The State By Police Inspector vs Shivanna @ Shivananda ...
2022 Latest Caselaw 2377 Kant

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                                              R

       IN THE HIGH COURT OF KARNATAKA AT BENGALURU

         DATED THIS THE 15TH DAY OF FEBRUARY, 2022

                             PRESENT

           THE HON'BLE MR. JUSTICE K. SOMASHEKAR

                               AND

             THE HON'BLE MR. JUSTICE P.N.DESAI

             CRIMINAL APPEAL NO.1219/2016
BETWEEN:

THE STATE BY POLICE INSPECTOR,
SURATHKAL POLICE STATION,
SURATHKAL,
DAKSHINA KANNADA, MANGALURU,
REPRESENTED BY STATE PUBLIC PROSECUTOR,
HIGH COURT BUILDING
BANGALORE-575 104.
                                           ... APPELLANT
(BY SRI. RAHUL RAI. K, HCGP)

AND:

SHIVANNA @ SHIVANANDA HANUMANTHAPPA
MASOOR,
S/O LATE HANUMANTHAPPA,
AGED ABOUT 34 YEARS,
R/A NEAR ANJANEYA GUDI,
HEEROORU,
HANAGAL TALUK,
HAVERI DISTRICT-581 104.

                                          ... RESPONDENT
(BY SRI. A.C NAGARAJ, ADV)

      THIS CRIMINAL APPEAL IS FILED UNDER SECTION 378(1) AND
(3) CR.P.C BY THE S.P.P. FOR THE APPELLANT PRAYING TO GRANT
LEAVE TO APPEAL AGAINST THE JUDGMENT AND ORDER OF
ACQUITTAL DATED 26.02.2016 PASSED BY THE COURT OF II ADDL.
DIST.   AND    S.J.,  DAKSHINA    KANNADA,   MANGALURU    IN
                                    2



S.C.NO.53/2013, ACQUITTING THE RESPONDNET FOR THE OFFENCES
P/U/S 498A, 302 OF IPC.

      THIS CRIMINAL APPEAL COMING ON FOR HEARING THIS DAY,
P.N. DESAI. J., DELIVERED THE FOLLOWING:

                              JUDGMENT

This appeal arises out of the judgment of acquittal dated

26th February 2016 passed by learned II Additional District and

Sessions Judge, Dakshina Kannada, Mangaluru in

S.C.No.53/2013, wherein the accused was acquitted for the

offences punishable under section 498A and 302 of Indian Penal

Code, 1860(for short hereinafter referred as 'IPC').

2. The factual matrix of the prosecution case is that

deceased Ashwini and accused Shivanna are husband and wife.

Their marriage took place on 16.08.2010. It is further case of the

prosecution that both accused and Ashwini were living together

in the house of the accused. It is further case of the prosecution

that on 16.01.2013, the accused brought two sarees out of which

he gave one saree having price of Rs.500/- to his sister's

daughter and he gave another saree which is of cheaper rate

i.e., Rs.250/- to his wife Ashwini. In this regard,

at about 7.30 p.m., a quarrel took place between the accused

and deceased Ashwini and in that quarrel, the accused abused

Ashwini stating that she is quarrelling too much and she should

die. After hearing such words, immediately deceased Ashwini

poured kerosene on herself at that time, the accused set her on

fire by means of a cigarette, as a result, fire caught to her dress

and Ashwini sustained severe burn injuries. Thereafterwards,

Ashwini was taken to Wenlock Hospital, Mangalore and was

admitted as inpatient for burn injuries in Burns ward. It is the

prosecution allegation that that injured Ashwini informed her

mother about the incident. Subsequently, she succumbed to the

burn injuries in the hospital. The mother of deceased by name

Smt.Bharathi lodged a complaint as per Ex-P6 on 17.01.2013.

