Karnataka High Court
State Of Karnataka vs G V Ramesh on 7 February, 2022
Bench: K.Somashekar, P.N.Desai
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R
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 7TH DAY OF FEBRUARY, 2022
PRESENT
THE HON'BLE MR.JUSTICE K.SOMASHEKAR
AND
THE HON'BLE MR. JUSTICE P.N.DESAI
CRIMINAL APPEAL NO.1408 OF 2015
BETWEEN:
State of Karnataka
By Chitradurga Rural Police
Chitradurga District - 577501.
...Appellant
(By Smt. K.P. Yashoda - HCGP)
AND:
1. G.V. Ramesh
S/o. Late G.T. Venkateshreddy
Age: 29 years
Occ: Village Accountant
R/o: Gudibande Town
Chikkaballapura District
Permanently Residing at
Kasavarahatti Village
Chitradurga Taluk - 577501.
2. Rajeshwari
W/o. Late G.T. Venkateshreddy
Age: 48 years
R/o. Kasavarahatti Village
Chitradurga Taluk - 577501
...Respondents
(By Sri. N. Srinivas - Advocate)
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This Criminal Appeal filed under Sec.378(1) and
(3) of Criminal Procedure Code, by the Advocate for the
appellant praying to i) grant leave to appeal against the
judgment and order dated 10.08.2015 passed by the
Addl. District and Sessions Judge at Chitradurga in
Sessions Case No.148/2011, acquitting the
accused/Respondent No.1 for the offence punishable
under Sections 302, 201 of IPC and also 498-A, 304-B
r/w Sec. 34 of IPC and Sections 3 and 4 of D.P. Act in
respect of Accused Nos.1 & 2; ii) set aside judgment and
order dated 10.08.2015 passed by the Addl. District and
Sessions Judge at Chitradurga in Sessions Case
No.148/2011, acquitting the accused/Respondent No.1
for the offence punishable under Sections 302, 201 of
IPC and also 498-A, 304-B r/w Sec. 34 of IPC and
Sections 3 and 4 of D.P. Act in respect of Accused Nos.1
& 2; iii) convict and sentence the Respondent No.1 /
Accused No.1 for the offences punishable under
Sections 302, 201 of IPC and also 498-A, 304-B r/w
Sec. 34 of IPC and Sections 3 and 4 of D.P. Act in
respect of Accused Nos.1 & 2.
This criminal appeal coming on for further
arguments this day, K. Somashekar .J delivered the
following:
JUDGMENT
This appeal is directed against the judgment of acquittal rendered by the trial Court in S.C.No.148/2011 dated 10.08.2015 whereby acquittal of the accused for the offences punishable under 3 Sections 302, 201, 498-A, 304-B r/w 34 IPC besides Sections 3 and 4 of Dowry Prohibition Act, 1961. Whereas the Appellant / State has preferred this appeal by urging various grounds and seeking to set-aside the acquittal judgment rendered by the trial Court in S.C.No.148/2011 and to convict the accused for the charges leveled against them.
2. Heard learned HCGP Smt.K.P.Yashoda for appellant / State and learned counsel namely Sri N.Srinivas for respondents / accused who are present before the Court physically. Perused the judgment of acquittal rendered by the trial Court in S.C.No.148/2011 which is consisting the evidence of PWs.1 to 16 and so also, documents at Exs.P1 to P19 inclusive of M.Os.1 to 7.
3. Factual matrix of the appeal are as under:
It is transpired in the case of the prosecution that on 07.02.2010 the marriage of deceased Pankaja @ Veena, D/o Hanumantha Reddy was performed with 4 accused No.1 - Ramesh as per the customs prevailed in their society. Accused No.2 - Rajeshwari, w/o G.T.Venkatesh Reddy is the mother-in-law of the deceased and mother of accused No.1 - G.V.Ramesh. During the time of marriage accused No.1 being the bridegroom received Rs.2,00,000/-, 17 thola gold items from PW.3 who is no other than the father of deceased Pankaja @ Veena. Subsequent to her marriage with accused No.1, she was residing with accused Nos.1 and 2 at Kasavarahatti and for a period of more than a year she lead a happy marital life with accused No.1. But the accused alleged to have given physical as well as mental harassment by insisting her to bring dowry in terms of Rs.1,00,000/- from parents house to purchase a site, received Rs.1,00,000/- from PW.3 father of Pankaja and tortured Pankaja to bring almirah, cot and utensils from her parents house. On 16.05.2011 accused No.1 who is no other than the husband of deceased Pankaja with an intention to eliminate his wife 5 on the pretext of getting treatment at Sunitha Nursing Home, Chitradurga and saying so, made a mobile call to his wife Pankaja and asked her to come to N.H.4 bypass Chitradurga, took her on motorcycle bearing Regn.No.KA.14/R 5378 and proceeded in that motorcycle to the low lying area situated near the land of one Gurulingappa by the side of N.H.13 near G.R.Halli at 10.30 a.m. Accused No.1 with an intention to eliminate his wife took the deceased Pankaja to the scene of crime committed murder by strangulating her with means of M.O.4 cotton rope and subsequent to committing murder of deceased Pankaja made effort to destroy the evidence to screening from legal punishment. It is further stated that accused No.1 -
G.V.Ramesh who is none other than husband of deceased - Pankaja, accused No.2 - Rajeshwari who is the mother-in-law and both accused No.1 and 2 insisting her to bring in terms of dowry and extending dowry harassment to her and caused her death within a 6 period of seven years from the date of her marriage in terms of dowry death.
4. It is further stated that accused Nos.1 and 2 insisting deceased Pankaja by demanding her to bring household articles from her parents house and saying so extending physical as well as mental harassment with a common intention and causing for physical as well as mental torture to her it is in terms of cruelty and also insisting her to bring additional dowry from her parents house despite receipt of dowry in terms of cash and gold items during her marriage with accused No.1 from her parents house.
5. In pursuance of the act of the accused and on filing of a complaint by PW.13 - Sudarshan Reddy whereby he saw the body of unknown woman which was lying at the scene of crime and based upon his complaint report at Ex.P15 that the criminal law was set into motion by recording the FIR at Ex.P14. Subsequent to registration of the crime, the 7 investigating officer took up the case for investigation. During the investigation PW.14 - Umesh Eshwarnaik who is an investigating officer in part held inquest over the dead body of Pankaja on 17.05.2011 and issued the inquest report as per Ex.P4. PW.15 - Balachandranaik is also the investigating officer in part and he has also investigated the case relating to death of Pankaja and whereby the body of deceased Pnakaja was lying at the scene of crime. PW.16 - Gangaiah is the investigating officer and he completed the entire investigation and collected the material documents such as marriage invitation card as per Ex.P1, 8 photos as per Ex.P2(a) to
(h), photo as per Ex.P3 and inquest mahazar over the dead body of deceased as per Ex.P4 and three mahazars as per Exs.P5, 6 and 7 and so also mahazars as per Ex.P8 and P9 dated 17.5.2011 and another mahazar as per Ex.P12 dated 12.8.2011. These are all the mahazars conducted by the investigating officer in the presence of panch witnesses and more so, the dead 8 body of Pankaja had been sent to mortuary and accordingly, PW.12 - Dr.Rajakumar conducted autopsy over the dead body and issued P.M.Report as per Ex.P13. In addition to that PW.16 being the investigating officer conducted the entire investigation and during the investigation he secured the map of scene of crime as per Ex.P9(b) and recorded voluntary statement of accused No.1 as per Ex.P17 and whereby the accused has subscribed his signature and also secured the Xerox copy of promissory note as per Ex.P18 and the report issued by Kalikamba Jeweler shop, Chitradurga as per Ex.P19. These are all the material documents secured by PW.16 being the investigating officer and laid the charge sheet against the accused persons before the committal court.
