Karnataka High Court
State By Aldur Police vs H M Anand on 31 August, 2010
Equivalent citations: 2011 CRI. L. J. (NOC) 262 (KAR.), 2011 (1) AIR KAR R 100
Bench: V.G.Sabhahit, S.N.Satyanarayana
IN THE HIGH COURT OF KARNATAKA, BANGALORE
DATED THIS THE 31""'DAY OF Auqvsr 2010 Q
PRESENT
THE HONBLE MR. JUsTIcEW_v_G.s.¢q;5ivv--1;2g;411'VV: A
AND
THE HONBLE MR.JUsT1cAE'.-._s.N. SAT3TmVP:=RA§'A1§A
CRIMINAL APPEAi;vv.._1i\m315}29§jA1_'
BETWEEN:
STATE BY ALDUR POLIC}_P;v'G' A
(By Sri
AND:
1.
pg:
AGED ABoU"r':30"'Y1:ARs,'
s/0. MALLEGOWDA, "
A§.;R1cULTUR£_ST. '
V SHIVANINIA @ SHIVAKUMARI,
' ABOUT 28 YEARS,
v.V.f/A0;,£=1,;v1.,'Ab:AND.
* . HOUSE} WIIF5"E3.
BA$A%.(A"R' AI
AGED. ABOUT 35 YEARS.
Vs-10. MALLEGOVWDA.
v AQRICULTURIST.
PUSPHA
AGED ABOUT 25 YEARS.
W/ O. BASAVARAJ.
HOUSE WIFE.
...'r
APPELLANT
no
ALL RESIDENTS OF HALLIHIHLU
VILLAGE. CHIKMAGALUR TALUK.
... RESPONDENTS
[By M/S. S. SHANKARAPPA 81 ASSTS, ADVS..) THIS CRL. A. FILED U/S. 378(1) &..2__{3)* AGAINST THE JUDGEMENT DATED 25.11.2'o_oo.jPAsSED BY THE PRL., D1sT., AND S.J., cH1cKMAGALjuR"~~:N<«Sc. '~ No. 39/91, ACQUITTING THE RESPO?.IDEN'ITS/ 'ACCUSED; FOR THE OFFENCES PUNISHABLE:-U[.S. 2302,"--30~7;--.__3:2A,A R/W 34 {PC AND SEC. 4 OF' DE. Acfr'.-_ THIS APPEAL HAVING HEARDAND RESERVED FOR JUDGEMENT AND=.._ ' COMING ON FOR PRONOUNCEMENT OF' VAJEEDGEMENT 'vmts DAY SABHAHIT J, DELNERED THE VEo1:,t.,o~w1NG:
'i§his._ ..the State being aggrieved by the judgment a.cqt"zitta].:' by the Pr1.District 8.: Sessions Judggeg' G.h1ck;naga1'ar in S.C.No.29/1981 dated 25-11-2000 Sviwheieiii accused Nos.1 to 4 therein. have been acquitted .c_ornrnitted the offence punishable under Sections 302',.__ 3Q_'7; 1'/W 34 IPC and Section 4 of the Dowry ' -- V"Prohibiti0;n Act.
The essential facts of the case leading up to this Wg_if)p€a1 with reference to rank of the parties before the V Sessions Court, are as foiiows:
&€i.5='§ E It is the case of the prosecution that H M Somegowcia
-- P.W.1 has been residing in his house at Hailihithalu village, Chickmagaiur Taluk and H.K.Jayamma -- his wife. She is the daughter of Kr1'shnegowda":of~ viilage. In the year 1987-88 his brother _An'ai1Vda{a'cc:used_ No. I] married the sister of his wife ShiV:a1nrna(ac'cused It was agreed that dowry of 1§s'."2Q,0(5Ov/-2 W.oi1id8be»...giyen to accused No.1 and since it was___r_i1ot:_possibie togbayvvfidowry of Rs.20.000/--, it was ass"t1..rt:d'b_y :§::{s'r';aa§¢Wda that the said amount of Rs.2.0.,0O0/_»..would The three brothers -- ¥:€i"ie3 coinpi1ai.nantA,.Ahaiitfiaccused No.1} and Basavarajifacecusedi separately from the year 1989. come to the house of the corr1P1?1iI1ant'-.on .?3_1'V--.--1A¥*}:»99~1: and at about 9.00 p.m. on the «.._Asaid_j while theses-rnpiainant - P.W.1 was sitting in front Loft 'coffee seeds which had been put in front of thehouseexf'Ariandafaccused No.1) and Sh:£vamma(accused No.28) there and knocked the door and window of the 8' ''..f_=hous.e and asked him to pay the balance of Rs.2,000/~ and ' started abusing him and quareliing with him. At that time, it father--in--law Krishnegowda came out of the house and he wanted to go to answer call of nature and at that time, '£53 Ananda -- accused No.1 who was holding a katthi in his hand, assaulted Krishnegowda. The complainant"-.._ran towards the spot and tried to rescue his fat',her~i1:_--§lllaw" . that time, Shivamma ~« accused Nor? assa.u1'ted:'_hirn. with club on his head and at that time, hi;sAu¥;\frother.?* No.3 and accused No.4 M accused and assaulted his wife JayamniafiAccused assaulted with seegekatthi and with club. When he went to" No.3 and accused No.1 he sustained injury to and 2 assaulted him Mallegowda »-- P.W.6, Thimmeaowldla there and separated them. P.W.6 on hearing the h1_1es°and cries, went to the spot and "V._four{§;,{{§j,slinegowda"~---lying on the ground by the side of i also lying and he noticed oozing of the bloodltronli 't:.l"'i_e..e:'head of Krishnegowda and he went to the Chousel of H N Mahesh who owns a jeep and brought the ltjjeepllland "shifted them to the hospital and on the way to Krishnegowda died and Somegowda and Jayamrna " admitted to the hospital in Chickrnagalur. P.W.12 who was working as medical officer in M.G.Hospita1 W U1 Chickmagalur sent intimation to the Chickmagalur Town Police having found that Krishnegowda was de4a..d*~._and Somegowda and his wife Jayamma have been inj§£ired..;_' _ said intimation was received by P.W.24 who _wa.s as it Head Constable at Town Police, Chizckniagalzir. two intimations from P.W.12 i:.e .', oneA'intimationregarding receiving the dead body of one i'{Cri:s11negowda"a-re 70 years and another 1ntin1at:.o'n Injured persons by name Jayamrnaand he carried both the intimations Inspector _ Rudrachar ~«~; further action. The said P-25. On receiving Exs.P~24:vV"and. P.W.26 who was working as Sub--Inspector~ of .Po.1ic'e_ [Crime] at Town Police Station, C'hic.1§ri2aga1u.r, proceeued to M.G.Hospita1, Chickmagalur at and found injured person by name S0.ri1e'gowda'.V*V'e:andV enquired him and reduced his oral fstatemeIJtK..inVto writing and thereafter he read over the V' contents to Somegowda and obtained his signature as per
-ff.E3'.>A<A;'1?e'1"A [complaint]. Thereafter, he deputed pc No.54-5 'mtdagadish to guard the dead body and he returned to the ' police station at 4.30 a.m. and registered a case in Crime ":6 6 No.33/ 1991 for the offences punishable under Sections 324, 302 r/w 34 IPC and Sections 4 & 5 of the Dowry Prohibition Act and prepared the FIR as per Ex.P--23.
