Karnataka High Court
The State Of Karnataka vs Srimanth S/O Bhimsha Naikodi Ors on 14 March, 2017
Author: Aravind Kumar
Bench: Aravind Kumar
1
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 14TH DAY OF MARCH, 2017
PRESENT
THE HON'BLE MR.JUSTICE ARAVIND KUMAR
AND
THE HON'BLE MR.JUSTICE B. A. PATIL
CRIMINAL APPEAL No.3722/2010
Between:
The State of Karnataka
Through Madbool P.S.
Represented by
Addl. State Public Prosecutor,
Gulbarga.
... Appellant
(By Sri.Prakash Yeli, Addl. Spl. Public Prosecutor.)
And:
1. Srimanth S/o Bhimsha Naikodi,
Age: 26 years.
Resident of Vachcha village,
Tq. Chittapur, Gulbarga.
2. Mallamma W/o Bhimsha Naikodi,
Age: 67 years.
Resident of Vachcha village,
Tq. Chittapur, Gulbarga.
2
3. Nagamma W/o Bhimsha Naikodi,
Age: 37 years.
Resident of Vachcha village,
Tq. Chittapur, Gulbarga.
4. Sharanappa S/o Bhimsha Naikodi,
31 years.
Resident of Vachcha village,
Tq. Chittapur, Gulbarga.
... Respondents
(By Sri. S.N.Padashetty, Adv. for R1, R3 & R4)
(R-2 abated)
This Criminal Appeal is filed under Section 378(1)
& (3) of Cr.P.C. praying to grant leave to appeal against
the judgment and order dated 22-12-2009 passed by
the learned Principal Sessions Judge at Gulbarga in
S.C.No.31 of 2008, so far as it relates to acquitting the
respondent No.1 for the offences punishable under
Sections 302 and 201 r/w Sec.34 of Indian Penal Code
and acquitting the respondents 2, 3, 4 for the offence
punishable under Section 498-A, 304-B, R/w. Sec.34 of
I.P.C and also Section 3, 4 & 6 of Dowry Prohibition Act
and etc.
This appeal having been heard and reserved for
judgment, coming on for Pronouncement of judgment,
this day, B.A.PATIL J., delivered the following:-
3
JUDGMENT
This appeal is preferred by the State assailing by the judgment dated 22.12.2009 passed by the Prl. Sessions Judge, Gulbarga in SC No.31/2008 for having convicted the accused No.1 for the offence punishable under Sections 498-A, 304-B of Indian Penal Code and also under Section 3, 4 and 6 of Dowry Prohibition Act and acquitting accused No.1 to 4 for the offence punishable under Section 302 and 201 of IPC and A-2 to 4 for the offence punishable under Sec. 498-A and 304-B of IPC and also under Sec. 3, 4 and 6 of Dowry Prohibition Act.
2. The case of the prosecution in brief is that; on 24.3.2006 the marriage of deceased Bassamma was performed with accused No.1 by paying 2 and ½ tola gold and other articles, thereafter she started living in the matrimonial home. Accused No.2, mother-in-law, accused No.3 sister-in-law and accused No.4 brother-in- 4 law of the deceased in furtherance of their common intention started ill-treating and harassing her for demand of additional dowry and gold. Whenever, the deceased used to come to parental house, she used to tell the ill-treatment and harassment and also demand of dowry by the accused persons. 10 or 12 days prior to the death of the deceased-Bassamma, the parents sent the deceased to matrimonial home by giving half tola of gold and clothes by settling the dispute by holding the Panchayat. When that being the case, the complainant received a phone call on 7.9.2007 at about 7:30 PM from one Kamanna Vacha, who informed that her daughter has committed suicide by hanging. Immediately, they went to in-laws' house and there they noticed the dead body, also noticed the injuries found over the body of the deceased. Thereafter, the complaint was came to be registered by the grandmother of the deceased. On the basis of the complaint, a case was registered in Cr.No.100/2007 in 5 Madabool Police Station. Thereafter, police investigated the crime and filed the charge-sheet.
3. After filing of the charge-sheet, the committal Court on following the procedure laid down under Sec. 207 of Cr.P.C. committed the case to the Sessions Court. The Session Court after taking the cognizance secured the accused persons and after hearing, the charge came to be framed. Since accused persons denied the charges and claim to be tried, the trial was fixed.