Accordingly, the Suratkal police registered the case in

Cr.No.16/2013 for the offences under sections 504 and 306 of

IPC. The deceased succumbed to the injuries on 19.01.2013 at

Wenlock Hospital at about 7.15 a.m. Sri.Kumareshwaran, Station

House Officer-PW-20 who received the complaint from the

mother of deceased Ashwini sent the FIR-Ex-P28 to the court.

PW-20-PSI found that injured Ashwini was not in a position to

speak, but her relatives were present. Therefore, he gave

requisition to the Duty Doctor to give report regarding the

condition and state of mind of injured Ashwini. On the same

day(17.01.2013) afternoon, the Taluka Executive Magistrate,

Mangaluru also visited the hospital along with Dr Balakrishna-

PW-11. At that time, Ashwini was not in a position to speak.

Accordingly, the Doctor-PW-11 has given request and

endorsement as per Ex-P24 and Ex-P25. As Ashwini was not able

to speak anything, PW-20 registered the said case. Then on

18.01.2013, PW-20 visited the shed where the accused was

residing and conducted place of offence panchanama as per

Ex-P20 in the presence of the witnesses PW-8 and PW-9 as per

the place shown by PW-7. PW-20 also seized burnt chudidhar top

and pant of Ashwini, half burnt cigarette, ashes of chudidhar

cloth and a bisleri bottle having kerosene and one matchbox,

under PF as per M.O.1 to M.O.7. PW-20 also recorded statement

of the witnesses and also prepared the sketch map in respect of

place of offence as per Ex-P33. Then on 19.01.2013, PW-20

received the information that injured Ashwini succumbed to the

burn injuries. Accordingly, PW-20 received the information as per

Ex-P34. Then PW-20 requested the court to register the case

under Section 302 IPC. Then he gave requisition to the Taluka

Executive Magistrate to conduct inquest over the deadbody of

deceased Ashwini as her death had taken place within seven

years from the date of her marriage. Accordingly, inquest was

conducted as per Ex-P29. Thereafterwards, PW-20 recorded

statement of the witnesses present at the time of inquest. It is

further stated that at the time of inquest, the accused was also

present, he was arrested by PW-20 and produced before the

court. Then on 23.01.2013, PW-20 received the inquest mahazar

and he also collected the photos-Ex-P37 taken at the time of

place of offence and photos taken at the Wenlock Hospital at

Ex-P37 and thereafterwards handed over further investigation to

PW-19 M.A. Nataraj. Said Nataraj- PW-19 collected the

documents and photos relating to marriage of deceased Ashwini

and after collecting the MOs sent the seized articles to FSL for

chemical examination to Bengaluru, then after receiving report

as per Ex-P30 and after completing investigation filed charge

sheet against the accused for the offences stated above.

3. Said case was committed by the learned JMFC to the

court of sessions after completing the provisions of sections 207

208 and 209 Cr.P.C. The learned sessions judge after hearing

both sides framed the charge against the accused for the

offences under sections 498A and 302 IPC. Thereafterwards, the

prosecution examined 21 witnesses as PW-1 to PW-21 and got

marked 38 documents as Ex-P1 to P38 and got identified seven

material objects as M.O.1 to M.O.7. The statement of the

accused under section 313 (1) (b) Cr.P.C. was recorded. The

accused denied the circumstances appeared against him in the

evidence of the prosecution witnesses. The accused has not

chosen to lead any defence evidence. The accused has filed his

written statement. The accused in his written statement has

stated that himself and his wife Ashwini were residing at

Hosabettu and they were doing coolie work. There was puberty

function of his sister's daughter for which he had brought a saree

to his sister's daughter and also to his wife Ashwini, but

deceased Ashwini quarrelled with him stating that he had

brought a costly saree for his sister's daughter and a cheaper

saree to her and stating so, she went inside and poured kerosene

on herself and set fire and tried to commit suicide. Then he tried

to extinguish fire and in the process, he also sustained injuries

to his hands. He has also stated that deceased Ashwini has

sustained burn injuries all over her body and she had lost

conscious. The people admitted her to Mangalore Hospital. She

did not regain conscious and she died. He has not committed any

offence. So this is the defence of the accused. Thereafterwards,

after hearing the arguments, the learned sessions judge

acquitted the accused for the offences stated above which is

assailed by the State in this appeal.

