The State By Mysore vs Sri Bhirava @ Bhirappa
2022 Latest Caselaw 70 Kant

                                                   R
     IN THE HIGH COURT OF KARNATAKA AT BENGALURU

        DATED THIS THE 04TH DAY OF JANUARY, 2022

                        PRESENT

         THE HON'BLE MR. JUSTICE K. SOMASHEKAR

                          AND

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

            CRIMINAL APPEAL NO.196/2016

BETWEEN:
THE STATE BY MYSORE,
SOUTH POLICE STATION,
MYSORE-570 005.
REPRESENTED BY SPP
HIGH COURT,
BENGALURU.
                                           ... APPELLANT
(BY SRI. RAHUL RAI. K, HCGP)

AND:

1.     SRI. BHIRAVA @ BHIRAPPA,
       S/O. PUTTAMADANAYAKA,
       AGED ABOUT 33 YEARS,
       R/AT. KUMBARAKOPPALU VILLAGE,
       MYSORE-570 005.

2.     SMT. PUTTAMMA,
       W/O. PUTTAMADANAYAKA,
       AGED ABOUT 55 YEARS,
       R/AT. KUMBARAKOPPALU VILLAGE,
       MYSORE-570 005.
                             2



3.   SMT. ANITHA,
     W/O. MAHESHA,
     AGED ABOUT 40 YEARS,
     R/AT. KUMBARAKOPPALU VILLAGE,
     MYSORE-570 005.
                                         ... RESPONDENTS

(BY SRI. A.G. SRIDHAR, ADV FOR R1-R3)

     THIS CRIMINAL APPEAL IS FILED UNDER SECTION
378(1) AND (3) CR.P.C BY THE S.P.P. FOR THE
APPELLANT/STATE PRAYING THAT THIS HON'BLE COURT MAY
BE PLEASED TO      a) GRANT LEAVE TO APPEAL AGAINST THE
JUDGMENT AND ORDER OF ACQUITTAL DATED 31.07.2015
PASSED BY THE V ADDL. DIST. AND S.J., MYSORE IN
S.C.NO.5/2011,        THEREBY,     ACQUITTING        THE
RESPONDENT/ACCUSED FOR THE OFFENCE P/U/S 498-A,306
AND 304(B) R/W 34 OF IPC AND SEC.3, 4 AND 6 OF D.P. ACT.
b) SET ASIDE THE JUDGMENT AND ORDER OF ACQUITTAL
DATED 31.07.2015 PASSED BY THE V ADDL. DIST. AND S.J.,
MYSORE IN S.C.NO.5/2011, THEREBY, ACQUITTING THE
RESPONDENTS/ACCUSED FOR THE OFFENCES P/U/S 498-A,
306 AND 304(B) R/W 34 OF IPC AND SEC.3, 4 AND 6 OF D.P.
ACT, BY ALLOWING THIS CRL.A. AND c) CONVICT AND
SENTENCE THE RESPONDENT/ACCUSED FOR THE OFFENCE
P/U/S 498-A, 306 AND 304(B) R/W 34 OF IPC AND SEC.3, 4
AND 6 OF D.P. ACT.

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


                       JUDGMENT

This appeal is preferred by the State challenging the

judgment and order of acquittal rendered by the 5th

Addl. District and Sessions Judge, Mysore in

S.C.No.5/2011 dated 31st July 2015 and whereby held

acquittal of the accused for the offences punishable under

Sections 498A, 306 and 304B r/w 34 of Indian Penal

Code (for short hereinafter referred to as 'IPC') inclusive

of Sections 3, 4 and 6 of Dowry Prohibition Act. Whereas,

under this appeal, the State is seeking for intervention

and consequently for setting aside the judgment of

acquittal rendered by the trial court and for convicting the

accused for the aforesaid offences by consideration of the

grounds as urged in this appeal.

2. Heard learned HCGP for State - appellant Sri.

Rahul Rai and learned counsel Sri. A.G. Sridhar, for

respondent Nos.1 to 3 who are present before the court

physically. Perused the judgment of acquittal rendered by

the trial court in S.C.No.5/2011 consisting the evidence

of PWs-1 to 33 and exhibited documents at Exs-P1 to P40

inclusive of MO-1 to 5 and Ex-D1 contradictory

statement of PW-2.

3. The factual matrix of the appeal are as under:-

In the month of November 2008, deceased

Manjula was given in marriage with the accused Bhairava

@ Bhairappa, S/o. Puttamadanayaka as per the customs

prevailed in their community. During her marriage talks

in the month of May 2008, the accused demanded to give

dowry in terms of cash of Rs.1.00 lakh, 50 grams of gold

jewellery, one motor cycle, clothes and a wrist watch. In

the mean-while, PW-7 - father of deceased Manjula

expressed his inability to fulfill the demand of dowry

made by the parents of the bridegroom, but considered

for providing dowry in terms of Rs.50,000/-, 35grams of

gold jewellery, one motor cycle, wrist watch and clothes.

