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Judgments of Supreme Court of India and High Courts

State Of Karnataka vs Basappa on 2 July, 2019

1

IN THE HIGH COURT OF KARNATAKA AT BENGALURU

ON THE 2ND DAY OF JULY, 2019

BEFORE

THE HON’BLE MR. JUSTICE RAVI MALIMATH

AND

THE HON’BLE MR. JUSTICE H.P.SANDESH

CRIMINAL APPEAL NO.573 OF 2013

BETWEEN:

STATE OF KARNATAKA
REPRESENTED BY POLICE SUB INSPECTOR
MANGALURU EAST POLICE STATION. … APPELLANT

(BY SRI. I.S. PRAMOD CHANDRA, SPECIAL PUBLIC
PROSECUTOR-2)

AND:

BASAPPA
SON OF KARIYAPPA
AGED ABOUT 40 YEARS
RESIDING AT GARAGADAR HOUSE
NEAR KARISIDDAPPA TEMPLE
MATHIKATTE
KUNDUGOLA TALUK
DHARWAD DISTRICT-581 113. … RESPONDENT

(BY SRI. P. KARUNAKAR, ADVOCATE)

THIS CRIMINAL APPEAL IS FILED UNDER SECTION
378(1) AND (3) CRIMINAL PROCEDURE CODE PRAYING TO
GRANT LEAVE TO FILE AN APPEALAGAINS THE JUDGMENT
2

DATED 03.01.2013 PASSED BY THE I ADDITIONAL
DISTRICT AND SESSIONS JUDGE, DAKSHINA KANNADA,
MANGALURU IN SESSIONS CASE NO.35 OF 2011 –
ACQUITTING THE RESPONDENT-ACCUSED FOR THE
OFFENCE PUNISHABLE UNDER SECTIONS 498A AND 302
OF INDIAN PENAL CODE.

THIS APPEAL HAVING BEEN HEARD AND RESERVED
FOR JUDGMENT ON 17.06.2019 COMING ON THIS DAY,
H.P. SANDESH J., PRONOUNCED THE FOLLOWING:-

JUDGMENT

This appeal is filed by the State against the

judgment dated 03.01.2013 passed in Sessions Case

No.35 of 2011 on the file of I Additional District and

Sessions Judge, Dakshina Kannada, Mangaluru.

2. The factual matrix of the case is that the

accused being the husband of deceased subjected his wife

to cruelty and committed the murder. Hence, the offences

are punishable under Sections 498-A and Section302 of Indian

Penal Code.

3. The nutshell of the case of the prosecution is

that the marriage between the accused and deceased took

place 12 years ago and both of them were living with their
3

two children in the ground floor room which was provided

to them in the apartment by P.W.23. On the previous day

of the incident i.e., on 08.11.2010, the accused left the

house to go to his native place Konnuru leaving his wife

and children and brought his mother-in-law (P.W.4) to his

house and he left the house at 6 O’ clock in the evening on

08.11.2010 and he came back early in the morning at 6 O’

clock on the next day. On 09.11.2010 he came and told

that he did not go to his village and he came back from

Sirsi and told his wife and children to get ready to go to

Mangaladevi Temple. It is the further case of the

prosecution that the accused took his wife to the terrace in

the lift, abused her that since she is not having good

character, it is better to die and saying so, he forcibly

pushed the deceased from the third floor of the terrace. As

a result of the same, the deceased-Hanumavva fell on the

ground and sustained grievous injuries on the forehead,

both hands and other parts of the body. The injured was

taken to the Unity Hospital, which is located near the

apartment. Since there was no response, she was shifted
4

to KIMS Hospital, Hubli where the injured died on

12.11.2010.

4. The Police have registered the case based on the

complaint of P.W.4 at the first instance for the offences

punishable under Sections 498-A and Section307 of Indian Penal

Code and when the injured succumbed to the injuries, the

offence under Section 302 of Indian Penal Code was

invoked instead of Section 307 of Indian Penal Code.

Thereafter investigation was taken up and charge sheet

was filed against the accused under Sections 498-A and

Section302 of Indian Penal Code.

