The State Of Karnataka vs K B Ganesh
2022 Latest Caselaw 3273 Kant

                          1


IN THE HIGH COURT OF KARNATAKA AT BENGALURU

       DATED THIS THE 25TH DAY OF FEBRUARY, 2022

                      PRESENT:                      R
        THE HON'BLE MR.JUSTICE K.SOMASHEKAR
                         AND
          THE HON'BLE MR. JUSTICE P.N.DESAI


         CRIMINAL APPEAL NO.1041 OF 2016


BETWEEN:

THE STATE OF KARNATAKA
BY DEPUTY SUPERINTENDENT OF POLICE,
SOMVARAPETE SUB-DIVISION,
REPRESENTED BY STATE PUBLIC PROSECUTOR,
HIGH COURT BUILDING,
BENGALURU - 571 236.
                                     ...APPELLANT
(BY SRI. RAHUL RAI K., HCGP)

AND:

1.     K.B. GANESH
       S/O. BELLIAPPA @ RAJANNA,
       AGED ABOUT 42 YEARS,
       AGRICULTURIST,
       THOLUR SHETTALLI VILLAGE,
       SOMWARPET TALUK - 571 236.


2.     SMT. LEELAVATHI @ LEELA
       W/O. KUMARA,
                            2


     AGED ABOUT 50 YEARS,
     COOLIE, THOLUR SHETTALLI VILLAGE,
     SOMWARPET TALUK - 571 236.
                                    ...RESPONDENTS

(BY SRI. D.P. PRASANNA, ADVOCATE FOR R.2;
VIDE ORDER DATED 28.01.2022, APPEAL AGAINST R.1
STANDS ABATED.)

     THIS CRIMINAL APPEAL FILED UNDER SECTIONS
378(1) AND (3) OF CR.P.C., PRAYING TO GRANT LEAVE TO
APPEAL AGAINST THE JUDGMENT AND ORDER OF
ACQUITTAL DATED 01.03.2016 PASSED BY THE I
ADDITIONAL DISTRICT AND SESSIONS JUDGE, KODAGU,
AT MADIKERI IN S.C.NO.95/2010, THEREBY ACQUITTING
THE RESPONDENT/ACCUSED OF THE OFFENCES P/U/S
498-A, 304-B, 302 AND 201 OF IPC.

     THIS CRIMINAL APPEAL COMING ON FOR HEARING
THIS DAY, K. SOMASHEKAR J., DELIVERED THE
FOLLOWING:

                     JUDGMENT

This appeal is directed against the judgment of

acquittal rendered by the First Additional District and

Sessions Judge, Kodagu / Madikeri in S.C.No.95/2010

dated 01.03.2016 for the offences punishable under

Sections 498A, 304B, 302, 201 of Indian Penal Code,

1860.

2. This appeal is filed seeking to set aside the

acquittal judgment rendered by the trial Court by

considering the grounds urged therein and to convict

the accused for the aforesaid offences for which the

charges were leveled.

3. Heard the learned HCGP for the State namely

Sri.Rahul Rai K and so also learned counsel

Sri.D.P.Prasanna for respondent No.2 who are present

before the Court physically. Perused the judgment of

acquittal rendered by the trial Court in

S.C.No.95/2010 whereby consisting the evidence of

PWs.1 to 17 and exhibited documents at Exs.P1 to 16.

4. Factual matrix of the appeal are as under:

The case of the prosecution is that on

13.05.2009 the daughter of the complainant namely

Uma was given in marriage to the accused No.1 -

K.B.Ganesh and their marriage was performed as per

the customs prevailing in their society. During her

marriage, her parents gave dowry in terms of gold

jewellery weighing 120 grams. After her marriage the

deceased - Uma went to her marital home to lead her

life. Accused No.1 - K.B Ganesh was in illicit

relationship with accused No.2 - Smt.Leelavathi who

was in house of the accused as maid/servant. Due to

the illicit relationship in between accused No.1 and 2,

the deceased - Uma was objecting accused No.1 for

the said act, who is her husband. In that regard, the

accused No.1 - K.B.Ganesh had given mental and

physical harassment by insisting her to bring dowry

from her parents house.