Accordingly, during her marriage with accused No.1, the

aforesaid dowry has been given to him. Accordingly, her

marriage was performed with the first accused on

24.11.2008 at Nataraja Kalyana Mantapa, Mysore as per

the customs prevailed in their community. Subsequent to

her marriage, she had been to her matrimonial house to

lead life with her husband and his family members

consisting of his mother who is arrayed as accused No.2,

accused No.3 who is his sister who got married with one

Mahesha.

4. Subsequently, deceased Manjula led happy marital

life with her husband for two to three months. When she

was residing in the house of her husband at

Kumbarakoplu in Mysuru along with his family members,

accused used to demand her to bring additional dowry in

terms of cash of Rs.50,000/- and used to harass her by

extending physical as well as mental harassment. Such

act of harassment extended by her husband and also his

mother as well as his sister had been briefed to her

parents. There was some advice made to accused No.1,

inclusive of accused No.3, who alleged to have been

extending physical and mental harassment to her. Due

to the harassment meted out at the hands of her

husband as well as accused Nos.2 and 3, deceased -

Manjula committed suicide by hanging in her matrimonial

home.

5. It is further stated that on 20.12.2009, CW-4

Huchaiah at around 1.00 p.m., brought deceased Manjula

from her husband's house and being unable to bear

physical as well as mental harassment meted out to her

relating to demanding of dowry, though CW-3 consoled

her, on the same day at about 4.30 p.m., when nobody

was present in her parents' house, she committed suicide

by hanging to the wooden beam in her parents' house

and her death had occurred within a span of seven years

from the date of her marriage due to physical as well as

mental harassment.

6. In pursuance of the act of the accused and also on

filing of the complaint by PW-1 who is none other than

brother of the deceased who had initiated criminal

prosecution against the accused by registering a case in

Cr.No.373/2009 for the aforesaid offences, subsequent to

registration of the crime, the jurisdictional police

proceeded with the case for investigation by holding

inquest over the deadbody of Manjula in presence of

Tahasildhar/Executive Magistrate, during inquest,

Tahasildhar had recorded the statement of relatives of

the deceased.

7. PW-31 C. Jagadeesh who is PSI and also

Investigating Officer in part recorded the FIR as per Ex-

P34 and also held inquest over the deadbody of Manjula

and issued report as per Ex-P36 with his signature.

8. Subsequent to holding inquest over dead body of

Manjula, dead body was sent to Doctor to conduct post-

mortem examination. Accordingly, PW-25 Dr. T.N.

Chandrashekar held autopsy over the deadbody as per

Ex-P30 which bears his signature. It is further stated that

PW-32 C.G. Jagadeesh who is an IO in part went to the

scene of offence and drew mahazar, wherein criminal law

was set into motion by registering the case against the

accused by filing an FIR as per Ex-P34.

9. PW-33 K.A. Nanaiah who is an I.O. completed the

investigation by collecting material documents and so

also secured inquest mahazar as per Ex-P14, whereby

PWs-8 and 10 subscribed their signatures at Ex-P14(a)

and Ex-P14(b). He recorded the statement of the

witnesses during the course of investigation and after

completion of investigation, IO laid the charge sheet

against the accused before the committal court.

Subsequent to laying of the charge sheet against the

accused, that the committal court had passed an order

under section 209 Cr.P.C. by following the provisions of

sections 207 and 208 Cr.P.C. and consequently case has

been committed in the court of Sessions for trial.

Subsequent to committing the case to the Court of

Sessions for trial, whereby the accused have been

secured by the sessions court, framed the charges

against the accused for the offences punishable under

sections 498A, 306, 304-B IPC, 1860, besides sections 3,

4 and 6 of Dowry Prohibition Act, 1961.

10. The accused did not plead guilty and claimed

to be tried. Accordingly, the plea of the accused have

been recorded as per law.

11. Subsequent to closure of the evidence on the

part of the prosecution, incriminating statement as

contemplated under section 313 Cr.P.C. has been

recorded and whereby the accused have denied the truth

of the evidence of the prosecution. Subsequently, the

accused have been called upon to adduce any defence

evidence as contemplated under section 233 of Cr.P.C.,

but the accused did not come forward to adduce any

defence evidence, accordingly it was recorded.

12. Subsequent to closure of evidence on the part of

the prosecution and the defence having heard the

arguments advanced by them and convincing the

evidence of the prosecution inclusive of close scrutiny of

evidence of PW-1 to PW-33 and so also several

documents have been marked at Exs-P1 to P40, but

mainly Ex-P(1), death note has been secured by PW-32 -

C.G. Jagadeesh who is an IO in part. Ex-P2 is the

complaint which is given by PW-1 who is none other than

brother of the deceased Manjula. This complaint has been

received by PW-31 C. Jagadeesh who is a PSI and also

who is an IO in part and he registered the FIR at Ex-P34.

