Karnataka High Court
The State By Mysore vs Sri Bhirava @ Bhirappa on 4 January, 2022
Bench: K.Somashekar, P.N.Desai
R
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 04TH DAY OF JANUARY, 2022
PRESENT
THE HON'BLE MR. JUSTICE K. SOMASHEKAR
AND
THE HON'BLE MR. JUSTICE P.N.DESAI
CRIMINAL APPEAL NO.196/2016
BETWEEN:
THE STATE BY MYSORE,
SOUTH POLICE STATION,
MYSORE-570 005.
REPRESENTED BY SPP
HIGH COURT,
BENGALURU.
... APPELLANT
(BY SRI. RAHUL RAI. K, HCGP)
AND:
1. SRI. BHIRAVA @ BHIRAPPA,
S/O. PUTTAMADANAYAKA,
AGED ABOUT 33 YEARS,
R/AT. KUMBARAKOPPALU VILLAGE,
MYSORE-570 005.
2. SMT. PUTTAMMA,
W/O. PUTTAMADANAYAKA,
AGED ABOUT 55 YEARS,
R/AT. KUMBARAKOPPALU VILLAGE,
MYSORE-570 005.
2
3. SMT. ANITHA,
W/O. MAHESHA,
AGED ABOUT 40 YEARS,
R/AT. KUMBARAKOPPALU VILLAGE,
MYSORE-570 005.
... RESPONDENTS
(BY SRI. A.G. SRIDHAR, ADV FOR R1-R3)
THIS CRIMINAL APPEAL IS FILED UNDER SECTION
378(1) AND (3) CR.P.C BY THE S.P.P. FOR THE
APPELLANT/STATE PRAYING THAT THIS HON'BLE COURT MAY
BE PLEASED TO a) GRANT LEAVE TO APPEAL AGAINST THE
JUDGMENT AND ORDER OF ACQUITTAL DATED 31.07.2015
PASSED BY THE V ADDL. DIST. AND S.J., MYSORE IN
S.C.NO.5/2011, THEREBY, ACQUITTING THE
RESPONDENT/ACCUSED FOR THE OFFENCE P/U/S 498-A,306
AND 304(B) R/W 34 OF IPC AND SEC.3, 4 AND 6 OF D.P. ACT.
b) SET ASIDE THE JUDGMENT AND ORDER OF ACQUITTAL
DATED 31.07.2015 PASSED BY THE V ADDL. DIST. AND S.J.,
MYSORE IN S.C.NO.5/2011, THEREBY, ACQUITTING THE
RESPONDENTS/ACCUSED FOR THE OFFENCES P/U/S 498-A,
306 AND 304(B) R/W 34 OF IPC AND SEC.3, 4 AND 6 OF D.P.
ACT, BY ALLOWING THIS CRL.A. AND c) CONVICT AND
SENTENCE THE RESPONDENT/ACCUSED FOR THE OFFENCE
P/U/S 498-A, 306 AND 304(B) R/W 34 OF IPC AND SEC.3, 4
AND 6 OF D.P. ACT.
THIS CRIMINAL APPEAL COMING ON FOR HEARING
THIS DAY, K.SOMASHEKAR.J., DELIVERED THE FOLLOWING:
JUDGMENT
This appeal is preferred by the State challenging the judgment and order of acquittal rendered by the 5th 3 Addl. District and Sessions Judge, Mysore in S.C.No.5/2011 dated 31st July 2015 and whereby held acquittal of the accused for the offences punishable under Sections 498A, 306 and 304B r/w 34 of Indian Penal Code (for short hereinafter referred to as 'IPC') inclusive of Sections 3, 4 and 6 of Dowry Prohibition Act. Whereas, under this appeal, the State is seeking for intervention and consequently for setting aside the judgment of acquittal rendered by the trial court and for convicting the accused for the aforesaid offences by consideration of the grounds as urged in this appeal.
2. Heard learned HCGP for State - appellant Sri. Rahul Rai and learned counsel Sri. A.G. Sridhar, for respondent Nos.1 to 3 who are present before the court physically. Perused the judgment of acquittal rendered by the trial court in S.C.No.5/2011 consisting the evidence of PWs-1 to 33 and exhibited documents at Exs-P1 to P40 4 inclusive of MO-1 to 5 and Ex-D1 contradictory statement of PW-2.
