Karnataka High Court
State Of Karnataka vs Girish on 1 June, 2022
Bench: K.Somashekar, Shivashankar Amarannavar
1
R
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 1ST DAY OF JUNE, 2022
PRESENT
THE HON'BLE MR.JUSTICE K.SOMASHEKAR
AND
THE HON'BLE Mr. JUSTICE SHIVASHANKAR AMARANNAVAR
CRIMINAL APPEAL No.117/2016
BETWEEN:
State of Karnataka
By Dabaspet Police Station. ... Appellant
(By Smt.Rashmi Jadhav, HCGP)
AND:
Girish
S/o Honnaiah
Aged of 28 years
r/at Sidda Begur
Hebbur Hobli
Tumakuru Taluk and
District - 572 101. ... Respondent
(By Sri A.N Radha Krishna, Advocate)
---
This Criminal Appeal is filed under Section 378(1)
and (3) Cr.P.C praying to grant leave to appeal against the
judgment and order dated 5.8.2015 passed by the
2
VII-Additional District and S.J., Bengaluru rural District,
Bengaluru in S.C.No.185/2011, acquitting the respondent-
accused of the offence punishable under Sections 302 and
201 of IPC and etc.,
This Appeal coming on for Hearing this day
K.Somashekar J, Delivered the following;
JUDGMENT
The State has preferred this appeal challenging the
impugned judgment rendered by the Trial Court in
S.C.No.185/2011 dated 05.08.2015 acquitting the
appellant / accused for offences punishable under
Sections 302 and 201 of IPC, 1860. This appeal is filed
seeking to consider the grounds urged therein and to set
aside the judgment of acquittal rendered by the Trial Court
for the aforesaid offences and thereby to convict the
accused for the offences punishable under Sections 302
and 201 of IPC, 1860.
2. Heard the learned HCGP Smt. Rashmi Jadhav
for the State and learned counsel Sri. A.N. Radhakrishna
for the respondent/accused. Perused the judgment of
acquittal in S.C.No.185/2011.
3. Factual matrix of the appeal is as under:
It transpires from the case of the prosecution that on
03.12.2010 the complainant Gangadharaiah who is none
other than the father of the deceased Bhagyamma had
lodged a complaint before the Dabaspet Police Station
stating that his daughter Bhagyamma and the accused
Girish were in love since two years. The accused had also
promised to marry her and with her permission both
accused and the deceased had a physical relationship from
the past one year. Consequent to the physical relationship
between the deceased Bhagyamma and the accused Girish,
the deceased Bhagyamma became pregnant and she was 9
months pregnant. By intervention of the elderly persons
such as CW.2 to 7, the deceased Bhagyamma and the
accused Girish got married at Daninamma temple in the
presence of the villagers. After 3 days of the marriage, the
deceased Bhagyamma delivered a baby girl and they
named her Shruthi. In pursuance of the murder of the
deceased Bhagyamma and also her daughter Shruthi aged
of 3 months, the Complainant Gangadharaiah had
initiated criminal prosecution against the accused Girish
by filing a complaint as per Ex.P13. The complaint was
received by PW.22 K. Suresh who is a Police Sub Inspector
who was subjected to examination and recorded an FIR as
per Ex.P15. Subsequent to recording of FIR, the case was
taken up for investigation by the Investigating Officer
namely PW.21, who after completion of investigation
thoroughly, recorded the statement of witnesses and also
drew a mahazar as per Ex.P14 in the presence of panch
witnesses and also secured the post mortem report as per
Ex.P16 and such other material documents and laid a
charge sheet against the accused before the Committal
Court. Subsequently, the Committal Court had passed an
order dated 27.05.2011 by committing the case to the
Sessions Court for trial whereby the case was registered in
S.C.No.185/2011. Subsequently the accused was secured
to face trial by issuance of summons/process. The
accused had engaged a counsel for his defence.
4. Subsequently the Trial Court on hearing the
arguments advanced by the learned Public Prosecutor and
the defence counsel, framed charges against the accused
for the offences under Sections 302 and 201 of IPC, 1860.
However, the accused did not plead guilty but claimed to
be tried. Accordingly, plea of the accused was recorded
separately.
5. Subsequent to framing of charge against the
accused, the prosecution had subjected to examination in
all PW.1 to PW.22 and got marked several documents at
Ex.P1 to Ex.P17 but no material objects were got marked.
Subsequent to closure of the evidence on the part of the
prosecution, incriminating statement as contemplated
under Section 313 of Cr.P.C. was recorded. Subsequently,
accused were called upon to adduce defence evidence as
contemplated under Section 233 Cr.P.C. But the accused
did not come forward to adduce any defence evidence on
their side.
6. Subsequent to closure of the evidence on the part
of the prosecution as well as the defence side, the trial
Court heard the arguments advanced by the learned Public
Prosecutor and also the arguments of the learned defence
counsel. On perusal of the entire evidence on record, the
Trial Court rendered an acquittal judgment acquitting the
appellant / accused for the alleged offences, as stated
above.
7. PW.13 Gangadharaiah had initiated the criminal
prosecution against the accused by lodging a complaint at
Ex.P13 and based upon his complaint, criminal law was
set into motion by registering FIR which is at Ex.P15.