4. In order to prove the case, the prosecution in all has examined P.Ws.1 to 25 and got marked Ex.P-1 to 41 and material objects at MOs No.1 to 15. During the course of cross-examination the accused got marked ExD-1 to 4. After closure of the prosecution evidence, the statement of the accused were recorded under Sec. 313 of Cr.P.C. by putting the incriminating materials 6 against them, which they denied and they have not led any evidence on their behalf.
5. Thereafter, on hearing the arguments of the learned Public Prosecutor and learned counsel appearing for the accused, the impugned judgment came to be passed. Assailing the said judgment and order to the effect that the sentence which has been imposed by the Court below to the accused No.1 is not in proportion to the offence leveled against him and also for having acquitted the accused No.1 for the offences punishable under Sections 302 and 201 of IPC. Further for having acquitted accused No.2 to 4 for all the offences leveled against them.
6. Heard the learned Addl. Special Public Prosecutor appearing on behalf of the State and Sri. Padashetty, the learned counsel for the respondent/ accused. 7
7. The learned Addl. Special Public Prosecutor vehemently argued and contended that the learned Sessions Judge without proper appreciation of the evidence on record and without looking into the material placed before him has passed the impugned judgment and order. He would further contend that even though there is evidence to show that the accused persons have caused the death by putting external pressure on the throat of the deceased-Bassamma, the trial Court has come to a wrong conclusion. He would further contend that P.W.24, the doctor who has conducted autopsy over the body of the deceased- Bassamma has specifically stated about the ligature mark, contusions over the chin, back and he has also given his opinion as per Ex.P-28 to the effect that the cause of death is asphyxia as a result of compression force. The said opinion is corroborated with the evidence of other witness including the witness who were present at the time of inquest mahazar as per 8 Ex.P-3. He would also further contend that even though there is ample material to show that the death is not due to suicide, but it is the murder committed by the accused persons the trial Court ignoring the said fact has wrongly acquitted the accused No.1 for the offences punishable under Sections 302 and 201 of IPC. He would further contend that the Court below ought not to have acquitted accused No.2 to 4 for the alleged offences. He would also further contend that the sentence which has been imposed on accused No.1 is not in proportion to the offence, as such the same is liable to be enhanced. On these grounds he prayed for allowing the appeal by setting asiding the impugned judgment of conviction and order of sentence.
8. Per contra, the learned counsel Sri. Padashetty would contend that there is no certainty of death in the case of the prosecution itself. At one stretch they say that the deceased has committed suicide by hanging 9 because of ill-treatment and harassment for demand of dowry. On the other breath they say the accused has murdered the deceased by pressing the neck of the deceased. By relying upon a text book of medical jurisprudence and toxicology 24th Edition 2012 Modi's Jurisprudence he would contend that if the death has been caused by the accused persons by pressing the neck, there will be some finger prints on the wind pipe of the deceased, but in Ex.P-27 the postmortem report, there is no mention about the finger prints on the wind pipe and the report is also silent about the said aspect. He would also further contend that the prosecution is not certain as to whether the strangulation is by a rope or a wire pipe or by pressing with the fingers. He would further contend that the contusions which have been mentioned have already become reddish black, that itself indicates that the said injuries have occurred much prior to the death. He would also contend by 10 supporting the judgment of the trial Court, prays for dismissal of the appeal.
