Karnataka High Court
State Of Karnataka vs Laxmi Keshav Gouda on 28 July, 2023
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NC: 2023:KHC-D:7919-DB
CRL.A No. 100357 of 2019
IN THE HIGH COURT OF KARNATAKA, DHARWAD
BENCH
DATED THIS 28th DAY OF JULY, 2023
PRESENT
THE HON'BLE MR JUSTICE ASHOK S. KINAGI
AND
THE HON'BLE MR JUSTICE VENKATESH NAIK T
CRIMINAL APPEAL NO.100357/2019.
BETWEEN:
STATE OF KARNATAKA,
REPRESENTED BY THE POLICE SUB-INSPECTOR,
SIDDAPUR POLICE STATION, UTTARA KANNADA
DISTRICT, THROUGH THE ADDL. STATE PUBLIC
PROSECUTOR, ADVOCATE GENERAL OFFICE,
HIGH COURT OF KARNATAKA, DHARWAD BENCH.
...APPELLANT
(BY SRI. M. B. GUNDAWADE, ADDL. SPP).
AND:
1. LAXMI KESHAV GOUDA,
SAMREEN AGE: 42 YEARS, OCC: AGRICULTURIST,
AYUB R/O: DEVAKAR, PO: NILKUND, SIDDAPUR,
DESHNUR DIST: UTTARA KANNADA.
Digitally signed by
SAMREEN AYUB
2. SUBRAY KESHAV GOUDA
DESHNUR
Location: HIGHCOURT
AGE: 24 YEARS, OCC: COOLIE,
OF KARNATAKA-
DHARWAD BENCH R/O: DEVAKAR, PO: NILKUND,
Date: 2023.07.31
16:06:21 +0530 SIDDAPUR, DIST: UTTARA KANNADA.
3. KESHAV DYAVA GOUDA,
AGE: 52 YEARS, OCC: COOLIE,
R/O: DEVAKAR, PO: NILKUND, SIDDAPUR,
DIST: UTTARA KANNADA.
...RESPONDENTS
(BY SRI. SHIVAKUMAR S. BADAWADAGI, ADV. FOR R1 & R2,
R3 APPEAL ABATED)
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NC: 2023:KHC-D:7919-DB
CRL.A No. 100357 of 2019
THIS CRIMINAL APPEAL IS FILED U/S 378(1) AND (3) OF
CR.P.C. SEEKING TO GRANT LEAVE TO APPEAL AGAINST THE
JUDGMENT AND ORDER OF ACQUITTAL DATED 17/01/2019
PASSED BY THE I ADDL. DISTRICT AND SESSIONS JUDGE, U.K.
KARWAR, SITTING AT SIRSI IN SESSIONS CASE NO.14/2011 AND
TO SET ASIDE THE JUDGMENT AND ORDER OF ACQUITTAL DATED
17/01/2019 PASSED BY THE I ADDL. DISTRICT AND SESSIONS
JUDGE, U.K. KARWAR, SITTING AT SIRSI IN SESSIONS CASE
NO.14/2011 AND CONVICT AND SENTENCE THE RESPONDENTS /
ACCUSED FOR THE OFFENCES PUNISHABLE UNDER SECTION
498A, 504, 506, 307 R/W SECTION 34 OF IPC AND UNDER
SECTION 3 & 4 OF D.P.ACT.
THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR
JUDGMENT ON 28.07.2023, COMING ON FOR PRONOUNCEMENT
OF JUDGMENT THIS DAY, VENKATESH NAIK T. J., DELIVERED
THE FOLLOWING:
JUDGMENT
This appeal is filed by the State assailing the judgment of acquittal in Sessions Case No.14/2011 dated 17-1-2019 passed by the I Addl. District and Sessions Judge, U.K., Karwar, sitting at Sirsi arising out of Crime No.180/2010 of Siddapura Police Station, registered for the offences punishable under Sections 498A, 307, 504 and 506 read with Section 34 of the Indian Penal Code, 1860 (for short, 'IPC') and Sections 3 and 4 of the Dowry Prohibition Act, 1961 (for short, 'DP Act'). -3-
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2. Brief facts of the prosecution case is that, PW.2-victim filed the first information (complaint) - Ex.P.11 against the accused persons contending that accused No.2 is her husband, accused Nos.1 and 3 are her in-laws. Her marriage was solemnised on 8.5.2009 with accused No.2 as per customs prevailing in their community in the presence of elders of both families. The marriage of accused No.2 with PW.2 was arranged by PW5 the brother-in-law of PW.2 and at the time of marriage talks, accused persons demanded Rs.25,000/- as dowry, but father of the complainant expressed that he is a poor person and unable to pay the dowry and therefore, after negotiation between them, the father of the complainant performed their marriage by incurring necessary expenses. After the marriage, the marital life of PW.2 with accused No.2 was cordial for couple of days and after two months of the marriage, accused persons physically and mentally ill-treated her and abused her in filthy language that she has not brought Rs.25,000/- dowry from her parental house and also stated that her father gave only a -4- NC: 2023:KHC-D:7919-DB CRL.A No. 100357 of 2019 gold finger ring at the time of marriage and therefore, she was threatened that if she will not bring a sum of Rs.25,000/-, they will eliminate her. In that regard, a panchayat was also held on 18.10.2019, at that time, the father of the complainant gave an undertaking that he would arrange for money within a year and thus, requested the accused persons to look after his daughter properly, but even then, the accused persons went on physically and mentally harassing her. It is further case of the prosecution that, PW.2 went to her parental house for delivery and stayed there for two and half-a-month. After delivery, when she returned to her matrimonial house with a baby, the accused persons once again abused her in filthy language and subjected her to cruelty in respect of demand of dowry, in that regard, the persons who held panchayat on earlier occasions came and once again advised the accused persons not to ill-treat PW.2 and even after such advice, PW.2 was subjected to mental and physical harassment by the accused. It is further contended that, on 23.9.2019 at about 7.00 a.m., accused -5- NC: 2023:KHC-D:7919-DB CRL.A No. 100357 of 2019 No.2 went to Honnavara for his coolie work and at about 9.00 a.m., accused No.3 was working in the fields at the backyard of house and PW.2 was heating water over wood burning hearth for bathing the child, at that time, accused No.1 came from behind, abused her in filthy language stating that she has not brought dowry amount from her parental house and she is not doing her work properly. Thus, poured kerosene on her and at that time, the fire from the wood burning hearth set fire to saree of PW.2 and hence, she cried for help, at that time, accused No.3 hearing her cries came there and dowsed the fire and immediately, PW.2 was shifted to Government Hospital, Sirsi for treatment, where, PW.2 filed complaint against accused persons to the Police. On the basis of Ex.P.11- complaint, Siddapura Police registered the case against accused Nos.1 to 3 in Crime No.180/2010 for the offences punishable under Sections 498A, 504, 506 and 307 read with Section 34 of IPC and Sections 3 and 4 of the DP Act. -6-
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3. The Investigation Officer during the course of investigation visited the spot, conducted spot and seizure panchanama, recorded statement of witnesses, seized the incriminating material, collected all documents and arrested accused Nos.1 to 3 and at the conclusion of the investigation, filed charge-sheet against accused Nos.1 to 3 for the aforesaid offences.
4. The learned Magistrate took cognizance of the offences U/sec. 190(1)(b) of Cr.P.C in C.C. No. 475/2010 against accused Nos.1 to 3. Since the offences are exclusively triable by the Court of Sessions, the case was committed to the Court of Sessions. After committal of the case to the Court of Sessions, the learned Sessions Judge secured the presence of the accused and after hearing the prosecution and the accused, framed charges against accused Nos.1 to 3 for the offences punishable under Sections 498A, 504, 506 and 307 read with Section 34 of IPC and Sections 3 and 4 of the DP Act. The charge -7- NC: 2023:KHC-D:7919-DB CRL.A No. 100357 of 2019 was read over and explained to accused No.1 to 3, they pleaded not guilty and claimed to be tried.
5. In order to prove the case of prosecution, it examined in all 18 witnesses as PW.1 to 18 and got marked in all 44 documents as per Ex.P.1 to P.44 and material objects as per MO.1 to MO.6. After completion of evidence, statements of accused Nos.1 to 3 were recorded by the trial Court under Section 313 of Cr.P.C. The case of accused persons was of total denial and no witnesses were examined on behalf of accused persons.
6. Based on the oral and documentary evidence on record, the learned Sessions Judge framed the following points for consideration:
i. Whether the prosecution proves beyond all reasonable doubt that the Accused No.1 to 3 with common intention subjected CW.1 to mental and physical harassment over demand of dowry of Rs.25,000/- in their house and thereby committed the offences punishable U/Sec. 498(A) r/w 34 of IPC?-8-
NC: 2023:KHC-D:7919-DB CRL.A No. 100357 of 2019 ii. Whether the Prosecution further proves beyond all reasonable doubt that the Accused No.1 to 3 with common intention abused CW.1 in filthy language and gave life threat to her over demand of dowry of Rs.25,000/- and thereby committed offences punishable U/Sec. 504, 506 r/w 34 of IPC?
iii. Whether the Prosecution further proves beyond all reasonable doubt that on 23.09.2010 at about 9-00 A.M. when the CW.1 was heating water over the wood burning hearth to bathe her child the Accused No.1 with an intention to murder her came from her back side and poured kerosene on her and the fire from the hearth ignited her saree as a result CW.1 sustained burn injuries and thereby the Accused committed an offence punishable U/Sec. 307 r/w 34 of IPC?
iv. Whether the Prosecution further proves beyond all reasonable doubt that the Accused persons demanded Rs.25,000/- as dowry from the parents of CW.1 after two months of the marriage and committed offences punishable U/Sec. 3 and 4 of D.P.Act?-9-
NC: 2023:KHC-D:7919-DB CRL.A No. 100357 of 2019 v. What order?