8. PW.19- Anil Kumar who is the Taluk Executive
Magistrate has conducted inquest on the dead body of the
deceased Bhagyamma. The baby girl by name Shruthi
aged of 3 months was pushed by the accused Girish but
the dead body of baby girl was not traced by the
investigating agency during the course of the investigation.
But after conducting inquest on the dead body of deceased
Bhagyamma, PW.19 Anil Kumar namely Taluk Executive
Magistrate issued inquest report as per Ex.P8.
9. The Trial Court has appreciated the evidence of
PW.10 Narasamma, PW.13 Gangadharaiah and PW.14
Doddamma. PW.13 and P.14 are the parents of the
deceased Bhagyamma and PW.15 and PW.16 are the
brothers of the deceased Bhagyamma. PW.10 Narasamma
is a distant relative of the deceased Bhagyamma. These
are the evidences which have been appreciated by the Trial
Court including the evidence of PW.19 Anil Kumar in
respect of contents of inquest report at Ex.P8 and so also
the evidence of PW.21 who is the Investigating Officer and
whereby thorough investigation has been done and laid the
charge sheet against the accused.
10. PW.20 Dr. Kiran Rathnakar was the Doctor
who conducted autopsy of the dead body and issued the
post mortem report as per Ex.P16 and also stated the
cause of death of deceased Bhagyamma. For having
sustained injuries over her body, it is alleged that the
deceased Bhagyamma and also her 3 months old baby
namely Shruthi was pushed from the top of Shivaganga
Hills in the limits of Dabaspet Police Station. Even though
evidence and materials were facilitated by the prosecution,
it appears to be full of contradictions and also
improvement in the evidence of prosecution and also
statement given by the witnesses before the investigating
agency and no specific circumstance has been established
by the prosecution in respect of committing murder of the
deceased Bhagyamma by the accused Girish. The
circumstance that merely the dead body of the deceased
Bhagyamma has been found in Shivaganga hills, it can be
presumed that the accused Girish has pushed deceased
Bhagyamma along with their baby girl by name Shruthi
aged of 3 months from Shivaganga hills and committed
their murder. The prosecution has subjected to
examination of the aforesaid witnesses, but no evidence is
forthcoming to establish that the accused Girish has
committed murder of his wife Bhagyamma and also their
daughter namely Shruthi aged of 3 months. Whereas
there is also no direct evidence attributed against the
accused stating that the accused has committed the
murder of his wife Bhagyamma and also their child namely
Shruthi aged of 3 months. Upon this evidence, the Trial
Court has arrived in conclusion that the prosecution has
failed to prove the guilt of the accused Girish beyond all
reasonable doubt and consequently has rendered an
acquittal judgment for the offence under Section 302 and
201 of IPC, 1860. It is this judgment which is challenged
in this appeal by urging various grounds.
11. The learned HCGP for State namely Smt.
Rashmi Jadhav has taken us through the evidence of
PW.1, PW.5 and so also the evidences of PWs.6, 7 and 8
who are the material witnesses in respect of the allegation
made against the accused Girish that he had committed
the murder of his wife deceased Bhgaymma and also their
daughter by name Shruthi aged of 3 months. Though the
said Girish had pushed Bhagyamma and the child Shruthi
from Shivaganga hills and committed their murder, the
Trial Court has rendered an acquittal judgment which is
contrary to law, facts and circumstances of the case
narrated in this appeal. On this premise, learned HCGP
prays to allow this appeal since the same requires
intervention and consequently to set aside the judgment
and order dated 05.08.2015 passed by the VIII Additional
District and Sessions Judge, Bengaluru in
S.C.No.185/2011.
12. PW.1 to PW.5 who are the material witnesses
and also being the neighbourers of deceased Bhagyamma
and the accused Girish, they are the material witnesses to
the case of the prosecution but the Trial Court has failed to
appreciate their evidence coupled with the evidence of
PWs.6, 7 and 8 being the witnesses in respect of the
marriage of the deceased Bhgayamma with the accused
Girish. The accused Girish was said to be a student
studying technical course which is evident from the
evidence of PW.15 Shivakumar who is none other than the
brother of the deceased Bhgyamma. Further, his evidence
also reveals that love affair developed in between the
deceased Bhgyamma and the accused Girish, and that the
same has later turned to physical contact in between them
and that she became pregnant woman. Her pregnancy
had come to the knowledge of her parents who were
examined as PW.13 and PW.14, who after the intervention
of elderly persons by conducting a panchayat, had
performed the marriage of Bhagyamma with accused
Girish in temple. But the said marriage was conducted
when the said Bhagyamma was a carrying woman of 9
months. Hence, within a span of three days of her
marriage with Girish, she gave birth to a female child who
was named Shruthi. PW.13 and PW.14 are the material
witnesses and they are the parents of the deceased
Bhagyamma and also the prosecution has established in
their evidence relating to the last seen of deceased
Bhagyamma with a company of the accused Girish. Even
on close scrutiny of their evidence and also on appreciating
all evidence coupled with evidence of PW.15 and 16, the
Trial Court has failed to appreciate the entire evidence in a
proper perspective manner and consequently rendered an
acquittal judgment. Therefore, in this appeal, it requires
for re-appreciation of the evidence of PW.14 Doddamma
being the mother of the deceased Bhagyamma and also the
evidence of PW.15 and PW.16 being the brothers of
deceased Bhagyamma. Their evidence on the part of
prosecution corroborates in respect of the accused Girish
committing murder of his wife and their female child aged
of 3 months as narrated in the prosecution case.
