Karnataka High Court
Siraganahalli Rangappa vs The State Of Karnataka on 28 July, 2018
Author: Mohammad Nawaz
Bench: Mohammad Nawaz
1
CRL.A. No.1189/2013
R
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 28TH DAY OF JULY 2018
PRESENT:
THE HON'BLE MR. JUSTICE B.A. PATIL
AND
THE HON'BLE MR. JUSTICE MOHAMMAD NAWAZ
CRIMINAL APPEAL NO.1189/2013
BETWEEN:
SIRAGANAHALLI RANGAPPA,
S/O LATE BASAPPA,
AGED ABOUT 45 YEARS,
R/O HOSABISALERI VILLAGE,
DAVANAGERE TALUK,
DAVANAGERE DISTRICT. ... APPELLANT
(NOW IN JUDICIAL CUSTODY
AT CENTRAL PRISON, BELLARY)
[BY SRI. KRISHNAJI RAO S.J., ADVOCATE]
AND:
THE STATE OF KARNATAKA,
BY HADADI POLICE STATION.
(REP. BY THE LEARNED STATE
PUBLIC PROSECUTOR) ... RESPONDENT
[BY SRI. VIJAYKUMAR MAJAGE, ADDL. SPP]
***
THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374(2)
OF CODE OF CRIMINAL PROCEDURE, PRAYING TO SET ASIDE
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CRL.A. No.1189/2013
THE JUDGMENT AND ORDER DATED 16.03.2013, PASSED BY THE
PRL. DISTRICT AND SESSIONS JUDGE AT DAVANAGERE, IN S.C.
NO.24/2009 AND THEREBY TO ACQUIT THE ACCUSED.
THIS CRIMINAL APPEAL COMING ON FOR FINAL HEARING,
THIS DAY, MOHAMMAD NAWAZ J., DELIVERED THE
FOLLOWING:
JUDGMENT
The accused/appellant has filed this appeal against the Judgment and Order dated 16.03.2013 passed by the Court of Principal District and Sessions Judge at Davanagere, in S.C. No.24/2009, wherein he was convicted for the offences under Sections 302 and 201 of IPC and sentenced to undergo imprisonment for life and also to pay a fine of Rs.25,000-00 for the offence under Section 302 of IPC and in default of payment of fine, to undergo simple imprisonment for a period of one year. Further, he was sentenced to undergo simple imprisonment for one year and to pay a fine of Rs.1,000-00 for the offence punishable under Section 201 of IPC and in default of payment of fine, to undergo simple imprisonment for a further period of 3 [three] months.
3CRL.A. No.1189/2013
2. The case of the prosecution is that;
On 06.11.2008 at about 1.30 a.m. in the midnight, on the tar road between 6th milestone and Hosabisaleri village, with an intention to murder Rudreshi [deceased], the accused picked up quarrel with him on the ground that the deceased had outraged the modesty of his wife and thereafter, made the deceased to fall on the ground and smashed his head on the tar road repeatedly by holding his tuft and committed his murder and thereafter, concealed the dead body in the canal situated in the garden land of one Chikkanahalli Rudreshi on Hosabisaleri and 6th milestone by covering the dead body with arecanut fronds so as to cause disappearance of evidence with an intention to screen himself from legal punishment and thereby committed the offences punishable under Sections 302 and 201 of IPC.
On 09.11.2008 at about 9.00 a.m., initially a missing complaint was filed by P.W.9-N.S. Suresh, the brother of the deceased informing the Hadadi Police that his brother 4 CRL.A. No.1189/2013 namely N.S. Rudreshi was missing since 06.11.2008 from 9.00 p.m., during which time one A.K. Mailappa, s/o. Mallappa [P.W.11] along with Siraganahalli Rangappa, s/o. Basappa, the accused herein, came near the house and took his brother for performing 'bhajane' stating that the mother of one Ramachandrappa of Mahadevapura has expired. A man missing complaint was registered in Crime No.118/2008 of Hadadi Police Station, Davanagere District.
