Karnataka High Court
Sri.Gangappa vs The State Of Karnataka on 9 March, 2022
Author: K. Somashekar
Bench: K. Somashekar
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R
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 9TH DAY OF MARCH 2022
PRESENT
THE HON'BLE MR. JUSTICE K. SOMASHEKAR
AND
THE HON'BLE MR. JUSTICE ANANT RAMANATH HEGDE
CRIMINAL APPEAL No. 200018/2018
Between:
Sri. Gangappa S/o Ramanna Arikeri
Age: 33 years, Occ: Agriculture
R/o: Neermanvi Village
Tq. Manvi, Dist. Raichur
... Appellant
(By Sri Arun Choudapurkar, Advocate)
And:
The State of Karnataka
Through CPI, Manvi
Represented by Special Public
Prosecutor, High Court of Karnataka
Kalaburagi Bench-585 103
... Respondent
(By Sri Prakash Yeli, Addl. SPP)
2
This Criminal Appeal is filed under Section 374 (2) of
Cr.P.C., praying to allow the criminal appeal by setting
aside the impugned judgment of conviction dated: 27-12-
2017 and order of sentence dated: 28-12-2017 in
S.C.No.73/2014 on the file of the Prl. Dist. & Sessions
Judge at Raichur, convicting the appellant/accused No.4
for the offence punishable U/s 302 of IPC and awarding
sentence to undergo rigorous imprisonment for life and to
pay a fine of Rs.50,000/- and in default shall undergo
simple imprisonment for three years with fine of
Rs.25,000/- for the offence punishable U/s 498-A of IPC
and in default of fine simple imprisonment for six months
with the above sentence shall run concurrently and acquit
the appellant/accused No.4 and etc,.
This appeal coming on for dictating judgment this
day, K. Somashekar J., delivered the following:
JUDGMENT
This appeal is directed against the judgment of conviction and order of sentence passed by the Principal District and Sessions Judge at Raichur in S.C.No.73/2014 dated 27.12.2017 whereby the accused No.4 namely Sri Gangappa is convicted and sentenced to undergo rigorous imprisonment for life and to pay a fine of Rs.50,000/- for the offence punishable under Section 302 of Indian Penal Code, 1860 with default clause and to undergo rigorous 3 imprisonment for three years and to pay a fine of Rs.25,000/- for the offence punishable under Section 498A of Indian Penal Code, 1860 with default clause, which is incorporated in the operative portion of the order.
2. This appeal is filed challenging the judgment of conviction rendered by the trial Court and seeking to allow the appeal and consequently setting aside the conviction held against accused No.4 in S.C.No.73/2014 and to acquit the accused of the offences punishable under Sections 498A and 302 of Indian Penal Code, 1860 (hereinafter referred to as the 'IPC' for short).
3. Heard learned counsel Sri Arun Choudapurkar for appellant/accused No.4 and the learned Additional State Public Prosecutor for respondent/State. Perused the judgment of 4 conviction rendered by the trial Court in S.C.No.73/2014.
4. Factual matrix of the appeal:
It transpires from the case of the prosecution that the marriage of Smt. Sridevi was performed with accused No.4 namely Gangappa about 11 years ago and after her marriage, she was residing in the house of her husband. At the time of her marriage, the accused had demanded dowry in gold jewellery and cash. Accordingly, received dowry of Rs.50,000/- cash and gold jewellery weighing 4 tolas and also household articles worth Rs.1,20,000/-. After her marriage with accused No.4 Gangappa, the deceased was blessed with a son namely Mounesh. After her marriage when she was residing in the house of her husband along with father-in-law, mother-in-law and brother-in-law. The accused used to demand from her to bring additional dowry from her parents' house, 5 saying so the accused were subjecting her to physical as well as mental harassment. On 19.02.2014 her brother-in-law who is arraigned as accused No.5 visited the place of Hutti on the pretext of celebrating a fair festival of Renukamma Yellamma at Neermanvi and brought her from her parental house to the matrimonial house situated at Neermanvi. On 24.04.2014 at about 7.15 p.m. while the deceased Smt. Sridevi was on the first floor of the house of accused No.4, her husband picked up a quarrel with his wife Sridevi by suspecting her character and fidelity and to eliminate her on suspicion of her fidelity, accused is alleged to have assaulted Sridevi using the wooden leg of the cot on her right ear, the backside of the right ear, on the head, forehead and her face. As a result of the assault Smt. Sridevi sustained severe bleeding injuries. When the accused No.4 was assaulting the deceased, she raised alarm 6 and on hearing her scream, one Panduranga and Gopal rushed to the scene of the crime on the top floor of the house of the accused No.4. On seeing them, accused No.4 fled from there. It is further stated that the injured Sridevi was taken to hospital for providing treatment by Nagappa and Gopal.
