Sri Ananda @ Ananda Raju @ Wasim vs State By Srirangapatna Police
2021 Latest Caselaw 7108 Kant

       IN THE HIGH COURT OF KARNATAKA AT BENGALURU

        DATED THIS THE 23RD DAY OF DECEMBER, 2021

                           PRESENT

           THE HON'BLE MR. JUSTICE G. NARENDAR

                                AND

           THE HON'BLE MR. JUSTICE E.S. INDIRESH

           CRIMINAL APPEAL NO.1165 OF 2015

BETWEEN:

Sri Ananda @ Ananda Raju
@ Wasim
S/o late Jayaraju
Aged about 36 years
Roman Catholic
Now Muslim
Auto Driver
R/o Kumbara Beedi
Srirangapatna Town-571 438.
Mandya District.
                                                   ...Appellant
(By Sri N S Sampangi Ramaiah, Advocate)

AND:

State by Srirangapatna Police
Mandya District
Rep: State Public Prosecutor
High Court of Karnataka
Bengaluru -560 001.
                                              ...Respondent
(By Sri K Nageshwarappa, HCGP)
                                 2




     This Criminal Appeal is filed under Section 374 (2) of the
Code of Criminal Procedure, praying to set aside the judgment
dated 18th September, 2014 passed by the III Additional District
and Sessions Judge, Mandya, sitting at Srirangapatnain S C
No.165 of 2012 convicting the appellant/accused for the offence
P/U/S 302 of Indian Penal Code.

      In this appeal arguments being heard, judgment reserved,
coming on "Pronouncement of Orders" this day, INDIRESH J.,
delivered the following:

                        JUDGMENT

This criminal appeal is filed by the appellant-accused,

against the judgment of conviction and order of sentence dated

18th September, 2014 made in SC No.165 of 2012 by the Court

of III Additional District and Sessions Judge, Mandya (sitting at

Srirangapatna), convicting the appellant-accused to undergo

imprisonment for life and to pay fine of Rs.10,000/-; in default of

payment of fine, to undergo a simple imprisonment for a period

of three months for the offence punishable under Section 302 of

Indian Penal Code.

2. It is the case of the prosecution that, Meher-sister of

complainant (PW2), married one Anand S/o Jayaraju, who

belonged to Christian community about eight years ago and the

said marriage is a love marriage. The marriage was solemnised

at Chikka Maseedi, Srirangapatna. The said Anand, embraced

Islam faith and changed his name as Wasim. After marriage,

they were residing with Meher's grandfather. Wasim was plying

autorickshaw at Srirangapatna to eke out livelihood and

thereafter, he shifted to his sister's house at Goripalya,

Bengaluru to enhance his earnings and there also he was plying

autorickshaw. The said Wasim used to visit Srirangapatna

during weekends. Out of their wedlock, daughter-Saniya was

born and now she is studying in second standard. The

complainant further stated that, Wasim put up a separate house

on rent in Market Street, Srirangapatna, which belonged to one

Shivanna and started staying there; he was a habitual drinker

and was doubting the fidelity of his wife and was usually in

quarrel with her.

3. It is also the case of complainant that his sister-

Meher had informed about the same to himself and his father,

however, they tried to console her. It is the case of the

prosecution that on 09th March, 2012 at around 4.40 pm, he

received a call from one Ambarish, neighbour of his sister that

the said Wasim, in an inebriated state, picked-up quarrel with his

wife and in the altercation, poured kerosene, lit fire to her, and

left the place shutting the door. It is also informed to him that

the said Meher died on account of burn injuries and on receipt of

information, the complainant, along with his father and brother

viz. Baksh, visited the place of incident and found that his sister

was charred to death.

4. PW2 lodged complaint (Exhibit P-4) before

Srirangapatna Police stating that the said Wasim has killed his

sister doubting her fidelity. The same was registered as Crime

No.155 of 2012 against the accused for the offence punishable

under Section 302 of Indian Penal Code and FIR was sent to the

jurisdictional Court.

5. PW14-Investigation Officer, visited the spot and drew

up pachanama before the panchas and seized material objects

from the house of the accused under Exhibit P5-panchanama.

The Investigation Officer, as per Exhibit P6, has drawn up

inquest panchanama on the dead body of the deceased in the

presence of the panchas and arrested the accused. After

completion of investigation, PW14 filed charge sheet before the

competent Court against the accused alleging the commission of

offence under Section 302 of Indian Penal Code. As the offence

was exclusively triable by the Sessions Judge, the case was

committed to the Sessions Court. In order to prove the guilt of

the accused, the Prosecution has examined 15 witnesses as PW1

to PW15 and got marked 19 documents as per Exhibits P1 to P19

and three material objects as MO1 to MO3. After completion of

evidence on the side of Prosecution, statement of the accused

has been recorded as contemplated under Section 313 of the

Code of Criminal Procedure. The accused denied all the

incriminating circumstances against him and also the case set up

by the prosecution. The accused examined one Karthik-DW1 as

defence evidence.

6. The Sessions Court, on considering the oral and

documentary evidence on record, has come to a conclusion that

the prosecution has proved that on 09th March, 2012 at about

1.30 pm, accused came to Srirangapatna, picked up quarrel with

his wife saying that she is the main cause for his conversion to

Islam and also abused her for separating him from his parents

and relatives and further quarreled with her questioning her

fidelity and at about 4.30 pm, he poured kerosene on her and lit

fire and the said Meher Taj died due to burn injuries. Thereby,

the accused committed murder of Meher Taj, and committed

offence punishable under Section 302 Indian Penal Code.

