Karnataka High Court
Sri. Suresh Mugera vs The State on 21 June, 2023
Author: K.Somashekar
Bench: K.Somashekar
-1-
NC: 2023:KHC:21669-DB
CRL.A No. 1555 of 2017
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 21ST DAY OF JUNE, 2023
PRESENT
THE HON'BLE MR JUSTICE K.SOMASHEKAR
AND
THE HON'BLE MR JUSTICE RAJESH RAI K
CRIMINAL APPEAL NO. 1555 OF 2017
BETWEEN:
SRI. SURESH MUGERA
S/O LATE PIGINA
AGED ABOUT 31 YEARS
R/O KOCHAKATTE HOUSE
Digitally PERABE VILLAGE
signed by D K
BHASKAR PUTTUR TALUK, D.K.
Location: High ...APPELLANT
Court of
Karnataka (BY SRI. PRASHANTH P. RAI - ADVOCATE AND
SRI. RAJAGOPALA B - ADVOCATE)
AND:
THE STATE
REPRESENTED BY
THE KADABA POLICE STATION
PUTTUR RURAL CIRCLE, D.K.
...RESPONDENT
(BY SRI. H S SHANKAR - HCGP)
THIS CRL.A. FILED U/S.374(2) CR.P.C PLEASED TO SET
ASIDE THE IMPUGNED JUDGMENT OF CONVICTION DATED
20.04.2017 AND SENTENCE DATED 24.04.2017 PASSED BY
THE V-ADDITIONAL DISTRICT AND SESSIONS JUDGE, D.K.,
MANGALURU IN S.C.NO.5010/2015 AND ACQUIT THE
APPELLANT/ACCUSED OF THE OFFENCE CONVICTED BY THE
TRIAL COURT UNDER SECTION 498A, 302 AND 201 OF IPC
AND SET HIM AT LIBERTY.
-2-
NC: 2023:KHC:21669-DB
CRL.A No. 1555 of 2017
THIS CRIMINAL APPEAL, COMING ON FOR FURTHER
ARGUMENTS, THIS DAY, K. SOMASHEKAR .J., DELIVERED
THE FOLLOWING:
JUDGMENT
This appeal is directed against the judgment of conviction and order of sentence rendered by the V Addl.District and Sessions Judge, D.K. Mangaluru, sitting at Puttur, D.K. in S.C.No.5010/2015 dated 20/24.04.2017 convicting the accused for the offence punishable under Sections 498A, 302 and 201 of IPC.
2. The accused was sentenced to undergo rigorous imprisonment for a period of three years and to pay fine of Rs.5,000/- for the offence under Section 498A of IPC. In default to pay fine, to undergo simple imprisonment for six months. Further, the accused was sentenced to undergo life imprisonment and to pay fine of Rs.5,000/- for the offence punishable under Section 302 of IPC. In default to pay the fine amount, to undergo simple imprisonment for six months. Further, the accused was sentenced to undergo simple imprisonment for seven years and to pay fine of Rs.3,000/- for the offence under Section 201 of -3- NC: 2023:KHC:21669-DB CRL.A No. 1555 of 2017 IPC. In default to pay fine, to undergo simple imprisonment for three months. All the sentences were ordered to concurrently.
3. Heard learned counsel namely Sri Prashanth.P.Rai for appellant - accused and learned HCGP namely Sri H.S.Shankar for respondent - State. Perused the impugned judgment of conviction and order of sentence rendered by the trial Court.
4. The factual matrix of the appeal is as under:
It is transpired in the case of the prosecution that Krishnappa, s/o late Gurava being the maternal uncle of deceased Laxmi lodged complaint before the jurisdictional police to initiate criminal prosecution against the accused person. Deceased - Laxmi was given in marriage to accused about nine years back. Subsequently she was blessed with two male children. Initially the relationship of deceased and accused was said to be cordial. Gradually after five years of marriage, accused started developing bad vices by consuming alcohol daily and started to give harassment to his wife. The accused was consuming -4- NC: 2023:KHC:21669-DB CRL.A No. 1555 of 2017 alcohol heavily and used to spend all his earning towards drinking. Deceased - Laxmi was rolling beedi to eke out her life due to drinking of alcohol by the accused and he also used to give torture to his wife and children. Whenever Laxmi visited the house of complainant she used to complain about the torture given by the accused. The complainant used to console and advise them and send back. On the occasion of previous Deepavali festival, the said Laxmi had come to the house of the complaint along with the children and stayed for one week where she complained that she was unable to tolerate the torture given to her and children by the accused under the influence of alcohol. The accused used to give threat saying that she should die and she should not live. Inspite of that complainant used to console her. It is further stated that when the complainant was present in the house, the elder brother of the accused by name Ravi informed him over telephone that Laxmi jumped into the well and committed suicide. He came to the house of accused and the saw dead body of Laxmi in the well -5- NC: 2023:KHC:21669-DB CRL.A No. 1555 of 2017 situated near the house. When he enquired with neighbourers, he came to know that on 10.11.2014 at about 9.30 p.m. the accused picked up quarrel with his wife and extended torture and without tolerating the same, she jumped into the well and committed suicide. Accused himself is responsible for the suicide of Laxmi as she was unable to tolerate the torture given by accused daily under the influence of alcohol. Accordingly, he lodged the complaint.
