Karnataka High Court
The State By Police Inspector vs Shivanna @ Shivananda Hanumanthappa on 15 February, 2022
Bench: K.Somashekar, P.N.Desai
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R
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 15TH DAY OF FEBRUARY, 2022
PRESENT
THE HON'BLE MR. JUSTICE K. SOMASHEKAR
AND
THE HON'BLE MR. JUSTICE P.N.DESAI
CRIMINAL APPEAL NO.1219/2016
BETWEEN:
THE STATE BY POLICE INSPECTOR,
SURATHKAL POLICE STATION,
SURATHKAL,
DAKSHINA KANNADA, MANGALURU,
REPRESENTED BY STATE PUBLIC PROSECUTOR,
HIGH COURT BUILDING
BANGALORE-575 104.
... APPELLANT
(BY SRI. RAHUL RAI. K, HCGP)
AND:
SHIVANNA @ SHIVANANDA HANUMANTHAPPA
MASOOR,
S/O LATE HANUMANTHAPPA,
AGED ABOUT 34 YEARS,
R/A NEAR ANJANEYA GUDI,
HEEROORU,
HANAGAL TALUK,
HAVERI DISTRICT-581 104.
... RESPONDENT
(BY SRI. A.C NAGARAJ, ADV)
THIS CRIMINAL APPEAL IS FILED UNDER SECTION 378(1) AND
(3) CR.P.C BY THE S.P.P. FOR THE APPELLANT PRAYING TO GRANT
LEAVE TO APPEAL AGAINST THE JUDGMENT AND ORDER OF
ACQUITTAL DATED 26.02.2016 PASSED BY THE COURT OF II ADDL.
DIST. AND S.J., DAKSHINA KANNADA, MANGALURU IN
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S.C.NO.53/2013, ACQUITTING THE RESPONDNET FOR THE OFFENCES
P/U/S 498A, 302 OF IPC.
THIS CRIMINAL APPEAL COMING ON FOR HEARING THIS DAY,
P.N. DESAI. J., DELIVERED THE FOLLOWING:
JUDGMENT
This appeal arises out of the judgment of acquittal dated 26th February 2016 passed by learned II Additional District and Sessions Judge, Dakshina Kannada, Mangaluru in S.C.No.53/2013, wherein the accused was acquitted for the offences punishable under section 498A and 302 of Indian Penal Code, 1860(for short hereinafter referred as 'IPC').
2. The factual matrix of the prosecution case is that deceased Ashwini and accused Shivanna are husband and wife. Their marriage took place on 16.08.2010. It is further case of the prosecution that both accused and Ashwini were living together in the house of the accused. It is further case of the prosecution that on 16.01.2013, the accused brought two sarees out of which he gave one saree having price of Rs.500/- to his sister's daughter and he gave another saree which is of cheaper rate i.e., Rs.250/- to his wife Ashwini. In this regard, at about 7.30 p.m., a quarrel took place between the accused and deceased Ashwini and in that quarrel, the accused abused 2 3 Ashwini stating that she is quarrelling too much and she should die. After hearing such words, immediately deceased Ashwini poured kerosene on herself at that time, the accused set her on fire by means of a cigarette, as a result, fire caught to her dress and Ashwini sustained severe burn injuries. Thereafterwards, Ashwini was taken to Wenlock Hospital, Mangalore and was admitted as inpatient for burn injuries in Burns ward. It is the prosecution allegation that that injured Ashwini informed her mother about the incident. Subsequently, she succumbed to the burn injuries in the hospital. The mother of deceased by name Smt.Bharathi lodged a complaint as per Ex-P6 on 17.01.2013. Accordingly, the Suratkal police registered the case in Cr.No.16/2013 for the offences under sections 504 and 306 of IPC. The deceased succumbed to the injuries on 19.01.2013 at Wenlock Hospital at about 7.15 a.m. Sri.Kumareshwaran, Station House Officer-PW-20 who received the complaint from the mother of deceased Ashwini sent the FIR-Ex-P28 to the court. PW-20-PSI found that injured Ashwini was not in a position to speak, but her relatives were present. Therefore, he gave requisition to the Duty Doctor to give report regarding the condition and state of mind of injured Ashwini. On the same 4 day(17.01.2013) afternoon, the Taluka Executive Magistrate, Mangaluru also visited the hospital along with Dr Balakrishna- PW-11. At that time, Ashwini was not in a position to