13. The second limb of the argument has been
advanced by the learned HCGP for State by referring to the
evidence of PW.10 Narasamma who is a distant relative
and an immediate neighbour of the deceased Bhagyamma
who has met the deceased Bhagyamma as on the date of
incident whereby the accused Girish is alleged to have
taken his wife Bhagyamma along with 3 months baby girl
as on the date of incident and she advised the accused to
take care of his wife Bhagyamma and his child aged of
3 months as on the date of the incident. The evidence of
PW.10 even though a circumstantial evidence but the Trial
Court has failed to appreciate her evidence also. The
entire case has been rested upon the evidence of PW.13
and 14 who are the parents and also in respect of last seen
of deceased Bhagyamma in the company of her husband
i.e. accused Girish. But the Trial Court has failed to
appreciate the evidence in discharging the burden in
respect of sufficient circumstantial evidence even though
which has been laid by the prosecution for having
subjected to the aforesaid evidence to prove the guilt of the
accused Girish. But the Court has to consider the total
criminality effect of the proof of evidence of each one of the
witnesses and then come to a conclusion.
Acknowledgment of the guilt of the accused and any
binding effect of this fact is taken together in conclusion in
establishing the guilt against the accused Girish who has
committed the murder of his wife Bhagyamma and also
their daughter aged of 3 months. But the Trial Court
failed to consider the evidence of the witnesses examined
and thereby has rendered an acquittal judgment for the
offences under Section 302 and 201 of IPC, 1860. Hence,
in the instant case it requires for re-appreciation of the
evidence and also revisiting the impugned acquittal
judgment rendered by the Trial Court in S.C.No.185/2011.
Lastly, the learned HCGP for State has taken us to scope of
Section 106 of Evidence Act, 1872 wherein the accused
being the husband of deceased Bhagyamma and father of
the minor kid namely Shruthi aged of 3 months and it is
the responsibility vested with him and also he is duty
bound to explain the cause of death of the victim namely
Bhagyamma who is none other his wife and Shruthi, his
baby girl aged of 3 months.
14. The case has to be dealt with keeping in view of
the scope of Section 106 of Evidence Act, 1872 as he being
the accused arraigned in the case of the murder of his wife
deceased Bhagyamma along with thier kid namely Shruthi
aged of 3 months. It was an offence and also murder of
his wife deceased Bhgyamma and also their kid namely
Shruthi aged of 3 months was well within his knowledge
and he is duty bound to discharge his burden but he has
not discharged his burden by dispelling the doubts
regarding the death of his wife deceased Bhgyamma and
also his child namely Shruthi aged of 3 months. But the
Trial Court has failed to consider the aforesaid aspect
keeping in view Section 106 of Indian Evidence Act, 1872
and even the legal presumption with regard to the married
woman as per Section 113A of the Indian Evidence Act
inclusive of Section 114 of the aforesaid Indian Evidence
Act, 1872. These are the contentions of the learned HCGP
for State in order to convict the accused for committing the
murder. Even though incriminating statement has been
recorded as contemplated under Section 313 of Cr.P.C
even equating the incriminating evidence found against the
accused Girish and also recording his answer while he was
examined in respect of incriminating statement as
contemplated under aforesaid principle of Code of Criminal
Procedure, the accused has not given a proper explanation.
That itself clearly indicates that the accused Girish has
committed the murder of his wife along with their kid
namely Shruthi aged of 3 months.
15. Viewed from all these angle, the learned HCGP
submits that the acquittal judgment rendered by the Trial
Court is perverse and there is no justifiable reason or even
good reason to have acquitted the accused and the Trial
Court has erroneously come to the conclusion without
appreciating the evidence of PWs.13,14,15 and 16
inclusive of the evidence of PW.21. Therefore, in this
appeal it requires for intervention of the impugned
judgment of acquittal rendered by the Trial Court and
consequently to convict the accused for the alleged
offences. If not, it would result in a miscarriage of justice.
On this premise, the learned HCGP for State in this appeal
seeks to consider the grounds as urged in this appeal and
to set aside the judgment of acquittal rendered by the Trial
Court and to convict the accused Girish for the offence
punishable under Sections 302 and 201 of IPC, 1860.
16. Per contra, the learned counsel for the
respondent/accused namely Sri. A.N. Radhakrishna has
taken us through the entire evidence and contends that
the entire case is revolving around circumstantial evidence
and that the prosecution has to prove the chain of link in
the circumstances with adequate evidence. But in the
instant case, the prosecution has failed to establish the
guilt against the accused Girish. But the prosecution has
examined PW.1 to PW.11 who are the neighbours of the
deceased Bhgyamma and so also the accused Girish. But
they have stated specifically in their evidence that they
knew the accused Girish and they are the residents of
Siddabegur village and they also knew the deceased
Bhagyamma and also PW.13 Gangadharaiah and PW.14
Doddamma who are parents of deceased Bhagyamma and
also their grandchild namely Shruthi who was aged of 3
months as on the date of incident.