On 11.11.2008, the accused herein was apprehended and he was produced before P.W.19-PSI of Hadadi Police, who recorded his voluntary statement as per Ex.P12 and at his instance, body of the deceased is said to have been recovered under a Panchanama-Ex.P1. A case in Crime No.121/2008 was registered against the accused under Sections 302 and 201 of IPC. The inquest mahazar was prepared under Ex.P2. Further, under Ex.P3 the bloodstains found on the tar road was collected and the bloodstained towel said to be belonging to the deceased was seized. The dead body was subjected to post-mortem examination and after conducting the autopsy, clothes on the dead body 5 CRL.A. No.1189/2013 were seized under a mahazar Ex.P4. P.W.21 completed the investigation and filed charge-sheet against the accused.
After committal of the case to the Court of Sessions, charges were framed for the offences punishable under Sections 302 and 201 of IPC. The accused pleaded not guilty and claimed to be tried.
In order to establish the case of the prosecution, the prosecution in all examined 22 witnesses and got marked 17 documents and 8 material objects.
The defence of the accused was one of total denial. The learned Sessions Judge considering the evidence and the material placed on record, convicted the accused for the charged offences and passed the sentence as noted supra.
3. We have heard the learned counsel Sri. Krishnaji Rao S.J., appearing for the appellant and the learned Additional S.P.P. Sri. Vijayakumar Majage for the respondent/State.
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4. Learned counsel appearing for the appellant vehemently contended that the impugned Judgment and Order passed by the learned Sessions Judge is not in accordance with law since the learned Sessions Judge has not followed the principle governing the appreciation of evidence in a case of this nature where the case of the prosecution is based on circumstantial evidence. He vehemently contended that the prosecution has absolutely failed to prove the motive aspect and the other circumstances relied have also been not clinchingly established. It is his contention that the accused has been convicted on the basis of assumption and presumption. The dead body was not discovered at the instance of the accused and further that the evidence with regard to last seen theory is doubtful since the witnesses namely P.Ws.10 to 12 are not worth believable as they have not informed the Police and that there is delay in recording their statements with regard to the deceased and the accused having last seen together by them. He further submitted that the evidence in this regard has not been properly appreciated by the learned Sessions Judge and even 7 CRL.A. No.1189/2013 according to P.W.9, who has filed a missing complaint, there was one more person i.e., P.W.11, who had accompanied the deceased from the house. Hence, he submitted that the learned Sessions Judge was not proper in convicting the accused and sought to reverse the said Judgment and Order of conviction and to acquit the accused.
Per contra, the learned Additional S.P.P. while supporting the impugned Judgment of conviction and sentence passed by the learned Sessions Judge contended that the accused had a grudge against the deceased as the deceased had outraged the modesty of his wife. Hence, he was waiting for an opportunity to commit the murder of deceased and accordingly, on 06.11.2008, the accused took the deceased to Mahadevapura for performing 'bhajane' on account of the death of grandmother of one Thippeswamy- P.W.12 and while returning, he picked up quarrel with the deceased and committed his murder by holding his tuft and banging his head on the tar road and thereafter dragged the dead body near the garden land of one Chikkanahalli Rudreshi and threw the dead body to the canal and covered 8 CRL.A. No.1189/2013 the same with arecanut fronds to cause disappearance of the deceased. He further contended that the dead body was discovered at the instance of the accused and apart from that, P.Ws.10 to 12 have supported the prosecution case with regard to the last seen theory. He further contended that the Judgment and Order of conviction and sentence passed by the learned Sessions Judge does not suffer from any illegality and therefore, prayed to dismiss the appeal.
5. Having heard both side the following points arise for our consideration:
1) Whether the Judgment and Order of conviction and sentence passed by the trial Court convicting the accused for the offences punishable under Sections 302 and 201 of IPC is in accordance with law?
2) Whether the impugned Judgment and
Order is liable to be set aside and the
accused is entitled for an order of
acquittal?