speak. Accordingly, the Doctor-PW-11 has given request and endorsement as per Ex-P24 and Ex-P25. As Ashwini was not able to speak anything, PW-20 registered the said case. Then on 18.01.2013, PW-20 visited the shed where the accused was residing and conducted place of offence panchanama as per Ex-P20 in the presence of the witnesses PW-8 and PW-9 as per the place shown by PW-7. PW-20 also seized burnt chudidhar top and pant of Ashwini, half burnt cigarette, ashes of chudidhar cloth and a bisleri bottle having kerosene and one matchbox, under PF as per M.O.1 to M.O.7. PW-20 also recorded statement of the witnesses and also prepared the sketch map in respect of place of offence as per Ex-P33. Then on 19.01.2013, PW-20 received the information that injured Ashwini succumbed to the burn injuries. Accordingly, PW-20 received the information as per Ex-P34. Then PW-20 requested the court to register the case under Section 302 IPC. Then he gave requisition to the Taluka Executive Magistrate to conduct inquest over the deadbody of deceased Ashwini as her death had taken place within seven 4 5 years from the date of her marriage. Accordingly, inquest was conducted as per Ex-P29. Thereafterwards, PW-20 recorded statement of the witnesses present at the time of inquest. It is further stated that at the time of inquest, the accused was also present, he was arrested by PW-20 and produced before the court. Then on 23.01.2013, PW-20 received the inquest mahazar and he also collected the photos-Ex-P37 taken at the time of place of offence and photos taken at the Wenlock Hospital at Ex-P37 and thereafterwards handed over further investigation to PW-19 M.A. Nataraj. Said Nataraj- PW-19 collected the documents and photos relating to marriage of deceased Ashwini and after collecting the MOs sent the seized articles to FSL for chemical examination to Bengaluru, then after receiving report as per Ex-P30 and after completing investigation filed charge sheet against the accused for the offences stated above.
3. Said case was committed by the learned JMFC to the court of sessions after completing the provisions of sections 207 208 and 209 Cr.P.C. The learned sessions judge after hearing both sides framed the charge against the accused for the offences under sections 498A and 302 IPC. Thereafterwards, the prosecution examined 21 witnesses as PW-1 to PW-21 and got 6 marked 38 documents as Ex-P1 to P38 and got identified seven material objects as M.O.1 to M.O.7. The statement of the accused under section 313 (1) (b) Cr.P.C. was recorded. The accused denied the circumstances appeared against him in the evidence of the prosecution witnesses. The accused has not chosen to lead any defence evidence. The accused has filed his written statement. The accused in his written statement has stated that himself and his wife Ashwini were residing at Hosabettu and they were doing coolie work. There was puberty function of his sister's daughter for which he had brought a saree to his sister's daughter and also to his wife Ashwini, but deceased Ashwini quarrelled with him stating that he had brought a costly saree for his sister's daughter and a cheaper saree to her and stating so, she went inside and poured kerosene on herself and set fire and tried to commit suicide. Then he tried to extinguish fire and in the process, he also sustained injuries to his hands. He has also stated that deceased Ashwini has sustained burn injuries all over her body and she had lost conscious. The people admitted her to Mangalore Hospital. She did not regain conscious and she died. He has not committed any offence. So this is the defence of the accused. Thereafterwards, 6 7 after hearing the arguments, the learned sessions judge acquitted the accused for the offences stated above which is assailed by the State in this appeal.