7. The learned Sessions Judge, after considering the entire oral and documentary evidence on record, answered point Nos.1 to 5 in the negative and recorded a finding that the prosecution failed to prove its case beyond all reasonable doubt that accused Nos.1 to 3 have subjected PW.2 physically and mentally harassed and demanded a sum of Rs.25,000/- as a additional dowry from her parental house, intentionally insulted her to provoke her breach of peace and made criminal intimidation to eliminate her life, if she does not bring additional dowry and on 23.9.2010 at 9.00 a.m., accused No.1 set fire to the saree of PW.2, thus, she sustained injury. Accordingly, the trial Court acquitted accused Nos.1 to 3 for the aforesaid offences.
8. Aggrieved by the judgment of acquittal passed by the trial Court, the State has preferred this appeal.
9. Learned Additional State Public Prosecutor has contended that, the judgment and order of acquittal
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NC: 2023:KHC-D:7919-DB CRL.A No. 100357 of 2019 passed by the trial Court is contrary to law, facts and evidence on record. The trial Court acquitted accused Nos.1 to 3 holding that, the prosecution has not appreciated the material on record. It is contended that PW.2 is the injured witness and the complainant, she has specifically stated about the performance of marriage with accused No.2 on 08.05.2009 and also non-payment of dowry amount by the father of complainant at the time of marriage and she also deposed regarding accused insisting the complainant to bring the amount from her parents house and also regarding physical and mental harassment and ill treatment meted out to her by accused persons and she also deposed regarding the panchayat held in this regard. It is contended that, the evidence of PW.2 is corroborated by evidence of PWs.1, 3, 5 and 7 to 9. But, by giving much importance to the minor contradictions and omissions found in the evidence of prosecution witness, the trial Court has erroneously acquitted accused persons, which prevails the interest of the prosecution. It is contended that on perusal of evidence of PW.2, she is
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NC: 2023:KHC-D:7919-DB CRL.A No. 100357 of 2019 injured witness and her oral testimony is corroborated by medical evidence. PW.17-Doctor, who has examined the victim on 23.9.2010 found that, 30% of the upper portion of the body on the front portion and back portion, hand and neck were burnt and opined that, injuries were grievous in nature and accordingly, issued wound certificate as per Ex.P.42 and the doctor also opined that the injuries found on PW.2 may be caused by kerosene fire. It is contended that, the evidence of injured witness has got a special status in the eye of law, but this fact has not been considered by the trial Court in the proper perspective. It is contended that the trial Court ought to have convicted accused persons by taking into consideration the evidence of PWs.1 to 3, 5 and 7 to 9 and also PW.17. Failure to consider the same would result in miscarriage of justice and it would also prejudice to the interest of the prosecution. It is contended that, the trial Court has not drawn presumption properly, but the reasons assigned by the trial Court are not proper and in accordance with law.
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10. It is further contended that, PWs.1 to 3, 5 and 7 to 9 are the material witnesses to the case of the prosecution and they have corroborated the story of prosecution and the oral evidence of PW.2 is corroborated by Medical Officer PW.10 and PW.12. The evidence of PW.15 and PW.16-Investigating Officer also corroborates with the story of prosecution. Hence, the prosecution has proved the guilt of accused persons beyond all reasonable doubt and hence, sought to set aside the judgment of acquittal passed by trial Court and also prayed for conviction of respondents.