5. The prosecution, in order to prove the case

examined P.Ws.1 to 25 and got marked the documents

Exs.P1 to P18(a) and so also produced the material objects

which were marked as M.Os.1 to 7. The accused did not

lead any defence evidence. The Court below recorded 313

statement of the accused and after hearing both the State

Public Prosecutor for the appellant-State and learned

counsel for respondent-accused, acquitted the accused
5

under Sections 498-A and Section302 of Indian Penal Code.

Being aggrieved by the judgment of acquittal, the State

has preferred the present appeal.

6. In the appeal, the main contention of the State

is that the learned trial Judge did not appreciate the

evidence of prosecution in the right perspective and the

very finding of the trial Court is perverse. The State in the

appeal would also contend that the learned Session Judge

gave much importance to minor discrepancies in the

evidence of the prosecution witnesses which would only go

to show that the witnesses have deposed naturally and are

not tutored. The learned trial Judge has failed to take note

of the evidence of P.Ws.1 to 23 who are independent

witnesses and they have no reason to depose against the

respondent-accused. Though their evidence is consistent

and convincing, the learned trial Judge has discarded the

same. P.Ws.2 and 3 are chain witnesses. Though they

have supported the case of the prosecution, the learned

trial Judge has failed to consider their evidence. P.W.4, the
6

mother of the deceased has fully supported the case of the

prosecution.

7. Though learned counsel for the respondent-

accused has argued that deceased sustained injuries, when

she fell down in the bathroom, the same has not been

substantiated by producing reliable evidence and the

injuries sustained by the deceased are not possible to

sustain, if she has fell down in the bathroom. The Doctor,

who has been examined before the Court has stated that

the nature of injuries sustained by the deceased and the

medical evidence speaks to the effect that the said injuries

could be caused only when there is a fall from a distance of

more than 20 feet and the learned trial Judge only gave

much importance to minor discrepancies.

8. The mother of the deceased and her children

have deposed before the Court that accused used to

frequently quarrel with the deceased. The trial Court has

failed to take note of the fact that the accused was last

seen in the company of the deceased and witnesses have
7

seen the accused taking the deceased to the third floor.

Hence, the burden is cast on the accused to give

explanation for the death of the deceased and the same

has not been done. Hence, it is a fit case to reverse the

findings of the trial Court and convict the accused for the

offences alleged against him.

9. Sri Pramod Chandra, learned State Public

Prosecutor appearing for the State in his argument would

contend that the learned trial Judge has given much

importance to discrepancies found in the evidence of

P.Ws.2 and 4, but it has not taken into consideration the

evidence of P.Ws.1 to 4 and 23 who have supported the

case of the prosecution. Out of the witnesses P.Ws.1 to 4

and 23, P.W.1 is the resident of first floor of the very same

apartment and P.W.23 is the resident of third floor of the

apartment. They are independent witnesses and they are

not having any animosity against the accused to depose

against him. The other witnesses viz., P.Ws.2 to 4 are

minor children and mother of the deceased. Though they
8

are interested witnesses, their evidence cannot be

discarded on the ground that they are relatives of the

accused. The same has to be weighed taking into account

the circumstances of the case. The prosecution has also

examined the other witnesses, particularly, P.W.21-Doctor

who conducted the post mortem and gave the post

mortem report as at Ex-P17. He has categorically stated

that the nature of injuries sustained by the deceased could

be caused only if she has fallen from the height and no

chances of sustaining injuries if any person falls down in

the bathroom and the evidence of P.W.7 and other Doctor

also discloses with regard to the nature of injuries which

are found in Ex.P5. Hence, it is a fit case to re-appreciate

the evidence and convict the accused for the offences

alleged against him.

10. Per contra, learned counsel appearing for the

accused would contend that the learned trial Judge while

considering both oral and documentary evidence

meticulously examined the incriminating evidence against
9

the accused and disbelieved the version of P.Ws.2 to 4,

who are the related witnesses and also the eye witnesses

to the incident. None of the witnesses have spoken that

the deceased was taken by the accused to the third floor.