However on the way to the hospital at Kurdi Cross she breathed last. Subsequently, the dead body of Smt. Sridevi was taken back to her matrimonial home.
5. Kanakappa Gouda father of the victim filed a complaint and the criminal law was set into motion by registering the case in Crime No.66/2014 for the offences punishable under Sections 498A, 504 and 302 read with Section 149 of IPC, besides Sections 3 and 4 of the Dowry Prohibition Act, 1961. After a criminal case, by a recording of an FIR, Investigating Officer takes up the case for investigation and filed a 7 charge sheet against the accused before the committal court.
6. After passing of committal order as contemplated under Section 209 of Cr.P.C., by following the provisions of Section 207 of Cr.P.C. such as furnishing a copy of the charge sheet, the case was committed to the Sessions Court for trial.
7. After committing the case by the committal Court to the Sessions Court heard the accused before the charge. And charges are framed for the offences punishable under Sections 498A, 504, 302 read Section 149 of IPC against the accused persons. The accused did not plead guilty but claimed to be tried. Accordingly, the plea of the accused has been recorded separately.
8. After framing of charge against the accused persons, the prosecution let in evidence and examined 8 PWs.1 to 43 and also got marked several documents at Exs.P1 to 52 and also material objects M.O.s-1 to
11. After the closure of the evidence on the part of the prosecution, the accused were examined under Section 313 of Cr.P.C. seeking an explanation for incriminating statements which appeared against them in the evidence. The accused denied the truth of the evidence on the part of the prosecution. Ex.D1 and D2 have been got marked as contradictory statements. After recording incriminating statements as contemplated under the relevant provisions of Cr.P.C., the accused were called upon to enter into defence evidence as contemplated under Section 233 of Cr.P.C. Accordingly it was recorded.
9. After the closure of evidence on part of the prosecution, the trial court heard the arguments advanced by the learned Public Prosecutor and so also, counter-arguments advanced by the defence 9 counsel for the accused. Based upon the complaint of Kanakappa the criminal law was set into motion by recording the FIR as per Ex.P-33 whereby the signature of PW-34 Deepak Boosareddy was subscribed. On the basis of the material evidence are on record marked by the prosecution, trial court concluded that the prosecution has proved the guilt of the accused of the offences punishable under Sections 498A, 302 of IPC insofar as the appellant who is arraigned as accused No.4 namely Gangappa. Insofar as the remaining accused Nos.1 to 3 and 5 the case against them ended in acquittal for the offences punishable under Sections 504, 498A of IPC and Sections 3 and 4 of the Dowry Prohibition Act. The said judgment is under challenge in this appeal by urging various grounds.
10. The counsel for the appellant has taken us through the evidence of P.W.26, who is a child witness 10 namely, Mounesh and who is the son of deceased Sridevi and also the son of accused No.4 who is the appellant before this Court. However, the said Mounesh is not cited in the charge-sheet as one of the prosecution witnesses nor he has given any statement before the investigating officer during the investigation and no attempt has been made by the investigating agency to record the evidence of P.W.26, who was said to be present at the time of the crime and it is alleged that appellant assaulted with M.O.1 namely the piece of the old wooden cot. P.W.6 was said to be present along with his mother deceased Sridevi. However, there are no material witnesses relating to direct overt acts attributed against this appellant or even there are no eyewitnesses on the part of the prosecution to say that this appellant assaulted the deceased using M.O.1 and also caused injuries over her person. There is no evidence on 11 record regarding cruelty or demand in terms of dowry either in the form of cash or in terms of jewellery. The charges in respect of the mental as well as physical harassment made to the deceased by the accused Nos.1 to 3 and 5 under Sections 3 and 4 of the Dowry Prohibition Act, 1961 are not proved. There is no consistency relating to appreciation of the evidence on the charges framed against co-accused Nos.1 to 3 and 5 and the charges against accused No.4 who is appellant before this Court.