4. Heard Sri. Rahul Rai, learned HCGP for appellant-State

and Sri. A.C. Nagaraj, learned counsel for respondent/accused.

5. Learned HCGP Sri. Rahul Rai for appellant-State argued

that the impugned judgment and order of acquittal recorded by

the learned sessions judge is contrary to law and facts and

evidence on record. The learned HCGP further argued that the

learned sessions judge has not properly appreciated the evidence

of PW-1, PW-5, PW-8, PW-9 and PW-10 who are the material

witnesses. The learned sessions judge failed to analyse and

scrutinize the evidence of PW-11, PW-12, PW-13, PW-15, PW-16,

PW-17, PW-19 and PW-21. Learned HCGP further argued that

appreciation of evidence by learned sessions judge is not in

proper perspective, therefore the judgment of acquittal recorded

by the learned sessions judge is erroneous and deserves to be

set aside. With these main arguments, learned HCGP prayed to

allow the appeal and convict the accused for the offences stated

above and punish him.

6. As against this, learned counsel for respondent/accused

argued that there is no evidence to show that the accused has

committed the offences as alleged against him, in fact accused

has also sustained burn injuries which is evident from the fact

adduced by the prosecution who went to rescue his wife who was

trying to commit suicide. Absolutely there is no material to show

that it is the accused who is responsible for the death of the

deceased. It is only deceased Ashwini in a spur of moment on

her own tried to set fire to herself which has resulted in this

unfortunate incident. Learned counsel also argued that the

witnesses examined by the prosecution most of them have not

supported the charges levelled against the accused. Evidence of

Doctor PW-12 shows that there was burn injuries to deceased

Ashwini to the extent of 98% to the whole body. Therefore, the

evidence of mother and brother of deceased Ashwini that it is the

accused who lit fire to deceased Ashwini cannot be believed at

all. Learned counsel argued that the learned sessions judge has

rightly appreciated the evidence on record and after discussing

the evidence one by one has given right conclusion and found

that the prosecution has failed to prove the guilt of the accused

beyond all reasonable doubt and by giving benefit of doubt has

rightly acquitted the accused. Learned counsel also argued that

this appeal is against judgment of acquittal and unless the

judgment of trial court is illegal, perverse and not based on

sound principles regarding appreciation of evidence, generally,

the appellate court will not interfere in the judgment of acquittal.

With these main arguments, learned counsel for

respondent/accused prayed to dismiss the appeal.

7. We have perused the appeal memo, judgment of the

trial court and also the evidence on record. we have re-

appreciated the evidence on record.

8. PW-1 Smt. Bharathi is the mother of deceased

Ashwini who has set criminal law in motion by lodging a

complaint as per Ex-P6. In her evidence, PW-1 has stated that

she is residing at Bagalkot. She has also stated that deceased

and accused have got a son by name Prajwal and both accused

and deceased were working at Mangaluru. She has also stated

that she has gone to the house of deceased Ashwini only once.

After delivery deceased left to her matrimonial home, she has

not gone to the house of the accused. It is further stated by her

that her son PW-6 received message regarding deceased Ashwini

sustaining burn injuries and admitted to hospital. Then herself,

her son and her brother went to Wenlock Hospital, Mangaluru

early morning at about 8:30 a.m. They found that the entire

body of deceased Ashwini was burnt. At that time, the accused,

his sister's husband, his sister were all present in the hospital.

