- 1 - CRL.A No.100368/2022 IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE 9th DAY OF APRIL, 2025 PRESENT THE HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM AND THE HON'BLE MR. JUSTICE G BASAVARAJA CRIMINAL APPEAL NO.100368 OF 2022 (A) BETWEEN: STATE OF KARNATAKA REPRESENTED BY THE POLICE INSPECTOR, HIREBAGEWADI POLICE STATION DISTRICT BELAGAVI THROUGH THE ADDL. STATE PUBLIC PROSECUTOR, OFFICE OF THE ADVOCATE GENERAL, HIGH COURT OF KARNATAKA DHARWAD BENCH, DHARWAD. …APPELLANT (BY SRI. M. B. GUNDAWADE, ADDL. SPP.) AND: SMT. SUVARNA @ SHIVAKKA NEELAPPA GANAGI AGE: 42 YEARS, R/O: ARALIKATTI, TQ/DIST: BELAGAVI-590001. …RESPONDENT (BY SMT. NAGARATNA S. PATTAR AND SRI. S.B. DEYANNAVAR, ADVOCATES) THIS CRIMINAL APPEAL IS FILED UNDER SECTION 378(1) AND (3) OF CR.P.C. SEEKING TO GRANT LEAVE TO APPEAL AGAINST THE JUDGMENT AND ORDER OF ACQUITTAL DATED 17.01.2022 PASSED BY THE PRINCIPAL DISTRICT AND SESSIONS JUDGE, BELAGAVI IN SESSIONS CASE NO.122/2018 AND TO SET ASIDE THE JUDGMENT AND ORDER OF ACQUITTAL DATED 17.01.2022 PASSED BY THE PRINCIPAL DISTRICT AND SESSIONS JUDGE, BELAGAVI IN SESSIONS CASE NO.122/2018 AND TO CONVICT THE RESPONDENT/ ACCUSED FOR THE OFFENCES PUNISHABLE UNDER SECTION 302 AND 201 OF IPC IN SC NO.122/2018 ON THE FILE OF THE PRINCIPAL DISTRICT AND SESSIONS JUDGE, BELAGAVI. Digitally signed by MALLIKARJUN RUDRAYYA KALMATH Location: HIGH COURT OF KARNATAKA - 2 - CRL.A No.100368/2022 THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR JUDGMENT ON 27.03.2025, COMING ON FOR PRONOUNCEMENT OF ORDERS THIS DAY, THE COURT DELIVERED THE FOLLOWING: CORAM: HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM AND HON'BLE MR. JUSTICE G BASAVARAJA. CAV JUDGMENT (PER: THE HON'BLE MR. JUSTICE G BASAVARAJA) The State has preferred this appeal against the Judgment of acquittal passed by the Principal District and Sessions Judge, Belagavi (for short, ‘the trial Court’) in Sessions Case No.122/2018 dated 17.01.2022. 2. For the sake of convenience, the parties herein are referred to as per their ranking before the trial Court. 3. The brief facts leading to this appeal are that the Police Inspector, Hirebagewadi submitted the charge sheet against the accused for the offences punishable under Sections 302 and 201 of IPC. It is alleged that, being enraged that deceased-Mahantesh Tigadi who was having illicit relationship with accused-Suvarna and the deceased was insulting her in public, so also, he did not return the money taken from her for purchase of TATA Goods vehicle, on 19.05.2017 at about 10.30 p.m. when the deceased came to her house at Aralikatti village - 3 - CRL.A No.100368/2022 in a drunken condition, the accused strangulated said Mahantesh Tigadi with rope and committed murder and after committing the murder, the accused threw the dead body of Mahantesh Tigadi out of her house and washed her house with water to conceal the evidence of commission of offence of murder with an intention of screen herself from the legal punishment and thereby committed offences punishable under Sections 302 and 201 of IPC. 4. After investigation, the Investigating Officer has submitted the charge sheet against the accused. The jurisdictional Magistrate has took the cognizance against the accused for the commission of offences and a case was registered in CC No.1496/2017 and thereafter the case was committed to the Sessions Court, then it was registered in Sessions Case No.122/2018. 5. On hearing the charge sheet, the trial Court has framed the charges for the commission of alleged offences, same was read over and explained to the accused. Having understood the same, the accused pleaded not guilty and claimed to be tried. - 4 - CRL.A No.100368/2022 6. To prove the case of prosecution, in all 15 witnesses were examined as P.W.1 to P.W.15 and 43 documents were marked as Exs.P.1 to 43 so also 16 material objects were marked as M.Os.1 to 16. On closure of prosecution evidence, the statement of accused under Section 313 of Cr.P.C. was recorded. Having understood the same, the accused has totally denied the evidence of prosecution witnesses. But he did not choose to lead any defence evidence on her behalf. 7. Having heard arguments of both sides, the trial Court has acquitted the accused. Being aggrieved by the Judgment of acquittal, State has preferred this appeal. 