Karnataka High Court
Basavaral Mahadevappa Ramaji vs The State Of Karnataka on 4 November, 2022
Author: Suraj Govindaraj
Bench: Suraj Govindaraj
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CRL.A No. 100121 of 2018
C/W CRL.A No. 100131 of 2018,
CRL.A No. 100207 of 2018,
CRL.A No. 100216 of 2018
IN THE HIGH COURT OF KARNATAKA, DHARWAD
BENCH
DATED THIS THE 4TH DAY OF NOVEMBER, 2022
PRESENT
THE HON'BLE MR JUSTICE SURAJ GOVINDARAJ
AND
THE HON'BLE MR JUSTICE G BASAVARAJA
CRIMINAL APPEAL NO. 100121 OF 2018 (C-)
C/W
CRIMINAL APPEAL NO. 100131 OF 2018
CRIMINAL APPEAL NO. 100207 OF 2018
CRIMINAL APPEAL NO. 100216 OF 2018
IN CRL.A. NO.100121/2018
BETWEEN
1. BASAVARAJ MAHADEVAPPA RAMAJI
AGE: 32 YEARS, OCC: NIL,
R/O: NARAYANPUR ONI,
KAMALAPUR, TQ AND DIST: DHARWAD.
2. DEEPAK YALLAPPA SHINDHE
AGE: 32 YEARS,OCC: NIL,
R/O: KAMALAPUR
HANAMANTDEVAR,
TQ AND DIST: DHARWAD.
...APPELLANTS
(BY SRI. RAVI B NAIK, SENIOR COUNSEL FOR
SRI.AVINASH M ANGADI, ADVOCATE)
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CRL.A No. 100121 of 2018
C/W CRL.A No. 100131 of 2018,
CRL.A No. 100207 of 2018,
CRL.A No. 100216 of 2018
AND
1. THE STATE OF KARNATAKA
BY DHARWAD RURAL SUB-DIVISION,
REPRESENTED BY
STATE PUBLIC PROSECUTOR,
HIGH COURT BUILDING, DHARWAD.
...RESPONDENT
(BY SRI. V.M.BANAKAR, ADDL. SPP)
THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374 OF
CR.P.C., PRAYING TO ALLOW THIS CRIMINAL APPEAL BY SETTING
ASIDE THE JUDGMENT AND ORDER OF CONVICTION AND SENTENCE
RECORDED BY THE 2ND ADDITIONAL DISTRICT AND SESSIONS &
SPL. JUDGE, AT DHARWAD IN SPL.SC.ST.NO.33/2014, DATED
24.03.2018 & 26.03.2018 THEREBY CONVICTING THE APPELLANTS
FOR THE OFFENCE PUNISHABLE UNDER SECTION 120(B), 201, 302,
364 R/W 34 OF IPC.
IN CRL.A. NO.100131/2018
BETWEEN
1. SHRI.KRISHNA @ KITYA
S/O RAMCHANDRA GOLE
AGE: 42 YARS, OCC: NIL,
R/O: NAYANPUR ONI,
DHARWAD.
2. SHRI.PAVAN S/O RAJU HAIBATTI
AGE: 24 YEARS, OCC: NIL,
R/O: NARAYANPURI IONI,
DHARWAD.
...APPELLANTS
(BY SRI. RAVI B NAIK, SENIOR COUNSEL FOR
SRI.AVINASH M ANGADI, ADVOCATE)
AND
1. THE STATE OF KARNATAKA
BYI DY.SP., DHARWAD RURAL
SUB-DIVISION DHARWAD,
R/BY STATE PUBLIC PROSECUTOR,
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CRL.A No. 100121 of 2018
C/W CRL.A No. 100131 of 2018,
CRL.A No. 100207 of 2018,
CRL.A No. 100216 of 2018
HIGH COURT OF KARNATAKA,
DHARWAD BENCH, AT DHARWAD.
...RESPONDENT
(BY SRI. V.M.BANAKAR, ADDL. SPP)
THIS CRIMINAL APPEAL IS FILED U/SEC.374(2) OF CR.P.C.,
PRAYED THAT THE IMPUGNED ORDER OF CONVICTION AND
SENTENCE PASSED IN SPECIAL SC. ST NO.33/2014 FOR THE
OFFENCES PUNISHABLE UNDER SECTION 364 302, 201, 120(B) R/W
34 IPC AND SECTION 3(2)(V) OF SC AND ST ACT, 1989 DATED
24.03.2018 IN CRIME NO.211/2014 ON THE FILE OF II ADDITIONAL
DISTRICT AND SESSIONS JUDGE AND SPECIAL JUDGE AT DHARWAD
AGAINST ACCUSED NO.7 AND 8 BE SET ASIDE.
IN CRL.A. NO.100207/2018
BETWEEN
1. FAKKIRAPPA S/O BAILAPPA BYALI
AGE: 59 YEARS,OCC: AGRICULTURIST,
R/O: MANGALAGATTI,
TQ AND DIST: DHARWAD.
2. HANAMANTHSINGH
S/O RATANSHINGH CHAWAHAN,
AGE: 44 YEARS, OCC: COOLIE,
R/O: YETTINAGUDD,
TQ AND DIST: DHARWAD.