11. Second limb of the argument by the learned counsel for the appellant relating to Section 161 of Cr.P.C., whereas P.W.26-Mounesh has been subjected to examination by the prosecution by making an application under Section 311 of Cr.P.C., This witness Mounesh was not cited as a witness in the charge sheet. This aspect is required to be considered, while appreciating the evidence of PW.26. 12 His evidence is to be carefully appreciated as he is minor and there is every possibility of a minor being tutored by some persons to secure the conviction of the accused persons.
12. Whereas, in the instant case, P.W.26 who is an eyewitness and even according to the theory of the prosecution that this witness has not been examined during the investigation by the investigating agency. But, this witness has been subjected to examination during the trial by the prosecution by invoking Section 311 of Cr.P.C. But this witness did not disclose the facts relating to the incident that occurred with his mother on a fateful day. Therefore, the evidence of P.W.26 runs contrary to the evidence of P.W.27 who is the author of the complaint at Ex.P.35-Complaint. P.Ws.3 to 20 have been subjected to examination on the part of the prosecution. However, they did not support the version of their 13 statements said to have been recorded by the investigating agency and so also they have not supported the versions of the statements made before the investigating agency which runs to the contrary to the substances in the FIR at Ex.P-33 and consequently contrary to the averments made in the complaint at Ex.P.35.
13. It is urged that the trial court has not properly appreciated the evidence on record even the evidence of P.W.26 also. The trial court misread the evidence and also misdirected the evidence and came to the conclusion that the prosecution has proved the guilt of the appellant herein regarding physical as well as mental harassment given to the deceased by insisting her to bring additional dowry from her parent's house, though the other accused are acquitted for the offences under Sections 498-A and 504 of IPC inclusive of offences punishable under 14 Sections 3 and 4 of the Dowry Prohibition Act. There is no adequate evidence facilitated by the prosecution in securing the conviction. When the doubt arises in respect of involvement of the accused Nos.1 to 3 and 5, the same benefit shall have to be extended to the accused No.4 who is the husband of the deceased- Sridevi.
14. P.W.1 Ramesh and P.W.2 Bandenawaz, who are the panch witnesses did not support mahazars at Exs.P1 to P3. Therefore, their evidence runs contrary to the evidence of investigating officer who conducted the investigation and laid the charge sheet against the accused. The prosecution did not facilitate the worthy evidence even relating to the motive factor and whereby this appellant was alleged to have murdered his wife deceased Sridevi by suspecting her fidelity. Under these circumstances, it is urged to re-appreciate the evidence which has been 15 facilitated by the prosecution, if not, certainly there shall be a substantial miscarriage of justice.
15. Lastly, the learned counsel contended by referring to the evidence of P.W.32 said to be the eyewitnesses on the part of the prosecution that P.W.43, who is the investigating officer stated in his evidence and also admitted in the cross-examination that P.W.33 is no eyewitness to the incident as narrated in the complaint made by P.W.27. However, the trial court has given credentials to the evidence of P.W.26 being an eyewitness. Further, P.W.29 was the doctor who conducted an autopsy over the dead body of the deceased and issued post mortem report whereby opined that the injuries are simple, but it might have caused the death of the deceased. But in the cross-examination admitted that she may have taken food for 5-6 hours before the death and if it is accepted then the prosecution theory that the 16 deceased Sridevi who had taken food with the accused No.4 who is her husband and P.W.26 at around 8.00 p.m. on the date of the incident appears to be incorrect. But this important aspect has not been proved by the prosecution by facilitating worthy evidence. Therefore, the alleged assault made by this accused with means of M.O.1 would create some doubt as this evidence runs contrary to the evidence of P.W.26.