6. Subsequent to committing the case by passing the committal order by the committal Magistrate by following the provision of Section 209 of Cr.P.C. and so also, following the provision of Sections 207 and 208 9 Cr.P.C. whereby the case has been committed to the Sessions Court. Subsequently the case in S.C.No.148/2011 came to be registered and securing the accused for facing of trial.
7. Subsequently, the trial Court heard on charge of learned public prosecutor and so also, the defence counsel and having found prima-facie materials against the accused relating to the offences, accordingly charges were framed against the accused respectively for the offences punishable under Sections 302, 201, 498A, 304-B r/w 34 of IPC, 1860 and so also, offences under Sections 3 and 4 of the Dowry Prohibition Act. Subsequent to framing of charges against the accused that the prosecution let in evidence by examining PWs.1 to 13 and got marked several documents as per Exs.P1 to P19 and so also got marked M.Os.1 to 7.
8. Subsequent to closure of evidence on the part of the prosecution whereby recording the incriminating statement of accused and accused denied the truth of 10 evidence of prosecution witnesses adduced so far. Subsequent to recording the incriminating statement secured against the accused that the accused were called upon to adduce defence evidence, if any. But the accused did not come forward to let in defence evidence on their side, but filed their additional statement. Subsequent to the closure of evidence on the part of the prosecution by recording the incriminating statement against the accused, the trial Court heard the arguments advanced by the learned Public Prosecutor and so also, the defence counsel. On close scrutiny of the evidence and also analytically appreciating the evidence and having convinced with the evidence let in by the prosecution, rendered the impugned judgment of acquittal for the offence punishable under Sections 302, 201, 304-B, 498-A r/w 34 of IPC and also offences under Sections 3 and 4 of the Dowry Prohibition Act, 1961. It is this judgment which is challenged under this appeal by urging various grounds.
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9. Learned High Court Government Pleader appearing for the State Smt.K.P.Yashoda has taken us to the evidence of PW-1 P.S.Thimmareddy, the brother of the deceased Pankaja @ Veena, who has stated in his evidence relating to the concept of dowry harassment extended by accused No.1 G.V.Ramesh and so also similarly extended by accused No.2 Rajeshwari, who is none other than the mother-in-law of deceased Pankaja @ Veena. Learned HCGP further submitted that PW-1 has given evidence in detail relating to harassment meted out to his sister Pankaja @ Veena and also the kind of physical, as well as, mental harassment extended by accused No.1 G.V.Ramesh and so also accused No.2 Rajeshwari. She further submitted that the trial Court has not properly appreciated the evidence of not only PW-1, but, also the evidence of PW- 2 and PW-3. Therefore, interference by this Court in this appeal is required and if not interfered with, 12 certainly some substantial miscarriage of justice would arise and more so, it is oppose to law relating to the facts and circumstances of the case which has been narrated by the prosecution in so far as the murder of the deceased Pankaja @ Veena and even with respect to committing the murder of the deceased, that accused No.1 G.V.Ramesh made an effort to destroy the evidence with an intention to screen out from legal punishment.
10. The second limb of argument advanced by learned HCGP for State is that, PW-1, PW-2 and PW-3 have stated that the marriage of deceased Pankaja @ Veena was performed with accused No.1 G.V.Ramesh. During her marriage with accused No.1, PW-3 Hanumanthreddy, father of the deceased, had provided dowry in terms of cash of Rs.2 lakhs and so also gold ornaments weighing 17 tolas and the same have been received by accused No.1 G.V.Ramesh. That her death was occurred within a span of seven years from the date 13 of marriage and that accused No.1 G.V.Ramesh and accused No.2 Rajeshwari were alleged to have insisting the deceased Pankaja @ Veena to bring additional dowry from her parents house in terms of household articles and cash.
11. Learned HCGP further submitted that Section 113 and Section 114 of Indian Evidence Act, 1872, have not been properly considered by the trial Court and it has also not properly looked upon the scope of provisions of Indian Evidence Act in so far as dowry death is concerned and also when the prosecution has discharged its initial burden, it is for the accused to explain the death of the deceased. But, in the instant case, the trial Court has not properly considered the facts and circumstances of the case and the incriminating evidence which the prosecution has elicited through the evidence of PW-1, PW-2 and PW-3 and the incriminating evidence appeared against the 14 accused which has been recorded as contemplated under Section 313 of Cr.P.C. He further submitted that, even though the accused did not give proper explanation during the course of recording his statement, the trial Court had rendered an acquittal judgment by not giving any credential to the evidence of PW-1, who is none other than the brother of the deceased Pankaja @ Veena, PW-2 Arundhathi, who is none other than the sister of deceased, who has stated about the last seen theory. She has stated that, she along with her sister deceased Pankaja @ Veena boarded an autorickshaw at Rangavvanahalli village and came to Chitradurga, where accused No.1 took his wife in a motorcycle with an intention to eliminate her life. She has further stated that on the pretext of getting treatment to his wife, accused No.1 took her to Sunitha Nursing Home which is situated in Chitradurga. This evidence of PW-2 led by the prosecution has been corroborated by the evidence of 15 PW-1, so also, by the evidence of PW-3 Hanumanthareddy, who is none other than the father of the deceased.
12. The trial Court has failed to consider the evidence of these witnesses led on behalf of the prosecution. The trial Court is required to give more credential in respect of the evidence by considering it as trustworthy and considering the same with due care and caution which is the domain vested with the trial Court. But, the trial Court had erroneously came to the conclusion without appreciating the evidence in its proper perspective. Therefore, in this appeal, consideration of the grounds as urged and so also the scope of the provisions of Section 113, Section 114 and Section 106 of Indian Evidence Act, 1872 are required to be considered. On this premise, learned HCGP for the State seeks for consideration of the grounds as urged in this appeal and seeks for setting aside the 16 acquittal judgment rendered by the trial Court in S.C.No.148/2011, dated 10th of August 2015, and for conviction of the accused for the offences punishable under Sections 302, 304-B, 201, 498A read with Section 34 of IPC and under Sections 3 and 4 of Dowry Prohibition Act, 1961.
13. Learned counsel Sri N. Srinivas appearing for respondents/accused has countered to the arguments advanced by the learned HCGP. While referring to the evidence of PW-1 and PW-2, who are none other than the brother and sister of deceased Pankaja @ Veena and to the evidence of PW-3 Hanumantareddy, who is the father of the deceased and PW-13 Sudarshan Reddy, the complainant, submitted that the complainant - PW- 13 saw the dead body of an unknown women which was found lying at the scene of the crime and accordingly, law was set into motion. The police registered the case in Crime No.229/2011 by registering FIR as per 17 Ex.P-14. PW-13 had filed the complaint as per Ex.P-15 on 16.05.2011 before Chitradurga Rural Police Station and within the jurisdiction of that police station, dead body of an unknown women i.e., Pankaja @ Veena was lying in the midst of the land of one Gurulingappa.
14. Learned counsel for the accused further submitted that the alleged incident in Crime No.229/2011 had taken place during the night hours i.e., on 15.05.2011, near the Pump house situated on the right side of NH-13, which road leads from Guddada Rangavvanhalli to Hospet, in the amidst of Chitradurga Taluk, wherein, the dead body of an unknown women, aged about 30 to 35 years was lying at the scene of crime, which was a cart lane. The accused No.1 G.V.Ramesh was apprehended by the investigating agency on 17.05.2011. It is alleged that he committed the murder of his wife Pankaja @ Veena by 18 strangulating her neck with means of MO-4 - cotton rope.