forwarded the FIR to the Court. of through 1>.w.23 W Gangadharaiah. As ijricicde-nt'--had.'taiteni' place within the jurisdiction _of_Aldur'.Po*1.ice, .:r;axis:1é;~1¥ea the case file to Aldur Policel'é.tat.ion - Shivegowda. P.W.28 Suhilnspector of Police at Aldur Police transferred complaint in o.ti_3 / gl 'flit.'-P~~.2_3}:fregistered by Town Police registered a case in Crime No.11,§:"i'oéi_' punishable under Sections 324, 307, 4 and 5 of the Dowry Prohibitiond*Act prepared the FIR {Ex.P--22) and '--v.Aforotard,ed it to CJNi';"'Chickmaga1ur. Thereafter he cleputed and Basavaraj -- C.W.42 to the place of incident _at'l}-Iaiilihithalu village. The Circle Inspector of Police came to Aldur Police Station and took up further A intrestigation. He deputed P.W.28 to conduct the inquest rnahazar on the dead body of lfiishnegowda and to record the statement of injured persons and also to seize the blood stained articles if any. On the same day, he left the police \.%/S station at about 11.15 pm. along with RC.-478 and 11.0.57 to the place of incident at Haiiihithalu village and W_en_t".near the house of Somegowda. At the place of _ P.W.25 - Gopal and C.W.42 -- Basavanrpaju who" guardingu the scene of incident. He deputed=._1one--of? the1Consta'o1_e altos' Chickmagalur to secure a photographer_ and he"seaifchec:*. for the accused in their housells'»»._:'an_uC1 W Chandrashekar, C.W. 9' in theirlpresence, he prepared a search 11.45 to 12.00 pm. four snaps of the scene the four photos are at ai'eMatV1*3x.P--3O[a]. He deputed Gopal .-- Basavaraju to trace and apprehend libel' acc~us'edl"p'ersons. On the same day, he "Vl'«.._Apre-paregdp the spoopanchanama of the scene of offence 'to 1.15 pm. in the presence of P.W.»¢§ -~ P.W.7 ~« Lakshrnana gowda and C.W.3 -
Gopaimna. The spot mahazar is at Ex.P--6. He seized Seege A -- i\/1.0.7, two blood stained lungies. bangle pieces, a ' Wooden club, a bioodstained mat and collected blood stained Wmud and sample mud in two different containers. He recorded the statements of C.W.3 -- Gopamma, C.W.-4» -- K1294.
Murthy and C.W.5--RaVi. P.W.28 came to the police station and handed over the Inquest mahazar«-Ex.P-11, se2';z.._1,1re mahazars Exs.P--9, 10 & 29 along with the statemeripof witnesses recorded with the report and also handed Q*1ere:ltl1e.V_"' * V' seized articles. He deputed P.W.fJ.5'~{}opa?%_'l V Basavaraju to search and app1'eh"end'.'_'lt'he laccusvedd accordingly, ShiVarnn1a--accused.Vl:\J'Q._2 and A'%_:accu'sed No.4 Were produced before "at"I:lalli.hithaA31l_dand he arrested them and interrogated; accused No.2 volunteered to produce and shown the place where she' cojn.ceav.led.__«--dt[hell Thereafter, he secursdiaf 17 -- Shivegowda as panch vvitnesses No.2 --« Shivamma led them to towards a paihwayat ifallihithalu Village and from the side of fence, sheremovecl a club and produced. He seized ldatheleiq:b'v.Vu11derfirnahazar -- EX.P-35. On the same day, he recorded eftatenients of the mtnesses and produced Cpaccused N052 and 4 and obtained remand order. He VA l..freceiv.ed ihe wound certificates of the injured persons i.e., Sornegowda and Jayarnrna as per EXs.P~17 and 18 from 'l5.lW.15. On 252-199} he apprehended accused Nos} & 3 and produced them before the Court and took them for W3 interrogation. Basavaraj M accused No.3 volunteered to produce seege katthi as per EXP-38. Thereafter, he went to Hallihithalu along with the accused and accused No.3Ti'ed them towards coffee estate of accused No.1 and from...t.'h»e':VV"
of a big rock which was covered with drieddieavesu, in he removed a seege katthi and produced ';::;;i_ the' sa"me_wa's seized under mahazar and _ it was also stivhjectied to d' P.F.No.24/1991 as per Ex.P«39;t.p:.V.V"'--iHe sent it to medical officer. M G Hospital tovstcoiiect the bloodsamples of Accused Nos.2 82: 3 for thetptirpose' examination and thereafter he .seI1--t_ thedseizepd tolthe Director. FSL and on report in respect of the bloodhoftfil (Ex.P---40]. He received the PM report andgopiniovn bdthedtdmedical officer at Exs.P--l9 and I~.1e}?re3cei'»red tlléwomlld certificates of accused Nos.1 and and 27. After investigation, he filed a chargei'shveetV't:a,§j;aVin_st the accused of having committed the ' 'offences. Vddpunishable under Sections 302. 307. 324 I'/W 34 "_li?C and Section 4 of the Dowry Prohibition Act. Thereafter has been committed to the Sessions Court for trial. "--«:iAl'l"the accused pleaded not guilty and claimed to be tried. H sustained injuries and further, accused Nos] and 3 and also P.Ws.1 & 2 had also sustained injuries. The ac.ci;:s:ed_ have examined the mother of accused No.2 and _ D.W.1, the brother of D.W.1 as D.W.2 and turthe.r§~.Vac'e:used "
No.2 got herself examined as andlzigot» documents -- Exs.D--l to 13-12. .