11. Per contra, the learned counsel for accused Nos.1 and 2 Sri. Shivakumar S. Badawadagi supports the impugned judgment and order of acquittal. The learned counsel further submits that PW.1 is the spot mahazar witness, PW.2 is the victim, and PW.3 is father of victim and they have stated about the incident. PW.4 is an eyewitness to the incident, but he turned hostile to the case of prosecution, PW.5 is the brother-in-law of PW.2,
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NC: 2023:KHC-D:7919-DB CRL.A No. 100357 of 2019 but he has partly supported the case and partly hostile to the case of prosecution, PW.6 is the another eyewitness to the incident and even he has turned hostile to the case of prosecution, PWs.7 to 9 are the relatives of PW.2 who are hearsay witnesses and their evidence cannot be believed and rest of the witnesses are official witnesses. Based on their oral testimony, conviction cannot be sustained. The learned counsel further submitted that, on perusal of the entire prosecution case, it would make out that while heating water for bathing the child, the saree worn by PW.2 caught fire from the hearth and thus, she sustained burn injuries. But, by taking undue advantage of the same, PW.2 might have filed false complaint against accused persons for taking out her grudge over not arranging separate residence. When that is so, the trial Court has come to the conclusion that the prosecution has failed to prove beyond all reasonable doubt that accused Nos.1 to 3 with common intention subjected PW.2 to mental and physical harassment over demand of dowry of Rs.25,000/- from her parents house and thus, the accused
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NC: 2023:KHC-D:7919-DB CRL.A No. 100357 of 2019 poured kerosene on her on 23.10.2010 and set fire on her with an intention to murder. The learned counsel further submits that the trial Court has rightly recorded the finding that, the prosecution has failed to prove the charges against the accused persons beyond reasonable doubt and rightly extended the benefit of doubt to the accused and rightly acquitted the accused persons.
12. The learned counsel for the accused further contended that, accused persons not at all committed any offence as alleged and in fact, PW.2 was not interested in residing with accused Nos.1 and 3 in a joint family and she wanted to reside separately along with her husband which is very near to her parents house, but accused No.2 being only son to his parents and accused Nos.1 and 3 was not ready to leave them, hence, there was grudge between accused persons and PW.2 which is admitted by the prosecution witnesses in their cross-examination and there was no harassment of PW.2 in respect of demand of dowry by the accused persons, but taking undue advantage of
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NC: 2023:KHC-D:7919-DB CRL.A No. 100357 of 2019 accidental burn injuries, PW.2 filed false complaint before the Police against accused persons. It is contended that, if at all accused were harassing PW.2 over demand of dowry, then they would not have saved PW.2 by extinguishing fire on her and shifted her to Hospital for treatment. It is contended that, though the evidence of PWs.1 to 3, 5, 7 to 9 have corroborated with the story of prosecution, but, there are material contradictions and omissions in their evidence, as such, the prosecution has failed to prove beyond reasonable doubt that accused persons have committed the offences as alleged by the prosecution.
13. Having heard the learned counsel appearing for the parties and after bestowing our careful and anxious considerations to the rival contentions raised at the Bar, that the points would arise for our consideration are:
POINTS
i) Whether the judgment of acquittal passed in S.C.No.14/2011 for the offences punishable under Sections 498A, 504, 506 and 307 read with Section 34 of IPC and
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NC: 2023:KHC-D:7919-DB CRL.A No. 100357 of 2019 Sections 3 and 4 of Dowry Prohibition Act is based on proper appreciation of evidence and as such, it is liable to be sustained and no interference is called for?
ii) What Order?
14. Point No.i:- As observed by us herein above, the learned Sessions Judge had charged the accused persons for the offences punishable under Sections 498A, 504, 506 and 307 read with Section 34 of IPC and Sections 3 and 4 of DP Act and it was on the basis of charge sheet material. The learned Sessions Judge has framed the charges against accused and a plain reading of the charges framed against accused persons are that on 23.9.2010 at about 9.00 a.m. when PW.2 was heating water over the wood burning hearth to bath her child, accused No.1 with an intention to murder her, came from behind and poured kerosene on her and the fire from the hearth ignited her saree, as a result PW.2 sustained burn injuries and therefore, accused Nos.1 to 3 committed an offence.
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15. In the light of the aforesaid charge and submissions made by the learned counsel for the parties to the lis, let us examine the evidence placed by the prosecution:
PW.1 is Timmappa Shankar Shet, the attester of spot mahazar and recovery panchanama. He has stated that, about 5 years ago, the Police called him to the house of PW.2 and accused No.1 and conducted spot panchanama as per Ex.P.1 and the Police recovered a kerosene plastic can, mud mixed kerosene, plain mud, a half burnt saree, one black petticoat, two burnt pieces of black colour blouse, in his presence and at that time, PW.2 was also present at the spot and at the same time, Police also drawn spot of sketch as per Ex.P.2.
16. PW1 was cross examined. In the cross examination, he admits that, he is a resident of Onigadde village and mahazer was conducted in Devikere village, which is at a distance of 5-6 Kms. He admits that, the police except, seizing the cloths from the spot of bath
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NC: 2023:KHC-D:7919-DB CRL.A No. 100357 of 2019 room, the police have not seized the cloths from any other portion of house.