15. PW-12 is a doctor who conducted the autopsy over the dead body of Pankaja @ Veena and issued the post mortem report as per Ex.P-13, whereby the doctor has opined for the cause of death as due to asphyxia due to strangulation. It is the case of the prosecution that the marriage of deceased Pankaja @ Veena was performed with accused No.1 G.V.Ramesh on 07.02.2010 at Ganesha temple, Bhurujanaroppa Gate, Chitradurga Taluk and District. The entire case of the prosecution revolves around the circumstantial evidence and more so, there is no direct overact attributed against accused No.1 G.V.Ramesh and so also to accused No.2 Rajeshwari who is none other than the mother-in-law of the deceased. It is the case of the prosecution that accused No.1 G.V.Ramesh who is an abode of Gudibande, went to Chitradurga in order to 19 pick his wife Pankaja @ Veena in a motorcycle and it is alleged that he has attempted to commit murder of deceased by strangulating her neck with means of MO-4 cotton rope. The allegations against accused No.2 Rajeshwari is that she extended some sort of harassment to her daughter-in-law viz., Pankaja @ Veena.
16. Learned counsel for the accused further submitted that, in the instant case, neither accused No.1 G.V.Ramesh nor accused No.2 Rajeshwari were subjected to examination on the ground of the prosecution case relating to harassment extended by both the accused to the deceased and so also, extending some sort of harassment to her by insisting her to bring additional dowry in terms of cash and also articles from her parents house, despite receipt of dowry in terms of cash of Rs.2 lakhs and gold jewellary weighing 17 tolas during her marriage. The deceased Pankaja @ Veena, 20 who is none other than the wife of accused No.1 G.V.Ramesh, was staying in her parents house and more so, she was hardly residing with her husband, that too, whenever she had been took from her parents house to the matrimonial house. But, after one month of their marriage, accused No.1 G.V.Ramesh took his wife Pankaja @ Veena and started residing at Gudibande village. It is for about four to five months, they led their happy marital life. But, after seven months of their marriage, accused No.1 started demanding her to bring Rs.1 lakh cash to buy a site and within one month, the said amount was given to accused No.1. That, after the Ugadi festival, accused No.1 G.V.Ramesh left the deceased Pankaja @ Veena in the house of accused No.2 Rajeshwari, who is her mother-in-law, at Kasaravatti village. The deceased Pankaja @ Veena used to inform the aspect of harassment meted out to her at the hands of accused No.2 Rajeshwari to PW-3, father of the deceased 21 Hanumanthareddy and PW-3 took his daughter Pankaja @ Veena from the house of accused No.2 Rajesjwari and accordingly, Pankaja @ Veena stayed in her parents house.
17. PW-16 being an Investigating Officer, who has been examined in order to prove the guilt of the accused, has stated in his evidence that PW-1 has not stated any aspect relating to PW-2 Arundhathi informing him about accused No.1 G.V.Ramesh alleged to have taken his wife Pankaja @ Veena from NH-13 in a motorcycle and both leaving together. Therefore, the evidence of PW-16 runs contrary to the evidence of PW- 1, PW-2 and PW-3. He also submitted that even the evidence of PW-2 who is the elder sister of the deceased viz., Pankaja @ Veena and she being a star witness on the part of the prosecution relating to last seen theory set up by the prosecution and even alleged to have been established by the prosecution through the evidence of 22 PW-1, PW-2 and PW-3, runs contrary to the evidence of PW-14, PW-15 and PW-16. PW-16 being an Investigating Officer, has thoroughly conducted the investigation in this case and filed the charge sheet against the accused persons. PW-2 Arundhathi in her evidence has stated that on 15.05.2011, between 7.00 p.m. to 11.00 p.m., the accused No.1 G.V.Ramesh was calling his wife Pankaja @ Veena to come to Sunitha Nursing Home for getting treated her as she was issueless and on the next day, after 7.00 a.m. onwards, for every half an hour, accused No.1 G.V.Ramesh kept calling Pankaja @ Veena to come to Sunitha Nursing Home, situated in Chitradurga town. However, the entire case of the prosecution revolves around the evidence of PW-1, PW-2 and PW-3. But, the evidence of PW-16, who is an Investigating Officer, has admitted in his evidence that PW-2 has not stated before him while giving statement during the course of investigation in respect of accused No.1 G.V.Ramesh, on 15.5.2011, 23 calling upon his wife from 7.00 p.m. to 11.00 p.m. in order to go to medical check up at Sunitha Nursing Home, situated in Chitradurga town.
18. Learned counsel further submitted that the entire evidence of PW-3 Hanumanthareddy, who is none other than the father of deceased is that, his younger daughter Pankaja @ Veena was given in marriage with accused No.1 G.V.Ramesh and during the marriage, a cash of Rs.2 lakhs and gold jewellary, such as, bracelet, neck chain, ring have been provided in terms of dowry to accused No.1. But, after the marriage, in one and half months, Pankaja @ Veena stayed back with them, however, they took Pankaja @ Veena and left her in the house of accused No.1 G.V.Ramesh situated at Gudibande, where she stayed for a month. After Pankaja @ Veena came back to the house of PW-3 Hanumanthareddy for attending some family function, she stayed back in her parents house for twenty days. 24 It is stated by PW-3 that accused No.2 Rajeshwari demanded additional dowry through the deceased in order to buy a site. But, PW-3, father of the deceased Pankaja @ Veena, stated that he gave Rs.1 lakh to accused No.2 Rajeshwari in the presence of accused No.1 G.V.Ramesh in a hotel at Channagiri. Then the accused No.1 G.V.Ramesh and accused No.2 Rajeshwari went to Gudibande situated at Chikkaballapura District. In the month of February 2011, Pankaja @ Veena came to her parents house to attend a marriage function, but, accused No.1 did not take back her. For Ugadi festival, accused No.1 G.V.Ramesh who took Pankaja @ Veena, left her in the house of accused No.2 Rajeshwari and accused No.1 alone went to Gudibande in Chikkaballapura District. Therefore, PW-3 has stated that some sort of harassment both physical, as well as mental harassment alleged to have been extended by accused Nos.1 and 2 to the deceased, which story has been set up by the prosecution to prove the guilt against 25 the accused through the evidence of PW-1 to PW-3. The same has not been appreciated and considered by the trial Court.
19. The allegations made against accused No.1 G.V.Ramesh is that on 16.05.2011, he took his wife in a motorcycle with an intention to eliminate her and also strangulated her neck with means of MO-4 - cotton rope and caused asphyxia, as a result of which, she lost her breath and same is the cause for death as opined by the doctor PW-12, who conducted the autopsy over the dead body.
20. PW-4 is a panch witness to the inquest panchanama which is marked at Ex.P-4. PW-5 is also a panch witness for the recovery of material objects at the instance of accused No.1 G.V.Ramesh. Ex.P-5 is a mahazar for recovery of MO-6 - the motorcycle and MO-5 Nokia mobile set. But, PW-5 has been treated as hostile in respect of Exs.P-5 to P-7 and was subjected to 26 examination, wherein he has stated that the contents of the said mahazar are not known to him and that he has given a go by to the case of the prosecution.
21. Ex.P-6 is the spot mahazar drawn at the instance of accused No.1 G.V.Ramesh, who took the investigating agency to the place of the incident where the dead body of Pankaja @ Veena alleged to have been thrown. The dead body was found in the trenches of the land belonging to one Gurulingappa. When the investigating agency went to the house of accused No.1 G.V.Ramesh situated at Gudibande, they found many houses near the house of accused No.1 and there they draw the mahazar.
22. The above are all the evidence let in by the prosecution and the same has been appreciated by the trial Court by referring to the evidence of panch witnesses and equally referring to the evidence of PW-1, PW-2 and PW-3. It is further contended that Ex.P-7 is 27 the recovery mahazar under which, articles are recovered at the instance of accused No.1 G.V.Ramesh from his residence situated within the limits of Gudibande in Chikkaballapur District and it is a rented house. The silver items and gold jewellary, such as, golden mangalya chain, golden chain, gold Laxmi coin, golden gundu, two golden bangles, golden ring with red stone, silver ring and silver anklets are all said to have been seized and Nokia mobile and Carbon mobile have also been sized and marked at MO-5 and MO-7 and the clothes of the deceased were seized under MO-1 and MO-2 and the cotton rope alleged to have been used by accused No.1 to strangulate the neck of the deceased Pankaja @ Veena was seized under MO-4.
