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2020 DIGILAW 1014 (KAR)

Ramesh v. State Of Karnataka

2020-06-09

B.A.PATIL, M.G.UMA

body2020
JUDGMENT M.G.Uma, J. - The appellant/accused has preferred this appeal aggrieved by the impugned judgment of conviction and order of sentence dated 03.09.2016, whereunder accused No.1 was convicted for the offences punishable under Sections 498(A), 302 and 201 of IPC and acquitted accused No.2 for the very same offences, read with Section 34 of IPC. 2. The respondent-State is notified. We have heard the arguments of the learned advocate Sri.K.S.Patil for the appellant and the learned Addl.SPP Sri.V.M.Banakar for the respondent-State and we have carefully and cautiously gone through the judgment of the trial Court and have perused the materials on record, including the lower Court records. 3. It is the contention of the prosecution that the daughter of the complainant was given in marriage to accused No.1 and they started leading their matrimonial life. Out of their wedlock, she gave birth to two daughters and again the deceased became pregnant. It is further alleged that accused Nos.1 and accused No.2 being his mother, started ill treating and harassing the deceased alleging that, she does not know cooking and was not going to coolie work. They used to abuse, assault and force her to do coolie work and they caused mental and physical torture to the deceased. She used to inform the same to the complainant over phone. It is further alleged that prior to the alleged incident, the complainant called the elderly persons to the house of the accused and the persons suitably advised accused No.1- husband but, inspite of the said advise, the ill: treatment and mental torture continued by the accused persons and they were quarrelling with and harassing the deceased. It is further alleged that on 22.12.2013 at about 6.30 pm, one Mahadev Vital Kamble informed the complainant over phone that her daughter is dead and on hearing the same, the complainant and other persons immediately went to the spot and found the dead body of the daughter lying in the thorny bush, situated just nearby the house of the deceased, near the brick kiln and the body was burnt by pouring kerosene and setting fire. By looking to the said circumstances, the complainant suspected that the accused persons might have committed the murder of the deceased and in order to cause disappearance of the evidence, they have burnt the dead body and thrown it in the thorny bush. By looking to the said circumstances, the complainant suspected that the accused persons might have committed the murder of the deceased and in order to cause disappearance of the evidence, they have burnt the dead body and thrown it in the thorny bush. On the basis of the said complaint, a case has been registered in Crime No.171/2013 of Savalagi police station. 4. The investigating officer investigated into the matter and filed charge sheet against both the accused for the above said offences. The committal Court took cognizance of the offence, secured the presence of the accused and after following the procedure contemplated under Section 207 of Cr.P.C., committed the matter to the Principal Sessions Court for trial which in turn made over to the Court of learned I Additional District and Sessions Judge, Bagalkote, to sit at Jamakhandi (hereinafter referred to as 'trial Court'). The trial Court after securing the presence of the accused, framed charges against the accused for the offences punishable under Sections 498(A), 302 and 201 of IPC read with section 34 of IPC. Both the accused have pleaded not guilty and claimed to be tried. 5. Thereafter the prosecution examined PW1 to 25, got marked Ex.P1 to P37 and identified M.O.1 to 8 to prove its contention. Accused Nos.1 and 2 have denied all the incriminating materials available on record in their statement recorded under Section 313 of Cr.P.C. But they have not chosen to lead any evidence in support of their defence. 6. The trial Court after taking into consideration all these materials on record, passed the impugned judgment of conviction and order of sentence, convicting accused No.1 for the offences punishable under Sections 498(A), 302 and 201 of IPC and sentenced him to undergo imprisonment for the period of One year and pay fine of Rs.2000/- in default shall undergo imprisonment for 3 months for the offences punishable under Section 498(A) of IPC, to undergo imprisonment for life and pay fine of Rs.10,000/- in default shall undergo imprisonment for One year for the offences punishment under Section 302 of IPC and to undergo imprisonment for a period of 7 years and pay fine of Rs.5,000/- in default shall undergo imprisonment for 6 months for the offences punishable under Section 201 of IPC, while acquitting accused No.2 for similar offences read with section 34 of IPC. 7. 