Research › Search › Judgment

Karnataka High Court · body

2020 DIGILAW 1969 (KAR)

Mallavva v. Yallappa Kallappa Devakki

2020-10-01

P.S.DINESH KUMAR, S.VISHWAJITH SHETTY

body2020
JUDGMENT S. Vishwajith Shetty, J. - These two appeals are filed by the complainant and the State respectively challenging the Judgment and Order of acquittal passed by the Court of I Additional District and Sessions Judge, Dharwar sitting at Hubballi in Sessions Case No.128 of 2012, acquitting the accused for the of fences punishable under Sections 498A and 302 of I.P.C and under Section 3 of Dowry Prohibition Act. 2. We have heard Shri V.S.Kalsurmath, learned H.C.G.P. for appellant-State, Shri J.S.Shetty for the appellant/complainant and Shri G.I.Gachchinamath, for the respondent/accused. 3. The brief facts of the case are, complainant-Mallavva is the younger sister of Smt.Laxmi who is the "deceased" in the present case. Smt.Mallavva filed a report on 24.05.2012 at about 18:30 hours stating that her sister-Laxmi was married to accused about 14 years ago and from the wedlock the couple had a son and daughter. The accused was harassing Laxmi on petty issues and he was also suspecting her. He was physically and mentally ill-treating her and used to say if she died, he would re-marry. Laxmi had disclosed about the illtreatment meted on her by the accused to her mother and relatives. 4. On 24.05.2012, P.W.1 who is the son of her elder sister Yallavva (P.W.10) telephoned her and informed that Laxmi was not well and asked her to rush to Hubballi. Immediately, complainant and her brother-Somanagouda Patil (C.W.-15) rushed to KIMS Hospital, Hubballi and noticed that Laxmi was not in a position to speak. Thereafter, they went to the house of Smt.Yallavva and enquired with Kumari Rakshita who is the daughter of Laxmi, who informed them that accused had picked up quarrel with Laxmi, squeezed her neck and assaulted her and as a result, Laxmi fell down on the floor. Laxmi was immediately shifted to Hospital , but she died in the said Hospital . 5. On the report of Smt.Mallavva-P.W.3, P.W.12 P.S.I. Mahila Police Station, Hubballi registered a case in Crime No.46 of 2012 and forwarded the F.I.R. to the Court of Jurisdictional Magistrate and started investigation. On 04.06.2012 she handed over the further investigation to P.W.13 Smt.Pushpalata N, Inspector of Police who carried on further investigation and after completion of the same, filed charge sheet against the accused for the of fences punishable under Sections 498A, 323 and 302 of I.P.C. and Section 3 of Dowry Prohibition Act. On 04.06.2012 she handed over the further investigation to P.W.13 Smt.Pushpalata N, Inspector of Police who carried on further investigation and after completion of the same, filed charge sheet against the accused for the of fences punishable under Sections 498A, 323 and 302 of I.P.C. and Section 3 of Dowry Prohibition Act. After committal of the case, the trial Court secured the presence of accused and framed charges against him for the offences punishable under Sections 498A and 302 of IPC and Section 3 of the Dowry Prohibition Act. The accused pleaded not guilty. During the course of trial, 13 witnesses were examined as P.Ws.1 to 13 by the prosecution and 20 documents were marked as Ex.Ps.1 to 20. Ex.C.1 was marked by the Court and M.O.1 and 2 were produced by the prosecution. 6. After closure of the evidence by prosecution, statement under Section 313 of Cr.P.C. of the accused was recorded and accused denied all incriminating evidence against him and stated the deceased hanged herself and on seeking this, he called his neighbour-Mr.Neelappa and brought down the dead body. He examined the said Neelappa as D.W.1 and marked Ex.D-1 in support of his defence. The trial Court after completion of trial heard the arguments of both the parties and by means of impugned Judgment and Order has acquitted the accused. Being aggrieved by the same, the complainant as well as the State have preferred these appeals. 7. The learned counsels for the appellants submitted having regard to the material evidence available on record which clearly establishes the guilt of the accused the trial Court had erred in acquitting the accused. They further submitted that the trial Court has not properly appreciated the evidence of P.Ws.1 to 5, 10 and 11 which has resulted in passing of an erroneous order. The trial Court has erred in refusing to consider the evidence of P.W.2 who is an eyewitness to the incident. According to them, prosecution has proved the case against the accused beyond all reasonable doubt and therefore, the trial Court ought to have convicted the accused. 