8. The learned SPP Sri M.B.Gundawade appearing for appellant-State would submit that the order of acquittal passed by the trial Court is contrary to the evidence adduced by the prosecution and same is required to be re-appreciated by this Court. The trial Court has failed to appreciate the material witnesses that too the evidence of PWs.3, 6, 7 and 14, who entirely supported the prosecution case and more particularly the facts elicited from the evidence of PW.14 establishes the guilt of the accused and same has not been duly appreciated. The trial Court failed to appreciate the fact that corpse of the - 5 - CRL.A No.100368/2022 deceased was recovered from the house of accused and either during the course of cross-examination of the persecution witnesses or during the course of recording of statement of accused under Section 313 of Cr.P.C., accused failed to give proper explanation in respect of recovery of the dead body from backyard of her house which ultimately establishes the guilt of the accused for the charged offences. However the learned District and Sessions Judge failed to appreciate the same and passed the erroneous order of acquittal. Further, he would submit that the learned Sessions Judge also failed to appreciate the evidence of PW.14, who has clearly deposed that on the date of incident, he saw in the “kindi” that the deceased- Mahantesh has sit lying his legs and his head bent and he saw the ropes in the hands of the accused, from the back she scrolled rope to the neck of the deceased, immediately by getting scared he run away, the said fact elicited from the mouth of P.W.14 has not been duly appreciated and thereby passed an erroneous order of acquittal. The learned Sessions Judge also duly failed to appreciate the fact that under Section 106 of the Indian Evidence Act burden lies on the accused to explain facts within her knowledge, the same is not appreciated - 6 - CRL.A No.100368/2022 by the trial Court. On all these grounds, he sought for allowing of this appeal. 9. Learned counsel for the respondent/accused would submit that the entire case of the prosecution is based on the circumstantial evidence. PW-14-Shivabasappa Tigadi is the sole eyewitness to the incident and his evidence is not corroborated by any of the other circumstances available on record. PW-14 says that he had seen the incident inside the cowshed through a hole of the wall. But there is no such hole in the wall as may be seen from the spot mahazar. The window to the said cowshed is also at some distance and at height and therefore, it cannot be said that PW-14 had seen the incident. Moreover, PW-14 says that he saw the incident in the light of the kerosene lamp inside the cowshed, but no such kerosene lamp has been seized either from the spot or from the house of the accused. The alleged date of incident is on 19.05.2017, but looking to statement recorded under Section 161 of the Cr.P.C. by Investigating Office i.e. PW-15, it is very much clear that the same is recorded on 11.08.2017 i.e. a delay of 82 days (nearly three months), which itself goes to show that he is a planted and created eyewitness to the incident as he is a relative of the complainant and deceased and the evidence of PW-14 creates - 7 - CRL.A No.100368/2022 doubt whether he really witnessed the incident and whether the incident had happened as stated by the PW-14 in his statement recorded under Section 161 of Cr.P.C., hence, PW-14 is not trustworthy witness. So considering the said aspect, the court below rightly disbelieved the version of the said witness. 10. He would further submit that looking to the evidence of PW-15, who is the Investigating Officer, it is clear that the entire case of the prosecution is covered with number of discrepancies. Evidence of PW.15 reveals that he has visited the place of incident at about 10.45 a.m. Therefore, the fact as to when the Police Station had received the intimation with regard to the death of the deceased should have been brought before the Court. The body of the deceased had been shifted to the hospital by the Police even before the Inquest Mahazar was drawn at the spot. But looking to the evidence of PWs-3, 6 and 7, who state that body of the deceased had been shifted by the Police before Spot Mahazar was conducted and as such, there is no reason that certain things have been planted by the Investigating Officer. So also PWs-3, 6 and 11 state that the accused was present in the Police Station, when they had been to the Police Station to lodge the complaint. Therefore, the contentions of the Prosecution that the accused had absconded, - 8 - CRL.A No.100368/2022 do not hold any water and if at all the accused had committed the offence, there was no reason as to why she should have gone to the Police Station. 11. His further submission is that there is no motive for commission of the offence. Even though, it is an admitted fact that there was illicit relationship between the accused and the deceased, the reason for hostility between them is not established by the prosecution. If at all, there was any loan transaction, such loan transaction has not been proved by the prosecution and when there is illicit relationship for over 10 years, it cannot be said that for a sum of Rs.50,000/-, the accused had developed hostility towards the deceased. The fact that the accused was insulted by the deceased has not been spoken to by any of the witnesses except the wife and children of the deceased. Therefore, this contention of the prosecution that there was motive for commission of the offence, has not been proved and as such, there is no reason to implicate the accused in commission of the offence. 