PW-1 to PW-7 are the material witnesses who are part of

the prosecution, but PW-1 is none other than the brother

of the deceased. PW-2 Puttathayamma is none other than

mother of the deceased. PW-3 Huchaiah is also one of the

brother of the deceased, PW-4 Belaganayaka is paternal

uncle of the deceased. PW-7 Karinayaka who is none

other than father of the deceased. PW-5 and PW-6 are

also relatives of the deceased. PWs-1 to 7 are the

relatives and also material witnesses on the part of the

prosecution and their evidence has been closely

scrutinized by the sessions court and consequently the

sessions court has come to the conclusion that the

prosecution has miserably failed to prove the guilt of the

accused by facilitating the worthwhile evidence and even

on appreciating the evidence, the sessions court has

come to the conclusion that the evidence of the witnesses

had discrepancies and also variations relating to the

contents at Ex-P1 - death note and so also contents at

Ex-P2 - complaint filed by PW-1 who is her brother and so

also the contents at Ex-P34 - FIR recorded by PW-31

being PSI, in overall evidence of the prosecution

witnesses. Even on close scrutiny of the evidence, the

sessions court has come to the conclusion that there are

series of doubt and the theory put forth by the

prosecution does not have any strong evidence, even in

the contents relating to physical as well as mental

harassment being extended by the accused to deceased

Manjula and also demanding her to bring additional

dowry from her parents' house, despite receipt of

considerable dowry in terms of cash, in terms of gold

jewellery inclusive of motor cycle. Even on close scrutiny

and also on appreciation of evidence, as it was domain of

the sessions Judge of marshalling of evidence of chaff

from the grain, which is the main domain vested with the

sessions Judge under section 3 of the Indian Evidence

Act, 1872 and so also section 134 of Indian Evidence Act

relating to quality of evidence and also quantity of the

evidence which shall be considered. But in the instant

case, the prosecution even though has let in the evidence

by examining PWs-1 to PW-33 and so also got marked

several documents at Exs-P1 to P40 inclusive of

contradictory statement of PW-2 at Ex-D1, but PW-2 who

is none other than mother of the deceased Manjula, the

over all evidence of the aforesaid material witness is

found to be inconsistent and contradictory. Consequently,

the sessions court had come to the conclusion that the

prosecution did not facilitate worthwhile evidence and

benefit of doubt in the evidence of the prosecution

witnesses has been extended and consequently, acquitted

the accused for the offences under sections 498A, 306,

304B IPC, 1860 inclusive of sections 3, 4 and 6 of Dowry

Prohibition Act. It is this judgment, which is challenged

under this appeal by urging various grounds.

13. Whereas, learned HCGP for appellant- State who

has taken us through the evidence adduced by the

prosecution and more so, the evidence of PW-2 and PW-7

who are parents of deceased Manjula and PW-3 brother

of the deceased Manjula and PWs-4 and 5 who are the

relatives of the deceased, but their evidence has not been

appreciated by the sessions court in proper perspective.

Therefore, in this appeal, it requires for intervention, if

not intervened, certainly, results in miscarriage of justice.

This is the first limb of argument advanced by learned

HCGP for State by referring to the aforesaid evidence of

witnesses on the part of the prosecution.

14. The second limb of argument that has been

advanced by learned HCGP relates to Ex-P1 death note

wherein the death note was left by the deceased -

Manjula, whereby Manjula committed suicide by hanging

to the wooden beam in her parents' house. But her

brother who had collected the death note did not produce

the same immediately before the concerned authorities.