The learned trial Judge while giving reasons has observed

that it is highly impossible to see what is going on in the

third floor terrace since, there was a Parapet wall to the

extent of 3 feet surrounding the area and the place

wherein it is alleged that the deceased was pushed, there

is a 5 feet Parapet wall. Considering the material available

on record, including the evidence of P.W.1, who is the

hearsay witness and also the evidence of P.W.23, who did

not witness the incident of pushing the deceased from the

terrace and did not support the case of the prosecution, in

order to arrive at a conclusion that the accused only

committed the murder by pushing his wife from the

terrace, the Court below has also taken note of the fact

with regard to the discrepancy in taking the injured to

hospital since some of the witnesses say that injured was

taken to the hospital by the accused himself and some of
10

the witnesses say that the accused did not accompany the

injured. So also with regard to apprehending of the

accused, it is the case of the prosecution that the accused

was apprehended in the apartment wherein, the accused

was staying but some of the witnesses say that accused

was apprehended in the hospital itself. Hence, the Court

below has considered the material discrepancies and major

contradictions in the evidence of prosecution and rightly

acquitted the accused since, there was no incriminating

evidence against the accused. No doubt, while cross-

examining the witnesses, defence was taken that she fell

down and sustained injuries in the bathroom and further

she accidentally fell down from the terrace, this contra-

defence will not come to the aid of the prosecution and the

burden is highly on the prosecution to prove that the

accused only pushed the deceased from the terrace. Since

there are no clinching evidence to prove the same, the trial

Court has given the benefit of doubt in favour of the

accused and there are no grounds to interfere with the
11

judgment of acquittal to come to the other conclusion.

Hence, he prayed this Court to dismiss the appeal.

11. Having heard the arguments of the learned

Additional State Public Prosecutor appearing for the

appellant-State and also the learned counsel appearing for

the respondent-accused, this Court has to examine the

material available on record and re-appreciate the same.

In order to re-appreciate the same, the points that arise

for consideration before us is:

“Whether the Court below has committed an

error in acquitting the accused for the offences

punishable under Sections 498-A and Section302 of Indian

Penal Code.”

12. We would like to mention in brief the witnesses,

who have been examined by the prosecution, in order to

prove the case of the prosecution. As already pointed out,

P.Ws.1 and 23 are the residents of the same apartment

and P.Ws.2 and 3 are minor children of the deceased and

the accused. P.W.4 is the mother of the deceased. The
12

prosecution mainly relies upon the evidence of these

witnesses in order to prove the case of the prosecution.

The other witnesses viz., P.W.5 and P.W.18 are the panch

witnesses in respect of Ex.P2 with regard to the seizing of

the articles M.Os.3 to 6. P.W.25 has also drawn the sketch

of the scene of offence in terms of Ex.P18 and also

recorded the statement of P.Ws.1 and 25.

13. P.W.25 also visited the Unity Hospital and

recovered the belongings of the deceased by drawing

mahazar in terms of Ex.P.3 i.e., in respect of MOs.1 and 2

in the presence of P.Ws.10 and 11. P.W.25 also recorded

the statement of P.Ws.5 and 18. It is also the case of the

prosecution that P.W.25 has received the credible

information that accused is near the said apartment. Along

with his staff, he proceeded to the said spot and

apprehended the accused. He gave voluntary statement

and he was subjected to the medical examination and

thereafter, he handed over the accused to P.W.24 who

conducted the further investigation and filed the charge
13

sheet. The other witnesses are police witnesses, who

carried the FIR and also sent requisition to the Court for

converting the offence from Section 307 of Indian Penal

Code to Section 302 of Indian Penal Code.

14. Keeping in view the contentions urged by both

learned counsel for appellant as well as learned counsel for

respondent, in order to prove whether offences under

Sections 498-A and Section302 of Indian Penal Code has been

committed, we have to consider the evidence of main

witnesses of the prosecution i.e., particularly the evidence

of P.Ws.1, 2, 4 and 23, since the case of the prosecution

depends on their evidence. The other witnesses are only

the formal witnesses, since they are the witnesses for

seizure of MOs and no incriminating evidence is available

against of the accused.