5. Based upon the complaint made by the complainant against the accused the case in Crime No.139/2014 came to be registered for the offence punishable under Section 498-A and 306 of IPC initially by recording the FIR. CW.29 felt that the death is unnatural. Hence, he submitted the request letter to the Special Tahsildar, Kadaba to conduct inquest panchanama. Accordingly, CW.24 visited the spot along with CW.29 at about 3 p.m., fished out dead body from the well situated in the land belonging to CW.17 situated at Kochkatte of Perabe village. CW.1 identified the dead body and in the -6- NC: 2023:KHC:21669-DB CRL.A No. 1555 of 2017 presence of CW.8 to 10, CW.24 conducted inquest over the dead body of Laxmi. By that time, CW.24 recorded statement of CWs.2, 6 and 7. CW.8 to 10 and 24 found abrasion on the forehead, injury on left eyelid, injury in the middle between both eyebrows, contusion injury on the back. After the inquest panchanama, dead body was sent to K.S.Hegde Hospital, Derlakatte. CW.25 conducted the post mortem on 11.11.2014 between 7.35 p.m. to 8.35 p.m. Then CW.20 received the dead body and clothes from CW.25 and thereafter dead body was handed over to CW.1 and produced clothes of the dead body before CW.29 who seized the clothes in the presence of panchas CW.11 and 12 during 11.p.m. to 11.30 pm on the same day and subjected to PF No.48/2014.
6. Subsequent to completion of investigation carried out by the investigation officer, charge sheet came to be laid consisting spot mahazar at Ex.P4. It was held in the presence of PWs.3, 6, 11 and 15 who had subscribed their signatures. The seizure mahazar as per Ex.P7 was held in the presence of PWs.6, 11 and 15 and another seizure -7- NC: 2023:KHC:21669-DB CRL.A No. 1555 of 2017 mahazar as per Ex.P8 in the presence of PWs.7, 11 and
13. Thereafter, post mortem report was secured as per Ex.P9 conducted by PW.8 being the Doctor. These are all the mahazars that have been conducted and so also, securing other materials such as spot sketch and FSL report as per Exs.P13 and 20. Serology report was also secured as per Ex.P21 and also recorded statement of accused as per Ex.P27. Thereafter laid the charge sheet against the accused before the committal Court.
7. Subsequently, the committal Court committed the case to the Sessions Court wherein S.C.No.5010/2015 was registered and secured the presence of accused for facing of trial. The trial Court heard arguments of learned public prosecutor and the defense counsel relating to framing of charge against the accused person. Prima-facie having found the case against accused, the charges for the offence under Sections 498-A, 302 and 201 of IPC were framed. The charges were read out to the accused in the language known to him wherein the accused declined the -8- NC: 2023:KHC:21669-DB CRL.A No. 1555 of 2017 charges leveled against him. Accordingly, the plea of accused was recorded separately.
8. Subsequent to recording charges against the accused person, the prosecution in order to prove the guilt against the accused subjected to examine in all PWs.1 to 15 and got marked several documents as per Exs.P1 to P28 and so also, got marked M.O.1 to M.O.9. Subsequent to closure of evidence on the part of the prosecution, the trial Court recorded the incriminating statement of the accused as contemplated under Section 313 of Cr.P.C. wherein the accused denied the truth of the evidence adduced so far and accordingly, it was recorded. Subsequently, the accused was called upon to enter into defense evidence, if any. But he did not come forward to adduce any defense evidence. Accordingly, it was recorded. Subsequent to completion of evidence of prosecution and so also, on the defense side, the trial Court heard arguments on both side and on appreciation of oral and documentary evidence held that if there was cordiality between husband and wife, and if there was -9- NC: 2023:KHC:21669-DB CRL.A No. 1555 of 2017 good relationship between husband and wife naturally if anything happens to the wife the husband would come to her rescue and in the natural course of events he would take all necessary steps to protect his wife, to prevent from any untoward incident. The accused developed some sort of quarreling nature by consuming alcohol and so also, assaulted her by extending physical as well as mental harassment. But for that harassment received from the hands of accused who is her husband jumped into well in terms of committing suicide. There are sufficient circumstantial evidence and also extra judicial confession of the accused made to PW.12 who clearly stated with consistent evidence before the Court.