17. But the aforesaid witnesses have specifically
stated in their evidence that the accused Girish and the
deceased Bhagyamma fell in love with each other which
ultimately turned into physical contact, whereafter she
became pregnant and delivered a baby girl who was aged of
3 months at the time of the incident. She had delivered
the baby soon after her marriage, i.e. within a period of 3
days from the date of her marriage. At the time of their
marriage itself, the deceased Bhagyamma had almost
completed 9 months of her pregnancy. It was a known fact
to each one of the witnesses i.e. PW.1 to PW.11 and
everyone in the village knew that the deceased
Bhagyamma was pregnant before her marriage due to
some physical contact in between her and the accused
Girish. In the panchayath which was convened in their
village to conduct the marriage of Girish with Bhagyamma,
PW.6 Abdul Munaff and PW.9 Puttaiah and other elderly
persons are said to have been participated in the said
panchayath. Both the deceased Bhagyamma and the
accused Girish were also present in the panchayath. On
questioning both the deceased Bhagyamma and the
accused Girish, they are said to have admitted in
panchayath that she was a carrying woman and they both
loved each other and deceased Bhagyamma, at the
instance of the accused Girish, had become pregnant. In
view of this admitted fact, the panchayatdars being the
elderly persons who were present in the panchayath had
advised them to get married. On the very same day, the
marriage of the deceased Bhagyamma and accused Girish
was performed in the presence of elderly persons who are
said to be panchayatdars and as well as in the presence of
parents of the bride and bridegroom in Daninamma
temple. There was some exchange of Thali to her neck by
the accused Girish. Their marriage was performed as per
the customs prevailing in their society. The said marriage
function was also subjected to photos at Ex.P10, 11 and
12. Further, they came to know that deceased Bhagyamma
has given birth to a child namely Shruthi aged of 3
months. They further came to know that Bhagyamma fell
from Shivaganga hills and succumbed to death. These are
the evidence facilitated and also elicited by the
prosecution, in cross examination and even examination in
chief of PW.13 and 14 who are the parents of the deceased
Bhagyamma and the grand parents of the baby girl namely
Shruthi. PW.1 to PW.11 were subjected to examination in
addition to other witnesses.
18. Even the hostile witness being thoroughly
examined by the prosecution, nothing worthwhile has been
elicited to prove the incident narrated in their complaint
relating to the accused Girish having committed murder of
the deceased Bhagyamma by pushing her to Shantala drop
of Shivaganga hills. Though the aforesaid witnesses have
been subjected to examination and got marked Ex.P1, P2,
P3, P4, P5, P6 and P7 through the evidence of PW.1 to
PW.5 and PW.7 and PW.9, but their evidence is contrary to
the evidence of PW.13 and PW.14 who were the parents of
deceased Bhagyamma. PW.10 Narasamma who is the
neighbour and more so a distant relative of both the
deceased Bhagyamma and the accused Girish was also
examined. But her evidence runs contrary to the evidence
of PW.13 and PW.14 inclusive of the evidence PW.15 and
16 and further contradictory to the evidence of PW.19 Anil
Kumar who is the Taluk Executive Magistrate who
conducted inquest over the dead body of the deceased
Bhagyamma and issued the inquest report at Ex.P8.
During inquest, the statements of PW.13 and PW.14 being
the parents along with relatives of the deceased
Bhagyamma were recorded. But nothing worthwhile has
been elicited by the prosecution though PW.13 and PW.14
made some categorical admission that elders of the family
of Girish who were present in the panchayath did not agree
to the marriage of Girish with Bhagyamma. The accused
Girish himself was responsible for the pregnancy of their
daughter due to love affair between them. The evidence of
PW.13 and PW.14 being the parents of the deceased
Bhagyamma, are the material witnesses in the case. In
their evidence nowhere they have stated that on the date of
incident, the accused had come to their house and took
their daughter Bhagyamma along with her kid who was
aged of 3 months. But it is an admitted fact that the
accused was studying an Engineering course at Sridevi
Engineering College, Tumkur and also the brother of the
deceased namely Shivakumar who is examined as PW.15
was also studying in the said college and he being the
hostel student in the Government hostel and the brother of
the deceased Bhagyamma. One Manjunatha who is
examined as PW.16 was doing hotel work at Tumkur. It is
an admitted fact which is also revealed from the evidence
of PW.14, PW.15 and PW.16, that the accused Girish used
to come to their village at the time of festivals and holidays
but it is not the case of the prosecution that on the date of
incident there was any festival or it was any holiday. But
both PW.13 and PW.14 have made categorical admission
that the elders of the family of accused Girish did not give
consent to the said marriage of the accused Girish with the
deceased Bhgyamma. Hence, there are clouds of doubt in
the evidence of witnesses who have been subjected to
examination to prove the guilt of the accused Girish and
also the accused is the cause for deceased Bhagyamma to
become pregnant who delivered a baby girl namely
Shruthi. But PW.13 Gangadharaiah who is the author of
the complaint at Ex.P13 was subjected to cross
examination whereby it reveals that in their village people
were talking about the pregnancy of Bhagyamma prior to
her marriage and delivery of a female child within a period
of three days after her marriage. According to the
prosecution, accused Girish and also deceased
Bhagyamma were questioned by PW.14 namely
Doddamma who is her mother. Hence it was revealed that
Bhagyamma had became pregnant due to some physical
contact with the accused Girish and the said news was
spreading in the village. Since the message had spread in
the village and after hearing the villagers talking about
deceased Bhagyamma, she became very depressed.