Accordingly, the Sessions Court, by the impugned judgment of

conviction and order of sentence dated 18th September, 2014,

convicted the appellant-accused and sentenced him to undergo

imprisonment for life and to pay fine of Rs.10,000/-; in default

to pay fine to undergo simple imprisonment for a period of three

months for the offence punishable under Section 302 of the

Indian Penal Code. Being aggrieved by the impugned judgment

of conviction and order of sentence dated 18th September, 2014

passed in SC No.154 of 2012 by the III Additional District and

Sessions Judge Mandya, (sitting at Srirangapatna), the present

appeal is preferred by the appellant-accused.

7. We have heard Sri N.S. Sampangiramaiah, learned

counsel appearing for the appellant-accused and Sri K

Nageshwarappa, learned High Court Government Pleader,

appearing for the respondent-State.

8. Sri N.S. Sampangiramaiah, learned counsel

appearing for the appellant-accused contended that the learned

Sessions Judge, solely based on the evidence of PW1 and PW2,

convicted the accused despite there being failure on the part of

the Prosecution to prove the involvement of the accused.

Inviting the attention of the Court to the finding recorded by the

Sessions Judge, he submitted that the entire case of prosecution

revolves around the evidence of PW4 who has been considered

as the eye-witness to the incident, however, the learned

Sessions Judge has not properly appreciated the evidence of

PW4 and therefore, he submits that the impugned judgment of

conviction and order of sentence is contrary to the facts on

hand. He further contended that except the official witnesses

and the interested witnesses, no independent witness has

supported the case of the prosecution. Referring particularly to

the evidence of PW8 to PW11, Sri Sampangramaiah argued that

the prosecution has utterly failed to prove the involvement of the

accused in the alleged incident and the said aspect of the matter

was brushed aside by the learned Sessions Judge, which requires

to be interfered with in this appeal and accordingly, he sought to

allow the appeal filed by the accused and to set aside the

impugned judgment of conviction and order of sentence.

9. Per contra, Sri K. Nageshwarppa, High Court

Government Pleader for the State, vehemently contended that

the impugned judgment of conviction and order of sentence

passed by the learned Sessions Judge is based on the

evidentiary value which cannot be disturbed in this appeal.

Referring to contents of Exhibit P4-complaint and the evidence of

PW4, he argued that the prosecution has established the guilt of

the accused beyond reasonable doubt and therefore, sought for

dismissal of the appeal.

10. In view of the aforementioned rival contentions

urged by the learned counsel appearing for the parties the points

that arise for our consideration in this appeal are:

1. Whether the learned Sessions Judge is justified in

convicting the appellant-accused to undergo

imprisonment for life and to pay fine of Rs.10,000/-

and in default of payment of fine, to undergo a

simple imprisonment for a period of three months

for the offence punishable under Section 302 of

Indian Penal Code, in the facts and circumstances

of the case?

2. Whether the impugned judgment of conviction and

order of sentence, calls for interference in this

appeal?

11. In order to re-appreciate the entire evidence on

record, including the oral and documentary evidence, it is

relevant to the consider the evidence of the prosecution

witnesses and the circumstances relied upon.

12. PW1-Allah Baksh-brother of the deceased, has

deposed that deceased was the first daughter to his father and

the accused belonged to Christian religion. The marriage

between the accused and his sister was a love marriage and

after marriage, accused converted to Islam religion and changed

his name as Wasim. He further deposed that after marriage,

accused and his sister were residing at Kumbara Beedi and later

they moved to Market Street, Srirangapatna. Accused was an

autorickshaw driver and they were leading happy life for a period

of one year and daughter-Saniya was born in their wedlock. He

further deposed that his sister had informed him that the

accused doubted her fidelity and used to assault her in the

drunken state of mind. It is further deposed that accused

moved to Bengaluru leaving behind his wife and child at

Srirangapatna and was running an autorickshaw. He further

deposed that the accused was also pestering his sister to bring

money from her father. He further deposed that, a year back on

the date of unfortunate incident, at around 4.30 or 4.40 pm, he

received call from PW8-Ambarish (owner of the house in which

accused and deceased were residing), stating that the accused

killed his sister by pouring kerosene. Immediately, he went to

the spot and opened the door and found the body of his sister

with burn injuries and when they enquired with PW4-Saniya, she

informed that her father poured kerosene on the deceased and

lit fire.

13. PW2-Asthav (Amjad) Pasha is the brother of the

deceased, who deposed that the accused was having a business

near Sri Ranganathaswamy temple for sometime and thereafter,

he was plying autorickshaw. He further deposed that accused

and his sister were in cordial relationship for a period of six years

and thereafter, accused started doubting the fidelity of his sister.

He further deposed that he received a call from Ambarish,

relating to the death of his sister and thereafter, he lodged

complaint with the jurisdictional police.

14. PW3-Farooq is a pancha to the inquest-Exhibit P6.

15. PW4-Saniya, daughter of the deceased and the

accused, aged about eight years, deposed that her father killed

the deceased by pouring kerosene and setting her ablaze. She

further deposed that she and her parents were residing in her

grandfather-Rehman Sheriff's house and thereafter shifted to

Market Street. She deposed that on that particular day, her

father returned from Bengaluru, again went outside and returned

at around 3.00 pm and he was drunk and pestering her mother

for money and as she refused to pay the money, he hit her

mother and thereafter poured kerosene on the head of her

mother and lit fire and fled. Thereafter, neighbours visited the

spot and opened the door and found that her mother was dead

with burn injuries and after sometime, brothers of her mother

visited the spot and she narrated the incident to them.