15. Now, let us notice the evidence of P.W.1. P.W.1

in her evidence says that she is staying in G-2 flat of the

same apartment in the ground floor and very next to her

flat, a room is provided to the watchman, wherein the
14

accused and deceased were living along with their two

children. The accused was doing the job of watchman and

deceased was doing vegetable vending business. P.W.1

says that 1 year 11 months ago, at around 7.30 a.m., she

heard the screaming sound of the children of the deceased

and accused. Immediately she did not come out. While

sending the children to school, she came out. At that

time, she came to know through P.W.23 that the accused

pushed his wife from the terrace of the third floor. By that

time, injured had already been taken to hospital by her

husband and found the blood stains at the spot. It is also

her evidence that in the third floor of terrace, there is a

parapet wall and no chances of accidentally falling from the

terrace unless to climb the parapet wall and fall down. The

police have recorded her statement. While making the

statement, she says that both husband and wife were

quarrelling with each other and assaulting children. P.W.1

was subjected to cross-examination. In the cross-

examination, it is elicited that she came to know about the

incident through P.W.23 and key of the terrace was with
15

the watchman. A suggestion was made that if there was

any galata in the house of watchman, the same cannot be

heard, the said suggestion was denied. She also claims

that P.W.23 told her that accused himself took the injured

to the hospital. She admits that she did not make any

statement before the police that accused was beating his

children and for the first time, she was deposing the same

before the Court. P.W.1 further admits that she did not

make any statement that parapet wall is there. But, she

voluntarily states that police did not ask her and hence,

she did not tell the same.

16. P.W.2 is the son of the deceased. Since P.W.2 is

aged about 11 years, formal questions were put to him.

After convincing that the witness is capable of

understanding the questions, the Court below has recorded

the evidence. P.W.2, in his evidence, says that two years

ago, his father i.e., accused left the house after collecting

the amount from his mother that he will visit to his village

and brought P.W.4, who is the grandmother, to the house.
16

On that day, his mother and grandmother were also there

in the house and on the next day morning at about 6.00

a.m., his father returned to house. His father told that he

did not go to his village. He went up to Sirsi and came

back to the house. He told them to take bath to visit

temple and hence, all of them had bath. Thereafter, his

father took the mother in the lift. He also deposed that he

told his grandmother that father took the mother to

terrace. Thereafter father assaulted the mother and

pushed her from terrace. As a result, mother fell down

and sustained injuries. He further says that he and his

grandmother had gone to the 2nd floor. At that time, they

heard screaming sound on the terrace and pushed the

mother and immediately, they came down and shifted the

mother to hospital. In the cross-examination of P.W.2, it

is elicited that while going to his village, his father himself

brought the grandmother and when he came back, he told

to visit Kadri Temple. When he took the bath, at that

time, the grandmother was in the room. He admits that if

any person talks in the terrace, same cannot be heard in
17

the ground floor. Further, he admits that if a person stands

in the second floor, he cannot see the persons in the third

floor. When they were in the second floor, P.W.1 came

out. He admits that he himself, his sister and grand

mother did not go to terrace and after hearing the sound

of his mother screaming, they came back to ground floor

where the mother had fallen on the ground. They rushed

to the spot. But, he says that some people who came to

the spot, shifted the injured to the hospital and thereafter,

his father came to hospital and police arrested his father at

the hospital.

17. P.W.3 is the daughter of the deceased and

accused, who is aged about 13 years. The Court below

after convincing with regard to the capacity to understand

the questions, recorded the evidence. P.W.3, in her

evidence, repeats the evidence of P.W.2 regarding going to

village, coming back on the next day morning and

instructing to get ready to go to the temple and mother

also w3ent to take bath and also taking the mother to
18

terrace in a lift. However, the further evidence of P.W.2 is

that her father was scolding her mother with whom she

went and thereafter, heard the screaming sound. Herself,

her brother and grandmother were watching the same

standing in the ground floor. In the meanwhile, her father

pushed the mother, as a result she fell down and sustained

injuries. Immediately her mother was taken to Unity

hospital. Grandmother gave a complaint against her

father. Thereafter, she was shifted to KIMS Hospital, where

she breathed her last. In the cross-examination of P.W.3,

she says that she was studying in the 5th standard and at

that time, both parents were taking care of her education.

There are three floors in the said apartment. P.W.3 claims

that the father used to scold her mother that she would go

in the early morning and she was not having any manners.

So saying he used to assault his mother. But, there was

no galata with regard to money matters. In the cross-

examination, she says that when her father was assaulting

her mother in the terrace, they were able to hear and they

were standing outside the house and they were about to
19

go to 1st floor. By that time, her mother fell down and

immediately, they rushed to the spot and mother was

taken to hospital and father did not accompany her. P.W.3

claims that the police arrested her father when he was in

the third floor of the very same apartment. It is suggested

that if a person stands in the first floor, the same cannot

be viewed what is happening in the third floor and the said

suggestion was denied.

