Sri.Gangappa vs The State Of Karnataka
2022 Latest Caselaw 3964 Kant

                             1


                                                 R
           IN THE HIGH COURT OF KARNATAKA
                  KALABURAGI BENCH

         DATED THIS THE 9TH DAY OF MARCH 2022

                         PRESENT

       THE HON'BLE MR. JUSTICE K. SOMASHEKAR

                           AND

 THE HON'BLE MR. JUSTICE ANANT RAMANATH HEGDE


         CRIMINAL APPEAL No. 200018/2018

Between:

Sri. Gangappa S/o Ramanna Arikeri
Age: 33 years, Occ: Agriculture
R/o: Neermanvi Village
Tq. Manvi, Dist. Raichur

                                          ... Appellant

(By Sri Arun Choudapurkar, Advocate)


And:

The State of Karnataka
Through CPI, Manvi
Represented by Special Public
Prosecutor, High Court of Karnataka
Kalaburagi Bench-585 103
                                        ... Respondent

(By Sri Prakash Yeli, Addl. SPP)
                              2




      This Criminal Appeal is filed under Section 374 (2) of
Cr.P.C., praying to allow the criminal appeal by setting
aside the impugned judgment of conviction dated: 27-12-
2017 and order of sentence dated: 28-12-2017 in
S.C.No.73/2014 on the file of the Prl. Dist. & Sessions
Judge at Raichur, convicting the appellant/accused No.4
for the offence punishable U/s 302 of IPC and awarding
sentence to undergo rigorous imprisonment for life and to
pay a fine of Rs.50,000/- and in default shall undergo
simple imprisonment for three years with fine of
Rs.25,000/- for the offence punishable U/s 498-A of IPC
and in default of fine simple imprisonment for six months
with the above sentence shall run concurrently and acquit
the appellant/accused No.4 and etc,.


      This appeal coming on for dictating judgment this
day, K. Somashekar J., delivered the following:

                       JUDGMENT

This appeal is directed against the judgment of

conviction and order of sentence passed by the

Principal District and Sessions Judge at Raichur in

S.C.No.73/2014 dated 27.12.2017 whereby the

accused No.4 namely Sri Gangappa is convicted and

sentenced to undergo rigorous imprisonment for life

and to pay a fine of Rs.50,000/- for the offence

punishable under Section 302 of Indian Penal Code,

1860 with default clause and to undergo rigorous

imprisonment for three years and to pay a fine of

Rs.25,000/- for the offence punishable under

Section 498A of Indian Penal Code, 1860 with default

clause, which is incorporated in the operative portion

of the order.

2. This appeal is filed challenging the

judgment of conviction rendered by the trial Court and

seeking to allow the appeal and consequently setting

aside the conviction held against accused No.4 in

S.C.No.73/2014 and to acquit the accused of the

offences punishable under Sections 498A and 302 of

Indian Penal Code, 1860 (hereinafter referred to as

the 'IPC' for short).

3. Heard learned counsel Sri Arun

Choudapurkar for appellant/accused No.4 and the

learned Additional State Public Prosecutor for

respondent/State. Perused the judgment of

conviction rendered by the trial Court in

S.C.No.73/2014.