7. Aggrieved by the said judgment of conviction and order of sentence passed against him, accused No.1 has preferred this appeal on the following grounds; 8. The impugned judgment of conviction and order of sentence is illegal, perverse and the same is liable to be set aside. The trial Court has not taken into consideration the oral and documentary evidence placed before it, which is self contradictory. There are absolutely no material to support the case of the prosecution, even though all the material witnesses have turned hostile and not supported the case of the prosecution, the trial Court proceed to convict the accused, only on the basis of the evidence of the official witnesses. The trial Court has ignored the material contradiction and has arrived at an erroneous conclusion which has resulted in great injustice to the accused. Therefore the appellant prayed for setting aside the impugned judgment of conviction and order of sentence by allowing the appeal and to set the accused/appellant at liberty. 9. It is submitted by the learned counsel for the appellant that there is absolutely no material to prove the contention of the prosecution and link the accused to the offences in question. All the prosecution witnesses including first informant given a go by to there earlier version and have specifically stated that the deceased had committed suicide as she could not bear the pain in her stomach. Under such circumstances, the trial Court could not have convicted the accused by holding that the prosecution is successful in proving the guilt of the appellant/accused No.1 beyond all reasonable doubt. When no material is placed before the Court to connect the accused to the crime in question, the accused will be entitled for the benefit of doubt and he should have been acquitted. But the trial Court finding that the death of the deceased was a homicidal death, presumed that the appellant/accused No.1 has committed the offence, which is erroneous and caused miscarriage of justice. Therefore, he prays for allowing the appeal and acquitting the accused by extending the benefit of doubt. 10. Per contra the learned Addl.SPP submitted that even though the witnesses have not supported the case of the prosecution fully, the medical evidence proves the contention of the prosecution that the deceased had died a homicidal death. Therefore, he prays for allowing the appeal and acquitting the accused by extending the benefit of doubt. 10. Per contra the learned Addl.SPP submitted that even though the witnesses have not supported the case of the prosecution fully, the medical evidence proves the contention of the prosecution that the deceased had died a homicidal death. Her death was within a few months after her marriage and in the house of the accused. The accused has not explained us as to how the deceased died the homicidal death, if he had not committed the crime. Under such circumstances the materials placed by the prosecution before the trial Court was sufficient to conclude that it was this accused and this accused alone, who is the author of crime. On overall consideration of the materials before the Court, the trial Court rightly formed an opinion that it is this accused who is responsible for the death of the deceased. The said finding of the trial Court does not call for interference and therefore he prays for dismissing the appeal. 11. The prosecution in order to prove its contention against the accused, got examined PW1- mother of the deceased, who had lodged the first information immediately after the incident. Even though PW1 who is the mother of the deceased filed the first information at the first instance, she has not chosen to support the case of the prosecution. Nothing has been stated by her against the accused to connect accused 1 to the offences in question. On the contrary she has deposed that the deceased set fire on herself as she was suffering from stomach ache. The prosecution examined PW2, 3, 4, 5, 6 and 7, who are the witnesses to the inquest mahazar, spot mahazar and seizure mahazar, which are as per Exs.P3, 4, 5, 6 & 7 and 10. All these witnesses have also not supported the case of the prosecution and have turned hostile. PW5 and PW9 are the owners of the brick kiln, where the dead body of the deceased was said to have been found. But both these witnesses have also not supported the case of the prosecution. PW6, 10, 11 and 12 are said to be the workers working in the brick kiln, who are the circumstantial witnesses to the case of the prosecution. Unfortunately, these witnesses have also not supported the case of the prosecution. But both these witnesses have also not supported the case of the prosecution. PW6, 10, 11 and 12 are said to be the workers working in the brick kiln, who are the circumstantial witnesses to the case of the prosecution. Unfortunately, these witnesses have also not supported the case of the prosecution. PW13 and 14 are the sisters of the deceased but have also turned hostile and not supported the case of the prosecution. On the other hand, they have also supported the say of PW1 by stating on oath that the deceased was suffering from stomach pain, as a result of which, she herself set fire and died. PW15 and 16 are the independent witnesses and PW17 to 21 are the relatives of the deceased, who have also not supported the case of the prosecution. On the other hand, all these witnesses in unequal terms have corroborated the say of PW1, PW13 and 14 that the deceased was suffering from stomach ache and it was the cause for her committing suicide. PW22 is said to be the owner of the land, where the brick kiln was being run. This witness is also of no help to the case of the prosecution. PW23 is the investigating officer, who received the first information and registered FIR and conducted part of investigation. PW25 is the investigating officer, who completed the investigation and filed charge sheet. PW24 is the doctor who conducted post mortem examination on the body of the deceased and issued post mortem report as per Ex.P29. 