3. MAHAMMAD SAB S/O BABUSAB BIJAPUR,
AGE: 39 YEARS, OCC: COOLIE,
R/O: MANGALAGATTI,
TQ AND DIST: DHARWAD.
4. REHAMAN S/O ALISAB NADAF
AGE: 27 YEARS,
OCC: AGRICULTURAL COOLIE,
R/O: MANGALAGATTI,
TQ AND DIST: DHARWAD.
...APPELLANTS
(BY SRI. RAVI B NAIK, SENIOR COUNSEL FOR
SRI.J.BASAVARAJ, ADVOCATE)
-4-
CRL.A No. 100121 of 2018
C/W CRL.A No. 100131 of 2018,
CRL.A No. 100207 of 2018,
CRL.A No. 100216 of 2018
AND
1. THE STATE OF KARNATAKA
REPRESENTED BY DY.SP. DHARWAD RURAL
SUB-DIVISION, DHARWAD
STATE PUBLIC PROSECUTOR,
HIGH COURT BUILDING,
HIGH COURT OF KARNATAKA,
BENCH AT DHARWAD.
...RESPONDENT
(BY SRI. V.M.BANAKAR, ADDL SPP )
THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374(2) OF
CR.P.C., SEEKING TO ALLOW THIS APPEAL, SET ASIDE THE
JUDGEMENT AND ORDER OF CONVICTION DATED 24.03.2018 AND
SENTENCE DATED 26.03.2018 U/S.120(B), 201 AND 302 OF IPC
FURTHER APPELLANT NO'S 4 & 10 CONVICTED FOR THE OFFENCES
U/S.364 R/W 34 OF IPC IN SPL.SC.ST.NO.33/2014, ACQUIT THE
APPELLANTS AND SET THE APPELLANTS AT LIBERTY.
IN CRL.A. NO.100216/2018
BETWEEN
1. SRI.MANJUNATH S/O MARUTIRAO CHAWHAN
AGE: 26 YEARS, OCC: NIL,
R/O: HOSAYALLAPUR,
NAVALUR AGASI,
WALMIKI ONI,
DHARWAD.
...APPELLANT
(BY SRI. SRINAND A PACHHAPURE, ADVOCATE)
AND
1. THE STATE OF KARNATAKA
BY DY.S.P., DHARWAD RURAL SUB DIVISION,
DHARWAD, NOW REP. BY
STATE PUBLIC PROSECUTOR,
HIGH COURT OF KARNATAKA,
DHARWAD BENCH AT DHARAWD.
...RESPONDENT
(BY SRI. V.M.BANAKAR, ADDL SPP)
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CRL.A No. 100121 of 2018
C/W CRL.A No. 100131 of 2018,
CRL.A No. 100207 of 2018,
CRL.A No. 100216 of 2018
THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374(2) OF
CR.P.C., SEEKING TO SET ASIDE THE JUDGMENT OF CONVICTION
DATED 24.03.2018 AND ORDER OF SENTENCE DATED 26.03.2018
PASSED BY COURT OF II ADDL. DISTRICT & SESSIONS & SPL.
JUDGE, DHARWAD IN SPL.SC.ST.NO. 33/2014 FOR THE OFFENCE
PUNISHABLE U/S. 120(B), 201, 302 AND SECTION 364 R/W
SECTION 34 OF IPC AND SECTION 3(2)(V) OF SC/ST (PREVENTION
OF ATROCITIES) ACT, 1989 AND ALLOW THE PRESENT APPEAL BY
ACQUITTING THE APPELLANT/ACCUSED NO. 9.
THESE CRIMINAL APPEALS HAVING BEEN HEARD AND
RESERVED FOR JUDGMENT, COMING ON FOR 'PRONOUNCEMENT OF
JUDGMENT', THIS DAY, SURAJ GOVINDARAJ J., DELIVERED THE
FOLLOWING:
JUDGMENT
1. The above appeals are filed by the accused, who have been convicted in Spl.SC.ST.No.33/2014 by the II Additional District and Sessions and Special Judge, Dharwad (for short, 'trial Court') vide judgement dated 24.03.2018.
2. Criminal Appeal No.100121/2018 has been filed by accused Nos.5 and 6, Criminal Appeal No.100131/2018 has been filed by accused Nos.7 and 8, Criminal Appeal No.100207/2018 has been filed by accused Nos.1, 3, 4 and 10 and Criminal -6- CRL.A No. 100121 of 2018 C/W CRL.A No. 100131 of 2018, CRL.A No. 100207 of 2018, CRL.A No. 100216 of 2018 Appeal No.100216/2018 has been filed by accused No.9.
3. By way of aforesaid judgement, the trial Court found accused No.1 and 3 to 10 guilty of offence under Sections 120-B, 201 and 302 read with 34 of IPC, accused Nos.4 and 10 were found guilty of offence under Section 364 read with 34 of IPC. All the accused were acquitted of offences under Sections 3(2)(v) of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (for short, 'POA Act').