4. The learned Sessions the contentions of the parties, the for determination as under: 1 it 0 A if ' Whexthelr "=p'rose.c_ution proves heyorid all] reasonable doubt that'fAl' was making demand for V from Krishnegowda since t._he._'datc_of his marriage and eve-_n'~o_n* 30-1-1991 in the night about 9.00 p.m. in front of 'thehouse of P.W.1 and thereby Acommitted an offence under ~ .__ Section 4 of the Dowry " ---------- «Prohibition Act'?
----(2) Whether the prosecution further proves that on 30~1» 1991 at about 9.00 pm. all the accused having common intention to commit the murder of deceased Krishnegowda as he had not paid Rs.2,000/--
towards the balance of dowry amount and further, had the intention to commit murder of P.Ws.l & 2 and they have infact committed the kginurder of 12 Krishnegowda and caused hurt to P.Ws.l 8: 2'?
(3) What order'?
5. The learned Sessions Judge, V"
consideration of the oral and doczumenytavryfigeviderlce~.,_on_Tf record, by judgment dated 25-13; .~§2OOC«)"L_at1sweredb- iabligve"
points in the negative and of" the offences punishable r/w 34 IPC and Section 4 of the Feeling aggrieved by the is filed by the State. it V . V' V e.j\vei leeifhe'd': spp for the appellant and learneldl. respondents and reply arguments the leearried learner}---SPF submitted that the prosecution *.ipoI:i".?_n'otflive as there was dispute between the parties and the of the eye witnesses examined before the 'trial ¢ourt.._urith reference to the evidence of P.Ws.1 to 3 and A 'f_reAcov'eify of weapons on the basi.s of voluntary statement "by the accused. He submitted that the learned Sessions Judge has not properly appreciated the evidence adduced by the prosecution. The learned Sessions WK Judge by relying upon the statements of accused Nos.1 and 3, was not justified in holding that the prosecution has failed to bring home the guilt of the accused. Therefore, he submitted the order of acquittal calls for interference iirthis appeal.
8. The learned counsel for the respondents' that though the prosecution relied:iuApor1'.the PWs.3, 10. ll 82:16, they have not supportred thelvcalse of"
prosecution. The wife of Krishnegowda {deceased} examined as D.W.1 ar1d,r'.1jias de'polsedll"tAh_at there "vlras no demand of dowry and there of payment of balance tollaccused No.1. He further submitted?tha.t the :emtidenc.ell"of:l he-ye witnesses is inconsistent. not truthfulllland reliahl_e"a's rightly held by the learned '~sess:t§i~:9 sludge. ~ ..... .. » V = "9, '*.We_"~hav.e given careful consideration to the contentions the learned SPP and learned counsel for ' respondents.
it it Having regard to the contentions urged, the points would arise for our determination in this appeal are as l " ,url1der:
'tag {2} _ £3)' E4 Whether the finding of the trial Court that the prosecution has failed to prove beyond reasonable doubt that accused -- respondents herein_..___have committed the offence pugiishable under Sections 4 of Prohibition Act is justifie'd__"orcalls £5'; interference? ._ Whether findi'n_gl'o_fA'theatrial»Court the pros'eC.ution'v- has .bring--_"
home the'l"guiitVof thefaccusled for the o'i'fencesflfiuiiishfable under Section 302 in" of the common it or calls for S V ' interfe rcnce'?
if the finding of the trial Court 7-._that the prosecution has failed to «prove that the accused in furtherance of common intention, assaulted and cause murder of P.W. 1 attempted to Somegowda -- and thereby committed the under Section 307 offence IPC and that punishable accused Nos.1 ('S1 4 assaulted and caused injury to P.W.i and that accused Nos.3 8: 4 assaulted and caused injury to P.W.2 and thereby W 15 committed offence punishable under Section 324 EPC is justified or calls for interference?
(4) Whether the judgment it .
passed by the trial i'o'r., interference 313~D€5;11?ll"' V We answer the above points as under: '~ "
(1) to (3) iindi1ig"'of theitrial. co§_irt§is'v -j1.1stified= . ' and doesrlotu call ' for lilnterierence in . this it (4) tiheptrial Court does
-not j}cai1_ v_in"terference for the foilowing reasonssc Re: ll is the prosecution that Ananda ~ acc14;§seds.. Nol.1" son--in--law of Krishnegowda ~ the isllthe brother of P.W.1 -- complainant. It is the':"prosecution that he had married accused No.2 who the sister--in--Iaw of P.W.1 and at the time of rnarriage: Krishnegowda had agreed to give Rs.20,000/-- as however, R:-3.18,000/~» was paid but the balance of _,V_P:s.2,OOO/-- has not been paid and therefore accused No.1 demanded dowry from his father-in--law. The prosecution we 16 has reiied upon the evidence of P.Ws.1 81 2 and the accused are relying upon the evidence of D.Ws.i to 3.