9
CRL.A. No.1189/2013
6. It is the case of the prosecution that on 06.11.2008 at about 9.00 p.m., the accused along with P.W.11-A.K. Mailappa picked up the deceased from his house so as to go to Bisaleri village to perform "bhajane" in connection with the death of the grandmother of P.W.12- R.Thippeswamy and after midnight, both the accused and the deceased left the said house and on their way back, the accused picked up quarrel with the deceased stating that the deceased had outraged the modesty of his wife and made him to fall on the ground and held the tuft and banged the head on the tar road and committed the murder and thereafter to cause disappearance of the evidence, dragged the dead body to the garden land of one Chikkanahalli Rudreshi and put it in the canal and covered the dead body with arecanut fronds.
7. There are no eye witnesses to the incident and the case is based on circumstantial evidence. The learned Sessions Judge formed the following incriminating circumstances as relied on by the prosecution to connect the accused with the alleged crime:
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1) Rudreshi, s/o. Siddappa died a homicidal death;
2) Rudreshi, accused and one Mailappa had been to Mahadevapura on 6.11.2008 and afterwards Rudreshi did not return to his house;
3) On the night between 6.11.2008 and 7.11.2008 when bhajan was going on in the house of P.W.12-Thippeswamy, accused along with Rudreshi went out of the house at about 1.30 a.m. stating that they are going to attend nature's call and afterwards did not return to the place where bhajan was going on;
4) On the next day when P.W.9 went and questioned the accused about Rudreshi, he did not give satisfactory answer;
5) Injuries were found on the face of the accused on the next day after Rudreshi went missing and P.W.9 had observed those injuries;
6) Accused gave voluntary information to the Investigating Officer when he was interrogated, leading to the discovery of the dead body of Rudreshi concealed in a 11 CRL.A. No.1189/2013 water canal in the land of Chikkanahalli Basavarajappa;
7) Accused lead the Police Officer and panch witnesses to the land of Chikkanahalli Basavarajappa and pointed out the place where the dead body of deceased Rudreshi was found;
8) Accused shown the place where blood stains were found on the tar road and also pointed out a towel in a bush nearby the tar road, on which bloodstains were found;
9) Accused did not give satisfactory explanation as to when and where he and deceased Rudreshi parted company after they came out of the house of P.W.12 Thippeswamy on the night between 6.11.2008 and 7.11.2008;
10) Accused was missing from the village after P.W.9 gave missing complaint to the police;
11) Accused was having motive to commit the murder of deceased Rudreshi.
8. It is well-established that in a case based on circumstantial evidence, the circumstances from which the conclusion of guilt is to be drawn should be cogently and 12 CRL.A. No.1189/2013 firmly established; that those circumstances which are relied on by the prosecution should be of a definite tendency unerringly pointing towards the guilt of the accused and if they are taken cumulatively should form a complete chain establishing the guilt and incapable of explanation on any hypothesis other than the guilt of the accused. The said circumstances should not be only consistent with the guilt of the accused but also inconsistent with his innocence so that there is no escape from the conclusion that within all human probability a crime was committed by the accused and the accused alone.
9. It is no-doubt true that the conviction can be based solely on the basis of circumstantial evidence but, it should be tested by the touch stone of law relating to circumstantial evidence laid-down by the Hon'ble Apex Court in catena of decisions. That the Hon'ble Apex Court in a decision reported in AIR 1994 SC 1622, in the case of Sharad Birdhichand Sarda Vs. State of Maharashtra, while dealing with circumstantial evidence has held that the onus was on the prosecution to prove that the chain is 13 CRL.A. No.1189/2013 complete and the infirmity of lacuna in the prosecution cannot be cured by a false defence of plea. The condition precedent before conviction could be based on circumstantial evidence must be fully established and they are;
1) The circumstances from which the conclusion of guilt is to be drawn should be fully established. The circumstances concerned must or should and not may be established;
2) The facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty;
3) The circumstances should be of a conclusive nature and tendency;
4) They should exclude every possible hypothesis except the one to be proved;
and 14 CRL.A. No.1189/2013
5) There must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the -innocence of the accused and must show that in all human probability the act must have been done by the accused."