9. In order to prove the case of the prosecution, the prosecution has got examined P.W.1 to 25. P.W.1 is the complainant and grandmother of the deceased, she has deposed about her participation in the marriage negotiation, payment of dowry at the time of marriage, accused were residing together along with deceased, deceased used to tell her about the demand of dowry and gold, ill-treatment and harassment caused in the matrimonial home. She also further deposed about holding the panchayat settling the matrimonial dispute, also for having seen the body of the deceased with injuries and accused was also present at the time when they had been to see the dead body. P.W.2 is the father of the deceased, he has also reiterated the evidence of P.W.1. P.W.3 is an independent witness who also deposed about the marriage talks, payment of gold and 11 cash at the time of marriage, and P.W.1 and 2 telling him about the ill-treatment and harassment given by the accused, participation of him in the Panchayat, he has also advised the accused to treat the deceased well and they are going to give the remaining gold. He has also deposed that he has visited the house of the accused, saw the dead body and also noticed the injuries over the body of the deceased. P.W.4, 5, 6, 7 have also deposed by reiterating the evidence of P.W.1 and 3. P.W.8 is the inquest mahazar pancha to Ex.P-3. She has also deposed about the injuries found over the body of the deceased. P.W.9 is the doctor who has treated the deceased earlier to her death for her abortion. P.W.10 is the Dy.S.P. who has taken the charge of this case and partly investigated. P.Ws.11 to 16 are also the witnesses who have deposed about the marriage talks, payment of dowry, ill-treatment, harassment caused by the accused persons and they were also present when the Panchayat was held and 12 when the deceased was sent to the matrimonial house at that time one tola of gold has been given to the accused. P.W.17 is the Thasildar in whose presence the inqeust mahazar Ex.P-3 was drawn, further he has also deposed about the injuries found over the deadbody of the deceased. P.W.18 is the seizure pancha to Ex.P-22 whereunder gold articles have been seized. P.W.19 is the spot mahazar pancha to Ex.P-23, he has not supported the case of the prosecution and he has been treated as hostile wintess. P.W.20 is the Police Constable who has given the articles found on the body of the deceased to the investigation officer. P.W.21 is the Junior Engineer who has prepared the sketch of the scene of offence as per Ex.P-25. P.W.22 is the police constable who has taken the photographs over the body of the deceased. P.W.23 is the PSI who has investigated the case and filed the charge-sheet. P.W.24 is the doctor who has conducted the autopsy over the body of the deceased. P.W.25 is an independent witness who 13 has to speak about the ill-treatment and harassment, but he has not supported the case of prosecution and has been treated as hostile.
10. Keeping in view the above said evidence, let us consider whether the prosecution has proved the guilt of the accused persons beyond all reasonable doubt. Further, whether the judgment of the trial Court is sustainable in law. During the course of argument, the learned Addl. SPP would submit that the accused No.2 has been already dead and as such the case against accused No.2 has been abated. Even the said fact has been also brought to the notice of this Court on 23.6.2011 and abatement order has been passed.
11. It is not in dispute that the judgment of conviction and order of sentence passed by the trial Court, whereunder convicting the accused No.1 under Sec. 498-A, 304-B of IPC and also under Sec. 3, 4 and 6 of 14 Dowry Prohibition Act has not been challenged by the accused No.1 and it is also submitted during the course of argument that the accused No.1 has already served the sentence as imposed by the trial Court for the above said offences. When that being the case, then under such circumstances the only question which remains for our consideration is whether the sentence imposed by the trial Court is adequate, in proportion to the crime committed by the accused persons. When no appeal has been preferred by the accused respondent No.1 against the finding holding against him that the deceased has died because of the ill-treatment and harassment caused by him for demand of dowry. The scope to consider the case on those aspect is very limited. The trial Court elaborately discussing the said fact has rightly come to the conclusion that the deceased has died as a result of the ill treatment and harassment caused by the accused. Keeping in view 15 that aspect, let us consider whether the sentence imposed by the trial Court is adequate or not.
12. At the time of considering the sentence, the Court has to elobrately discuss and decide the fact that sending the accused behind the bars is not the only remedy, reformitive method has to be adopted, but at the same time, the Court has to strike a balance between the offence committed and what is the effect of the punishment on the society and on the victim. The sentence in a case should send a signal to the society. The Court has to strike balance between the reformitive as well as punitive theories. This proposition of law has been laid down in a decision, in the case of Siddarama and Ors. Vs State of Karnataka AIR 2006 SC 3265. Further it is the duty of the Court to impose proper punishment depending upon the degree of criminality and desirability to impose such punishment. The sentence should be appropriate befitting the crime. 16 This proposition of law has been laid down by the Apex Court in the case of Akram Khan Vs. State of West Bengal reported in 2012 (1) Crimes 5(SC). Keeping in view the above said proposition of law if we analyze the sentence imposed by the Court below, the said punishment appears to be just and proper, but it is not a improper punishment taking into consideration the degree of criminality. We are conscious of the fact that whenever the discretion has been exercised by the Court, the appellat's Court must be very slow in interfering in such discretionary power. In that light it does not require any interference. Be that as it may, during the course of argument the learned counsel appearing for the accused submitted that already the accused/respondent No.1 has already served the said sentence imposed by the trial Court, when that being the case, then under such circumstances, we feel it not necessary to disturb such order.