12. Further, he would submit that regarding the recovery, even the prosecution has failed to prove M.O.11-shirt button of the deceased, which is found at the spot of incident. But the - 9 - CRL.A No.100368/2022 said button has not matched with other buttons of the shirt of the deceased. So, the said button cannot be said to be of the deceased's shirt. Moreover, the recovery of the saree of the accused worn at the time of the incident is said to have been recovered, it does not contain bloodstains and it was not sent for FSL examination. The fact that there was no bloodstains on the saree has been discussed by the Trial Court in its Judgment at internal page No.34. 13. He further submits that the trial Court has properly appreciated the evidence as to the panchanama-call detail records. When the case of the prosecution is based on eye- witnesses account, the last scene theory does not arise. So also the accused need not explain any of the circumstances. When the body of the deceased was found in the backyard of the cowshed, accused was in her house at about 2 kms away, and if somebody else have committed murder and thrown the body in the backyard of the accused, the accused cannot be held responsible for it. The trial Court has properly appreciated the evidence on record in accordance with law and facts. Absolutely there are no materials to interfere with the impugned Judgment of acquittal. On all these grounds, he - 10 - CRL.A No.100368/2022 sought for dismissal of this appeal. To substantiate his arguments, he relied on the following decisions: (a) Musteem @ Sirajuddin v/s. State of Rajasthan, reported in (2011) 11 SCC 727. (b) Abdul Gani v/s. State of Karnataka, reported in ILR 1995 KAR 949. (c) State of UP v/s. Bhagat Singh and Others, reported in 1999 Crl.L.J 2333. (d) Karibasangouwda v/s. Kalammanavara Ningappa and others, reported in 2021 Cri.R. 647 (Kant.) 14. Having heard the arguments on both sides, the following points would arise for our consideration: (i) Whether the impugned Judgment of acquittal passed by the trial Court suffers from any legal infirmities requiring this Court to intercede? (ii) What order? 15. Our answers to the above points are as under : Point No.(i): In the negative. Point No.(ii): as per the final order. - 11 - CRL.A No.100368/2022 Regarding Point No.(i): 16. Before adverting to the actual facts of the case and appreciation of evidence, it is necessary to refer the dictum of Hon'ble Supreme Court regarding scope and power of Appellate Court in appeal against the order of acquittal. 17. In the case of MOTIRAM PADU JOSHI & OTHERS v. STATE OF MAHARASHTRA reported in 2018 SCC ONLINE SC 676, at paragraph 23 of the judgment, it is held thus: “23. While considering the scope of power of the appellate court in an appeal against the order of acquittal, after referring to various judgments, in Chandrappa v. State of Karnataka (2007)4 SCC 415, this Court summarised the principle as under:- “42. From the above decisions, in our considered view, the following general principles regarding powers of the appellate court while dealing with an appeal against an order of acquittal emerge: (1) An appellate court has full power to review, reappreciate and reconsider the evidence upon which the order of acquittal is founded. (2) The Code of Criminal Procedure, 1973 puts no limitation, restriction or condition on exercise of such power and an appellate court on the evidence before it may reach its own conclusion, both on questions of fact and of law. - 12 - CRL.A No.100368/2022 (3) Various expressions, such as, “substantial and compelling reasons”, “good and sufficient grounds”, “very strong circumstances”, “distorted conclusions”, “glaring mistakes”, etc. are not intended to curtail extensive powers of an appellate court in an appeal against acquittal. Such phraseologies are more in the nature of “flourishes of language” to emphasise the reluctance of an appellate court to interfere with acquittal than to curtail the power of the court to review the evidence and to come to its own conclusion. (4) An appellate court, however, must bear in mind that in case of acquittal, there is double presumption in favour of the accused. Firstly, the presumption of innocence is available to him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent court of law. Secondly, the accused having secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the trial court. (5) If two reasonable conclusions are possible on the basis of the evidence on record, the appellate court should not disturb the finding of acquittal recorded by the trial court.” 