4. Factual matrix of the appeal:

It transpires from the case of the prosecution

that the marriage of Smt. Sridevi was performed with

accused No.4 namely Gangappa about 11 years ago

and after her marriage, she was residing in the house

of her husband. At the time of her marriage, the

accused had demanded dowry in gold jewellery and

cash. Accordingly, received dowry of Rs.50,000/-

cash and gold jewellery weighing 4 tolas and also

household articles worth Rs.1,20,000/-. After her

marriage with accused No.4 Gangappa, the deceased

was blessed with a son namely Mounesh. After her

marriage when she was residing in the house of her

husband along with father-in-law, mother-in-law and

brother-in-law. The accused used to demand from her

to bring additional dowry from her parents' house,

saying so the accused were subjecting her to physical

as well as mental harassment. On 19.02.2014 her

brother-in-law who is arraigned as accused No.5

visited the place of Hutti on the pretext of celebrating

a fair festival of Renukamma Yellamma at Neermanvi

and brought her from her parental house to the

matrimonial house situated at Neermanvi. On

24.04.2014 at about 7.15 p.m. while the deceased

Smt. Sridevi was on the first floor of the house of

accused No.4, her husband picked up a quarrel with

his wife Sridevi by suspecting her character and

fidelity and to eliminate her on suspicion of her

fidelity, accused is alleged to have assaulted Sridevi

using the wooden leg of the cot on her right ear, the

backside of the right ear, on the head, forehead and

her face. As a result of the assault Smt. Sridevi

sustained severe bleeding injuries. When the accused

No.4 was assaulting the deceased, she raised alarm

and on hearing her scream, one Panduranga and

Gopal rushed to the scene of the crime on the top

floor of the house of the accused No.4. On seeing

them, accused No.4 fled from there. It is further

stated that the injured Sridevi was taken to hospital

for providing treatment by Nagappa and Gopal.

However on the way to the hospital at Kurdi Cross she

breathed last. Subsequently, the dead body of Smt.

Sridevi was taken back to her matrimonial home.

5. Kanakappa Gouda father of the victim filed

a complaint and the criminal law was set into motion

by registering the case in Crime No.66/2014 for the

offences punishable under Sections 498A, 504 and

302 read with Section 149 of IPC, besides Sections 3

and 4 of the Dowry Prohibition Act, 1961. After a

criminal case, by a recording of an FIR, Investigating

Officer takes up the case for investigation and filed a

charge sheet against the accused before the

committal court.

6. After passing of committal order as

contemplated under Section 209 of Cr.P.C., by

following the provisions of Section 207 of Cr.P.C. such

as furnishing a copy of the charge sheet, the case was

committed to the Sessions Court for trial.

7. After committing the case by the committal

Court to the Sessions Court heard the accused before

the charge. And charges are framed for the offences

punishable under Sections 498A, 504, 302 read

Section 149 of IPC against the accused persons. The

accused did not plead guilty but claimed to be tried.

Accordingly, the plea of the accused has been

recorded separately.

8. After framing of charge against the accused

persons, the prosecution let in evidence and examined

PWs.1 to 43 and also got marked several documents

at Exs.P1 to 52 and also material objects M.O.s-1 to

11. After the closure of the evidence on the part of

the prosecution, the accused were examined under

Section 313 of Cr.P.C. seeking an explanation for

incriminating statements which appeared against

them in the evidence. The accused denied the truth of

the evidence on the part of the prosecution. Ex.D1

and D2 have been got marked as contradictory

statements. After recording incriminating statements

as contemplated under the relevant provisions of

Cr.P.C., the accused were called upon to enter into

defence evidence as contemplated under Section 233

of Cr.P.C. Accordingly it was recorded.

9. After the 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. Based upon the complaint of

Kanakappa the criminal law was set into motion by

recording the FIR as per Ex.P-33 whereby the

signature of PW-34 Deepak Boosareddy was

subscribed. On the basis of the material evidence are

on record marked by the prosecution, trial court

concluded that the prosecution has proved the guilt of

the accused of the offences punishable under Sections

498A, 302 of IPC insofar as the appellant who is

arraigned as accused No.4 namely Gangappa. Insofar

as the remaining accused Nos.1 to 3 and 5 the case

against them ended in acquittal for the offences

punishable under Sections 504, 498A of IPC and

Sections 3 and 4 of the Dowry Prohibition Act. The

said judgment is under challenge in this appeal by

urging various grounds.

10. The counsel for the appellant has taken us

through the evidence of P.W.26, who is a child witness

namely, Mounesh and who is the son of deceased

Sridevi and also the son of accused No.4 who is the

appellant before this Court. However, the said

Mounesh is not cited in the charge-sheet as one of the

prosecution witnesses nor he has given any statement

before the investigating officer during the

investigation and no attempt has been made by the

investigating agency to record the evidence of P.W.26,

who was said to be present at the time of the crime

and it is alleged that appellant assaulted with M.O.1

namely the piece of the old wooden cot. P.W.6 was

said to be present along with his mother deceased

Sridevi. However, there are no material witnesses

relating to direct overt acts attributed against this

appellant or even there are no eyewitnesses on the

part of the prosecution to say that this appellant

assaulted the deceased using M.O.1 and also caused

injuries over her person. There is no evidence on

record regarding cruelty or demand in terms of dowry

either in the form of cash or in terms of jewellery. The

charges in respect of the mental as well as physical

harassment made to the deceased by the accused

Nos.1 to 3 and 5 under Sections 3 and 4 of the Dowry

Prohibition Act, 1961 are not proved. There is no

consistency relating to appreciation of the evidence on

the charges framed against co-accused Nos.1 to 3 and

5 and the charges against accused No.4 who is

appellant before this Court.

