Karnataka High Court
State Of Karnataka vs Imahussain Kasimsab Yadawad on 30 May, 2023
Bench: Ashok S. Byaskj, Vntj
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CRL.A.No. 100180 of 2017
IN THE HIGH COURT OF KARNATAKA, DHARWAD
BENCH
DATED THIS THE 30TH DAY OF MAY, 2023
PRESENT
THE HON'BLE MR JUSTICE ASHOK S. KINAGI
AND
THE HON'BLE MR JUSTICE VENKATESH NAIK T
CRIMINAL APPEAL NO. 100180 OF 2017
BETWEEN:
GIRIJA A STATE OF KARNATAKA
BYAHATTI BY THE DSP, BAILHONGAL
RAMADURG POLICE STATION
Digitally signed by
GIRIJA A BYAHATTI
Location: HIGHCOURT
DISTRICT: BELAGAVI
OF KARNATAKA-
DHARWAD BENCH REP. BY STATE PUBLIC PROSECUTOR
Date: 2023.06.01
12:15:29 +0530 HIGH COURT OF KARNATAKA
DHARWAD BENCH.
...APPELLANT
(BY SRI V.M. BANAKAR ADDL.SPP)
AND:
1. IMAMHUSSAIN KASIMSAB YADAWAD
AGE: 28 YEARS
2. AYESHA KOM. KASIMSAB YADAWAD
AGE: 62 YEARS
3. SMT. SALEEMA JAKIRHUSSAIN YADAWAD
AGE: 32 YEARS
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CRL.A.No. 100180 of 2017
4. MOHIBUD KASIMSAB YADAWAD
AGE: 40 YEARS
5. JAKIRHUSSAIN KASIMSAB YADAWAD
AGE: 38 YEARS
6. MUKTUMHUSSAIN @ MUNNA KASIMSAB YADAWAD
AGE: 29 YEARS
7. SMT. RABIYA MUNNA YADAWAD
AGE: 22 YEARS
ALL ARE R/O.PADAKOTI STREET
RAMADURG, TALUK RAMADURG
DIST. BELAGAVI.
...RESPONDENTS
(BY SRI H.M. DHARIGOND, ADVOCATE)
THIS CRIMINAL APPEAL IS FILED UNDER SECTION
378(1) AND (3) OF THE CODE OF CRIMINAL
PROCEDURE, 1973, PRAYING TO SET ASIDE THE
JUDGMENT AND ORDER OF ACQUITTAL DATED
08.12.2015 PASSED BY THE LEARNED V ADD. DISTRICT
AND SESSIONS JUDGE, BELAGAVI IN S.C.NO.106/2012
AND CONVICT AND SENTENCE THE
RESPONDENTS/ACCUSED FOR THE OFFENCES
PUNISHABLE UNDER SECTIONS 143, 147, 498-A, 302,
323, 504 READ WITH SECTION 149 OF THE IPC.
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CRL.A.No. 100180 of 2017
THIS APPEAL HAVING BEEN HEARD AND RESERVED
FOR JUDGMENT ON 22.05.2023, COMING ON FOR
PRONOUNCEMENT OF JUDGMENT THIS DAY,
VENKATESH NAIK T. J., DELIVERED THE FOLLOWING:
JUDGMENT
1. The State of Karnataka has filed this appeal under
Section 378(1) and (3) of the Code of Criminal
Procedure, 1973, impugned by the judgment and
order of acquittal dated 08.12.2015 passed by the
learned V Addl. District and Sessions Judge,
Belagavi, in S.C.No.106/2012 and to set aside the
judgment and order of acquittal and prays to
convict the respondents/accused and sentence
them for the offences punishable under Sections
143, 147, 498A, 302, 323 and 504 read with
Section 149 of IPC.
2. The brief factual matrix that emanate from the
records are that;
CRL.A.No. 100180 of 2017
2.1. The respondents herein, who are the in-laws
of the complainant - Smt.Yasmin (PW1), are
arrayed as accused Nos.1 to 7 before the V
Addl. District and Sessions Judge, Belagavi.
The deceased Fakrusab is the father of PW1.
On 08.11.2011, after celebrating Bakrid
festival, deceased Fakrusab along with PW1
came to the house of DW1 - Mainuddin, who
is the husband of PW1. On the same day at
5.00 pm, accused Nos.1 to 7, being the
members of an unlawful assembly, with their
common object to give physical and mental
torture to Yasmin (PW1), saying that she did
not know the household work, all the accused
with an intention to commit the murder,
started quarreling with them, committed
rioting and assaulted them with hands, kicked
the deceased Fakrusab with leg, thereby
Fakrusab dashed to a stone and thus the
CRL.A.No. 100180 of 2017
accused caused grievous injuries to Fakrusab
and ultimately he died on the spot. Therefore,
PW1 lodged the complaint before the
Ramadurg Police Station as per Ex.P1.
2.2. On the basis of the complaint lodged by PW1,
the SHO of Ramadurg Police Station registered
a case in Crime No.204/2011 for the offences
punishable under Sections 143, 147, 498A,
302, 323 and 504 read with Section 149 of
IPC and submitted FIR (Ex.P16) to the
jurisdictional court and his higher authorities
and later the Investigating Officer conducted
the investigation, visited the spot, drew
mahazers, recorded the statement of
witnesses and after completion of
investigation, has filed the charge sheet
against accused Nos.1 to 7 for the aforesaid
offences.
