Karnataka High Court
The State Of Karnataka vs K B Ganesh on 25 February, 2022
Bench: K.Somashekar, P.N.Desai
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 25TH DAY OF FEBRUARY, 2022
PRESENT: R
THE HON'BLE MR.JUSTICE K.SOMASHEKAR
AND
THE HON'BLE MR. JUSTICE P.N.DESAI
CRIMINAL APPEAL NO.1041 OF 2016
BETWEEN:
THE STATE OF KARNATAKA
BY DEPUTY SUPERINTENDENT OF POLICE,
SOMVARAPETE SUB-DIVISION,
REPRESENTED BY STATE PUBLIC PROSECUTOR,
HIGH COURT BUILDING,
BENGALURU - 571 236.
...APPELLANT
(BY SRI. RAHUL RAI K., HCGP)
AND:
1. K.B. GANESH
S/O. BELLIAPPA @ RAJANNA,
AGED ABOUT 42 YEARS,
AGRICULTURIST,
THOLUR SHETTALLI VILLAGE,
SOMWARPET TALUK - 571 236.
2. SMT. LEELAVATHI @ LEELA
W/O. KUMARA,
2
AGED ABOUT 50 YEARS,
COOLIE, THOLUR SHETTALLI VILLAGE,
SOMWARPET TALUK - 571 236.
...RESPONDENTS
(BY SRI. D.P. PRASANNA, ADVOCATE FOR R.2;
VIDE ORDER DATED 28.01.2022, APPEAL AGAINST R.1
STANDS ABATED.)
THIS CRIMINAL APPEAL FILED UNDER SECTIONS
378(1) AND (3) OF CR.P.C., PRAYING TO GRANT LEAVE TO
APPEAL AGAINST THE JUDGMENT AND ORDER OF
ACQUITTAL DATED 01.03.2016 PASSED BY THE I
ADDITIONAL DISTRICT AND SESSIONS JUDGE, KODAGU,
AT MADIKERI IN S.C.NO.95/2010, THEREBY ACQUITTING
THE RESPONDENT/ACCUSED OF THE OFFENCES P/U/S
498-A, 304-B, 302 AND 201 OF IPC.
THIS CRIMINAL APPEAL COMING ON FOR HEARING
THIS DAY, K. SOMASHEKAR J., DELIVERED THE
FOLLOWING:
JUDGMENT
This appeal is directed against the judgment of acquittal rendered by the First Additional District and Sessions Judge, Kodagu / Madikeri in S.C.No.95/2010 dated 01.03.2016 for the offences punishable under Sections 498A, 304B, 302, 201 of Indian Penal Code, 1860.
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2. This appeal is filed seeking to set aside the acquittal judgment rendered by the trial Court by considering the grounds urged therein and to convict the accused for the aforesaid offences for which the charges were leveled.
3. Heard the learned HCGP for the State namely Sri.Rahul Rai K and so also learned counsel Sri.D.P.Prasanna for respondent No.2 who are present before the Court physically. Perused the judgment of acquittal rendered by the trial Court in S.C.No.95/2010 whereby consisting the evidence of PWs.1 to 17 and exhibited documents at Exs.P1 to 16.
4. Factual matrix of the appeal are as under:
The case of the prosecution is that on 13.05.2009 the daughter of the complainant namely Uma was given in marriage to the accused No.1 - K.B.Ganesh and their marriage was performed as per the customs prevailing in their society. During her 4 marriage, her parents gave dowry in terms of gold jewellery weighing 120 grams. After her marriage the deceased - Uma went to her marital home to lead her life. Accused No.1 - K.B Ganesh was in illicit relationship with accused No.2 - Smt.Leelavathi who was in house of the accused as maid/servant. Due to the illicit relationship in between accused No.1 and 2, the deceased - Uma was objecting accused No.1 for the said act, who is her husband. In that regard, the accused No.1 - K.B.Ganesh had given mental and physical harassment by insisting her to bring dowry from her parents house.