    11.    Second   limb    of   the argument    by     the

learned   counsel   for    the   appellant   relating    to

Section 161 of Cr.P.C., whereas P.W.26-Mounesh has

been subjected to examination by the prosecution by

making an application under Section 311 of Cr.P.C.,

This witness Mounesh was not cited as a witness in

the charge sheet. This aspect is required to be

considered, while appreciating the evidence of PW.26.

His evidence is to be carefully appreciated as he is

minor and there is every possibility of a minor being

tutored by some persons to secure the conviction of

the accused persons.

12. Whereas, in the instant case, P.W.26 who

is an eyewitness and even according to the theory of

the prosecution that this witness has not been

examined during the investigation by the investigating

agency. But, this witness has been subjected to

examination during the trial by the prosecution by

invoking Section 311 of Cr.P.C. But this witness did

not disclose the facts relating to the incident that

occurred with his mother on a fateful day. Therefore,

the evidence of P.W.26 runs contrary to the evidence

of P.W.27 who is the author of the complaint at

Ex.P.35-Complaint. P.Ws.3 to 20 have been subjected

to examination on the part of the prosecution.

However, they did not support the version of their

statements said to have been recorded by the

investigating agency and so also they have not

supported the versions of the statements made before

the investigating agency which runs to the contrary to

the substances in the FIR at Ex.P-33 and consequently

contrary to the averments made in the complaint at

Ex.P.35.

13. It is urged that the trial court has not

properly appreciated the evidence on record even the

evidence of P.W.26 also. The trial court misread the

evidence and also misdirected the evidence and came

to the conclusion that the prosecution has proved the

guilt of the appellant herein regarding physical as well

as mental harassment given to the deceased by

insisting her to bring additional dowry from her

parent's house, though the other accused are

acquitted for the offences under Sections 498-A and

504 of IPC inclusive of offences punishable under

Sections 3 and 4 of the Dowry Prohibition Act. There is

no adequate evidence facilitated by the prosecution in

securing the conviction. When the doubt arises in

respect of involvement of the accused Nos.1 to 3 and

5, the same benefit shall have to be extended to the

accused No.4 who is the husband of the deceased-

Sridevi.

14. P.W.1 Ramesh and P.W.2 Bandenawaz,

who are the panch witnesses did not support

mahazars at Exs.P1 to P3. Therefore, their evidence

runs contrary to the evidence of investigating officer

who conducted the investigation and laid the charge

sheet against the accused. The prosecution did not

facilitate the worthy evidence even relating to the

motive factor and whereby this appellant was alleged

to have murdered his wife deceased Sridevi by

suspecting her fidelity. Under these circumstances, it

is urged to re-appreciate the evidence which has been

facilitated by the prosecution, if not, certainly there

shall be a substantial miscarriage of justice.

15. Lastly, the learned counsel contended by

referring to the evidence of P.W.32 said to be the

eyewitnesses on the part of the prosecution that

P.W.43, who is the investigating officer stated in his

evidence and also admitted in the cross-examination

that P.W.33 is no eyewitness to the incident as

narrated in the complaint made by P.W.27. However,

the trial court has given credentials to the evidence of

P.W.26 being an eyewitness. Further, P.W.29 was the

doctor who conducted an autopsy over the dead body

of the deceased and issued post mortem report

whereby opined that the injuries are simple, but it

might have caused the death of the deceased. But in

the cross-examination admitted that she may have

taken food for 5-6 hours before the death and if it is

accepted then the prosecution theory that the

deceased Sridevi who had taken food with the accused

No.4 who is her husband and P.W.26 at around 8.00

p.m. on the date of the incident appears to be

incorrect. But this important aspect has not been

proved by the prosecution by facilitating worthy

evidence. Therefore, the alleged assault made by this

accused with means of M.O.1 would create some

doubt as this evidence runs contrary to the evidence

of P.W.26.

against whom offences punishable under

Sections 498-A and 504 of IPC have been acquitted

inclusive of Sections 3 and 4 of Dowry Prohibition Act.