18. P.W.4 is the mother of the deceased and in her

evidence, she says that she performed the marriage of the

deceased and the accused. Both of them were living in the

apartment at Mangalore and further, she says that she

used to visit the said house once in a week. It is further

deposed in her evidence that accused was suspecting

about fidelity of her daughter. The accused brought her to

his house and he left the house in order to go to his

village. On the very next day, he came back at 6.00 a.m.

When she was questioned him, he told that he came back

in order to take the family members to Kadari Temple. At
20

that time, she told to take the children also along with

them. Hence the accused instructed his wife to take bath.

They took bath. Thereafter P.W.2 came and told that

accused was beating his wife, took her in the lift and she

heard screaming sound. Hence she went outside and

shouted not to push his daughter. In the meanwhile

accused pushed her. As a result, her daughter sustained

injuries. Immediately people gathered near the spot.

P.W.4 further says that her daughter was taken to the

hospital in an autorickshaw wherein Police came and

recorded her statement. She gave the statement in terms

of Ex.P1. She identifies her left thump impression. Police

also came to spot and conducted mahazar in terms of

Ex.P2 and she attested the same by Left Thumb

Impression. The Police also seized broken bangles,

chappal in terms of mahazar and she identifies the

Mahazar as Ex.P3 and also M.O.Nos.3 and 4. P.W.4

further says that her daughter was taken to KIMS Hospital

for further treatment where she succumbed to the injuries.

The doctor conducted postmortem report and handed over
21

the body. It is her further evidence that there is a parapet

wall in the terrace to the extent of 3 ft and there are no

chances of accidentally falling down from the terrace. She

says that her grand daughter is staying along with her and

grand son is staying along with the sister of the deceased.

P.W.4 was subjected to cross examination. In the cross

examination a suggestion was made that her daughter was

short tempered which was denied. Further a suggestion

was made that she used to make galata for trivial issues

with her husband. The said suggestion is also denied. It

is stated that earlier she used to do vegetable vending

business. She told her daughter to do vegetable vending

business. The accused gave money to her daughter to do

the said business. It is elicited that no panchayat was

conducted. When the accused bet her daughter, she used

to advise him. It is also her evidence that she brought the

fact of causing harassment to her daughter to the notice of

brothers of accused and no complaint was given against

him to the Police or to the owner of the apartment. It is

also elicited that accused was cordial with her. It is further
22

elicited that she did not witness the accused taking her

daughter in the lift, but the same was witnessed by her

grand son. It is elicited that if a person stands in the

ground floor, he can see what is happening in the terrace

and when her daughter was screaming, she did not call the

residents of neighbouring house. It is further elicited that

she did not take her grand children to the terrace. Either

herself or her grand children did not observe what is

happening in the upstairs. When her daughter fell down

from the terrace at that time both the grand children were

along with her. Suggestion was made that it is not

possible to see what is happening on the terrace by

standing in the ground floor and the said suggestion was

denied. P.W.4 further says that accused did not

accompany her daughter. She did not go to Kadri Police

station. The Police took her Left Thumb Impression to

Exs.P1 to P2 and she does not know the contents of

Exhs.P1 and P2.

19. The other material witness is P.W.23 who is also

the occupant of the very same apartment. P.W.23 who is
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the owner of the apartment also in her evidence says that

the accused was working as watchman and she gave

accommodation to him and his family. It is the evidence

of P.W.23 that the accused whenever drunk, under the

influence of liquor used to quarrel with his wife. It is

further evident that on 09.11.2010 at about 7.30 a.m. she

was in the flat and heard a loud noise of somebody

screaming. Immediately, she came out of the flat and

noticed that the accused was coming down from the

terrace of the third floor after locking the door leading to

terrace. When she asked the accused as to what

happened, he immediately ran to ground floor and she

followed him to notice that the wife of accused had fallen

down from the terrace and there was bleeding from nose

and ears. The mother of the deceased and two children

were screaming. When enquired, the mother of the

deceased was informed that accused pushed her from the

terrace and immediately the injured was taken to the

hospital and she also rushed to the hospital and Police

came and took the accused to their custody. She collected
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the key from the accused in respect of the terrace. It is