5. It is further stated in the theory of the prosecution that in between 10.02.2010 to 13.02.2010 accused No.1 along with accused No.2 with an intention to eliminate the deceased - Uma, they squeezed her neck and due to the said act deceased lost her breath. Subsequently, the dead 5 body of deceased was thrown to a pond situated in the estate of accused No.1 - K.B.Ganesh with an intention to cause disappearance of the evidence. In pursuance of the act of accused as alleged, PW.1 - K.T.Manjappa who is none other than father of the deceased - Uma filed a complaint before the jurisdictional police and police received the complaint at Ex.P1 and criminal law was set into motion by recording the FIR at Ex.P14.
6. Subsequently, the case has been taken up by the investigating agency and conducted the investigation thoroughly as PW.15 - M.Narayan who is the investigating officer and during the investigation collected material documents such as marriage invitation card at Ex.P2, Lagna Kundali at Ex.P3 and four photos at Ex.P4. In addition to that, he conducted seizure mahazar Ex.P6 in the presence of PW.2, spot mahazar at Ex.P7 in the presence of PW.3 6 whereby they have subscribed their signature inclusive of signature of PW.15. Inquest mahazar at Ex.P8 was conducted in the presence of PWs.17 and 5 and they have subscribed their signatures. Post mortem report was got marked at Ex.P10 which bears the signature of PW.10 and FSL report at Ex.P11 have been secured inclusive of sketch at Ex.P15 and Report at Ex.P16 and laid the charge sheet against the accused before the committal Court for the offences punishable under Sections 304B, 302, 201 of IPC, 1860.
7. Subsequently, the committal Magistrate passed an order under Section 209 of Cr.P.C by following the requisite mandatory provisions such as furnishing copies of the charge sheet for the purpose of reference. The case was committed to the Court of Sessions at Kodagu / Madikeri by initiating the trial 7 against the accused. Accordingly, the case in S.C.No.95/2010 came to be registered.
8. Subsequently, heard on charge by learned Public Prosecutor for the State and the defence counsel for the accused and framed the charges for the offences punishable under Sections 498A, 304B, 302, 201 read with Section 34 of IPC, 1860 and it was read over in the language known to them. But they did not plead guilty, but claimed to be tried. Plea of the accused has been recorded separately.
9. Subsequently, the prosecution let in evidence by subjecting to examination of PW.1 to 17 and also got marked several documents at Exs.P1 to 16 but no materials have been got marked in terms of material objects. Subsequent to the closure of the evidence on the part of the prosecution, the accused were examined under Section 313 of Cr.P.C for incriminating statements which appeared against 8 them in the evidence. But accused No.1 and 2 denied the truth of the evidence on the part of the prosecution adduced so far. Subsequent to recording incriminating statements as contemplated under the relevant provisions of Cr.P.C, accused were called upon to enter into defence evidence as contemplated under Section 233 of Cr.P.C. But Accused did not come forward to adduce any defence evidence.
10. Subsequent to 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 counsel for the accused. On close scrutiny of the evidence and so also on analysing the evidence let in by the prosecution such as PWs.1 to 17 and so also documents at Exs.P1 to 16 and having been convinced that the prosecution did not facilitate worthwhile evidence to prove the guilt of the accused, the trial 9 Court rendered acquittal judgment for the offences punishable under Sections 498A, 304B, 302, 201 of IPC, 1860. The said judgment is under challenge in this appeal by urging various grounds.
11. Learned High Court Government Pleader namely Sri. Rahul Rai K., has taken us through the evidence of PWs.1 to 17 and so also several documents got it marked wherein the trial Court has rendered an acquittal judgment, which is contrary to the oral evidence adduced by the prosecution and so also the documentary evidence in terms of the exhibited documents on record. Both the accused have committed the murder of the deceased Uma by compressing her neck with an intention to eliminate her. Accused No.1- K.B.Ganesh and accused No.2, who is a maid servant were having some illicit relationship. On this premise the learned High Court Government Pleader is seeking to set aside the 10 acquittal judgment on re-appreciation of the evidence and so also, material documents, wherein the trial Court has not properly appreciated the evidence even though positive evidence has been adduced by the prosecution to convict the accused for the offences charged against them. But the Trial Court has given more importance to some sort of minor discrepancies which arose in the evidence of the prosecution in the examination-in-chief but given more credentiality to the cross-examination part and relying upon some technicalities and rendered acquittal judgment on the ground of benefit of doubt and the same has been extended to the accused by acquitting them and it is not just and proper.