16. PW5-Ameer Pasha and PW6-Rangaswamy are panch

witnesses;

17. PW7-Dr. K.B. Shivakumar, is a Medical Officer at the

Government Hospital, Srirangapatna. He has conducted

postmortem on the body of the deceased. He deposed that the

deceased was burnt fully and charred till the ankle joints (90%

burns). He deposed that the cause of death is due to shock,

secondary to burns sustained. He opined that from the injury

found on the dead body, the victim might have been alive not

more than 15 to 20 minutes after inflicting injuries and during

that period, she might be conscious. In the cross examination,

PW7 deposed that similar burn injuries may occur due to blast of

kerosene stove.

18. PW8-M.Y. Ambarish is the owner of the house in

which the deceased and accused were residing. He deposed that

the deceased and accused were residing in his house for nearly

3-4 years and their houses are separated by a common wall. He

further deposed that there was no quarrel between the deceased

and the accused and on the day of the incident, he visited the

house at around 4.30 or 5.00 pm and found Saniya the daughter

of deceased with burn injuries. The prosecution took up a

contention that PW8 has become hostile and as such, cross-

examined him. He further deposed that the accused and the

deceased were in cordial relationship and the accused was not a

drunkard as alleged by the prosecution.

19. PW9-Shivanna, the earlier landlord of the accused

deposed that accused and deceased were in cordial relationship

and he is not aware about as to who lit the fire and as such, the

Prosecution treated PW9 as hostile and accordingly cross-

examined him.

20. PW10-Pallavi is the wife of PW8-Ambarish. She

deposed on the lines of PW8 and as such, the prosecution

treated her as hostile and cross-examined her. She has deposed

that the accused was visiting his house once in a week and she

is not aware about the cause of death of the deceased.

21. PW11-Mahadevu deposed that he is not aware about

the quarrel between the accused and the deceased and further

deposed that he is unaware about the cause of death of the

deceased and as such, he has been treated as hostile by the

prosecution and cross-examined him.

22. PW.12-T. Ramadasu is the Assistant Engineer, Public

Works Department, Madhugiri, who has prepared the sketch as

per Exhibit P13.

23. PW13-G.N. Ramesh is the Assistant Sub-Inspector,

who sent FIR to the Court after receipt of the complaint (Exhibit

P4) from PW2.

24. PW14-A.V. Venkatesh Murthy is the Investigation

Officer. He deposed that by the time he reached the spot, PSI

and staff, and the father of the deceased and others were

present at the spot. He further deposed that there were no burn

injuries to Saniya-daughter of the deceased and he has collected

the material objects and sent some of the objects to the Forensic

Science Laboratory.

25. PW15-Dr.Manjunath is the Medical Officer,

Government Hospital, Srirangapatna. He has deposed that on

09th March, 2012 at around 7.45 pm, he has examined the

accused who had burn injuries on the right cheek. He deposed

that he has produced MLC register (Exhibit P19).

26. DW1-Karthik is a defence witness. He deposed that

the accused was running a tea-stall near Sri Ranganathaswamy

Temple. He further deposed that on 09th March, 2012, between

4.00 and 4.30 pm, he visited the tea-stall of the accused and

accused informed that he will prepare tea for him. He noticed

burn injuries on the face and on right arm of the accused. At

that time, someone came on a scooter and informed the accused

that his wife died on account of burn injuries and thereafter, the

accused left the spot.

27. Based on the aforementioned oral and documentary

evidence, learned Sessions Judge recorded the finding that the

Prosecution has proved that on 09th March, 2012 at about 1.30

pm, accused came to Srirangapatna to see his wife and daughter

and picked-up quarrel with his wife questioning her chastity and

at around 4.30 pm, he poured kerosene on her and lit fire and

accordingly, learned Sessions Judge convicted the accused for

the offence punishable under Section 302 of Indian Penal Code

on the ground that the accused caused homicidal death of his

wife-Meher Taj. The finding recorded by the trial Court is that

PW4-Saniya, daughter of victim is an eye-witness to the incident

and based on the deposition of PW4, learned Sessions Judge

arrived at a conclusion that the accused poured kerosene on the

victim and same has been corroborated with Exhibit P4-

complaint and the evidence of PW1 and PW2 and accordingly,

convicted the accused to undergo imprisonment for life and to

pay a fine of Rs.10,000/-; in default of payment of fine, to

undergo simple improvement for a period of three months for

the offence punishable under Section 302 Indian Penal Code.