4. Heard Sri. Rahul Rai, learned HCGP for appellant-State and Sri. A.C. Nagaraj, learned counsel for respondent/accused.
5. Learned HCGP Sri. Rahul Rai for appellant-State argued that the impugned judgment and order of acquittal recorded by the learned sessions judge is contrary to law and facts and evidence on record. The learned HCGP further argued that the learned sessions judge has not properly appreciated the evidence of PW-1, PW-5, PW-8, PW-9 and PW-10 who are the material witnesses. The learned sessions judge failed to analyse and scrutinize the evidence of PW-11, PW-12, PW-13, PW-15, PW-16, PW-17, PW-19 and PW-21. Learned HCGP further argued that appreciation of evidence by learned sessions judge is not in proper perspective, therefore the judgment of acquittal recorded by the learned sessions judge is erroneous and deserves to be set aside. With these main arguments, learned HCGP prayed to allow the appeal and convict the accused for the offences stated above and punish him.
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6. As against this, learned counsel for respondent/accused argued that there is no evidence to show that the accused has committed the offences as alleged against him, in fact accused has also sustained burn injuries which is evident from the fact adduced by the prosecution who went to rescue his wife who was trying to commit suicide. Absolutely there is no material to show that it is the accused who is responsible for the death of the deceased. It is only deceased Ashwini in a spur of moment on her own tried to set fire to herself which has resulted in this unfortunate incident. Learned counsel also argued that the witnesses examined by the prosecution most of them have not supported the charges levelled against the accused. Evidence of Doctor PW-12 shows that there was burn injuries to deceased Ashwini to the extent of 98% to the whole body. Therefore, the evidence of mother and brother of deceased Ashwini that it is the accused who lit fire to deceased Ashwini cannot be believed at all. Learned counsel argued that the learned sessions judge has rightly appreciated the evidence on record and after discussing the evidence one by one has given right conclusion and found that the prosecution has failed to prove the guilt of the accused beyond all reasonable doubt and by giving benefit of doubt has 8 9 rightly acquitted the accused. Learned counsel also argued that this appeal is against judgment of acquittal and unless the judgment of trial court is illegal, perverse and not based on sound principles regarding appreciation of evidence, generally, the appellate court will not interfere in the judgment of acquittal. With these main arguments, learned counsel for respondent/accused prayed to dismiss the appeal.
7. We have perused the appeal memo, judgment of the trial court and also the evidence on record. we have re- appreciated the evidence on record.
8. PW-1 Smt. Bharathi is the mother of deceased Ashwini who has set criminal law in motion by lodging a complaint as per Ex-P6. In her evidence, PW-1 has stated that she is residing at Bagalkot. She has also stated that deceased and accused have got a son by name Prajwal and both accused and deceased were working at Mangaluru. She has also stated that she has gone to the house of deceased Ashwini only once. After delivery deceased left to her matrimonial home, she has not gone to the house of the accused. It is further stated by her that her son PW-6 received message regarding deceased Ashwini 10 sustaining burn injuries and admitted to hospital. Then herself, her son and her brother went to Wenlock Hospital, Mangaluru early morning at about 8:30 a.m. They found that the entire body of deceased Ashwini was burnt. At that time, the accused, his sister's husband, his sister were all present in the hospital. The accused had sustained burn injuries to his hands. When she inquired her daughter Ashwini, she informed that when she objected her husband-accused as to why he has brought a costly saree to his sister's daughter, the accused told her that she is irritating a lot and he would marry another women. In this regard, as deceased Ashwini got upset, she poured kerosene on herself. At that time, the accused who was smoking a cigarette, threw the cigarette on her and her clothes caught fire. PW-1 further stated that deceased Ashwini informed her that when she was screaming for help, the accused did not rescue her. So in this regard, when police came to the hospital, she has given