16. Whereas, co-accused Nos.1 to 3 and 5 against whom offences punishable under Sections 498-A and 504 of IPC have been acquitted inclusive of Sections 3 and 4 of Dowry Prohibition Act. Another aspect is the motive factor in the theory of the prosecution alleged even for the offence under Section 302 of IPC. If the evidence of the prosecution is read in the totality of the circumstances, a prudent man can say that doubt arises in the theory of the 17 prosecution. The benefit of the doubt must always be given to the accused. It is submitted that the accused is in judicial custody for almost eight years. But the prosecution though letting the evidence of several witnesses and several documents have been marked including M.O.1 the material object alleged to be used by this appellant in murdering his wife by suspecting the fidelity, but no credible evidence has been elicited by the prosecution. Further, the trial court has come to the wrong conclusion that the prosecution has proved the guilt of the accused. These are all the contentions made by the learned counsel for the appellant seeking for the intervention of this court and hence seeks to set aside the impugned judgment rendered by the trial court whereby the appellant has been convicted for the offences under Section 498-A and 302 of IPC.
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17. Per contra, learned Additional State Public Prosecutor who has taken us through the entire prosecution witnesses and the documentary evidence more particularly the complaint at Ex.P.35 which is said to be lodged by P.W.27, who is none other than the father of the deceased. Pursuance of said complaint, criminal law was set into motion by recording FIR as per Ex.P.33.
18. It is further contended that P.W.26 who is the child witness and who is none other than the son of the deceased stated in his evidence relating to how the accused assaulted his mother Sridevi with means of M.O.1 over her person on the terrace of the house when she was present along with his son. After the assault, the deceased was taken to Government Hospital to provide treatment but while proceeding near Kurdi cross, the Sridevi died. Therefore, she was taken to the matrimonial house and whereby on 19 information about the murder of Sridevi, a case came to be registered. It is contended that due to harassment meted out by the accused demanding the additional dowry from her parent's house, the deceased was done to death on a fateful day by the appellant in the presence of P.W.26 on the terrace of their house. But, for want of proof of evidence, accused Nos.1 to 3 and 5 were acquitted by the trial court. But, there is sufficient evidence available on record insofar as this appellant to hold conviction for the offences of which he is charged and accordingly the trial court after appreciating the material on record, convicted the accused No.4, the present appellant.
19. Nextly, learned Additional State Public Prosecutor has given more emphasis on the evidence of P.W.43 who has stated in his evidence that around 3.00 a.m. on 25.02.2014, he visited the Government 20 Hospital, Manvi and secured the panch witnesses and drawn inquest over the dead body of the deceased as per Ex.P.43 and also taken the photographs at Exs.P.44 and 45. As per Ex.P.1, spot mahazar and this panchanama has been conducted by him in the presence of P.Ws.1 and 2 and seized the material objects as per M.O.1 to M.O.4. The material objects have been identified and merely because the panch witnesses turned hostile, the impugned judgment cannot be set aside on that premise alone.
20. It is further contended that P.W.29 being the doctor conducted the autopsy over the dead body of the deceased and issued post mortem report and noted the injuries inflicted over her person, such as abrasion over the right side of chin parts measuring 1 x 1 c.ms., abrasion over right eyebrow parts measuring 1 x 1 c.ms and abrasion over the upper lip, left side measuring 1 x 1 cm. Therefore, the evidence 21 of P.W.29 remained uncontroverted and the said witness fully supports the case of the prosecution and the conviction held by the trial court in respect of the appellant for the offences alleged against him are proved. Even though there are some discrepancies, same are not fatal to the case. Therefore, keeping all these aspects, the trial court has given more conscious consideration to the evidence of P.W.26 and the fact that the case against the co-accused Nos.1 to 3 and 5 ended an acquittal cannot be a ground for the appellant herein to set aside of the impugned judgment rendered by the trial court. Hence, no interference is required with the impugned judgment at the hands of this court and on the aforesaid grounds, learned Additional State Public Prosecutor seeks dismissal of the appeal.
21. P.Ws.1 and 2 being panch witnesses to EX.P.1 spot mahazar have not supported the case of 22 the prosecution and their evidence runs contrary to the evidence of P.W.43. It is pertinent to note that the investigating agency did not make any attempt to record the statement of P.W.26 during the investigation. Therefore, the evidence of P.W.26 has to be scrutinized meticulously. Moreover, he is the child witness. Evidence of PW.26 runs contrary to the evidence of P.W.27 who is none other than the author of the complainant at EX.P.35.