12. The second limb of the argument that has been advanced by referring to the evidence of PW.1, who is none other than the father of deceased Uma and PW.2 who is none other than the brother of the 11 deceased and so also PWs.8 and 9 being the sisters of deceased Uma. They have been subjected to examination on the part of the prosecution and they have categorically stated in their evidence which is in conformity with the statements made by them, which is recorded by the Investigation Officer during the course of the investigation and more so, they have stated in their evidence in respect of the marriage of deceased Uma with accused No.1- K.B.Ganesh and subsequently, her husband i.e., accused No.1- K.B.Ganesha developed some sort of illicit relationship with accused No.2 being a maid servant, but for that illicit relationship, the deceased was raising her objections and consequently both accused Nos.1 and 2 hatched conspiracy to eliminate the deceased as their way has to be cleared to continue the illicit relationship in between them. These grounds are urged by the learned HCGP for the State and even the 12 evidence as let in by the prosecution has been sufficient to prove the guilt of the accused and also adequate for convicting the accused for the offences punishable under Section 498A of IPC relating to physical as well as mental harassment which has been extended by accused No.1-K.B.Ganesha and also causing harassment by accused No.2 as she being the maid servant in the house of the deceased as well as in the house of accused No.1. But the trial Court ignored all these evidence while rendering the acquittal judgment, which has resulted in substantial miscarriage of justice.
13. Lastly, the learned HCGP has taken us through the evidence of PW.1 and the evidence of PW.6 being an independent witness, but PW.1 is an author of the complaint at Ex.P1 and they have stated in their evidence that both accused Nos.1 and 2 as according to their meeting of mind and also 13 according to their intention that they have eliminated the deceased - Uma by compressing her neck on the fateful day in between 10.02.2010 and 13.02.2010 that the offence is alleged to have been committed by them i.e., accused Nos.1 and 2, but the trial Court has failed to appreciate the evidence of the prosecution in a proper perspective. Therefore, in this appeal, it requires to re-appreciate the evidence whereby the Trial Court has misdirected to arrive at a proper conclusion and has acquitted the accused for offences under Sections 498A, 304B, 302 and 201 of Indian Penal Code, 1860. On all these premises, the learned High Court Government Pleader for the State submitting stoutly and seeking consideration of the grounds urged in this appeal and consequently, to set aside the acquittal judgment rendered by the trial Court in S.C. No.95/2010 dated 01.03.2016 and to 14 convict the accused for the offences which are charged against them.
14. Learned counsel Sri D.P.Prasanna for respondent No.2/accused who is present before the Court physically has countered the arguments advanced by the learned High Court Government Pleader for the State and contends that accused No.2
- Smt.Leelavathi @ Leela was by avocation a maid servant in the house of accused No.1 - K.B.Ganesh who is none other than the husband of deceased Uma, but there is no direct overt act attributed against this accused and more so, this accused is not at all responsible to cause the death of the deceased even in respect of offences under Sections 498A and 304B of Indian Penal Code, 1860 relating to dowry death and even diluting the offences under Section 302 of Indian Penal Code, 1860 inclusive of 201 of Indian Penal Code for causing disappearance of the evidence 15 in order to screening from the legal punishment. On these premise the learned counsel for respondent No.2/accused No.2 has taken us through the role made by this accused and so also the role relating to accused No.1. But, accused No.1-K.B.Ganesh has died during the pendency of the proceedings i.e. this appeal proceeding and therefore the case against him stood abated. But the entire case rests upon the circumstantial evidence. There is no eye witness to the incident. More so, there is no chain of link of circumstances strongly to prove the guilt of the accused. But deceased Uma is none other than the wife of accused No.1-K.B.Ganesh and taken the contention that she was suffering from some sort of epilepsy and for that reason only she herself fell into the pond and unable to bear the pain at the time of epilepsy attack and died. This is the main ground urged by the learned counsel for respondent 16 No.2/accused No.2 and even narrating the written arguments that has been submitted in S.C.No.95/2010. However, on carefully going through the written arguments submitted by the defence counsel and also the role of each one of the accused and the main role of accused No.2, it is seen that PW.1 and PW.2 though being the parents of the deceased, no evidence has been let in on the part of the prosecution relating to harassment for dowry made by accused No.1 - K.B.Ganesh who is none other than the husband of the deceased. If really dowry harassment has been made by accused No.1- K.B.Ganesh, PW.6 who has been subjected to examination no cross-examination has been done and nothing has been elicited from him to prove the guilt of the accused. Consequently, no worth while evidence has been let in by the prosecution to prove the guilt against the accused. But, the version is 17 within the purview of hearsay evidence on the part of the prosecution. But, PW.2 who has been subjected to examination and even stood for cross-examination has admitted in his evidence that he has not stated before the police in respect of causing dowry harassment by accused No.1 - K.B.Ganesh and extending cruelty to the deceased. In the absence of the strong evidence in terms of a statement, then the version regarding dowry harassment caused by accused No.1 - Ganesh to deceased Uma is nothing but far from truth of the allegations.