The death note consisted of three to four sentences which

is marked at Ex-P1, whereby she has stated that her

husband and his family members are the cause of her

death as she was tortured by the accused and she was

not in a position to brief that act of harassment to her

parents and because of the said harassment, she

committed suicide. It is relevant to note that the contents

at Ex-P1 death note was written by the deceased and she

has narrated in her death note relating to some sort of

mental cruelty in the hands of her husband and his family

members, but the same has not been properly

appreciated by the sessions court inclusive of the writings

made by the deceased Manjula which are marked at Exs-

P3 and P4. Therefore, under this appeal, it requires for

intervention for consideration of the contents at Ex-P1 -

death note and so also writings of the deceased at Exs-P3

and P4. It is further contended that the sessions court did

not look into the provisions of section 106 of the Indian

Evidence Act, 1872. As per the provisions of the said Act,

a duty is cast upon the accused to explain the cause of

death of the deceased which is an unnatural death, by

giving cogent and convincing evidence. Therefore, initial

burden even though is on the part of the prosecution to

prove the guilt of the accused, the contents of the

exhibited documents at Ex-P1 - death note and writings

of the deceased at Ex-P3 and Ex-P4, has not been

properly appreciated by the sessions court. Therefore,

under this appeal, it requires for intervention, if not,

certainly, gravamen of the complainant who has initiated

criminal prosecution against the accused by narrating in

his complaint at Ex-P2 insofar as death of his sister

deceased - Manjula and also mental harassment meted

out by her at the hands of her husband and if not,

certainly results in miscarriage of justice, though incisive

cross examination is done by the defence counsel insofar

as material witnesses PW-1 to PW-7, who are relatives of

deceased - Manjula are concerned. On this premise,

learned HCGP for State in this appeal is seeking

intervention for consideration of all the grounds as urged

by referring to the aforesaid evidence of the witnesses on

the part of the prosecution and consequently, upon

consideration of the grounds to set aside the acquittal

judgment rendered by the sessions court in

S.C.No.5/2011 and convict the accused for the offences

punishable under sections 498A, 306, 304B r/w 34 IPC

and so also the offences under sections 3, 4 and 6 of

Dowry Prohibition Act, 1961.

15. On controverted argument advanced by

learned HCGP for State, that the counsel for the

respondents/accused in this appeal has taken us through

the evidence of PW-1 who is the brother of deceased and

based upon his complaint, criminal law was set into

motion by recording FIR as per Ex-P34 by PW-31, who is

the PSI who received the complaint and thereafter the

case has been taken up for investigation by him. PW-32

- C.G. Jagadeesh who is an Investigating Officer in part

and PW-33 - K.N. Nanaiah, who is also an Investigating

Officer in part, after completion of investigation have laid

the charge sheet against the accused, before the

committal court.

16. PW-2 Puttathyamma who is none other than

mother of the deceased Manjula has given her evidence

which has been marked at Ex-D1 which is termed as

contradictory statement and her statement is contrary to

the evidence of PW-1 who is none other than brother of

the deceased and he has initiated criminal prosecution by

filing a complaint at Ex-P2 which bears his signature and

also signature of PW-31 being the PSI.

17. Subsequent to registration of FIR, Ex-P3 which is a

note book and Ex-P4 Geography practical note book have

been secured during the course of investigation which

contains the writings of deceased Manjula. These material

documents have been appreciated by the sessions court

though there are some inconsistencies and variations in

the evidence of PW-1 Narayananayaka who is author of

the complaint Ex-P2, PW-2 Puttathayamma and PW-7

Karinayaka who is none other than parents of the

deceased, PW-5 Chikkamarinayaka who is paternal uncle

of deceased Manjula. But the evidence of PWs-1 to 7

who are the material witnesses and also relatives of the

deceased is found to be inconsistent relating to

ingredients of section 498A IPC in respect of physical and

mental harassment wherein the husband of deceased

Manjula used to consume alcohol and used to beat her

and also used to demand her to bring additional dowry

from her parents' house in terms of cash, despite receipt

of dowry in terms of cash, gold jewellery and motor cycle.

Ex-P1 is the death note which contains her writings

inclusive of her writings at Ex-P3 and Ex-P4. On close

scrutiny of her writings on the aforesaid exhibited

documents, there appears to be some variations and as

per section 45 of Indian Evidence Act, for the opinion of

the court, the writings made by deceased Manjula at Ex-

P1 must have been sent to handwriting expert to

ascertain whether the writings made by the deceased is

that of her and also must be compared with the writings

at Exs-P3 and P4. But the entire case of the prosecution

has been revolving around the evidence of PW-1 who is

author of the complaint at Ex-P2 and also death note Ex-

P1 which is secured by PW-32 who is an IO in part.

18. PW-23 viz., Swaminayaka resident of Someshwara

village states that police came to the house of PW-7 and

seized the note books of Manjula from her mother and

brother of deceased Manjula Sri Narayananayaka was

also present. Police seized the notebook and mahazar

was drawn. Ex-P5 is the seizure mahazar which bears

the signature of Swaminayaka at Ex-P5(b). Ex-P3 and Ex-

P4 notebooks were marked and also identified by him.

PW.19 has identified his signatures in the mahazar - Ex-

P8 and photos at Exs-P6 and P7. During investigation, IO

has collected marriage invitation card at Ex-P9 and

marriage photos at Ex-P10 and also conducted seizure

mahazar as per Ex-P11 which bears the signature of PW-

22 at Ex-P11(b).

19. It is relevant to state that PW-7 who is none other

than father of the deceased Manjula has given go-bye to

version of his statement at Ex-P12 and PW-8 who is none

other than relative of the deceased has also given go-bye

to version of statement at Ex-P13. Their evidence is

contradictory to the evidence of PW-2, PW-1 who has

filed a complaint at Ex-P2 and also contradictory to the

contents in respect of writings of deceased Manjula at Ex-

P1 death note and also her writings at Exs-P3 and P4.

Same has been considered by the sessions court.