9. PW.12 - Nitesh being the son of deceased - Laxmi and accused was subjected to examination in chief and also subjected to cross-examination. He has stated in his evidence that he was asked to sleep with his grandmother, as stated by the accused. PW.3 namely Jaya in her cross- examination has admitted that children of deceased and accused slept with her mother-in-law. Accordingly, PW.12
- 10 -
NC: 2023:KHC:21669-DB CRL.A No. 1555 of 2017 slept with his grandmother and next day came to know that body of his mother was found in the well and she was dead. The accused was not in the house on 11.11.2014. PW.11 - Prameela after post mortem handed over the dead body of accused to PW.1. These are the evidence that finds place on the part of the prosecution. Even non- searching of the deceased by the accused and non- participation of accused to fish out dead body of his wife from the well and not performing her last ceremonies and not making any attempt to know as to how his wife died shows that after the incident accused absconded and was arrested on 13.11.2014.
10. The case of the prosecution is that after arrest of the accused by the arresting authority, the accused gave voluntary statement as per Ex.P27 which was recorded by PW.15 being the IO and the same was recorded in between 7 to 8 a.m. on 13.11.2014. According to PW.15 he informed about the arrest of the accused to PW.13 and after submitting requisition as per Ex.P26, Section 302 of IPC came to be invoked. But initially the case was
- 11 -
NC: 2023:KHC:21669-DB CRL.A No. 1555 of 2017 registered for the offences punishable under Sections 498- A and 306 of IPC. According to PW.13 as stated in the voluntary statement, accused led the investigation team to Perabe village and by showing his residential house and went inside of toilet situated by the western side of his house and brought one wooden stool and the same was seized by PW.13 - Anil K.Kulkarni. Based upon the disclosure statement MO.7 wooden stool was seized by drawing mahazar in the presence of panch witnesses from which the accused assaulted his wife deceased - Laxmi and the same is seen in the evidence on the part of the prosecution.
11. Insofar as Section 106 of Indian Evidence Act, 1872 wherein the absence of explanation known to the accused and also failure on the part of accused to give any explanation during his examination under Section 313 of Cr.P.C. which points out only at the accused and not others. But the chain of circumstances excluding every hypothesis that was proposed by the defense counsel before the Court of law and therefore, the court has to
- 12 -
NC: 2023:KHC:21669-DB CRL.A No. 1555 of 2017 accept the prosecution theory. More so, the inquest panchanama and seizure panchanama under which MO.1 to 6 were seized are proved from the evidence of PWs.9, 13, 15 and panch witnesses. These are all the evidence let in by the prosecution to prove the guilt against the accused. But in the instant case motive or intention to murder of wife by the accused is not explained by the prosecution. But the accused alone committed murder of deceased and also causing her death by jumping into well as where the dead body of Laxmi was fished out and mahazar was conducted over the dead body in the presence of panch witnesses.
12. PW.8 - Dr.Suraj S.Shetty who conducted autopsy over the dead body as per Ex.P9 has opined regarding cause of death of the deceased is not defective except his evidence at para 6 even minutely to looking into it. But the defense counsel attempted to elicit contrary evidence as against Ex.P9 post mortem report, but failed in his attempt. Therefore, the prosecution has proved all the chain of circumstances in respect of commission of offence
- 13 -
NC: 2023:KHC:21669-DB CRL.A No. 1555 of 2017 by the accused with cogent and convincing evidence. Accordingly, the trial Court rendered the conviction judgment for the offences under Sections 498-A, 302 and 201 of IPC. It is this judgment which is challenged under this appeal by urging various grounds.