5. It is further stated in the theory of the

prosecution that in between 10.02.2010 to

13.02.2010 accused No.1 along with accused No.2

with an intention to eliminate the deceased - Uma,

they squeezed her neck and due to the said act

deceased lost her breath. Subsequently, the dead

body of deceased was thrown to a pond situated in

the estate of accused No.1 - K.B.Ganesh with an

intention to cause disappearance of the evidence. In

pursuance of the act of accused as alleged, PW.1 -

K.T.Manjappa who is none other than father of the

deceased - Uma filed a complaint before the

jurisdictional police and police received the complaint

at Ex.P1 and criminal law was set into motion by

recording the FIR at Ex.P14.

6. Subsequently, the case has been taken up by

the investigating agency and conducted the

investigation thoroughly as PW.15 - M.Narayan who is

the investigating officer and during the investigation

collected material documents such as marriage

invitation card at Ex.P2, Lagna Kundali at Ex.P3 and

four photos at Ex.P4. In addition to that, he

conducted seizure mahazar Ex.P6 in the presence of

PW.2, spot mahazar at Ex.P7 in the presence of PW.3

whereby they have subscribed their signature

inclusive of signature of PW.15. Inquest mahazar at

Ex.P8 was conducted in the presence of PWs.17 and 5

and they have subscribed their signatures. Post

mortem report was got marked at Ex.P10 which bears

the signature of PW.10 and FSL report at Ex.P11 have

been secured inclusive of sketch at Ex.P15 and Report

at Ex.P16 and laid the charge sheet against the

accused before the committal Court for the offences

punishable under Sections 304B, 302, 201 of IPC,

1860.

7. Subsequently, the committal Magistrate

passed an order under Section 209 of Cr.P.C by

following the requisite mandatory provisions such as

furnishing copies of the charge sheet for the purpose

of reference. The case was committed to the Court of

Sessions at Kodagu / Madikeri by initiating the trial

against the accused. Accordingly, the case in

S.C.No.95/2010 came to be registered.

8. Subsequently, heard on charge by learned

Public Prosecutor for the State and the defence

counsel for the accused and framed the charges for

the offences punishable under Sections 498A, 304B,

302, 201 read with Section 34 of IPC, 1860 and it was

read over in the language known to them. But they

did not plead guilty, but claimed to be tried. Plea of

the accused has been recorded separately.

9. Subsequently, the prosecution let in evidence

by subjecting to examination of PW.1 to 17 and also

got marked several documents at Exs.P1 to 16 but no

materials have been got marked in terms of material

objects. Subsequent to the closure of the evidence on

the part of the prosecution, the accused were

examined under Section 313 of Cr.P.C for

incriminating statements which appeared against

them in the evidence. But accused No.1 and 2 denied

the truth of the evidence on the part of the

prosecution adduced so far. Subsequent to recording

incriminating statements as contemplated under the

relevant provisions of Cr.P.C, accused were called

upon to enter into defence evidence as contemplated

under Section 233 of Cr.P.C. But Accused did not

come forward to adduce any defence evidence.

10. Subsequent to closure of evidence on part of

the prosecution, the trial Court heard the arguments

advanced by the learned Public Prosecutor and so

also, counter arguments advanced by the defence

counsel for the accused. On close scrutiny of the

evidence and so also on analysing the evidence let in

by the prosecution such as PWs.1 to 17 and so also

documents at Exs.P1 to 16 and having been convinced

that the prosecution did not facilitate worthwhile

evidence to prove the guilt of the accused, the trial

Court rendered acquittal judgment for the offences

punishable under Sections 498A, 304B, 302, 201 of

IPC, 1860. The said judgment is under challenge in

this appeal by urging various grounds.

11. Learned High Court Government Pleader

namely Sri. Rahul Rai K., has taken us through the

evidence of PWs.1 to 17 and so also several

documents got it marked wherein the trial Court has

rendered an acquittal judgment, which is contrary to

the oral evidence adduced by the prosecution and so

also the documentary evidence in terms of the

exhibited documents on record. Both the accused

have committed the murder of the deceased Uma by

compressing her neck with an intention to eliminate

her. Accused No.1- K.B.Ganesh and accused No.2,

who is a maid servant were having some illicit

relationship. On this premise the learned High Court

Government Pleader is seeking to set aside the

acquittal judgment on re-appreciation of the evidence

and so also, material documents, wherein the trial

Court has not properly appreciated the evidence even

though positive evidence has been adduced by the

prosecution to convict the accused for the offences

charged against them. But the Trial Court has given

more importance to some sort of minor discrepancies

which arose in the evidence of the prosecution in the

examination-in-chief but given more credentiality to

the cross-examination part and relying upon some

technicalities and rendered acquittal judgment on the

ground of benefit of doubt and the same has been

extended to the accused by acquitting them and it is

not just and proper.