Another aspect is the motive factor in the theory of

the prosecution alleged even for the offence under

Section 302 of IPC. If the evidence of the prosecution

is read in the totality of the circumstances, a prudent

man can say that doubt arises in the theory of the

prosecution. The benefit of the doubt must always be

given to the accused. It is submitted that the accused

is in judicial custody for almost eight years. But the

prosecution though letting the evidence of several

witnesses and several documents have been marked

including M.O.1 the material object alleged to be used

by this appellant in murdering his wife by suspecting

the fidelity, but no credible evidence has been elicited

by the prosecution. Further, the trial court has come

to the wrong conclusion that the prosecution has

proved the guilt of the accused. These are all the

contentions made by the learned counsel for the

appellant seeking for the intervention of this court and

hence seeks to set aside the impugned judgment

rendered by the trial court whereby the appellant has

been convicted for the offences under Section 498-A

and 302 of IPC.

17. Per contra, learned Additional State Public

Prosecutor who has taken us through the entire

prosecution witnesses and the documentary evidence

more particularly the complaint at Ex.P.35 which is

said to be lodged by P.W.27, who is none other than

the father of the deceased. Pursuance of said

complaint, criminal law was set into motion by

recording FIR as per Ex.P.33.

18. It is further contended that P.W.26 who is

the child witness and who is none other than the son

of the deceased stated in his evidence relating to how

the accused assaulted his mother Sridevi with means

of M.O.1 over her person on the terrace of the house

when she was present along with his son. After the

assault, the deceased was taken to Government

Hospital to provide treatment but while proceeding

near Kurdi cross, the Sridevi died. Therefore, she was

taken to the matrimonial house and whereby on

information about the murder of Sridevi, a case came

to be registered. It is contended that due to

harassment meted out by the accused demanding the

additional dowry from her parent's house, the

deceased was done to death on a fateful day by the

appellant in the presence of P.W.26 on the terrace of

their house. But, for want of proof of evidence,

accused Nos.1 to 3 and 5 were acquitted by the trial

court. But, there is sufficient evidence available on

record insofar as this appellant to hold conviction for

the offences of which he is charged and accordingly

the trial court after appreciating the material on

record, convicted the accused No.4, the present

appellant.

19. Nextly, learned Additional State Public

Prosecutor has given more emphasis on the evidence

of P.W.43 who has stated in his evidence that around

3.00 a.m. on 25.02.2014, he visited the Government

Hospital, Manvi and secured the panch witnesses and

drawn inquest over the dead body of the deceased as

per Ex.P.43 and also taken the photographs at

Exs.P.44 and 45. As per Ex.P.1, spot mahazar and

this panchanama has been conducted by him in the

presence of P.Ws.1 and 2 and seized the material

objects as per M.O.1 to M.O.4. The material objects

have been identified and merely because the panch

witnesses turned hostile, the impugned judgment

cannot be set aside on that premise alone.

20. It is further contended that P.W.29 being

the doctor conducted the autopsy over the dead body

of the deceased and issued post mortem report and

noted the injuries inflicted over her person, such as

abrasion over the right side of chin parts measuring 1

x 1 c.ms., abrasion over right eyebrow parts

measuring 1 x 1 c.ms and abrasion over the upper lip,

left side measuring 1 x 1 cm. Therefore, the evidence

of P.W.29 remained uncontroverted and the said

witness fully supports the case of the prosecution and

the conviction held by the trial court in respect of the

appellant for the offences alleged against him are

proved. Even though there are some discrepancies,

same are not fatal to the case. Therefore, keeping all

these aspects, the trial court has given more

conscious consideration to the evidence of P.W.26 and

the fact that the case against the co-accused Nos.1 to

3 and 5 ended an acquittal cannot be a ground for the

appellant herein to set aside of the impugned

judgment rendered by the trial court. Hence, no

interference is required with the impugned judgment

at the hands of this court and on the aforesaid

grounds, learned Additional State Public Prosecutor

seeks dismissal of the appeal.

21. P.Ws.1 and 2 being panch witnesses to

EX.P.1 spot mahazar have not supported the case of

the prosecution and their evidence runs contrary to

the evidence of P.W.43. It is pertinent to note that

the investigating agency did not make any attempt to

record the statement of P.W.26 during the

investigation. Therefore, the evidence of P.W.26 has

to be scrutinized meticulously. Moreover, he is the

child witness. Evidence of PW.26 runs contrary to the

evidence of P.W.27 who is none other than the author

of the complainant at EX.P.35.