3. The factual matrix of the appeal are as under:-
In the month of November 2008, deceased Manjula was given in marriage with the accused Bhairava @ Bhairappa, S/o. Puttamadanayaka as per the customs prevailed in their community. During her marriage talks in the month of May 2008, the accused demanded to give dowry in terms of cash of Rs.1.00 lakh, 50 grams of gold jewellery, one motor cycle, clothes and a wrist watch. In the mean-while, PW-7 - father of deceased Manjula expressed his inability to fulfill the demand of dowry made by the parents of the bridegroom, but considered for providing dowry in terms of Rs.50,000/-, 35grams of gold jewellery, one motor cycle, wrist watch and clothes. Accordingly, during her marriage with accused No.1, the aforesaid dowry has been given to him. Accordingly, her 5 marriage was performed with the first accused on 24.11.2008 at Nataraja Kalyana Mantapa, Mysore as per the customs prevailed in their community. Subsequent to her marriage, she had been to her matrimonial house to lead life with her husband and his family members consisting of his mother who is arrayed as accused No.2, accused No.3 who is his sister who got married with one Mahesha.
4. Subsequently, deceased Manjula led happy marital life with her husband for two to three months. When she was residing in the house of her husband at Kumbarakoplu in Mysuru along with his family members, accused used to demand her to bring additional dowry in terms of cash of Rs.50,000/- and used to harass her by extending physical as well as mental harassment. Such act of harassment extended by her husband and also his mother as well as his sister had been briefed to her 6 parents. There was some advice made to accused No.1, inclusive of accused No.3, who alleged to have been extending physical and mental harassment to her. Due to the harassment meted out at the hands of her husband as well as accused Nos.2 and 3, deceased - Manjula committed suicide by hanging in her matrimonial home.
5. It is further stated that on 20.12.2009, CW-4 Huchaiah at around 1.00 p.m., brought deceased Manjula from her husband's house and being unable to bear physical as well as mental harassment meted out to her relating to demanding of dowry, though CW-3 consoled her, on the same day at about 4.30 p.m., when nobody was present in her parents' house, she committed suicide by hanging to the wooden beam in her parents' house and her death had occurred within a span of seven years 7 from the date of her marriage due to physical as well as mental harassment.
6. In pursuance of the act of the accused and also on filing of the complaint by PW-1 who is none other than brother of the deceased who had initiated criminal prosecution against the accused by registering a case in Cr.No.373/2009 for the aforesaid offences, subsequent to registration of the crime, the jurisdictional police proceeded with the case for investigation by holding inquest over the deadbody of Manjula in presence of Tahasildhar/Executive Magistrate, during inquest, Tahasildhar had recorded the statement of relatives of the deceased.
7. PW-31 C. Jagadeesh who is PSI and also Investigating Officer in part recorded the FIR as per Ex- P34 and also held inquest over the deadbody of Manjula and issued report as per Ex-P36 with his signature. 8
8. Subsequent to holding inquest over dead body of Manjula, dead body was sent to Doctor to conduct post- mortem examination. Accordingly, PW-25 Dr. T.N. Chandrashekar held autopsy over the deadbody as per Ex-P30 which bears his signature. It is further stated that PW-32 C.G. Jagadeesh who is an IO in part went to the scene of offence and drew mahazar, wherein criminal law was set into motion by registering the case against the accused by filing an FIR as per Ex-P34.
9. PW-33 K.A. Nanaiah who is an I.O. completed the investigation by collecting material documents and so also secured inquest mahazar as per Ex-P14, whereby PWs-8 and 10 subscribed their signatures at Ex-P14(a) and Ex-P14(b). He recorded the statement of the witnesses during the course of investigation and after completion of investigation, IO laid the charge sheet against the accused before the committal court. 9 Subsequent to laying of the charge sheet against the accused, that the committal court had passed an order under section 209 Cr.P.C. by following the provisions of sections 207 and 208 Cr.P.C. and consequently case has been committed in the court of Sessions for trial. Subsequent to committing the case to the Court of Sessions for trial, whereby the accused have been secured by the sessions court, framed the charges against the accused for the offences punishable under sections 498A, 306, 304-B IPC, 1860, besides sections 3, 4 and 6 of Dowry Prohibition Act, 1961.
10. The accused did not plead guilty and claimed to be tried. Accordingly, the plea of the accused have been recorded as per law.
11. Subsequent to closure of the evidence on the part of the prosecution, incriminating statement as contemplated under section 313 Cr.P.C. has been 10 recorded and whereby the accused have denied the truth of the evidence of the prosecution. Subsequently, the accused have been called upon to adduce any defence evidence as contemplated under section 233 of Cr.P.C., but the accused did not come forward to adduce any defence evidence, accordingly it was recorded.