statement before them. PW-1 has further stated that her daughter Ashwini was conscious for about an hour. She was speaking and deceased Ashwini died on the next day. On perusing her examination-in-chief, it is evident that PW-1 is residing at Bagalkot. She has not visited the house of the 10 11 accused for a long time. Only once she had gone to the house of deceased Ashwini and after birth of son prajwal, she has not visited the house of deceased Ashwini. It is also evident that this witness is neither an eyewitness nor she has stated any such cruelty by the accused which would drive a woman to commit suicide. There is no evidence regarding the type of cruelty either physical or mental by the accused as stated by this witness which could drive her daughter to commit suicide. So examination-in-chief of PW-1 does not disclose any of the ingredients alleged against the accused and her cross examination clearly reveals that what is stated by her is not true. Evidence of PW-1 that deceased Ashwini was conscious and she was talking is also belied by the evidence of the official witness Taluka Executive Magistrate and Medical Officer. In the cross- examination, PW-1 again has stated that her daughter Ashwini was at Hospital, other persons were also present there. PW-1 has denied the suggestion that accused sustained injury to his hands while trying to extinguish the fire. So evidence of PW-1 would not help the prosecution in any way to prove any of the ingredients of offences alleged against the accused. 12
9. PW-2- Basavanna Gowda has stated that accused is his wife's brother. He has not supported the prosecution case and he has stated that he has not seen the incident. He came to know that deceased Ashwini set fire to herself. Thereafterwards, she was taken to hospital and she died in the hospital. The prosecution treated him as hostile witness. Nothing helpful to the prosecution is elicited from him. He has stated he has not given any statement before the police has per Ex-P8, Ex-P9 and Ex-P10.
10. PW-3-Bimmanna Gowda is the brother of PW-2 and he has also not supported the prosecution. He has stated that he does not know anything about the death of Ashwini and he does not know about any quarrel between the accused and deceased Ashwini. The prosecution has treated him as hostile witness and cross examined him at length, but he has clearly stated that he has not given any statements before the police as per Ex-P11 and Ex-P12. In the cross-examination, he has stated that both accused and deceased Ashwini were living happily.
11. PW-4- Smt. Hema is the maid servant who was working along with deceased Ashwini in the hospital of Dr.Anitha Hegde at Mangaluru. She has stated that she was working in the 12 13 house of Dr. Anitha Hedge and deceased Ashwini was also working as a maid servant in the said house. She has stated that deceased has not informed her about her family members and she came to know that deceased Ashwini set fire to herself by pouring kerosene and died. She has stated that she has not given any statement before the police. The prosecution has treated her as hostile witness and cross examined her at length, but in the cross examination also, she has stated that she has not given statements before the police as per Ex-P13, Ex-P14 and Ex-P15.
12. PW-5 Manjunath is the brother of deceased Ashwini. He is also residing at Bagalkot. He has stated about the marriage and birth of a child to deceased Ashwini and accused. He has also stated that he came to know about deceased Ashwini sustaining burn injury through one Basavanna Gowda on 16.01.2013 over phone at about 11.00 a.m. Then they went to Wenlock Hospital, Mangalore Hospital next day morning. PW-5 has also stated that he enquired deceased Ashwini as to how the incident happened. Deceased Ashwini told him that, in respect of bringing costly saree by the accused to his sister's daughter, there was quarrel between herself and accused and in that 14 regard, deceased Ashwini poured kerosene on herself and accused set fire to her by a matchstick. Subsequently, deceased Ashwini succumbed to the burn injuries. In the cross examination, PW-5 has admitted that when he came to the hospital, Doctors were present and Ashwini was taking liquid food and the accused was also present. So evidence of PW-5 will not inspire any confidence regarding deceased Ashwini informing him of the incident as his evidence is totally contrary and inconsistent with the evidence of his mother and also evidence of other witnesses.