22. In the instant case the allegation that this

appellant alleged to have assaulted with means of

M.O.1 to eliminate his wife by suspecting her fidelity

and also insisted her to bring dowry from her parent's

house in terms of the cash and gold jewellery.

Admittedly, there is no acceptable evidence that has

been led on the part of the prosecution for securing a

conviction in respect of accused Nos.1 to 3 and 5.

When the doubt arises in the mind of the Court the

benefit of the doubt be accrued to the accused, if not,

the appellant would be the sufferer and it leads to

miscarriage of justice.

23. It is relevant to refer to Section 299 of the

Indian Penal Code, 1860 relating to culpable homicide.

Section 299 of IPC and Explanation 1 to 3 of Section

299 of IPC reads as under;

299. Culpable homicide-Whoever causes death by doing an act to cause death, or to cause such bodily injury as is likely to cause death, or with the knowledge that he is likely by such act to cause death, commits the offence of culpable homicide.

Explanation 1.-A person who causes bodily injury to another who is labouring under a disorder, disease or bodily infirmity, and thereby accelerates the death of that other, shall be deemed to have caused his death.

Explanation 2.- Where death is caused by bodily injury, the person who causes such bodily injury shall be deemed to have caused death, although by resorting to proper remedies and skilful treatment the death might have been prevented.

Explanation 3.- The causing of the death of a child in the mother's womb is not homicide. But it may amount to culpable homicide to cause the death of a living child if any part of that child has been brought forth, though the child may not have breathed or been completely born.

24. Further, for the sake of convenience,

Exception 1 of Section 300 of IPC is extracted as

under;

Exception 1 - When culpable homicide is not murder- Culpable homicide is not murder if the offender, whilst deprived of the power of self-control by grave and sudden provocation, causes the death of the person who gave the provocation or causes the death of any other person by mistake or accident.

The above exception is subject to the following provisos:-

First.-That the provocation is not sought or voluntarily provoked by the offender as an excuse for killing or doing harm to any person.

Secondly.-That the provocation is not given by anything done in obedience to the law, or by a public servant in the lawful exercise of the powers of such public servant.

Thirdly.- That the provocation is not given by anything done in the lawful exercise of the right of private defence.

25. It is relevant to refer to the distinction

between culpable homicide and murder. Culpable

homicide is the genus and 'murder' its species. All

murders are culpable homicides but not vice-versa.

Speaking generally, all culpable homicide does not

amount to murder. The same has been extensively

addressed by the Hon'ble Supreme Court in the case

of Rampal Singh Vs. State of Uttar Pradesh

reported in 2012 (8) SCC 289. Insofar as the

presumption relating to the evidence or knowledge of

the accused who is said to struck on his wife a violent

blow on the head with which rendered her

unconscious or inflicts of injuries over her person even

the intention of the accused must be judged and not

in the light of the actual circumstance but in the light

of the, what is supposed to be the circumstances?

The same has been extensively addressed in a

judgment of Palani Goundan vs. The Emperor

reported in 1999(2) Madras 547.

26. Insofar as the third illustration in Section

300 of IPC, the difference between the second clause

of Section 299 and clause 'thirdly' of Section 300 to

one of the degrees of probability of death resulting

from the intended bodily injury. To put it more

broadly, it is the degree of probability of death that

determines whether a culpable homicide is of the

gravest, medium, or lowest degree. The word likely in

the second clause of Section 299 conveys the sense of

probable as distinguished from a mere possibility. The

words 'bodily injury' sufficient in the ordinary course

of nature to cause death, in clause thirdly of

Section 300, means that death will be the most

probable result of the injury having regard to the

ordinary course of nature. This has been extensively

addressed in a case of State of Andhra Pradesh v.

Rayavarpu Punayya reported in AIR 1977 SC 45.