12. The second limb of the argument that has

been advanced by referring to the evidence of PW.1,

who is none other than the father of deceased Uma

and PW.2 who is none other than the brother of the

deceased and so also PWs.8 and 9 being the sisters of

deceased Uma. They have been subjected to

examination on the part of the prosecution and they

have categorically stated in their evidence which is in

conformity with the statements made by them, which

is recorded by the Investigation Officer during the

course of the investigation and more so, they have

stated in their evidence in respect of the marriage of

deceased Uma with accused No.1- K.B.Ganesh and

subsequently, her husband i.e., accused No.1-

K.B.Ganesha developed some sort of illicit relationship

with accused No.2 being a maid servant, but for that

illicit relationship, the deceased was raising her

objections and consequently both accused Nos.1 and

2 hatched conspiracy to eliminate the deceased as

their way has to be cleared to continue the illicit

relationship in between them. These grounds are

urged by the learned HCGP for the State and even the

evidence as let in by the prosecution has been

sufficient to prove the guilt of the accused and also

adequate for convicting the accused for the offences

punishable under Section 498A of IPC relating to

physical as well as mental harassment which has been

extended by accused No.1-K.B.Ganesha and also

causing harassment by accused No.2 as she being the

maid servant in the house of the deceased as well as

in the house of accused No.1. But the trial Court

ignored all these evidence while rendering the

acquittal judgment, which has resulted in substantial

miscarriage of justice.

13. Lastly, the learned HCGP has taken us

through the evidence of PW.1 and the evidence of

PW.6 being an independent witness, but PW.1 is an

author of the complaint at Ex.P1 and they have

stated in their evidence that both accused Nos.1 and 2

as according to their meeting of mind and also

according to their intention that they have eliminated

the deceased - Uma by compressing her neck on the

fateful day in between 10.02.2010 and 13.02.2010

that the offence is alleged to have been committed by

them i.e., accused Nos.1 and 2, but the trial Court has

failed to appreciate the evidence of the prosecution in

a proper perspective. Therefore, in this appeal, it

requires to re-appreciate the evidence whereby the

Trial Court has misdirected to arrive at a proper

conclusion and has acquitted the accused for offences

under Sections 498A, 304B, 302 and 201 of Indian

Penal Code, 1860. On all these premises, the learned

High Court Government Pleader for the State

submitting stoutly and seeking consideration of the

grounds urged in this appeal and consequently, to set

aside the acquittal judgment rendered by the trial

Court in S.C. No.95/2010 dated 01.03.2016 and to

convict the accused for the offences which are

charged against them.