PW-6 is the panch witness for the seizure mahazar at Ex.P-8 and in his presence, MO-1 to MO-3 were seized which are the clothes and rudrakshi thread worn by the deceased.
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PW-7 is also a panch witness relating to Exs.P-8 and P-9 which are seizure mahazars in respect of MO-1 to MO-3 and spot panchanama respectively. But, in his cross-examination, he has stated that, it is not true to say that by being present at the scene of offence while drawing the mahazar, he has put his signature to Ex.P-9.
PW-10 is the Investigating Officer who conducted the investigation in part and he has stated in his evidence that he has secured the RTC which is marked at Ex.P-10 and recorded further statements of PW-3 Hanumanthareddy, who is none other than the father of deceased Pankaja @ Veena and based upon his further statement, he has added Section 304-B of IPC in so far as death of his daughter Pankaja @ Veena within a span of seven years from the date of her marriage and so also, added Sections 3 and 4 of Dowry Prohibition Act, 1961 and even got marked his report at Ex.P-11. He 29 has further stated that, he has handed over the further investigation to PW-16.
PW-11 is a panch witness in respect of Ex.P-12 which is a seizure mahazar and so also, this mahazar has been conducted relating to seizure of marriage invitation card, which is marked at Ex.P-1 and marriage photos, which are marked at Exs.P-2(a) to P-2(h). These are the photos with respect to marriage of accused No.1 G.V.Ramesh along with deceased Pankaja @ Veena.
Further, PW-10, who conducted the investigation in part, has admitted in his evidence that PW-3 Hanumanthareddy, who is none other than the father of deceased Pankaja @ Veena, has not specifically stated before him relating to the corroborating evidence given by PW-2 Arundhathi about accused No.1 alleged to have called on 16.05.2011 informing PW-3 the fact of accused No.1 directing his wife to send back PW-2 Arundhathi and asked deceased to come alone. This 30 accused No.1 took his wife in his motorcycle. This creates some doubt in the case of the prosecution and when such doubt arises in the mind of the Court and in a criminal justice delivering system, the same has to be determined on the facts and circumstances of the case alone. Accordingly, the trial Court considered the aforesaid evidence in proper perspective.
23. The evidence of the doctor PW-12, who conducted the autopsy over the dead body of the deceased Pankaja @ Veena and who issued the post mortem report at Ex.P-13 has stated in his evidence that, he had noticed the external injuries of ligature mark, abraded contusions, in all three in number, and also three internal injuries, as stated in Ex.P-13. However, PW-12 in his evidence has specifically stated that he does not remember whether MO-4 cotton rope was shown to him even when subjected to examination. He further stated that, there are some sort of ligature 31 marks around the neck of the deceased Pankaja @ Veena as her skin was loosened which may be due to rigour mortis not found. Once the rigour mortis enters the body of the deceased, the body will start decaying after 48 hours of the death. This fact has been made out by the learned counsel for the appellants Sri N.Srinivas by referring to the evidence of PW-12, the doctor who conducted the autopsy over the dead body of the deceased and noticed the ligature mark around the neck of the deceased, inclusive of abraded contusion wounds as per Ex.P-13, the post mortem report.
24. PW-13 Sudarshan Reddy is the complainant who has seen the dead body of an unknown women which was lying at the scene of crime i.e., in the land of one Gurulingappa and based upon his complaint as per Ex.P-15, the criminal law was set into motion by registering FIR as per Ex.P-14 and subsequent to the registration of the crime, the case has been taken up for 32 investigation by PW-15, the Investigating Officer. PW- 14 the Investigating Officer, who took over the further investigation from PW-15, has recorded the statements of PW-2, PW-3 and PW-5, who are the relatives of deceased Pankaja @ Veena and in their presence, the inquest of the dead body has been conducted. PW-14 has drawn the spot mahazar as per Ex.P-9 and also prepared the sketch i.e., scene of crime as per Ex.P-9(b) and recorded the statement of Chennamma, the mother of the deceased Pankaja @ Veena, but, the said Chennamma has not been subjected to examination on the part of the prosecution even for corroborating with the fact of alleged harassment, both physical as well as mental, meted out to the deceased Pankaja @ Veena by her husband accused No.1 G.V.Ramesh and so also, her mother-in-law i.e., accused No.2 Rajeshwari. But, none of the witnesses have spoken on the part of the prosecution in respect of some sort of dowry harassment extended by both the accused to the 33 deceased Pankaja @ Veena and also insisting her to bring additional dowry from her parents house with an intention to buy a site.
25. PW-15, the Police Sub-Inspector, who has conducted the investigation in part and who registered the complaint and based upon the complaint as per Ex.P-15 filed by PW-13, brought the dead body of an unknown women which was lying at the scene of crime and based upon his complaint, criminal law was set into motion by registering FIR as per Ex.P-14.
26. Subsequent to registration of the crime, PW- 16, who is the Investigating Officer, took up the case for investigation and seized Exs.P-1 and P-2 by drawing a mahazar as per Ex.P-12 in the presence of panch witnesses and so also, collected xerox copies of the Promissory Note from PW-8 and recorded the statement of PW-9 and collected the receipts from PW-3 Hanumanthareddy regarding preparing the gold 34 jewellary and xerox copies of receipt of Kalikamba Jewellary shop vide Exs.P-18 and P-19 and thorough investigation has been conducted by him by recording statements of witnesses and also collected material documents and thereafter, laid the charge sheet against the accused. But, prior to 12.08.2011, PW-2 Arundhathi who is none other than the sister of the deceased Pankaja @ Veena and PW-3 Hanumanthareddy, who is none other than the father of deceased Pankaja @ Veena, have not spoken about the demand for dowry in terms of cash by accused No.1 G.V.Ramesh, which is of Rs.1 lakh, to purchase a site, fridge and other articles. The Investigating Officer has not examined the neighbours of accused No.2, which creates doubt in the mind of the Court and also the prosecution has set up a theory only in order to suit the purpose relating to the offences punishable under Sections 302, 304-B, 201, 498A of IPC and even for the offences punishable under Sections 3 and 4 of Dowry 35 Prohibition Act. The trial Court after scrutinizing the aforesaid evidence and mainly the evidence of PW-1, PW-2 and PW-3 and so also the evidence of PW-14, PW- 15 and PW-16, whose evidence runs contrary to each other and also considering that the entire case of the prosecution which revolves around a doubtful theory has passed an acquittal judgment. Therefore, in the criminal justice delivery system, the benefit of doubt is always to be accrued on the part of the accused alone.
27. Accordingly, the learned counsel for the respondents/accused has submitted that the trial Court had extended the benefit of doubt and rendered the acquittal judgment. The trial Court has considered the entire evidence of the prosecution witnesses adduced, so also and mainly the evidence of PW-1, PW-2 and PW- 3 and had rightly come to the conclusion that the prosecution has failed to establish the guilt against the accused beyond all reasonable doubt by facilitating 36 worthwhile evidence as positive, consistent, corroborative and cogent evidence. Therefore, in this appeal, the interference by this Court is not called for and the trial Court had rendered the acquittal judgment by considering all the evidence and also assigning sound reasons.
28. In respect of role of accused No.1 G.V.Ramesh and accused No.2 Rajeshwari is concerned, learned counsel for the respondents/accused has submitted that the prosecution has failed to establish the guilt against the accused and consequently the appeal is devoid of merits and seeks dismissal of this appeal.