The accused had sustained burn injuries to his hands. When she

inquired her daughter Ashwini, she informed that when she

objected her husband-accused as to why he has brought a costly

saree to his sister's daughter, the accused told her that she is

irritating a lot and he would marry another women. In this

regard, as deceased Ashwini got upset, she poured kerosene on

herself. At that time, the accused who was smoking a cigarette,

threw the cigarette on her and her clothes caught fire. PW-1

further stated that deceased Ashwini informed her that when she

was screaming for help, the accused did not rescue her. So in

this regard, when police came to the hospital, she has given

statement before them. PW-1 has further stated that her

daughter Ashwini was conscious for about an hour. She was

speaking and deceased Ashwini died on the next day. On

perusing her examination-in-chief, it is evident that PW-1 is

residing at Bagalkot. She has not visited the house of the

accused for a long time. Only once she had gone to the house of

deceased Ashwini and after birth of son prajwal, she has not

visited the house of deceased Ashwini. It is also evident that this

witness is neither an eyewitness nor she has stated any such

cruelty by the accused which would drive a woman to commit

suicide. There is no evidence regarding the type of cruelty either

physical or mental by the accused as stated by this witness

which could drive her daughter to commit suicide. So

examination-in-chief of PW-1 does not disclose any of the

ingredients alleged against the accused and her cross

examination clearly reveals that what is stated by her is not true.

Evidence of PW-1 that deceased Ashwini was conscious and she

was talking is also belied by the evidence of the official witness

Taluka Executive Magistrate and Medical Officer. In the cross-

examination, PW-1 again has stated that her daughter Ashwini

was at Hospital, other persons were also present there. PW-1 has

denied the suggestion that accused sustained injury to his hands

while trying to extinguish the fire. So evidence of PW-1 would

not help the prosecution in any way to prove any of the

ingredients of offences alleged against the accused.

9. PW-2- Basavanna Gowda has stated that accused is his

wife's brother. He has not supported the prosecution case and he

has stated that he has not seen the incident. He came to know

that deceased Ashwini set fire to herself. Thereafterwards, she

was taken to hospital and she died in the hospital. The

prosecution treated him as hostile witness. Nothing helpful to the

prosecution is elicited from him. He has stated he has not given

any statement before the police has per Ex-P8, Ex-P9 and

Ex-P10.

10. PW-3-Bimmanna Gowda is the brother of PW-2 and he

has also not supported the prosecution. He has stated that he

does not know anything about the death of Ashwini and he does

not know about any quarrel between the accused and deceased

Ashwini. The prosecution has treated him as hostile witness and

cross examined him at length, but he has clearly stated that he

has not given any statements before the police as per Ex-P11

and Ex-P12. In the cross-examination, he has stated that both

accused and deceased Ashwini were living happily.

11. PW-4- Smt. Hema is the maid servant who was

working along with deceased Ashwini in the hospital of Dr.Anitha

Hegde at Mangaluru. She has stated that she was working in the

house of Dr. Anitha Hedge and deceased Ashwini was also

working as a maid servant in the said house. She has stated that

deceased has not informed her about her family members and

she came to know that deceased Ashwini set fire to herself by

pouring kerosene and died. She has stated that she has not

given any statement before the police. The prosecution has

treated her as hostile witness and cross examined her at length,

but in the cross examination also, she has stated that she has

not given statements before the police as per Ex-P13, Ex-P14

and Ex-P15.

12. PW-5 Manjunath is the brother of deceased Ashwini. He

is also residing at Bagalkot. He has stated about the marriage

and birth of a child to deceased Ashwini and accused. He has

also stated that he came to know about deceased Ashwini

sustaining burn injury through one Basavanna Gowda on

16.01.2013 over phone at about 11.00 a.m. Then they went to

Wenlock Hospital, Mangalore Hospital next day morning. PW-5

has also stated that he enquired deceased Ashwini as to how the

incident happened. Deceased Ashwini told him that, in respect of

bringing costly saree by the accused to his sister's daughter,

there was quarrel between herself and accused and in that

regard, deceased Ashwini poured kerosene on herself and

accused set fire to her by a matchstick. Subsequently, deceased

Ashwini succumbed to the burn injuries. In the cross

examination, PW-5 has admitted that when he came to the

hospital, Doctors were present and Ashwini was taking liquid

food and the accused was also present. So evidence of PW-5 will

not inspire any confidence regarding deceased Ashwini informing

him of the incident as his evidence is totally contrary and

inconsistent with the evidence of his mother and also evidence of

other witnesses.