13. Learned counsel Sri Prashant P.Rai for the appellant - accused has taken us through evidence of prosecution witnesses that too be the evidence of PW.1 who had given complaint and based upon his complaint criminal law was set into motion by recording FIR. Deceased - Laxmi was given in marriage to the accused and subsequently she was blessed with two male children. But the accused was developing some bad vices by consuming alcohol and saying that she should die and she should not live. Inspite of that advise made to him he continued the same and he was continuing to give physical as well as mental harassment and caused her death. This is the theory put forth by the prosecution and also subjected to examination of PW.12 who is the son of deceased and accused. But initially FIR was recorded by
- 14 -
NC: 2023:KHC:21669-DB CRL.A No. 1555 of 2017 the police as per Ex.P16 for the offence under Section 498A and 306 of IPC based upon the complaint lodged by PW.1. But M.O.7 wooden stool said to have been used by accused and assaulted on her person as a resultant causing injuries. Accused did not committed the alleged offences and was not the cause for the deceased jumping into well in terms of committing suicide. The entire theory of the prosecution is only set up to rope the accused in the alleged crime that he has given physical as well as mental harassment as a resultant she jumped into well and committed suicide. The prosecution had subjected to examination PW.1, 11, 13 and 15 and they are the official witnesses.
14. PW.8 being the Doctor who conducted autopsy over the dead body and issued report as per Ex.P9. He has stated that he did not check whether steps inside the well were built out of mud or stones, and if any person jumps on to the said well there are chances of him receiving the injuries like abrasions, lacerations and contusions over the body. The injuries found in the dead
- 15 -
NC: 2023:KHC:21669-DB CRL.A No. 1555 of 2017 body of the deceased matches the description put forward by the defense counsel and this gives credence to the hypothesis that the deceased might have died due to dry drowning. But the trial court failed to notice the intricacies and medical complications of dry drowning and convicted the accused erroneously.
15. Further the evidence of PW.9, the Tahsildar who conducted the inquest over the dead body as per Ex.P3. PW.14 is the Scientific Officer, FSL , Mangalore who has stated that she is unable to say that the blood samples sent to her for examination whether belongs to the deceased or not. It is further contended that the investigating agency made panch witnesses who are the relatives, neighbours and friends of PW.1 and therefore, they are interested witnesses. Therefore, it is said that the even though the prosecution has let in evidence, but there are inconsistencies and contradictions to each other. Despite of that, the trial Court rendering the conviction judgment for the offence under Sections 498A, 302 and 201 of IPC.
- 16 -
NC: 2023:KHC:21669-DB CRL.A No. 1555 of 2017
16. PW.4- Lalitha is the sister of the complainant and in her evidence she has made lot of improvements in the cross-examination which the trial Court failed to notice. She also made improvements in her chief examination that the accused used to abuse and harass the deceased and the deceased had told her that she is unable to tolerate the torture meted out by her by the accused by saying that you should die and you should not live. But the trial Court has failed to notice all these improvements made by this witness.
17. PW.3 - Jaya is the eye witness to the incident and she is the sister in law of the accused and she has not fully supported the case of prosecution. She admitted the relationship between her and accused, her and the deceased. But she turned hostile and nothing worthwhile was elicited to prove the guilt of the accused. But PW.12 namely Nitesh being the minor son of deceased - Laxmi is the star witness and also eye witness to the incident. He had given statement before the Judicial Magistrate First Class under Section 164 of Cr.P.C. and even the Court has
- 17 -
NC: 2023:KHC:21669-DB CRL.A No. 1555 of 2017 to test him whether he is capable of understanding and giving rational answer, by putting question and given proper answer. But the evidence of PW.12 appears to be contrary to the evidence of PWs.1, 2, 4, 5 and 7. PW.12 being a child witness, his testimony has not been corroborated by any other evidence. The trial Court failed to notice that it is a dangerous proposition to trust the evidence of tutored child witness without any corroborative evidence.
18. It is further contended that the case of the prosecution is not supported by any independent witnesses. The conviction is based on interested and inconsistent testimony of PW.1 who is the maternal uncle, PW.2 being the younger sister, PW.4 being the maternal aunt and PW.12 being the son of the deceased. But the accused used to consume alcohol and picked up quarrel with the deceased and extended physical as well as mental harassment. The entire case is based upon the circumstances and also imaginary evidence on the part of
- 18 -
NC: 2023:KHC:21669-DB CRL.A No. 1555 of 2017 the prosecution and the same is untenable and liable to be set-aside.
19. Further, it is contended that the injuries which inflicted over the person of the decease as indicated in Ex.P9 - post mortem report but the deceased may have went into shock or heart attack when a person falls from a high place and there is possibility of a person not drinking water when drowned due to heart attack. The same has not been properly appreciated by the trial Court but rendering the conviction judgment for the offence under Section 498A and 302 of IPC, even there was no ingredients facilitated by the prosecution to that effect. The accused did not give any sort of physical as well as mental harassment and there was no worthwhile evidence on the part of the prosecution to secure the conviction.