10. In the present case, to see as to whether the deceased died a homicidal death, it is necessary to appreciate the medical evidence. The autopsy was conducted by P.W.17. The post-mortem report is marked as per Ex.P9. According to the post-mortem report, the cause of death could not be given as the body was in a highly decomposed state. P.W.17 while conducting autopsy has noticed certain external injuries as noted below:
II Cranium and Spinal Canal Skull & Vertebrae : Irregular pale laceration seen over right frontal 3 x 2 cm. two irregular laceration seen over right occipital region 3 x 2 cm., 2 x 1 cm. dorsal to (not clear). Bleeding haemotoma with fresh nature 6 x 5 cm. One laceration 15 CRL.A. No.1189/2013 seen over right parital region 2 x 1 cm. Proximal to lacer skin was retricialist laceration was seen with blackish colour blood at proximal part.
In his evidence, P.W.17 has deposed that 3 injuries were noted on the skull. However, there was no opinion given with regard to the cause of death as the body was highly decomposed, even though he has stated that the injuries on the skull are ante-mortem in nature and could have been caused within 7 days from the date of examination.
11. It is no-doubt that there were certain injuries noticed on the skull portion, which are said to be ante- mortem in nature. However, P.W.17-doctor has not given any definite finding with regard to the cause of death. Merely because certain injuries are noticed, it cannot be conclusively held that the death is homicidal in nature. The learned Sessions Judge has proceeded to hold that the death of Rudreshi was a homicidal death since there were injuries on the skull and the dead body was found in a 16 CRL.A. No.1189/2013 canal and arecanut fronds were placed on the dead body to conceal the same. We have carefully examined the evidence on record, in particular Ex.P1-panchanama under which the dead body was recovered on 11.11.2008 between 11.15 a.m. and 12.15 p.m. There is nothing in the said mahazar to show that any arecanut fronds were covered over the dead body. Though the accused is said to have made a statement that the dead body was covered with arecanut fronds, the evidence of P.Ws.1 and 6, who are the panch witnesses to Ex.P1 is contrary to each other. Though P.W.6 stated that there were two arecanut fronds covered over the dead body, P.W.1 does not make a mention about the same. When the mahazar-Ex.P1 itself does not indicate as to whether arecanut fronds were found placed over the dead body, then it is difficult to believe the evidence of P.W.6, which evidence is not corroborated by the evidence of another panchwitness-P.W.1. The evidence of other witnesses in this regard may not be helpful to the case of the prosecution in view of Ex.P1 mahazar and the contrary evidence of P.Ws.1 and 6. In so far as the injuries found on the skull are concerned, P.W.17, the medical officer in the 17 CRL.A. No.1189/2013 cross-examination has stated that if a person, who is drunk and falls on the stone, the said injuries could be caused. It has come in the evidence that the deceased Rudreshi was addicted to alcohol and P.W.12 has stated that normally the people would take drinks at the time of performing "bhajane". In view of the same and the fact that the doctor who has conducted the autopsy has failed to opine as to the cause of death, it cannot be conclusively held that the prosecution has established beyond all reasonable doubt that the deceased died a homicidal death. However, we proceed to examine as to whether other circumstances relied on by the prosecution are established.
12. In so far as the motive is concerned, it is the case of the prosecution that the accused had a grudge against the deceased as the deceased had outraged the modesty of his wife by attempting to molest her. However, there is absolutely no evidence with regard to the said motive aspect put-forth by the prosecution. It is no-doubt that the motive is hidden in the mind of the accused and many a times it would be difficult for the prosecution to 18 CRL.A. No.1189/2013 prove the motive. However, considering that this is a case based on circumstantial evidence, the motive aspect do play an important role in appreciating the case of the prosecution. Though it is not necessary that in all cases based on circumstantial evidence motive has to be proved. Even if the motive aspect is not proved, but on the other hand, if all the other circumstances relied on by the prosecution is clinchingly established and if the circumstances relied form a complete chain pointing the guilt towards the accused and the accused alone, then merely because the motive is not proved cannot be a ground to throw away the case of the prosecution. However, the Court cannot infer and attribute the motive aspect without there being any evidence on record to establish the same. In the decision reported in 2010(10) SCC 439, in the case of Paramjeet Singh Vs. State of Uttarakhand, the Hon'le Apex Court has held that if motive is proved, that would supply a link in the chain of circumstantial evidence but, the absence thereof cannot be a ground to reject the prosecution case.