Therefore, under this appeal it does not call for any

interference, as to whether the sessions court has not

appreciated the evidence in proper perspective by

referring to the evidence of PW-1 to 8 and also having

regard to the evidence of PW-9 who is an elderly person

who has participated in the marriage talks of deceased

Manjula, inclusive of evidence of PW-10 Rangaswamy

who is also an elderly person who participated in the

marriage talks of deceased Manjula and inclusive of

evidence of PW-11 Shivannanayaka. But on cursory

glance of the evidence of these witnesses, any prudent

man can assess the ingredients of section 498A relating

to physical as well as mental harassment, but Ex-P1

death note inclusive of Ex-P3 and P4 which are the

writings made by her in geography practical note book

and also general notebook has not been subjected to

Handwriting expert to ascertain whether it is the

handwriting of deceased Manjula to prove the guilt of the

accused, which appear as clouds of doubt.

20. PW-24 Arulkumar who is Taluka Executive

Magistrate, Srirangapatna drew inquest over the

deadbody of Manjula wherein deceased Manjula had died

within a span of seven years from the date of her

marriage. Subsequent to conducting inquest over the

deadbody of Manjula, the deadbbody was sent to

mortuary and accordingly, PW-25 Dr. T.N. Chandrashekar

who conducted post-mortem over the deadbody and

issued post-mortem report as per Ex-P30 which bears his

signature at Ex-P30(a) and Ex-P30(b). Merely because

several witnesses viz., PWs-1 to 33 were examined and

several documents were marked at Ex-P1 to 40, unless

worthwhile evidence has been let in, on behalf of the

prosecution, to prove the guilt of the accused beyond all

reasonable doubt, it can't arrive for conviction. But in the

instant case, the sessions court has appreciated the

evidence of PWs-1 to 7 inclusive of evidence of PWs-8

and 9 who are the elderly persons who participated in the

marriage talks relating to demand of dowry in terms of

cash and also in terms of jewellary inclusive of motor

cycle, but ingredients under section 498A IPC relating to

physical as well as mental harassment has not been

made out. Ex-P1 death note only reveals that deceased

Manjula was unable to bear cruelty and unless the said

writing would be subjected to examination by handwriting

expert, it cannot be given credence. But in the instant

case, the sessions court had rendered acquittal judgment

based upon the evidence of PWs-1 to 7 inclusive of PWs-8

and PW-9 as well as other witnesses viz., PW-12

Nagappashetty, who is proprietor of jewellary shop, PW-

13 who has also signed Ex-P19 and PW-15

Smt.Lakshmamma who is neighbouring witness but PW-

16 Munna Lal who is a pawn broker and PW-18

Rajashetty who is a pot maker and PW-19

Hanumanthnayaka. Deceased Manjula had briefed to her

parents relating to her husband accused No.1 who

allegedly was extending physical and mental cruelty to

her and demanding her to bring additional dowry from

her parents' house after consuming alcohol and even his

family members were not allowing her to sleep with her

husband after her marriage. CW-4 who brought the

deceased Manjula on 24.12.2009 at about 1.00 p.m. to

her parents' house and she was consoled by CW-3 and on

the same day, around 4.30 p.m., when nobody was

present in her parents' house, she committed suicide by

hanging to the wooden beam in the bathroom with means

of rope which is marked at MO.4 and 5.

21. M.O.1 is Hero Honda motorcycle, M.O.2

earnings/jumuki and M.O.3 finger ring containing three

stones. These are the material objects which have been

secured during the course of investigation. But on

appreciation of evidence and even on close scrutiny of

evidence of the witnesses, it is to be seen that the

deceased has last her breath within a span of seven years

from the date of her marriage because of the physical

and mental harassment meted out to her by her husband

accused No.1, accused No.2 who is her mother-in-law

and accused No.3 who is sister of accused No.1. These

are the evidence which have been appreciated by the

sessions court. Therefore, under this appeal does not

arise or call for interference by this Court. Therefore,

learned counsel for respondent sought for dismissal of

this appeal as preferred by the State by confirming the

judgment of acquittal rendered by the sessions court in

S.C.No.5/2011 dated 31st July 2015.

22. It is in this context of the matter, considered

the submissions made by learned HCGP for State so also

counter made by learned counsel for the

respondents/accused.

23. Further, it is necessary to refer to the evidence

of PW.1 - Narayana. K who is none other than the brother

of the deceased - Manjula. He has stated in his evidence

that on 24.11.2008 they have performed the marriage of

her sister - Manjula with accused No.1 as per the customs

prevailing in their community. Prior to her marriage, the

marriage talks were taken place in the house of his uncle,

namely, Belaganayaka, wherein accused No.1 demanded

dowry in a sum of Rs.1,00,000/-, one Herohonda motor-

bike, 50 grams of gold, one wrist watch, finger rings,

clothes and insisted to perform the marriage in choultry.

