

passed by the trial Court is proper and correct and

does not require any interference at our hands. Hence,

we pass the following;

Order

The appeal stands dismissed.

Smt.Anuradha Deshpande had been appointed as

the Amicus Curie in the present matter. She has

rendered proper and effective assistance to this Court

leading to passing of the above order. We place our

appreciation on record for her services. We also direct

the Karnataka State Legal Services Authority to make

payment of a sum of Rs.10,000/- (Rupees Ten

Thousand only) as a nominal fee for bearing her

expenses in the matter within a period of 15 days from

today.

Sd/-

JUDGE

Sd/-

JUDGE SVH/SH from para 3