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13. In the present case, the prosecution has failed to establish that there was any motive for the accused to commit the murder of the deceased as none of the witnesses who are required to speak about the motive have even remotedly made a reference to that aspect. In such a situation, it is required to see as to whether the prosecution has established all the other circumstances which has relied upon and whether the same forms a chain of event.
14. It is the case of the prosecution that the deceased had accompanied the accused on 06.11.2008 at about 9.00 p.m. to go to Mahadevapura. Thereafter, he did not return to the house. The missing complaint at Ex.P5 given by P.W.9, the brother of the deceased would disclose that on 06.11.2008 at about 9.00 p.m., the accused as well as A.K. Mailappa, s/o. Mallappa i.e., P.W.11 came to the house and called the deceased so as to go to Mahadevapura for performing 'bhajane' in view of the death of the mother of one Ramachandrappa. The said complaint was filed suspecting both A.K. Mailappa and the accused. In so far as P.W.9 is concerned, he has last seen the deceased in the 20 CRL.A. No.1189/2013 company of both A.K. Mailappa-P.W.11 and the accused. Subsequently P.Ws.10 to 12 are said to have last seen the deceased in the company of the accused. The evidence of P.Ws.10 to 12 is relevant to appreciate the case of the prosecution to see as to whether the prosecution has established the last seen theory.
15. It is the evidence of P.W.10-Narasimhappa that since his grandmother had expired, he went to Mahadevapura from Davanagere at about 7.00 p.m. and normally 'bhajane' will be performed in the night on such occasion. On that night, the accused, Rudreshi [deceased], Nagaraj and A.K. Mailappa [mentioned as A.K.Manjappa] had come to the house and there were other villagers. The accused and the deceased had come from Hosabisaleri. At about 1.00 a.m., the accused and the deceased stopped 'bhajane' and went away and 'bhajane' continued till 7.00 a.m. in the morning. The accused and the deceased did not return and on the next day, P.W.9-Suresh came and enquired about his brother Rudreshi, etc. 21 CRL.A. No.1189/2013
16. P.W.11-Mailappa has deposed that the grandmother of Thippeshi had expired and hence they were taken to Mahadevapura for performing 'bhajane'. Thippeshi had taken the accused and the deceased on his vehicle and after dropping them he also took him to Mahadevapura. At about 1.30 a.m., the accused and the deceased went away for attending first nature's call and thereafter they did not return.
17. P.W.12 has deposed that his grandmother- Bheemajji had expired on 06.11.2008 and at the time of the death of elders, 'bhajane' will be conducted during night hours before their funeral. He invited P.W.11-Mailappa for the purpose of 'bhajane'. There were no adequate persons to conduct 'bhajane' in Mahadevapura and hence, P.W.11 went to Hosabisaleri village to bring 'bhajane' people. He himself went to Hosabisaleri at about 8 p.m. to bring Mailappa and others. When he was standing on the road, Mailappa went and brought Rudreshi [deceased] and Siraganahalli Rangappa [accused], then he brought them on his motorcycle to the village and then he again went back 22 CRL.A. No.1189/2013 and brought Mailappa on his motorcycle to his house. One Narayanappa, Manjappa, some ladies from his native place joined 'bhajane'. The deceased Rudreshi and the accused were performing 'bhajane' till 1.00 a.m. and thereafter they went out and did not return. 'Bhajane' was performed till 7.00 a.m. in the morning. On 07.11.2008, the mother of the deceased along with the brother of deceased came to his village and enquired about the deceased and he told them that both Rudreshi and the accused went away at 1.00 a.m. He told them that there was no quarrel during night hours. In the cross-examination, he has stated that the deceased Rudreshi was addicted to alcohol and further states that the people normally take drinks at the time of 'bhajane' and the 'bhajane' group people will sing song with all devotion. He has further stated that he cannot say as to how many persons went out of 'bhajana' and also its timings. He has further stated that the police recorded his statement after two weeks of 'bhajana'.