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13. Another point which has been raised by the learned SPP is that the Court below has wrongly acquitted the accused Nos.2 to 4 even though there is material to show that they have also ill-treated and harassed the deceased. But, by going through the evidence on record, there is no clear, cogent and corroborative evidence to show that the accused Nos. 2 to 4 have ill-treated and harassed the deceased for demand of dowry. Even though there is evidence and the circumstances to show that it is accused No.1 who has ill-treated and harassed the deceased for demand of dowry. Be that as it may, in so far as accused No.1 is concerned, he has already undergone the sentence and he has also not preferred any appeal as against such conviction. As such, the prosecution was only able to prove the case against accused No.1 in respect of Sec. 498-A and 304-B of IPC and Sec. 3, 4 and 6 of Dowry Prohibition Act. Keeping in view the evidence on record, we are of the considered opinion that the trial Court 18 after proper appreciation has rightly convicted accused No.1 and acquitted accused Nos.2 to 4. There is no illegality in the order so as to interfere in it. In that light, the submission of the learned Addl. SPP does not deserve any consideration.
14. The next important aspect which has been urged by the learned Addl. SPP is that, there is ample material to show that the accused has committed the murder of the deceased and accused No.1 with an intention to screen the evidence hanged the body after causing the death. In this context he would rely upon the evidence of P.Ws.1 to 14, 17 and P.W.24. Let us consider the evidence, which has been led by the prosecution to substantiate the said fact. As could be seen from the evidence of P.Ws.1 to 6, P.W.12 to 16 that they have all categorically stated that when they had been to see the dead body they found injuries on the body of the deceased Basamma at the place of neck, 19 waist, back of the body and below the chin. Even P.W.17 the Taluka Executive Magistrae who conducted the inquest as per Ex.P-3 has also deposed about the injuries found on the body of the deceased Bassamma. P.W.24, the doctor who has conducted the autopsy and has issued the postmortem report as per Ex.P-27 has also deposed that bloodyforth coming out from nose and mouth, congestion of ring and middle finger of right hand, two small contusions on neck, just two centimeters below the chin, multiple contusion over back. He has also further deposed that two small contusions two centimeters below the chin, first contusion roughly oval in shape 1 x 1 cms on left side of the neck reddish black in colour, second contusion roughly oval in shape 1 cm x ½ cm just first contusion on left side of neck reddish black in colour. He has further deposed that on deception of neck subcutaneous bleeding noted below ligature mark. Marked bleeding noted at neck muscles and petachial, 20 hemorrhages in larynx and tracha noted. He has also opined that the death is due to asphyxia as a result of compression force. He has further deposed that the investigation officer has sought his opinion and he has further deposed that he has stated that there is possibility of death due to pressing of the neck below the chin from the fingers. He has further deposed that the chance of suicide are remote. Even though this witness has been cross-examined in the first instance, again the witness has been recalled on 13.3.2009 and it has been cross-examined in length. Surprisingly, it has come in the evidence that the above said contusions on the neck of deceased-Bassamma might have been caused by pressing with fingers when the deceased Bassamma was in a sleeping position or she has been pushed to a wall and pressed with the fingers. The witness has deposed that it is possible. Further it has been suggested that the injuries found over the body of the deceased may be caused if a person falls due to 21 sleep, but the same has been denied by the doctor. This evidence of P.W.24 is corroborated with evidence of other witnesses who have also deposed that they have found the injuries over the body of the deceased. Even the trial Court after considering the fact that the death has taken place within seven years from the date of marriage and the evidence also indicates that there is ill-treatment and harassment by accused No.1. Even though the trial Court has come to the conclusion that the presence of the intimotom injuries found on the body of the deceased is not sufficient to come to the conclusion that the deceased died due to the injuries. The said appreciation by the trial Court is not the correct appreciation of the facts. It is the duty of the Court to separate the grain from the chaff. For this proposition of law, we want to rely upon a decision reported in Raja @ Sashikumar and Anr. Vs. State Through, Inspector of Police reported in 2013 (12) SCC 674. We have given our anxious consideration to 22 the submission made by the learned counsel for the accused and the prosecution. No doubt, in the case of dowry death the close relatives will try to involve all the family members in the commission of the offence and there will be some exaggerations and improvements so as to falsely implicate the other members of the family. Under such circumstances, the courts are expected to undertake forensic exercise aimed at discovering truth, this proposition of law has been laid down in the case of Ranjit Singh Vs. State of Punjab and Others reported (2013) 16 SCC 752. Therein it has been further observed that the Court must make an attempt to separate grain from the chaff, the truth from the falsehood.