14. Learned counsel Sri D.P.Prasanna for

respondent No.2/accused who is present before the

Court physically has countered the arguments

advanced by the learned High Court Government

Pleader for the State and contends that accused No.2

- Smt.Leelavathi @ Leela was by avocation a maid

servant in the house of accused No.1 - K.B.Ganesh

who is none other than the husband of deceased Uma,

but there is no direct overt act attributed against this

accused and more so, this accused is not at all

responsible to cause the death of the deceased even

in respect of offences under Sections 498A and 304B

of Indian Penal Code, 1860 relating to dowry death

and even diluting the offences under Section 302 of

Indian Penal Code, 1860 inclusive of 201 of Indian

Penal Code for causing disappearance of the evidence

in order to screening from the legal punishment. On

these premise the learned counsel for respondent

No.2/accused No.2 has taken us through the role

made by this accused and so also the role relating to

accused No.1. But, accused No.1-K.B.Ganesh has

died during the pendency of the proceedings i.e. this

appeal proceeding and therefore the case against him

stood abated. But the entire case rests upon the

circumstantial evidence. There is no eye witness to

the incident. More so, there is no chain of link of

circumstances strongly to prove the guilt of the

accused. But deceased Uma is none other than the

wife of accused No.1-K.B.Ganesh and taken the

contention that she was suffering from some sort of

epilepsy and for that reason only she herself fell into

the pond and unable to bear the pain at the time of

epilepsy attack and died. This is the main ground

urged by the learned counsel for respondent

No.2/accused No.2 and even narrating the written

arguments that has been submitted in

S.C.No.95/2010. However, on carefully going through

the written arguments submitted by the defence

counsel and also the role of each one of the accused

and the main role of accused No.2, it is seen that

PW.1 and PW.2 though being the parents of the

deceased, no evidence has been let in on the part of

the prosecution relating to harassment for dowry

made by accused No.1 - K.B.Ganesh who is none

other than the husband of the deceased. If really

dowry harassment has been made by accused No.1-

K.B.Ganesh, PW.6 who has been subjected to

examination no cross-examination has been done and

nothing has been elicited from him to prove the guilt

of the accused. Consequently, no worth while

evidence has been let in by the prosecution to prove

the guilt against the accused. But, the version is

within the purview of hearsay evidence on the part of

the prosecution. But, PW.2 who has been subjected

to examination and even stood for cross-examination

has admitted in his evidence that he has not stated

before the police in respect of causing dowry

harassment by accused No.1 - K.B.Ganesh and

extending cruelty to the deceased. In the absence of

the strong evidence in terms of a statement, then the

version regarding dowry harassment caused by

accused No.1 - Ganesh to deceased Uma is nothing

but far from truth of the allegations.

15. The second limb of the arguments have been

advanced stoutly relating to proving the guilt of the

accused that accused No.1 and 2 have compressed

the neck of the deceased and caused her death and it

is in terms of eliminating the deceased and thereafter

the dead body has been carried and thrown into the

pond which was situated in the estate of accused No.1

- K.B.Ganesh. But there is no direct evidence

available on the part of the prosecution to prove the

offence under Section 498A of Indian Penal Code and

even dowry harassment and cause of death for the

offence under Section 304B of Indian Penal Code and

even the offence under Section 302 of Indian Penal

Code for murder and so also disappearance of the

evidence of the prosecution witnesses. These are all

the evidence that has been considered and also

observed by the trial Court meticulously and has

arrived at the conclusion that the prosecution did not

prove the guilt of the accused that the accused have

caused the death of the deceased and more so with

the help of accused No.2 that accused No.1-

K.B.Ganesh has committed the murder of his wife as

there was some illicit relationship in between accused

No.1 and accused No.2-Smt. Leelavathi @ Leela by

avocation as a maid servant in their house.

16. The prosecution has let in evidence by

securing several witnesses but, PW.2 has turned

hostile and his evidence will not help or assist the

prosecution to any extent even as regards the

mahazar where the dead body of the deceased was

floating in the pond situated in the estate of accused

No.1. This version is also not sufficient to connect

accused Nos.1 and 2 that caused the death of the

deceased or her fall into the pond or even eliminating

her by compressing her neck. In so far as the

evidence of PW.3 relating to drew the mahazar in her

presence who is a cousin sister of the deceased but

there is no element of evidence of PW.3. When PW.4

and PW.5 let in the evidence and inquest mahazar has

been held over the dead body of the deceased as per

Ex.P8 in the presence of PW.17 being a responsible

Taluk Executive Magistrate and thereby subscribing

the signature of PW.5, but PW.17 and PW.5 did not

withstood the fulcrum of the inquest mahazar at Ex.P8

conducted. PW.7 has stood for cross-examination and

has admitted that he came to know through the

villagers regarding elimination of Uma who is none

other than the wife of accused No.1-K.B.Ganesh and

threw her dead body into the pond situated in the

estate of accused No.1. Even the evidence of PW.7

namely K.S. Paramesh is not helping or assisting the

prosecution version.

17. PW-8 is the sister of the deceased who is a

hearsay witness and there is no availment of her

evidence on the part of the prosecution, though being

an interested witness.

18. PW.9 who is also one of the sisters of the

deceased and her evidence is also not availment on

the part of the prosecution and more so both PW.8

and PW.9 being the sisters and also having some

interest relating to the death of their sister namely

Uma.

19. PW.13 being the Medical Officer,

Dr.Venkatesh who conducted autopsy over the dead

body and issued the Post-Mortem Report and also

subjected to examination on the part of the

prosecution. Even during conducting autopsy on the

dead body, he did not notice any fatal injuries on the

person of the deceased but he has unequivocally

stated in his evidence that he is unable to give

reasons for cause of the death of the deceased. Even

receiving the FSL report at Ex.P11, he was unable to

give the cause of the death of the deceased - Uma,

but the entire case rests upon circumstantial evidence

and even the medical evidence that is the post-

mortem report issued by PW.13 and he has admitted

in his evidence that if a person suffers with epilepsy

and also attacked by epilepsy, it could be possible to

come out of the tank at the time of fetching the water

and might be fell into the pond. The features narrated

by the doctor has been taken into consideration by the

trial Court while rendering the acquittal judgment and

the version of PW-13 goes against the prosecution

theory and to disagree with the prosecution case that

both accused No.1 - K.B.Ganesh and accused No.2 -

Leelavathi @ Leela being maid servant, compressed

the neck of the deceased-Uma and committed her

murder.