17. PW.2-Hemavati Subray Gouda is the victim in this case and also complainant, she has stated that Accused No.2 is her husband, Accused No.1 & Accused No.3 are her father in-law and mother in-law respectively and her marriage was solemnized with Accused No.2 on 08.5.2009. According to PW2, the marriage negotiation was arranged by PW.5, (her brother-in-law), and at the time of marriage negotiation, accused persons demanded dowry of Rs.25,000/- but, her father had expressed his inability and he informed them that he is poor man and therefore, the marriage was performed with accused No.2 and her father gave a gold finger ring to accused No.2. A After marriage, her relationship with accused No.2 was cordial for a period of two months and thereafter, the accused person started physical and mental harassment and abused her in filthy language in respect of demand of dowry. In this regard she informed her parents. She
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NC: 2023:KHC-D:7919-DB CRL.A No. 100357 of 2019 further deposed that, on 5.2.2009, a panchayat was held and parents of PW2 and elders of her villager came and advised the accused persons for not to ill-treat and harass PW.2 and at that time, PW.3 assured that he would arrange a sum of Rs.25,000/- to accused persons within a year. Even after said panchayat, accused persons continued their harassment to PW.2. It is further stated that, on 21.3.2010, PW.2 gave birth to a female baby and at that time, she stayed in her parents house for a period of two and half months after delivery. Subsequently, she came to her matrimonial house along with her child. But, accused persons harassed her physically and mentally without reasons and finally she was thrown out from the matrimonial house. Thereafter, her parents advised accused persons and left her in the house of accused persons, but the accused persons once again continued their ill-treatment to PW.2. It is further stated that, on 23.9.2010 at about 7.00 a.m., accused No.2 abused her as to why she has not prepared breakfast and went to Honnavara for doing coolie work and on the same day at
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NC: 2023:KHC-D:7919-DB CRL.A No. 100357 of 2019 9.00 a.m., while PW.2 was heating water to bath her child, accused No.1 came from behind, abused her in filthy language stating that she had not brought the dowry from her parental house and she does not work properly and thus, poured kerosene on PW.2, at that time, the fire from wood burning hearth ignited her saree and she was engulfed in flame. Immediately, PW.2 got up and ran out of the bathroom shouting for help, at that time, accused No.3 on hearing her cries came and extinguished the fire and later, she was shifted to Government Hospital, Sirsi for treatment, wherein, she gave her complaint as per Ex.P.11. She was treated in Sirsi Government Hospital for about 6 days and subsequently, she was shifted to Justice K. S. Hegde Charitable Hospital, Mangalore, wherein she was treated for 15 days and she identified the burnt clothes worn by her on the day of the incident as per MO.1 to MO.6. PW.2 was cross examined. In the cross examination, she admitted that, accused No.1 poured carocine oil on her person from her back side and she was sitting near earth fire within a distance of one fee. She
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NC: 2023:KHC-D:7919-DB CRL.A No. 100357 of 2019 further admits that, the moment she escaped from the spot, fire lit on her saree. Thus she sustained burn injury and accused No.3 came and extinguished fire and later accused Nos.1 and 3 shifted her to hospital for treatment. She further admits that, accused No.2 also immediately return from Honnavar and came to the hospital. She further admits that, all witnesses are her relatives. She further admitted that, she never lodged any complaint against accused prior to the alleged incident.
18. PW.3-Honnagiriya Gouda, father of PW.2. He has stated that, the marriage of PW.2 solemnized with accused No.2 and during marriage negotiation, accused persons were demanded a dowry amount of Rs.25,000/-, but he expressed his inability to pay the same due to his poverty, but ultimately he performed marriage after giving gold ring to accused No.2 and after the marriage, the relationship of PW.2 with accused No.2 was cordial for a couple of months and thereafter, they started to harass her physically and mentally in respect of not bringing
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NC: 2023:KHC-D:7919-DB CRL.A No. 100357 of 2019 dowry and in this regard, on several occasions, he advised accused persons and finally, he assured to pay additional dowry within a year, but the accused persons continued to harass PW.2 for one or the other reasons and ultimately, the accused persons thrown out her daughter from matrimonial house and then once again, a panchayat was held, wherein, accused persons advised not ill-treat PW.2. PW.3 further stated that, on 23.9.2010 accused No.1 informed him over telephone that PW.2 admitted in Government Hospital, Sirsi with burn injuries, thus, he immediately came to Sirsi Government Hospital and on enquiry PW.2 informed that while she was heating water for bathing her child, accused No.1 poured kerosene on her and thus, set fire and therefore, she sustained burn injuries and, in this regard, the Police enquired him. PW.3 turned partly hostile and in the cross-examination he admitted all the suggestions made by learned Public Prosecutor. In the cross-examination, done by counsel for accused, he admits that, accused No.1 informed him that, PW.2 set fire and sustained injuries and when he made
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NC: 2023:KHC-D:7919-DB CRL.A No. 100357 of 2019 inquiry with PW.2, she told that, she sustained burnt injuries.