15. When the entire prosecution evidence is credible, reliable cogent and acceptable then under such circumstances minor discrepancies in the version of the eyewitness or evidence cannot come to the aid of 23 the accused. This proposition of law has been laid in the case of Kathiramku Aligbhai Vs State of Gujrat AIR 1993 SC 2472. It is an admitted fact that the death has taken place within seven years after the marriage and the prosecution has also established the fact that the deceased-Bassamma died due to the illtreatment and harassment caused by the accused No.1 for demand of dowry, when the said fact has been established by the prosecution then under such circumstances the presumption under Sec. 113(B) of the Evidence Act has to be drawn and thereafter the burden shifts upon the accused to disprove the said presumption on prepoponderss of probabilities. In the instant case on hand except denying the allegations made by the prosecution, the accused No.1 has not made out any specific case for explaining the injuries found over the body of the deceased, that too when it is proved that deceased died due to pressing of the neck below the chin by the fingers and the chance of suicide 24 are remote. Though the learned counsel for the accused by bringing to our notice to page 452 of Modi's Jurisprudence would contend that there is no mention about the finger prints on the wind pipe of the deceased and Ex.P-27 is silent. But, P.W.24 the doctor who has been examined has specifically deposed that there is possibility of death due to pressing of the neck below the chin from the fingers and also deposed that the chance of suicide are remote. Be that as it may, even in Modi's Jurisprudence 24th Edition at Page 453 it has been mentioned " if the throat is compressed between two hands, one being applied to the front and the other to the back, bruises and abrasions may be found on the front of the neck as well as on its back. He would also further mention that besides these marks there may be abrasions and bruises on the mouth, nose, cheeks, forehead, lower jaw or any other parts of the body, if there has been a struggle. Keeping in view the above said aspect, if the injuries found over the body of the 25 deceased are looked into and the evidence of all the witnesses have specifically deposed about the said injuries during the course of evidence it would support that deceased Bassamma was subjected to cruelty by causing bodily injuries on her. In this way also that there is a corroboration in the evidence of all the witness and Ex.P-27. Further by observing the judgment of the trial Court at internal page No.34 it has been discussed that the injuries found on the body of the deceased is corroborated with the evidence of P.W.17 and Ex.P-3 and also the evidence of Medical Officer P.W.24 who conducted the postmortem examination and issued Ex.P-27. It is further observed that in the absence of satisfactory explanation by the accused regarding the injuries found on the body of the deceased-Bassamma it can be presumed that the deceased Bassamma was subjected to cruelty or harassment by her husband accused No.1 causing bodily injuries and she died or otherwise than under 26 normal circumstances. On the basis of said evidence, the learned Sessions Judge has convicted accused No.1 under Sec. 498-A and 304-B of IPC and under Sec. 3 and 4 of Dowry Prohibition Act. It is an admitted fact that the accused No.1 has not preferred any appeal against such order. When the said fact has been substantially proved and the accused has not rebutted the presumption raised against him with satisfactory evidence, then under such circumstances the Court below ought not to have acquitted the accused for the offence under Sec. 302 of IPC when all the witnesses including the doctor have deposed about the injuries then under such circumstances if the deceased has committed suicide by hanging then under such circumstances the other injuries found on the body of the deceased are not a necessary corollary. Therefore, the fact remains that the deceased has been murdered before her death. In this behalf the trial Court erroneously concluded that the death of the deceased is 27 suicidal by hanging because of the ill-treatment and harassment of accused No.1. When the alleged incident has admittedly taken in a dwelling house of the accused No.1, the alleged incident has taken place in a secrecy or inside the house, then under such circumstances, it is the accused No.1 who must explain under what circumstances the other injuries might have been caused, if he does not come with any other explanation even on preponderness of probabilities, then under such circumstances the only inference is to be drawn is that the accused No.1 has compressed on neck and caused the death in other words he has committed murder. This aspect of the case has not been properly appreciated by trial Court. Even by going through the records in 313 Statement or during the course of cross- examination no explanation has been brought on record by the accused to substantiate his case. Leave apart this, during the course of cross-examination they tried to bring on record that the deceased was a sensitive 28 lady and as such she committed suicide. Once the prosecution probabilities the involvement of the accused, but the accused takes a false plea, such a false plea can be taken as additional circumstances against the accused. Though Article 20(3) of the Constitution of India incorporates the rule against self-incrimination, the scope and contents of the said rule does not require the Court to ignore the conduct of the accused in not correctly disclosing the facts within his knowledge. When the accused takes a false plea about the facts exclusively known to him, such circumstance is a vital additional circumstance against the accused. This proposition of law has been also laid down in a decision of State of Karnataka Vs. Suvarnamma and Anr. Reported in (2015) 1 SCC 323 [D].