20. It is pertinent to notice the evidence of PW.13 the IO who conducted the investigation. He failed to produce the request letter given to the PW.9 Tahsildar for inquest report as per Ex.P3. He has not investigated the
- 19 -
NC: 2023:KHC:21669-DB CRL.A No. 1555 of 2017 case properly. Therefore, his evidence is not corroborated with the independent witnesses.
21. The recovery of weapon used for the alleged murder, the wooden stool - MO.7 and Lungi - MO.8 which was worn by the accused during committing the crime were conducted under suspicious circumstances and it casts doubt about the role played by the PW.8 in collusion with the police. The death occurred during the night of 10.11.2014 and the dead body was found on the next morning and CW.4 who was neighbour and an independent witness was not examined. PW.3 who was the eyewitness had pleaded ignorance about the whole incident. M.O.4 - Glass bangles pieces recovered from the scene of crime had no corresponding injuries on the hands of the deceased during the scuffle while the bangles cracked and the well in which the dead body was found floating had steps constructed by hard stone in a circular method in a spiral way upto the bottom of the well and there is probability of head of deceased hitting the said stone steps while she jumped in to the said well leading to
- 20 -
NC: 2023:KHC:21669-DB CRL.A No. 1555 of 2017 dry drowning. The trial court on appreciation of the evidence has held that the accused is guilty of the offence punishable under Sections 302, 201 and 498A of IPC merely on the ground that PWs.1, 2, 4 and 12 supported the case of prosecution though they were hearsay witnesses.
22. The trial Court erred in convicting the accused under Section 201 of IPC when there is no evidence to point out that the dead body was thrown into the well by the accused. The dead body was found floating in the well as it was and no evidence was destroyed. The investigating agency failed to recover any objects pointing towards the guilt of the accused under Section 27 of the Evidence Act. It may be noted that PW.8 the Doctor who conducted the post mortem and issued report as per Ex.P9 had also visited the scene of crime and given detailed report on the forensic examination of scene of crime which also includes the recovery of weapon wooden stool and lungi which were marked as M.O.7 and 8. PW.8 had examined the scene of crime on 12.11.2014 in the
- 21 -
NC: 2023:KHC:21669-DB CRL.A No. 1555 of 2017 presence of PW.15 being the IO. PW.8 has reported that he found the M.O.7 wooden stool lying in the house of the accused and was seized in front of PW.15. Subsequently the accused was arrested on 13.11.2014 as per arrest report Ex.P15 and the confession statement of accused as per ex.P27 was recorded on the same day. PW.7 had stated contrary to the version of investigating agency during the cross examination that M.O.7 and 8 were recovered in his presence from the house of the accused which proves that MO.7 and 8 is a manufactured evidence due to the complicity of the police and PW.8 being the Doctor in this case. PW.7 has also stated that recovery of alleged weapon M.O.7 and 8 took place inside the house of the accused, contrary to the seizure mahazar as per Ex.P8. The prosecution was not able to establish prima facie case against the accused in a proper perspective manner.
23. PW.12 being the star witness is the son of accused and deceased - Laxmi. He has given statement under Section 164 of Cr.P.C. before the Judicial Magistrate
- 22 -
NC: 2023:KHC:21669-DB CRL.A No. 1555 of 2017 First class. He has stated that he regularly used to sleep early at 8 p.m. during the night and on the date of the incident, he was sleeping with his grand mother and was unaware of the alleged quarrel and fight between his parents and he came to know the death of his mother only on the next day. This casts serious doubts on the veracity of the statement of PW.12 and then the question of extra judicial confession by the accused to PW.12 does not arise at all and the chain of evidence as required in circumstantial evidence is broken and not complete. The evidence of child witness is not corroborated by any other evidence.
24. Further, the trial Court failed to take note of the falsity of statement of PW.13 being the IO. During the cross-examination he has stated that he doubts about the manner of death of deceased when he first saw injuries on the dead body and he suspected that the accused would actually murdered the deceased and threw the body into the well. He failed to send any request letter to the Court to alter the charges. He has not conducted the
- 23 -
NC: 2023:KHC:21669-DB CRL.A No. 1555 of 2017 investigation in a proper manner and he is not a reliable witness and his words are not corroborated by any evidence. Therefore, it proves that the incident was unintentional and not a conspiracy and the accused had no time for preparation to commit murder of the deceased. On all these premises learned counsel for the appellant seeks to consider the grounds as urged in this appeal and consequently, to set-aside the judgment of conviction and order of sentence rendered by the trial Court in S.C.No.5010/2015 and to acquit the accused for the offences leveled against him.