8. On the other hand, the learned counsel appearing for the accused has argued in support of the impugned Judgment and Order of acquittal. According to them, prosecution has proved the case against the accused beyond all reasonable doubt and therefore, the trial Court ought to have convicted the accused. 8. On the other hand, the learned counsel appearing for the accused has argued in support of the impugned Judgment and Order of acquittal. He submits that even if there is a possibility of taking a dif ferent view of the matter, the view taken by the trial Court should not be interfered unless the impugned Judgment and Order of acquittal is perverse and illegal . He therefore, prays to dismiss the appeal. 9. We have carefully considered the rival contentions of the parties and perused the material evidence avai lable on record. The question for consideration that arises in these appeals is as follows : "Whether having regard to the material evidence available on record, the Trial Court was justified in acquitting the accused for the offences punishable under Sections 498A and 302 of IPC and Section 3 of the Dowry Prohibition Act?" 10. Prosecution in order to establish its case and prove the guilt of the accused has in all examined 13 witnesses as P.Ws. 1 to 13. P.W.1. Dr.Kotrabasappa has spoken about the post mortem examination of the dead body of Smt.Laxmi. He has also spoken about the external injuries found on the body and opined that the death is due to asphyxia as a consequence upon compression over neck. Post mortem report is marked as Ex.P.1 and his opinion with regard to the cause of death is marked as Ex.P.2. 11. P.W.2 is the minor daughter of deceased Laxmi. She has stated that the accused and her mother were quarreling in the night and hearing the same she woke up. She has stated that the accused assaulted her mother on her neck causing injury and her mother fell down. The accused then throttled her mother's neck and thereafter her mother did not speak. Immediately, the accused brought her to her aunt Yallawwa's house and the accused went away stating that he would take her mother to the hospital. Her mother was admitted in the hospital where she died. P.W.3 complainant is the younger sister of deceased-Laxmi. She has narrated the incident before the Court as stated in her complaint-Ex.P.4. She has identified the complaint and her signature on it as Ex.P.4 and Ex.P.4(a). 12. Her mother was admitted in the hospital where she died. P.W.3 complainant is the younger sister of deceased-Laxmi. She has narrated the incident before the Court as stated in her complaint-Ex.P.4. She has identified the complaint and her signature on it as Ex.P.4 and Ex.P.4(a). 12. P.W.4-Yal lappa is the brother-in-law of deceased. He is a panch witness to the spot mahazar- Ex.P.12 and seizure mahazar-Ex.P.13. M.Os.1 and 2 are marked through him. He has spoken about the ill-treatment meted out on the deceased by accused and he has stated that his house is situated at distance of about 500 meters from the house of accused. He has also stated about the son of deceased-Laxmi coming to his house at about 9.00 p.m. on 23.05.2012 to inform that his parents were quarreling. He has also stated that later on accused came to his house and informed him that his wife-Laxmi was behaving weirdly and asked him to accompany him. Immediately P.W.4 has accompanied him to his house. He has spoken about the presence of the son of accused and P.W.2-Rakshita at the time of his visit to the house of accused and arranging an ambulance which carried Laxmi to KIMS Hospital, Hubballi. He has stated that the history about the patient was given to the Doctor in the said Hospital by him. 13. P.W.5-Ashok Agasimani, is the nephew of the complainant and the deceased. He has stated that after getting information about his aunt Laxmi's death he went to the hospital and saw her dead body. He has spoken about the inquest mahazar and he is a panch witness for inquest mahazar Ex.P.14. P.W.6 is the Women Police Constable who has carried the F.I.R. to the Court of Jurisdictional Magistrate. P.W.7 is the photographer and Ex.P.5 to Ex.P.9 are the photographs taken by him. P.W.8 is the Women Police Constable who has assisted the Investigating Officer and she is the scribe of Ex.P.12-spot mahazar. P.W.9 is another Women Police Constable, who has carried the viscera and other items to the Regional Forensic Science Laboratory at Belagavi for chemical examination. 