22. In the instant case the allegation that this appellant alleged to have assaulted with means of M.O.1 to eliminate his wife by suspecting her fidelity and also insisted her to bring dowry from her parent's house in terms of the cash and gold jewellery. Admittedly, there is no acceptable evidence that has been led on the part of the prosecution for securing a conviction in respect of accused Nos.1 to 3 and 5. When the doubt arises in the mind of the Court the 23 benefit of the doubt be accrued to the accused, if not, the appellant would be the sufferer and it leads to miscarriage of justice.
23. It is relevant to refer to Section 299 of the Indian Penal Code, 1860 relating to culpable homicide. Section 299 of IPC and Explanation 1 to 3 of Section 299 of IPC reads as under;
299. Culpable homicide-Whoever causes death by doing an act to cause death, or to cause such bodily injury as is likely to cause death, or with the knowledge that he is likely by such act to cause death, commits the offence of culpable homicide.
Explanation 1.-A person who causes bodily injury to another who is labouring under a disorder, disease or bodily infirmity, and thereby accelerates the death of that other, shall be deemed to have caused his death.
Explanation 2.- Where death is caused by bodily injury, the person who causes such bodily injury shall be deemed to have caused death, although by resorting to proper remedies and skilful treatment the death might have been prevented.
24Explanation 3.- The causing of the death of a child in the mother's womb is not homicide. But it may amount to culpable homicide to cause the death of a living child if any part of that child has been brought forth, though the child may not have breathed or been completely born.
24. Further, for the sake of convenience, Exception 1 of Section 300 of IPC is extracted as under;
Exception 1 - When culpable homicide is not murder- Culpable homicide is not murder if the offender, whilst deprived of the power of self-control by grave and sudden provocation, causes the death of the person who gave the provocation or causes the death of any other person by mistake or accident.
The above exception is subject to the following provisos:-
First.-That the provocation is not sought or voluntarily provoked by the offender as an excuse for killing or doing harm to any person.
Secondly.-That the provocation is not given by anything done in obedience to the law, or by a public servant in the lawful exercise of the powers of such public servant. 25
Thirdly.- That the provocation is not given by anything done in the lawful exercise of the right of private defence.
25. It is relevant to refer to the distinction between culpable homicide and murder. Culpable homicide is the genus and 'murder' its species. All murders are culpable homicides but not vice-versa. Speaking generally, all culpable homicide does not amount to murder. The same has been extensively addressed by the Hon'ble Supreme Court in the case of Rampal Singh Vs. State of Uttar Pradesh reported in 2012 (8) SCC 289. Insofar as the presumption relating to the evidence or knowledge of the accused who is said to struck on his wife a violent blow on the head with which rendered her unconscious or inflicts of injuries over her person even the intention of the accused must be judged and not in the light of the actual circumstance but in the light of the, what is supposed to be the circumstances? 26 The same has been extensively addressed in a judgment of Palani Goundan vs. The Emperor reported in 1999(2) Madras 547.
26. Insofar as the third illustration in Section 300 of IPC, the difference between the second clause of Section 299 and clause 'thirdly' of Section 300 to one of the degrees of probability of death resulting from the intended bodily injury. To put it more broadly, it is the degree of probability of death that determines whether a culpable homicide is of the gravest, medium, or lowest degree. The word likely in the second clause of Section 299 conveys the sense of probable as distinguished from a mere possibility. The words 'bodily injury' sufficient in the ordinary course of nature to cause death, in clause thirdly of Section 300, means that death will be the most probable result of the injury having regard to the ordinary course of nature. This has been extensively 27 addressed in a case of State of Andhra Pradesh v. Rayavarpu Punayya reported in AIR 1977 SC 45.
27. In the instant case, the appellant who is arrayed as accused No.4 and that allegation against him is that he has assaulted his wife deceased Sridevi with means of M.O.1 and inflicted the injuries over her person and even the doctor has conducted inquest seizure over the dead body and issued the post mortem report. But the theory of the prosecution is that the accused Nos.1 to 3 and 5 and accused No.4 have extended physical or mental harassment to the deceased and also insisted her to bring additional dowry from her parent's house. It is alleged that the accused, who is the appellant has suspected her fidelity and committed the murder of the deceased by inflicting injuries over her person with means of M.O.1. The trial court rendered the acquittal judgment in respect of accused Nos.1 to 3 and 5 relating to the 28 charges such as physical and mental harassment. But the trial court misdirected the evidence of the prosecution and also misread the evidence and consequently came to the erroneous conclusion that the prosecution has proved the guilt of the accused beyond all reasonable doubt.