12. Subsequent to closure of evidence on the part of the prosecution and the defence having heard the arguments advanced by them and convincing the evidence of the prosecution inclusive of close scrutiny of evidence of PW-1 to PW-33 and so also several documents have been marked at Exs-P1 to P40, but mainly Ex-P(1), death note has been secured by PW-32 - C.G. Jagadeesh who is an IO in part. Ex-P2 is the complaint which is given by PW-1 who is none other than brother of the deceased Manjula. This complaint has been received by PW-31 C. Jagadeesh who is a PSI and also 11 who is an IO in part and he registered the FIR at Ex-P34. PW-1 to PW-7 are the material witnesses who are part of the prosecution, but PW-1 is none other than the brother of the deceased. PW-2 Puttathayamma is none other than mother of the deceased. PW-3 Huchaiah is also one of the brother of the deceased, PW-4 Belaganayaka is paternal uncle of the deceased. PW-7 Karinayaka who is none other than father of the deceased. PW-5 and PW-6 are also relatives of the deceased. PWs-1 to 7 are the relatives and also material witnesses on the part of the prosecution and their evidence has been closely scrutinized by the sessions court and consequently the sessions court has come to the conclusion that the prosecution has miserably failed to prove the guilt of the accused by facilitating the worthwhile evidence and even on appreciating the evidence, the sessions court has come to the conclusion that the evidence of the witnesses had discrepancies and also variations relating to the 12 contents at Ex-P1 - death note and so also contents at Ex-P2 - complaint filed by PW-1 who is her brother and so also the contents at Ex-P34 - FIR recorded by PW-31 being PSI, in overall evidence of the prosecution witnesses. Even on close scrutiny of the evidence, the sessions court has come to the conclusion that there are series of doubt and the theory put forth by the prosecution does not have any strong evidence, even in the contents relating to physical as well as mental harassment being extended by the accused to deceased Manjula and also demanding her to bring additional dowry from her parents' house, despite receipt of considerable dowry in terms of cash, in terms of gold jewellery inclusive of motor cycle. Even on close scrutiny and also on appreciation of evidence, as it was domain of the sessions Judge of marshalling of evidence of chaff from the grain, which is the main domain vested with the sessions Judge under section 3 of the Indian Evidence 13 Act, 1872 and so also section 134 of Indian Evidence Act relating to quality of evidence and also quantity of the evidence which shall be considered. But in the instant case, the prosecution even though has let in the evidence by examining PWs-1 to PW-33 and so also got marked several documents at Exs-P1 to P40 inclusive of contradictory statement of PW-2 at Ex-D1, but PW-2 who is none other than mother of the deceased Manjula, the over all evidence of the aforesaid material witness is found to be inconsistent and contradictory. Consequently, the sessions court had come to the conclusion that the prosecution did not facilitate worthwhile evidence and benefit of doubt in the evidence of the prosecution witnesses has been extended and consequently, acquitted the accused for the offences under sections 498A, 306, 304B IPC, 1860 inclusive of sections 3, 4 and 6 of Dowry Prohibition Act. It is this judgment, which is challenged under this appeal by urging various grounds. 14
13. Whereas, learned HCGP for appellant- State who has taken us through the evidence adduced by the prosecution and more so, the evidence of PW-2 and PW-7 who are parents of deceased Manjula and PW-3 brother of the deceased Manjula and PWs-4 and 5 who are the relatives of the deceased, but their evidence has not been appreciated by the sessions court in proper perspective. Therefore, in this appeal, it requires for intervention, if not intervened, certainly, results in miscarriage of justice. This is the first limb of argument advanced by learned HCGP for State by referring to the aforesaid evidence of witnesses on the part of the prosecution.
14. The second limb of argument that has been advanced by learned HCGP relates to Ex-P1 death note wherein the death note was left by the deceased - Manjula, whereby Manjula committed suicide by hanging to the wooden beam in her parents' house. But her 15 brother who had collected the death note did not produce the same immediately before the concerned authorities. The death note consisted of three to four sentences which is marked at Ex-P1, whereby she has stated that her husband and his family members are the cause of her death as she was tortured by the accused and she was not in a position to brief that act of harassment to her parents and because of the said harassment, she committed suicide. It is relevant to note that the contents at Ex-P1 death note was written by the deceased and she has narrated in her death note relating to some sort of mental cruelty in the hands of her husband and his family members, but the same has not been properly appreciated by the sessions court inclusive of the writings made by the deceased Manjula which are marked at Exs- P3 and P4. Therefore, under this appeal, it requires for intervention for consideration of the contents at Ex-P1 - death note and so also writings of the deceased at Exs-P3 16 and P4. It is further contended that the sessions court did not look into the provisions of section 106 of the Indian Evidence Act, 1872. As per the provisions of the said Act, a duty is cast upon the accused to explain the cause of death of the deceased which is an unnatural death, by giving cogent and convincing evidence. Therefore, initial burden even though is on the part of the prosecution to prove the guilt of the accused, the contents of the exhibited documents at Ex-P1 - death note and writings of the deceased at Ex-P3 and Ex-P4, has not been properly appreciated by the sessions court. Therefore, under this appeal, it requires for intervention, if not, certainly, gravamen of the complainant who has initiated criminal prosecution against the accused by narrating in his complaint at Ex-P2 insofar as death of his sister deceased - Manjula and also mental harassment meted out by her at the hands of her husband and if not, certainly results in miscarriage of justice, though incisive 17 cross examination is done by the defence counsel insofar as material witnesses PW-1 to PW-7, who are relatives of deceased - Manjula are concerned. On this premise, learned HCGP for State in this appeal is seeking intervention for consideration of all the grounds as urged by referring to the aforesaid evidence of the witnesses on the part of the prosecution and consequently, upon consideration of the grounds to set aside the acquittal judgment rendered by the sessions court in S.C.No.5/2011 and convict the accused for the offences punishable under sections 498A, 306, 304B r/w 34 IPC and so also the offences under sections 3, 4 and 6 of Dowry Prohibition Act, 1961.