CRL.A.No. 100180 of 2017
2.3. After filing of the charge sheet, learned
jurisdictional Magistrate took cognizance of
the offences and since the offences alleged
against the accused are to be tried by the
Court of Sessions, learned Magistrate
committed the matter to the Court of
Sessions, Belagavi, for trial.
2.4. After receipt of the committal record, it was
numbered as S.C.No.106/2012. Learned
Sessions Judge secured the presence of the
accused before the Court. After hearing both
the counsel, charges were framed for the
aforesaid offences. The accused have pleaded
not guilty and claimed to be tried.
2.5. The prosecution in order to bring home the
guilt of the accused, examined in all 16
witnesses as PW1 to PW16 and got marked 20
documents as Exs.P1 to P20 and material
objects as M.Os. 1 to 4. After completion of
CRL.A.No. 100180 of 2017
the evidence, statements of the accused were
recorded by the trial Court under Section 313
Cr.P.C. and case of the accused was of total
denial.
2.6. On behalf of the accused, Kwajamainuddin
Khasimsab Yadawad has been examined as
DW1.
2.7. After hearing the detailed arguments, learned
Sessions Judge framed the following points for
consideration:
1) Whether the prosecution proves
beyond all reasonable doubt
that accused No.1 to 7 being the
in-laws of complainant - Yasmin
in her husband's house at
Padakoni street, Ramadurg,
being the members of unlawful
assembly with their common
object, gave physical and
mental torture to the
complainant on the pretext that
she does not know the
household work and thereby
CRL.A.No. 100180 of 2017
committed an offence
punishable under Section 498(A)
read with section 149 of IPC ?
2) Whether the prosecution proves
beyond all reasonable doubt
that at the above said place, on
8.11.2011 at about 5.00 p.m.,
when the complainant returned
to her husband's house along
with her father-Fakrusab after
attending Bakrid Festival at her
parental house, all the accused
with an intention to commit
murder, started quarrel with
them and rioted them and
thereby committed an offence
punishable under section 147
read with Section 149 of IPC ?
3) Whether the prosecution proves
beyond all reasonable doubt
that on the above said date,
place and time, all the accused
with an intention to commit
murder, started quarrel with
complainant and her father and
abused them in filthy language
and thereby the accused
committed an offence
CRL.A.No. 100180 of 2017
punishable under section 504
read with Section 149 of IPC ?
4) Whether the prosecution proves
beyond all reasonable doubt
that on the above said date,
place and time, all the accused
with an intention to commit
murder, started quarrel with
complainant and her father and
assaulted them with hands and
thereby caused injuries to
complainant and thereby the
accused committed an offence
punishable under section 323
read with Section 149 of IPC ?
5) Whether the prosecution proves
beyond all reasonable doubt
that on the above said date,
place and time, all the accused
with an intention to commit
murder, started quarrel with
complainant and her father-
Fakrusab and kicked deceased
Fakrusab with leg thereby the
head of Fakrusab dashed to the
stone, caused grievous injuries
and thereby he died on the spot,
thereby the accused committed
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CRL.A.No. 100180 of 2017
an offence punishable under
section 302 read with Section
149 of IPC?
6) What Order?
FINDING OF THE SESSIONS COURT
2.8. Learned Sessions Judge held that the
prosecution has failed to prove that on
8.11.2011 at 5.00 pm at Padakoti street,
Ramadurg, accused Nos. 1 to 7 being the in-
laws of Yasmin, in her husband's house gave
physical and mental torture to her on the
pretext that she does not know the household
work and on the same day accused Nos. 1 to
7 have committed rioting, quarreled with the
deceased Fakrusab, intentionally insulted him,
started quarreling with Yasmin (PW1) and her
father and also assaulted them with hands
and caused injury to the father of
Yasmin(PW1). The trial Court also observed
that the prosecution failed to prove that all
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CRL.A.No. 100180 of 2017
the accused with an intention to commit
murder quarreled with PW1 Yasmin and her
father Fakrusab and kicked Fakrusab with leg
thereby head of Fakrusab dashed to the stone
and hence deceased succumbed to injuries.
2.9. Therefore, entertaining suspicion in the case
of the prosecution and giving those benefits of
suspicious circumstances in favour of accused,
learned Sessions Judge acquitted accused
Nos.1 to 7 for the offences punishable under
Sections 143, 147, 498A, 302, 323 and 504
read with Section 149 of IPC.
2.10. Aggrieved by the judgment of acquittal passed
by the trial Court, the State has preferred this
appeal.
3. We have heard the arguments of Sri. V. M.
Banakar, learned Addl. SPP appearing for the
appellant - State submitted that:
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CRL.A.No. 100180 of 2017
3.1. PW1 - Yasmin, who is the victim and daughter
of the deceased Fakrusab and who is also an
eyewitness to the incident, has clearly
deposed the overt act of the accused persons;
Further, PWs. 9, 10 and 15, who are the
circumstantial witnesses, have clearly deposed
regarding the ill-treatment and harassment
meted out to PW1 - Yasmin; The evidence of
prosecution witnesses is corroborated by
PW12 - doctor, who conducted autopsy over
the dead body of the deceased and issued
post-mortem report as per Exs.P12 and his
opinion as per Ex. P14; PW11 - Rashida,
mother of PW1 and the wife of deceased
Fakrusab, has also deposed in support of the
prosecution case; but the evidence of these
witnesses have not been properly appreciated
by the trial Court in its proper perspective and
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CRL.A.No. 100180 of 2017
thereby the trial Court erred in acquitting the
respondents.