4. By order of sentence dated 24.03.2018, accused Nos.1 and 3 to 10 were sentenced to undergo life imprisonment and to pay fine of Rs.5,000/- each for offences under Section 302 read with 34 of IPC, in default to undergo simple imprisonment for one year. Accused Nos.3 to 10 were sentenced to undergo rigorous imprisonment for six years and to pay fine -7- CRL.A No. 100121 of 2018 C/W CRL.A No. 100131 of 2018, CRL.A No. 100207 of 2018, CRL.A No. 100216 of 2018 of Rs.5,000/- each for offences under Section 201 read with 34 of IPC and in default to undergo simple imprisonment for six months. Accused Nos.1 and 3 to 10 were sentenced to undergo rigorous imprisonment for five years and to pay fine of Rs.5,000/- each for offences under Section 120-B read with 34 of IPC and in default to undergo simple imprisonment for one year. Accused Nos.4 and 10 were sentenced to undergo rigorous imprisonment for five years and to pay fine of Rs.5,000/- each for offence under Section 364 read with 34 of IPC and in default to undergo simple imprisonment for six months. All the sentences were directed to run concurrently. Accused Nos.1 and 3 to 10 were entitled to set off under Section 428 of Cr.P.C.
5. It is aggrieved by the aforesaid judgement of conviction and order of sentence that the aforesaid accused are before this Court.
-8-CRL.A No. 100121 of 2018
C/W CRL.A No. 100131 of 2018, CRL.A No. 100207 of 2018, CRL.A No. 100216 of 2018
6. A complaint came to be filed by PW.1-Veeranagouda Patil alleging that on 27.08.2018 at 6.00 a.m., he found someone fallen on east face of the service road on NH-4 near the agricultural land of Basappa Aralikatti. He along with certain others had gone to see the person who had fallen on the road, when they found the person dead and stained with blood. It is in that background that a complaint came to be filed with PSI, Kittur Police Station to take action against unknown persons.
7. Investigation was completed and charge sheet was laid by the Deputy Superintendent of Police, Dharwad Rural Police Station for offences under Sections 120- B, 201, 302 and 364 read with 34 of IPC and 3(2)(v) of Scheduled Caste and Schedule Tribes (Prevention of Atrocities) Act 1989 (for short POA Act). Charges were framed for the said offences. -9- CRL.A No. 100121 of 2018
C/W CRL.A No. 100131 of 2018, CRL.A No. 100207 of 2018, CRL.A No. 100216 of 2018
8. In order to prove its case the prosecution, in all, led evidence of 28 witnesses and marked more than 76 exhibits. 25 material objects were also marked.
9. When the incriminating evidence was put across to the Accused the same was denied, which was recorded in the Section 313 statement.
10. Defence led evidence of one witness.
11. The trial Court proceeded for arguments and passed the above order of conviction and sentence.
12. Sri.Ravi B Naik, learned Senior counsel for Sri.Avinash M Angadi and Sri.J.Basavaraj appearing for the appellants, would submit that:
12.1. The entire case of the prosecution is based on circumstantial evidence. There are no eyewitnesses to the alleged crime. The said
- 10 -CRL.A No. 100121 of 2018
C/W CRL.A No. 100131 of 2018, CRL.A No. 100207 of 2018, CRL.A No. 100216 of 2018 circumstantial evidence is not corroborated by any cogent evidence on record.
12.2. The investigation has been done in absurd manner and does not support the charges laid against the accused.
12.3. Of the 28 witnesses who were examined in the matter, except the official witness, everybody has turned hostile, none of them have supported the case of the prosecution. 12.4. There is nothing on record to establish the involvement of the accused in the offence. 12.5. The complainant and other witnesses have turned hostile, the trial Court ought not to have convicted the accused.
12.6. The only evidence which is on record is of PW.22, father of the deceased who has stated
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CRL.A No. 100121 of 2018 C/W CRL.A No. 100131 of 2018, CRL.A No. 100207 of 2018, CRL.A No. 100216 of 2018 that there is a possibility of his daughter-in-law wanting to kill the deceased and the said PW.22 has not categorically stated that it is the accused who have murdered the deceased. 12.7. PW.24, brother of the deceased has only stated that accused Nos.4 and 10 took the deceased in the car, which he had not told anyone at any time, including at the time of filing of the complaint. Therefore, learned Senior counsel submit that the said evidence cannot be relied upon.
12.8. The recovery of the amounts from the various accused has also not been established nor there are the recoveries made proper. Be that as it may, he submits that the amount which has been recovered being small amounts belonging to the accused, mere recovery would not implicate the accused in the crime. It was for
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CRL.A No. 100121 of 2018 C/W CRL.A No. 100131 of 2018, CRL.A No. 100207 of 2018, CRL.A No. 100216 of 2018 the prosecution to establish that the said amounts had been allegedly paid by accused No.1 to the other accused as supari for causing the death of the deceased. The same not having been established, recovery of money would not enure to be benefit of the prosecution.