15. The second limb of the arguments have been advanced stoutly relating to proving the guilt of the accused that accused No.1 and 2 have compressed the neck of the deceased and caused her death and it is in terms of eliminating the deceased and thereafter the dead body has been carried and thrown into the pond which was situated in the estate of accused No.1 18
- K.B.Ganesh. But there is no direct evidence available on the part of the prosecution to prove the offence under Section 498A of Indian Penal Code and even dowry harassment and cause of death for the offence under Section 304B of Indian Penal Code and even the offence under Section 302 of Indian Penal Code for murder and so also disappearance of the evidence of the prosecution witnesses. These are all the evidence that has been considered and also observed by the trial Court meticulously and has arrived at the conclusion that the prosecution did not prove the guilt of the accused that the accused have caused the death of the deceased and more so with the help of accused No.2 that accused No.1- K.B.Ganesh has committed the murder of his wife as there was some illicit relationship in between accused No.1 and accused No.2-Smt. Leelavathi @ Leela by avocation as a maid servant in their house. 19
16. The prosecution has let in evidence by securing several witnesses but, PW.2 has turned hostile and his evidence will not help or assist the prosecution to any extent even as regards the mahazar where the dead body of the deceased was floating in the pond situated in the estate of accused No.1. This version is also not sufficient to connect accused Nos.1 and 2 that caused the death of the deceased or her fall into the pond or even eliminating her by compressing her neck. In so far as the evidence of PW.3 relating to drew the mahazar in her presence who is a cousin sister of the deceased but there is no element of evidence of PW.3. When PW.4 and PW.5 let in the evidence and inquest mahazar has been held over the dead body of the deceased as per Ex.P8 in the presence of PW.17 being a responsible Taluk Executive Magistrate and thereby subscribing the signature of PW.5, but PW.17 and PW.5 did not 20 withstood the fulcrum of the inquest mahazar at Ex.P8 conducted. PW.7 has stood for cross-examination and has admitted that he came to know through the villagers regarding elimination of Uma who is none other than the wife of accused No.1-K.B.Ganesh and threw her dead body into the pond situated in the estate of accused No.1. Even the evidence of PW.7 namely K.S. Paramesh is not helping or assisting the prosecution version.
17. PW-8 is the sister of the deceased who is a hearsay witness and there is no availment of her evidence on the part of the prosecution, though being an interested witness.
18. PW.9 who is also one of the sisters of the deceased and her evidence is also not availment on the part of the prosecution and more so both PW.8 and PW.9 being the sisters and also having some 21 interest relating to the death of their sister namely Uma.
19. PW.13 being the Medical Officer, Dr.Venkatesh who conducted autopsy over the dead body and issued the Post-Mortem Report and also subjected to examination on the part of the prosecution. Even during conducting autopsy on the dead body, he did not notice any fatal injuries on the person of the deceased but he has unequivocally stated in his evidence that he is unable to give reasons for cause of the death of the deceased. Even receiving the FSL report at Ex.P11, he was unable to give the cause of the death of the deceased - Uma, but the entire case rests upon circumstantial evidence and even the medical evidence that is the post- mortem report issued by PW.13 and he has admitted in his evidence that if a person suffers with epilepsy and also attacked by epilepsy, it could be possible to 22 come out of the tank at the time of fetching the water and might be fell into the pond. The features narrated by the doctor has been taken into consideration by the trial Court while rendering the acquittal judgment and the version of PW-13 goes against the prosecution theory and to disagree with the prosecution case that both accused No.1 - K.B.Ganesh and accused No.2 - Leelavathi @ Leela being maid servant, compressed the neck of the deceased-Uma and committed her murder.