18. In the case of MUNISHAMAPPA & OTHERS v. STATE OF KARNATAKA & CONNECTED APPEALS reported in 2019 SCC ONLINE 69, at paragraph 16 of the judgment it is held as under: “16. The High Court in the present case was dealing with an appeal against acquittal. In such a case, - 13 - CRL.A No.100368/2022 it is well settled that the High Court will not interfere with an order of acquittal merely because it opines that a different view is possible or even preferable. The High Court, in other words, should not interfere with an order of acquittal merely because two views are possible. The interference of the High Court in such cases is governed by well-established principles. According to these principles, it is only where the appreciation of evidence by the trial court is capricious or its conclusions are without evidence that the High Court may reverse an order of acquittal. The High Court may be justified in interfering where it finds that the order of acquittal is not in accordance with law and that the approach of the trial court has led to a miscarriage of justice. …” 19. In the case of HARI RAM & OTHERS v. STATE OF RAJASTHAN reported in 2000 SCC ONLINE 933, at paragraph 4 of the judgment, it is observed thus: “4. Mr. Sushil Kumar Jain, the learned Additional Advocate General for the State of Rajasthan on the other hand contended that the power of the High Court while hearing an appeal against an order of acquittal is in no way different from the power while hearing an appeal against conviction and the Court, therefore was fully justified in re-appreciating the entire evidence, upon which the order of acquittal was based. The High Court having examined the reasons of the learned Sessions Judge for discarding the testimony of PWs 6 & 7 and having arrived at the conclusion, that those reasons are in the realm of conjectures and there - 14 - CRL.A No.100368/2022 has been gross miscarriage of justice and the mis- appreciation of the evidence on record is the basis for acquittal, was fully entitled to set aside an order of acquittal and no error can be said to have been committed. It is too well settled that the power of the High Court, while hearing an appeal against an acquittal is as wide and comprehensive as in an appeal against a conviction and it had full power to re- appreciate the entire evidence, but if two views on the evidence are reasonably possible, one supporting the acquittal and the other indicating conviction, then the High Court would not be justified in interfering with the acquittal, merely because it feels that it would sitting as a trial court, have taken the other view. While re- appreciating the evidence, the rule of prudence requires that the High Court should give proper weight and consideration to the views of the learned trial Judge. But if the judgment of the Sessions Judge was absolutely perverse, legally erroneous and based on wrong appreciation of the evidence, then it would be just and proper for the High Court to reverse the judgment of acquittal, recorded by the Sessions Judge, as otherwise, there would be gross miscarriage of justice.…” 20. In the case of STATE OF RAJASTHAN v. KISTOORA RAM reported in 2022 SCC ONLINE 684, at paragraph 8 of the judgment it is held as under: “8. The scope of interference in an appeal against acquittal is very limited. Unless it is found that the view taken by the Court is impossible or perverse, it - 15 - CRL.A No.100368/2022 is not permissible to interfere with the finding of acquittal. Equally if two views are possible, it is not permissible to set aside an order of acquittal, merely because the Appellate Court finds the way of conviction to be more probable. The interference would be warranted only if the view taken is not possible at all.” 21. In the case of MAHAVIR SINGH v. STATE OF MADHYA PRADESH reported in (2016)10 SCC 220, at paragraph 12 of the judgment, it is observed thus: “12. In the criminal jurisprudence, an accused is presumed to be innocent till he is convicted by a competent court after a full-fledged trial, and once the trial court by cogent reasoning acquits the accused, then the reaffirmation of his innocence places more burden on the appellate court while dealing with the appeal. No doubt, it is settled law that there are no fetters on the power of the appellate court to review, reappreciate and reconsider the evidence both on facts and law upon which the order of acquittal is passed. But the court has to be very cautious in interfering with an appeal unless there are compelling and substantial grounds to interfere with the order of acquittal. The appellate court while passing an order has to give clear reasoning for such a conclusion.” 