13. PW-6 -Gowramma is the sister of the accused who has stated that both accused and deceased Ashwini were residing happily and there was no quarrel between them. She has not supported the prosecution case regarding accused setting fire to deceased Ashwini. The prosecution has treated her as hostile witness and cross examined her at length, but she has stated that infact she has not given statement before the police as per Ex-P17, Ex-P18 and Ex-P19.
14. PW-7 K. Purushottama Bandari is the owner of Divyashakti Apartment, Hosabettu Village, Mangaluru where deceased Ashwini and accused were residing in the labour shed. 14 15 But he has not stated about any quarrel between accused and deceased Ashwini. So his evidence is only in respect of witness to the scene of offence panchanama and in the cross examination by the prosecution, he has clearly stated, he has not given statements before the police as per Ex-P21, Ex-P22 and Ex-P23.
15. PW-8 Niranjana Shetty is also another witness for spot panchanama Ex-P20. PW-9 Prasad is the panch for Ex-P20. PW-10 Basappa is the witness for inquest panchanama. Their evidence is not much helpful to the prosection to prove the charges.
16. PW-11 Balakrishna is the medical officer of Wenlock Hospital, Bengaluru. He has stated he received requisition from the IO to inform whether deceased Ashwini was in a position to give statement or not. PW-11 stated that he went to the Burns ward and examined Ashwini, he found that Ashwini was in semiconscious state and she was not in a position to given any statement. Accordingly, he has given opinion about the mental and physical condition of deceased Ashwini as per Ex-P25. So his evidence goes against the evidence given by the brother and mother of deceased Ashwini wherein they have stated that 16 deceased Ashwini was in a fit condition and she informed them about the incident.
17. PW-13 Dr. Jagadish Rao has stated that he conducted autopsy on the body of deceased Ashwini on 19.01.2013 between 11.45 a.m. to 1.00 p.m. and mentioned about the injuries sustained by deceased Ashwini and opined that the total body surface area of burn injuries sustained by Ashwini is 98% and after referring to the injuries, he has opined that the death of deceased Ashwini is due to complication of burn injuries sustained over the body. He has given post-mortem report as per Ex-P26. His evidence shows that the death of deceased Ashwini is due to burn injuries sustained over her body which is not disputed by the witnesses or it is not the case of anybody that deceased Ashwini died due to some other reason.
18. PW-13 Dr. Harish Rao is a Honarary Medical Officer of Wenlock Hospital, Mangaluru. He has examined the accused on 17.01.2013 when he came to the Wenlock hospital with a history of burn injury and he came to know that accused sustained burn injuries to his hands while rescuing his wife who had sustained burn injuries. PW13 examined accused and made shara as per Ex-P27. PW13 has clearly stated that if there is fire on the body 16 17 of a person and another tries to extinguish it by touching body, there is possibility of sustaining said injury. So his evidence further strengthens the defence of the accused that when he tried to extinguish fire, he sustained burn injuries.
19. PW-14 Ashok R.K. is a clerk working at Karnataka Bank, Mangaluru. He has stated that earlier the accused and deceased Ashwini were residing in his house. But he has given a totally new version stating that he received message that Ashwini has sustained burn injury and she was admitted to Wenlock Hospital. He went there and enquired Ashwini. She told him that there was quarrel with regard to a saree and just to threaten the accused, she poured kerosene on herself and at that time, accused lit fire from cigarette. He has given contrary evidence to that of medical evidence stating that mother of Ashwini and brother were in hospital and her mother was feeding bread to deceased Ashwini. It is evident from his cross- examination that he is not having any contact with deceased and has not seen the accused for a long time. Therefore, his evidence is nothing but an exaggeration and it goes to show that just to help somebody, he is giving evidence, which is totally inconsistent with the evidence of other prosecution witnesses. 18
20. PW-15 Smt. Jayashree is the Women police constable of Suratkal Police Station who handed over the deadbody of deceased Ashwini after post-mortem examination.