19. PW.4-Manunath Pujari and PW.6-Narayan Dyava Gouda are eyewitnesses to the incident, but they have turned hostile to the case of prosecution. Hence, they have not supported the case of the prosecution and in the cross examination done by the learned Special Public Prosecutor, PWs.4 and 6 have denied that, accused persons subjected PW.2 to the physical and mental harassment in respect of demand of dowry and they have denied that a panchayat was held with regard to the harassment made by accused persons and they advised accused persons not to ill-treat PW.2. PWs.4 and 6 have denied to have given statement before the Police vide Ex.P.13 and P.14.
20. PW.5-Purushottam Parama Gouda is brother-in- law of PW.2 and elder son-in-law of PW.3. He has partly supported the case of prosecution regarding relationship between accused No.2 and PW.2. He has stated that
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NC: 2023:KHC-D:7919-DB CRL.A No. 100357 of 2019 accused persons were harassing PW.2 in respect of demand of dowry and he also stated regarding panchayat held in the house of accused persons, but he has no information regarding the alleged incident. In the cross examination, he has denied the suggestions made by the learned Public Prosecutor.
21. PW.7-Damodar Shiva Gouda has stated that he had attended for marriage negotiation between accused persons and PW.3 in respect of marriage of accused No.2 and PW.2. He has stated that in the marriage negotiation, accused persons demanded dowry of Rs.25,000/-, but PW.3 expressed his inability due to his poverty and later, he performed the marriage of PW.2 by spending money and also gave a gold ring to accused No.2. After two months of the marriage, accused persons started physical and mental harassment to PW.2, in respect of demand of dowry, in this regard, the panchayat was held, wherein, PW.3 assured that, he would pay the amount within a year and later, PW.2 became pregnant and she came to her
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NC: 2023:KHC-D:7919-DB CRL.A No. 100357 of 2019 parental house for delivery and after delivery, she went back to her matrimonial house and once again, accused persons ill-treated PW.2 and harassed her in respect of demand of dowry and again, PW.7 attended for negotiation and he advised accused persons. PW.7 was cross examined. He admits that, PW.2 has not lodged any complaint to the Police or Women Police Station.
22. PW.8-Janardhan Parama Gouda is the relative of PW.2 and he attended marriage negotiations held between accused No.2 and PW.2. He turned partly hostile to the case of prosecution and in the cross-examination he admitted all the suggestions made by the Public Prosecutor.
23. PW.9-Krishna Huliya Gouda, he is also relative of PW.2, who attended the marriage negotiation of accused No.2 and PW.2 and he also reiterated the averments made in the examination of PW.7 and PW.8.
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24. PW.10-Dr. Rajesh Naik, the Medical Officer, who treated accused No.3, has stated that, on 24.9.2010 he examined A3 and found burn injury on the left hand of accused No.3 and it was simple in nature and accordingly, he issued wound certificate as per Ex.P.17.
25. PW.11-L. R. Chandavar, Assistant Sub- Inspector of Police of Siddapura Police Station, has deposed that, on receipt of the MLC intimation from Sirsi Hospital, he visited the Hospital and recorded the statement of PW.2 and submitted the said statement to the SHO.
26. PW.12-Dr. Goutam Shetti, Medical Officer, who treated PW.2 at Justice K. S. Hegde Charitable Hospital, Mangaluru, has stated that, on 29.9.2010, he treated PW.2 who was admitted in the said Hospital with history of burn injuries and thus, he found burn injuries on her chest, abdomen, both upper limbs and upper back and said injuries were grievous in nature and accordingly, he issued Ex.P.29-Wound Certificate.
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27. PW.13-Krishnamurti, Tahsildar, deposed regarding recording of statement of PW.2 as per Ex.P.12.
28. PW.14-Jayaram, Deputy Director, FSL, Bengaluru, has deposed regarding examination of MO.1 to MO.6 and found traces of kerosene on MOs.1, 2, 4 to 6 and accordingly, he issued his report as Ex.P.30.
29. PW.15-Jansan Disoza, Investigating Officer, who received the complaint and registered the case against accused persons and he requested the Tahsildar for recording statement of injured and later, he visited the spot and drew panchanama and recorded the statement of witnesses and handed over the further investigation to PW.16.
30. PW.16-V. S. Halamurtilrao, Investigating Officer, has stated that, he concluded the investigation and filed the charge sheet against the accused persons.