15. On controverted argument advanced by learned HCGP for State, that the counsel for the respondents/accused in this appeal has taken us through the evidence of PW-1 who is the brother of deceased and 18 based upon his complaint, criminal law was set into motion by recording FIR as per Ex-P34 by PW-31, who is the PSI who received the complaint and thereafter the case has been taken up for investigation by him. PW-32
- C.G. Jagadeesh who is an Investigating Officer in part and PW-33 - K.N. Nanaiah, who is also an Investigating Officer in part, after completion of investigation have laid the charge sheet against the accused, before the committal court.
16. PW-2 Puttathyamma who is none other than mother of the deceased Manjula has given her evidence which has been marked at Ex-D1 which is termed as contradictory statement and her statement is contrary to the evidence of PW-1 who is none other than brother of the deceased and he has initiated criminal prosecution by filing a complaint at Ex-P2 which bears his signature and also signature of PW-31 being the PSI.
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17. Subsequent to registration of FIR, Ex-P3 which is a note book and Ex-P4 Geography practical note book have been secured during the course of investigation which contains the writings of deceased Manjula. These material documents have been appreciated by the sessions court though there are some inconsistencies and variations in the evidence of PW-1 Narayananayaka who is author of the complaint Ex-P2, PW-2 Puttathayamma and PW-7 Karinayaka who is none other than parents of the deceased, PW-5 Chikkamarinayaka who is paternal uncle of deceased Manjula. But the evidence of PWs-1 to 7 who are the material witnesses and also relatives of the deceased is found to be inconsistent relating to ingredients of section 498A IPC in respect of physical and mental harassment wherein the husband of deceased Manjula used to consume alcohol and used to beat her and also used to demand her to bring additional dowry from her parents' house in terms of cash, despite receipt 20 of dowry in terms of cash, gold jewellery and motor cycle. Ex-P1 is the death note which contains her writings inclusive of her writings at Ex-P3 and Ex-P4. On close scrutiny of her writings on the aforesaid exhibited documents, there appears to be some variations and as per section 45 of Indian Evidence Act, for the opinion of the court, the writings made by deceased Manjula at Ex- P1 must have been sent to handwriting expert to ascertain whether the writings made by the deceased is that of her and also must be compared with the writings at Exs-P3 and P4. But the entire case of the prosecution has been revolving around the evidence of PW-1 who is author of the complaint at Ex-P2 and also death note Ex- P1 which is secured by PW-32 who is an IO in part.
18. PW-23 viz., Swaminayaka resident of Someshwara village states that police came to the house of PW-7 and seized the note books of Manjula from her mother and 21 brother of deceased Manjula Sri Narayananayaka was also present. Police seized the notebook and mahazar was drawn. Ex-P5 is the seizure mahazar which bears the signature of Swaminayaka at Ex-P5(b). Ex-P3 and Ex- P4 notebooks were marked and also identified by him. PW.19 has identified his signatures in the mahazar - Ex- P8 and photos at Exs-P6 and P7. During investigation, IO has collected marriage invitation card at Ex-P9 and marriage photos at Ex-P10 and also conducted seizure mahazar as per Ex-P11 which bears the signature of PW- 22 at Ex-P11(b).