3.2. Further, there are lot of materials placed
before the Court, as to the motive on the part
of accused persons, to do away with the life of
deceased - Fakrusab, but the trial Court has
not considered these aspects in the proper
perspective; Considering the minor and
ignorable inconsistencies and contradictions,
the trial Court has acquitted the accused
persons.
3.3. Further, the judgment and order of acquittal
passed by the trial Court is contrary to law,
facts and evidence on record and the same is
not sustainable in law and requires to be set
aside.
3.4. Further, the trial Court, instead of relying on
the truthful version of evidence of PWs.1 and
11, who are the eyewitnesses to the incident,
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CRL.A.No. 100180 of 2017
has relied upon the hostile evidence of PWs. 2
to 8 and the same is perverse and not
sustainable in law; In fact PWs. 2 to 8 hails
from the place of accused persons and on the
other hand, the victim and deceased were
from different place and naturally those
witnesses from the place of accused supports
the accused and therefore, they have turned
hostile to the case of the prosecution; but this
aspect of the matter has not been taken into
consideration by the trial Court while
assessing the evidence on record and thereby
erred in passing the impugned judgment and
order.
3.5. Further, the trial Court has relied on the
evidence of DW1, who is the husband of the
victim (PW1) and who is also the son of
accused No.2. DW1, being the family member
of the accused, naturally, he will not depose
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CRL.A.No. 100180 of 2017
anything against accused persons, but whose
evidence has been considered by the trial
Court; Though the prosecution has placed
sufficient materials in proof of harassment and
ill-treatment meted out to PW1 by the
accused persons and the medical evidence is
also supporting the case of the prosecution
insofar as cause of death of Fakrusab, but the
trial Court has not properly appreciated these
aspects and the evidence of PW12; The
reasons assigned by the trial Court are not at
all just and proper; In fact, the trial Court
ought to have convicted the accused by taking
into consideration the evidence of
eyewitnesses i.e., PWs. 1 and 11 and also the
circumstantial evidence of PWs. 9, 10, 12 and
15, thereby the trial Court has caused
miscarriage of justice.
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CRL.A.No. 100180 of 2017
3.6. Hence the appellant - State prays to set aside
the judgment of acquittal and to convict the
accused for the aforesaid offences.
4. Per contra, Sri H.M. Dharigond, learned counsel for
the respondents/accused No.1 to No.7 submitted
that;
4.1. Prima facie there is no evidence against the
accused for the commission of alleged
offences; The trial Court has considered the
entire evidence on record, after appreciating
the material on record, has come to the
conclusion that, there are suspicious and
doubtful circumstances in the case, which
should extend in favour of accused persons
and giving the benefit of doubt, learned
Sessions Judge has acquitted the accused
persons for the aforesaid offences.
4.2. Further, there are discrepancies and
inconsistencies in the evidence of prosecution
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CRL.A.No. 100180 of 2017
witnesses and the evidence of PW1, PWs. 9 to
11 and PW15 are contradictory with each
other; The inquest mahazer witness PW2,
spot panchanama witness PW3 have not
supported the case of the prosecution; The
seizure mahazer witnesses PWs. 4 and 5 have
turned hostile; The eyewitnesses to the
incident PWs. 6, 7 and 8 have also been
turned hostile to the prosecution.
4.3. Further, on perusal of Ex.P1 - complaint,
there are no allegations of torture; Hence no
weightage to be given to the evidence of PW1,
PWs. 9 to 11 and PW15.
4.4. Further, the homicidal death of deceased
Fakrusab has not been proved, as death is
caused due to cardiac arrest and in the post-
mortem report (Ex.P12), the doctor observed
that the death is due to cardiac arrest and
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CRL.A.No. 100180 of 2017
there is no opinion that the death was due to
the injuries sustained.
4.5. Further, the prosecution witnesses have
clearly admitted that the deceased fell in front
of the house; Therefore, the trial Court has
rightly acquitted the accused persons for the
aforesaid offences, which is in accordance with
law.
4.6. Therefore, there is no consistency and reliable
evidence placed before the court in order to
draw any inference of guilt against the
accused persons and to convict them.
4.7. On all these grounds, learned counsel for the
respondents/accused prays for dismissal of
the appeal.
4.8. The trial court has assigned the valid reasons
and has rightly recorded the finding that, the
prosecution has failed to prove charges
against the accused beyond reasonable doubt
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CRL.A.No. 100180 of 2017
and rightly extended the benefit of doubt to
the accused and rightly acquitted the accused
persons.
5. Having heard the learned counsel appearing for the
parties and after bestowing our careful and anxious
consideration to the rival contentions raised at the
Bar, we are of the considered view that, following
points would arise for our consideration:
5.1. Whether the judgment of acquittal passed in
S.C.No.106/2012 for the offence punishable
under Sections 143, 147, 498-A, 302, 323 and
504 R/w. 149 of the IPC is based on proper
appreciation of evidence and as such, it is
liable to be sustainable?
5.2. What order?
DISCUSSION AND FINDINGS ON THE POINTS
FORMULATED ABOVE
Re: Point No.1
6. Before adverting to the appreciation of evidence of
the witnesses on record, we feel it just and
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CRL.A.No. 100180 of 2017
necessary to have a cursory look at the evidence of
the prosecution witnesses.