20. Lastly, the counsel submits by referring to

the evidence of PW.15 being an Investigating Officer

who has conducted the entire investigation by

following the mandatory provisions of Section 173(2)

of Cr.P.C. and he received the inquest mahazar from

PW.17 being the Tahsildar who conducted inquest

over the dead body of Uma in the presence of the

panch witnesses and post-mortem report from PW.13

being a Medical Officer and recording the statement of

witnesses relating to the allegations made in the

complaint at Ex.P.1 and this complaint has been filed

by K.T.Manjappa who is none other than the father of

the deceased-Uma. But as already stated that several

witnesses have been examined including the sister of

the deceased, but they could not withstand by

supporting any independent witnesses and more so,

all the evidence of the aforesaid witnesses are found

to be inconsistent with each other. Even the role

made by accused No.2-Leelavathi @ Leela by

avocation as a maid servant in the house of the

deceased-Uma who developed an illicit relationship

with accused No.1-K.B.Ganesh and as regards the fact

that the deceased was raising some objections and

thereafter both the accused by meeting of their mind

and eliminating the deceased is the theory of the

prosecution, but there is no strong evidence or

acceptable evidence relating to the role of accused

No.2 in assistance with accused No.1 to eliminate the

deceased as there was some illicit relationship in

between them. Even on considering the evidence

facilitated by the prosecution, it is seen that the

prosecution has utterly failed to bring out the guilt of

the accused that accused No.1- K.B.Ganesh and

accused No.2-Leelavati @ Leela had an illicit

relationship which was the cause for the deceased to

become depressed. Even there is no evidence as

regards extending dowry harassment in terms of

physical as well as mentally to the deceased and so

also both the accused Nos.1 and 2 have according to

their meeting of minds, by compressing the neck of

the deceased to eliminate her and thereafter thrown

her dead body into the pond situated in the estate of

accused No.1 to cause disappearance of evidence in

order to screen from legal punishment. These are all

the observations made by the trial Court while

rendering an acquittal judgment by even consideration

of the citations facilitated by the prosecution which

has been stated in para No.27 of the impugned

judgment of acquittal rendered by the trial Court. On

all these premise learned counsel for respondent

No.2/accused No.2 emphatically submits in this appeal

preferred by the State that the judgment of acquittal

rendered by the trial Court does not arise for

intervention. Consequently, he prays that the appeal

be dismissed as being devoid of merits.

21. In the light of the stout contentions made by

the learned High Court Government Pleader for the

State by referring the evidence of PW.1 and also the

allegations made in the complaint at Ex.P.1 and so

also the fulcrum of the seizure mahazar at Ex.P.6

conducted by PW.15 in the presence of PW.2 -

D.S.Basavaraju and so also the fulcrum of the spot

mahazar at Ex.P.7 conducted by PW.15 in the

presence of PW.3-H.M. Lokesha and so also the

statement of PW.12 inclusive of the post-mortem

report at Ex.P.10 which bears the signature of PW-10

at Ex.P10(a), signature of the Assistant Doctor at

Ex.P10(b) and the relevant portion of the PM report at

Exhibit P10(c). These are all the evidence that have

been referred by the learned High Court Government

Pleader for the State by referring to the allegations

made in the complaint at Ex.P1 and so also the

fulcrum of the facts in the aforesaid mahazar which

are in conformity with the prosecution case and so

also in conformity with the grounds as urged in this

appeal seeking intervention, but does not hold any

substance for intervention.

22. As already stated the learned counsel for

respondent No.2 has stoutly countered to the

arguments advanced by the learned High Court

Government Pleader for the respondent - State. But

accused No.2 by avocation was a maid servant in the

house of accused No.1- K.B.Ganesh and deceased

Uma was his wife. But accused No.2 by avocation was

a maid servant in their house and she had to do the

work as according to their instructions. But in the

instant case, the criminal law was set into motion

based upon a complaint made by P.W.1-Manjappa

K.T. as per Ex.P.1 who is none other than the father of

the deceased. But Section 498-A of IPC is in respect of

physical as well as mental harassment and this sort of

harassment was neither extended by accused No.1-

K.B.Ganesh nor even extended by accused No.2-Smt.