12. If the oral evidence placed before the trial Court by the prosecution is taken into consideration, it is clear that PW24 the doctor who conducted autopsy on the dead body of the deceased deposed before the Court in support of the post mortem report Ex.P29 and the opinion regarding the cause of death-Ex.P31 wherein it is stated that the death of the deceased was due to Asphyxia due to Compression of the neck. Even though a defence is tried to be build up to contend that the deceased herself ended her life, since she was suffering from stomach pain, these materials placed before the Court remained unchallenged and under such circumstances, it is to be concluded that the deceased had died homicidal death and it was not a suicide or a natural death. 13. 13. Even though the prosecution has lead voluminous evidence before the trial Court and such evidence is sufficient to form an opinion that the death of the deceased was homicidal one, there is absolutely no evidence to connect the accused to the offences in question. The first informant/PW1 states that the deceased was suffering from stomach pain and she committed suicide by setting ablaze. The post mortem report which is as per Ex.P29, do not support such contention. Further in view of the evidence of PW24, we can say that the deceased Savita died a homicidal death. 14. Though there is no incriminating material produced against the accused, based on the evidence of the investigating officer the trial Court came to a wrong conclusion and convicted the accused. We are conscious of the fact that if there are incriminating materials against the accused, the evidence of the police officials can be relied on and the accused can be convicted. But on perusal of all the materials including the evidence of the police officials, there is not even a single piece of evidence which points out the guilt of the accused to say that it is the appellant/accused No.1 who ill-treated and harassed the deceased, strangulated her neck and in order to cause disappearance of evidence, the accused have poured kerosene and set fire and thrown the body into the thorny bush. Under such circumstances, we find absolutely no materials to connect the accused to the offence in question. The trial Court ought to have acquitted the accused extending the benefit of doubt. 15. We have gone through the impugned judgment of conviction and order of sentence passed by the trial Court. Even though the trial Court observed that out of 25 witnesses, 22 witnesses have turned hostile. It has proceeded to convict the appellant/accused No.1 only on presumption and assumption. The trial Court raised several queries as reasonable doubts and on the basis of such reasonable doubts proceeded to convict the appellant/accused No.1, which is in clear violation of basic principles of criminal justice system. The trial Court is ignoring the basic principles of criminal law that wherever there is reasonable doubt in the case made out by the prosecution, the benefit should accrue to the accused and not otherwise. 16. The trial Court is ignoring the basic principles of criminal law that wherever there is reasonable doubt in the case made out by the prosecution, the benefit should accrue to the accused and not otherwise. 16. The trial Court without properly appreciating the evidence and the materials placed on record and without applying the well settled proposition of law, has wrongly convicted the accused and as such, the judgment of the trial Court deserves to be set aside. Taking into consideration the above said facts and circumstances, we proceed to pass the following: ORDER The appeal filed by the appellant-accused No.1 is allowed and the judgment of conviction and order of sentence dated 03.09.2016 passed by I Additional District and Sessions Judge, Bagalkote sitting at Jamakhandi in S.C. No.37/2014 is hereby set aside. The appellant-accused No.1 Sri.Ramesh S/o.Sidram Dodamani @ Harijan is hereby acquitted of all the charges levelled against him and he is set at liberty forthwith. The jail authorities are hereby directed to release appellant-accused No.1 Sri.Ramesh S/o.Sidram Dodamani @ Harijan forthwith, if he is not required in any other case. Registry is directed to intimate the operative portion of this order forthwith through e-mail to the concerned jail authorities as well as to learned I Additional District and Sessions Judge, Bagalkote sitting at Jamakhandi to release the appellant-accused No.1, forthwith if he is not required in any other case.