12. P.W.1 ~ Somegowda is the brother of _
-« Ananda. He has deposed in his examination_--in~.chief'~about u the marriage of Ananda and the accused No.2 was married to ac'cu__sed No.1" in at the time of marriage, Krishnegowda had toddigive the dowry of Rs.20,000/-- and'_'i';.ad i,'s'.1Qo0/Jana agreed to pay the balance of
13. P.W.2;_"wifii:o:.:.is the deposed in her examination--€in-chief!' Shivamma -- accused No.2 to: No.1 in the year 1990 and her agreedto give Rs.20.000/-
as dowry toiZ3tnai1dVaV--_§A'aicc~used No.1 and Rs.i8,000/-- was and vd1V:)'"v§ance of Rs.2,000/»~ was not paid and ipostponed. D.W.1 who is the wife of Krishridegowda (deceased) has deposed in her exar11ination--in-- 'chief t1iat'gXnanda -- accused No.1 had not demanded any it her daughter Shivamrna -- accused No.2 was her "siadsgt daughter who is married to accused No.1 -- Ananda. and it accused No.1 - Ananda is the younger brother of Somegowda
-- P.W.1: Ananda did not demand dowry of Rs.20,000/« for W '17 the marriage of Shivamrna and her husband did not give any dowry to Ananda. Nothing has been elicited in examination to disbelieve her evidence. Simi_1a_riy'," . who is the brother of D.W.l has also statedi 'hat y accused " ' No.1 did not demand Rs.20,000/- and 110. §a1figL1nt"-wasj-apa;a_7 to accused No.1. iD.W.3 whosis..accusedNo.2e.'¥b' wife of accused No.1 has also inssherevidencevfgthat her husband did not any "vShe has stated in her evidence «it say that her husband - was paid and balance? of abovesaid material on record, it is clearuthat herself {D.W.3), her mother -- wife of _VKrishI1e_VgV0ixrV:fii.a A{D.VW..1) and brother of D.W.1 {D.W.2] ""~,.,.1/laVvé'\":Q}¢;a.A1~13,=.zstatedV'"ii"Ia1;hei1' evidence that accused No.1 M ._:not demand any dowry amount from therefore payment of dowry amount by "._sKrishne§o;Wda does not arise. It is clear from the material on A that defence of the accused that accused No.1 had i not demanded any dowry amount from his father«in~law 'aWV.tVKrishneg0wda has been clearly proved by the evidence of D.Ws.I to 3 and prosecution is unable to prove beyond kiafi 18 reasonable doubt that accused No.1 -- Ananda had demanded dowry of Rs.20,()00/~ and Rs.i8,000/~ wasdcpiaid_ as a dowry and Rs. 200/-- was yet to be paid. A' p that finding of the trial Court that the prosecution:':has--f.faj.1ed to prove that accused N 0.1 committed the..offeri.ce T under Section 4 & 5 of the Dowry Prohibition julstifiedi V and does not call for interferencelvlinfitliis appeal; Re: Point Nos.(2}. (33 3: V' V' l
15. These points areq:é0!l£'l1s;l they are interconnected avoid .. V It is that aCcusedNos.l to 4 in furthleranciedvgf assaulted and caused and thereby committed the offencefl'punish'able_f tinder Sections 302 of IPC and .. «. ._¢;Assa'ufted..nAa13._d attempted to cause murder of Somegowda -- Nos} 8: 2 caused injuries to P.W.2 and thereby cornijifiiltted the offence punishable under Sections '[307 IPC r/w 34 IPC. The prosecution is relying upon A r~l:thVelfe'Vidence of P.Ws.1 to 29 and Exs.P1 to 48 to bring home ' the guilt of the accused and it has also got marked M.Os.1 to On behalf of the accused, D.Ws.l to 8 have been examined. The learned SPP has taken us through the W 19 evidence adduced by the prosecution and the accused and contents of the documents got marked.
16. It is clear from the orai evidence addticedhy prosecution that P.Ws.1. 2 .3. 10 8: 16 are the incident. P.W.4is a pancha for the sei;4znujre"oi":I.\/Ai.i(.:).'1.V _ n the spot -- recovery made on thegbasis ofnvoiuntaryi.staternent given by accused No.2 as per for the rnahazar ~ Ex.P--8. prove that he went to the spot incident and found that Krist1ii:ego*\vda_. .. dayamma were injured and is the owner of the jeepvtvdand ' shifted them to the hospita1.d'*.P.W.i7 of Krishnegowda and he has been exaniined to pi'tove"'the contents of inquest rnahazar ai*so"a pancha to rnahazar Ex.P--11 but Tr'1o_t the case of the prosecution and has turned host.ti'i__c}: and nothing is elicited in his cross "examination to support the case of the prosecution. A Sirniiarly, P.W.9 is a circumstantial witness. P.W.1O is an "deye witness to the incident. P.W.11 is also an eye witness uflvvho went to the spot immediately after the incident. but has not supported the case of the prosecution. P.W-12 is the Wag Medical Officer. He has deposed in his examination«~ir1~chief about the injuries found on Jayamma and Somegowdai has issued the wound certificates as per Exs.P~ _ sent intimation to Town Police Station, vi"
P.W. 13 is the medical officer who has drawn} _ Accused Nos.1 & 2 to send for,'E'SL. P;w]i4 is _a*"~;.»mfnéss':';f¢'rl recovery made on the basis ofv.l_lVol_untaIy Rstatenjient of accused No.2 and hasl_'_.i'i.ot case of the prosecution and has turnyedl the medical officer who has2_"con.ducted n1ortein..._C§i§an'1ination on the dead body post mortem report as per 1'©,:.ilt.l1atldeath was due to injuries to the vital} organs: and fracture of Skull and furnished hisopliiiioii Ex.P--20. P.W.17 is a pancha for 'the ---- He has not supported the case of the 18 is the owner of the jeep who is already refetfred. l5'9 is a Police Constable who kept watch over lpthe dea.dlb_ody of Krishnegowda and produced the ornaments A the dead body of the deceased M.Os.10,1 1.16 to 22 before the Investigating Offieer. P.W.20 is the Police flonstable who took the weapons in the case for opinion of the medical officer --w P.W.l2. P.W.21 is the Police Constable 'Q53 elicited in the cross examination to disbelieve t.he evidence that Krishnegowcla sustained external and internal to vital organs like brain and fracture of skull H found on the deceased were sufficient in the or*di~na'1~'y course V it of nature to cause the death of a personLl;3'urtlr1er';'-inquestic.l which has been prepared by P;'VV_.29 a's__p'er lwoluld"
also show that injuries were on 'body of Krishnegowda. Further,:_.t'he protred that P.Ws.1 8: 2 also suffered officer has clearly spolffen 'abdut sustained by P.Ws. 1 & 2 as per by him -- lE3xs.P--i7 8:
18 and cross examination of P.W.12 that P.Ws.1 & 2 sustained injuries as narratedfin'rthelwound certificates. Therefore, ' V' 'the 'p,rosecution has'"been able to prove beyond reasonable lliristtnegoxvda suffered homicidal death and 8:: 2 lsufflered injuries.