27. In the instant case, the appellant who is

arrayed as accused No.4 and that allegation against

him is that he has assaulted his wife deceased Sridevi

with means of M.O.1 and inflicted the injuries over her

person and even the doctor has conducted inquest

seizure over the dead body and issued the post

mortem report. But the theory of the prosecution is

that the accused Nos.1 to 3 and 5 and accused No.4

have extended physical or mental harassment to the

deceased and also insisted her to bring additional

dowry from her parent's house. It is alleged that the

accused, who is the appellant has suspected her

fidelity and committed the murder of the deceased by

inflicting injuries over her person with means of

M.O.1. The trial court rendered the acquittal judgment

in respect of accused Nos.1 to 3 and 5 relating to the

charges such as physical and mental harassment. But

the trial court misdirected the evidence of the

prosecution and also misread the evidence and

consequently came to the erroneous conclusion that

the prosecution has proved the guilt of the accused

beyond all reasonable doubt.

28. It is relevant to refer to Section 3 of the

Indian Evidence Act, 1872. Even the last scene theory

requires corroboration. The evidence of the

prosecution should be appreciated in a proper

perspective if not, the accused would be the sufferer.

29. 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 has been extensively addressed in the

judgment of State of Uttar Pradesh v. Kishanpal

reported in 2008 (8) JT 650.

30. Plurality of Witnesses - In the matter of

appreciation of evidence of witnesses, it is not the

number of witnesses, but the 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-

honoured principle, that 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 emphasized value

provided by each witness, rather than the multiplicity

or plurality of witnesses. It is quality and not quantity,

which determines the adequacy of evidence as has

been provided by Section 134 of the Evidence Act,

1872. This has been extensively addressed by the

Hon'ble Supreme Court of India in the case of

Laxmibai (Dead) through LRs vs Bhagwantbura

(Dead) through LRs, reported in AIR 2013 SC

1204.

31. The law of evidence does not require any

particular number of witnesses to be examined in

proof of a given fact. However, faced with the

testimony of a single witness, the Court may classify

the oral testimony of a single witness, the Court may

classify the oral testimony into three categories,

namely (i) wholly reliable, (ii) wholly unreliable, and

(iii) neither wholly reliable nor wholly unreliable. In

the first two categories, there may be no difficulty in

accepting or discarding the testimony of the single

witness. The difficulty arises in the third category of

cases. The Court as to be circumspect and has to look

for corroboration in material particulars by reliable

testimony, direct or circumstantial, before acting upon

the testimony of a single witness. This has been

extensively addressed by the Hon'ble Supreme Court

in the case of Lallu Manjhi v. the State of

Jharkhand, reported in AIR 2003 SC 854.

32. Merit of the statement is also an important

factor. It is a well-known principle of law that reliance

can be based on the solitary statement of a witness if

the Court concludes that the said statement is the

true and correct version of the case of the

prosecution. This aspect has been extensively

addressed in the case of Raja v. State (1997) 2

Crimes 175 (Del.)

33. Insofar as a child witness is concerned, the

evidence of a child witness must be evaluated more

carefully with greater circumspection because he is

susceptible to tutoring. Only in case, there is evidence

on record to show that a child has been tutored, the

Court can reject his statement partly or fully.

However, an inference as to whether the child has

been tutored or not can be drawn from the contents of

his deposition. This has been extensively addressed

in the case State of Madhya Pradesh Vs. Ramesh

& Anr. reported in 2011 (4) SCC 786.

34. The evidence of child witness is not even

required to be rejected per se, but the Court as a rule

of prudence considers such evidence with scrutiny and

only on being convicted about the quality thereof and

reliability can record a conviction, based thereon. It

was also extensively addressed in the case of Golla

Yelugu Govindu v. State of Andhra Pradesh

reported in AIR 2008 SC 1842.

35. Criminal courts decide the cases and

question of acceptance of evidence of the witnesses

on sound commonsense and when they find witnesses

to be wholly independent, they endeavour to fathom

the reason as to why their evidence should not be

accepted. Ordinarily, it is a safe and sound rule of

appreciation of evidence to accept the testimony of an

independent witness though provided, it is in

conscious with the probabilities. It is better if it is

corroborated by inbuilt guarantees much ensures the

truthfulness of the prosecution case. As such, a

prompt first information report (FIR), recovery at the

instances of the accused and the presence of some

injured eyewitnesses it was also extensively

addressing an issue in reliance on the decision in the

case of Sharvan Dashrath Datrange v. the State

of Maharashtra reported in 1997 (2) Crime 47.

36. Whereas, in the instant case, criminal law

was set into motion by receipt of a complaint at

Ex.P.35 and this complaint has been lodged by PW.27

and based upon this complaint, PW.34 who has been

recorded first information report (FIR) as per Ex.P.33.