31. PW.17-Dr. Vinayak Subrahmanya, who treated PW.2 at first instance at Pandith General Hospital, Sirsi,
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NC: 2023:KHC-D:7919-DB CRL.A No. 100357 of 2019 and issued Wound Certificate as per Ex.P.42 and as per Ex.P.42, the injuries were grievous in nature.
32. PW.18-Satish, Engineer, who visited the spot and drew sketch as per Ex.p.41 as requested by the Police.
33. Based on the oral and documentary evidence on record, the Learned Additional Public Prosecutor for the State has contended that, PW.1 to 3, 5 and 7 to 9 are the material witness to the case of prosecution and they have corroborated the story of prosecution and the oral evidence of PW.2 is corroborated by Medical Officer PW.10 and PW.12. The evidence of PW.15 and PW.16 Investigation Officer also corroborated with the story of prosecution. Hence, the prosecution has proved the guilt of accused persons beyond all reasonable doubt and hence, sought to set aside the judgment of acquittal passed by trial Court and also prayed for conviction of respondents.
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34. Per Contra the learned counsel for accused contended that, accused persons have not at all committed any offences as alleged and in fact, PW.2 was not interested in residing with accused No.1 and 3 in a joint family and she wanted to reside separately along with her husband which is very near to her parents house, but accused No.2 being only son to his parents and accused No.1 and 3 was not ready to leave them, hence, there was grudge between accused and PW.2 which is admitted by the prosecution witness in their cross examination and there was no harassment of PW.2 in respect of demand of dowry by the accused persons but, taking undue advantage of accidental burn injuries, PW.2 had filed complaint before the police against accused persons. It is contended that, if at all accused were harassing PW.2 over demand of dowry, then they would not have saved PW.2 by extinguishing fire pouring water on her person and shifted her to Hospital for treatment. It is contended that, though the evidence of PW.1 to 3, 5, 7 to 9 have corroborated with the story of prosecution, but,
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NC: 2023:KHC-D:7919-DB CRL.A No. 100357 of 2019 there are material contradictions and omissions in their evidence, as such, the prosecution has failed to prove beyond reasonable doubt that, accused have committed an offence as alleged by the prosecution.
35. On perusal of the evidence of PW.2, she is the victim in this case. In her cross-examination, she has deposed that when she was pregnant, her baby showers (seemantha) was not held, but PW.3-father of the victim has not given any answers to the said question and he remained silent. Further, PW.2 in her cross-examination admitted that, on the date of incident, she had worn a synthetic saree and it would have been burnt immediately and came in contact with fire. On perusal of the evidence of PWs.2, 3 and 7 to 9, they have deposed regarding alleged ill-treatment of PW.2 at the hands of accused persons, but PW.3 in his cross-examination had admitted that he remained silent, when it was asked that the accused persons married without demanding any dowry. Further, on perusal of the evidence of PW.5 who is elder
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NC: 2023:KHC-D:7919-DB CRL.A No. 100357 of 2019 son-in-law of PW.3 and brother-in-law of PW.2 and who is instrumental for the marriage of PW.2 with accused No.2 has not supported the case of prosecution. On perusal of PW.7 is another relative of PW.2, in his cross-examination, had admitted that earlier they have not given any complaint regarding harassment and filing of complaint before any forum. PW.7 in his cross-examination has admitted that he has attended the panchayat after the birth of child of PW.2, but as per the evidence of PWs.2 and 3, the panchayat was not held after the birth of child and panchayat was held prior to the birth of child. On perusal of the evidence of PW.9, in his cross-examination, has admitted that PW.2 was sent to her parents house for delivery after performing baby showers and he has admitted that accused persons attended the naming ceremony of child in the house of PW.3 and he also admitted that accused No.2 often visited the house of PW.2 in order to see his wife and he also admitted that PW.2 was demanding accused No.2 to reside separately from her in-laws and PW.9 also admitted that, accused
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NC: 2023:KHC-D:7919-DB CRL.A No. 100357 of 2019 No.2 had refused to such demand of PW.2 and he has also admitted that, PW.2 used to stay back in her parental house often and only when accused No.2 came for her, she used to return to the marital house and the demand of PW.2 for separate residence was increasing day by day.
36. PW.9 further admitted that, when accused No.2 visited PW.2 in the Hospital, she was wearing half burnt synthetic saree, but the synthetic saree of PW.2 was recovered from the spot of offence as per Ex.P.1. Therefore, on perusal of the evidence of PWs.1 to 3, 5, 7 to 9 it appears that, there is full of omission and contradictions in the testimony of these witnesses. Therefore, looking to all angle, it appears that, while heating water for the bath of the child, the saree worn by PW.2 might have come into contact with fire from the hearth and thus, she sustained burn injuries, but by taking undue advantage of the same, PW.2 might have filed the present case.