1~.8.ll'Further, the prosecution in order to bring home A '~li:tl1.Aellg'L1;ilt of the accused that it was the accused who had ' committed murder of Krishnegowda and attempted to cause murder of P.W.1 - Somegowda and caused injury to P.W.2, W the prosecution has relied upon the evidence of eye witnesses -- P.Ws.1 to 3 in this case.
19. P.W.1 is the complainant in this reiterated the averments made in the complaint:... deposed that on the date of incident, about' accused No.1 -- Ananda, his wife Shivarrima carrienear mil-:1 V side of the house and knocked ltfiefidoors ofthe and asked Krishnegowda th'e_p.house"'to'Vv:pay the balance amount of informed that if the amountrpils' to he s'a1*n_eT_fwou1d be paid and that he should Arianda and Shivamma After all of them had taken _.went near the 'anga1a' in his house _wher'c..in"cofffeeA?seed*s had been heaped, at that time, V' _ Krisfinegotxzda cairie....rJut of the house to answer call of nature i;3«;.*1:Cl"',t?\?h'E>3'f1 -was going near the heap of coffee seeds, accusedlI\i*o;1lt'l1'came from his hind side and assaulted on his head ..wit_h.Vthe sickle and Krishnegowda fell on the ground.
" was' at a distance of 8 to 10 feet from the spot and when 'tried to apprehend accused No.1, immediately, his wife if Jayamma came from the house and at that time. his brother Basavaraj , his wife Pushpa and Shivamma -- wife of Amanda \_,"£<.;,-«"§.
came near the place where coffee seeds had been heaped and Shivamma and Pushpa -- accused Nos.2 81 4 assaulted Jayamma on her legs and hands, accused No.8 ;lE'5asaV_a'rajV"
assaulted Jayarnma on her head and when he. to ' save his wife, he was also assaulted on the right shoulder and on his left little pf:inge'1*. ' it he started shouting, accused threw the sickle therein and sickle both ran away. Shivamma fh the club and accused No.4 ran away from the spot about the shifting himseliflandllhits to jthejhosppitall and police coming to the hospitaland statement as per ExP~l. He has identified the Vwa-a'pon--._lu'sed by Basavaraju -- Seegekatti -- M.'(5llll1.:_---sHe».haslalso--~-identified his cloths at M.Os.2 8: 3 and also' 6 which he was wearing at the time of incident..."lH_e..i:has also identified the clubs used by accused Nos.2~ 4» ~ M.Os.8 & 9. He has also stated that he has " wfinessed the incident in the electric light. He witnessed the incident as he had put 100 candle electric bulb in front of the house where coffee seeds had been heaped. kij.-E hi) U':
20. P.W.2 -- Jayamrna is the wife of Somegowda ---- P.W.1. She has staed about reiationship among the parties_,_ She has further deposed that on 30-14991 Krishr§re'go«wd.a__': _ her father had come to her house at 12.00 his "
village. At about 6.00 p.n1.. accused a No.2 -- Shivamma along with Malleshagowda, 1¥{'t1d.degow;'d.ai and Manjeshagowda came and derritanded which was due to be paid and that would pay the amount after and they pacified accused ------ to his home. At about 8.30 Nos.1 and 2 came near sidetofythe house and abused Krishnegowda to pay the balance of dowry amount, She" was ..frighAt'ene'd. After some time. her husband
-.--A P.V\x/i'1"**w'as sitting in the hall of the house Wwhcrein "heaps of coffee seeds had been kept and she was in of the house. At that time, her son Ravi. a ".p€I'SO1'i~~W;I"i_O was doing domestic work -- Murthy and her r~.tsister>~i¢n-law -- Gopamrna were also present. Her father came out of the house to answer call of nature and at that time, utflaccused No.1 came from hind side of her father and assaulted him on his head with sickle and her father K9153 collapsed on account of having sustained bleeding injuries. Immediately, she went near her father and at that Basavaraju -- accused No.3 came from behind _ on her head with sickle and she also stistainedii~ble~edi_ng "
injuries and her sister Shivamma and,-.PuIshpa' .f~"--ac'cused,,.,.' Nos.2 and 4 assaulted her wit.h.»ciu_bs andvhlwhen came to rescue her, accused 'accused No.3 -- Basavaraju siclrle "and he sustained severe injuries his shoulder and nerve in" has further deposed that hospital and P.W.1 lodged éhe has identified the weapof1\\«--,¢1/lppéecil for cominissioning of the offence. and shephas..ide'i1tit'ied the articles found on the dead 1~:1cr """
it 2i';i«1§;Wi;3§{Murthy who was administered oath on 22- as ,h"e'1;w-£13 aged 17 years and was able to understand lfithe importance of oath, has deposed in the eXan1inatior1--in~ chieibthai, he has been working in the house of Somegowda M l since eight years and he is doing agricultural work for P.W.1. and he has further deposed that on the date of incident, himself, Somegowda ~-- P.W.1. Jayarnma -- P.W,2. V83 that time, P.W.1 ~ Sornegowda was in the kana and when Krishnegowda shouted having sustained injuries. Somegowda -- P.W.1 and Jayamma -- P.W.2 Krishnegowda and at that time, accused Nos.4_.& ' Jayamrna with clubs on her legs and Basavlarajiu No.3 assaulted her on her head.,_ legsflarit-i righ,t.--'l.t.side"olf shoulder. Jayamma also sustained 'bleedingeinjuijiesl. At that time, when Somegowda rescue his wife -- Jayamrna, Ananda ~»~ accus'ed_ Somegowda -- P.W. 1 with and on the head and Shivamma --
accusevdllltiolzlwith a club, Basavaraju , accused: 'No.3lVlV:S.ornegowda with a sickle and Pushpa - accused 'V--.No';éll'assaulted Somegowda with a club. 'l V' of thle'vinjuries, Somegowda and Jayamrna also 'spot and when they started shouting, Uddegowda, Manjegowda and others came thereand thereafter on seeing the Villagers, accused Nos.1 to V' towards their house and threw the sickle there itself. Shivamma took the club with her and Basavaraju took the sickle which he had used for commission of the offence with him and Pushpa threw the club there itself. Thereafter, tszgs injured were shifted to the hospital and he has identified the sickles and clubs -- i\/1.0s.l 8: 7, M.Os.8 & 9.