19. It is relevant to state that PW-7 who is none other than father of the deceased Manjula has given go-bye to version of his statement at Ex-P12 and PW-8 who is none other than relative of the deceased has also given go-bye to version of statement at Ex-P13. Their evidence is contradictory to the evidence of PW-2, PW-1 who has 22 filed a complaint at Ex-P2 and also contradictory to the contents in respect of writings of deceased Manjula at Ex- P1 death note and also her writings at Exs-P3 and P4. Same has been considered by the sessions court. Therefore, under this appeal it does not call for any interference, as to whether the sessions court has not appreciated the evidence in proper perspective by referring to the evidence of PW-1 to 8 and also having regard to the evidence of PW-9 who is an elderly person who has participated in the marriage talks of deceased Manjula, inclusive of evidence of PW-10 Rangaswamy who is also an elderly person who participated in the marriage talks of deceased Manjula and inclusive of evidence of PW-11 Shivannanayaka. But on cursory glance of the evidence of these witnesses, any prudent man can assess the ingredients of section 498A relating to physical as well as mental harassment, but Ex-P1 death note inclusive of Ex-P3 and P4 which are the 23 writings made by her in geography practical note book and also general notebook has not been subjected to Handwriting expert to ascertain whether it is the handwriting of deceased Manjula to prove the guilt of the accused, which appear as clouds of doubt.
20. PW-24 Arulkumar who is Taluka Executive Magistrate, Srirangapatna drew inquest over the deadbody of Manjula wherein deceased Manjula had died within a span of seven years from the date of her marriage. Subsequent to conducting inquest over the deadbody of Manjula, the deadbbody was sent to mortuary and accordingly, PW-25 Dr. T.N. Chandrashekar who conducted post-mortem over the deadbody and issued post-mortem report as per Ex-P30 which bears his signature at Ex-P30(a) and Ex-P30(b). Merely because several witnesses viz., PWs-1 to 33 were examined and several documents were marked at Ex-P1 to 40, unless 24 worthwhile evidence has been let in, on behalf of the prosecution, to prove the guilt of the accused beyond all reasonable doubt, it can't arrive for conviction. But in the instant case, the sessions court has appreciated the evidence of PWs-1 to 7 inclusive of evidence of PWs-8 and 9 who are the elderly persons who participated in the marriage talks relating to demand of dowry in terms of cash and also in terms of jewellary inclusive of motor cycle, but ingredients under section 498A IPC relating to physical as well as mental harassment has not been made out. Ex-P1 death note only reveals that deceased Manjula was unable to bear cruelty and unless the said writing would be subjected to examination by handwriting expert, it cannot be given credence. But in the instant case, the sessions court had rendered acquittal judgment based upon the evidence of PWs-1 to 7 inclusive of PWs-8 and PW-9 as well as other witnesses viz., PW-12 Nagappashetty, who is proprietor of jewellary shop, PW- 25 13 who has also signed Ex-P19 and PW-15 Smt.Lakshmamma who is neighbouring witness but PW-
16 Munna Lal who is a pawn broker and PW-18 Rajashetty who is a pot maker and PW-19 Hanumanthnayaka. Deceased Manjula had briefed to her parents relating to her husband accused No.1 who allegedly was extending physical and mental cruelty to her and demanding her to bring additional dowry from her parents' house after consuming alcohol and even his family members were not allowing her to sleep with her husband after her marriage. CW-4 who brought the deceased Manjula on 24.12.2009 at about 1.00 p.m. to her parents' house and she was consoled by CW-3 and on the same day, around 4.30 p.m., when nobody was present in her parents' house, she committed suicide by hanging to the wooden beam in the bathroom with means of rope which is marked at MO.4 and 5.
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21. M.O.1 is Hero Honda motorcycle, M.O.2 earnings/jumuki and M.O.3 finger ring containing three stones. These are the material objects which have been secured during the course of investigation. But on appreciation of evidence and even on close scrutiny of evidence of the witnesses, it is to be seen that the deceased has last her breath within a span of seven years from the date of her marriage because of the physical and mental harassment meted out to her by her husband accused No.1, accused No.2 who is her mother-in-law and accused No.3 who is sister of accused No.1. These are the evidence which have been appreciated by the sessions court. Therefore, under this appeal does not arise or call for interference by this Court. Therefore, learned counsel for respondent sought for dismissal of this appeal as preferred by the State by confirming the judgment of acquittal rendered by the sessions court in S.C.No.5/2011 dated 31st July 2015.
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22. It is in this context of the matter, considered the submissions made by learned HCGP for State so also counter made by learned counsel for the respondents/accused.