29. In the aforesaid context of contentions made by the learned HCGP for the State by referring to the evidence of PW-1 and so also the evidence of PW-2 and PW-3 inclusive of the evidence of PWs 14, 15, 16 and 17 and so also the evidence of Sudharshan Reddy / PW-13 based upon whose complaint as per Exhibit P15, 37 criminal law was set into motion by recording an FIR as per Exhibit P14 by PW-14 being the Investigating Officer in part. Learned counsel for the respondents / accused has also stoutly addressed his arguments by referring to the cross-examination part of PW-2 / Arundhathi, who is none other than the sister of the deceased Pankaja @ Veena and so also the cross- examination part of PW-3 / P.T. Hanumanthareddy who is the father of the deceased Pankaja @ Veena and so also contending that the entire case of the prosecution revolves around the evidence of PW-1, PW-2 and PW-3. But PW-2 and PW-3 have stated in their evidence that they came to know the presence of the body of Pankaja @ Veena near the pump house at a distance of 50 feet from G.R. Halli, Hoskote Road, NH-13 at a distance of ½ k.m. from G.R. Halli. But the dead body of Pankaja @ Veena was spotted by PW-3 as on 17.05.2011. Criminal law was set into motion based upon Exhibit P15 / complaint filed by PW-13 with the PSI / PW-15 who is 38 cited as CW-28 in the charge-sheet. The said complaint was filed by him on 16.05.2011 at around 4.30 p.m. whereby he saw the dead body of an unknown woman lying at a distance of 50 to 60 feet from G.R. Halli, Hospete Road, NH-13. Then at 6.30 p.m. on the same day, he had gone to Chitradurga Rural Police Station and presented his complaint as per Exhibit P15. Based upon the complaint of PW-13 / Sudarshan Reddy, PW- 15 / Balachandra Naika being the PSI had registered the case in Cr.No.229/2011 by recording an FIR as per Exhibit P14.
30. PW-1 to PW-3 being the brother, sister and father of the deceased Pankaja @ Veena and the aforesaid deceased is none other than the wife of Accused No.1 / Ramesh G.V. and her marriage was performed with him on 07.02.2010 as per the customs prevailing in their society. But during her marriage with him, that her father P.T. Hanumanthareddy had 39 provided dowry in terms of cash of Rs.2,00,000/- and gold items weighing 17 tolas of gold. Subsequent to the marriage of Pankaja @ Veena, she had started residing in the house of her husband / Accused Nos.1 and mother-in-law / Accused No.2 at Kasavarahatti village. But it is alleged that she was meted out dowry harassment at the hands of her husband who is arraigned as Accused No.1 and so also from the hands of her mother-in-law namely Rajeshwari who is arraigned as Accused No.2. But as per the oral evidence of PW-2 / Arundhathi who is the sister of the deceased and oral evidence of PW-5 namely Krishnareddy S/o. Chitrahalli Rama and Investigating Officers and also as per the documentary evidence, the prosecution has proved that on 16.05.2011 at around 9.45 a.m. near by-pass road, NH-4, Auto Stand, Chitradurga, PW-2 / sister of the deceased had last seen her sister along with Accused No.1 G.V. Ramesh together. But then, the body of Pankaja @ Veena was 40 found lying in a low-lying area at a distance of 50 feet from N.H-13, half a kilometer from G.R. Halli. It requires to prove the guilt of the accused in respect of recovery of gold items and silver articles alleged to be worn by the deceased Pankaja @ Veena. But at the instance of Accused No.1 / G.V. Ramesh, gold items and silver articles are alleged to have been seized by the Investigating Authority. But none of gold items or silver articles were got marked on the part of the prosecution. Further, there is no evidence forthcoming on the part of the prosecution except the theory set up by the prosecution in respect of Accused No.1 / G.V. Ramesh who is none other than the husband of the deceased, having eliminated his wife Pankaja @ Veena and also having destroyed the evidence by throwing the dead body at the scene of crime. The allegation is that he had strangulated her neck with means of MO-4 / cotton rope of length of 18 feet and caused her death, which is to be termed as murder. But Exhibit P7 / Seizure 41 mahazar it is noted that on 19.05.2011 in between 2.00 p.m. and 3.00 p.m., in the presence of PW-5 / Krishnareddy and CW-13 / Ashok Reddy in the rented house of Accused No.1 / Ramesh G.V. owned by Manjunatha, S/o. M.R. Nagappa situated in Vivekananda Nagara, Gudibande Town, Chikkaballapura Taluk and District, at paragraph 96 of the impugned judgment of acquittal, it is noticed that Accused No.1 / Ramesh G.V. had produced 1) mangalyasara, 2) a golden thali, 3) a golden Lakshmi coin, 4) two golden balls 5) two golden bangles, 6 & 7) two golden rings, 8) silver ring, 9) one set of anklet, 10) one set toe rings, 11) one set leg pillis, 12) Nokia mobile without sim. 13) 18 feet cotton rope 14) A Carbon mobile with two sim cards bearing mobile no.9620007737 and no.9880187667 from a speaker duck by removing back side screw of a duck. PW-14 being the I.O. in part had seized those 18 articles by drawing a mahazar in the presence of panch witnesses, 42 which is marked as Exhibit P8 and this mahazar has been conducted by him on 17.05.2011.
31. The entire case of the prosecution revolves around the evidence of PW-2 / Arundhathi who is the sister of the deceased Pankaja @ Veena. But she has stated in her evidence that Accused No.1 / Ramesh G.V. had sent his wife to her parents' house by insisting her to bring dowry in terms of money from her parents. But PW-2 / Arundhathi has stated that her uncle, Govinda Reddy and her father P.T. Hanumanthareddy had gone to the house of Accused No.1 / Ramesh G.V. situated at Gudibande Taluk and District and left Pankaja @ Veena in the house of Accused No.1. PW-2 has further stated in her evidence that Accused No.1 / G.V. Ramesh and Accused No.2 / Rajeshwari who is the mother-in-law of her sister namely Pankaja @ Veena, had come to Chitradurga to attend a marriage. After marriage function, her younger sister resided in Kasaravatti 43 village along with her mother-in-law. Though her father Hanumanthareddy had approached Accused No.2 / Rajeshwari on four to five occasions to send his daughter to her parents' house, she had refused. These are all the evidence let in on the part of the prosecution. PW-2 / Arundhathi who is the witness and the sister of the deceased Pankaja @ Veena has stated in her evidence that Accused Nos.1 and 2 were very greedy as regards money and were dissatisfied persons though they were provided with money and harassed the deceased to bring more and more dowry. PW-2 has further stated that there was some sort of fair at Tippareddyhalli village and naming ceremony of the daughter of her brother which was scheduled during May 2011. Hence, her father brought her younger sister Pankaja @ Veena from the house of Accused No.1. But PW-2 stated in her evidence that despite telephonic call made to Accused No.1 asking him to visit their 44 house, he had avoided visiting the house of his father- in-law that is PW-3 /P.T. Hanumanthareddy.
32. But though the mother of the victim Smt. Chennamma has been cited as a witness, she was not subjected to examination on the part of the prosecution. But their daughter Pankaja @ Veena who was the wife of Accused No.1 had died due to dowry harassment meted out by her husband and mother-in-law, despite receipt of considerable dowry in terms of cash and also in terms of gold and silver articles. But PW-3 / P.T. Hanumantha Reddy being the father of the deceased has been examined on the part of the prosecution. But the prosecution did not make any venture to examine Chennamma who is none other than the mother of the deceased Pankaja @ Veena though offences under Section 498A IPC are lugged against the accused. But as regards cruelty having been extended, only parents of the victim are the best witnesses to say whether their 45 daughter was subjected to cruelty due to the fact that the deceased would have briefed her mother about having been meted out physical as well as mental harassment in the hands of her husband as well as by the family members of her husband. This is the concept of Section 498A of the IPC, 1860.
33. But in the instant case, only PW-2 / Arundhathi and PW-3 / P.T. Hanumantha Reddy inclusive of PW-1 were subjected to examination and cross-examination. But Chennanna who is also one of the important witnesses on the part of the prosecution has not been examined in order to corroborate the evidence of PW-2 / Arundhathi, PW-3 and inclusive of PW-1, the brother of the deceased.