6.1. PW1 - Yasmin, is the complainant, eyewitness
and daughter of deceased Fakrusab. In her
evidence, PW1 has stated that she was given
in marriage to DW1 - Mainuddin and the
accused persons are her in-laws; After the
marriage she went to the house of DW1 at
Padakoti street, Ramadurg and their
relationship was in cordial terms; Since PW1
and DW1 were cordial, the accused persons
being jealous about it, were abusing her and
assaulting her and they used to add more salt
and chilly to the dishes prepared by PW1 and
were complaining to her husband and getting
her beaten by her husband; DW1 took PW1
to her parents' house for Bakrid festival and
thereafter DW1 did not take PW1 to his
house; When things stood thus, on
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CRL.A.No. 100180 of 2017
08.11.2011, at 5.00 pm, the father of PW1
took her to the house of DW1; As soon as
PW1 and her father went to the house of
DW1, the accused persons did not allow them
to go inside the house and the accused
assaulted PW1 in front of her father and
accused No.1 assaulted her with hands and
when her father came to her rescue, all the
accused assaulted her father with hands and
kicked him with legs and thrown him away;
Further, soon after the assault, her father was
requesting for help; When she was about to
go inside the house for getting water, at that
time, accused No.2 abused her and assaulted
her; Since the water was not given to her
father, he suffered a lot and thereafter,
accused No.1 assaulted her father with leg
and kicked on his chest; Therefore, her father
died on the spot; She informed the incident
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CRL.A.No. 100180 of 2017
to her relatives and on the following day, she
lodged the complaint as per Ex.P1; The police
conducted inquest panchanama on the dead
body of her father, she showed the spot of
incident to the police and they drew
panchanama. PW1 has been cross-examined
extensively.
6.2. PW2 - Hasansab is the inquest mahazer
witness. In his evidence, he has stated that,
he does not know other witnesses to the
mahazer and the deceased; The police have
not conducted any inquest in his presence and
he does not know the contents of Ex.P4 -
Inquest Panchanama.
6.3. PW3 - Mohammad Rafiq is the witness to the
spot panchanama (Ex.P5). He has stated that
he does not know the accused and other
witnesses to the spot panchanama; The
police have not conducted panchanama in his
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CRL.A.No. 100180 of 2017
presence and he does not know the contents
of Ex.P5 - Spot Panchanama.
6.4. PW4 - Imamsab and PW5 - Ismail are the
witnesses to the seizure mahazer (Ex.P6).
They have turned hostile to the case of the
prosecution.
6.5. PW6 - Fakrusab and PW7 - Lalsab are the
eyewitnesses to the incident. They have
stated that, they do not know the deceased;
they do not know when marriage of PW1 with
DW1 has taken place. These witnesses do not
know whether accused persons gave torture
to PW1 and as such, they do not know about
the incident and they have not witnessed the
incident and not given any statement to the
police. According to these witnesses, they
never go to pacify the quarrel.
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CRL.A.No. 100180 of 2017
6.6. PW8 - Husenbi is another eyewitness to the
incident. In her evidence, she has stated that
she does not know the accused, PW1 and
deceased Fakrusab; She does not know
whether the accused were giving torture to
PW1 and she does not know the assault made
by the accused on Fakrusab and she does not
know whether accused persons have
murdered him or not. Therefore, these
witnesses have not supported the case of the
prosecution.
6.7. PW9 - Rastum, PW10 - Kadaratali and PW11
- Rashida, are the circumstantial witnesses,
who went to the house of accused for
pacifying the quarrel. In their evidence, they
have stated in line with the evidence of PW1.
6.8. PW12 - Dr. Vidyawati Pundalik Amminbhavi,
is the doctor who conducted post-mortem of
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CRL.A.No. 100180 of 2017
deceased Fakrusab and after the post-
mortem, she gave her report as per Ex.P12.
6.9. PW13 - Ramesh, is the PWD Engineer. In his
evidence, he has stated that he visited the
spot and prepared spot sketch (Ex.P15) and
handed over the same to the Investigating
Officer.
6.10. PW14 - Maruti Mallappa Dyamangoudra, in his
evidence has stated that, on 09.11.2011, he
carried the FIR (Ex.P16) and original
complaint to the JMFC Court, Ramdurg. PW15
- Mujamil is the another circumstantial
witness, who deposed in line with PW4 and
PWs.9 to 11.
6.11. PW16 - Prakash is the Investigating Officer,
who speaks about the investigation done by
him.
7. On careful perusal of the over all evidence of the
prosecution witnesses, the entire case revolves
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CRL.A.No. 100180 of 2017
around the oral evidence of PW1 - Yasmin, the
evidence of PWs. 9 to 11 and 15, the evidence of
PW12 - Dr. Vidyavathi and the post-mortem report
(Ex.P12), the major circumstances of which are
categorized in the following manner:
7.1. Motive Factor
7.2. Evidence of PW1, PWs. 9 to 11 and PW15
7.3. Homicidal death
7.4. Conduct of the accused
8. Bearing in mind the above said principles, now we
would consider the evidence on record.
8.1. We have observed that the trial Court has in
detail considered the evidence of each and
every witnesses and came to a conclusion to
acquit the accused. Considering the
discrepancy in the evidence of the witnesses
and also the conduct of the accused as well as
the motive factor, the trial Court has recorded
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CRL.A.No. 100180 of 2017
that there is a serious suspicion in the case of
the prosecution and hence, the trial Court
proceeded to acquit the accused.