In furtherance of the marriage talks, his parents i.e.,

father of PW.1 expressed his inability to fulfill the above

demand made by accused No.1. Thereafter, father of the

deceased - Manjula agreed to give dowry in a sum of

Rs.50,000/- only, one motorbike, 35 gms of gold, wrist

watch and clothes and in addition to that father of the

deceased agreed to perform the marriage of his

daughter/deceased - Manjula with accused No.1 in a

choultry. However, the demand of dowry initially made

by accused No.1 as has been reduced to Rs.50,000/-.

Thereafter, marriage negotiation of deceased - Manjula

was completed. In the marriage talk, accused Nos.1 to 3

and one Mahesh who is the brother-in-law of accused

No.1 and on behalf of deceased - Manjula, one

Chikkamarinayaka, her uncle - Belaganayaka, one

Shivannanayaka, Krishnanayaka, Mahadevanayaka,

Rangaswamy and so also the parents of the deceased

were all participated and the said marriage talk which

was held in the house of Belaganayaka who is the uncle

of the deceased - Manjula. Subsequent to her marriage

with accused No.1, deceased - Manjula had been to her

matrimonial house and lead her happy matrimonial life.

In the house of accused No.1, there consisting of his

mother - accused No.2 and accused No.3 who is none

other than the sister of accused No.1 namely, Anitha and

she got married with one Mahesh who is none other than

the brother-in-law of accused No.1 - Bairava and

subsequent to her marriage, sister of accused No.1 i.e.,

accused No.3 has started to reside there only i.e., in her

parents house and lead her marital life. Thereafter,

accused Nos.1 to 3 started to harass the deceased -

Manjula and they used to insist her to bring the dowry

from her parents house. Deceased - Manjula being not

able to tolerate the acts of accused, she committed

suicide by hanging herself to the wooden beam with

means of a rope which were marked as M.Os.4 and 5 in

her parents house on 20.12.2009. This PW.1 has been

subjected to cross-examination at length. In the cross-

examination, he has stated that deceased - Manjula has

obtained a degree in Bachelor of Arts and more so, she

had studied in Maharani college, at Mysuru city. But there

was no compatibility between accused No.1 and his wife

deceased - Manjula. On 20/12/2009, when she had been

to her parents house, on that day at around 04:30 p.m.,

she had committed suicide by means of M.Os.4 and 5 to

the wooden beam and at that time, nobody was present

in her parents house. After some time, the same was

noticed by PW.2 who is mother of the deceased.

Thereafter, PW.1 along with one Prakash who is none

other than the son of his uncle gone to police station and

the said Prakash written the complaint as per Ex.P2 and

that complaint has been received by PW.31 -

P.Jagadeesh being the PSI and who is an Investigating

Officer and conducted the investigation in part, more so,

he has recorded the FIR as per Ex.P14.

24. Ex.P1 is the death note contains the hand

writing of deceased - Manjula and which also bears her

signature and the same is marked as Ex.P1(A), so also

the signature of PW.32 - P.Jagadeesh/PSI, who

conducted the investigation in-part. Ex.P2 is the

complaint and this complaint has been given by PW.1

who is none other than the brother of the deceased -

Manjula, wherein he subscribes his signature and it also

contains the signature of PW.31 - P.Jagadeesh/PSI.

PW.31 during his investigation, secured Ex.P3 -

Geography Note Book of deceased - Manjula and also

Ex.P4 - General Note Book. The said documents were

seized by drawing a mahazar in the presence of panch

witnesses as per Ex.P5 - seizure mahazar, which bears

the signature of PW.1 and also signature of PWs.23 and

30 as at Exs.P5(a), P5(b) and P5(c). Ex.P8 is the spot

mahazar which bears the signature of PW.3 as per

Ex.P8(a) so also the signatures of one Govindanayaka

and Hanumanthanayaka as at Ex.P8(b) and Ex.P8(c).

Ex.P11 is the seizure mahazar which was conducted in

the presence of the panch witnesses, which consist the

signatures of PW.22 so also the signature of PW.32 -

C.G.Jagadeesh/PSI and I.O. in part. During the

investigation, Ex.P9 - marriage invitation card and Ex.P10

- marriage photo of the deceased - Manjula with accused

No.1 were seized.

25. PW.10 - Rangaswamy @ Balu who is an

elderly person, has subscribed his signature at Ex.P14 of

the inquest mahazar drawn over the dead body of the

deceased - Manjula and it also bears the signature of

PW.8 as per Ex.P14(a). But PW.7 has disowned his

statement as per Ex.P12, similarly, PW.8 also disowned

his statement as per Ex.P13 inclusive of PW.11 as per

Ex.P15. So also PW.12 as per Ex.P17. PW.13 who has

also disowned his statement as per Ex.P20 and PW.18

who also disowned his statement as per Ex.P24. But in

all seven witnesses have disowned their statement which

was recorded by the Investigating Officer during the

course of the investigation. But their evidence are

contrary to the evidence of PW.1 - K. Narayana, who is

the brother of the deceased - Manjula, PW.2 -

Puttathayamma, who is none other than the mother of

the deceased, PW.3 - Hucchaiah who is also one of the

brother. PW.4 - Belaganayaka who is the paternal uncle

of the deceased, PW.5 is Chikkamarinayaka who is a

relative and PW.6 - Shivannanayaka who is also a

relative of the deceased - Manjula and they were all have

participated during the marriage talk of the deceased -

Manjula and accused No.1. But PW.7 is the father of the

deceased - Manjula. PW.8 - Krishnanayaka and PW.9 -

Mahadevanayaka who are the elderly persons in the

family of deceased - Manjula who have also participated

in the marriage talk of the deceased - Manjula with

accused No.1.