also her case that on the terrace all around there is a 3 ft

wall where the accused pushed his wife there is a 5 ft wall

and there is sloping. Further it is her evidence that she

can make out sloping on the roof and from there the

accused No.1 pushed his wife. Since there is 3ft wall

around the terrace, one cannot fall accidentally by

slippery. When the Police enquired her, she has narrated

in detail. P.W.23 was subjected to cross examination and

in the cross examination she admits that she cannot say

whether the accused and his wife are cordial or not. She

says that the accused took his injured wife to the hospital.

It is elicited that by standing in the third floor, one cannot

see the terrace and also elicited that she has stated before

the Police that the mother of the deceased had informed

about the incident.

20. The other prosecution witness P.W.21 who

conducted the autopsy on the dead body, noticed 16

injuries and all the injuries are antemortem in nature and

on dissection of the brain and spinal cord, the brain was
25

covered with sub-arachnoid and subdural haemorrahage all

other the brain and the death was due to respiratory

failure consequent upon the injury to the brain. P.M report

is marked as Ex.P17 and the evidence of witness P.W.21 is

not challenged. P.W.7 the doctor who gave the treatment

at the first instance noticed the injuries and opined that

injury No.1 is simple in nature and rest of the injuries are

grievous in nature. The doctor opined that the injured

might have fallen on the ground from the height of 20 ft.

Since the medical expenses in Unity Hospital was

expensive, the injured was shifted to KIMS Hospital.

P.W.7 doctor has issued Ex.P5. The doctor was subjected

to cross examination and says that when he examined the

injured, she was incapable of speaking. The history given

to him was that the injured had fallen from the top of the

building. It is his evidence that if a person slips from the

height of 5 feet and falls on the ground, in such event, the

injuries recorded by him in the wound certificate Ex.P5

cannot be caused.

26

21. The prosecution also relied on the evidence of

other witnesses who are panch witnesses i.e., recovery of

belongings of the deceased. P.W.6 is none other than the

brother in law of the accused and he came to know of the

incident through his mother. He has not spoken anything

about the harassment or cruelty meted out to his sister.

P.W.8 is the brother in law of the deceased. He also did

not speak about the harassment or cruelty meted out to

the deceased by the accused. He was not subjected to any

cross examination. The prosecution relies upon the

evidence of the Police witnesses i.e., PWs.24 and 25.

22. P.W.12 received the complaint from P.W.1 and

registered the FIR and send the same to the Court in terms

of Ex.P10. P.W.25 went to spot, drew the mahazar in

terms of Ex.P2, recorded the statement of some of the

witnesses and prepared the sketch, in terms of Ex.P18. He

also recorded the statement of P.W.23 and P.W.4, seized

M.O.Nos.3 to 6, drew the mahazar in terms of Ex.P3 and

thereby he entrusted the further investigation to P.W.24.

In the cross examination, it is elicited that the apartment
27

consists of three floors and he also admits that if any

person standing in the second or first floor cannot see who

are all standing in the third floor. P.W.24 in his evidence

says that after collecting the investigation material from

P.W.25 continued the investigation, collected the PM

report, secured the records, obtained the report from the

forensic lab which is marked as Ex.P13 and 14 and filed

charge sheet. In the cross examination of P.W.24 he

admits that no complaint is received about the physical

and mental harassment given to the deceased. It is

suggested that she fell down and sustained injuries in the

bathroom and a false case has been registered for an

offence punishable under Section 302 of Indian Penal Code

and the said suggestion is denied.

23. Now let us consider the material available on

record keeping in view the contentions urged by both the

learned counsel for the appellant and the learned counsel

for the respondent-accused i.e., whether the Court below

has committed an error in appreciating the evidence

available on record ?