Leelavati @ Leela, it cannot be a truthful version. But

accused No.2 was only a maid servant. Even taking

into consideration the explanation (a) and explanation

(b) of Section 498A and even conjointly reading the

contents, the question of physical and mental

harassment should have been meted out to the

deceased by her husband and also the relatives of her

husband. But accused No.2 is a maid servant and

ingredients of Section 498A of IPC even extendable in

between accused Nos.1 and 2 and even extendable for

the offences under Section 304B of IPC but these

offences have not been proved by the prosecution. It

is against accused No.1- K.B.Ganesh who is none

other than the husband of the deceased-Uma and

there is no strong evidence that has been facilitated

by the prosecution in so far as the main offences

under Section 302 of Indian Penal Code, 1860 and

consequently diluting the evidence of Section 201 of

Indian Penal Code, 1860, relating to carrying the dead

body of Uma and having thrown into the pond situated

in the estate of accused No.1- K.B.Ganesh. However,

at a cursory glance of evidence of P.W.1 in respect of

Ex.P.1 of the complaint and even the evidence of

P.Ws.7, 8 and 9 but even at a cursory glance of the

entire evidence, even on close scrutiny, it does not

give any credentiality or weightage for consideration

on the part of the prosecution that accused Nos.1 and

2 as according to meeting of their mind had

eliminated the deceased-Uma due to an illicit

relationship developed in between accused No.1-

K.B.Ganesh and Accused No.2-Smt.Leelavath @ Leela.

Though the Criminal law was set into motion by

recording FIR as per Ex.P.14, it bears the signature of

P.W.14-Suresh Kumar being a PSI and whereby

criminal law was set into motion but thereafter the

case was taken up for investigation by P.W.15 being

an Investigating Officer and who laid the charge sheet

against the accused consisting the seizure mahazar,

spot mahazar and inquest mahazar inclusive of Post

mortem report Ex.P.10 and such other reports as FSL

report at Ex.P.11. Even P.W.15 has been subjected to

examination on the part of the prosecution and even

though he is an Investigating Officer, his evidence has

not been supported by the evidence of the

independent witnesses inclusive of the material

witnesses of P.Ws.1 and 7, 8 and 10.

23. Respondent No.2 who is arraigned as

accused No.2 and more so by avocation as a maid

servant in the house of the deceased and even the

deceased was raising an objection alleged to have

noticed the illicit relationship developed and also

continued in between accused No.1- K.B.Ganesh and

accused No.2-Smt.Leelavathi @ Leela. But this theory

finds place in the materials of the prosecution. Merely

because it is averred that there was some kind of an

illicit relationship between accused Nos.1 and 2, it

cannot be taken into consideration unless there is

strong evidence produced on the part of the

prosecution to prove the guilt in order to secure

conviction as contended by the prosecution. But

P.Ws.4 and 5 who are the panch witnesses relating to

the inquest mahazar at Ex.P.8 which has been

conducted. But these witnesses even though have

been subjected to examination, their evidence is of no

avail as they are formal witnesses. The responsible

Taluka Executive Magistrate is examined as P.W.17 in

respect of inquest mahazar which has been held as

the deceased-Uma had died within a span of seven

years from the date of her marriage and more so for

the offences under Section 304-B of Indian Penal

Code, 1860, relating to dowry death. Even at a

cursory glance of the evidence of P.W.7, 8 and P.W.9,

it is seen that nothing worth while has been elicited in

the examination-in-chief done by the prosecution in

the evidence of P.W.7, P.W.8 and P.W.9 inclusive of

the evidence of P.W.10, P.W.11 and P.W.12. But

these P.W.10 to P.W.12 are the neighbourers and they

have stated in their evidence that they came to know

that the accused has eliminated the deceased and

thrown the dead body into the pond of the estate of

accused No.1- K.B.Ganesh but these witnesses have

been treated hostile and thereafter has been

subjected to incisive cross-examination by the

prosecution. But nothing worthwhile has been elicited

from the evidence of P.W.10, P.W.11 and P.W.12 to

connect the accused to prove that the accused caused

the death of the deceased and so also there was some

illicit intimacy in between accused No.1- K.B.Ganesh

and accused No.2-Smt.Leelavati @ Leela. Merely

because an allegation is made in the theory of the

prosecution and even the contents of the prosecution,

but unless strong evidence is produced on behalf of

the prosecution, the same cannot be given

credentiality and it cannot be said that the prosecution

has proved the guilt of the accused beyond all

reasonable doubt.