22. The above said evidence of P.Ws.1 to 3__has considered to find out as to whether the evid»enCe"~of*f.thesebV"
three eye witnesses P.Ws.1 to 3 reliable and brings home the gu ilt-of the .accused."u*d- AV .. if
23. It may be noted at theloutset is the brother of Amanda - accused Non ._Ba:s--ayaraj'uHwffvaccused No.3 and accused No.2 No. 1. and accused No.4 therefore, they are all inter«i'ela-téedihvh related as P.W.2 is the 'of"P;'i.V_._1_ 5&5' related to P.Ws.l es: 2. It may vyas working as agricultural cooliejjin the PA.'*N"for the last eight years as per his ' f"vevid'e.ncea._*-estated infthe"examination--in«chief and therefore, and 2 cannot be rejected only on the ground thatfiiliey are related to the deceased Krishnegowda '',and injured P.Ws.1 & 2 and the evidence of P.W.3 cannot i.:fa1sof""'be rejected on the ground that he is working as l agricultural coolie in the house of P.W.1 if their evidence is otherwise found to be truthful and reliable. However, their evidence is to be scrutinized carefully to find out whether the W59 30 evidence is truthful reliable to bring home the guilt of the accused.
24. it is elicited in the cross examination of his father died about 30 years hiszf"
mother died about 18 years :=__vagQ._fz death of his mother, all the5p-roperties'iverergin :nal1:';n.e"
of joint family and even now allfthe prop'ertifesV':are:§ in his name. It is further elficited is palupatti {memorandum of gpartitioii the said Palupatti was had come into force and after living separately as he was was not married and thereforevvlfhie' Was 'him and members of the family'. _ He has_V'mac':e suggestion that when Ananda was if W-ith'v~him, xhe'"wa's looking after the property that had share. It is further elicited in the cross examlinationeilitfhat the document was written on the stamp lkpaper palupatti was written on a white paper. Till 27~ Ananda was staying with him and was having food in 8 his house and marriage of Arianda was performed on 23--6-- 1988 and even after marriage. accused No.1 »» Amanda was living with his wife who is the sister of Jayamma -- wife of W the land - 5 acres 3 guntas to Basavaraju -~ accused No.3. He has denied a suggestion because he had to pay Rs.20,000/-- to accused No.1 and he had to give land measuring 5 acres 3 guntas to accused No.3. the_,re._:'w_'as_ enmity between him and accused Nos} & 3 _ brothers. It is further elicited thatJAnanda:ever{jafter'--heif started living separately along with his \j;rife:'and1 at drying the coffee seeds in the-'llC.oVurt3V/ardl' of tiled' P.W.1 and Murthy -- P.W.3 was in"th:e'houfse. He has denied the suggestiono_t'.1at*f_he;was~.n»ot'in the coffee kana at about 9.00 pm. 1tA..isV:._further --v"ir1 the cross examination lt¥:é\5t.Vhe'l:hlas_ before the police that at that time, Krishnegow'-da'stated_:tiiat~ if at all amount is to be paid, he would and..V1'1eA"sho'uld not make galata during the 'l V' He, has deniedthe suggestion that it is not stated in that Ananda assaulted Krishnegowda with siclvzleon 'i.g'i§,ht side of his head while Krishnegowda was l'V.returninvg'from coffee kana. He has also denied a suggestion ~f_'th.atl'he has not stated in his statement before the police that accused No.2 -W Shivamma and accused No.4 -- Pushpa if assaulted Jayamma -- his wife with clubs on her legs. hands and he was in patient for 20 days and his wife was inpatient W 33 for 20 days. He has also denied the suggestion that he has not stated before the police that himself and his wife were inpatient for 20 days. It is further elicited in the cross examination that E'.x.P--5 is the document regaiiding settlement of the property regarding payment of K it is further elicited in the cross examination» 3' himself, his wife and Krishnegowda were} hospital at Chickmagalur and h'ad_ covered" a dis»tanr:le 2 to 3 inns. in a jeep Knshnegowda succuln1i::>ed:':§to the injuries and died Uddegowda, Manjegowda who were were asked to inform into station and Malleshagowda {P.W.6] got. froinjthe' and went to the police station which is at aildis_tanc'e of,alo"out 5 kms. He has also denied a 3' lat thelrewa's no supply of electricity and that he llhlad incident. It is also elicited in the cross exa1nination't"hal: his statement was recorded as per Ex.P--1 30- i~.--ll99l and he has denied the suggestion that his A was recorded at 3.30 am. on 30~1--1991. He has *~7a1s;.9 denied the suggestion that after discussion. a false ulficomplaint. has been given at 3.30 a.m. as per Ex.P«~ 1. He has also denied the defence of the accused as above mentioned. W 34 It is also elicited in the cross examination that he does not know the injuries on accused Nos.1 & 3 and he hasto».not._p stated in the complaint about the said fact. He denied the suggestion that to save himself, his servant, a false case has been foistediagainstjthe accuse.d~.__ A'
25. It is elicited in the crossexamination of is the wife of P.W.l that there partition" her husband (P.W. 1] and his Noslvl.'&"n£v3 in the year 1979 and after was staying separately and their house. At the time off". was studying 9111 standardtand - P.W.l looked after accused Vx'No'.l ,--his marriage with her sister and their narneslwegre alsoprinted in the marriage invitation . Vof Aflanda and Shivarn"ma. Even after marriage, accused them and on 27-5-1990 he started residing setpearately with his wife and when he ieft their 'yhouse. husband had given a cheque for Rs./40,000/-- and A .,:tfw.Agtst"due to pay a sum of Rs.36.()OO/-. She has denied a 9 suggestion that her husband was due to pay Rs.36.OO0/-- 9' but has stated that her husband was due to pay Rs.20.000/ -- . She knows about the panchayat that took place on 1512-