16. By going through the evidence placed on record so far as accused Nos. 2 to 4 are concerned, there is no substantial corroborative evidence to show that they ill- 29 treated and harassed the deceased for demand of dowry and they have also actively participated in the commission of the alleged offence. But, so far as accused No.1 is concerned as held above there is sufficient, cogent, corroborative evidence to connect the accused No.1 to the alleged crimes of illtreatment, harassment for demand of dowry and also causing the murder of the deceased. After said proof, accused No.1 has not rebutted the said presumption rasied against him then under such circumstances it can be sfely held that accused No.1 has committed the murder of deceased-Bassamma. Thereafter in order to screen the offence has hanged the body. Even though the trial Court has come to the conclusion that the prosecution is able to prove the guilt of the accused under Sec. 498- A and 304-B of IPC and also under Sec. 3 and 4 of Dowry Prohibition Act and even P.W.24, the doctor who has conducted the postmortem has also clearly indicated that the death is due to pressing of the neck 30 below the chin from the fingers and the chance of suicide are remote, then under such circumstances the Court below ought to have convicted accused No.1 to the alleged crime. In this behalf the view taken by the trial judge was absolutely unreasonable, perverse and based on a totally erroneous appreciation of evidence contrary to settled principles of law.
17. We are conscious of the fact in case of appeal against acquittal, this Court has full power to review at large all the evidence and reach the conclusion upon that evidence, and the order of acquittal can be reversed. The principles which would govern and regulate the hearing of appeal by this Court against an order of acquittal passed by the trial Court have been set out in innumerable cases of the Apex Court. In the case of Ajit Savant Majagavi Vs. State of Karnataka reported in (1997) 7 SCC 110. In the said decision the following principles have been reiterated as below. 31
"The principles which would govern and regulate the hearing of appeal by the High Court against an order of acquittal passed by the trial Court. These principles have been set out innumerable cases and may be reiterated as under:
(1) In an appeal against an order of acquittal, the High Court possesses all the powers, and nothing less than the powers it possesses while hearing an appeal against an order of conviction.
(2) The High Court has the power to reconsider the whole issue, reappraise the evidence and come to its own conclusion and findings in place of the findings recorded by the trial Court, if the said findings are against the weight of the evidence on record, or in other words, perverse. 32
(3) Before reversing the finding of acquittal, the High Court has to consider each ground on which the order of acquittal was based and to record its own reasons for not accepting those grounds and not subscribing to the view expressed by the trial Court that the accused is entitled to acquittal.
(4) In reversing the finding of acquittal, the High Court has to keep in view the fact that the presumption of innocence is still available in favour of the accused and the same stands fortified and strengthened by the order of acquittal passed in his favour by the trial Court.
(5) If the High Court, on a fresh scrutiny and reappraisal of the evidence and other material on record, is of the opinion that there is another view which can be reasonably taken, then the view which favours the accused should be adopted. 33
(6) The High Court has also to keep in mind that the trial Court had the advantage of looking at the demeanor of witnesses and observing their conduct in the Court especially in the witness-box.