Because of that she had undergone depression and
committed suicide by falling from Shivagange hills as
contended.
19. But PW.13 who is none other than the author
of the complaint at Ex.P13 and also admitted in his
evidence that his sons and the accused Girish were friends
to each other but in cross examination he has stated that
the accused Girish did not want a female child and
suggested the deceased Bhagyamma to give the said baby
to the church. PW.14 in her evidence has stated that as
on the date of incident, the deceased Bhagyamma and the
accused Girish had not returned in the evening but for
searching them and also questioned with one of the
shopkeeper nearby the temple in shivagange hill and shop
keeper told her that her daughter has taken eatables and
went upstairs but that he has not seen her returning.
Inspite of search, they could not find the deceased
Bhagyamma and also her kid namely Shruthi who is aged
of 3 months. On a close scrutiny of the evidence of PW.13
and PW.14 coupled with the evidence of PW.15 and 16, it
is seen that the accused Girish had taken the deceased
Bhagyamma and her kid namely Shruthi to the Shivagange
hills for the Shantala drop and it was shown to the police
and others. It was the place where Bhagyamma and her
child were pushed by the accused Girish. The mahazar
was drawn by the investigating agency in the presence of
PW.15 who has subscribed his signature. But he has
denied that at the time of studying they were residing in
hostel. But PW.13 and PW.14 have specifically stated in
their evidence during the time of festival and not even
during holidays, they come to their houses. But PW.16
also stated in his evidence that the accused Girish and the
deceased Bhagyamma loved each other and after coming to
know about their love affair, panchayat was held and their
marriage was performed as per the customs prevailing in
their society. PW.13 Gangadharaiah had filed a complaint
before the Dabaspet Police Station and based upon the
complaint criminal law was set into motion and the police
apprehended the accused and whereby the accused
showed the place Shantala drop where he had pushed
deceased Bhagyamma along with her kid namely Shruthi.
PW.17 Narayan Rao.K who is a Police Constable i.e.
P.C.No.1493 has stated in his evidence that on
06.12.2010, he apprehended the appellant/accused Girish
near Bhatawade at Tumkur and took him from there and
produced him before the Sub Inspector of Police.
20. PW.18 C.H. Jayaprakash who is also a Police
Constable and whereby the case No. 226/2010 has been
registered and leaving FIR to the jurisdictional Court.
PW.19 Anil Kumar who is Taluk Magistrate has conducted
inquest over the dead body of the deceased Bhagyamma on
04.12.2010 and during that inquest held over the dead
body, he has recorded the statement of Doddamma being
mother of the deceased and PW.15 and PW.16 being the
brothers of deceased. But PW.18 in the cross examination
has stated that he did not see PW.10 at the time of her
statement made before him as regards the love affair of the
deceased Bhagyamma with the accused Girish. But he
has stated that PW.16 Manjunath who is none other than
brother of the deceased Bhagyamma even though he has
been subjected to examination but he did not specifically
state that all of his family members had made search of
deceased Bhagyamma in Shivaganga hills. But he has
clearly stated that nobody has stated that they have seen
the incident. The material witnesses of PW.13, 14, 15 and
16 even though the entire case is rested upon the evidence
of these witnesses and even though the last seen theory is
alleged to have been put forth by prosecution but there is
no piece of evidence that as on the date of incident, the
accused was last seen with the deceased as put forth by
prosecution. Nobody has seen the accused Girish and the
deceased Bhagyamma together as on the date of the
incident.
PW.21 who has been subjected to cross
examination has stated the accused Girish showed the
investigating agency the place where the deceased
Bhagyamma and her kid namely Shruthi who is aged of 3
months alleged to have been pushed in the Shantala drop
in Shivagange hills. PW.21 has further stated in his
evidence that the accused Girish has been apprehended in
Tumkur. At the time of apprehending and also at the time
of evidence it has been admitted that the accused Girish
was studying B.E. course in Sridevi Engineering College at
Tumkur and has clearly stated that he has not made any
enquiry as on the date of incident or even prior to the
incident or even after the incident as regards the specific
allegation against the accused Girish at Ex.P14. Merely
because of some allegation made against the accused
Girish by launching criminal prosecution in respect of the
complaint at Ex.P13 by PW.13, it cannot be believed to be
gospel truth. The evidence of PW.13 and PW.14 coupled
with the evidence of PW.15 and PW.16 are found to be
clouds of doubt and further contradictory to the evidence
of PW.20 being Medical Officer who conducted autopsy and
issued post mortem report at Ex.P16 and he has opined
that the death of deceased Bhagyamma was due to
sustained injuries, shock and also bleeding. Injuries have
been noted by PW.20 who conducted autopsy and opined
that death of deceased Bhagyamma was due to many
injuries. Unless the post mortem report at Ex.P16 is
corroborated with any other evidence it cannot be said that
the prosecution has proved the guilt against the accused
Girish beyond all reasonable doubt.