14. P.W.10 is the elder sister of the deceased and the complainant. She has spoken about the frequent quarrel between the deceased and accused. P.W.9 is another Women Police Constable, who has carried the viscera and other items to the Regional Forensic Science Laboratory at Belagavi for chemical examination. 14. P.W.10 is the elder sister of the deceased and the complainant. She has spoken about the frequent quarrel between the deceased and accused. She has also stated that on the date of incident at about 1.00 a.m. the accused had come to her house along with P.W.2 Rakshita and stated that Laxmi was not feeling well and asked her to come along with him. Immediately, she had gone along with accused to his house and at that time her sister Laxmi was lying on the floor in the bed room and she was not in a position to speak. Her son arranged for an ambulance from KIMS hospital and shi fted her sister Laxmi to the hospital. Thereafter she called her brother, sister and other relatives, who immediately came to the hospital. She has stated that P.W.2- Rakshita informed the complainant about the accused throttling the neck of her mother. She has stated that accused was suspecting the character of his wife and therefore throttled her neck and killed her. P.W.11 is another nephew of the deceased and the complainant and he is the son of P.W.10. He has spoken about the presence of the son of the deceased-Laxmi in her house. 15. P.W.12 is the Police Sub-Inspector of Women Police Station who has registered the complaint and forwarded the FIR-Ex.P.15 to the Jurisdictional Court of Magistrate through P.W.6. During the course of her investigation she has arrested the accused and produced him before the Court. She also conducted the inquest mahazar and photographs of the body were taken at her instance by P.W.7. Spot mahazar- Ex.P.12 was recorded as per her instructions by P.W.8 and she also recorded statement of several witnesses. After completion of the post mortem examination, dead body was handed over by her to the relatives. P.W.13 Inspector of Police took over further investigation from P.W.12. She has forwarded the seized items to Regional Forensic Science Laboratory, Belagavi for chemical examination and spot sketch at Ex.P.20 was got prepared by her. She also speaks about the Medical Officer's report obtained by her which are marked as Ex.Ps.2 and 3. 16. P.W.13 Inspector of Police took over further investigation from P.W.12. She has forwarded the seized items to Regional Forensic Science Laboratory, Belagavi for chemical examination and spot sketch at Ex.P.20 was got prepared by her. She also speaks about the Medical Officer's report obtained by her which are marked as Ex.Ps.2 and 3. 16. After closure of the prosecution evidence, statement of the accused under Section 313 of Cr.P.C. was recorded and he has denied all the incriminating evidence against him and stated that deceased had hanged herself and on seeing this, he called his neighbour-Neelappa and together they brought down the dead body of Laxmi. In support of his defence Neelappa (D.W.1), who is his immediate neighbour is examined. D.W.1 has stated that he heard accused crying for help and on hearing the cry he went to his house and saw deceased-Laxmi's body hanging. Immediately, they both brought down the dead body. He has also stated that a girl who was sleeping woke up hearing the noise. He has stated during the course of his cross-examination, that there were many other houses in his neighborhood. He has also stated that one of his sons is a teavendor in the Court premises. 