28

24. Firstly, we would like to decide the issue with

regard to the cause of death of the deceased. The injured

was taken to Unity Hospital at the first instance where

P.W.7 – Dr.Mahabalesh Shetty, examined the injured and

found 11 injuries. He deposed that injury No.1 is simple in

nature and rest of the injuries 2 to 11 are grievous in

nature and also his evidence is specific that the injured

might have fallen on the ground from the height of more

than 20 feet and sustained the injuries. In the cross-

examination of this witness, it is elicited that a person may

die at the spot, if he falls from the height of 40 feet and

the said person may also sustain fracture to the entire

body. It is suggested that Injury No.2 may be caused if a

person falls on a rough surface from the height of five feet

and the said suggestion was denied and also denied the

suggestion that if a person slips from the height of five

feet and falls on the ground and the same also

categorically denied. The Doctor who conducted the post

mortem i.e., P.W.21 – Dr.Sunil Kumar S.Biradar has
29

deposed that the death is due to respiration failure

consequent upon to the injury to the brain. Hence, it is

clear that the death is on account of the deceased

sustaining injuries as a result of falling on the ground from

the height of more than 20 feet.

25. Now, the question before us is, whether the

prosecution was able to prove that the accused has

committed the murder by pushing the deceased from the

terrace to the ground. The prosecution relies upon the

evidence of P.W.1, who is the resident of the first floor of

the very same apartment and she did not witness the

incident and she came to know about the incident through

P.W.23. Hence, the evidence of P.W.1 will not come to the

aid of the prosecution. The other witnesses P.Ws.2 to 4

are minor son, daughter and the mother of the deceased.

Merely because they are relative witnesses, the same

cannot be a ground to discard the evidence of the

prosecution. At the same time, it has to be noted that
30

P.Ws.2 and 3 are the son and daughter of the accused

also.

26. Now, the question before us is, whether the

evidence of P.Ws.2 to 4 inspires the confidence of the

Court that accused committed the murder of his wife by

pushing her from terrace. In order to substantiate the

case of the prosecution, the prosecution mainly relies upon

the evidence of P.W.4. P.W.4 in her evidence says that

P.W.2 came and told her that the accused bet his wife and

took her in the lift and thereafter she heard the screaming

sound. Then, P.W.4 went some distance from the house,

saw the accused and deceased and requested the accused

not to push her daughter. Inspite of she requesting, he

pushed her and as a result, she sustained injuries. In the

cross-examination, P.W.4 admits that she did not witness

the accused dragging the deceased in the lift. But, she

claims that grand son i.e., P.W.2 told her. But, she claims

that if a person stands in the ground floor, one can see the

persons standing in the terrace. It is important to note
31

that she categorically admits that when she heard the

screaming sound, she did not call upon any of the

residents of the apartment. Further, she admits that she

did not make any efforts to take the grand children to the

terrace and either P.W.4 or grand children did not go to

see, what is happening in the terrace.

27. It is pertinent to note that P.W.2, in his

evidence says that he had informed the grandmother that

his father took his mother and he claims that he witnessed

pushing of his mother by his father. He admits in the

cross-examination that he took P.W.4 to the second floor

and when they were in the second floor, they heard the

screaming sound of his mother. Hence, it is clear that

according to P.W.2, both P.W.4 and himself were in the

second floor. In the cross-examination, he categorically

admits that if any person falls from the terrace, the same

cannot be heard in the ground floor and also he admits

that if a person stands in the second floor, he cannot see

the persons in the third floor.

32

28. The other material witness of the prosecution is

P.W.3, who is the daughter of the deceased. In her cross-

examination, she claims that when the father was

assaulting his mother on the terrace, the same was audible

and at that time, they were standing outside the house

i.e., herself and her brother and her grandmother. But,

she claims that when they were claiming the first floor, at

that time, mother had fallen on the ground.

29. In order to bring the accused within the purview

of Section 302 of Indian Penal Code, the evidence must be

consistent. The evidence of P.Ws.1, 2, 3 and 4 are

contrary to each other. P.W.2 claims that he himself and

grandmother were in the second floor and P.W.4 claims

that they were in the ground floor. P.W.4 further claims

that she saw the accused pushing her daughter whereas

P.W.3 daughter claims that when they were climbing the

first floor along with her brother and grandmother, mother

was pushed from the terrace and the evidence of the

prosecution does not inspire the confidence of this Court
33

that the accused only pushed her from the terrace. No

doubt, she has fallen down from the terrace. There is no

concrete evidence before the Court as to whether it is an

accidental fall or pushed by accused.