13. PW-6 -Gowramma is the sister of the accused who has

stated that both accused and deceased Ashwini were residing

happily and there was no quarrel between them. She has not

supported the prosecution case regarding accused setting fire to

deceased Ashwini. The prosecution has treated her as hostile

witness and cross examined her at length, but she has stated

that infact she has not given statement before the police as per

Ex-P17, Ex-P18 and Ex-P19.

14. PW-7 K. Purushottama Bandari is the owner of

Divyashakti Apartment, Hosabettu Village, Mangaluru where

deceased Ashwini and accused were residing in the labour shed.

But he has not stated about any quarrel between accused and

deceased Ashwini. So his evidence is only in respect of witness to

the scene of offence panchanama and in the cross examination

by the prosecution, he has clearly stated, he has not given

statements before the police as per Ex-P21, Ex-P22 and Ex-P23.

15. PW-8 Niranjana Shetty is also another witness for spot

panchanama Ex-P20. PW-9 Prasad is the panch for Ex-P20.

PW-10 Basappa is the witness for inquest panchanama. Their

evidence is not much helpful to the prosection to prove the

charges.

16. PW-11 Balakrishna is the medical officer of Wenlock

Hospital, Bengaluru. He has stated he received requisition from

the IO to inform whether deceased Ashwini was in a position to

give statement or not. PW-11 stated that he went to the Burns

ward and examined Ashwini, he found that Ashwini was in

semiconscious state and she was not in a position to given any

statement. Accordingly, he has given opinion about the mental

and physical condition of deceased Ashwini as per Ex-P25. So his

evidence goes against the evidence given by the brother and

mother of deceased Ashwini wherein they have stated that

deceased Ashwini was in a fit condition and she informed them

about the incident.

17. PW-13 Dr. Jagadish Rao has stated that he conducted

autopsy on the body of deceased Ashwini on 19.01.2013

between 11.45 a.m. to 1.00 p.m. and mentioned about the

injuries sustained by deceased Ashwini and opined that the total

body surface area of burn injuries sustained by Ashwini is 98%

and after referring to the injuries, he has opined that the death

of deceased Ashwini is due to complication of burn injuries

sustained over the body. He has given post-mortem report as

per Ex-P26. His evidence shows that the death of deceased

Ashwini is due to burn injuries sustained over her body which is

not disputed by the witnesses or it is not the case of anybody

that deceased Ashwini died due to some other reason.

18. PW-13 Dr. Harish Rao is a Honarary Medical Officer of

Wenlock Hospital, Mangaluru. He has examined the accused on

17.01.2013 when he came to the Wenlock hospital with a history

of burn injury and he came to know that accused sustained burn

injuries to his hands while rescuing his wife who had sustained

burn injuries. PW13 examined accused and made shara as per

Ex-P27. PW13 has clearly stated that if there is fire on the body

of a person and another tries to extinguish it by touching body,

there is possibility of sustaining said injury. So his evidence

further strengthens the defence of the accused that when he

tried to extinguish fire, he sustained burn injuries.