18. If we appreciate the above evidence with regard to the last seen theory i.e., the deceased having seen in the 23 CRL.A. No.1189/2013 company of the accused for the last time then, according to the above prosecution witnesses, on 06.11.2008/ 07.11.2018 at 1.30 a.m. the deceased was seen along with the accused and they went out together and thereafter the deceased was not seen till the dead body was traced on 11.11.2008. However, strangely in the missing complaint lodged by P.W.9-N.S.Suresh, the brother of the deceased on 09.11.2008, the said important aspect has not been stated. It is the evidence of the above witnesses that on the very next date i.e., on 07.11.2008, the aforesaid P.W.9 and others enquired about the deceased and they informed about the deceased leaving the house at about 1.30 a.m. along with the accused. If that is so, P.W.9 would have certainly mentioned the same in his missing complaint at Ex.P5 lodged on 09.11.2008 before the Hadadi Police. On the other hand, the said Ex.P5 only discloses that the deceased leaving the house along with the accused as well as A.K. Maliappa-P.W.11 and pointing suspicion against both of them. Further, there is nothing to show that till the dead body was discovered, the statements of the above witnesses namely P.Ws.10 to 12 were recorded. P.W.12 24 CRL.A. No.1189/2013 has categorically stated that his statement was recorded after 2-3 weeks of 'bhajane'.
19. P.W.19, who registered the missing complaint and who initially took up the investigation does not specifically say that the statements of P.Ws.9 to 11 were recorded prior to the arrest of the accused i.e., on 11.11.2008. The material on record does not indicate that prior to 11.11.2008 there were any statement of the above witnesses recorded by P.W.19.
20. P.W.20, who took over the investigation on 11.11.2008 from P.W.19 has stated that he recorded the statement of Mailappa [P.W.11] and Narasimhappa [P.W.10] on 12.11.2008. Further P.W.21, who conducted further investigation and filed the charge-sheet has stated that he recorded the statements of the witnesses including Thippeswamy [P.W.12] and Narasimhappa [P.W.10] on 30.11.2008 and the statements of the other witnesses on 01.12.2008.
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21. Another important aspect is that, according to the prosecution the deceased was said to have been seen in the company of the accused on 06.11.2008 and the dead body was found on 11.11.2008. There is a gap of 5 days between the point of time when the accused and the deceased were seen last alive and when the deceased is found dead. As held by the Hon'ble Apex Court in the case of State of U.P. Vs. Satish, reported in 2005(3) SCC 114
- last seen theory comes into play where the time-gap between the point of time when the accused and the deceased were seen last alive and when the deceased is found dead is so small that possibility of any person other than the accused being the author of the crime becomes impossible. It would be difficult in some cases to positively establish that the deceased was last seen with the accused when there is a long gap and possibility of other persons coming in between exists. In the absence of any other positive evidence to conclude that the accused and the deceased were last seen together, it would be hazardous to come to a conclusion of guilt in those cases. 26 CRL.A. No.1189/2013
22. In view of the above discussion, the evidence of P.Ws.10 to 12 on which the prosecution wants to rely and establish that the deceased was last seen in the company of the accused cannot be accepted. At the cost of repetition, the missing complaint at Ex.P5 which was lodged on 09.11.2008 does not make any mention of the above aspects. Therefore, it cannot be held that the prosecution has established the last seen circumstance.
23. The learned Addl. S.P.P. would vehemently contend that the dead body was recovered at the instance of the accused and this is a very strong circumstance and therefore, the prosecution has established its case against the accused beyond all reasonable doubt. To appreciate the said contention, if we analyze the evidence on record, it is seen that on 11.11.2008, the accused was apprehended and he was produced before P.W.19-PSI and the voluntary statement of the accused as per Ex.P12 was recorded and he led the Police officials and the panchwitness to the spot where the dead body was lying and there the Ex.P1- panchanama was prepared. P.Ws.1 and 6 are the 27 CRL.A. No.1189/2013 panchwitnesses to the said Ex.P1. Ex.P1-mahazar was prepared in the presence of said panchwitnesses between 11.15 a.m. and 12.15 noon on 11.11.2008. A perusal of their evidence would disclose that at the time of mahazar there were 50 to 60 persons gathered and about 10 to 12 Police personnel at the spot.