30. The main case of the prosecution is that the

accused was suspecting the fidelity of his wife. Hence he

came back without reaching his village in the early

morning at 6.00 clock. Further, it is important to note that

when he came back, he had instructed his wife and family

members to take bath to go to Kadri temple and the same

is also spoken by P.W.4. It is further important to note

that P.Ws.2 to 4 who are the inmates of the said house did

not speak anything about the quarrel that has taken place

between the deceased and the accused and only P.Ws.2

and 3 say that the accused took the deceased in the lift.

31. It is pertinent to note that if really the accused

intended to take away the life of his wife, he would not

have brought P.W.4 to his house and P.W.4 categorically

says that accused in order to go to native place – Konnur,
34

he brought P.W.4 to his house. If really, his intention was

to take away the life of his wife, he ought not to have

brought P.W.4 to his house. It is further important to note

that the prosecution relies upon the evidence of P.W.23

and no doubt, P.W.23 says that she heard the noise in the

terrace and when she came out, at that time, accused was

coming from terrace locking the door. When she asked,

what happened, he did not reply. He suddenly rushed to

the spot. It is important to note that P.W.23 in her

evidence says that the accused himself took the injured to

the hospital on her instructions and in the cross-

examination, she categorically admits that she made the

accused to take his injured wife to the hospital. P.W.23 is

a hearsay witness. During cross-examination, she

categorically admits that mother of the deceased informed

her about the incident and also she admits that she cannot

say whether accused and his wife were cordial or not? In

her chief evidence, she says that whenever accused was

under the influence of liquor, he was quarrelling with his

wife.

35

32. Having taken note of the evidence available

before the Court particularly the evidence of P.Ws.1 to 4

and P.W.23 who are the star witnesses to the prosecution,

no incriminating evidence is available against the accused

that he only pushed her from the terrace and the evidence

of P.W.23 suggests that he was running towards the

ground without replying to the questions asked by P.W.23,

went to the spot and took the injured to the hospital.

P.W.23 also categorically says that she also went to the

hospital and some of the witnesses say that the accused

was apprehended in the hospital itself. Having taken note

of these evidence, the benefit of doubt goes in favour of

the accused and the deceased might have fallen from the

terrace and no incriminating evidence is available before

the Court that this accused only pushed her from the

terrace. Under the circumstances, we are of the opinion

that there are no clinching and credible evidence before

the Court in order to arrive at a conclusion that the

accused has committed the murder of his wife.
36

33. The other charges leveled against the accused is

that he was beating and harassing his wife. In the case on

hand, except the evidence of P.W.23 that whenever he

was under the influence of liquor, he was quarrelling with

his wife. But, in the cross-examination, categorically

admits that she cannot say whether the accused and his

wife were cordial or not? It is further important to note

that P.W.4 in her evidence claims that accused was

harassing his daughter suspecting the fidelity of her

daughter. In the cross-examination of P.W.4, she

categorically admitted that accused was very cordial with

her but sometimes he used to make galata and there is no

concrete evidence before the Court with regard to the

accused suspecting the fidelity of his wife.

34. The material witness is P.W.6 who is also the

brother of the deceased and in his evidence, he has not

spoken anything about the accused harassing his sister.

The prosecution also examined the witness – P.W.8
37

brother-in-law of the deceased and he also not spoken

anything about the harassment meted out to the deceased

by the accused. The other witnesses P.W.2 and 3 as

already pointed out, have not spoken anything about the

quarrel that had taken place between husband and wife in

their presence. Hence, we are of the opinion that it is not

a fit case to reverse the finding of the trial Court.

35. The trial Court meticulously examined both oral

and documentary evidence available before the Court after

considering the evidence of each of the witnesses. The trial

Judge did not find any material to connect the accused

with the death of deceased by giving anxious consideration

to the material available on record. Therefore the learned

trial Judge rightly comes to the conclusion that the

evidence available on record does not inspire the

confidence of the Court to convict the accused.

36. In view of the discussions made above and

considering all the material available on record, we are of

the opinion that this Court did not find any reasons to
38

reverse the finding of the trial Court to come to other

conclusion. Accordingly, the Criminal appeal is

dismissed.

Sd/- Sd/-
JUDGE JUDGE

ST/AKC/NBM

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