17. P.Ws.2 to 5 and P.Ws.10 and 11 are the independent witnesses examined by the prosecution in support of its case. P.W.2 is the alleged eyewitness who was a minor aged about 7 years at the time of incident. Her evidence has to be scrutinized and appreciated by the Court with great care and caution. P.W.2 has stated that she and her brother-Vinayak were residing with the complainant after the death of her mother. She has stated that her parents were quarreling for no reasons. She has also stated that on the date of incident she was asleep and hearing the parents quarrel she woke up and tried to pacify them. Accused assaulted the deceased on her mother's neck, as a result of which she fell down. The accused then throttled her mother's neck and thereafter her mother did not speak. She has also stated that immediately thereafter, accused took her to the house of P.W.4 and her mother was subsequently admitted to the hospital. 18. During the course of her cross-examination, she has stated that her aunt used to daily read out the statement with regard to throttling the neck of her mother. She has also stated that immediately thereafter, accused took her to the house of P.W.4 and her mother was subsequently admitted to the hospital. 18. During the course of her cross-examination, she has stated that her aunt used to daily read out the statement with regard to throttling the neck of her mother. From a perusal of the answers given by her, during the course of her cross-examination, it appears that she was being tutored. Her evidence is full of inconsistencies and the same does not inspire confidence. It is true that we cannot expect much consistency in the deposition of this witness. But from the tenor of her deposition it is evident that she was not a free agent and possibilities of she being tutored at all stages by some one or the other cannot be ruled out. Circumstances indicate that it is not quite safe to rely on her evidence. Further, D.W.1 has stated that when he went to the house of accused immediately after the incident, he found a girl sleeping who subsequently woke up. It has come in the evidence of P.Ws.4 and 11 that the son of accused who is elder to P.W.2 was residing in the very same house and as on the date of incident he was present. He would have been a very material witness. The prosecution for the reasons best known to it has not got his evidence recorded. 19. P.Ws.3 to 5, 10 and 11 are not eyewitnesses to the incident in question. They come into picture only after the incident had taken place. P.Ws.2 to 5, 10 and 11 are close relatives of the deceased. They are hearsay witnesses to the incident in question, they are highly interested witnesses. Except these witnesses, the prosecution has not examined any other independent witnesses. D.W.1 who is the neighbour of accused has clearly stated there are many other houses in the neighborhood. Prosecution has failed to examine any one of them. Except P.Ws.2 to 5, 10 and 11 who are the close relatives of deceased all other witnesses examined by prosecution are official witnesses. 20. P.W.1 Doctor who has conducted the post mortem examination has stated in his report that the death may be result of asphyxia as a consequence upon compression over neck. Therefore the medical report is not conclusive. Except P.Ws.2 to 5, 10 and 11 who are the close relatives of deceased all other witnesses examined by prosecution are official witnesses. 20. P.W.1 Doctor who has conducted the post mortem examination has stated in his report that the death may be result of asphyxia as a consequence upon compression over neck. Therefore the medical report is not conclusive. At the request of accused, the case sheets totally numbering 19 pages were secured by the trial Court and marked as Ex.C-1. As could be seen from Ex.C.1, the history given with regard to patient shows hanging at 10.10 p.m. on 23.05.2012 at her resident at old Hubballi. P.W.4 who had accompanied the accused to the hospital has stated that the history was given by him to the doctors. In Ex.P.1, it is mentioned in column No.3, hyoid bone and thyroid cartilage are intact. According to Medical Jurisprudence, in the cases of manual strangulation, in normal circumstances, there could be fracture of hyoid bone and thyroid cartilage. 21. The trial Court, on an overall appreciation of the material evidence available on record has arrived at a right conclusion that prosecution has failed to prove the gui lt of the accused beyond reasonable doubt. The view taken by trial Court is a possible and plausible view. We are of the considered opinion that the said view of the trial Court is neither illegal nor perverse and therefore, the point for consideration is answered in the affirmative. The appeals are devoid of merits and accordingly they are dismissed.