12.9. There is no evidence which is on record to implicate the accused inasmuch as the claim is that a chance fingerprint is found on the left side door of the car of the deceased. The said fingerprint belonging to accused No.5. There is only one fingerprint which is stated to match the index finger of accused No.5. There are no other fingerprints which are matching the fingerprints of accused No.5. Merely because a chance fingerprint matches the index
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CRL.A No. 100121 of 2018 C/W CRL.A No. 100131 of 2018, CRL.A No. 100207 of 2018, CRL.A No. 100216 of 2018 fingerprint of accused No.5, the same cannot implicate accused No.5.
12.10. During the pendency of the above appeal, accused No.1 expired on 05.10.2021 and accused No.3 expired on 15.05.2020 and as such the proceedings insofar as they are concerned, has stood abated.
12.11. In the above background, he submits that when all the material witnesses have turned hostile and there is no evidence on record to implicate the accused, the trial Court ought not to have convicted the accused, but ought to have acquitted the accused for the offences alleged against them.
12.12. He has relied upon the decision reported in 2022 LiveLaw (SC) 812 in the case of Munikrishna @ Krishna Etc. vs. State by
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CRL.A No. 100121 of 2018 C/W CRL.A No. 100131 of 2018, CRL.A No. 100207 of 2018, CRL.A No. 100216 of 2018 Ulsoor PS and submits that the confession/voluntary statement made by the accused before the police and the recovery of alleged weapon cannot be admitted in evidence. Para Nos.13 and 16 are reproduced hereunder for easy reference:
"13. In the case at hand the entire case of the prosecution is built upon the confessional/voluntary statements made by the accused persons before the police and the recovery of the alleged weapon of murder recovered at the pointing out of the accused and the recovery of alleged stolen gold material from a jewelry shop, again, on pointing out of the accused. Let us deal with the first evidence. As per the police, all the accused were arrested from a school building on 31.01.2001 and formally arrested on 01.02.2001. They confessed to as many as 24 crimes committed by them. Their confessions of how they planned and executed the murders has been captured on a video, which was also exhibited before the court. The Court has taken this evidence of voluntary statements made by the accused and hence admitted it as evidence. This was done both by the Sessions Court as well as the High Court. The learned Sessions Judge records in his judgment dated 19.03.2003 records as under: -
- 15 -CRL.A No. 100121 of 2018
C/W CRL.A No. 100131 of 2018, CRL.A No. 100207 of 2018, CRL.A No. 100216 of 2018 "... The prosecution has played the audio in the open Court Hall in the presence of the accused persons and jam-packed Court Hall and on a mere perusal and hearing the video, it will be evident that the accused persons themselves had explained the entire incident the manner in which they have committed the offence alleged by the prosecution against them. The video statement of accused no. 5 makes it clear as to how the deceased was made to open the iron grill and as to how they had planned to murder the aged innocent Ramakrishnan who was residing alone. The video statement of the accused personal reveals the intension of the accused person and also the manner in which they have made deceased Ramakrishnan to open the iron grill and also the manner in which the accused persons have committed the offence in murdering the aged man."
The Sessions Court then refers to a decision of Supreme Court, (Shri N. Sri Rama Reddy, Etc. v. Shri V.V. Giri6) and states that in view of this decision video tapes can also be used as corroborative evidence. This is what has been said: -
"When such being the case, it goes without saying that the video recorded statement of the accused persons can also be made use as corroborative piece of evidence. If really, the accused persons after witnessing and hearing the video cassettes suspected the bonafide or genuineness of the video recorded statement of the accused persons, instead of taking contention that their statements obtained by
- 16 -CRL.A No. 100121 of 2018
C/W CRL.A No. 100131 of 2018, CRL.A No. 100207 of 2018, CRL.A No. 100216 of 2018 making them to consume alcohol, they would have requested the Court for subjecting the video tape records for scientific scrutiny. In view of the rulings of the Honourable Supreme Court, even video tapes of the voluntary statement of the accused persons can be used as the corroborative piece of evidence. Thus, on perusal of the materials on record, it will be quite manifest that the circumstances relied upon by the prosecution will bring home the guilt of the accused beyond all reasonable doubt"
Later the High Court while hearing the appeal of the accused gives a similar finding as follows : -
"It is not the case of the accused that they have not given voluntary statements before PW 15 as per Ext P 8,9,10, 11 & 12. However, it is their contention that they were made to drink liquor and under the influence of liquor, the statements have been taken as per Exs. P-8,9,10,11 & 12 and the statements were not voluntary. The material on record does not probablise the said version taken by the accused. In the absence of proof of the said fact, voluntary statements at Exs. P-8,9,10,11 & 12 given by accused Nos. 1 to 5
is proved to be voluntary as there is no material on record which would probablise the defence taken by the accused that they were made to drink liquor and their statements were recorded in the influence of drinking and it was not voluntary".