8.2. In the instant case, according to the
prosecution, accused Nos. 1 to 7 being the in-
laws of PW1 - Yasmin, formed themselves
into an unlawful assembly, picked up quarrel
with PW1 and her father Fakrusab,
intentionally insulted them, voluntarily caused
hurt and committed murder of Fakrusab. It is
not in dispute that PW1 - Yasmin is the wife
of Sri.Mainuddin Yadawad (DW1) and accused
are the in-laws of PW1. On perusal of Ex.P1 -
complaint, it transpires that there is allegation
of torture by the accused persons with PW1 -
Yasmin and it also transpires that
unnecessarily the accused were quarreling
with her. In the complaint, she disclosed that
her marital life with DW1 was very cordial, but
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CRL.A.No. 100180 of 2017
the evidence of PW1 on oath is contrary to
Ex.P1 - complaint, with regard to torture
given by the accused persons to her prior to
the alleged incident.
8.3. PWs. 9 to 11 are the circumstantial witnesses
and they are none other than the relatives of
Yasmin (PW1). On perusal of their evidence,
they have spoken about the ill-treatment
given by the accused persons to Yasmin, but
the contents of Ex.P1 - complaint do not
indicate any manner of torture to Yasmin and
therefore, the ingredient of Section 498A of
the IPC are not made out.
8.4. On further perusal of Ex.P1 - complaint, it
transpires that Smt.Yasmin - PW1 was
holding glass and accused persons have
snatched the said glass and she raised hue
and cry. But in her evidence, PW1 has
deposed different version stating that accused
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CRL.A.No. 100180 of 2017
No.2 restrained her from proceeding further,
which is contrary to the contents of Ex.P1.
8.5. Insofar as the location of the dead body is
concerned, as per Ex.P2 - photograph, the
dead body of deceased was found inside the
house and on perusal of Ex.P4 - Inquest
Panchanama and Ex.P5 - Spot Panchanama, it
shows that the place of incident was outside
and in front of the house. Therefore, there is
change in the spot of the incident.
8.6. On perusal of the post-mortem report -
Ex.P12, PW12 - doctor has mentioned
external injuries on the person of deceased
Fakrusab, which is as under:
a. Contusions of 3x2 cms blackish red
seen on the right side of the face, about
4 cms lateral to the right side of eye
b. Right ear except lateral injury, no
internal injury
c. No evidence of fracture of ear and
right little finger
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The doctor has opined that, death was due to
"cardiac arrest secondary to vasovagal shock".
Admittedly, the doctor has not opined that the
death was due to the injuries sustained.
8.7. Further, on perusal of Ex.P1, there is no
allegation that the accused persons thrashed
the head of deceased person on stone.
However, on perusal of the Spot Panchanama
(Ex.P5) and the Inquest Mahazer (Ex.P4), it
appears that the dead body was removed
from the place of incident and on perusal of
Ex.P2 - photograph, the dead body was on
the mat and it was put under the head of a
bed and both the great toes were tied with
thread.
8.8. Admittedly, this creates a serious doubt about
the death of deceased Fakrusab as alleged by
the prosecution and on perusal of the genesis
of the prosecution case, the death of Fakrusab
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CRL.A.No. 100180 of 2017
was due to heart attack. Therefore, the
defence taken by the accused persons is
corroborated.
8.9. Further, the opinion expressed by PW12 -
doctor, who performed autopsy is given more
weightage at its face value, even then it is
contradictory to the oral evidence of PW1 -
Yasmin.
8.10. Admittedly in the instant case, the witness to
spot panchanama (Ex.P5) PW3 - Mohammad
Rafiq turned hostile to the case of the
prosecution. The seizure panchanama (Ex.P6)
witness PW4 - Imamsab and PW5 - Ismail
have also been turned hostile to the case of
the prosecution and they have not supported
the case of the prosecution. The eyewitnesses
to the alleged incident i.e, PW6 - Fakrusab,
PW7 - Lalsab and PW8 - Husenbi, have also
not supported the case of the prosecution.
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These witnesses have been cross-examined by
the learned Public Prosecutor, however,
nothing has been elicited from their mouth in
order to corroborate to the prosecution
evidence.
9. Before adverting to consider the above important
major circumstances in this case, it is just and
necessary to bear in mind as to under what
circumstances the appellate Court can interfere with
the judgment of acquittal rendered by the trial
Court.
9.1. The Hon'ble Apex Court right from 1963 till
date has consistently laid down a principle as
to how the appellate courts have to deal with
the cases of acquittal. It is worth to note one
of the decisions in this regard reported in
2007(4) SCC 415 between Chandrappa Vs.
State of Karnataka, wherein the Hon'ble
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CRL.A.No. 100180 of 2017
Apex Court has laid down the following
principles:
"(1) An appellate court has full power
to review, re-appreciate and
reconsider the evidence upon which
the order of acquittal is founded.
(2) The Code of Criminal Procedure,
1973 puts no limitation, restriction or
condition on exercise of such power
and an appellate court on the
evidence before it may reach its own
conclusion, both on questions of fact
and of law.
(3) Various expressions, such as,
"substantial and compelling reasons",
"good and sufficient grounds", "very
strong circumstances", "distorted
conclusions", "glaring mistakes", etc.
are not intended to curtail extensive
powers of an appellate court in an
appeal against acquittal. Such
phraseologies are more in the nature
of "flourishes of language" to
emphasize the reluctance of an
appellate court to interfere with
acquittal than to curtail the power of
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the court to review the evidence and
to come to its own conclusion.
(4) An appellate court, however,
must bear in mind that in case of
acquittal, there is double presumption
in favour of the accused. Firstly, the
presumption of innocence is available
to him under the fundamental
principle of criminal jurisprudence that
every person shall be presumed to be
innocent unless he is proved guilty by
a competent court of law. Secondly,
the accused having secured his
acquittal, the presumption of his
innocence is further reinforced,
reaffirmed and strengthened by the
trial court.