26. PW.25 - Dr. T.N.Chandrashekar, who

conducted autopsy over the dead body of the deceased

and issued autopsy report as per Ex.P30 which bears his

signature and also bears signature of PW.32 -

C.G.Jagadish/Investigating officer.

27. PW.24 - Arun Kumar who is a Tahsildar and

Taluk Executive Magistrate and he was also got examined

on behalf of the prosecution who stated in his evidence

that he has sent Ex.P14 - inquest mahazar drawn by him

along with a covering letter as per Ex.P29 and Ex.P1 -

death note to the police station, Mysuru (south) on

21.12.2009 through a police constable.

28. PW.31 - P. Jagadish - PSI, Mysuru south who

is one of the investigating officer and he conducted part

of the investigation and he drew the inquest mahazar as

per Ex.P36 which bears his signature and also a request

letter at Ex.P37 which also bears the signature of PW.32.

During the investigation, the accused No.1 has given

voluntary statement as per Ex.38, the same has been

recorded by PW.32 who is an investigation officer. Ex.P39

is the document which consists the detail about securing

the loans in the bank. Ex.P40 is the pass book of Vijaya

bank which bears the signature of PW.33. PW.32 - the

investigating officer who has done the investigation in its

entirety and laid the charge sheet against accused before

the court having jurisdiction.

29. Where as, the learned counsel for the

appellant who has taken us through the evidence of PW.6

- Shivanna Nayaka and in his evidence he has specifically

stated that he know PWs.1 to 3 and they are the

relatives of deceased - Manjula and similarly PW.5 to 11.

PW.4 - Belaga Nayaka and PW.7 - Karinayaka are the

brothers. PW.6 - Shivanna Nayaka who is also of the

same village of the complainant. The complainant is

examined as PW.1 and PW.1 has stated that his sister's

marriage was performed with accused No.1 prior to the

incident as narrated in his complaint. But three years

prior to the incident, the marriage talk was taken place

in the house of PW.4 - Belaganayaka who is none other

than the paternal uncle of the deceased. But PW.7 -

Karinayaka is none other than the father of the deceased

and as his house is very tiny, the marriage talk was held

in the house of her uncle PW.4. PWs.5, 6, 7 and PW.4

being the elderly persons in the village, have participated

during the marriage talk. But this witness evidence has

been appreciated by the trial court. He further stated that

as per Ex.P1 - death note due to the ill-treatment and

harassment made by husband of the deceased - Manjula,

her mother-in-law and sister-in-law, deceased - Manjula

committed suicide.

30. Further, the writing made by deceased -

Manjula as per Ex.P1 so also her hand writing in Ex.P3 -

Geography note book and Ex.P4 - General note book and

these documents have not been sent to the hand writing

expert to ascertain as to whether the hand writing as at

Ex.P1 and Ex.P3 are the same hand writing made by

deceased - Manjula. Therefore, it is relevant to refer to

Section 45 of the Indian Evidence Act of 1872. It is the

medical science which needs opinion of experts. For the

purpose of arriving at a decision on the basis of opinion of

experts, the court must take into consideration the

difference between an 'expert witness' and 'ordinary

witness'. The opinion must be based on a person having

special skill or knowledge in medical science. It could be

admitted or denied. Whether such our evidence could be

admitted or how much weight should be given thereto,

lies within the domain of the court. The evidence of an

expert should, however, be interpreted like any other

evidence; as per the decision rendered by Hon'ble

Supreme Court reported in AIR 2010 SC 1162 in the

case of Malay Kumar Ganguly Vs. Sukumar

Mukherjee. But in the instant case Ex.P1 - death note

and also Geography note book - Ex.P3 and General note

book - Ex.P4 were not sent by investigating officer to

the hand writing expert to prove whether the hand

writing containing in death note and geography note book

are of the same person i.e., deceased - Manjula. This

glaring contradiction also to be noticed. However, the

trial court considered the evidence of PWs.1 to 7 and they

are the relatives of deceased and more so, the witnesses

who were facilitated by prosecution and who were

subjected to examination, have given contradictory

evidence and there are variations and there is

inconsistency in each of the evidence given by those

witnesses. Therefore, the trial court had rightly arrived

at a conclusion that the prosecution did not facilitate the

worthwhile evidence to prove the contents of Ex.P1 -

death note and so also the contents of Exs.P3 and P4.