The High Court then affirms the finding of the Sessions Court and the admissibility of the
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CRL.A No. 100121 of 2018 C/W CRL.A No. 100131 of 2018, CRL.A No. 100207 of 2018, CRL.A No. 100216 of 2018 voluntary statement of the accused and the videography placed before the Court and states as under: -
"It is clear from the above said proved circumstances that the accused have committed murder of S Ramakrishnan aged 72 years by slitting his neck as he was living alone in the house. The only defence taken by the accused is that they have given voluntary statements under the influence of liquor which is not probabilised by the material on record and in view of statements of the accused pointing to the scene of offence wherein S Ramakrishnan was murdered and Ramakrishnan suffered homicidal death and recovery of M.O.1 which according to P.W.5 would cause injury found on the body of S Ramakrishnan and also recovery of ornaments which they melted into ingot from the shop of P.W.17 and the fact that accused have shown the place where they committed the scene of offence in furtherance of the voluntary statements have been conclusively proved by the prosecution and such circumstances form a complete link which would point out only to the guilt of the accused and is wholly inconsistent with their innocence.
The trial Court has appreciated oral and documentary evidence on record in the right perspective and on re-appreciation of the entire material on record, we hold that finding of guilt arrived at against the accused Nos.1 to 5 - appellants herein for having committed the offence punishable under Sections 302 & r/w 34 of IPC is justified and sentence imposed thereon cannot also be said to be
- 18 -CRL.A No. 100121 of 2018
C/W CRL.A No. 100131 of 2018, CRL.A No. 100207 of 2018, CRL.A No. 100216 of 2018 excessive so as to call for interference in this appeal."
Both the Trial Court and the Appellate Court went completely wrong in placing reliance on the voluntary statements of the accused and their videography statements. Under Article 20(3) of the Constitution of India, an accused cannot be compelled to be a witness against himself. Again, under Section 258 of the Indian Evidence Act, 1872; a confessional statement given by an accused before a Police officer is inadmissible as evidence.
The reference of the Supreme Court judgment by the trial Court (Shri N. Sri Rama Reddy v. Shri V.V. Giri) is also misplaced. That case only refers to the admissibility of a tape- recorded conversation in an election petition which is tried before a Court under the Civil Procedure Code (Section 87 of the Representation of People Act, 1951). This Court, in the above cited judgment was not dealing with a criminal case and most certainly not on the admissibility of a statement given by an accused to the Police under Section 161 of Code of Criminal Procedure. Indeed, the above judgment also ends with a note of caution:
"30. We once again emphasize that this order relates only to the admissibility in evidence of the conversation recorded on tape and has not dealt with the weight to be attached to that evidence. It must also be pointed out that the question, whether the pamphlets, Exhibits P-18-B and P-37- A, have
- 19 -CRL.A No. 100121 of 2018
C/W CRL.A No. 100131 of 2018, CRL.A No. 100207 of 2018, CRL.A No. 100216 of 2018 been circulated in the manner alleged by the petitioners and the further question whether they amount to exercise of undue influence are also matters which have not been considered in this order. The above are all aspects which will be dealt with in the judgment, while disposing of the election petitions."
Thus, the opinion of this Court regarding the admissibility of a tape-recorded conversation, was in an entirely different context.
As far as the recovery of gold ingot is concerned, PW-1, i.e., the son-in-law and the complainant has said in his evidence before the Court that he does not recognize the ingot and it does not belong to his father-in-law. Therefore, the gold which has been recovered has not been identified as the one which was stolen from the house of the deceased. The recovery of knife is also doubtful. Firstly, Venkatesh who had led the discovery had mentioned about the knife and its disposal on 01.02.2001 when he was arrested. The recovery, however was made on 15.05.2001 i.e., four and a half months later. Why such a belated recovery was made has not been explained. Secondly, the independent witness to this recovery PW-10 Murugan, had also turned hostile during cross- examination as he said that he does not recognize Venkatesh (accused) on whose pointing out the alleged recovery was made. So much for the recovery of the murder weapon.
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CRL.A No. 100121 of 2018 C/W CRL.A No. 100131 of 2018, CRL.A No. 100207 of 2018, CRL.A No. 100216 of 2018
16. Ordinarily, this Court does not interfere with concurrent findings of facts as they are in the present case. But, then in the present case it has become necessary to interfere with the findings for the reasons that both the High Court as well as the Sessions Court have ignored the well-established principles of criminal jurisprudences and have relied upon facts and evidences which are clearly inadmissible in a court of law. The crime indeed was ghastly, to say the least. Yet, linking the crime to the present appellants is an exercise which was to be undertaken in the court of law under established principles of law. This has not been done. This Court in Sharad Birdhichand Sarda (supra) has cautioned thus: -
"179. We can fully understand that though the case superficially viewed bears an ugly look so as to prima facie shock the conscience of any court yet suspicion, however great it may be, cannot take the place of legal proof. A moral conviction however strong or genuine cannot amount to a legal conviction supportable in law.
180. It must be recalled that the well- established rule of criminal justice is that "fouler the crime higher the proof". In the instant case, the life and liberty of a subject was at stake. As the accused was given a capital sentence, a very careful, cautious and meticulous approach was necessary to be made."
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CRL.A No. 100121 of 2018 C/W CRL.A No. 100131 of 2018, CRL.A No. 100207 of 2018, CRL.A No. 100216 of 2018 12.13. The recovery made in such a situation is contrary to Section 25 and Section 27 of the Indian Evidence Act and as such there cannot be any confession on that basis.
13. It is in that background, we have been called upon to re-appreciate the evidence on record to ascertain the guilt of the accused as regards the allegation made against them.