21. PW-16 Sunil Kumar is the Head Constable who took FIR-Ex-P28 to the Court.
22. PW-17 Jagadish is the police constable who took seized material objects M.O.1 to M.O.7 to RFSL, Bengaluru.
23. PW-18 Dr. Sudhakar is the Medical Officer at Wenlock Hospital, Mangaluru who has first seen Ashwini when she was brought to the Hospital with burn injuries. He has stated that on 16.01.2013 at 8.55 p.m., when he was on duty, Ashwini was brought to the hospital with a history of burns and she had sustained burns all over her body to the extent of 90% to 95%. Thereafterwards, she was sent to intensive care unit. In the cross-examination, he has stated that he enquired the injured as to how she sustained injury, she did not inform anything. So his evidence further strengthens the defence of the accused and he has clearly opined that if a person tries to commit suicide by pouring kerosene on herself, such injury as per Ex-P32 could be caused.
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24. PW-19 M.A. Nataraj, Police Inspector who conducted further investigation and filed the charge sheet.
25. PW-20 Kumareshwaran M is the Police Sub-Inspector, Suratkal Police Station, Mangalore who received the complaint and registered the case and conducted further investigation, recorded statements of the witnesses. But his evidence if compared with the evidence of other witnesses, the prosecution witnesses have stated they have not given statement before the police as per Ex-8 to Ex-P10, Ex-P11, Ex-P12 and Ex-P13 to Ex-P16, Ex-P17 to Ex-P20. In the cross-examination, he has clearly stated that when he went to the hospital, accused was also present in the hospital and accused had sustained burn injury to both his hands and he came to know that accused sustained injury when he tried to extinguish fire. The evidence of IO corroborate the defence of the accused.
26. PW-21 Ravichandra Nayak is the Taluka Executive Magistrate of Mangalore Taluk. He stated that on 17.01.2013, he received requisition from Suratkal Police station regarding Ashwini taking treatment in Wenlock Hospital as she has sustained burn injuries. He visited the Hospital and tried to put some questions to Ashwini, but he found that she was not in a 20 position to answer. Accordingly, he gave report as per Ex-P35 and this evidence also goes to show that deceased Ashwini was not conscious and was not in a position to speak anything and she has not given any statement before anyone. This witness has visited the Wenlock Hospital when he received the information.
27. If the entire evidence of the prosecution is perused, it is evident that absolutely, there is no corroboration in the evidence of the prosecution witnesses about the material particulars. On the other hand, their evidence is full of inconsistencies and contradictions which goes to the root of the case. Cruelty must be as defined under section 498A IPC. In this case, there are no eyewitnesses to say that it is the accused who set fire to deceased Ashwini. On the other hand, the death of the deceased Ashwini is due to burn injuries in not in dispute. It is also evident that the accused himself took Ashwini to the hospital, infact, he had also sustained injury to his hands. Therefore, the version of the relatives of deceased Ashwini that deceased Ashwini tried to commit suicide by pouring kerosene and accused lit fire from his cigarette cannot be believed. On the other hand, it is contrary to the evidence of IO who has stated that he was very much present when the incident took place and 20 21 he also sustained burn injury while trying to extinguish fire. Infact, accused was arrested from the hospital itself. He has not gone away. The very conduct of the accused itself goes to show that he is innocent. If at all he had committed any such act, naturally, he could not have been there in the hospital or in the house, he could have absconded from the spot which is normal human tendency of a person committing crime. On the other hand, it is the accused who tried to save Ashwini who tried to set fire to herself and in the process he has also sustained injury.