28. We have carefully re-appreciated the evidence of

witnesses and perused the records. It is well-established

principle that it is the duty of the prosecution to prove that the

death of Meher is a homicidal death and in this behalf, the

prosecution has examined PW1 to PW4 and also examined PW5

and PW6, panch witnesses to Exhibit P-5. Prosecution has also

examined PW3 who is witness to inquest Exhibit P-6. PW7-

Doctor who has conducted autopsy on the dead body of the

deceased, opined that the cause of death is due to shock,

secondary to burns sustained as per Exhibit P-7. On going

through the evidence of these witnesses, the same would make

it clear that the death of the deceased was on account of burn

injuries and therefore, considering the evidence of panch

witnesses and the inquest mahazar, it could be safely held that

the death of deceased-Meher is not homicidal. In order to

establish the case of prosecution, the prosecution has solely

relied upon version of PW1, PW2 and PW4. In the backdrop of

the finding recorded by the trial Court, we have carefully

examined the evidence of PW4. It is the case of the prosecution

that the accused belong to Christian religion and the deceased is

a Muslim and their marriage is a love marriage and as such, the

accused embraced to Islamic faith. PW1 deposed that the

accused suspected the fidelity of the deceased. However, in the

examination-in-chief, he has deposed as follows:

"ªÀÄzÀĪÉAiÀÄ £ÀAvÀgÀ DgÉÆæ ªÀÄvÀÄÛ £À£Àß ¸ÀºÉÆÃzÀj ²æÃgÀAUÀ¥ÀlÖtzÀ PÀÄA¨ÁgÀ ©Ã¢AiÀÄ°è ªÀÄ£É ªÀiÁrPÉÆAqÀÄ ªÁ¸ÀªÁVzÀÝgÀÄ. DgÉÆæ DmÉÆà ZÀ°¸ÀÄwÛzÀÝ. ªÀÄzÀĪÉAiÀiÁzÀMAzÀÄ ªÀµÀðzÀªÀgÉUÉ DgÉÆæ ºÁUÀÆ £À£Àß vÀAV C£ÉÆåãÀåªÁV EzÀÝgÀÄ. CªÀgÀ zÁA¥ÀvÀå¢AzÀ M§â ºÉtÄÚ ªÀÄUÀ¼ÀÄ d¤¹zÀÄÝ CªÀ¼À ºÉ¸ÀgÀÄ ¸Á¤AiÀiÁ. ¸Á¤AiÀiÁ ¸ÀºÀ CªÀgÉÆA¢UÉ ªÁ¸ÀªÁVzÀݼÀÄ."

29. In respect of presence of PW4-Saniya at the time of

incident, PW1 deposed as follows:

"ªÀÄ£ÉAiÀÄ ªÀiÁ°ÃPÀ CA§jñïgÀªÀgÀÄ MAzÀÄ ªÀµÀðzÀ »AzÉ MAzÀÄ ¢£À ¸ÀAeÉ 4.20 CxÀªÁ 4.30 UÀAmÉ ¸ÀªÀÄAiÀÄzÀ°è zÀÆgÀªÁt ªÀiÁr £À£Àß vÀAVAiÀÄ£ÀÄß ºÉÆqÉzÀÄ ¹ÃªÉÄJuÉÚ ¸ÀÄjzÀÄ©lÄÖ ¨ÉAQ ºÀaÑ £À£Àß vÀAVAiÀÄ UÀAqÀ Nr ºÉÆÃVzÁÝ£É JAzÀÄ w½¹zÀ. DUÀ £Á£ÀÄ £À£Àß vÀAzÉ ªÀÄvÀÄÛ £À£Àß CtÚ C°èUÉ ºÉÆÃzɪÀÅ. £ÁªÀÅ ºÉÆÃzÁUÀ ªÀÄ£ÉAiÀÄ ¨ÁV® ºÉÆgÀV¤AzÀ a®PÀ ºÁQvÀÄÛ. ªÀÄ£ÉAiÀÄ M¼ÀUÀqÉ £À£Àß vÀAV ºÁUÀÆ £À£Àß vÀAVAiÀÄ ªÀÄUÀ¼ÀÄ EzÀÝgÀÄ. £ÁªÀÅ M¼ÀUÉ ºÉÆÃV

£ÉÆÃrzÁUÀ £À£Àß vÀAVUÉ ¸ÀÄlÖ UÁAiÀÄUÀ¼ÀÄ DVzÀݪÀÅ. ªÀÄ£ÉAiÀÄ°è EzÀÝAxÀºÀ ¸Á¤AiÀiÁ¼À£ÀÄß £ÁªÀÅ PÉýzÁUÀ CªÀ¼ÀÄ vÀ£Àß vÀAzÉ £À£Àß vÀAVAiÀÄ£ÀÄß ºÉÆqÉzÀÄ ¹ÃªÉÄJuÉÚ ¸ÀÄjzÀÄ ¨ÉAQPÀrجÄAzÀ ¨ÉAQ ºÀaÑ ªÀÄ£ÉAiÀÄ ºÉÆgÀUÀqɬÄAzÀ ¨ÁV®£ÀÄß ºÁQPÉÆAqÀÄ NrºÉÆÃzÀ JAzÀÄ ºÉýzÀ¼ÀÄ."

(emphasis supplied)

30. PW2, who is another brother of the deceased,

deposed as follows:

"DgÉÆæ ªÉÆzÀ®Ä gÀAUÀ£ÁxÀ¸Áé«Ä zÉêÀ¸ÁÜ£ÀzÀ ºÀwÛgÀ ªÁå¥ÁgÀ ªÀiÁqÀÄwÛzÀÝ £ÀAvÀgÀ DmÉÆà ZÀ°¸ÀÄwÛzÀÝ. ªÀÄzÀĪÉAiÀiÁzÀ DgÀÄ ªÀµÀðzÀªÀgÉUÉ DgÉÆæ ºÁUÀÆ £À£Àß vÀAV C£ÉÆåãÀåªÁV EzÀÝgÀÄ.""