(5) If two reasonable views are
possible on the basis of evidence on
record and one favorable to the
accused has been taken by the trial
court, it ought not to be disturbed by
the appellate court."
9.2. In view of the above ruling, it is abundantly
clear that the appellate Court either in the
case of conviction or in the case of acquittal
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has a duty to make a complete comprehensive
appreciation of all the important features of
the case. However, the rider is that, if the
trial Court has properly and correctly
appreciated the evidence, such judgments
should not be normally interfered with. Even
on re-appreciation of evidence, if the appellate
Court comes to an independent view, then
also, care should be taken to ascertain
whether the view taken by the trial Court is
also a possible view on the basis of the
evidence on record. Therefore, if two views
are possible, the view taken by the trial Court
should not be disturbed.
9.3. In that manner, the Court has to understand
that, the powers of the appellate Court is not
restricted. The Court can reverse the
judgment of the trial Court only in the event if
the Court records that, the approach of the
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trial Court is perverse and it caused
miscarriage of justice to either of the parties
to the proceedings or the view taken by the
trial Court is not at all a possible view and the
view taken by the appellate Court is the only
possible view, which leads to the Court to take
an irresistible conclusion that the accused is
the perpetrator.
10. In the instant case, PW1 alone has stated about the
incident. Admittedly, the corroboration is a rule of
prudence for satisfying the test of reliability of the
oral evidence of PW1 and the evidence of hostile
witnesses, who partly supported the case of the
prosecution. If their evidence is found believable,
can be used for the purpose of corroborating the
evidence. However, in the instant case, the
evidence of PWs. 9 to 11 and 15 is not corroborated
and their testimony is not convincing.
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11. We have gone through the oral evidence of PW1,
PWs. 9 to 11 and PW15. Insofar as the evidence of
PWs.9 to 11 and PW15 are concerned, they have
stated about the alleged torture given by the
accused persons to PW1 prior to the alleged
incident. They have deposed about the information
received from the other witnesses as to the alleged
incident. Since the allegation of harassment
alleged to have been made by the accused persons
to PW1 is not at all proved, the oral evidence of
PWs. 9 to 11 and PW15 cannot be given weightage
and therefore, their evidence cannot come to the
aid of prosecution witnesses. In fact, PWs. 9 to 11
and PW15 are the circumstantial witnesses. Their
evidence is inconsistent, not cogent and worth
believable.
12. It is the observation made by the trial Court that
the spot mahazer witnesses, seizure mahazer
witnesses, inquest mahazer witnesses and
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eyewitnesses to the alleged incident have not
supported the case of the prosecution. In the
instant case, the Addl. SPP for the appellant - State
mainly relied upon the oral testimony of PW1, PWs.
9 to 11 and PW15. PW1, who is none other than
the daughter of deceased, PW11 is the wife of the
deceased, PWs. 9, 10 and 15 are the relatives of
the deceased and they are interested witnesses in
order to punish the accused persons.
13. It is well settled law that the evidence of interested
witnesses requires careful scrutiny to discover
falsehood, embellishment or exaggeration, which
must be eschewed. The Hon'ble Apex Court in the
case of Dalbir Kaur vs. State of Punjab
reported in AIR 1977 SC 472, interested
witnesses means, it postulates that the person
concerned must have some direct interest in seeing
that the accused persons is somehow or other
convicted because he has some animus against the
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accused or for some other reason. A witness is
independent, unless he springs from a source likely
to be tainted.
14. Whereas in the instant case, according to the
appellant - State, accused persons took quarrel
with PW1 and deceased Fakrusab, as the accused
persons had ill-will with PW1, as she was not doing
household work.
15. On perusal of the evidence of DW1, who is none
other than the husband of PW1 and son-in-law of
deceased Fakrusab, in his evidence he has stated
that, there was no strained relationship between
himself and PW1. Further, accused No.1, 2 and
PW1 were residing together and all other accused
were residing separately. According to DW1, he
was not present at the time of alleged incident. He
has further stated that, PW1 had telephoned him
and informed that, her father fell down by slip of
leg and he further deposed that, accused are not
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responsible for the death of deceased Fakrusab. In
this background, learned Addl. SPP submits that,
DW1 is not an eyewitness and his evidence cannot
be believed. In fact, DW1 is a proper person who
speak about the alleged torture given by accused
persons to Smt.Yasmin (PW1). But, DW1 has
categorically stated that, accused never tortured his
wife. Therefore, the oral testimony of DW1 is
contrary to the contents of Ex.P1. Further, there is
no strained relationship between PW1 and DW1 and
as such, DW1 has no occasion to depose falsehood
and he is none other than the husband of PW1 and
son of accused No.2 and the relative of other
accused persons.