34. PW-2 has stated and also spelt on the part of the prosecution evidence that when herself and her younger sister Pankaja @ Veena were travelling in an autorickshaw from Guddadarangavvanahalli village to 46 Chitradurga, her younger sister Pankaja @ Veena is alleged to have received a telephonic call and Accused No.1 had insisted her to alight from the auto rickshaw at by-pass road. Then he had taken Pankaja @ Veena in his motor cycle. These are the evidence let in on the part of the prosecution. The evidence of PW-2 is that her sister Pankaja @ Veena was meted out mental harassment through her husband Accused No.1 and also Accused No.2 Rajeshwari who is none other than the mother-in-law of the deceased. Further, PW-1 who is the brother was subjected to cross-examination at length wherein he has stated that as per the customs prevailing in their society, his sister namely Pankaja @ Veena's marriage was performed with Accused No.1 / G.V. Ramesh and during her marriage as per customs some articles were handed over to the accused. PW-1 who is the elder brother of the deceased has stated in his evidence that marriage negotiations took place and in view of the alleged demand made by Accused No.2 47 namely Rajeshwari, they had undertaken to provide dowry in terms of cash and also in terms of gold jewellery to the bridegroom who is arraigned as Accused No.1.
35. The entire case revolves around the evidence of PW-1 and so also the evidence of PW-2 and PW-3. But in the given facts and circumstances of the case, it is relevant to refer to the judgment in the case of SHARAD BIRDHICHAND SARDA vs. STATE OF MAHARASHTRA ((1984) 4 SCC 116)) where the Apex Court has dealt extensively the issues in respect of the concepts regarding,
i) Circumstantial evidence,
ii) Evidence Act, 1872, particularly Section 113A
iii) Benefit of doubt.
In the instant case, Accused No.1 / G.V. Ramesh who is none other than the husband of the deceased namely Pankaja @ Veena. Her marriage was performed on 07.2.2010 and subsequent to her marriage, she was 48 not blessed with any children. Being an issueless woman, it is alleged that her husband Accused No.1 / G.V. Ramesh had eliminated her as on 16.05.2011. But entire case is based upon circumstantial evidence. But the case has been tried before the Trial Court.
36. The circumstances should be of a conclusive nature and tendency and they should be such as to exclude every hypothesis but the one proposed to be proved. It must be such as to show that in all human probability the act must have been done by the accused. This is the cardinal principle for conviction but circumstances of last seen together and other circumstances have to be examined in the light of the facts of the case. The circumstances which were not put to the appellants / accused in their examination under S. 313 of the Criminal Procedure Code must be completely excluded from consideration because the appellants did not have any chance to explain them. This issue has been extensively addressed in the 49 aforesaid judgment. But in the instant case, last seen theory it is together of Accused No.1 / G.V. Ramesh and his wife Pankaja @ Veena on 16.05.2012. But circumstantial evidence in the case of 302 and even 304B of the IPC there shall be some vitality which is to be termed as vital in nature. Even subjected to cross- examination of defence counsel and also taking into consideration whether it can constitute a link in the chain of circumstances, that chain of circumstances must be established by the prosecution without giving any room for any doubt. Infirmities in the prosecution case even though it is curable defect, it is only in terms of examination in chief and also in terms of securing the witnesses cited in the charge-sheet. But the infirmities in the case of the prosecution, cannot be cured by use of any additional link in respect of the case against the accused.
37. Section 313 Cr.P.C. is an important stage whereby the evidence let in by the prosecution should 50 be culled out and that evidence should be read over to the accused and the accused should answer to the same. The same has been recorded even after closure of the evidence of the prosecution witnesses which is an important stage of the case of the prosecution in respect of recording the incriminating statement as hit under Section 313 of the Cr.P.C.
38. Insofar as the last seen together theory even though it has been set up, it requires to be established by the prosecution, since it was natural for the deceased being his wife, to be with the accused being her husband at the material time. Hence, the said circumstance must be excluded from any adverse inference being drawn. This is the concept and this issue has been extensively addressed by the Hon'ble Supreme Court of India in the aforesaid judgment.
39. From the evidence of PW-1, PW-2 and PW-3 which is vital for consideration, reasonable possibility 51 appears to be that the deceased in a combined spirit of revenge and hostility in view of the physical as well as mental harassment meted out at the hands of her husband Accused No.1 / Ramesh G.V. and also Rajeshwari who is none other than the mother in law of the deceased, must have committed suicide. But the oral evidence of PW-1, PW-2, PW-3 to whom the deceased allegedly had reported some sort of cruelty being meted out by accused persons, but circumstances do not have any proximity in relation to the actual occurrence resulting in her death as narrated in the theory of the prosecution even by invoking Section 304B of the IPC, that is within a period of seven years from the date of her marriage. But there is a general impression about the deceased indicating some suspicion whether a member informed or not directly relating to the occurrence of her death as narrated in the substance of the charge-sheet lodged by the I.O. 52 against the accused and whereby subjected to examination of PW-17.
40. Appreciation of evidence for testimony of a fact narrated in the charge-sheet and also theory of the prosecution, but if it is militating against norms and culture of Indian society, it ought to be rejected. Witnesses in criminal trial in case if they are related witnesses, the testimony should be scanned with greater care and caution. But in the instant case, PW-1 is the brother of the deceased and PW-2 is the sister of the deceased and last seen theory has been set up where the deceased Panjaka @ Veena was seen by them together with her husband Accused No.1 / G.V. Ramesh. In view of the close relationship and affection any person in the position of the witness would naturally have a tendency to exaggerate or add facts which may not have been stated to them at all. Not that is done consciously but even unconsciously the love and 53 affection for the deceased would create a psychological hatred against the supposed murderer and, therefore, the court has to examine such evidence with very great care and caution. Even if the witnesses were speaking a part of the truth or perhaps the whole of it, they would be guided by a spirit of revenge or nemesis against the accused person and in this process certain facts which may not or could not have been stated may be imagined to have been stated unconsciously by the witnesses in order to see that the offender is punished. This is human psychology and no one can help it.
41. But in the instant case, it is relevant to refer to the evidence of PW-2 / Arundhathi where she has given evidence before the Trial Court and during her cross- examination several times, that PW-2 / Arundhathi became tensed and with full of emotion. Even two times during her cross-examination, she had beaten the witness box and had even thumped the witness box, 54 which indicates her feature, character, conduct and behaviour, which is to be termed as demeanor of the witness. The same is seen in her evidence itself and also made an observation in paragraph 33 of the acquittal judgment rendered by the Trial Court.
42. Insofar as the death of Pankaja @ Veena who is none other than the wife of Accused No.1 Ramesh G.V, it is seen that she had died within seven years from the date of her marriage and it is almost all within 15 months from the date of her marriage. But the evidence of the prosecution must facilitate positive, consistent and corroborative evidence to secure conviction even for offences under Section 302, 304B and 498A of the IPC inclusive of Section 201 of the IPC 1860 relating to having destroyed the evidence after committing the murder of a person in order to screen from legal punishment.