31. He further depose as follows:

"£ÁªÀÅ ¨ÁV®£ÀÄß vÉUÉzÀÄ M¼ÀUÉ ºÉÆÃzÁUÀ £À£Àß vÀAVAiÀÄ ºÉt ªÀiÁvÀæ ©¢ÝvÀÄÛ. ªÀÄUÀÄ ¸Á¤AiÀiÁ ªÀÄ£ÉAiÀÄ ºÀwÛgÀªÉà DlªÁqÀÄvÁÛ EvÀÄÛ."

(emphasis supplied)

32. With regard to embracing Islam faith by the accused

as well as cause of death, PW2 deposed as follows:

"Qæ²ÑAiÀÄ£ï d£ÁAUÀzÀ ºÀÄqÀÄUÀ£À£ÀÄß ªÀÄzÀĪÉAiÀiÁzÀÝjAzÀ ªÀÄĹèA d£ÁAUÀPÉÌ CªÀªÀiÁ£ÀªÁAiÀÄÄÛ JA§ PÁgÀtPÁÌV £À£Àß vÀAV vÁ£Éà ¨ÉAQ ºÀaÑPÉÆAqÀ¼ÀÄ JAzÀgÉ ¸ÀjAiÀÄ®è. DgÉÆæ £À£Àß ¸ÀºÉÆÃzÀjUÉ ¨ÉAQ ºÀaÑ®è DzÀgÀÆ ¸ÀºÀ £Á£ÀÄ ¸ÀļÀÄî zÀÆgÀÄ ¸À°è¹zÉÝÃªÉ JAzÀgÉ ¸ÀjAiÀÄ®è."

33. On re-appreciation of the evidence of PW1 and PW2

the same would make it clear that accused and deceased were in

cordial relationship for one year, however, PW2 says that they

were in good relationship for about six years. Though these

witnesses deposed that the cause of death of their sister was on

account of the fact that the accused belong to Christianity and

used to quarrel with their sister that she is the cause for his

conversion. They further deposed that the accused was a

habitual drunkard and was harassing their sister to get money

from her father, however, perusal of the evidence of PW8 to

PW10 would reveal that there was no difference of opinion

between the deceased and the accused and the deemed quarrel

between the accused and deceased. In this regard, it is relevant

to extract the evidence of PW8, which reads as under:

"DgÉÆæ DmÉÆà ZÁ®PÀ. DgÉÆæ ªÀÄvÀÄÛ CªÀ£À ºÉAqÀwAiÀÄ £ÀqÀÄªÉ K£ÀÆ UÀ¯ÁmÉAiÀiÁUÀÄwÛgÀ°®è. gÁwæ ¸ÀªÀÄAiÀÄzÀ°è UÀ¯ÁmÉAiÀiÁzÀ ±À§Þ £ÀªÀÄä ªÀÄ£ÉUÉ PÉý¸ÀÄwÛgÀ°®è. ºÁUÀÆ DgÉÆæAiÀÄ ºÉAqÀw CAvÀºÀ UÀ¯ÁmÉAiÀÄ «µÀAiÀĪÀ£ÀÄß £ÀªÀÄUÉ ºÉüÀÄwÛgÀ°®è ºÁUÀÆ £ÁªÀÅ ¸ÀªÀiÁzsÁ£À ªÀiÁr®è."

34. He has further deposed as follows:

"£À£ÀUÉ w½zÀAvÉ DgÉÆæUÉ ªÀÄzÀå¥Á£À ªÀiÁqÀĪÀ ZÀl EgÀ°®è. DgÉÆæ ºÁUÀÆ CªÀ£À ºÉAqÀw C£ÉÆåãÀåªÁVzÀÝgÀÄ JAzÀgÉ ¸Àj. ªÀÄÈvÀ½UÉ vÁ£ÀÄ Qæ²ÑAiÀÄ£ï ªÀåQÛAiÀÄ£ÀÄß ªÀÄzÀĪÉAiÀiÁVzÉÝÃ£É JA§ §UÉÎ ªÀåxÉ EvÀÄÛ JAzÀgÉ UÉÆwÛ®è."

(emphasis supplied)

35. PW9 who is the earlier landlord of the accused,

deposed as follows:

"DgÉÆæ ªÀÄvÀÄÛ CªÀ£À ºÉAqÀwAiÀÄ £ÀqÀÄªÉ K£ÀÆ UÀ¯ÁmÉAiÀiÁUÀÄwÛgÀ°®è. gÁwæ ¸ÀªÀÄAiÀÄzÀ°è UÀ¯ÁmÉAiÀiÁzÀ ±À§Þ £ÀªÀÄä ªÀÄ£ÉUÉ PÉý¸ÀÄwÛgÀ°®è. ºÁUÀÆ DgÉÆæAiÀÄ ºÉAqÀw CAvÀºÀ UÀ¯ÁmÉAiÀÄ «µÀAiÀĪÀ£ÀÄß £ÀªÀÄUÉ ºÉüÀÄwÛgÀ°®è. ºÁUÀÆ £ÁªÀÅ ¸ÀªÀiÁzsÁ£À ªÀiÁr®è. £À£Àß vÁvÀ ²ªÀtÚ¤UÉ CAvÀºÀ UÀ¯ÁmÉ «µÀAiÀĪÀ£ÀÄß ªÀÄÈvÀ¼ÀÄ

ºÉüÀÄwÛgÀ°®è. £ÀªÀÄä ªÀÄ£ÉUÉ ¨ÁrUÉUÉ §gÀĪÀ ¥ÀƪÀðzÀ°è CªÀgÀÄ J°è ªÁ¸ÀªÁVzÀÝgÀÄ UÉÆwÛ®è."