21. Lastly, the learned counsel for the
respondent/accused contends that there is no iota of
evidence adduced by the prosecution before the Trial Court
to show that as on the date of incident, the accused Girish
was last seen with the deceased Bhagyamma and even
there is no direct evidence attributed against the accused
Girish to show that accused Girish had pushed his wife
deceased Bhagyamma along with his kid namely Shruthi
from Shantala drop in Shivaganga hills. Even though
PW.21 has been subjected to thorough examination,
nothing worthwhile has been elicited to prove that the
accused Girish has caused the death of the deceased
Bhagyamma or otherwise, had committed the murder of
the deceased Bhgyamma along with her 3 month old child
Shruthi.
22. The prosecution has miserably failed to prove the
guilt of the accused by placing worthwhile evidence.
Hence, in this appeal it does not require interference with
the judgment of acquittal rendered by the Trial Court,
since there is no perversity in the said judgment.
23. In support of his contentions, learned counsel for
the respondent has relied on the following decisions:
i) State of Punjab Vs. Ajaib Singh and Others (2005
SCC (Crime) 43)
ii) Kanhaiya Lal Vs. State of Rajasthan (2014 Crime
L.J 1950)
iii) Samghaji Hariba Patil Vs. State of Karnataka
(2007(1) SCC (Crime) 113)
In the judgment of the Apex Court in the case of
State of Punjab Vs. Ajaib Singh and Others (2005 SCC
(Crime) 43), the scope and object of Sections 302, 148 and
34 of IPC, 1860 and issues in respect of appeal against
acquittal has been extensively addressed. On re-
appreciation of evidence, it has been held that testimony of
the alleged eyewitnesses are not truthful and reliable -
Having carefully re-appreciated the evidence on record, it
is held that the view taken by High Court on meticulous
examination of evidence was a reasonable view and fully
supported by evidence and hence does not deserve to be
interfered with in an appeal against acquittal.
24. Further, in the case of Kanhaiya Lal Vs. State
of Rajasthan referred to supra, the Hon'ble Supreme
Court has addressed the scope and object of Sections 300
and 201 of IPC in respect of murder and causing
disappearance of evidence and so also circumstantial
evidence - allegations that appellant / accused committed
the murder of the deceased by strangulation and threw
body in the well - Motive alleged that deceased as elder of
family dissuaded accused to sever his illicit relationship
with his sister-in-law and triggered murder. But in this
judgment the theory of the last seen together is the
singular piece of circumstantial evidence available against
accused - Hence it is held in the said judgment that
accused cannot be convicted merely on suspicion, however
strong it may be, or on his conduct.
25. Further, in the case of Samghaji Hariba Patil
Vs. State of Karnataka, the Hon'ble Supreme Court has
discussed relating to the scope of Sections 302, 307 and
34 of IPC, 1860. Appreciation of evidence - Prosecution's
failure to prove its case - According to prosecution,
pursuant to quarrel ensued over ploughing of land alleged
to be of deceased by accused No.1, appellant who was a
friend of Accused No.1, assaulted deceased with a hammer
causing his death and other accused assaulted deceased's
family members with bamboo sticks causing injuries -
Whether the land belonged to deceased in dispute - Motive
of appellant not acquitting the appellant - Held, High
Court erred in reversing the judgment of acquittal. In so
far as Sections 378 and 386 - Appeal before High Court
against acquittal recorded by trial Court - High court
should not ordinarily reverse the judgment of acquittal
when two views are possible - When trial Court's judgment
cannot be said to be perverse or not possible to be taken,
held on facts, High Court erred in reversing trial court's
judgment and convicting the accused.
26. These reliances have been facilitated by the
learned counsel for the respondent / accused in support of
the acquittal judgment rendered by the trial Court. The
Trial Court has rightly acquitted the accused as the
evidence put forth by the prosecution was full of
contradictions and improvements and no single
circumstance has been shown by the prosecution to prove
that accused Girish had committed the murder of the
deceased - Bhagyamma. Hence, there is no perversity in
the judgment of acquittal rendered by the trial Court.
Therefore, it does not arise to call for any interference since
there are no circumstances warranting to call for
interference. The prosecution having failed to prove the
guilt of the accused beyond all reasonable doubt, the trial
Court has rightly come to the conclusion by rendering an
acquittal judgment. Therefore, viewed from any angle, he
submits that the contentions made by the learned HCGP
for the State do not have any substance for interference.
Consequently, learned counsel for the respondent seeks for
dismissal of this appeal as being devoid of merits.