"ti 35 1990. It is further elicited in her cross examination that her husband came out of the house and was sitting in the kana. She has denied the suggestion that her father .;. come out of the house to answer call of nature an_d"w"as:
near kana. Her father was aged about atdthdeed .« time of incident. She has denied suggestion .aged persons and children do not go out'V'VoiT_V't}:;eVV answer cafls of nature and they use oneddassault on the head of her father. Hey in the hosifital by the B$¥C:1:9u"é:: 'E3.A:5:fi;:-Vdandidaidshe does not remember as to she ddbgefodre the police that she personally assaudlting her father or not. Her father. ..--~When he sustained injuries. She has de'ni'edV_V'a.su.gge_stion that accused did not assauit-§'ier zshex"is""deposing falseiy. In her cross examination tee 2.:-'3§'19:9~--1. she has denied that she has ri1e.d.ev . V 8. ' stai;enIient.A "tier E3x.{)~3 that Ananda ' did .. 'ninth _as$au}t her. She did not see Vddwon and Basajkaraju. She'do'e$"'- as to how they sustained injuzy and she has not 'hefore the poiice about the injuries susiained by She has deified defence of the aoedsed which is We 36 suggested to her. It is further elicited in the cross examination that her father had gained consciousness -"and was stammering and was asking who had assauitert'1iipin.V.. She does not know as to at what time police were"ir:,fornied..V_$_' it through teiephone by Chandrasheiqai'; '~-She-_: ha:4s:Ade_nied.:'ta suggestion that in order to save her henson 7 1'7: and Murthy -- P.W.3 -- an agricultural cociie her house, that she is deposing faiseply; h f
26. It is clear frorr1V:d'the.'-- the cross examination of &:'2' case of the prosecution t_h--at~ for the co_rn_r]nissio'n of offence is that KrishnegoHvtrdai'v%.ras Rs..é;CVO0/-- towards the dowry amount vir1<1i.ch has at the time of marriage of accused _No.1a," 'the Vfa'cts"ve1ici.ted in the cross examination of =c1earlVy's'i'i'oW that there is partition of property accused Nos.1 8: 3. After partition, accused vxstarted residing separately and further, 'accused. 1 was aged about 9 years at the time of partition A staying in the house of P.W. 1. Further facts elicited ""."inV'§;he cross examination of P.Ws.1 «S: 2 referred to above '4"'.yttiou1d also prove. as we have already heid that prosecution has faiied to prove that Krishnegowda was due to Rs.2.000/--
W 37 to be paid to Amanda towards dowry amount which he had not paid during the marriage of Amanda and Shivamrnaiflonp the other hand that it was P.W.1 who was Rs.20.000/-- to Amanda -- accused No.1. 21 have admitted in their cross €XaH}i_11at:iOI1::.tl'1,,?:t't:'_fil1i31'€V.32iiti§;Vi' settlement regarding payment,'of__ thehamount P.W.1 was required to pay --
and the balance amount.Q"befo.rell'the1.._f3%¢1_.Of 1gg1_ PJW. 1. had not paid that which is admitted by and he has also not paid the accused No.1. as per the agreemelntlllahd thelclontents of which have not been and would clearly show that P.W.1_._wasfl"d1ieto pay*~"'fl2s.20,000/« to accused No.1. .1 1' '*The'rei:or,_e,, ciefencelof"t1'ie accused that P.W.1 was due to pay accused No.1 before 31~1-1991 as per the conditionslofsettlement and the said amount has not been lV._paid bgflhim is clearly proved. Further, it is also clear from ,,:fjl'theft'acts elicited in the cross examination of P.Ws.l 8»: 2 that though P.W.1 says that he witnessed the incident in the light of electric bulb which was on the coffee kana. Investigation officer has not collected any material regarding existence of W 38 the bulb at the place of incident and at that there was electricity supply during the time of incident and the.t:efo!re,j_ the facts elicited in the cross examination of _ clearly probabalise the defence of the accusedmaindi the"
evidence of P.Ws.} & 2 is not helpfuli__to ul:oine"the j of the accused. Further, it is clear irori: of P.Ws.1 8: 2 that though admittedfijtfljvaccusedlglosll had sustained injuries evidence of the prosecution itse1f,__in vietnof P.W.27 -- the doctor who EXS.P-26 & 27 pertaining neither in the complaint nor in flexamination»~in--chief he has spolct-snj i_nj'uries.~'sustained by accused Nos} 8:
3 nor. --eXp1ai'n'ed the.'--saidVi"njuries. Even P.W.2 has also not ' fstated' iriwthejexarnination-ir1--chief about the injuries found __or1_:the of":.accused Nos.1 St 3 and as to how they suAstair1ed."ir1j'uries. The facts elicited in the cross fiexamirzation of P.Ws.l 8: 2 would clearly show that though "«j"_th€?3i'""_1s:now that some injuries were sustained by accused l\l§os.1 & 3, they have not stated before the police about the said fact. Therefore, in the absence of proof of supply of electricity at the time of incident and the injuries found on 'fag 39 accused Nos.1 8: 3 which is proved by the prosecution itself by the evidence of P.W.2'7 -- the medical officer who has issued wound certificates in respect of accused Nosgl'*--,& 3.