25. On contrary, learned HCGP for respondent - State has taken us through the evidence of PW.1 who is the author of the complaint who had given information of death of Laxmi on 10.11.2014 and after seeing the dead body which was floating in the well of CW.17, he stated that unable to tolerate the torture and cruelty meted out by the accused, she jumped into the well besides their house and committed suicide for which accused is responsible. Deceased - Laxmi is none other than the
- 24 -
NC: 2023:KHC:21669-DB CRL.A No. 1555 of 2017 wife of accused and her marriage was performed with him 9 years back and she was blessed with two male children. Despite of it, the accused has given physical as well as mental harassment, due to which, she committed suicide and accused is the cause for death of deceased.
26. PW.8 being Doctor had issued post mortem report indicating the following injuries on the body of the deceased:
(i) Linear abrasions, 3 in number, obliquely placed extending from left to right, below upwards, size varying from 4.5 cm x 0.5 cm to 2 cm x 0.3 cm, over an area 4.5 cm x 3 cm, were present on the forehead, 2 cm above left glabella.
(ii) Superficial laceration measuring 0.5 cm x 0.5 cm was present on the upper eye lid of the left eye, 0.3 cm above and 0.5 cm away from outer canthus.
(iii) Abraded contusion measuring 1 cm x 0.5 cm was present on the inner side of the lower lip on the right side.
- 25 -
NC: 2023:KHC:21669-DB CRL.A No. 1555 of 2017
27. The aforementioned injuries were fresh and ante mortem in nature. Therefore, from the evidence of PWs.1, 2, 4, 5, 8 and 9 including Ex.P2 and also from the evidence of PW.13 and 15 and Ex.P9, it is evident that death of Laxmi was due to complication of head injury as a result of blunt force injuries sustained to head. The death of Laxmi is not a suicide and it is a homicidal. There are sufficient oral evidence coupled with documentary evidence on the side of prosecution to hold that the death of deceased was due to the injuries caused to her as stated by the prosecution witnesses and also mentioned in Exs.P2 and P9. Therefore, the trial Court has rightly come to the conclusion by rendering conviction judgment for the offences under Section 498A, 302 and 201 of IPC.
28. PWs.1, 2 and 4 have clearly stated that when deceased visited their house she used to complain about the ill treatment given by the accused. PW.12 has been cited by the prosecution in respect of the incident who supports the case of the prosecution. There is no force in the argument of counsel for the appellant and the
- 26 -
NC: 2023:KHC:21669-DB CRL.A No. 1555 of 2017 evidence of prosecution witnesses corroborates each other in regard to the offence committed by the accused under Section 498A of IPC. The accused used to spend his earning for the purpose of drinking alcohol, but his wife Laxmi used to roll beedies and to maintain family. This evidence on the part of prosecution shows that the accused failed to take care of his wife and children, he used to harass abuse her and gave physical as well as mental cruelty. There is no reason to discard the cogent evidence of prosecution witnesses especially the evidence of PWs.1, 2, 4, 9 including the inquest panchas.
29. From the evidence of PW.12 who is a star witness and being the son of deceased and the accused, it is clear that the accused after assaulting and murdering his wife Laxmi, threw her dead body into the well and returned to the house and stated before PW.12 that he threw his mother to the well and the same is nothing but extra judicial confession of the deceased. This child witness has clearly witnessed assault made by the accused to the deceased and also extra judicial confession made by the
- 27 -
NC: 2023:KHC:21669-DB CRL.A No. 1555 of 2017 accused to PW.12. These are all evidence that finds place on the part of the prosecution and the trial Court has rightly convicted the accused for the offences leveled against him. Therefore, in this appeal it does not arise for call for any interference as sought for by the counsel for the appellant. There are no infirmities, inconsistencies or contradictions in the evidence let in by the prosecution to prove the guilt of the accused. Therefore, learned HCGP sought for dismissal of the appeal being devoid of merits by confirming the impugned judgment of conviction and order of sentence rendered by the trial Court.