27. Keeping in view the contentions made by learned
HCGP for the appellant / State and so also the counter
contentions urged by the learned counsel for the
respondent / accused, it is seen that there is no dispute
that the deceased - Bhagyamma and accused - Girish fell
in love with each other, whereby he had promised to marry
her. In view of the said love affair, physical contact
developed between them and due to that physical contact,
she became pregnant and delivered a baby girl immediately
after 3 days from the date of her marriage with accused.
The said marriage was performed in Daninamma temple as
per the customs prevailing in their society in the presence
of elders. At the time of her marriage with the accused -
Girish, she was almost 9 months pregnant woman and it
was well within the knowledge of her parents who have
been examined as PWs.13 and 14. Then a panchayath
was constituted by CW.2 and 7 who are cited as witnesses
in the charge sheet and in the month of August 2008,
marriage of Bhagyamma was performed with accused -
Girish in Daninamma temple. But three days after her
marriage with him, she delivered a baby girl who was
named Shruthi. But allegation is made in the theory of the
prosecution that the accused pushed his wife Bhagyamma
along with their kid - Shruthi who was aged of 3 months
from Shantala Drop in Shivagange Hills.
28. The entire case of the prosecution revolves
around the evidence of PWs.13 and 14 who are parents of
the deceased - Bhagyamma and PWs.15 and 16 who are
brothers of the deceased. But the entire case is depending
upon circumstantial evidence. The circumstances required
to prove by the prosecution are firstly, the accused and
deceased were loving each other. Secondly, the deceased
became pregnant by the accused. Thirdly, accused had
taken Bhagyamma and their child Shruthi to Shivagange
hills with an intention to eliminate her along with the kid.
Fourthly, accused had pushed Bhagyamma and their kid
Shruthi from Shanthala drop in Shivagange hills. Fifthly,
accused had given voluntary statement and also he had
shown the place of incident where he dropped his wife
along with the kid - Shruthi. In respect of these points
which arise for consideration, the answer to these
questions entirely depends upon circumstantial evidence.
In the reliance of 2014 (4) Kar.L.J 259 (SC) Prakash Vs.
State of Karnataka, the Hon'ble Supreme Court has
addressed the issue in respect of the provision of Section 3
of Indian Evidence Act, 1872 and so also as regards the
provision of Section 300 of IPC, 1860 - Murder -
Circumstantial evidence- Each of circumstance must be
proved beyond reasonable doubt by independent evidence,
giving no room for any hypothesis, other than guilt of
accused- None of circumstance, in instance case, held,
satisfies this standard - Investigation in instant case is
directed at proving pre-conclusion that accused was guilty,
rather than other way round with investigation leading to
conclusion that he was guilty - Judgment and order of
High Court convicting accused set aside, and accused
acquitted.
29. Keeping in view the evidence facilitated on the
part of the prosecution, in the instant case, accused -
Girish is alleged to have committed murder of his wife -
Bhagyamma by pushing her from Shanthala drop along
with her baby girl namely Shruthi who was aged of 3
months, from Shivagange hills.
30. The golden rules of interpretation is that Court
must first try to ascertain the intention of the Legislature
by giving to the very words used by it their original and
grammatical meaning. In the interpretation of the statues,
the courts always presume that the Legislature inserted
every part thereof for a purpose and the legislative
intention is that every part of the statute should have
effect. But in the instant case it requires to refer to Section
3 of Indian Evidence Act, 1872 in respect of proved / not
proved. It is the domain vested with the prosecution and
equally a domain vested with the defence counsel and
greater domain vested with the trial Court to appreciate
the evidence facilitated by the prosecution to prove the
guilt of the accused beyond all reasonable doubt to secure
conviction. But no doubt has been raised by the Court on
the doctrine of benefit of doubt in so far as the accused
alone. In the instant case offences punishable under
Section 302 and so also 201 of IPC relating to the murder
have been charged against the accused. But there is no
definition of murder in the aforesaid Section. But the
section merely takes the four more serious types of
culpable homicide, basing on the mens rea and designates
them murder. Motive : It is not essential for the
prosecution to establish motive factor against the accused
in all cases, but at some time it cannot be given to
gainsaid that without adequate motive speaking normally,
none is expected to take life of another human being. But
the motive behind the crime is a relevant fact of which
evidence can be given. The absence of a motive is also a
circumstance which is relevant for assigning the evidence.
But the circumstances proving the guilt of the accused are
however not weakened at all by the fact that the motive
has not been established. It often happens that only the
culprit himself knows what moved him to certain course of
action. Insofar as medical evidence it should be
corroborated with any other independent testimony. But
medical evidence is to be proved by the prosecution that
the injuries inflicted by the deceased has led to his death.