But the substance of the FIR and also the averments

made in the complaint are found to be similar. It is a

domain vested with the prosecution to prove the guilt

of the accused with all beyond reasonable doubt by

facilitating the worthwhile evidence. But the trial court

has given more importance to the evidence of PW.26 -

Mounesh who is a child witness and who is none other

than the son of the deceased - Sridevi and also the

son of the accused No.4. The other witnesses who are

subjected to the cross-examination have not

withstood the version of the statements and their

statements have been got marked as per Ex.P.4 to

Ex.P.29 and their evidence are been running contrary

to the evidence of PW.26 - Mounesh who is a child

witness and further contradictory to the evidence of

PW.43 who is an Investigating Officer and who led the

charge-sheet against the accused by conducting a

thorough investigation. But on re-appreciation of the

entire evidence of the prosecution and even on

scrutiny of the evidence of PW.26 inclusive of the

evidence of PW.27 -Kanakappa Gouda who is none

other than the father of the deceased and also the

author of the complaint at Ex.P.35, there is no

difficulty to hold that there are some clouds of doubt

in the case of prosecution and when the clouds of

doubt arise the benefit of the doubt it is always be

given to the accused alone. But in the instant case,

the benefit of the doubt has been extended only to the

co-accused No.1 to 3 and also accused No.5 and they

are the parents and brother of this appellant/accused

No.4. This accused is alleged that he suspected the

fidelity of the deceased and also insisted her to bring

additional dowry from her parent's house. But there is

no credible evidence facilitated by the prosecution

even for conviction against the appellant/accused No.4

to hold that he has murdered to eliminate the

deceased. It is said that on seeing the two persons

namely PW.18 - Gopal and PW.20 Nagappa the

accused ran away from the spot i.e., from the terrace

which is the scene of the crime. But, PW.18 and

PW.19 and even PW.22 have been subjected to cross-

examine on behalf of the prosecution and nothing is

elicited to prove the version of the prosecution. But

their evidence is contrary to the evidence of PW.43

being an Investigating Officer. Even though he has

conducted the spot mahazar at Ex.P.1 and even

seizure mahazar at Exs.P.2 and P.3 in presence of

PWs.1 and 2, they have not withstood with the version

of the fulcrum of the mahazar.

37. In the instant case, the appellant who is

arraigned as accused No.4 is in judicial custody since

the date of his arrest and even after holding

conviction by the trial court. He is undergoing

incarceration for more than eight years and this

contention is also taken by the learned counsel for the

appellant by addressing so many issues by referring to

the evidence and also referring to the contention in

written synoptic notes. The accused is in incarceration

for more than eight years though it may not be

sufficient to hold that there is a service of sentence for

culpable homicide or murder. When the theory of the

prosecution in totality gives scope for genuine doubts,

the benefit of the doubt should be extended only to

the accused but not on the theory of the prosecution.

Therefore, in terms of the aforesaid reasons and

findings, this court thinks that the prosecution even

though examined several witnesses and got marked

several documents there is no positive, corroborative

and cogent evidence to probabalise beyond reasonable

doubt that the accused who is an appellant has

committed the offence by eliminating the deceased -

Sridevi. Therefore the accused is required to be

acquitted of the charges. Accordingly, we proceed to

pass the following:

ORDER

The appeal preferred by the appellant/accused No.4-Gangappa S/o Ramanna Arikeri under Section 374(2) of the Code of Criminal Procedure is hereby allowed.

Consequently, the judgment of conviction and order of sentence passed by the court of Principal District and Sessions Judge, Raichur dated 27/28.12.2017 is hereby set aside.

The appellant/accused No.4 is hereby acquitted for the offences punishable under Sections 498A and 302 of the Indian Penal Code.

If any fine amount has been deposited by appellant/accused No.4, the same shall be returned to him under due identification.

If the appellant/accused No.4 executed the bail bond, the same shall stand cancelled.

The appellant/accused No.4 who is in judicial custody since the date of his arrest, is set at liberty if he is not required in any other case. Therefore, the Registry of this court is directed to communicate the operative portion of this judgment to the Jail Superintendent, Central Jail, Kalaburagi for compliance in respect of the release of the appellant /accused No.4 by law.

SD/-

JUDGE

SD/-

JUDGE

swk/BL/sn