30. It is in this background of the contentions taken by the learned counsel for the appellant and so also, stoutly argued by learned HCGP for State, it is relevant to state that the entire case of the prosecution is based upon the evidence of PWs.1, 2, 4 and 12. This evidence is important on the part of the prosecution to prove the guilt against the accused relating to motive factor to eliminate deceased - Laxmi. PW.8 being the Doctor who conducted autopsy over the dead body of deceased and issued PM
- 28 -
NC: 2023:KHC:21669-DB CRL.A No. 1555 of 2017 report as per Ex.P9 was subjected to cross-examination and the same can be seen in the evidence itself. The entire case is revolving around the evidence of PW.12 who is a star witness and his evidence is required to be appreciated in a proper perspective manner to appreciate the evidence. In this regard, it is relevant to refer the judgment of Hon'ble Supreme Court in Babu vs. State of Kerala (2010) 9 SCC 189 wherein it is held that every accused is presumed to be innocent unless the guilt is proved. The presumption of innocence is a human right. However, subject to the statutory exceptions, the said principle forms the basis of criminal jurisprudence. For this purpose, the nature of the offence, its seriousness and gravity thereof has to be taken into consideration. The courts must be on guard to see that merely on the application of the presumption, the same may not lead to any injustice or mistaken conviction.
31. Further the Hon'ble Supreme Court in Mangu Singh vs. Dharmendra and another (2015) 17 SCC 488 held that Section 302 - Murder- appreciation of
- 29 -
NC: 2023:KHC:21669-DB CRL.A No. 1555 of 2017 evidence - material contradiction and inconsistencies - reversal of conviction, confirmed. Section 106 of the Evidence Act, 1872, does not absolve the prosecution's burden to prove the case of the accused beyond all reasonable doubt. The prosecution has miserably failed to explain the facts and circumstances surrounding the lodging the FIR and the testimony of the prosecution witnesses is proved to be crooked. The prosecution case was never a case of circumstantial evidence as the prosecution, till the end laid stress on the testimonies of eye witnesses.
32. In the case of Nizam and another vs. State of Rajasthan (2016) 1 SCC 550, the Hon'ble Supreme Court held that "last seen theory" is important link in chain of circumstances that would point towards guilt of accused with some certainty - such theory permits court to shift burden of proof to accused and he must then offer a reasonable explanation as to cause of death of deceased - but, it is not prudent to base conviction solely on "last seen theory" - such theory should be applied, taking into
- 30 -
NC: 2023:KHC:21669-DB CRL.A No. 1555 of 2017 consideration case of prosecution in the entirety and keeping in mind circumstances that precede and follow the point of being so last seen - where time gap is long, it would be unsafe to base conviction on last seen theory - it is safer to look for corroboration from other circumstances.
33. In the case of K.Venkateshwarlu vs. State of Andhra Pradesh (2012) 8 SCC 73, the Hon'ble Supreme Court held that "criminal trial - witnesses - child/young witness - testimony of - credibility - a child witness, by reason of his tender age, is a pliable witness - he can be tutored easily either by threat, coercion or inducement - hence, his statement can be accepted only if Court comes to conclusion that child understands questions put to him and he is capable of giving rational answers and that child is not tutored and his evidence has a right of truth - careful evaluation of evidence of a child witness in the background and context of other evidence on record for purposes of corroboration is a must before court decides to rely upon it.
- 31 -
NC: 2023:KHC:21669-DB CRL.A No. 1555 of 2017
34. In the instant case, PW.12 is the child witness and is none other than the son of deceased - Laxmi and accused. Therefore, the evidence of child witness is required to be analysed / scrutinized carefully and cautiously. But it is based upon the evidence let in by the prosecution and the domain it is vested with the prosecution to prove the guilt against the accused beyond all reasonable doubt. The evidence of PW.12 who is the child witness has to be subjected to closest scrutiny and can be accepted only if the court comes to the conclusion that the child understands the question put to him and he is capable of giving rational answers. A child witness, by reason of his tender age, is a pliable witness. He can be tutored easily either by threat, coercion or inducement. Therefore, the Court must be satisfied that the attendant circumstances do not show that the child was acting under the influence of someone or was under a threat or coercion. Evidence of a child witness can be relied upon if the court, with its expertise and ability to evaluate the evidence, comes to the conclusion that the child is not
- 32 -
NC: 2023:KHC:21669-DB CRL.A No. 1555 of 2017 tutored and his evidence has a right of truth. It is safe and prudent to look for corroboration for the evidence of a child witness from the other evidence on record, because while giving evidence a child may give scope to his imagination and exaggerate his version or may develop cold feet and not tell the truth or may repeat what he has been asked to say not knowing the consequences of his deposition in the court. Careful evaluation of the evidence of a child witness in the background and context of other evidence on record is a must before the Court decides to rely upon it.