(7) The High Court has also to keep in mind that even at that stage, the accused was entitled to benefit of doubt. The doubt should be such as a reasonable person would honestly and conscientiously entertain as to the guilt of the accused.
18. By going through the above proposition of law, we are conscious that if there are two views possible on similar circumstances, then under such circumstances if the trial Court by giving one of the view given the benefit and has acquitted the accused, then under such circumstances this Court will be very slow in interfering with such order. But, in the instant case on hand, no 34 such circumstances are existing. We are also conscious by close scrutiny of the evidence, if there are two views, one can be given to the accused but there is no other view other than drawing that the accused has committed the alleged crime. We feel that the only inference which can be drawn against the accused No.1 is that he has committed the murder of deceased Bassamma and thereafter in order to screen the evidence he has hanged the body. We are also conscious that until the guilt of the accused is proved he is presumed to be innocent, but our jurispreudentil enthusiasm for presume the innocence must be moderated by the pragmatic need to make criminal justice potent and realistic. The paramount importance of the Court to ensure that miscarriage of justice is avoided. The benefit of doubt particularly in every case may not nurture fanciful doubts or lingering suspicion and thereby destroy social defence. A reasonable doubt is not an imaginary trivial or merely 35 possible doubt, but a fare doubt based upon reason and common sense must be there. No such reasonable doubt is existing so as to give the benefit of doubt to the accused No.1.
19. The evidence of all the witnesses including P.W.24 clearly show that the accused No.1 for greed of money persistently ill-treating, taunting, harassing the deceased both physically and mentally and he has also murdered the deceased and thereafter he has pretended that the deceased has committed suicide by hanging the body to screen the evidence.
20. For the reasons stated above the trial Court without proper appreciation of the evidence in its entirety has arrived to a wrong conclusion though there is evidence to prove the guilt of the accused. In that light, the impugned judgment and order is not 36 sustainable in law, as such it is liable to be set aside and accused No.1 has to serve the sentence.
21. We are conscious of the fact that already accused No.1 has served the sentence for seven years and it is not a rarest of rare case so as to impose capital punishment, as such we feel that if accused No.1 is convicted and sentenced to undergo life imprisonment for the offence punishable under Sec. 302 of IPC and to pay a fine of Rs.1,00,000/-, in default has to undergo imprisonment for one more year and further accused No.1 is also convicted and sentenced to undergo imprisonment for a period of three years and to pay a fine of Rs.50,000/- in default to undergo imprisonment for six months, were to be ordered then it will meet the ends of justice. Even the said sentence must go concurrently and whatever the period of imprisonment, which the accused No.1 has served has to be given benefit under Sec. 428 of Cr.P.C. while considering the 37 conviction and sentence under Sec. 302 and 201 of IPC. Accordingly, we pass the following;
ORDER
i) Appeal is allowed.
ii) The impugned judgment and order dated
22.12.2009 passed by Prl. Sessions Judge, Gulbarga in S.C.No.31/2008 acquitting the accused No.1 for the offence punishable under Sec. 302 and 201 of IPC is hereby set aside.
iii) The respondent No.1-accused is hereby convicted and sentenced to undergo life imprisonment for the offence punishable under Sec. 302 of IPC and directed to pay a fine of Rs.1,00,000/- (One Lakh Rupees) and in default to undergo imprisonment for one more year.
iv) Further accused No.1 is also convicted for the offence punishable under Sec.201 of IPC and sentenced to undergo imprisonment for a period of three years and to pay a fine of Rs.50,000/- (Fifty Thousand Rupees only) in default to undergo imprisonment for six months.
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v) Accused No.1 is directed to surrender before
the Prl. Sessions Judge, Gulbarga
immediately without any further delay to serve the sentence.
vi) The Court below is directed to secure the presence of accused No.1 forthwith and issue the warrant of conviction of sentence to serve the sentence.
vii) He shall deposit fine amount of Rs.1,50,000/-. After deposit of fine amount of Rs.1,00,000/- has to be paid to P.W.2 as compensation under Sec. 357 of Cr.P.C.
viii) The sentence imposed on accused No.1 should run concurrently and accused No.1 is entitled to set off as per Sec. 428 of Code of Criminal Procedure.
Sd/-
JUDGE Sd/-
JUDGE BL/SMP Ct: SMP