28. It is also evident that the incident took place on a trivial issue which is regarding purchase of a saree of higher price to the sister's daughter of accused and a saree of lower price to deceased Ashwini. It cannot be said as a definite reason or cause as to why persons commit suicide. It depends upon their position, family background, status of a person, their mental condition and circumstances which disturbs their mind. The hyper sensitive nature of the victims for resorting to extreme steps, emotional, sentimental, ego factor or ironical words cannot be termed as cause for committing suicide. It is evident that deceased Ashwini was not in a position to speak. The evidence of mother and brother of deceased Ashwini goes to 22 show that they are trying to falsely implicate the accused for the loss of their daughter and sister respectively i.e., Ashwini. But the medical evidence on record goes to show that deceased Ashwini had sustained burn injury to the extent of 90-95% and a person with such burn injury will not be in a position to give evidence. Therefore, absolutely there is no legally admissible evidence to believe that deceased Ashwini either informed her mother or brother that it is the accused who set fire to her. On the other hand, the possibility of deceased Ashwini getting herself enraged or may be because of loosing her thinking capacity and in emotion becoming hyper sensitive must have set fire to herself by pouring kerosene. It is very unfortunate that such an incident happened even though she has a small child.
29. It is settled principles of law that the prosecution has to prove its case beyond all reasonable doubt. If there are two views possible, then the view favouable to the accused will have to be accepted by the court. In the light of defence taken up by the accused, if the evidence of the prosecution witnesses is examined meticulously, it is evident that possibility of deceased Ashwini setting fire to herself maybe just to threaten the accused also cannot be ruled out. When deceased Ashwini had sustained 22 23 burn injury to the extent of 92% to 95%, naturally deceased Ashwini will not be in a position to speak and even if she has stated anything that cannot be believed straight away without there being any corroboration, because in this case, the only eyewitness is the sister of the accused who is PW-6. She has not supported the prosecution. The other circumstantial evidence does not point out that the accused has either treated deceased Ashwini cruelly or set fire. Therefore, the prosecution has failed to prove that the death of deceased Ashwini is homicidal. On the other hand, it is nothing but suicide.
30. The Hon'ble Supreme Court while considering the statement of the injured who had sustained deep burn injuries and appreciating such statement also stated the principles regarding the approach of the first appellate court. Simply because the accused have not given any explanation under 313 Cr.P.C. statement, does not absolve the prosecution of proving its initial burden beyond all reasonable doubt. Only if the prosecution proves its case beyond reasonable doubt, then the burden shifts on the accused. In this regard, the Hon'ble Supreme Court has considered the fact of non explanation of 313 Cr.P.C. statement by the accused and drawing any inference 24 under section 106 of Indian Evidence Act and the decision reported in Crl.A.No.1348/2013 dated 02.03.2021 in SHIVAJI CHINTAPPA PATIL v. STATE OF MAHARASHTRA, it is held at para 22 as under:-
"Section 106 of Evidence Act does not directly operate against either a husband or wife staying under the same roof and being he last person seen with the deceased. Section 106 of the Evidence Act does not absolve the prosecution of discharging its primary burden of proving the prosecution case beyond reasonable doubt. It is only when the prosecution has led evidence which, if believed, will sustain a conviction, or which makes out a prima facie case, that the question arises of considering facts of which the burden of proof would lie upon the accused. In this case, the prosecution has failed to prove beyond reasonable doubt, that the death was homicidal."
31. Regarding appreciating the statement of injured who has sustained deep burns and appreciating such statement on dying declaration, the Hon'ble Supreme Court in a similar type of case in SAMPAT BABSO KALE AND ANOTHER v. STATE OF MAHARASHTRA, (2019) 4 SCC 739, wherein the injured deceased has sustained severe burn injuries to the extent of 24 25 98% and the Supreme Court considered the nature of the burn injury and as to whether the victim was in a fit state of mind to make the statement with that percentage of injury, it is held in para 16 as under:-
" In the present case, as we have already held above, there are some doubt as to whether the victim was in a fit state of mind to make the statement. No-doubt, the doctor has stated that she was in a fit state of mind but he himself had, in his evidence, admitted that in the case of a victim with 98% burns, the shock may lead to delusion. Furthermore, in our view, the combined effect of the trauma with the administration of painkillers could lead to a case of possible delusion and therefore, there is a need to look for corroborative evidence in the present case."