20. Lastly, the counsel submits by referring to the evidence of PW.15 being an Investigating Officer who has conducted the entire investigation by following the mandatory provisions of Section 173(2) of Cr.P.C. and he received the inquest mahazar from PW.17 being the Tahsildar who conducted inquest over the dead body of Uma in the presence of the panch witnesses and post-mortem report from PW.13 23 being a Medical Officer and recording the statement of witnesses relating to the allegations made in the complaint at Ex.P.1 and this complaint has been filed by K.T.Manjappa who is none other than the father of the deceased-Uma. But as already stated that several witnesses have been examined including the sister of the deceased, but they could not withstand by supporting any independent witnesses and more so, all the evidence of the aforesaid witnesses are found to be inconsistent with each other. Even the role made by accused No.2-Leelavathi @ Leela by avocation as a maid servant in the house of the deceased-Uma who developed an illicit relationship with accused No.1-K.B.Ganesh and as regards the fact that the deceased was raising some objections and thereafter both the accused by meeting of their mind and eliminating the deceased is the theory of the prosecution, but there is no strong evidence or 24 acceptable evidence relating to the role of accused No.2 in assistance with accused No.1 to eliminate the deceased as there was some illicit relationship in between them. Even on considering the evidence facilitated by the prosecution, it is seen that the prosecution has utterly failed to bring out the guilt of the accused that accused No.1- K.B.Ganesh and accused No.2-Leelavati @ Leela had an illicit relationship which was the cause for the deceased to become depressed. Even there is no evidence as regards extending dowry harassment in terms of physical as well as mentally to the deceased and so also both the accused Nos.1 and 2 have according to their meeting of minds, by compressing the neck of the deceased to eliminate her and thereafter thrown her dead body into the pond situated in the estate of accused No.1 to cause disappearance of evidence in order to screen from legal punishment. These are all 25 the observations made by the trial Court while rendering an acquittal judgment by even consideration of the citations facilitated by the prosecution which has been stated in para No.27 of the impugned judgment of acquittal rendered by the trial Court. On all these premise learned counsel for respondent No.2/accused No.2 emphatically submits in this appeal preferred by the State that the judgment of acquittal rendered by the trial Court does not arise for intervention. Consequently, he prays that the appeal be dismissed as being devoid of merits.
21. In the light of the stout contentions made by the learned High Court Government Pleader for the State by referring the evidence of PW.1 and also the allegations made in the complaint at Ex.P.1 and so also the fulcrum of the seizure mahazar at Ex.P.6 conducted by PW.15 in the presence of PW.2 - D.S.Basavaraju and so also the fulcrum of the spot 26 mahazar at Ex.P.7 conducted by PW.15 in the presence of PW.3-H.M. Lokesha and so also the statement of PW.12 inclusive of the post-mortem report at Ex.P.10 which bears the signature of PW-10 at Ex.P10(a), signature of the Assistant Doctor at Ex.P10(b) and the relevant portion of the PM report at Exhibit P10(c). These are all the evidence that have been referred by the learned High Court Government Pleader for the State by referring to the allegations made in the complaint at Ex.P1 and so also the fulcrum of the facts in the aforesaid mahazar which are in conformity with the prosecution case and so also in conformity with the grounds as urged in this appeal seeking intervention, but does not hold any substance for intervention.