36. PW10, who is the wife of the PW8, deposed that

there was no enmity between the husband and wife and they

were living cordially.

37. PW11 deposed on the similar lines of PW10, denying

quarrel between the accused and deceased.

38. On perusal of the case of the prosecution, it is not

forthcoming from the records as to whether the accused was

plying autorickshaw in Bengaluru or not and in order to establish

the same, no independent witness were examined by the

Prosecution to prove the avocation of the accused in Bengaluru.

Neither the driving licence nor any other material relating to

autorickshaw was produced before the trial Court. If at all the

accused is residing at Bengaluru at the relevant point of time,

there is no impediment for the Prosecution to link the chain of

event that the accused was plying autorickshaw in Bengaluru, by

producing the cogent material. Except the version of interested

witnesses i.e. PWs.1, 2 and 4, no material has been produced

before the trial Court to arrive at the conclusion that the accused

was plying autorickshaw at Bengaluru. After screening the

entire documents on record and on re-appreciation of evidence,

we find no motive on the part of the accused to kill his wife, so

also, there is no evidence from the side of the prosecution to

prove the 'element of motive' and in the absence of such

relevant evidence, we intend to interfere with the impugned

judgment of conviction and order of sentence.

39. We also find discrepancy in the evidence of PW1,

PW2 and PW4 with regard to the presence of PW4-star witness,

at the time of the incident. We have carefully noticed the

contents of complaint-Exhibit P4, wherein there is no whisper in

the complaint relating to presence of PW4-Saniya in the house at

the time of incident. In the cross-examination, PW4-Saniya

deposed as follows:

"²æÃgÀAUÀ¥ÀlÖtzÀ GzÀÄð ±Á¯ÉAiÀÄ°è £Á£ÀÄ ªÉÆzÀ®Ä NzÀÄwÛzÉÝ. £ÀªÀÄä ªÀģɬÄAzÀ ²æÃgÀAUÀ¥ÀlÖtzÀ ¸ÀÆ̯ïUÉ £ÀqÉzÀÄPÉÆAqÀÄ ºÉÆÃUÀ§ºÀÄzÁzÀ zÀÆgÁVvÀÄÛ. £ÀªÀÄä ±Á¯ÉAiÀÄ°è E§âgÀÄ ²PÀëPÀjzÀÝgÀÄ. £À£ÀUÉ ²PÀëPÀgÀ ºÉ¸ÀgÀÄUÀ¼ÀÄ UÉÆwÛ®è. £À£Àß ±Á¯É ¨É½UÉÎ 10 UÀAmɬÄAzÀ

¥ÁægÀA¨sÀªÁV ¸ÀAeÉ 4 UÀAmÉUÉ ©qÀÄvÀÛzÉ. £Á£ÀÄ ²æÃgÀAUÀ¥ÀlÖtzÀ°è «zÁå¨sÁå¸À ªÀiÁqÀĪÁUÀ ±Á¯ÉUÉ PÀ½¸À®Ä ºÁUÀÆ PÀgÉzÀÄPÉÆAqÀÄ §gÀ®Ä £À£Àß vÁ¬Ä §gÀÄwÛzÀÝgÀÄ. ²æÃgÀAUÀ¥ÀlÖtzÀ £ÀªÀÄä ªÀÄ£ÉAiÀÄ CPÀÌ¥ÀPÀÌzÀ ªÀÄ£ÉUÀ¼À°è £À£Àß ¸ÉßûvÀgÀÄ EzÀÝgÀÄ. £À£Àß ¸ÉßûvÀgÀ ºÉ¸ÀgÀ£ÀÄß FUÀ ªÀÄgÉwzÉÝãÉ. WÀl£ÉAiÀÄ ¢£À ¸ÀAeÉ 4 UÀAmÉUÉ £Á£ÀÄ CPÀÌ¥ÀPÀÌzÀ ªÀÄPÀ̼ÉÆA¢UÉ Dl DqÀÄwÛzÉÝ. ±Á¯É¬ÄAzÀ ªÀÄgÀ½ §AzÀ £ÀAvÀgÀ ¸ÀAeÉ 5 jAzÀ 6 UÀAmÉAiÀĪÀgÉUÉ £Á£ÀÄ £À£Àß ¸ÉßûvÀgÉÆA¢UÉ Dl DqÀÄwÛzÉÝ JAzÀgÉ ¤d. WÀl£ÉAiÀÄ ¢£À £Á£ÀÄ ¸ÀAeÉ 4 UÀAmɬÄAzÀ 6 UÀAmÉAiÀĪÀgÉUÉ DqÀÄwÛzÉÝ. £À£ÀUÉ £À£Àß vÁ¬ÄAiÀÄ£ÀÄß PÀAqÀgÉ §ºÀ¼À ¦æÃw EvÀÄÛ. £À£Àß vÁ¬ÄUÉ AiÀiÁgÁzÀgÀÆ ¨ÉÊzÀgÉ, dUÀ¼À ªÀiÁrzÀgÉ, ºÉÆqÉzÀgÉ £À£ÀUÉ ¸À»¹PÉƼÀî®Ä DUÀÄwÛgÀ°®è JAzÀgÉ ¤d. £Á£ÀÄ CAvÀºÀ ¥Àæ¸ÀAUÀUÀ¼À°è CªÀ¼À£ÀÄß CªÀ¼À ºÀwÛgÀ ºÉÆÃV vÀ©âPÉƼÀÄîwÛzÉÝ. £À£Àß vÁ¬ÄUÉ AiÀiÁgÁzÀgÀÆ ¨ÉAQ ºÀaÑzÀgÉ CAvÀºÀ ¸ÀAzÀ¨sÀðzÀ°èAiÀÄÆ ¸ÀºÀ £Á£ÀÄ C¦àPÉƼÀÄîwÛzÉÝ. WÀl£ÉAiÀÄ ¢£À £À£ÀUÉ AiÀiÁªÀÅzÉà ¸ÀļÀÄî UÁAiÀÄUÀ¼ÀÄ DV®è. WÀl£ÉAiÀÄ ¢£À £Á£ÀÄ ¨ÉAQ ºÀZÀÄѪÀÅzÀ£ÀÄß £ÉÆÃr®è CAzÀgÉ ¸ÀjAiÀÄ®è."