22. In the case on hand, PW.3-Shobha is the complainant and wife of deceased. She deposed to the effect - 16 - CRL.A No.100368/2022 that her husband had illicit relation with accused and used to visit her house almost every day. On 19.05.2017, at about 9.00 p.m. he left home upon receiving a phone call from the accused, but did not return. On the next day, her brother-in- law Sadeppa (PW.8) came to her house and informed that corpse of her husband lying in a backyard of the house of accused. Then she went to spot along with her children and brother-in-law and noticed ligature mark around the neck of the deceased, so also injuries to other parts of the body. She drafted the complaint with the help of her son and lodged the same in the Police Station. Thereafter, she has shown scene of offence to the Police to draw panchanama. As accused was absconding by that time, police broke-open the lock of her house and conducted panchanama Ex.P.2 and took photographs as per Exs.P.4 to 17 and drawn spot panchanama as per Ex.P.3. 23. CWs.2 and 3 stated to be the attestors to the inquest panchanama and dog squad mahazar, who were examined as P.W.1 and 2 respectively, have deposed as to the mahazar conducted by the Police as per Ex.P.2 and P.3 and also identification of MOs.1 to 11 and also marking of Ex.P.4 to 17. - 17 - CRL.A No.100368/2022 24. CW.5 and 4 stated to be the attestors to the seizure mahazar as per Ex.P.23 and 24, were examined as PWs.4 and 5 respectively. Both witnesses have not supported the case of prosecution. 25. CW.6 Kiran Tigadi, the son of deceased and also scribe of the complaint examined as P.W.6 has deposed in his evidence that the complainant and deceased are his parents. He knew the accused; she was mistress of his father. CW-7 is his sister and he was residing along with his parents and sister at Aralikatti village. His father was working in Indian Army. After his retirement from Indian Army, he came back to village and started staying with them. His father was running an auto rickshaw. After the death of husband of the accused, she came back to her parental house. The accused also was residing in his village in her parental house. His father had illicit relationship with the accused. His father used to visit the accused in her house almost every day. On 19.05.2017 at about 9.00 p.m., his father received a phone call from the accused and his left the house and did not return the house. Next day morning at about 8 a.m. his uncle i.e. CW8 came to their house and informed them that his father’s dead body was lying in the backyard of accused’s house. Himself, his - 18 - CRL.A No.100368/2022 sister and uncle rushed to the scene of offence and had seen the dead body of their father. They noticed a ligature mark around the beck of his father and also injuries to other parts. He has drafted the complaint as per say of his mother as per Ex.P.18. Police came to the scene of offence. His mother has shown the scene of offence. Police drawn the scheme of offence panchanama, at that time accused was absconding. Investigating Officer has broke the lock of accused house and seized the shirt button of the deceased, viscera, coins, ropes, towel and other things. Police recorded his statements. 26. CW.7-Priyanka Tigadi, the daughter of deceased examined as P.W.7. She has deposed as to the illicit relationship of his father with the accused and she has also deposed as to the incident dated 19.05.2017 as stated by P.W.6. 27. CW.8-Sadeppa Tigadi, CW.9 Suresh Tigadi, have also deposed on the lines as stated by P.W.7. 28. CW.10-Mahantesh Ganagi, who examined as P.W.10 has deposed that he has heard the quarrel between deceased and the accused. He has further deposed that he is working in BSNL Office at Belagavi. The house of accused is situated two - 19 - CRL.A No.100368/2022 houses after his house at Aralikatti village and in between, the house of Shivappa is situated. Behind the house of Suvarna, there is a cowshed. He knew deceased-Mahantesh. Deceased- Mahantesh used to come to the house of accused. About an year back Mahantesh died. When he had been to the backyard of his house, he saw people gathered and then he came to know that Mahantesh had died in the backyard of the house. He did not go to the spot and he does not know about how he died. He has not given further statement to the Police. He had gone to the Police Station once. He has not heard any quarrel between the accused and the deceased. This witness treated as hostile witness with permission of the Court. The learned Public Prosecutor has cross-examined him. Even in his cross- examination, he has categorically denied the statement and further statement stated to be recorded by the Police as per Exs.P.31 and 32. 