have not been satisfactorily explained by the and therefore the defence of the accused that'l"therei.yVas supply of electricity at the time of'incid€~I1t-and' it was dark, there was rnistall{en:'*.identity_y. and if assaulted accused No.1. Apa§'i,p:.'fi=om the. pfactsfvelicited the cross examination of 1:_fand_ 2, omissions and improvements made as is;_"ciear7frorri'wI£2:sl§D~l to 3 and the evidence of 1>._\2v?;2s_«« 11;g§}eet'1getie'gI',io,fr1eei':.§.§2eu1c1 hold that the evide;icellfo£"tPt{Ws.fllfV nottruthful, reliable and cannot be made the lbasisl guilty of the accused. it is clear on close scrutiny "and appreciation of the evidence of P.W.3 it elicited'i.n------the cross examination of P.W.3 that he i at the time when accused Nos} 8: 2 came fiielar the kitchen in the hind side of the house. It is furtherelicited that Krishnegowda, Gopamma, Jayamma Somegowda were present in the kitchen. He was ffrightened when there was galata and he did not go out of 'lithe kitchen and he did not go near coffee kana from the kitchen. He has denied a statement being made to the effect '939 40 that when there was galata near the window of the kitchen, being frightened, he did not go near the coffee kana. He has denied that he has stated before the police as per }';§>:.D--4 that he was standing near the side of coffee kana as...h'e»_fwas frightened. It is further elicited in the that Krishnegowda, Somegowda _a.n,d__ Jayaniriiav "
injuries and he did not go out of the house a'rrd'w:as standii:;-jg in the J agali of the house and he did not go iaéax: themsiaotl of 2 incident and witness the incident. He did. go near the scene of incident to witness' the ;incid_e'nt;~.It is further elicited in the cross examinationv-that accused'.Nof.l*- also stored coffee and he was also sitting there keeping watch :o\.;'e_"rV_>fth,ef'i'*-coffee seeds. He has denied the defence offfthe" accvused which was suggested to him and it is fur_t11e_r.._ elicited "iri----his cross examination that he has not i the police as per EX.D--5 and [)--6 about the finjfiiries by P.Ws.1 8: 2 and accused Nos. 1 <3: 3. It is furtherv elicited in the cross examination that at about 1;f1*.-.00 p.m., police had come to the spot and police took him, f§GoNparnma and others and made enquiry and recorded their H statements. He has denied the suggestion that he has deposing falsely to help his employers P.Ws.1 & 2. "at 4 .1
27. It is clear on close scrutiny and appreciation of evidence of P.W.3 that his evidence is also not truthful. reliable and facts elicited in the cross exarnination-___that accused No.1 was also sitting in the coffee kana stored his coffee seeds belonging to him "
who also stored coffee seeds in the"'C.c-aurtyardvylofliiisl h_o_use V was also sitting there and furthernfgit "also"clea.rv facts elicited in the cross exatniiriationttliat he lhasedeinicd the» V statement made before theAy.poll'1c.e"'as per=Exs,l)~5 8: 6 regarding the manner in & 3 sustained injuries and th_erefore;hi's' 'evidence dit)e.sl"'?not explain as to how a"ccuVsed.tV5.Nosfl sustained injuries in the same incident, Further; facts' elicited in the cross examination would clearly Vshow. thatlrie was standing in the J agali of the v _ andbeingfrightened, he did not even go near the spot iincild-e_nt_anyd* see as to how the incident had occurred. He didllnotl g./§;Vo'j_'riear the scene of offence though he is the emtiloyee of P,Ws.i <31 2 and his employers and their father A being assaulted by the accused. Therefore. the facts elicited in the cross examination of P.W.3 Wouid show that his evidence also probabilises the defence of the accused and the fact that he has not witnessed the incident and his W evidence is not helpful to the prosecution in proving the incident as alleged by it and therefore, it is clear on close scrutiny and appreciation of evidence of P.Ws.1 to ,'3~.._that their evidence is not at all helpful to the p1'oseciVit1-o:1i....l't0 support the case of the prosecution.
28. The prosecution is also itelyingl' upon the ijecovery.. made on the basis of voluntary_4'"'staternen_t given 'accused "
No.2. It is clear fron3.. the ve*.rirlence»..p'of l5f\'?Js_,l 2 that accused No.1 threw the_§the1;e:i:self_ and sickle has been recove1'ed_'from the..:'t»iume of the spot panchianarnali V%jne_club ha._-swalso been recovered under mahazar --. EXP-V6;land'-._even assuming that panchas exarr1_inedl'"fnr' .s_u--.pp'orti;ig the evidence of P.W.29 ~ V' ._ Investig:at1i1g Offi'cer------regarding recovery made on the basis of given by accused No.1 on 25--2--1991, it cannot bevtbellieved as according to the evidence of P.Ws.1 <3:
2 sicklveiwas thrown. at the spot and even assuming that A panchas have not supported the said recovery and even assuming that weapon has been seized and blood stained V Wclothes found on the body of Krishnegowda and clothes which P.Ws.l ('Sr 2 were wearing were seized, mere recovery of 'Q23 43 the weapons would not in any way help the prosecution in this case as we have held that. evidence of eye witnesses which the prosecution has relied upon to bring home_ the guilt of the accused are not truthful, reliable and made the basis for convicting the accused anci.."therefo-rel. in "
the absence of the proof of the u-serofp the islet clear that it would not in anywaychellpl "tvheil'pi9osectiI.~io*nxas this case depends upon the e_Vidence"'of eye witriessesi andul not merely on circumstantial eindjence
29. Therefore, or;.Ars_.ap'preciati'o.n_ of"'t7tie entire evidence addticvtledmhy' b"fe"f51%é the trial Court, we hold that findViri--g_,.--Court that the prosecution has failed to pfovg the--.gu>i_ltVo'nfV the accused of having cornrnitted t_lie$Co'ffenceApunisiiablve under Section 302, 307 8:'. 324 IPC the Dowry Prohibition Act and acquitting then} of charges is justified and does not: suffer from any or illegality as t:o call for interference in this appeal. We