32. Further the Hon'ble Supreme Court in the same decision has enunciated the principles regarding interference by the High Court while considering the appeal against judgment of acquittal, it is held at para 8 as under:-
"With regard to the powers of an appellate court in an appeal against acquittal, the law is well established that the presumption of innocence which is attached to every accused person gets strengthened when such an accused is acquitted by the trial court and the High Court should not lightly interfere with the decision of the trial court which has recorded the evidence and observed the demeanour of witnesses. This Court in the case of Chandrappa & Ors. v.26
State of Karnataka, laid down the following principles:(SCC p.432, para 42) "42. From the above decisions, in our considered view, the following general principles regarding powers of the appellate court while dealing with an appeal against an order of acquittal emerge:
(1) An appellate court has full power to review, reappreciate and reconsider the evidence upon which the order of acquittal is founded.
(2) The Code of Criminal Procedure, 1973 puts no limitation, restriction or condition on exercise of such power and an appellate court on the evidence before it may reach its own conclusion, both on questions of fact and of law.
(3) Various expressions, such as, "substantial and compelling reasons", "good and sufficient grounds", "very strong circumstances", "distorted conclusions", "glaring mistakes", etc. are not intended to curtail extensive powers of an appellate court in an appeal against acquittal.
Such phraseologies are more in the nature of "flourishes of language" to emphasise the reluctance of an appellate court to interfere with acquittal than to curtail the power of the court to review the evidence and to come to its own conclusion.
(4) An appellate court, however, must bear in mind that in case of acquittal, there is double presumption in favour of the accused. Firstly, the presumption of innocence is available to him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent court of law. Secondly, the accused having secured his acquittal, the 26 27 presumption of his innocence is further reinforced, reaffirmed and strengthened by the trial court.
(5) If two reasonable conclusions are possible on the basis of the evidence on record, the appellate court should not disturb the finding of acquittal recorded by the trial court."
33. There is lot of difference between 'may be true' and 'must be true'. It is settled principle of law that the prosecution has to prove its case beyond all reasonable doubt as alleged. If from the evidence of the prosecution witnesses, two views are possible, then the view favourable to the accused will have to be accepted. Therefore, in the light of settled principles, if the evidence of the prosecution witnesses is analysed meticulously, then it is evident that the prosecution has failed to prove the guilt of the accused beyond all reasonable doubt.
34. The learned sessions judge has referred to the evidence of the eye witnesses account and considered the oral documentary evidence and has come to the conclusion that the evidence of the prosecution witnesses does not inspire confidence and most of the witnesses have turned hostile or have not supported the prosecution. Under such circumstances, the learned sessions judge found that the prosecution has failed 28 to prove the guilt of the accused beyond all reasonable doubt and giving benefit of doubt has acquitted the accused.
35. It is settled principles of law as held by the Hon'ble Supreme Court in the case of SAMPAT BABSO KALE AND ANOTHER v. STATE OF MAHARASHTRA1 that unless the judgment passed by the trial court is illegal, perverse and not based on sound principles regarding appreciation of evidence the High Court being a first appellate court will not interfere in the judgment of the acquittal.
36. In the light of the discussions made above and also in the light of the principles stated in the above referred decisions, we are of the opinion that the judgment of acquittal passed by learned sessions judge is not illegal or capricious, hence need no interference. Therefore, the appeal being devoid of merit is liable to be dismissed.
In the result, we pass the following:
ORDER
1. The appeal preferred by the State under section 378(1) and (3) Cr.P.C. is hereby dismissed.1
2019) 4 SCC 739 28 29
2. Consequently, the judgment of acquittal dated 26.02.2016 passed by II Addl. District & Sessions Judge, Dakshina Kannada, Mangaluru in S.C.No.53/2013 is hereby confirmed.
3. Bail bond, if any, executed by the accused, the same shall stand cancelled.
4. Send back the records to the trial court.
Sd/-
JUDGE Sd/-
JUDGE *mn/-