In the instant case there shall be corpurs delicti relating to
the baby girl - Shruthi who is aged of 3 months and
deceased - Bhagyamma. But the body of the child was not
traced by the investigating agency during the course of
investigation. There was no evidence found on the part of
the prosecution alleging that accused - Girish pushed his
wife and child in Shanthala drop at Shivagange hills. The
term corpus delicti is invention of the middle ages and was
used by them to denote the whole of the facts which
constituted the crime of killing. But when the body of
killed had been found that the expression itself has many
vices but in the sense in which its authors used it, it is at
least intelligible. The phrase corpus delicti is well known
in law. Literally it is the body was the offence, that is
ingredients which go to make it up. In this instant case,
PW.21 being investigating officer who conducted
investigation thoroughly but there is no interference made
to secure the dead body of Shruthi who is aged of 3
months who was also pushed or fell along with
Bhagyamma. Therefore, the theory put forth by the
prosecution for the offences under Sections 302 and 201 of
IPC, 1860 in respect of murder of Bhagyamma along with
her kid - Shruthi cannot be thrown out merely on the
ground that the dead body of the baby girl aged of 3
months as on the date of the incident is not traced when
the other evidence clinchingly establish that the deceased
met her death on the hands of the accused. Nothing was
found in the evidence on record to show that the accused
had caused death of the deceased - Bhagyamma who is his
wife along with their kid namely Shurthi Therefore, doubt
has arisen in the mind of the Court relating to accused
having committed the murder of his wife Bhagyamma and
his baby girl - Shruthi. But in the instant case, the entire
case is based upon circumstantial evidence. In a case
based on circumstantial evidence, motive factor bears an
important significance. Motive always locks-up in the
mind of the accused and sometimes, it is difficult to
unlock. People do not act wholly without motive. The
failure to discover the motive of an offence does not signify
its non-existence. But the law regarding circumstantial
evidence is well-settled. When a case rests upon the
circumstantial evidence, such evidence must satisfy three
tests:
1) the circumstance from which an inference of guilt
sought to be drawn, must be cogently and firmly
established;
2) those circumstances should be of definite tendency
unerringly pointing towards guilt of the accused.
3) circumstances taken cumulatively should form the
chain complete that there is no escape from the conclusion
that within all human probability the crime was committed
by the accused and none else. These circumstantial
evidence in order to sustain conviction must be complete
and incapable of explanation of any other hypothesis than
that of the guilt of the accused. The circumstantial
evidence should not only be consistent with guilt of the
accused but should be inconsistent with his innocence.
Suspicion, however grave it may be, cannot take the place
of poof.
31. In the instant case, there can be no doubt that
the circumstances raise a serious suspicion against the
respondent / accused. The medical evidence on both sides
is more or less equally balanced and that being the
position, the benefit of doubt must go to the accused.
Mere recovery of the dead body of the deceased
Bhagyamma in the absence of any other evidence
connecting him with the murder, is not enough to fasten
the guilt upon the accused, although it may raise some
suspicion against him. But suspicion, however strong it
may be, cannot be valid substitute for proof.
32. The chain of circumstances have to be
established on the basis of reliable evidence, the credibility
of which would not, in any manner, be impeached by
cross-examination and which evidence gets support from
the medical evidence that, the death occurred on account
of the minor injuries inflicted upon the deceased. But in
the instant case, there is no eyewitness account or even
there is no specific circumstantial evidence and even there
is no last seen theory established by the prosecution by
facilitating worthwhile evidence. Further, there is no
clinching evidence on the part of prosecution to prove that
the accused had caused the said injuries that were
inflicted over the person of the deceased - Bhagyamma by
pushing her from Shanthala drop along with her kid
namely Shruthi and accused was responsible for the death
of the deceased - Bhagyamma along with her child -
Shruthi.
33. At a cursory glance of the evidence of PWs.13 and
14 who are parents of the deceased and PWs.15 and 16
who are brothers of deceased who were subjected to
examination on the part of the prosecution and also were
subjected to thorough cross-examination, the prosecution
has not been able to prove the guilt of the accused beyond
all reasonable doubt. Whereas, the Trial Court has
appreciated the evidence on record in a proper perspective
and has rightly come to a conclusion that the accused
deserved to be acquitted. Hence, there are no justifiable or
acceptable reasons to interfere with the acquittal judgment
rendered by the Trial Court.
34. Whereas even though the prosecution has
subjected to examination PW.1 to PW.22 and got marked
documents at Ex.P1 to 17, but there are no material
objects said to have been got marked and even the clothes
over the person of the deceased - Bhagyamma or any other
materials which were found on her person were got
marked by the prosecution in S.C.No.185/2011. Whereas,
PWs.1 to 5, 7 and 9 who have been subjected to
examination on the part of prosecution have turned
around to their own statements recorded by the
investigating officer during the course of cross-
examination. But the evidence facilitated by the
prosecution is full of contradictions and improvements and
there is no specific circumstance to show that the accused
had committed the murder of the deceased - Bhagyamma
along with her kid - Shruthi. Therefore, in this appeal it
does not arise to call for any inference since there is no
perversity or any absurdity in the acquittal judgment
rendered by the Trial Court to call for inference. Further,
there are no warranting circumstances also arising to re-
visit the acquittal judgment rendered by the Trial Court.
Hence, the appeal ought to be rejected as being devoid of
merits by confirming the acquittal judgment rendered by
the trial Court. Therefore, for the aforesaid reasons, we
are of the opinion that appeal deserves to be rejected.
Accordingly, we proceed to pass the following :
ORDER
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.185/2011 is hereby confirmed.
If any bail bond has been executed by the accused,
same shall stand cancelled.
Sd/-
JUDGE
Sd/-
JUDGE
SSD/RJ