29. CW.11-Sidram Ganagi examined as P.W.11 has not supported the case of prosecution. Even in his cross- examination after treating him as hostile witnesses by the prosecution, he has categorically denied the statement stated to have been recorded by the Investigating Officer under - 20 - CRL.A No.100368/2022 Section 161 of the Cr.P.C., which are marked as Exs.P.33 and 34. 30. CW.14-Dr. Ashokkumar Shetty, Medical Officer, BIMS Hospital, Belagavi has deposed as to the examination of the dead body of the Mahantesh Tigadi and issuance of postmortem report as per Ex.P.36. 31. CW.21-Shobha Kambi, WPSI examined as P.W.13, he has deposed as to the arrest of the accused on 22.05.2017 as per the oral direction of CW-22 near K.K.Koppa village and produced her before the Station House Officer and submitted a report. 32. CW.12-Shivabasappa Irappa Tigadi stated to be the eyewitness examined as P.W.14. He has deposed that on 15.02.2017 he had seen the accused and deceased quarrelling and sent them by giving advice. On 19.05.2017, when he was sitting in front of his house after having food, the deceased was passing in front of his house to go to the house of accused. He was in a drunken state. After 5 to 10 minutes, when he came out of his house, he heard a sound near cowshed belonging to the accused. When he went there, doors of accused house were shut and when he peeped through a hole in the wall, he - 21 - CRL.A No.100368/2022 saw Mahantesh in a sitting position, stretching his legs and head down. There was a rope in the hands of accused and she was strangulating him from behind with the said rope. However, he could not hear their conversation. Being afraid he returned to his house. Upon showing MO7-rope, he says he had seen it only on that day and as he had seen the incident in the cowshed, in the light of kerosene lamp, he is not in a position to say the colour and type of rope. On the next day, the news of death has been spread in the entire village, then he had also visited the spot and stated about the incident before the Police. 33. CW.22-Siddabasavanagouda Patil, the Circle Police Inspector examined as P.W.15, has deposed as to the investigation conducted by him. 34. A careful scrutiny of the entire evidence placed before this Court, makes it is crystal clear that P.W.14- Shivabasappa Irappa Tigadi is only eyewitness and also last seen witness. During the course of cross-examination, he has clearly stated that his house situated about 150 feet away from the cowshed belonging to the accused; corpse of the deceased was lying near the cowshed, but her residence is at Pattar Oni (lane), situated two-three lanes away from the cowshed. He - 22 - CRL.A No.100368/2022 further stated that he had been to see the corpse when he came to know about the incident at about 6.00 to 7.00 a.m. and Police arrived at about 10.00 to 10.30 a.m. He also admits that police dog entered the house of P.W.11, but not towards the house of accused at Pattar Oni. He further states that being afraid of family members of the accused, he did not disclose the incident either to the Police or to the family of deceased. 35. It has come in the evidence of PW14 that he has witnessed the incident through the hole in the wall of house of the accused. It is worth to note that spot mahazar at Ex.P.3 does not show any such hole in the wall of house of accused. The photograph of mahazar at Exs.P.10 to 14 & 16 show that window is at some height and unless a person elevates himself he cannot see anything happening on the other side. It is also come in the evidence of PW14 that there is kerosene lamp, but no such kerosene lamp was found in the cattle shed at the time of mahazar. It is also relevant to note that prosecution version is silent as to what was the source of the light inside the cattle shed. None of the witnesses have spoken about the same. The spot mahazar mentions that the key of the cattle shed were obtained from Basavva and the cattle shed had two buffaloes. Incident has occurred when buffaloes were also inside the cattle - 23 - CRL.A No.100368/2022 shed. However, the spot mahazar mentions that deceased was also working as borewell repairer. PW3, 6 and 7 do not mention this aspect anywhere in their evidence. The spot mahazar also mentions that milk had fallen on the floor of the cowshed. Thus, it is evident that the spot mahazar does not mention anything about the hole in the wall, which enabled PW14 to peep through it. Hence the evidence of PW14 does not corroborate either from the spot mahazar or any other witnesses. 