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43. But in the instant case, the accused G.V. Ramesh is alleged to have carried deceased Pankaja @ Veena in his motor cycle on 16.05.2011 for getting treatment in Sunitha Nursing Home situated in Chitradurga Town. But at a cursory glance of the evidence of PW-1 and PW-2 inclusive of the evidence of PW-3, there appears to be some camouflage and somersault of the evidence of the prosecution let in. But PW-3 who is the father of the deceased has spoken about the death of his daughter Pankaja @ Veena but his evidence is not consistent and does not support the other evidence without any clouds of doubt. The same has been seen in the evidence of PW-3. But PW-2 and PW-3 have given their evidence consisting of several pages and also consisting several pages of cross- examination done by the defence counsel. But PW-3 / Hanumanthareddy has spoken in his evidence that on 16.05.2011 at around 1.00 p.m. when he made a call to the mobile phone of Accused No.1 / G.V. Ramesh, he 56 had informed that he was discharging the duty at Gudibande and never came to Chitradurga. But PW-3 / Hanumanthareddy has stated that on 16.05.2011 in the evening hours when he called three to four times, Accused No.1 informed that he is present in Gudibande in Chitradurga District. He never came to Chitradurga. However, the domain is vested with the prosecution to have facilitated the call records or even the telephone calls which were made by PW-3 / Hanumanthareddy to his son-in-law Accused No.1 / G.V. Ramesh to find out the truth. But the prosecution never made any endeavour to at least to verify the documents in the office whether the Accused No.1 being a Government servant, had attended his office situated in Gudibande, Chitradurga District on 16.5.2011 at around 1.00 p.m. when PW-3 / Hanumanthareddy made a call to his son- in-law about some information, but he had in turn informed that he was discharging the duties at Gudibande. Naturally, he being a Government servant 57 working as a Village Accountant shall be present to discharge his duty. But the domain is vested with the prosecution to facilitate worthwhile evidence to ascertain whether Accused No.1 / Ramesh G.V. was on that day, present in his office and was discharging his duty. This is the grey area on the part of the prosecution. The same has been observed at paragraph 44 of the acquittal judgment rendered by the Trial Court. Even on that count also, the Trial Court has held that the prosecution has miserably failed to prove the guilt of the accused beyond all reasonable doubt even for serious offences of Section 302 IPC and serious offences of Section 304B IPC relating to dowry death of a woman within a span of 7 years from the date of her marriage.
44. Insofar as the concept of 'circumstantial evidence', motive factor bears an important significance and there shall be some important motive. Motive 58 always locks-up in the mind of the accused and sometimes it is difficult to unlock. People do not act wholly without motive. The failure to discover the motive of an offence does not signify its non-existence.
45. But the law regarding circumstantial evidence is well-settled. When a case rests upon the circumstantial evidence, such evidence must satisfy three tests:
1) the circumstance from which an inference of guilt sought to be drawn, must be cogently and firmly established;
2) those circumstances should be of definite tendency unerringly pointing towards guilt of the accused;
3) circumstances taken cumulatively should form the complete chain so that there is no escape from the conclusion that in all probability, the crime was committed by the accused and none else. 59
46. The circumstantial evidence in order to sustain conviction, must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused. The circumstantial evidence should not only be consistent with guilt of the accused but should be inconsistent with his innocence.
47. Suspicion, however grave it may be, cannot take the place of poof. In the instant case, there can be no doubt that the circumstances raise a serious suspicion against the accused for the death of the deceased Pankaja @ Veena within a span of 7 years from the date of her marriage with Accused No.1 / Ramesh G.V. But the evidence of PW-1, PW-2 and PW-3 on the part of the prosecution is not consistent, cogent and also positive in order to probabilise that Accused No.1 / Ramesh G.V. had eliminated his wife by strangulating her neck with means of MO-4 cotton rope, the length of which was 18 feet.
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48. But PW-12 / Doctor who conducted autopsy over the dead body also noticed some ligature marks and abraded contusion over her person. But the evidence of PW-12 which is to be termed as medical evidence is not corroborated by independent evidence. That being the position, benefit of doubt in case arises in the mind of the court, that benefit of doubt must go to the accused alone, under the Doctrine of Criminal justice delivery system.
49. In the instant case, gold items, silver articles are said to have been seized at the instance of Accused No.1. But any articles whether silver or gold, if seized, should have been marked on the part of the prosecution. These jewels though have been subjected to photos, were not marked but were given interim custody to PW-3 / P.T. Hanumanthareddy who is none other than the father of the deceased Pankaja @ Veena. But even exercising power under Section 457 Cr.P.C. or 61 451 of the Cr.P.C., either during trial or prior to trial for release of either gold or silver articles or material objects which were seized and subjected under P.F., there shall be some condition. That condition must be followed during the course of trial in case produced for the purpose of identification. Merely because the gold and silver articles were subjected to photos and though having been released in favour of PW-3 / P.T. Hanumanthareddy, father of the deceased Pankaja @ Veena, but it is the domain vested with the prosecution to make an endeavour to identify the gold items and silver articles insofar as offences under Section 304B of the IPC in terms of dowry death and as regards dowry said to have been tendered by the parents of the deceased. But in the instant case, Pankaja @ Veena was the younger daughter of PW-3 / P.T. Hanumanthareddy and Chennamma who is her mother. Even though they have got released of silver and gold items, but it is the domain vested with the prosecution 62 to establish insofar as serious offences of Section 302 of the IPC and so also for Section 304B of the IPC. Those articles must have been identified and marked in the presence of panch witnesses by admission of oath before the Trial Court. But in the instant case, that endeavour has not been made by the prosecution. Therefore, whatever suspicion however strong, cannot be fully substantiated for proving the case against the accused. Whether chain of circumstances on the basis of reliable evidence, in any manner unimpeachable, by subjecting to cross-examination, which evidence gets support from the medical evidence that the death occurred on 16.05.2011 and even with respect to abrasion and injuries on the deceased, must be established. The dead body of Pankaja @ Veena was subjected to autopsy by PW-12 Doctor who was also subjected to examination on the part of the prosecution. Even abraded injuries and ligature marks were noticed on the deceased. But it must lead to the irresistible 63 conclusion leaving no doubt that it was only the accused who committed the murder of his wife Pankaja @ Veena and put the same at the low-lying area in the limits of the land of Gurulingappa. But the Doctor PW-12 who performed post-mortem over the dead body of the deceased has stated in his evidence relating to having noticed the abrasion contusion and ligature marks around the head of the deceased. But there is inconsistency in the evidence of PW-12 Doctor as his evidence is consistent with the evidence of PW-1, PW-2 and PW-3 relating to the death of the deceased Pankaja @ Veena.
50. The ingredients of Section 304B of the IPC, 1860:
1) Where the death of a woman occurs due to burns, or bodily injury or due to unnatural circumstances.
2) Death should be within seven years of marriage 64
3) It is shown that soon before the death of victim, she was subjected to cruelty or harassment by her husband or by any relative of her husband. Particularly being meted out with cruelty or harassment in connection with demand of dowry. The said ingredients relating to Section 304B of the IPC, 1860 should be established by the prosecution and it is the domain vested with the prosecution alone.
51. But presumption as under Section 113B of Indian Evidence Act, 1872, it is presumption of law. On the proof of the essentials mentioned therein, it becomes obligatory on the Court to raise a presumption that the accused caused the dowry death. But it is the domain vested with the prosecution and equally it is the domain vested with the accused insofar as the scope of Section 113B of the Indian Evidence Act insofar as dowry death is concerned.
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52. Keeping in view the scope of Section 113B, there must be material to indicate that soon before the death of a woman, such woman was subjected to cruelty or harassment in connection with demand of dowry. Then only a presumption can be drawn that the person has committed dowry death of a woman. The said issues have been extensively addressed by the Hon'ble Supreme Court of India in the case of G.V. SIDDARAMESH vs. STATE OF KARNATAKA (2010) 3 SCC 152.
53. However, the words 'soon before' in Section 113B cannot be limited by fixing time limit. It is left to be determined by the courts, depending upon the facts and circumstances of the case. The said issue has been extensively addressed by the Hon'ble Supreme Court in the case of KAILASH vs. STATE OF MADHYA PRADESH (AIR 2007 SC 107).
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54. Legal presumption under Section 113B read with Section 4 of the Indian Evidence Act, 1872 would mean that unless and until it is proved otherwise, the Court shall hold that a person has caused dowry death of a woman if it is established before the court that soon before her death, such woman has been subjected by such person to cruelty or harassment for, or in connection with, any demand for dowry. In the instant case, the marriage of the deceased Pankaja @ Veena was performed with accused Ramesh G.V. as on 7.2.2010 but she lost her breath as on 16.05.2011 as narrated in the charge-sheet laid by the I.O. and criminal law was set into motion by recording an FIR for offences under Sections 302, 304B, 201, 498A of IPC, 1860 and so also for offences under Sections 3 and 4 of the DP Act. But Section 3 of the Indian Evidence Act, 1872, relates to proving / disproving or not proving a fact.