14. The case of the prosecution is that the deceased had an illicit relationship with the daughter-in-law of accused No.1. The deceased belonging to SC/ST community, accused No.1 belonging to Lingayat community, the deceased having continued illicit relationship with daughter-in-law of accused No.1, had a grudge against the deceased and it is for that reason that accused No.1 had engaged the services of accused Nos.3 to 10 to commit the murder of his daughter-in-law as well as the deceased.
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CRL.A No. 100121 of 2018 C/W CRL.A No. 100131 of 2018, CRL.A No. 100207 of 2018, CRL.A No. 100216 of 2018
15. It is alleged that on 26.08.2014 accused No.1 and accused Nos.3 to 10 had entered into a conspiracy to commit the said murders, for which accused No.1 had promised to make payment of a sum of Rs.5,00,000/- and it is in furtherance of the said common intention that accused Nos.4 and 10 took the deceased for dinner in the car of the deceased and at a preplanned place requested the deceased to stop the car so that they could attend to the nature's call.
16. At that time, accused Nos.2, 3, 5 to 8 were waiting and once the car stopped, all the accused dragged the deceased out of the car, took the weapons out of TATA Sumo belonging to accused No.3, assaulted the deceased, stabbed him with a knife on his stomach and left chest as also on his back. Accused No.6 assaulted the deceased with knife on stomach and left chest. Accused No.7 assaulted the deceased in
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CRL.A No. 100121 of 2018 C/W CRL.A No. 100131 of 2018, CRL.A No. 100207 of 2018, CRL.A No. 100216 of 2018 the back. Thereafter, accused Nos.4 to 6 and 10 took him in scorpio while accused Nos.2, 3 and 7 got into TATA Sumo belonging to accused No.3. Accused No.8 went in another car. The body of the deceased was dumped near the service road underpass at M.K.Hubballi. Noticing that the deceased was still alive, accused No.10 once again hit him on his head with a Talawar and committed his murder knowing that the deceased belong to SC/ST community. The above act is also an offence under the POA Act and it is on that basis a charge sheet was laid against the aforesaid accused.
17. As aforesaid, the prosecution led the evidence of 28 witnesses. PWs.1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 23, 27 and 28 have turned hostile. Though the prosecutor has cross-examined the said witnesses, he has not been able to obtain any
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CRL.A No. 100121 of 2018 C/W CRL.A No. 100131 of 2018, CRL.A No. 100207 of 2018, CRL.A No. 100216 of 2018 statement from them to support the case of the prosecution.
18. PW.1 is a stranger to the family. In the complaint at Ex.P.29 he has stated that the deceased had an illicit relationship with the daughter-in-law of accused No.1. Apart from PW.1 turning hostile, it is not understood as to how PW.1 could have spoken of the intimate family details of the deceased and or accused No.1.
19. PW.2 who is a witness to the spot panchanama at Ex.P.1 has turned hostile and denied that he witnessed the spot panchanama.
20. PW.3 who is also stated to be witness of spot panchanama, has turned hostile and denied the spot panchanama as also his signature.
21. PW.4 who is a witness to Ex.P.5-the vehicle seizure panchanama has also turned hostile and denied any
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CRL.A No. 100121 of 2018 C/W CRL.A No. 100131 of 2018, CRL.A No. 100207 of 2018, CRL.A No. 100216 of 2018 such seizure. He has also denied the photographs at Exs.P.6 to P.8.
22. PW.5 who is signatory to Ex.P.5 (seizure panchanama) and Ex.P.9 (another seizure panchanama) has stated that the police had prepared the said panchanama and he had only signed it. Though he admits that he is seen photographs at Exs.P.6 to P.8, he has stated that he does not know why police took the photographs.
23. PWs.6 and 7 who are also witnesses to seizure panchanama as regards the amounts seized from accused Nos.2 to 10, have turned hostile and stated that there is no such seizure.
24. PW.8 who is witness to Ex.P.19 being kidnap spot panchanama, Ex.P.20 being cloths seizure panchanama and photographs, Ex.P.21 being the sketch of spot and photos, Ex.P.22 being the mobile
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CRL.A No. 100121 of 2018 C/W CRL.A No. 100131 of 2018, CRL.A No. 100207 of 2018, CRL.A No. 100216 of 2018 shop panchanama and photos, Ex.P.23 being seizure panchanama of TATA Sumo and the weapons therein, Ex.P.24 being the blank seizure panchanama and photographs, Ex.P.25 being the cloths seizure panchanama and photographs, has denied the said exhibits and has stated that he has no knowledge of the said panchanamas.
25. PW.9 who is a witness to the recovery panchanama, has stated that when the recoveries were made, none of the accused were present and no voluntary statement had been made in his presence. He has stated that he has no knowledge of the panchanamas and or of the seizure.
26. PW.10 who is stated to be witness to the incident spot panchanama and photographs at Ex.P.26, has denied any knowledge of the same. Similar is the situation as regards PW.11.