24. At a cursory glance of the evidence of the

witnesses even having gone through the acquittal

judgment rendered by the trial Court relating to the

offence of 498A i.e. Physical as well as mental

harassment alleged to have extended by accused

No.1- K.B.Ganesh who is no other than the husband

of the deceased-Uma and even dowry harassment of

the offences under Section 304-B of IPC and

harassment having been extended by accused No.1 -

K.B.Ganesh to his wife Uma by insisting her to bring

dowry from her parents house, the prosecution has

not facilitated worthwhile evidence in respect of these

two counts of an offences of 498-A and 304-B of IPC

and consequently, the Trial Court has rendered

acquittal judgment in view of the fact that the

prosecution has failed to establish the guilt against the

aforesaid two sections relating to accused No.1 &

accused No.2. Consequently, diluting the main

offences of 302 of IPC even consideration of the

evidence in respect of both accused No.1- K.B.Ganesh

and accused No.2 - Smt Leelavati @ Leela but the

role of accused No.2 does not find place on the part of

the prosecution directly or even that she assisted

accused No.1 to carry the dead body of Uma to the

pond situated in the estate of accused No.1 so as to

cause disappearance of evidence in order to screen

from the legal punishment. But PW.1- K.T. Manjappa

who received the telephonic call message regarding

the floating of the dead body of his daughter Uma in

the pond situated in the estate of accused No.1-

K.B.Ganesh who is none other than his son-in-law.

This version is also not helpful to connect the accused

that accused are caused the death of the deceased

and also eliminating the deceased as there was

meeting up of minds in between accused No.1 and

accused No.2 to clear the way to continue the illicit

relationship which alleged to have developed in

between accused No.1 and accused No.2. Even on

consideration of the evidence of PW.2 who is a brother

of the deceased, it is seen that he did not know

whether the deceased-Uma extended harassment by

the accused but he had only heard from PW-1

Manjappa about the accused extending harassment to

deceased. Even if the entire version of PW.2 is to be

considered, it does not fully assist the case of the

prosecution. He has given a statement and even the

police have drawn the mahazar where the dead body

of deceased Uma was floating in the pond situated in

the estate of accused No.1 - K.B.Ganesh. Even this

version is also not sufficient to connect the accused

that both the accused Nos.1 and 2 had a intention to

eliminate the deceased Uma by chocking her throat

that it is in terms of compressing her neck and

committed murder and thereafter the dead body has

been carried by them and thrown into the pond

situated in the estate of accused No.1- K.B.Ganesh.

25. In the instant case, accused No.1 who died

during the course of the pendency of this appeal, even

appeal is nothing but a continuity of the proceedings

and vide order dated 28.01.2022, appeal against

respondent No.1/accused stood abated. At a cursory

glance of the entire evidence and even in terms of re-

appreciating the evidence, it cannot be said that the

Trial Court was misdirected or even has

misinterpreted the evidence on the part of the

prosecution. Even taken to consideration the

evidence, it is said that the prosecution has not been

able to prove the guilt of the accused by facilitating

worthwhile evidence in terms of positive, cogent and

corroborative evidence to probabalise that the accused

were responsible for the death of the deceased Uma

by extending physical as well as mental harassment

meted to her by her husband accused No.1 and even

with the assistance of accused No.2 that accused No.1

and 2 jointly compressed the neck of the deceased

Uma and eliminated her and thereafter had carried the

dead body of Uma and thrown it into a pond situated

in the estate of the accused No.1. Unless, worth while

evidence is facilitated on the part of the prosecution, it

cannot arise for securing the conviction as contended

by the prosecution. But the trial Court has considered

the entire evidence on the part of the prosecution in a

proper perspective and has rightly come to the

conclusion and held that the prosecution has failed to

prove the guilt of the accused beyond all reasonable

doubt. If doubt arises in the mind of the court, that

benefit of doubt ought to be extended to the accused

alone, which is the doctrine of criminal justice delivery

system. Accordingly, the trial Court has rightly come

to the conclusion by rendering an acquittal judgment.

26. However in the instant case, it is required to

refer to the important concept of last seen theory.