16. Admittedly, the alleged incident took place outside
the house of DW1 and PW1 has categorically stated
that her father fell down in front of the house of
DW1 and her father died in front of the house. On
perusal of Ex.P5 spot panchanama, it clearly
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indicates that, the spot of incident is in front of the
house. On perusal of the evidence of PW16, the
Investigating Officer, the incident took place outside
the house. But, on perusal of Ex.P2 - photograph,
the dead body was found inside the house and
Ex.P15 - sketch also indicates that incident took
place in the house. Therefore, the question arouse
that who had shifted the dead body inside the
house and it is an admitted fact that the dead body
was removed from the place of incident and on
perusal of Ex.P2 - photograph, it clearly indicates
that the dead body was on a mat and a towel was
put under the head as a pad and both great toes
were tied with a thread. Perhaps this creates a
serious doubt about the death of deceased
Fakrusab as alleged by the prosecution. The
accused persons have taken a defence that, due to
heart attack Fakrusab died and Ex.P12 - post
mortem report also corroborates the defence taken
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by accused persons. Therefore, there is no
clinching, satisfactory and consistent evidence with
regard to assault made by accused persons to
deceased Fakrusab and caused his death and there
is no positive evidence as to assault made by
accused persons to Smt. Yasmin (PW1) and abusing
her with filthy language. Another important aspect
to be considered in this case is that, the alleged
incident took place on 08.11.2011 at 5.30 pm and
the complaint was lodged in the morning of
09.11.2011. Therefore, there is an inordinate delay
in lodging the complaint but the delay has not been
satisfactorily explained by the prosecution.
17. Whereas it is relevant to refer the judgment of the
Hon'ble Apex Court rendered in the case of Sharad
Birdhi Chand Sarda vs. Staste of Maharashtra
reported in (1984) 4 SCC 116 wherein at
paragraph 163, it is held as under:
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"164. We then pass on to another
important point which seems to have been
completely missed by the High Court. It is
well settled that where on the evidence two
possibilities are available or open, one which
goes in favour of the prosecution and the
other which benefits an accused, the
accused undoubtedly entitled to the benefit
of doubt. In Kali Ram v. State of Himachal
Pradesh, [(1973) 2 SCC 808] this court
made the following observations (para 25
p.820).
"Another golden thread which runs
through the web of the administration of
justice in criminal cases is that if two views
are possible on the evidence adduced in the
case one pointing to the guilt of the accused
and the other to his innocence, they view
which is favourable to the accused would be
adopted. This principle has a special
relevance in cases where in the guilt of the
accused is sought to be established by
circumstantial evidence."
18. The Hon'ble Apex Court in the case of Umedbhai
Jadavbhai vs. State of Gujarat reported in 1978
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SCC (Cri) 108 wherein at paragraph 10 held as
under:
"10. Once the appeal was rightly
entertained against the order of acquittal,
the High Court was entitled to reappreciate
the entire evidence independently and come
to its own conclusion. Ordinarily, the High
Court would give due importance to the
opinion of the Sessions Judge if the same
were arrived at after proper appreciation of
the evidence."
19. The Hon'ble Apex Court in the case of Chandrappa
and Others vs. State of Karnataka reported in
(2007) 4 SCC 415 wherein at paragraph 44 it is
held as under:
"In our view, if in the light of above
circumstances, the trial Court felt that the
accused could get benefit of doubt, the said
view cannot be held to be illegal, improper
or contrary to law. Hence, even though we
are of the opinion that in an appeal against
acquittal, powers of appellate Court are as
wide as that of the trial Court and it can
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CRL.A.No. 100180 of 2017
review, reappreciate and reconsider the
entire evidence brought on record by the
parties and can come to its own conclusion
on fact as well as on law, in the present
case, the view taken by the trial court for
acquitting the accused was possible and
plausible. On the basis of evidence,
therefore, at the most, it can be said that
the other view was equally possible. But it is
well-established that if two views are
possible on the basis of evidence on record
and one favourable to the accused has been
taken by the trial Court, it ought not to be
disturbed by the appellate Court. In this
case, a possible view on the evidence of
prosecution had been taken by the trial
Court which ought not to have been
disturbed by the appellate Court. The
decision of the appellate Court (High Court),
therefore, is liable to be set aside."
(emphasis supplied)
20. The trial Court on considering the evidence of
prosecution inclusive of defence theory rendered
judgment of acquittal. The finding recorded by the
trial court while acquitting the accused is just and
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proper and based on the evidence of prosecution.
There is no merit in the appeal which calls for
interference by this court.
21. In the backdrop of the above said contentions of
the learned counsel for the parties and the evidence
placed on record, we may refer to few decisions of
Hon'ble Apex Court in regard to the jurisdiction and
limitations of the Appellate Court while considering
the appeal against an order of acquittal.
21.1. In Tota Singh v. State of Punjab reported
in (1987) 2 SCC 529, the Hon'ble Apex
Court in para 6 has held as under :
"6. ... The jurisdiction of the appellate
court in dealing with an appeal against an
order of acquittal is circumscribed by the
limitation that no interference is to be
made with the order of acquittal unless the
approach made by the lower court to the
consideration of the evidence in the case is
vitiated by some manifest illegality or the
conclusion recorded by the court below is
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such which could not have been possibly
arrived at by any court acting reasonably
and judiciously and is, therefore, liable to
be characterized as perverse. Where two
views are possible on an appraisal of the
evidence adduced in the case and the
court below has taken a view which is a
plausible one, the appellate court cannot
legally interfere with an order of acquittal
even if it is of the opinion that the view
taken by the court below on its
consideration of the evidence is
erroneous."
21.2. In State of Rajasthan v. Raja Ram
reported in [(2003) 8 SCC 180, the Hon'ble
Apex Court has held that :
"7. ... The golden thread which runs
through the web of administration of
justice in criminal cases is that if two
views are possible on the evidence
adduced in the case, one pointing to the
guilt of the accused and the other to his
innocence, the view which is favorable
to the accused should be adopted. The
paramount consideration of the court is
to ensure that miscarriage of justice is
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prevented. A miscarriage of justice
which may arise from acquittal of the
guilty is no less than from the
conviction of an innocent. [Further, it is
held that] in a case where admissible
evidence is ignored, a duty is cast upon
the appellate court to re-appreciate the
evidence in a case where the accused
has been acquitted, for the purpose of
ascertaining as to whether any of the
accused committed any offence or not.