23. Further, it is necessary to refer to the evidence of PW.1 - Narayana. K who is none other than the brother of the deceased - Manjula. He has stated in his evidence that on 24.11.2008 they have performed the marriage of her sister - Manjula with accused No.1 as per the customs prevailing in their community. Prior to her marriage, the marriage talks were taken place in the house of his uncle, namely, Belaganayaka, wherein accused No.1 demanded dowry in a sum of Rs.1,00,000/-, one Herohonda motor- bike, 50 grams of gold, one wrist watch, finger rings, clothes and insisted to perform the marriage in choultry. In furtherance of the marriage talks, his parents i.e., father of PW.1 expressed his inability to fulfill the above 28 demand made by accused No.1. Thereafter, father of the deceased - Manjula agreed to give dowry in a sum of Rs.50,000/- only, one motorbike, 35 gms of gold, wrist watch and clothes and in addition to that father of the deceased agreed to perform the marriage of his daughter/deceased - Manjula with accused No.1 in a choultry. However, the demand of dowry initially made by accused No.1 as has been reduced to Rs.50,000/-. Thereafter, marriage negotiation of deceased - Manjula was completed. In the marriage talk, accused Nos.1 to 3 and one Mahesh who is the brother-in-law of accused No.1 and on behalf of deceased - Manjula, one Chikkamarinayaka, her uncle - Belaganayaka, one Shivannanayaka, Krishnanayaka, Mahadevanayaka, Rangaswamy and so also the parents of the deceased were all participated and the said marriage talk which was held in the house of Belaganayaka who is the uncle of the deceased - Manjula. Subsequent to her marriage 29 with accused No.1, deceased - Manjula had been to her matrimonial house and lead her happy matrimonial life. In the house of accused No.1, there consisting of his mother - accused No.2 and accused No.3 who is none other than the sister of accused No.1 namely, Anitha and she got married with one Mahesh who is none other than the brother-in-law of accused No.1 - Bairava and subsequent to her marriage, sister of accused No.1 i.e., accused No.3 has started to reside there only i.e., in her parents house and lead her marital life. Thereafter, accused Nos.1 to 3 started to harass the deceased - Manjula and they used to insist her to bring the dowry from her parents house. Deceased - Manjula being not able to tolerate the acts of accused, she committed suicide by hanging herself to the wooden beam with means of a rope which were marked as M.Os.4 and 5 in her parents house on 20.12.2009. This PW.1 has been subjected to cross-examination at length. In the cross- 30 examination, he has stated that deceased - Manjula has obtained a degree in Bachelor of Arts and more so, she had studied in Maharani college, at Mysuru city. But there was no compatibility between accused No.1 and his wife deceased - Manjula. On 20/12/2009, when she had been to her parents house, on that day at around 04:30 p.m., she had committed suicide by means of M.Os.4 and 5 to the wooden beam and at that time, nobody was present in her parents house. After some time, the same was noticed by PW.2 who is mother of the deceased. Thereafter, PW.1 along with one Prakash who is none other than the son of his uncle gone to police station and the said Prakash written the complaint as per Ex.P2 and that complaint has been received by PW.31 - P.Jagadeesh being the PSI and who is an Investigating Officer and conducted the investigation in part, more so, he has recorded the FIR as per Ex.P14.
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24. Ex.P1 is the death note contains the hand writing of deceased - Manjula and which also bears her signature and the same is marked as Ex.P1(A), so also the signature of PW.32 - P.Jagadeesh/PSI, who conducted the investigation in-part. Ex.P2 is the complaint and this complaint has been given by PW.1 who is none other than the brother of the deceased - Manjula, wherein he subscribes his signature and it also contains the signature of PW.31 - P.Jagadeesh/PSI. PW.31 during his investigation, secured Ex.P3 - Geography Note Book of deceased - Manjula and also Ex.P4 - General Note Book. The said documents were seized by drawing a mahazar in the presence of panch witnesses as per Ex.P5 - seizure mahazar, which bears the signature of PW.1 and also signature of PWs.23 and 30 as at Exs.P5(a), P5(b) and P5(c). Ex.P8 is the spot mahazar which bears the signature of PW.3 as per Ex.P8(a) so also the signatures of one Govindanayaka 32 and Hanumanthanayaka as at Ex.P8(b) and Ex.P8(c). Ex.P11 is the seizure mahazar which was conducted in the presence of the panch witnesses, which consist the signatures of PW.22 so also the signature of PW.32 - C.G.Jagadeesh/PSI and I.O. in part. During the investigation, Ex.P9 - marriage invitation card and Ex.P10
- marriage photo of the deceased - Manjula with accused No.1 were seized.