22. As already stated the learned counsel for respondent No.2 has stoutly countered to the arguments advanced by the learned High Court 27 Government Pleader for the respondent - State. But accused No.2 by avocation was a maid servant in the house of accused No.1- K.B.Ganesh and deceased Uma was his wife. But accused No.2 by avocation was a maid servant in their house and she had to do the work as according to their instructions. But in the instant case, the criminal law was set into motion based upon a complaint made by P.W.1-Manjappa K.T. as per Ex.P.1 who is none other than the father of the deceased. But Section 498-A of IPC is in respect of physical as well as mental harassment and this sort of harassment was neither extended by accused No.1- K.B.Ganesh nor even extended by accused No.2-Smt. Leelavati @ Leela, it cannot be a truthful version. But accused No.2 was only a maid servant. Even taking into consideration the explanation (a) and explanation
(b) of Section 498A and even conjointly reading the contents, the question of physical and mental 28 harassment should have been meted out to the deceased by her husband and also the relatives of her husband. But accused No.2 is a maid servant and ingredients of Section 498A of IPC even extendable in between accused Nos.1 and 2 and even extendable for the offences under Section 304B of IPC but these offences have not been proved by the prosecution. It is against accused No.1- K.B.Ganesh who is none other than the husband of the deceased-Uma and there is no strong evidence that has been facilitated by the prosecution in so far as the main offences under Section 302 of Indian Penal Code, 1860 and consequently diluting the evidence of Section 201 of Indian Penal Code, 1860, relating to carrying the dead body of Uma and having thrown into the pond situated in the estate of accused No.1- K.B.Ganesh. However, at a cursory glance of evidence of P.W.1 in respect of Ex.P.1 of the complaint and even the evidence of 29 P.Ws.7, 8 and 9 but even at a cursory glance of the entire evidence, even on close scrutiny, it does not give any credentiality or weightage for consideration on the part of the prosecution that accused Nos.1 and 2 as according to meeting of their mind had eliminated the deceased-Uma due to an illicit relationship developed in between accused No.1- K.B.Ganesh and Accused No.2-Smt.Leelavath @ Leela. Though the Criminal law was set into motion by recording FIR as per Ex.P.14, it bears the signature of P.W.14-Suresh Kumar being a PSI and whereby criminal law was set into motion but thereafter the case was taken up for investigation by P.W.15 being an Investigating Officer and who laid the charge sheet against the accused consisting the seizure mahazar, spot mahazar and inquest mahazar inclusive of Post mortem report Ex.P.10 and such other reports as FSL report at Ex.P.11. Even P.W.15 has been subjected to 30 examination on the part of the prosecution and even though he is an Investigating Officer, his evidence has not been supported by the evidence of the independent witnesses inclusive of the material witnesses of P.Ws.1 and 7, 8 and 10.
23. Respondent No.2 who is arraigned as accused No.2 and more so by avocation as a maid servant in the house of the deceased and even the deceased was raising an objection alleged to have noticed the illicit relationship developed and also continued in between accused No.1- K.B.Ganesh and accused No.2-Smt.Leelavathi @ Leela. But this theory finds place in the materials of the prosecution. Merely because it is averred that there was some kind of an illicit relationship between accused Nos.1 and 2, it cannot be taken into consideration unless there is strong evidence produced on the part of the prosecution to prove the guilt in order to secure 31 conviction as contended by the prosecution. But P.Ws.4 and 5 who are the panch witnesses relating to the inquest mahazar at Ex.P.8 which has been conducted. But these witnesses even though have been subjected to examination, their evidence is of no avail as they are formal witnesses. The responsible Taluka Executive Magistrate is examined as P.W.17 in respect of inquest mahazar which has been held as the deceased-Uma had died within a span of seven years from the date of her marriage and more so for the offences under Section 304-B of Indian Penal Code, 1860, relating to dowry death. Even at a cursory glance of the evidence of P.W.7, 8 and P.W.9, it is seen that nothing worth while has been elicited in the examination-in-chief done by the prosecution in the evidence of P.W.7, P.W.8 and P.W.9 inclusive of the evidence of P.W.10, P.W.11 and P.W.12. But these P.W.10 to P.W.12 are the neighbourers and they 32 have stated in their evidence that they came to know that the accused has eliminated the deceased and thrown the dead body into the pond of the estate of accused No.1- K.B.Ganesh but these witnesses have been treated hostile and thereafter has been subjected to incisive cross-examination by the prosecution. But nothing worthwhile has been elicited from the evidence of P.W.10, P.W.11 and P.W.12 to connect the accused to prove that the accused caused the death of the deceased and so also there was some illicit intimacy in between accused No.1- K.B.Ganesh and accused No.2-Smt.Leelavati @ Leela. Merely because an allegation is made in the theory of the prosecution and even the contents of the prosecution, but unless strong evidence is produced on behalf of the prosecution, the same cannot be given credentiality and it cannot be said that the prosecution 33 has proved the guilt of the accused beyond all reasonable doubt.