The principle to be followed by the
appellate court considering the appeal
against the judgment of acquittal is to
interfere only where there are
compelling and substantial reasons for
doing so. If the impugned judgment is
clearly unreasonable, it is a compelling
reason for interference."
21.3. In Surajpal Singh v. State reported in
1951 SCC 1207, the Honble Apex court has
held as under :
"7. It is well established that in an appeal
under Section 417 CrPC [old], the High
Court has full power to review the evidence
upon which the order of acquittal was
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founded, but it is equally well settled that
the presumption of innocence of the accused
is further reinforced by his acquittal by the
trial court, and the findings of the trial court
which had the advantage of seeing the
witnesses and hearing their evidence can be
reversed only for very substantial and
compelling reasons."
21.4. In Aher Raja Khima v. State of Saurashtra
reported in AIR 1956 SC 217, the accused
was prosecuted under Sections 302 and 447
IPC. He was acquitted by the trial court but
convicted by the High Court. Dealing with the
power of the High Court against an order of
acquittal, Bose, J. speaking for the majority,
the Hon'ble Apex court has held as under :
"1. ... It is, in our opinion, well settled that
it is not enough for the High Court to take
a different view of the evidence; there
must also be substantial and compelling
reasons for holding that the trial court was
wrong."
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22. In view of the above propositions of law and
decisions cited supra, in the present case, we have
independently analyzed and scrutinized the
evidence of the prosecution witnesses and found
that there is practically no evidence to show that
there was any cruelty or harassment meted out
against PW1 and none of the accused persons have
involved in connection with the death of deceased
Fakrusab.
23. The learned trial Judge has appreciated the
evidence of PWs 1 to PW16 in its right perspective
and concluded that the evidence of these witnesses
has not been established that the deceased
Fakrusab was assaulted accused persons in respect
of torture or harassment given by accused persons
to PW1.
24. It is also to be noticed that the trial Court on the
basis of evidence has chosen to acquit all accused
persons on the ground that the prosecution has
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failed to prove the guilt against the accused beyond
all reasonable doubt. The evidence against all
accused is insufficient and inconsistent with each
other. This deficiency in the evidence proves fatal
to the prosecution case. In the aforementioned
situation, the provisions of Sections 147, 498A,
302, 323 and 504 read with Section 149 of the IPC
could not be attracted to hold accused persons
guilty of the offences alleged. The prosecution,
therefore, must be held to have failed to establish
any case against accused persons.
25. The Hon'ble Apex Court in the case of HARENDRA
NARAIN SINGH vs. STATE OF BIHAR reported
in AIR 1991 SC 1842, has held that if there are
two views possible from the evidence on record,
one pointing to the guilt of accused and another to
the innocence of accused, then, the view, which is
favourable to the accused, is to be accepted and
benefit of doubt shall be given to the accused. The
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Learned Sessions Judge placing reliance on the
aforesaid judgment of the Hon'ble Apex Court, has
given benefit of doubt to respondents/accused Nos.
1 to 7.
26. There is no embargo on the Appellate Court
reviewing the evidence upon which an order of
acquittal is based. Generally, the order of acquittal
shall not be interfered with because the
presumption of innocence of the accused is further
strengthened by acquittal. The golden thread which
runs through the web of administration of the
Justice in criminal cases is that, if two views are
possible on the evidence adduced in the case, one
pointing to the guilt of the accused and the other to
their innocence, the view which is favourable to the
accused should be adopted. The paramount
consideration of the Court is to ensure that
miscarriage of justice is prevented. A miscarriage of
justice which may arise from acquittal of the guilty
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is no less than from the conviction of an innocent.
This ratio is laid down in the case of RAMANAND
YADAV vs. PRABHUNAT JHA and in the case of
C.K. DASE GOWDA AND OTHERS vs. STATE OF
KARNATAKA, reported in (2003) 12 SCC 606.
27. Having given our careful consideration to the above
stated submissions made by the learned counsel for
the parties and in the backdrop of the evidence
discussed hereinabove and tested in the light of the
principles of law highlighted above, it must be held
that the evaluation of the findings recorded by the
Trial Court do not suffer from any manifest error
and improper appreciation of the evidence on
record. Therefore, the judgment of the trial Court,
acquitting the accused persons is sustainable in
law.
28. Considering all the aspects of the matter, we are of
the considered opinion that the learned Sessions
Judge has rightly held that the prosecution has
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failed to prove the guilt of respondents No.1 to 7
beyond all reasonable doubt and rightly extended
the benefit of acquittal to respondents No.1 to 7.
We do not find any grounds to interfere with the
well reasoned judgment passed by the trial Court.
We answer point No.1 in the affirmative
Re: Point No.2
29. In the result, we pass the following order:
ORDER
i) The appeal is dismissed;
ii) The judgment of acquittal passed by the V
Addl. District and Sessions Judge, Belagavi, in
S.C.No.106/2012 dated 08.12.2015, acquitting
respondents 1 to 7 for the offences punishable
under Sections 147, 498A, 302, 323, and 504
read with Section 149 of IPC is confirmed.
SD/-
JUDGE
SD/-
JUDGE
gab