(emphasis supplied)

40. On re-appreciation of the evidence of PW4 insofar as

the presence of PW4 at the spot, so also, at the place of incident

is concerned, the sketch prepared by the Investigation Officer at

Exhibit P-13 is totally different from the sketch prepared by

PW12 as per-Exhibit P-17. In this regard, the place of

unfortunate incident of deceased itself is contrary to records.

This would give rise to suspicion that, whether the learned

Sessions Judge was justified in convicting the accused based on

the version of PW4. The said suspicion having not been

removed by the Prosecution or appreciated by the court below

and the same not being distorted by the prosecution side, it is

relevant to follow the law declared by the Hon'ble Supreme

Court in the case of DASARI SHIVAPRASAD REDDY v. PUBLIC

PROSECUTOR reported in (2004)11 SCC 282, wherein at

paragraph 24 of the judgment, the Hon'ble Supreme Court

observed thus:

"24. A strong suspicion, no doubt, exists against the appellant, but such suspicion cannot be the basis of conviction, going by the standard of proof required in a criminal case. The distance between 'may be true' and 'must be true' shall be fully covered by reliable evidence adduced by the prosecution."

41. The aforesaid principle was reiterated by the Hon'ble

Supreme Court in the case of RAJ KUMAR SINGH V. STATE OF

RAJASTHAN reported in AIR 2013 SC 3150. At paragraph 17 of

the judgment, it is observed thus:

"17. Suspicion, however grave it may be, cannot take the place of proof, and there is a large difference between something that `may be' proved and `will be proved'. In a criminal trial, suspicion no matter how strong, cannot and must not be permitted to take place of proof. This is for the reason, that the mental distance between `may be' and `must be' is quite large and divides vague conjectures from sure conclusions. In a criminal case, the court has a duty to ensure that mere conjectures or suspicion do not take the place of legal proof. The large distance between `may be' true and `must be' true, must be covered by way of clear, cogent and unimpeachable evidence produced by the prosecution, before an accused is condemned as a convict, and the basic and golden rule must be applied. In such cases, while keeping in mind the distance between `may be' true and `must be' true, the court must maintain the vital distance between conjectures and sure conclusions to be arrived at, on the touchstone of dispassionate judicial scrutiny based upon a complete and comprehensive appreciation of all features of the case, as well as the quality and credibility of the evidence brought on record. The court must ensure, that miscarriage of justice is avoided and if the facts and circumstances of

a case so demand, then the benefit of doubt must be given to the accused, keeping in mind that a reasonable doubt is not an imaginary, trivial or a merely probable doubt, but a fair doubt that is based upon reason and common sense."

42. In the light of the contradiction in the deposition of

PW1, PW2 and PW4, it is relevant to follow the dictum of the

Hon'ble Supreme Court in the case of JAGDISH PRASAD v.

STATE OF MADHYA PRADESH reported in AIR 1984 SC 1251,

wherein it is held that where the testimony of witnesses is

clouded with grave suspicion and discrepancy, particularly

recording of statement of witnesses and conviction based on

such testimony is not safe, and in the instant case, after re-

appreciating the entire material on record, we find that the

learned Sessions Judge unnoticed the discrepancies in the

evidence of PW1, PW2 and PW4, which creates a suspicion about

the involvement of the accused and therefore, though the

prosecution took a contention that PW4 is the eye-witness to the

incident, however, failed to prove the same. Re-appreciation of

evidence of PW4 would clearly substantiate the fact that, she

was playing with children at the relevant point of time and her

statement cannot be a basis to convict the accused. Even if we

consider that the entire case of prosecution is based on

circumstantial evidence, however, the prosecution failed to

complete the chain of events and leaves substantial doubt in the

mind of the Court. In this regard, it is relevant to refer to the

dictum of the Hon'ble Supreme Court in the case of BRAJENDRA

SINGH v. STATE OF MADHYA PRADESH reported in (2012)4 SCC

289, wherein at paragraph 16 of the judgment, it is observed

thus:

"16. There is no doubt that it is not a case of direct evidence but the conviction of the accused is founded on circumstantial evidence. It is a settled principle of law that the prosecution has to satisfy certain conditions before a conviction based on circumstantial evidence can be sustained. The circumstances from which the conclusion of guilt is to be drawn should be fully established and should also be consistent with only one hypothesis, i.e. the guilt of the accused. The circumstances should be conclusive and proved by the prosecution. There must be a chain of events so complete so as not to leave any substantial doubt in the mind of the Court. Irresistibly, the evidence

should lead to the conclusion inconsistent with the innocence of the accused and the only possibility that the accused has committed the crime. To put it simply, the circumstances forming the chain of events should be proved and they should cumulatively point towards the guilt of the accused alone. In such circumstances, the inference of guilt can be justified only when all the incriminating facts and circumstances are found to be incompatible with the innocence of the accused or the guilt of any other person...."