24. At a cursory glance of the evidence of the witnesses even having gone through the acquittal judgment rendered by the trial Court relating to the offence of 498A i.e. Physical as well as mental harassment alleged to have extended by accused No.1- K.B.Ganesh who is no other than the husband of the deceased-Uma and even dowry harassment of the offences under Section 304-B of IPC and harassment having been extended by accused No.1 - K.B.Ganesh to his wife Uma by insisting her to bring dowry from her parents house, the prosecution has not facilitated worthwhile evidence in respect of these two counts of an offences of 498-A and 304-B of IPC and consequently, the Trial Court has rendered acquittal judgment in view of the fact that the prosecution has failed to establish the guilt against the 34 aforesaid two sections relating to accused No.1 & accused No.2. Consequently, diluting the main offences of 302 of IPC even consideration of the evidence in respect of both accused No.1- K.B.Ganesh and accused No.2 - Smt Leelavati @ Leela but the role of accused No.2 does not find place on the part of the prosecution directly or even that she assisted accused No.1 to carry the dead body of Uma to the pond situated in the estate of accused No.1 so as to cause disappearance of evidence in order to screen from the legal punishment. But PW.1- K.T. Manjappa who received the telephonic call message regarding the floating of the dead body of his daughter Uma in the pond situated in the estate of accused No.1- K.B.Ganesh who is none other than his son-in-law. This version is also not helpful to connect the accused that accused are caused the death of the deceased and also eliminating the deceased as there was 35 meeting up of minds in between accused No.1 and accused No.2 to clear the way to continue the illicit relationship which alleged to have developed in between accused No.1 and accused No.2. Even on consideration of the evidence of PW.2 who is a brother of the deceased, it is seen that he did not know whether the deceased-Uma extended harassment by the accused but he had only heard from PW-1 Manjappa about the accused extending harassment to deceased. Even if the entire version of PW.2 is to be considered, it does not fully assist the case of the prosecution. He has given a statement and even the police have drawn the mahazar where the dead body of deceased Uma was floating in the pond situated in the estate of accused No.1 - K.B.Ganesh. Even this version is also not sufficient to connect the accused that both the accused Nos.1 and 2 had a intention to eliminate the deceased Uma by chocking her throat 36 that it is in terms of compressing her neck and committed murder and thereafter the dead body has been carried by them and thrown into the pond situated in the estate of accused No.1- K.B.Ganesh.
25. In the instant case, accused No.1 who died during the course of the pendency of this appeal, even appeal is nothing but a continuity of the proceedings and vide order dated 28.01.2022, appeal against respondent No.1/accused stood abated. At a cursory glance of the entire evidence and even in terms of re- appreciating the evidence, it cannot be said that the Trial Court was misdirected or even has misinterpreted the evidence on the part of the prosecution. Even taken to consideration the evidence, it is said that the prosecution has not been able to prove the guilt of the accused by facilitating worthwhile evidence in terms of positive, cogent and corroborative evidence to probabalise that the accused 37 were responsible for the death of the deceased Uma by extending physical as well as mental harassment meted to her by her husband accused No.1 and even with the assistance of accused No.2 that accused No.1 and 2 jointly compressed the neck of the deceased Uma and eliminated her and thereafter had carried the dead body of Uma and thrown it into a pond situated in the estate of the accused No.1. Unless, worth while evidence is facilitated on the part of the prosecution, it cannot arise for securing the conviction as contended by the prosecution. But the trial Court has considered the entire evidence on the part of the prosecution in a proper perspective and has rightly come to the conclusion and held that the prosecution has failed to prove the guilt of the accused beyond all reasonable doubt. If doubt arises in the mind of the court, that benefit of doubt ought to be extended to the accused alone, which is the doctrine of criminal justice delivery 38 system. Accordingly, the trial Court has rightly come to the conclusion by rendering an acquittal judgment.