19. PW-14 Ashok R.K. is a clerk working at Karnataka

Bank, Mangaluru. He has stated that earlier the accused and

deceased Ashwini were residing in his house. But he has given a

totally new version stating that he received message that

Ashwini has sustained burn injury and she was admitted to

Wenlock Hospital. He went there and enquired Ashwini. She told

him that there was quarrel with regard to a saree and just to

threaten the accused, she poured kerosene on herself and at

that time, accused lit fire from cigarette. He has given contrary

evidence to that of medical evidence stating that mother of

Ashwini and brother were in hospital and her mother was feeding

bread to deceased Ashwini. It is evident from his cross-

examination that he is not having any contact with deceased and

has not seen the accused for a long time. Therefore, his evidence

is nothing but an exaggeration and it goes to show that just to

help somebody, he is giving evidence, which is totally

inconsistent with the evidence of other prosecution witnesses.

20. PW-15 Smt. Jayashree is the Women police constable

of Suratkal Police Station who handed over the deadbody of

deceased Ashwini after post-mortem examination.

21. PW-16 Sunil Kumar is the Head Constable who took

FIR-Ex-P28 to the Court.

22. PW-17 Jagadish is the police constable who took seized

material objects M.O.1 to M.O.7 to RFSL, Bengaluru.

23. PW-18 Dr. Sudhakar is the Medical Officer at Wenlock

Hospital, Mangaluru who has first seen Ashwini when she was

brought to the Hospital with burn injuries. He has stated that on

16.01.2013 at 8.55 p.m., when he was on duty, Ashwini was

brought to the hospital with a history of burns and she had

sustained burns all over her body to the extent of 90% to 95%.

Thereafterwards, she was sent to intensive care unit. In the

cross-examination, he has stated that he enquired the injured as

to how she sustained injury, she did not inform anything. So his

evidence further strengthens the defence of the accused and he

has clearly opined that if a person tries to commit suicide by

pouring kerosene on herself, such injury as per Ex-P32 could be

caused.

24. PW-19 M.A. Nataraj, Police Inspector who conducted

further investigation and filed the charge sheet.

25. PW-20 Kumareshwaran M is the Police Sub-Inspector,

Suratkal Police Station, Mangalore who received the complaint

and registered the case and conducted further investigation,

recorded statements of the witnesses. But his evidence if

compared with the evidence of other witnesses, the prosecution

witnesses have stated they have not given statement before the

police as per Ex-8 to Ex-P10, Ex-P11, Ex-P12 and Ex-P13 to

Ex-P16, Ex-P17 to Ex-P20. In the cross-examination, he has

clearly stated that when he went to the hospital, accused was

also present in the hospital and accused had sustained burn

injury to both his hands and he came to know that accused

sustained injury when he tried to extinguish fire. The evidence of

IO corroborate the defence of the accused.

26. PW-21 Ravichandra Nayak is the Taluka Executive

Magistrate of Mangalore Taluk. He stated that on 17.01.2013, he

received requisition from Suratkal Police station regarding

Ashwini taking treatment in Wenlock Hospital as she has

sustained burn injuries. He visited the Hospital and tried to put

some questions to Ashwini, but he found that she was not in a

position to answer. Accordingly, he gave report as per Ex-P35

and this evidence also goes to show that deceased Ashwini was

not conscious and was not in a position to speak anything and

she has not given any statement before anyone. This witness has

visited the Wenlock Hospital when he received the information.

27. If the entire evidence of the prosecution is perused, it

is evident that absolutely, there is no corroboration in the

evidence of the prosecution witnesses about the material

particulars. On the other hand, their evidence is full of

inconsistencies and contradictions which goes to the root of the

case. Cruelty must be as defined under section 498A IPC. In this

case, there are no eyewitnesses to say that it is the accused who

set fire to deceased Ashwini. On the other hand, the death of the

deceased Ashwini is due to burn injuries in not in dispute. It is

also evident that the accused himself took Ashwini to the

hospital, infact, he had also sustained injury to his hands.

Therefore, the version of the relatives of deceased Ashwini that

deceased Ashwini tried to commit suicide by pouring kerosene

and accused lit fire from his cigarette cannot be believed. On the

other hand, it is contrary to the evidence of IO who has stated

that he was very much present when the incident took place and

he also sustained burn injury while trying to extinguish fire.