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55. A fact is said to be 'proved' when, after considering the matters before it, the Court either believes it to exist, or considers its existence so as to probablise that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists.
"Disproved". -- A fact is said to be disproved when, after considering the matters before it, the Court either believes that it does not exist, or considers its non-existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it does not exist.
"Not proved". -- A fact is said not to be proved when it is neither proved nor disproved.
It is the domain vested with the prosecution and similarly the domain vested with the Trial Court to appreciate the evidence which has been let in by the prosecution to prove the guilt of the accused. 68
56. The Trial Court has discussed the following citations in its acquittal judgment rendered:
i) ASHA @ ANR. Vs. STATE OF UTTARAKHAND ((2013) 4 CRIMES 537 (SC))
ii) ASHOK vs. STATE OF MAHARASHTRA ((2015 CRI.L.J. 2036 (SC))
iii) TOMASO BRUNO & ANR. vs. STATE OF U.P. ((2015) (1) CRIMES 105 (SC))
iv) SANGILI ALIAS SANGANATHAN vs. STATE OF TAMIL NADU ((2014) CRI.L.J. 4519 (SC))
v) VIJAYA TAKUR vs. STATE OF HIMACHALAPRADESH ((2015) (2) CRIMES 254 (SC))
57. In the case of VIJAYA TAKUR (supra), the Apex Court has extensively addressed the scope of Section 27 of the Indian Evidence Act, 1872 as regards Disclosure statement - Evidentiary value - What is important is discovery of material object at disclosure of accused but such disclosure alone would not automatically lead to 69 conclusion that offence was also committed by accused
- Thereafter, burden lies on prosecution to establish a close link between discovery of material object and its use in commission of the offence - What is admissible under Section 27 is information leading to discovery and not any opinion formed on it by prosecution - Suspicion, however strong, cannot take character of proof.
58. However, in the instant case, the prosecution even though had subjected to examination PW-1 to PW- 16 and several documents have been got marked, but the prosecution has not explained the reasons for non- production of the call particulars with a proper endorsement and signature alleged to have been collected by PW-14 / I.O. in part about the ownership of the sim bearing No.9019385676 belonging to Pankaja @ Veena and Mobile No.8884170080, 9620007737 and 9880187167 alleged to belong to Accused No.1 / Ramesha G.V., or documents about either presence or 70 absence of Accused No.1 in Gudibande on 16.05.2011. The same has been observed by the Trial Court in Paragraph No.123 of the acquittal judgment rendered by the Trial Court. There is undisputed oral evidence of PW-12 / Doctor who conducted autopsy and issued post-mortem report as per Exhibit P13, and oral evidence of PWs 1, 2, 3 and 4 confirming that as on 16.05.2011 in between 10.00 a.m. and 4.00 p.m., Pankaja @ Veena, daughter of PW-3 / P.T. Hanumanthareddy and wife of Accused No.1 / Ramesh G.V. faced an unnatural death within the limits of the scene of crime situated in Chitradurga Taluk. However, the oral and documentary evidence placed by the prosecution are not sufficient and there is no satisfactory evidence let in by the prosecution to connect Accused No.1 / Ramesh G.V. as regards the unnatural death of his wife Pankaja @ Veena. More so, considering the evidence and even non-corroboration of the evidence of PWs 1, 2 and 3 with their statements 71 dated 17.05.2011, 20.05.2011, 11.08.2011 and 12.08.2011, and further rectification of the date mentioned in the mahazar marked at Exhibit P7 and so also non-collection of the documents relating to ownership of the mobiles and non-production of the call particulars containing endorsement and the signatures has created some clouds of doubt in the theory established by the prosecution in the case of circumstantial evidence and also in the given facts and circumstances of the case. But PW-14 being the I.O. in part who has produced the mobile call lists with an endorsement and signature of the person who downloaded and taken the print out, about the ownership of sims and mobiles but the consequences might have been different. These are all the evidence appreciated by the Trial Court and rightly come to the conclusion that the prosecution has miserably failed to prove the guilt of the accused, both in respect of Accused No.1 and Accused No.2 that they have 72 extended some sort of cruelty to the deceased Pankaja @ Veena and also that they had insisted her to bring additional dowry in terms of cash to purchase a site and even received dowry as according to the marriage negotiation of Pankaja @ Veena with Accused No.1 / Ramesh G.V. and even that the accused had strangulated her neck with means of MO-4 / cotton rope and made efforts to destroy the evidence in order to screen from legal punishment even for offences under Section 201 of the IPC, 1860. But Section 302 IPC relates to murder. Murder it is relating to the concept of mensrea and actus rea. These ingredients are required to be established by the prosecution by facilitating worthwhile evidence. Similarly, Section 201 of the IPC, 1860 relates to destroying the evidence in order to screening from legal punishment. But in the instant case, the marriage of the deceased Pankaja @ Veena was performed with Accused No.1 / Ramesh G.V. as per the customs prevailing in their society as on 07.02.2010 73 and subsequent to her marriage, she had led a happy married life with her husband but she was not blessed with children. On the fateful day, that is on 16.05.2011, her husband is alleged to have carried her in his motorcycle to get treatment in Sunitha Nursing Home in Chitradurga. But PW-2 Arundhathi who is none other than the sister also boarded with her sister Pankaja @ Veena in the said autorickshaw but she alighted from the autorickshaw. But thereafter her sister Pankaja @ Veena traveled in the motorcycle along with Accused No.1, as a pillion rider. This theory finds place in the charge-sheeted material and charge-sheet has been laid by the I.O., but this theory has not been established by the prosecution by putting forth cogent, consistent and corroborative evidence to probabilise that Accused No.1 / Ramesh G.V. had taken his wife in his motorcycle as a pillion and had eliminated his wife Pankaja @ Veena and also the theory that he had insisted her to bring 74 additional dowry from her parents house and with the said intention, tortured his wife Pankaja @ Veena.
59. Whereas in the instant case, offences under Section 34 of the IPC, 1860 in relation to the main offences has been lugged. Whereas, the words 'in furtherance of the common intention' do not subsequently exist in the ordinary Court. But Section 34 of IPC is only rule of evidence and it does not create substantive offence. It means that if two or more persons intentionally do a thing jointly, it is just the same as if each of them has jointly done it individually. The existence of common intention among the participants in a crime is the essential element for application of this Section of acts done by several persons in furtherance of common intention.
60. But in the instant case, Accused No.1 / Ramesh G.V. who is the husband of the deceased Pankaja @ Veena and Accused No.2 / Rajeshwari the 75 mother of Accused No.1 and also mother-in-law of deceased, but Section 34 of the IPC, it is the rule of evidence and it does not create substantive offence. On an overall scrutiny of the evidence, it is said that an appeal is nothing but continuity of proceedings. Even for re-appreciation of evidence, there is neither misdirection nor misinterpretation of the evidence by the Trial Court. However, the Trial Court has rightly come to the conclusion that the prosecution has miserably failed to establish the guilt against the accused by facilitating worthwhile evidence and rightly rendered an acquittal judgment in respect of the offences for which charges were leveled against the accused. In terms of the aforesaid reasons and findings, we are of the opinion that the appeal deserves to be rejected. Accordingly, we proceed to pass the following:
76
ORDER The appeal preferred by the State / appellant under Section 378(1) and (3) of the Cr.P.C. is hereby rejected. Consequently, the judgment of acquittal rendered by the Trial Court in S.C.No.148/2011 dated 10.08.2015 is hereby confirmed. If any bail bond has been executed by the accused persons, the same shall stand cancelled.
Sd/-
JUDGE Sd/-
JUDGE DKB/BK/KS