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37. The trial Court recorded the demeanours of PWs.1 to 3, 5 and 7 to 9 and considering the entire material on record, it discloses that, there was a grudge between PW.2 and accused persons in respect of not arranging for a separate house by accused No.2. Therefore, on the ill-fated day, PW.2 came in contact with fire and in this regard, she lodged complaint against accused persons. Considering the entire evidence on record, the prosecution has failed to prove the intention of the accused in this case.
38. Except the evidence of interested witnesses, there are no other independent material witnesses to prove the guilt of the accused beyond all reasonable doubt. In view of the evidence of PW.9 regarding insistence of PW.2 to reside separately from her in-laws taking undue advantage of an accidental fire, filing of a false complaint against the Accused persons cannot be ruled out.
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39. At this juncture, the learned counsel for accused persons has taken us through the evidence of Medical Officers, who had only stated about the nature of injuries suffered by PW.2 and the evidence cannot be sufficient in order to implicate the accused persons. Therefore, on these grounds, when the trial Court had come to the conclusion that, the evidence of PW.2 injured witness, who is an interested party in the matter, was not sufficient enough in order to prove the guilt of the accused and particularly, when absolutely there is no evidence by any independent witnesses and also when the prosecution has failed to implicate these accused persons as alleged by the prosecution.
40. When the trial Court has come to the conclusion that, the evidence of PW.2, injured witness, having sufficient reason to have grudge against accused persons in connection with the arrangement of separate house, is not sufficient enough to base the guilt of accused, it would not be proper for the Appellate Court to interfere with the
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NC: 2023:KHC-D:7919-DB CRL.A No. 100357 of 2019 same. It is also relevant to note that the accused will have presumption of innocence and it is for the prosecution to prove the guilt of the accused beyond such reasonable doubt. When the accused have a verdict of acquittal in their favour by the trial Court, which had the advantage of seeing the demeanour of the witness and the manner in which they deposed before the Court, the presumption of innocence against the accused gets fortified and as such, the Appellate Court should be too cautious while interfering in the same. This principle has been laid down by the Hon'ble Apex Court in several of its decision and the same has been reiterated and referred to in a recent judgment in the case of RAVI SHARMA v. STATE (GOVERNMENT OF NCT OF DELHI) AND ANOTHER reported in (2022) 8 SCC 536.
41. Further, it is relevant to refer to the judgment of the Hon'ble Apex Court in the case of SHARAD BIRDHICHAND SARDA v. STATE OF MAHARASHTRA
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NC: 2023:KHC-D:7919-DB CRL.A No. 100357 of 2019 reported in (1984) 4 SCC 116, wherein at paragraph No.163, it is held as under:
"163. 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 is undoubtedly entitled to the benefit of doubt. In Kali Ram v. State of Himachal Pradesh, this Court made the following observations:
"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, the view which is favourable to the accused should be adopted. This principle has a special relevance in cases wherein the guilt of the accused is sought to be
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established by circumstantial
evidence."
42. The Hon'ble Apex Court in the case of UMEDBHAI JADAVBHAI v. STATE OF GUJARAT reported in (1978) 1 SCC 228, at paragraph No.10, has held as under:
"10. Once the appeal was rightly entertained against the order of acquittal, the High Court was entitled to re-appreciate 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. This rule will not be applicable in the present case where the Sessions Judge has made an absolutely wrong assumption of a very material and clinching aspect in the peculiar circumstances of the case."
43. The Hon'ble Apex Court in the case of CHANDRAPPA AND OTHERS v. STATE OF KARNATAKA reported in (2007) 4 SCC 415, at paragraph No.44, has held as under:
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"44. 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 the appellate court are as wide as that of the trial court and it can 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 (the High Court), therefore, is liable to be set aside."
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44. It is well settled principles that there is no embargo on the Appellate Court reviewing the evidence upon which an order of conviction is based. 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 persons and the other to their innocence, the view which is favourable to the accused persons 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 is no less than from conviction of innocent.
45. 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 proper and is based on evidence of prosecution. There is no merit in the appeal which calls for interference by this Court.
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NC: 2023:KHC-D:7919-DB CRL.A No. 100357 of 2019 Further, considering the law laid down by the Hon'ble Apex Court in the judgments referred above, we answer the point No.i in the negative.
46. Point No.ii: In view of point No.i answer in the negative, we proceed to pass the following:
ORDER i. The appeal filed by the State under Section 378 of Cr.P.C. is dismissed.
ii. The judgment and order of acquittal passed by I Additional District and Sessions Judge, U.K., Karwar, Sitting at Sirsi, in S.C. No.14/2011 dated 17.01.2019 is confirmed.
Sd/-
JUDGE Sd/-
JUDGE KUK