Infact, accused was arrested from the hospital itself. He has not

gone away. The very conduct of the accused itself goes to show

that he is innocent. If at all he had committed any such act,

naturally, he could not have been there in the hospital or in the

house, he could have absconded from the spot which is normal

human tendency of a person committing crime. On the other

hand, it is the accused who tried to save Ashwini who tried to set

fire to herself and in the process he has also sustained injury.

28. It is also evident that the incident took place on a

trivial issue which is regarding purchase of a saree of higher

price to the sister's daughter of accused and a saree of lower

price to deceased Ashwini. It cannot be said as a definite reason

or cause as to why persons commit suicide. It depends upon

their position, family background, status of a person, their

mental condition and circumstances which disturbs their mind.

The hyper sensitive nature of the victims for resorting to extreme

steps, emotional, sentimental, ego factor or ironical words

cannot be termed as cause for committing suicide. It is evident

that deceased Ashwini was not in a position to speak. The

evidence of mother and brother of deceased Ashwini goes to

show that they are trying to falsely implicate the accused for the

loss of their daughter and sister respectively i.e., Ashwini. But

the medical evidence on record goes to show that deceased

Ashwini had sustained burn injury to the extent of 90-95% and a

person with such burn injury will not be in a position to give

evidence. Therefore, absolutely there is no legally admissible

evidence to believe that deceased Ashwini either informed her

mother or brother that it is the accused who set fire to her. On

the other hand, the possibility of deceased Ashwini getting

herself enraged or may be because of loosing her thinking

capacity and in emotion becoming hyper sensitive must have set

fire to herself by pouring kerosene. It is very unfortunate that

such an incident happened even though she has a small child.

29. It is settled principles of law that the prosecution has

to prove its case beyond all reasonable doubt. If there are two

views possible, then the view favouable to the accused will have

to be accepted by the court. In the light of defence taken up by

the accused, if the evidence of the prosecution witnesses is

examined meticulously, it is evident that possibility of deceased

Ashwini setting fire to herself maybe just to threaten the accused

also cannot be ruled out. When deceased Ashwini had sustained

burn injury to the extent of 92% to 95%, naturally deceased

Ashwini will not be in a position to speak and even if she has

stated anything that cannot be believed straight away without

there being any corroboration, because in this case, the only

eyewitness is the sister of the accused who is PW-6. She has not

supported the prosecution. The other circumstantial evidence

does not point out that the accused has either treated deceased

Ashwini cruelly or set fire. Therefore, the prosecution has failed

to prove that the death of deceased Ashwini is homicidal. On the

other hand, it is nothing but suicide.

30. The Hon'ble Supreme Court while considering the

statement of the injured who had sustained deep burn injuries

and appreciating such statement also stated the principles

regarding the approach of the first appellate court. Simply

because the accused have not given any explanation under 313

Cr.P.C. statement, does not absolve the prosecution of proving

its initial burden beyond all reasonable doubt. Only if the

prosecution proves its case beyond reasonable doubt, then the

burden shifts on the accused. In this regard, the Hon'ble

Supreme Court has considered the fact of non explanation of 313

Cr.P.C. statement by the accused and drawing any inference

under section 106 of Indian Evidence Act and the decision

reported in Crl.A.No.1348/2013 dated 02.03.2021 in

SHIVAJI CHINTAPPA PATIL v. STATE OF MAHARASHTRA, it

is held at para 22 as under:-

"Section 106 of Evidence Act does not directly operate against either a husband or wife staying under the same roof and being he last person seen with the deceased. Section 106 of the Evidence Act does not absolve the prosecution of discharging its primary burden of proving the prosecution case beyond reasonable doubt. It is only when the prosecution has led evidence which, if believed, will sustain a conviction, or which makes out a prima facie case, that the question arises of considering facts of which the burden of proof would lie upon the accused. In this case, the prosecution has failed to prove beyond reasonable doubt, that the death was homicidal."