25. PW.10 - Rangaswamy @ Balu who is an elderly person, has subscribed his signature at Ex.P14 of the inquest mahazar drawn over the dead body of the deceased - Manjula and it also bears the signature of PW.8 as per Ex.P14(a). But PW.7 has disowned his statement as per Ex.P12, similarly, PW.8 also disowned his statement as per Ex.P13 inclusive of PW.11 as per Ex.P15. So also PW.12 as per Ex.P17. PW.13 who has also disowned his statement as per Ex.P20 and PW.18 33 who also disowned his statement as per Ex.P24. But in all seven witnesses have disowned their statement which was recorded by the Investigating Officer during the course of the investigation. But their evidence are contrary to the evidence of PW.1 - K. Narayana, who is the brother of the deceased - Manjula, PW.2 - Puttathayamma, who is none other than the mother of the deceased, PW.3 - Hucchaiah who is also one of the brother. PW.4 - Belaganayaka who is the paternal uncle of the deceased, PW.5 is Chikkamarinayaka who is a relative and PW.6 - Shivannanayaka who is also a relative of the deceased - Manjula and they were all have participated during the marriage talk of the deceased - Manjula and accused No.1. But PW.7 is the father of the deceased - Manjula. PW.8 - Krishnanayaka and PW.9 - Mahadevanayaka who are the elderly persons in the family of deceased - Manjula who have also participated 34 in the marriage talk of the deceased - Manjula with accused No.1.
26. PW.25 - Dr. T.N.Chandrashekar, who conducted autopsy over the dead body of the deceased and issued autopsy report as per Ex.P30 which bears his signature and also bears signature of PW.32 - C.G.Jagadish/Investigating officer.
27. PW.24 - Arun Kumar who is a Tahsildar and Taluk Executive Magistrate and he was also got examined on behalf of the prosecution who stated in his evidence that he has sent Ex.P14 - inquest mahazar drawn by him along with a covering letter as per Ex.P29 and Ex.P1 - death note to the police station, Mysuru (south) on 21.12.2009 through a police constable.
28. PW.31 - P. Jagadish - PSI, Mysuru south who is one of the investigating officer and he conducted part 35 of the investigation and he drew the inquest mahazar as per Ex.P36 which bears his signature and also a request letter at Ex.P37 which also bears the signature of PW.32. During the investigation, the accused No.1 has given voluntary statement as per Ex.38, the same has been recorded by PW.32 who is an investigation officer. Ex.P39 is the document which consists the detail about securing the loans in the bank. Ex.P40 is the pass book of Vijaya bank which bears the signature of PW.33. PW.32 - the investigating officer who has done the investigation in its entirety and laid the charge sheet against accused before the court having jurisdiction.
29. Where as, the learned counsel for the appellant who has taken us through the evidence of PW.6
- Shivanna Nayaka and in his evidence he has specifically stated that he know PWs.1 to 3 and they are the relatives of deceased - Manjula and similarly PW.5 to 11. 36 PW.4 - Belaga Nayaka and PW.7 - Karinayaka are the brothers. PW.6 - Shivanna Nayaka who is also of the same village of the complainant. The complainant is examined as PW.1 and PW.1 has stated that his sister's marriage was performed with accused No.1 prior to the incident as narrated in his complaint. But three years prior to the incident, the marriage talk was taken place in the house of PW.4 - Belaganayaka who is none other than the paternal uncle of the deceased. But PW.7 - Karinayaka is none other than the father of the deceased and as his house is very tiny, the marriage talk was held in the house of her uncle PW.4. PWs.5, 6, 7 and PW.4 being the elderly persons in the village, have participated during the marriage talk. But this witness evidence has been appreciated by the trial court. He further stated that as per Ex.P1 - death note due to the ill-treatment and harassment made by husband of the deceased - Manjula, 37 her mother-in-law and sister-in-law, deceased - Manjula committed suicide.
30. Further, the writing made by deceased - Manjula as per Ex.P1 so also her hand writing in Ex.P3 - Geography note book and Ex.P4 - General note book and these documents have not been sent to the hand writing expert to ascertain as to whether the hand writing as at Ex.P1 and Ex.P3 are the same hand writing made by deceased - Manjula. Therefore, it is relevant to refer to Section 45 of the Indian Evidence Act of 1872. It is the medical science which needs opinion of experts. For the purpose of arriving at a decision on the basis of opinion of experts, the court must take into consideration the difference between an 'expert witness' and 'ordinary witness'. The opinion must be based on a person having special skill or knowledge in medical science. It could be admitted or denied. Whether such our evidence could be 38 admitted or how much weight should be given thereto, lies within the domain of the court. The evidence of an expert should, however, be interpreted like any other evidence; as per the decision rendered by Hon'ble Supreme Court reported in AIR 2010 SC 1162 in the case of Malay Kumar Ganguly Vs. Sukumar Mukherjee. But in the instant case Ex.P1 - death note and also Geography note book - Ex.P3 and General note book - Ex.P4 were not sent by investigating officer to the hand writing expert to prove whether the hand writing containing in death note and geography note book are of the same person i.e., deceased - Manjula. This glaring contradiction also to be noticed. However, the trial court considered the evidence of PWs.1 to 7 and they are the relatives of deceased and more so, the witnesses who were facilitated by prosecution and who were subjected to examination, have given contradictory evidence and there are variations and there is 39 inconsistency in each of the evidence given by those witnesses. Therefore, the trial court had rightly arrived at a conclusion that the prosecution did not facilitate the worthwhile evidence to prove the contents of Ex.P1 - death note and so also the contents of Exs.P3 and P4. From the documents produced by the prosecution, it is difficult to arrive at a conclusion that due to the ill- treatment and dowry harassment made by accused No.1 and accused Nos.2 and 3, the deceased - Manjula committed suicide. In order to prove that the hand writing made by deceased - Manjula in Ex.P1 and Exs.P3 and P4, unless an expert examine the hand writing and give an opinion, the same cannot be considered, as the opinion of a hand writing expert given in evidence is no less fallible than any other expert opinion adduced in evidence with the result that such evidence has to be received with great caution, as held by Hon'ble Supreme 40 Court in a decision rendered in the case of Ram Narain Vs. State of Uttar Pradesh - AIR 1973 SC 2200.