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CRL.A No. 100121 of 2018 C/W CRL.A No. 100131 of 2018, CRL.A No. 100207 of 2018, CRL.A No. 100216 of 2018
27. PW.12 who is stated to run a barber shop in front which the car of the deceased had been parked with certain blood on the seat, etc., has stated that he has signed the statement in the police station the said statement having been prepared by the police.
28. PW.13 has also stated he has no knowledge of the statements made and he has not seen the deceased. Similar is the statement made by PW.14.
29. PW.15 who has issued the caste certificate has stated that the deceased was a Valmiki and accused Nos.1, 2 and 5 were Lingayats, accused No. 4 was Rajaputh, accused Nos. 4 and 10 were Muslim and accused Nos. 6, 7, 8 and 9 were Maratha.
30. PW.16 who is the fingerprint expert of the FSL has stated that he has deputed V.M.Mathapati and S.G.Nadaf to find and extract any fingerprints in the TATA Indigo car belonging to the deceased. He has
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CRL.A No. 100121 of 2018 C/W CRL.A No. 100131 of 2018, CRL.A No. 100207 of 2018, CRL.A No. 100216 of 2018 stated that they found a chance fingerprint on the right side window which they have obtained and the said fingerprint was cross checked with the finger prints of accused No.5, 6 and 10, which had been sent by DSP, Bailhongal. They found that one of the fingerprint matched with index finger of accused No.5. He therefore submits that the finger print found on the right side window of the TATA Indigo car is that of accused No.5.
31. PW.17 has carried the FIR to the Magistrate. PW.18 is the Deputy Superintendent of Police, Bailhongal who has investigated the offence. During his cross- examination he has stated that he does not know the qualification of the persons who took the finger prints.
32. PW.19 has forwarded the FIR to the Court. PW.20 arrested accused Nos.4 and 10 on 02.09.2014 on the
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CRL.A No. 100121 of 2018 C/W CRL.A No. 100131 of 2018, CRL.A No. 100207 of 2018, CRL.A No. 100216 of 2018 basis of suspicion and arrested accused Nos.1, 2, 3, 7, 8, 9 on 03.09.2014.
33. PW.21 is Circle Inspector of Police who has investigated the offence until transfer of investigation to the Deputy Superintendent of Police. PW.21 has recorded the voluntary statement of accused Nos.4 and 10, wherein they are alleged to have stated that it is on the instigation of accused No.1 that all the accused conspired together and caused the death of the deceased and as such he has implicated the accused on the basis of voluntary statement.
34. PW.22 father of the deceased has deposed about the alleged illicit relationship between the deceased and daughter-in-law of accused No.1. Further, he has also stated that the wife of the deceased had left the deceased within two months of marriage and the family members of the said wife were also inimically
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CRL.A No. 100121 of 2018 C/W CRL.A No. 100131 of 2018, CRL.A No. 100207 of 2018, CRL.A No. 100216 of 2018 disposed against the deceased and wanted to cause his death.
35. PW.23 who is the brother of accused No.10, has stated that he knows the deceased, accused No.2 as also accused Nos.1 and 4. He has also turned hostile and denied having given any statement to the police. Nothing much has been elicited from him during the course of cross-examination by the Public Prosecutor after treating him hostile.
36. PW.24 who is the brother of the deceased has stated that accused Nos.4 and 10 took the deceased in the car but he had not informed anyone at any time including the Investigating Officer. He has also turned hostile. He has stated that police did not take him to the place where the deceased was murdered. He was not part of any panchanama conducted and that no panchanama was conducted in his presence. He stated that his father has given complaint about
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CRL.A No. 100121 of 2018 C/W CRL.A No. 100131 of 2018, CRL.A No. 100207 of 2018, CRL.A No. 100216 of 2018 his brother being kidnapped. He has not given any statement before the police that accused Nos.4 and 10 had taken his brother in their car. Thus, even the brother of the deceased has not supported the case of the prosecution.
37. PW.25 has stated that he along with CW.22 are doing Real estate business, they had entered into a sale agreement with Accused No.1 for purchase of his 60 guntas of land for Rs.12,000,00/- and paid Rs.2 lakhs as earnest money. However, Accused No.1 has neither received the balance amount from them nor executed the sale deed in their favour.
38. PW.27 has also turned hostile. He does not know to whom Tata sumo bearing reg.no KA-51-2203 belongs to, Accused No.3 never parked the said vehicle in front of his house. He has denied that the Police seized any weapon in the vehicle in his presence, he has also denied giving any statement.
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CRL.A No. 100121 of 2018 C/W CRL.A No. 100131 of 2018, CRL.A No. 100207 of 2018, CRL.A No. 100216 of 2018
39. PW.28 is a panch witness of the seizure panchanama who has turned hostile.
40. DW.1 who is accused No.5 in his evidence has stated that there was demand made by Circle Inspector of Police of certain monies which was not made payment of by him. It is in that background that he claims that Circle Inspector of Police (PW.21) has framed him. He had been called by Circle Inspector of Police who took his fingerprint and it is this fingerprint which stated to be matched and used against him. In the cross-examination he admits his signature at Ex.P.14. His presence in Ex.P.24 series his signature in Ex.P.26, Ex.P.14 and Ex.P.26 being the panchanama as regards.