31. Regarding appreciating the statement of injured who

has sustained deep burns and appreciating such statement on

dying declaration, the Hon'ble Supreme Court in a similar type of

case in SAMPAT BABSO KALE AND ANOTHER v. STATE OF

MAHARASHTRA, (2019) 4 SCC 739, wherein the injured

deceased has sustained severe burn injuries to the extent of

98% and the Supreme Court considered the nature of the burn

injury and as to whether the victim was in a fit state of mind to

make the statement with that percentage of injury, it is held in

para 16 as under:-

" In the present case, as we have already held above, there are some doubt as to whether the victim was in a fit state of mind to make the statement. No-doubt, the doctor has stated that she was in a fit state of mind but he himself had, in his evidence, admitted that in the case of a victim with 98% burns, the shock may lead to delusion. Furthermore, in our view, the combined effect of the trauma with the administration of painkillers could lead to a case of possible delusion and therefore, there is a need to look for corroborative evidence in the present case."

32. Further the Hon'ble Supreme Court in the same

decision has enunciated the principles regarding interference by

the High Court while considering the appeal against judgment of

acquittal, it is held at para 8 as under:-

"With regard to the powers of an appellate court in an appeal against acquittal, the law is well established that the presumption of innocence which is attached to every accused person gets strengthened when such an accused is acquitted by the trial court and the High Court should not lightly interfere with the decision of the trial court which has recorded the evidence and observed the demeanour of witnesses. This Court in the case of Chandrappa & Ors. v.

State of Karnataka, laid down the following principles:(SCC p.432, para 42)

"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 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 trial 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 trial court."

33. There is lot of difference between 'may be true' and

'must be true'. It is settled principle of law that the prosecution

has to prove its case beyond all reasonable doubt as alleged. If

from the evidence of the prosecution witnesses, two views are

possible, then the view favourable to the accused will have to be

accepted. Therefore, in the light of settled principles, if the

evidence of the prosecution witnesses is analysed meticulously,

then it is evident that the prosecution has failed to prove the

guilt of the accused beyond all reasonable doubt.

34. The learned sessions judge has referred to the

evidence of the eye witnesses account and considered the oral

documentary evidence and has come to the conclusion that the

evidence of the prosecution witnesses does not inspire

confidence and most of the witnesses have turned hostile or

have not supported the prosecution. Under such circumstances,

the learned sessions judge found that the prosecution has failed

to prove the guilt of the accused beyond all reasonable doubt

and giving benefit of doubt has acquitted the accused.

35. It is settled principles of law as held by the Hon'ble

Supreme Court in the case of SAMPAT BABSO KALE AND

ANOTHER v. STATE OF MAHARASHTRA1 that unless the

judgment passed by the trial court is illegal, perverse and not

based on sound principles regarding appreciation of evidence the

High Court being a first appellate court will not interfere in the

judgment of the acquittal.

36. In the light of the discussions made above and also in

the light of the principles stated in the above referred decisions,

we are of the opinion that the judgment of acquittal passed by

learned sessions judge is not illegal or capricious, hence need no

interference. Therefore, the appeal being devoid of merit is

liable to be dismissed.

In the result, we pass the following:

ORDER

1. The appeal preferred by the State under section 378(1)

and (3) Cr.P.C. is hereby dismissed.

2019) 4 SCC 739

2. Consequently, the judgment of acquittal dated 26.02.2016

passed by II Addl. District & Sessions Judge, Dakshina

Kannada, Mangaluru in S.C.No.53/2013 is hereby

confirmed.

3. Bail bond, if any, executed by the accused, the same shall

stand cancelled.

4. Send back the records to the trial court.

Sd/-

JUDGE

Sd/-

JUDGE

*mn/-