31. In the instant case, it is relevant to refer to Section 73 of the Indian Evidence Act, 1872, for comparison of signature, writing or seal with others admitted or proved. As per Section 73 of the Act, the court is entitled to make comparison of disputed and admitted signature for just conclusion as a rule of prudence expert opinion can be obtained. Reasons necessary to reach conclusion. It was extensively addressed in the judgment rendered by the Hon'ble Apex Court in the case of Ashok Kumar Uttam Chand Shah Vs. Patel Mohmad Asmal Chanchad - AIR 1999 Guj
108.
32. In the instant case, Ex.P1 - death note and Ex.P3 - Geography note book and Ex.P4 - General note book are the vital documents. The aforesaid documents, 41 even though contains the hand writing of the deceased, but there is no evidence or proof is produced in order to prove that the hand writing of deceased - Manjula in Ex.P1 and Exs.P3 and P4 are her hand writing and the hand writing in Ex.P1 is tallying with hand writing made in Exs.P3 and P4. Further the prosecution has not proved this aspect and examined an expert in this regard. Further, it is for the prosecution to prove the guilt of the accused beyond all reasonable doubt.
33. Lastly, it requires to consider the scope of Section 134 of the Indian Evidence Act, 1872 relating to number of witnesses: No particular number of witnesses shall in any case be required for the proof of any fact. However, 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 was extensively addressed by the judgment rendered in the 42 case of State of Uttar Pradesh Vs. Kishanpal - 2008 (8) JT 650.
34. It is relevant to state that in the matter of appreciation of evidence of witnesses, it is not number of witnesses, but 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-honored, principle, that the 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 laid emphasis on value provided by each witness, rather than the multiplicity or plurality of witnesses. It is the quality and not quantity, which determines the adequacy of the evidence as has been provided under Section 134 of Indian Evidence Act 1872. Relating to this concept, the Hon'ble Supreme Court has 43 considered the issue and scope of the said provision in a decision rendered in the case of Laxmibai (Dead) through Lr's Vs. Bhagwantbura (Dead) through Lr's
- AIR 2013 SC 1204.
35. These are all the important provisions of the Indian Evidence Act 1872, and more so, it is the domain vested with the trial court for appreciating the evidence and also arrival of a conclusion by weighing the evidence not by counting the number of witnesses given to the concept of plurality. In the instant case, the prosecution has examined number of witnesses and also got marked several documents. PWs.1 to 7 are the relatives of deceased - Manjula and their evidence runs contrary to the evidence of PWs.31, 32 and 33 who are the official witness. PW.33/Investigating Officer who has completed the entire investigation and laid the charge sheet against the accused. Whereas, on cursory glance of evidence of 44 those witnesses and by considering the documents which are exhibited, we are of the opinion that the trial court had rightly come to the conclusion that the prosecution has miserably failed to prove the guilt of the accused beyond all reasonable doubt. Consequently, when the benefit of doubt arise, it should be accrued on the accused alone and it is the doctrine in criminal justice delivery system. Therefore, we are of the opinion that the appeal does not warrants any interference.
36. In view of the aforesaid reasons and discussions, we are of the opinion that the appeal deserves to be rejected. Accordingly, we proceed to following:
ORDER Appeal preferred by the State under Section 378(1) and (3) of the Code of Criminal Procedure, is hereby rejected. Consequently the judgment of acquittal 45 rendered by the trial court in S.C. No.05/2011 dated 31.7.2015 is hereby confirmed.
If any bail bonds has been executed by the accused the same shall be stand cancelled.
Sd/-
JUDGE Sd/-
JUDGE MN*/HJ