26. However in the instant case, it is required to refer to the important concept of last seen theory. The last seen theory relating to accused No.1- K.B.Ganesh who is none other than the husband of the deceased - Uma and accused No.2 - Smt Leelavati @ Leela who was by avocation a maid servant in their house. Whether the last seen theory is to be taken into consideration in respect of illicit relationship in between them for even both of them together having committed heinous offences under Section 302 by compressing her neck intentionally to eliminate deceased-Uma to clear their way to continue their illicit relationship. But there is no strong evidence on the part of the prosecution and the same can be seen in the evidence itself. In the instant case, it is relevant to refer to the case of 1984(4) SCC 116 39 of Sharad Birdhi Chand Sarda vs. State of Maharashtra wherein the Hon'ble Supreme Court has extensively addressed the issues relating to the circumstantial evidence under the provisions of Evidence Act, 1872 and so also the concept of benefit of doubt that it is relevant to refer in a criminal trial benefit of doubt, when any fact alleged by the prosecution turns doubtful, the benefit of doubt should go to the accused and not the prosecution. It has been extensively addressed at para Nos.121 and 142.
27. In the same reliance, in a criminal trial relating to appreciation of evidence, testimony of a fact militating against norms and culture of Indian society ought to be rejected and this issue was also extensively addressed at Para Nos.62 and 87. Even in a criminal trial in so far as the witnesses status related witnesses, the testimony of the related witnesses should be scanned with a great caution and care. 40
28. Whereas in the same reliance at para No.162 it is held that "Moreover in M.G.Agarwal's case this Court while reiterating the principles enunciated in Hanumantha case wherein it observed thus:
" if the circumstances proved in the case are consistent either with the innocence of the accused or with his guilt then the accused is entitled to the benefit of doubt. "
In the same reliance, referred the case of Shankar Lal this Court reiterated the same view thus:
in SCC para Nos.31 and 34 page No.44
equivalent SCC (Crime) page 322
Legal principles are not magic
confrontations and their importance lies more in their application to a given set of facts than in their recitals in the judgment.
Further at Para No.163 it is held as under:
We then pass on to another important point which seems to have been completely missed by the High 41 Court. It is well settled that where on the evidence two possibilities are available or open, one which goes in favour of the prosecution and the other which benefits the accused, the accused is undoubtedly entitled to the benefit of doubt. In the case of Kaliram vs. State of Himachal Pradesh, this Court made the following observation reported in SCC (Crime) 1060:
Another golden thread which runs through the web of the administration of justice in Criminal cases is that if two views are possible on the evidence adduced in the case one pointing to the guilt of the accused and the other two is innocent the view which is favourable to the accused should be adopted. This principal has a special relevance in cases wherein the guilt of the accused is sought to be established by a circumstantial evidence. "
29. In the instant case, deceased - Uma who is no other than the wife of accused No.1- K.B.Ganesh and whereby she suffered with epilepsy. When there was an epilepsy in her sufferance quite natural we cannot expect of her mood, this can also be inferred in 42 entirety in the evidence of the prosecution and also in the totality of the circumstances of the cases that a prudent man can infer that even the death would cause but it is only a medical evidence which has to be established on the part of the prosecution. But in the entire case of the prosecution even at a cursory glance it can be said that the prosecution has failed to establish the guilt against the accused by facilitating the worthwhile evidence. Accordingly, the trial Court has rightly extended the benefit of doubt and rendered acquittal judgment.
30. Even on a close scrutiny of the evidence of the prosecution adduced so far and even the main evidence of PW.1 who is an author of the complaint at Ex.P1 and even the evidence of PW.2 who is the brother of the deceased inclusive of her sister PW.8 and PW.9 and so also the medical evidence relating to the autopsy over the dead body conducted and even 43 on re-appreciation of the evidence by referring the exhibited documents, nothing has been shown to prove that the trial Court was misdirected in acquitting the accused and also not given any credentiality to the prosecution witnesses, as contended by the prosecution. More so, there is no perversity or absurdity to say that there is no application of mind by the trial Court to consider the evidence. On an overall consideration of the evidence and on a totality of the circumstances, it is said that the testimony of the material evidence let in by the prosecution has been rightly considered by the trial Court and an acquittal judgment has been rendered. Therefore, we are of the opinion that the appeal deserves to be rejected as being devoid of merits. In terms of the aforesaid reasons and findings, we proceed to pass the following:
44
ORDER The appeal preferred by the appellant/State under Section 378 (1) and (3) of Cr.P.C is hereby rejected. Consequently, the acquittal judgment rendered by the trial Court in S.C.No.95/2010 dated 01.03.2016 is hereby confirmed.
Bail bonds, if any, executed by the accused shall stands cancelled.
Sd/-
JUDGE Sd/-
JUDGE RJ/HB