28. It is relevant to refer to Section 3 of the Indian Evidence Act, 1872. Even the last scene theory requires corroboration. The evidence of the prosecution should be appreciated in a proper perspective if not, the accused would be the sufferer.
29. It is the quality of the evidence and not the quantity of the evidence which is required to be judged by the Court to place credence on the statement. It has been extensively addressed in the judgment of State of Uttar Pradesh v. Kishanpal reported in 2008 (8) JT 650.
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30. Plurality of Witnesses - In the matter of appreciation of evidence of witnesses, it is not the number of witnesses, but the quality of their evidence which is important, as there is no requirement in law of evidence that any particular number of witnesses is to be examined to prove/disprove a fact. It is a time- honoured principle, that evidence must be weighed and not counted. The test is whether the evidence has a ring of trust, is cogent, credible and trustworthy or otherwise. The legal system has emphasized value provided by each witness, rather than the multiplicity or plurality of witnesses. It is quality and not quantity, which determines the adequacy of evidence as has been provided by Section 134 of the Evidence Act, 1872. This has been extensively addressed by the Hon'ble Supreme Court of India in the case of Laxmibai (Dead) through LRs vs Bhagwantbura 30 (Dead) through LRs, reported in AIR 2013 SC 1204.
31. The law of evidence does not require any particular number of witnesses to be examined in proof of a given fact. However, faced with the testimony of a single witness, the Court may classify the oral testimony of a single witness, the Court may classify the oral testimony into three categories, namely (i) wholly reliable, (ii) wholly unreliable, and
(iii) neither wholly reliable nor wholly unreliable. In the first two categories, there may be no difficulty in accepting or discarding the testimony of the single witness. The difficulty arises in the third category of cases. The Court as to be circumspect and has to look for corroboration in material particulars by reliable testimony, direct or circumstantial, before acting upon the testimony of a single witness. This has been extensively addressed by the Hon'ble Supreme Court 31 in the case of Lallu Manjhi v. the State of Jharkhand, reported in AIR 2003 SC 854.
32. Merit of the statement is also an important factor. It is a well-known principle of law that reliance can be based on the solitary statement of a witness if the Court concludes that the said statement is the true and correct version of the case of the prosecution. This aspect has been extensively addressed in the case of Raja v. State (1997) 2 Crimes 175 (Del.)
33. Insofar as a child witness is concerned, the evidence of a child witness must be evaluated more carefully with greater circumspection because he is susceptible to tutoring. Only in case, there is evidence on record to show that a child has been tutored, the Court can reject his statement partly or fully. However, an inference as to whether the child has 32 been tutored or not can be drawn from the contents of his deposition. This has been extensively addressed in the case State of Madhya Pradesh Vs. Ramesh & Anr. reported in 2011 (4) SCC 786.
34. The evidence of child witness is not even required to be rejected per se, but the Court as a rule of prudence considers such evidence with scrutiny and only on being convicted about the quality thereof and reliability can record a conviction, based thereon. It was also extensively addressed in the case of Golla Yelugu Govindu v. State of Andhra Pradesh reported in AIR 2008 SC 1842.
35. Criminal courts decide the cases and question of acceptance of evidence of the witnesses on sound commonsense and when they find witnesses to be wholly independent, they endeavour to fathom the reason as to why their evidence should not be 33 accepted. Ordinarily, it is a safe and sound rule of appreciation of evidence to accept the testimony of an independent witness though provided, it is in conscious with the probabilities. It is better if it is corroborated by inbuilt guarantees much ensures the truthfulness of the prosecution case. As such, a prompt first information report (FIR), recovery at the instances of the accused and the presence of some injured eyewitnesses it was also extensively addressing an issue in reliance on the decision in the case of Sharvan Dashrath Datrange v. the State of Maharashtra reported in 1997 (2) Crime 47.