From the documents produced by the prosecution, it is

difficult to arrive at a conclusion that due to the ill-

treatment and dowry harassment made by accused No.1

and accused Nos.2 and 3, the deceased - Manjula

committed suicide. In order to prove that the hand

writing made by deceased - Manjula in Ex.P1 and Exs.P3

and P4, unless an expert examine the hand writing and

give an opinion, the same cannot be considered, as the

opinion of a hand writing expert given in evidence is no

less fallible than any other expert opinion adduced in

evidence with the result that such evidence has to be

received with great caution, as held by Hon'ble Supreme

Court in a decision rendered in the case of Ram Narain

Vs. State of Uttar Pradesh - AIR 1973 SC 2200.

31. In the instant case, it is relevant to refer to

Section 73 of the Indian Evidence Act, 1872, for

comparison of signature, writing or seal with others

admitted or proved. As per Section 73 of the Act, the

court is entitled to make comparison of disputed and

admitted signature for just conclusion as a rule

of prudence expert opinion can be obtained. Reasons

necessary to reach conclusion. It was extensively

addressed in the judgment rendered by the Hon'ble Apex

Court in the case of Ashok Kumar Uttam Chand Shah

Vs. Patel Mohmad Asmal Chanchad - AIR 1999 Guj

108.

32. In the instant case, Ex.P1 - death note and

Ex.P3 - Geography note book and Ex.P4 - General note

book are the vital documents. The aforesaid documents,

even though contains the hand writing of the deceased,

but there is no evidence or proof is produced in order to

prove that the hand writing of deceased - Manjula in

Ex.P1 and Exs.P3 and P4 are her hand writing and the

hand writing in Ex.P1 is tallying with hand writing made

in Exs.P3 and P4. Further the prosecution has not proved

this aspect and examined an expert in this regard.

Further, it is for the prosecution to prove the guilt of the

accused beyond all reasonable doubt.

33. Lastly, it requires to consider the scope of

Section 134 of the Indian Evidence Act, 1872 relating to

number of witnesses: No particular number of witnesses

shall in any case be required for the proof of any fact.

However, it is the quality of the evidence and not the

quantity of the evidence which is required to be judged

by the Court to place credence on the statement. It was

extensively addressed by the judgment rendered in the

case of State of Uttar Pradesh Vs. Kishanpal - 2008

(8) JT 650.

34. It is relevant to state that in the matter of

appreciation of evidence of witnesses, it is not number of

witnesses, but quality of their evidence which is

important, as there is no requirement in law of evidence

that any particular number of witnesses is to be

examined to prove/disprove a fact. It is a time-honored,

principle, that the evidence must be weighed and not

counted. The test is whether the evidence has a ring of

trust, is cogent, credible and trustworthy or otherwise.

The legal system has laid emphasis on value provided by

each witness, rather than the multiplicity or plurality of

witnesses. It is the quality and not quantity, which

determines the adequacy of the evidence as has been

provided under Section 134 of Indian Evidence Act 1872.

Relating to this concept, the Hon'ble Supreme Court has

considered the issue and scope of the said provision in a

decision rendered in the case of Laxmibai (Dead)

through Lr's Vs. Bhagwantbura (Dead) through Lr's

- AIR 2013 SC 1204.

35. These are all the important provisions of the

Indian Evidence Act 1872, and more so, it is the domain

vested with the trial court for appreciating the evidence

and also arrival of a conclusion by weighing the evidence

not by counting the number of witnesses given to the

concept of plurality. In the instant case, the prosecution

has examined number of witnesses and also got marked

several documents. PWs.1 to 7 are the relatives of

deceased - Manjula and their evidence runs contrary to

the evidence of PWs.31, 32 and 33 who are the official

witness. PW.33/Investigating Officer who has completed

the entire investigation and laid the charge sheet against

the accused. Whereas, on cursory glance of evidence of

those witnesses and by considering the documents which

are exhibited, we are of the opinion that the trial court

had rightly come to the conclusion that the prosecution

has miserably failed to prove the guilt of the accused

beyond all reasonable doubt. Consequently, when the

benefit of doubt arise, it should be accrued on the

accused alone and it is the doctrine in criminal justice

delivery system. Therefore, we are of the opinion that

the appeal does not warrants any interference.

36. In view of the aforesaid reasons and

discussions, we are of the opinion that the appeal

deserves to be rejected. Accordingly, we proceed to

following:

ORDER

Appeal preferred by the State under Section 378(1)

and (3) of the Code of Criminal Procedure, is hereby

rejected. Consequently the judgment of acquittal

rendered by the trial court in S.C. No.05/2011 dated

31.7.2015 is hereby confirmed.

If any bail bonds has been executed by the accused

the same shall be stand cancelled.

Sd/-

JUDGE

Sd/-

JUDGE

MN*/HJ