36. It is the case of prosecution that evidence of PW14 proves the last seen theory, in view of contradictory statement of PW14, that evidence of PW.14 cannot be accepted. If really PW14 witnessed this alleged incident, he would have tried or attempted to rescue this deceased, but he has not called neighbors and he has no enmity with the deceased or the accused. Under the circumstance, PW14 ought to have tried to rescue the deceased or at least to inform this alleged incident to the wife and children of the deceased. But he has not done so. Instead he has not revealed anything about this incident till next day. Only after Police came to the spot he has disclosed about this alleged incident. Therefore, the evidence of PW14 is quite unnatural and cannot be believed. Additionally, PW3- Shobha Mahantesh Tigadi, PW6-Kiran Mahantesh Tigadi and - 24 - CRL.A No.100368/2022 PW7-Priyanka Mahantesh Tigadi wife and children of the deceased have not whispered anything about the presence of PW14 at the time of alleged incident. Even after this incident also, the PW14 has not informed the same to the wife and children of the deceased till next day. This conduct of PW14 will create doubt. Hence, PW14 appears to be is a planted witness. Hence, his evidence cannot be believed. 37. It is to be noted that deceased was in drunken condition. It is admitted fact that deceased was an ex-army person and he was well-nourished and well-built. Photographs of the body of the deceased, as may be seen from Exs.P4 to P8 also show that the deceased was well built and well nourished. Deceased being an ex-serviceman, it is difficult to accept the contention of the prosecution that the accused being a lady could have strangulated him alone though he had consumed alcohol. It is not the case of prosecution that the accused had brought liquor with him and had drunk the liquor in the cattle shed itself. Obviously, the deceased had drunk liquor somewhere else and was passing in front of the house of PW14. PW14 does not say anything that deceased was incoherent. Therefore, when the deceased could come to the house of the accused after consuming liquor and when did not carry any - 25 - CRL.A No.100368/2022 liquor with him, it is not possible to hold that deceased could not have defended himself from the assault by the accused. The accused being a normal growth lady, could not have committed such an offence alone. This aspect has been elicited in the form of an opinion by PW9. PW9-Suresh is none other than the brother of the deceased; he says that the accused being a lady could not have strangulated a healthy person like the deceased. Though, this is an opinion elicited in the cross- examination, it can be inferred from the postmortem report and it is also relevant to note that the Investigating Officer has obtained the opinion from the Medical Officer and obviously the Medical Officer had not occasion to see the accused. Therefore, he gave a general opinion that a person like the deceased could have been strangulated by a lady using the rope when the victim is under intoxication. The level of intoxication of the liquor has not been ascertained by the Medical Officer by referring to the quantity of the alcohol that was found in the blood of the deceased. Obviously, the blood of the deceased was preserved in the form of viscera, but it could not be examined by the FSL since it had solidified. It is also relevant to note that the Investigating Officer had sent the viscera to the FSL on 10.07.2017 though it was collected on 20.05.2017. - 26 - CRL.A No.100368/2022 Therefore, the opinion of P.W.12-Medical Officer cannot be accepted. 38. The interested testimony of PWs3, 6 and 7 about the motive is not supported by any cogent reason. It does not stand for any logic that though the deceased and the accused had illicit relationship for over a period of 10 years, they had developed some enmity; such enmity is not spoken to by any other witnesses. The fact that accused had lent money to the deceased is also not proved by the prosecution. Therefore, it seems that PWs.3, 6 and 7 on account of their hostility towards the accused, have spoken about the alleged motive. The evidence of PW14 itself is not trustworthy and not believable and the conduct of PW14 is quite unnatural against to the conduct of ordinary prudent man, hence, his evidence is also full of doubtful circumstances. 39. The learned Sessions Judge has properly appreciated the evidence on record in accordance with law and facts. On re- appreciation, re-evaluation and re-examination of the entire evidence on record and also keeping in mind the decisions of the Hon’ble Apex Court as to the power and scope of this Appellate Court, we do not find any error, illegality and - 27 - CRL.A No.100368/2022 infirmities in the impugned Judgment of acquittal. Hence, we answer point No.(i) in the ‘negative’. Regarding Point No.(ii): 40. For the aforesaid reasons, we pass the following : ORDER (i) Appeal is dismissed. (ii) Judgment and order of acquittal dated 17.01.2022 passed in Sessions Case N0.122/2018 by the Principal District and Sessions Judge, Belagavi, is confirmed; (iii) Registry to send the trial court records along with a copy of this Judgment to the concerned Court. Sd/- (SACHIN SHANKAR MAGADUM) JUDGE Sd/- (G BASAVARAJA) JUDGE CKK