36. Whereas, in the instant case, criminal law was set into motion by receipt of a complaint at Ex.P.35 and this complaint has been lodged by PW.27 and based upon this complaint, PW.34 who has been recorded first information report (FIR) as per Ex.P.33. But the substance of the FIR and also the averments 34 made in the complaint are found to be similar. It is a domain vested with the prosecution to prove the guilt of the accused with all beyond reasonable doubt by facilitating the worthwhile evidence. But the trial court has given more importance to the evidence of PW.26 - Mounesh who is a child witness and who is none other than the son of the deceased - Sridevi and also the son of the accused No.4. The other witnesses who are subjected to the cross-examination have not withstood the version of the statements and their statements have been got marked as per Ex.P.4 to Ex.P.29 and their evidence are been running contrary to the evidence of PW.26 - Mounesh who is a child witness and further contradictory to the evidence of PW.43 who is an Investigating Officer and who led the charge-sheet against the accused by conducting a thorough investigation. But on re-appreciation of the entire evidence of the prosecution and even on 35 scrutiny of the evidence of PW.26 inclusive of the evidence of PW.27 -Kanakappa Gouda who is none other than the father of the deceased and also the author of the complaint at Ex.P.35, there is no difficulty to hold that there are some clouds of doubt in the case of prosecution and when the clouds of doubt arise the benefit of the doubt it is always be given to the accused alone. But in the instant case, the benefit of the doubt has been extended only to the co-accused No.1 to 3 and also accused No.5 and they are the parents and brother of this appellant/accused No.4. This accused is alleged that he suspected the fidelity of the deceased and also insisted her to bring additional dowry from her parent's house. But there is no credible evidence facilitated by the prosecution even for conviction against the appellant/accused No.4 to hold that he has murdered to eliminate the deceased. It is said that on seeing the two persons 36 namely PW.18 - Gopal and PW.20 Nagappa the accused ran away from the spot i.e., from the terrace which is the scene of the crime. But, PW.18 and PW.19 and even PW.22 have been subjected to cross- examine on behalf of the prosecution and nothing is elicited to prove the version of the prosecution. But their evidence is contrary to the evidence of PW.43 being an Investigating Officer. Even though he has conducted the spot mahazar at Ex.P.1 and even seizure mahazar at Exs.P.2 and P.3 in presence of PWs.1 and 2, they have not withstood with the version of the fulcrum of the mahazar.
37. In the instant case, the appellant who is arraigned as accused No.4 is in judicial custody since the date of his arrest and even after holding conviction by the trial court. He is undergoing incarceration for more than eight years and this contention is also taken by the learned counsel for the 37 appellant by addressing so many issues by referring to the evidence and also referring to the contention in written synoptic notes. The accused is in incarceration for more than eight years though it may not be sufficient to hold that there is a service of sentence for culpable homicide or murder. When the theory of the prosecution in totality gives scope for genuine doubts, the benefit of the doubt should be extended only to the accused but not on the theory of the prosecution. Therefore, in terms of the aforesaid reasons and findings, this court thinks that the prosecution even though examined several witnesses and got marked several documents there is no positive, corroborative and cogent evidence to probabalise beyond reasonable doubt that the accused who is an appellant has committed the offence by eliminating the deceased - Sridevi. Therefore the accused is required to be 38 acquitted of the charges. Accordingly, we proceed to pass the following:
ORDER The appeal preferred by the appellant/accused No.4-Gangappa S/o Ramanna Arikeri under Section 374(2) of the Code of Criminal Procedure is hereby allowed.
Consequently, the judgment of conviction and order of sentence passed by the court of Principal District and Sessions Judge, Raichur dated 27/28.12.2017 is hereby set aside.
The appellant/accused No.4 is hereby acquitted for the offences punishable under Sections 498A and 302 of the Indian Penal Code.
If any fine amount has been deposited by appellant/accused No.4, the same shall be returned to him under due identification.
If the appellant/accused No.4 executed the bail bond, the same shall stand cancelled.
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The appellant/accused No.4 who is in judicial custody since the date of his arrest, is set at liberty if he is not required in any other case. Therefore, the Registry of this court is directed to communicate the operative portion of this judgment to the Jail Superintendent, Central Jail, Kalaburagi for compliance in respect of the release of the appellant /accused No.4 by law.
SD/-
JUDGE SD/-
JUDGE swk/BL/sn