The last seen theory relating to accused No.1-

K.B.Ganesh who is none other than the husband of

the deceased - Uma and accused No.2 - Smt

Leelavati @ Leela who was by avocation a maid

servant in their house. Whether the last seen theory

is to be taken into consideration in respect of illicit

relationship in between them for even both of them

together having committed heinous offences under

Section 302 by compressing her neck intentionally to

eliminate deceased-Uma to clear their way to continue

their illicit relationship. But there is no strong

evidence on the part of the prosecution and the same

can be seen in the evidence itself. In the instant case,

it is relevant to refer to the case of 1984(4) SCC 116

of Sharad Birdhi Chand Sarda vs. State of

Maharashtra wherein the Hon'ble Supreme Court has

extensively addressed the issues relating to the

circumstantial evidence under the provisions of

Evidence Act, 1872 and so also the concept of benefit

of doubt that it is relevant to refer in a criminal trial

benefit of doubt, when any fact alleged by the

prosecution turns doubtful, the benefit of doubt should

go to the accused and not the prosecution. It has

been extensively addressed at para Nos.121 and 142.

27. In the same reliance, in a criminal trial

relating to appreciation of evidence, testimony of a

fact militating against norms and culture of Indian

society ought to be rejected and this issue was also

extensively addressed at Para Nos.62 and 87. Even in

a criminal trial in so far as the witnesses status related

witnesses, the testimony of the related witnesses

should be scanned with a great caution and care.

28. Whereas in the same reliance at para No.162

it is held that "Moreover in M.G.Agarwal's case this

Court while reiterating the principles enunciated in

Hanumantha case wherein it observed thus:

" if the circumstances proved in the case are consistent either with the innocence of the accused or with his guilt then the accused is entitled to the benefit of doubt. "

In the same reliance, referred the case of

Shankar Lal this Court reiterated the same view thus:

in    SCC    para    Nos.31        and    34    page    No.44

equivalent SCC (Crime) page 322

          Legal     principles      are        not     magic

confrontations and their importance lies more in their application to a given set of facts than in their recitals in the judgment.

Further at Para No.163 it is held as under:

We then pass on to another important point which seems to have been completely missed by the High

Court. It is well settled that where on the evidence two possibilities are available or open, one which goes in favour of the prosecution and the other which benefits the accused, the accused is undoubtedly entitled to the benefit of doubt. In the case of Kaliram vs. State of Himachal Pradesh, this Court made the following observation reported in SCC (Crime) 1060:

Another golden thread which runs through the web of the 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 two is innocent the view which is favourable to the accused should be adopted. This principal has a special relevance in cases wherein the guilt of the accused is sought to be established by a circumstantial evidence. "

29. In the instant case, deceased - Uma who is

no other than the wife of accused No.1- K.B.Ganesh

and whereby she suffered with epilepsy. When there

was an epilepsy in her sufferance quite natural we

cannot expect of her mood, this can also be inferred in

entirety in the evidence of the prosecution and also in

the totality of the circumstances of the cases that a

prudent man can infer that even the death would

cause but it is only a medical evidence which has to

be established on the part of the prosecution. But in

the entire case of the prosecution even at a cursory

glance it can be said that the prosecution has failed to

establish the guilt against the accused by facilitating

the worthwhile evidence. Accordingly, the trial Court

has rightly extended the benefit of doubt and

rendered acquittal judgment.

30. Even on a close scrutiny of the evidence of

the prosecution adduced so far and even the main

evidence of PW.1 who is an author of the complaint at

Ex.P1 and even the evidence of PW.2 who is the

brother of the deceased inclusive of her sister PW.8

and PW.9 and so also the medical evidence relating to

the autopsy over the dead body conducted and even

on re-appreciation of the evidence by referring the

exhibited documents, nothing has been shown to

prove that the trial Court was misdirected in acquitting

the accused and also not given any credentiality to the

prosecution witnesses, as contended by the

prosecution. More so, there is no perversity or

absurdity to say that there is no application of mind

by the trial Court to consider the evidence. On an

overall consideration of the evidence and on a totality

of the circumstances, it is said that the testimony of

the material evidence let in by the prosecution has

been rightly considered by the trial Court and an

acquittal judgment has been rendered. Therefore, we

are of the opinion that the appeal deserves to be

rejected as being devoid of merits. In terms of the

aforesaid reasons and findings, we proceed to pass

the following:

ORDER

The appeal preferred by the appellant/State

under Section 378 (1) and (3) of Cr.P.C is hereby

rejected. Consequently, the acquittal judgment

rendered by the trial Court in S.C.No.95/2010 dated

01.03.2016 is hereby confirmed.

Bail bonds, if any, executed by the accused shall

stands cancelled.

Sd/-

JUDGE

Sd/-

JUDGE

RJ/HB