41. It is from the above evidence on record that we have to ascertain if the charges framed against the accused have been established beyond reasonable doubt so as to convict the accused for the offences
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CRL.A No. 100121 of 2018 C/W CRL.A No. 100131 of 2018, CRL.A No. 100207 of 2018, CRL.A No. 100216 of 2018 alleged against them as done by the trial Court and uphold the order of conviction and sentence passed by the trial Court.
42. As afore observed, PWs.1 to 14, 23, 27 and 28 have turned hostile and nothing has been elicited from them during the course of cross-examination by the Public Prosecutor.
43. On account of the aforesaid witnesses turning hostile, none of the panchanamas i.e. spot panchanama, inquest panchanama, seizure panchanama have been proved by the prosecution. The recovery of the car, weapons and money on the basis of which the accused are sought to be implicated has also not been proved. The only evidence which is on record is that of the official witnesses who have sought to support the case of the prosecution.
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CRL.A No. 100121 of 2018 C/W CRL.A No. 100131 of 2018, CRL.A No. 100207 of 2018, CRL.A No. 100216 of 2018
44. Even amongst the official witnesses, the fingerprint has been lifted by V.M.Mathapati and S.G.Nadaf as deposed by PW.16. The said V.M.Mathapati and S.G.Nadaf have not been examined. PW.18 who is the Deputy Superintendent of Police (Investigating Officer) has stated that he does not know the qualification of said two persons.
45. In the background of the said facts, when the only persons who could have spoken about lifting of fingerprint and the veracity thereof being V.M.Mathapati and S.G.Nadaf, they not having been examined, gives raise to a situation where the said fingerprint examined by PW.16 cannot be said to be that which has been lifted by TATA Indigo. There is no evidence which has been led to establish from where the fingerprint of Accused No.5 which was used for comparison was obtained from and who took it.
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CRL.A No. 100121 of 2018 C/W CRL.A No. 100131 of 2018, CRL.A No. 100207 of 2018, CRL.A No. 100216 of 2018
46. PW.16 has spoken of the blood which has been recovered from the car and sent for examination. In the FSL report, apart from stating that the said blood is human in origin and the Rh factor is 'B' positive, there is no particular finding given by the FSL that the said blood is that belonging to the deceased. The FSL ought to have examined and compared the blood found in the TATA Sumo with that of the deceased to ascertain if the same was that of the deceased. This not having been done, it is not established that the blood found in TATA Sumo is that of the deceased.
47. The seizure of the monies from the accused, namely, Rs.30,000/- from accused No.2, Rs.10,000/- from accused No.3, Rs.20,000/- from accused No.5, Rs.5,000/- from accused No.6, 7 and 8 respectively, Rs.18,500/- from accused No.9 is also not established since the witnesses to the said seizure namely PWs.6 and 7 have turned hostile.
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CRL.A No. 100121 of 2018 C/W CRL.A No. 100131 of 2018, CRL.A No. 100207 of 2018, CRL.A No. 100216 of 2018
48. Neither is the daughter-in-law of accused No.1 Mallavva examined and her statement recorded nor is the statement of the son of accused No.1 recorded. This more so when the case of the prosecution was that Acussed No.1 had engaged the services of other accused to murder the said Mallavva and the Deceased.
49. The allegation being that there was illicit relationship between the deceased and daughter-in-law of accused No.1, there is no other person of the village and or family, who has been examined to establish this fact. There are only vague allegations and statements made in this regard in the charge sheet which has not been established by cogent evidence.
50. In our criminal justice for an accused to be convicted it is but required that the guilt of the accused is established beyond reasonable doubt. In the present case, as aforesaid there is no evidence on record to
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CRL.A No. 100121 of 2018 C/W CRL.A No. 100131 of 2018, CRL.A No. 100207 of 2018, CRL.A No. 100216 of 2018 implicate the accused in the crime though there are conjunctures drawn by the Investigating Officer as also by the trial Court to implicate the accused. The conviction of an accused cannot be on the basis of moral grounds but would have to be on sound legal principles established by the evidence on record.
51. In the above background, when there is no such evidence on record, we are unable to agree with the judgement of conviction and order of sentence passed by the trial Court. Hence, we pass the following:
ORDER
a) The appeals are allowed. Judgement of conviction and order of sentence dated 24.03.2018 passed by the II Additional District and Sessions and Special Judge, Dharwad in Spl.SC.ST.No.33/2014 is set aside.
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CRL.A No. 100121 of 2018 C/W CRL.A No. 100131 of 2018, CRL.A No. 100207 of 2018, CRL.A No. 100216 of 2018
b) Accused Nos.5 and 6 being enlarged on bail vide order dated 13.01.2020, accused Nos.7 and 8 being enlarged on bail vide order dated 13.01.2020, accused Nos.4 and 10 being enlarged on bail on 12.12.2019 and accused No.9 being enlarged on bail vide order dated 06.09.2018 and accused Nos.1 and 3 having expired, there is no order of release required to be passed. However, the bail bonds furnished by the said accused stand discharged.
Sd/-
JUDGE Sd/-
JUDGE SH List No.: 1 Sl No.: 2