35. In the instant case, the prosecution has given more credentiality to the evidence of PW.12 who is the child witness and no other than the son of deceased and accused. Banking upon his evidence, the trial Court has come to the conclusion by rendering the conviction judgment. Therefore, in this appeal it requires re- appreciation of the evidence let in by the prosecution and so also, revisit the impugned judgment of conviction rendered by the trial Court, if not, the accused who is the
- 33 -
NC: 2023:KHC:21669-DB CRL.A No. 1555 of 2017 gravamen of the accusation would be the sufferer and also there shall be miscarriage of justice to him.
36. The Hon'ble Supreme Court in Lalit Kumar Sharma v. Superintendent and Remembrancer of Legal Affairs, Government of West Bengal, (1989) Crl.LJ 2297 held that the power of an Appellate Court to review evidence in appeal against acquittal is as extensive as its powers in appeal against convictions but Appellate Court should be slow in interfering with the order of acquittal. In the instant case, the accused who is none other than the husband of deceased and he was addicted with bad vices and was also extending physical as well as mental harassment which made her to jump into well in terms of committing suicide. But in the instant case, the prosecution did not facilitate worthwhile evidence to secure conviction. At a cursory glance of the evidence let in by the prosecution as well the impugned judgment rendered by the trial Court, there are inconsistencies and also contradictions and more so, suffering from infirmities.
- 34 -
NC: 2023:KHC:21669-DB CRL.A No. 1555 of 2017
37. In the case of Gamini Bala Koteswara Rao & Ors vs State Of A.P. AIR 2010 SC 589, the Hon'ble Supreme Court held that it is, however, well settled by now that it is open to the High Court to re-appraise the evidence and conclusions drawn by the trial Court but only in a case when the judgment of the trial Court is stated to be perverse. The word `perverse' in terms as understood in law has been defined to mean "against the weight of evidence." In the instant case, it requires for intervention, if not, the accused would be sufferer and there shall be miscarriage of justice.
38. In the case of K. Prakashan vs P.K. Surenderan (2008) 1 SCC 258 the Hon'ble Supreme Court held that although, ordinarily a judgment of acquittal should not be reversed when two views are possible, the High Court opined that the Trial Judge had proceeded and adjudged the evidence on an incorrect premise that it was for the complainant to establish the details of the transaction. Further, if two views were
- 35 -
NC: 2023:KHC:21669-DB CRL.A No. 1555 of 2017 possible from the very same evidence, it cannot be said that the prosecution has proved beyond reasonable doubt as held by the Hon'ble Supreme Court in T. Subramanian vs State Of Tamil Nadu (2006) 1 SCC 40. These are all the reliances which are required to be referred in this matter seeking intervention relating to the impugned judgment of conviction and order of sentence rendered by the trial Court for the offences punishable under Sections 498A, 302 and 201 of IPC. But in totality of the circumstances of the case and more so, the ingredients of each one of the offence it is found that the prosecution has miserably failed to prove the guilt of the accused beyond all reasonable doubt. Consequently, in this appeal it requires interference. Accordingly, we are of the opinion that the accused is deserving for acquittal by reversal of judgment of conviction rendered by the trial Court. In view of the aforesaid reasons and findings, we are of the opinion that the appeal deserves to be allowed. Accordingly, we proceed to pass the following:
- 36 -
NC: 2023:KHC:21669-DB CRL.A No. 1555 of 2017 ORDER The appeal filed by the appellant - accused under Section 374(2) of Cr.P.C. is hereby allowed.
Consequently, the judgment of conviction dated 20.04.2017 and order of sentence dated 24.04.2017 rendered by the V Addl.District and Sessions Judge, D.K.Mangaluru, sitting at Puttur, D.K. in S.C.No.5010/2015 is hereby set-aside. Consequent upon setting aside the judgment of conviction and order of sentence, accused is acquitted for the offences punishable under Section 498-A, 302 and 201 of IPC, 1860.
Registry of this Court is directed to forward a copy of the operative portion of the judgment to the Superintendent of jail authority, where the accused is housed, with a direction to set him at liberty, forthwith, if he is not required in any other case.
If the accused has deposited any fine amount in pursuance of the order passed by the trial Court in the
- 37 -
NC: 2023:KHC:21669-DB CRL.A No. 1555 of 2017 aforesaid case, the same shall be returned to the accused, on due identification.
Sd/-
JUDGE Sd/-
JUDGE DKB