43. Further, the Hon'ble Supreme Court, in the case of

VARKEY JOSEPH v. STATE OF KERALA reported in 1993 Supp(3)

SCC 745 has held that, suspicion is not the substitute for proof.

There is a long distance between 'may be true' and 'must be

true' and the prosecution has to travel all the way to prove its

case beyond reasonable doubt.

44. In the case of STATE OF UTTAR PRADESH v. RAMESH

PRASAD MISRA AND ANOTHER reported in (1996)10 SCC 360it

has been held that even if material witnesses do not speak the

truth, the circumstantial evidence should be scanned having

regard to the ordinary human conduct and probabilities. Even

after extending doubts in favour of the accused, circumstantial

evidence can conclusively establish the commission of offence by

the accused.

45. We have also carefully analysed the evidence of the

official witness, particularly, PW7 and PW14, though it proves

the fact that the deceased died on account of burn injuries, but

involvement of the accused is not clear and remains to be a

suspense. It is also settled principle of law that High Court has

full power to re-appreciate and reassess the entire evidence

upon which the order of conviction was founded and then to

come to its own conclusion. In this regard, it is useful to refer to

the dictum of the Hon'ble Supreme Court in the case of

SANGAPPA AND OTHERS v. STATE OF KARNATAKA reported in

(2010)3 SCC 686, wherein at paragraph 10 and 11 of the

judgment, it is observed thus:

"10. We must express our reservation for the manner in which High Court disposed of the appeal under Section 378 (1) and (3) of the Code of Criminal Procedure, 1973. It is true that in an appeal from acquittal the High Court has full power to reappreciate and reassess the entire evidence upon which the order of acquittal was founded and then to come to its own

conclusion. There is no limitation placed on that power of the High Court. The Code makes no difference in the power of the appellate court, between the appeal filed by the state or by other person but the appellate Court would not be justified merely because it, feels that a different view should be taken for reasons which are not so strong.

11. This Court repeatedly held that the High Court in exercising the power conferred by the Code and before reaching its conclusion upon facts, it shall give always proper weight and consideration to such matters as:

i. The view of the trail Judge as to the credibility of the witnesses;

ii. The presumption of innocence in favour of the accused, a presumption certainly not weakened by the fact that they have been acquitted at trial;

iii. The right of the accused to the benefit of any doubt."

46. For the foregoing reasons, we are of the view that

the paramount consideration of the Court is to ensure that there

is no miscarriage of justice. The golden thread which runs

through the web of administration of justice in criminal cases is

that, if two views are possible on the evidence adduced in the

case one pointing to the guilt of the accused and the other to his

innocence, the view which is favourable to the accused should be

adopted. In this connection, it is relevant to extract the view

taken by the Hon'ble Apex Court in the case of SARWAN SINGH

v. STATE OF PUNJAB reported in AIR 2002 SC 3652, wherein at

paragraph 13, it is observed thus:

"13. The test of creditworthiness and acceptability in our view, ought to be the guiding factors and if so the requirements as above, stand answered in the affirmative, question of raising an eyebrow on reliability of witness would be futile. The test is the credibility and acceptability of the witness available if they are so, the prosecution should be able to prove the case with their assistance."

48. Following the dictum of the Hon'ble Apex Court with

regard to credibility and acceptability of the witness to the

contextual facts of the present case, we find major

contradictions in the evidence of PW1, PW2 and PW4 with that of

the PW9, 10 and 11, with regard to the relationship between

accused and deceased and the prosecution fails to prove motive

and on the other hand, prosecution also fails to prove that the

change of community by the accused is the basis for committing

the offence. None of the relatives of the accused were examined

to arrive at the conclusion that the accused had strained his

relationship with his parents and their family. PW2, in

unequivocal terms, has deposed that the accused and deceased

were cordial for a period of six years and in that view of the

matter, we find that the reasoning of the trial Court is casual

with scant regard to the principles of appreciation of evidence in

a criminal case and that apart, the learned Sessions Judge while

appreciating the facts, repeatedly connoted that there is no

dispute with regard to the facts, however, same itself is a fact in

issue under Section 3 of Indian Evidence Act, which requires to

be proved beyond reasonable doubt in a criminal trial. It is well-

established principle of law that in a criminal trial, court is not

merely to see that no innocent man is punished, on the other

hand, it has to be seen that a guilty man does not escape. Proof

beyond reasonable doubt, is a guideline to decide a criminal

case. Even an element of suspicion in the mind of the Court

should favour acquittal. Thus, we are of the opinion that the trial

Court was not justified in convicting the accused under Section

302 of Indian Penal Code. Hence, we proceed to pass the

following:

ORDER

1. Appeal is allowed;

2. The judgment of conviction and order of sentence dated 18th September, 2014 passed in SC No.165 of 2012 by the III Additional District and Sessions Judge, Mandya (Sitting at Srirangapatna), is hereby set aside;

3. Consequently, the appellant-accused is acquitted from the charges for the offence punishable under Section 302 Indian Penal Code and the appellant-accused is set at liberty forthwith, if he is not required in any other case;

4. If the appellant-accused has deposited any fine amount, the same is ordered to be refunded, on proper identification and acknowledgment.

Sd/-

JUDGE

Sd/-

JUDGE lnn