24. P.W.3, who is the relative of the deceased has deposed in his evidence that they were searching for the deceased and since he was not traced, a complaint was lodged by Suresh [P.W.9]. After 4 days, someone informed that there was a towel lying and foul smell was emanating and the dead body could be lying in the garden land. Since there were many people gathered, he also went to see the dead body and at that time, the Police had arrived and number of persons had gathered. P.W.3 has further deposed that after the said towel was found, the accused had left the village. The Police arrested the accused and the accused showed the spot where the dead body was lying.
25. The above evidence on record would go to show that after the complaint was lodged by P.W.9, they came to 28 CRL.A. No.1189/2013 know that there was a towel lying and the foul smell was emanating and it was informed that the dead body was lying in the garden land since foul smell was emanating from there. This is prior to the arrest of accused on 11.11.2008. It is very relevant to see that the prosecution also relies on the recovery of the bloodstained towel [M.O.3], which is said to have been recovered at the instance of the accused on 11.11.2008 under a mahazer- Ex.P3. According to the prosecution, the accused after committing the murder, wiped the bloodstains from the tar road with the help of the said towel belonging to the deceased and thereafter hid the towel in the nearby bush and after the arrest of the accused, he led the Police and the panchwitnesses to the said place and under a mahazar- Ex.P3, the towel [M.O.3] was recovered at his instance.
26. P.W.7-T. Mallikarjuna is the panchwitness to Ex.P3. Though the case of the prosecution is that the accused after showing the dead body, led the Police and panchwitnesses to the place where the towel was kept. However, the evidence of P.W.7 demolishes the said theory. 29 CRL.A. No.1189/2013 According to him, the Police after collecting the bloodstains from the road and the towel which was in the fence and after the seizure of the same, the accused showed the place where the dead body was lying. Ex.P3-Mahazar was conducted between 3.30 and 4.00 p.m. It is relevant to see that under the said Ex.P3-mahazar, the bloodstained clothes are said to have been recovered and the bloodstains found on the tar road was collected. However, Ex.P1 is the mahazar which was prepared at the time of discovery of the dead body between 11.15 a.m. and 12.15 p.m., which is in fact prior to the drawing up of Ex.P3-mahazar. Even P.W.6, one of the panchas to Ex.P1, who accompanied the police and the accused to the spot has stated in the cross- examination that there were 50-60 persons already gathered at the spot. In view of the discussion made supra, it is evident that the dead body was noticed even prior to the arrest of the accused and it cannot be held that the prosecution has been able to establish that the dead body as well as the bloodstained towel was discovered at the instance of the accused.
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27. In so far as the evidence of P.W.23-Police videographer is concerned, according to him, on 11.11.2008 a message was sent by the Police and he went to the Police Station and he was asked to video-record by PSI-Suresh- P.W.9 and showed the accused who was in the Police Station and accordingly, he recorded and converted the same into the compact disc ['C.D.' for short]. The said C.D. was displayed before the trial Court. It was stated that though the picture was clear, the conversation was not clear. The accused is said to have made a statement to show the spot of the incident. The C.D. is marked as M.O.8. In the cross-examination, the said P.W.23 has stated that while taking the video, mixing and editing can be done and in the present case, by wireless message from the control room he was intimated, to record the video and there was no written request. After he started taking video, he stopped for about 10 to 15 times. He has further stated that he has videographed the places which were shown by the Police Inspector. In view of the said admissions, we do not propose to rely on M.O.8.
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28. The prosecution also relied upon the evidence of P.W.22-Dr. R.H.Naik of C.G. Hospital, Davanagere to show that the accused had sustained certain injuries at the time of incident and after his arrest on 11.11.2008 the said injuries were noticed and P.W.22 after examining the accused issued the certificate as per Ex.P16. The evidence of P.W.22 would discloses that at about 7.15 p.m. on 11.11.2008, the accused was brought before him and he noticed one injury i.e., an abrasion 5 x 1 c.m. over the nose and another abrasion measuring 2 x 2 c.m. on the left side of the forehead. The said injuries are said to be simple in nature. In the cross-examination, he has stated that the said injuries could be caused while doing farm/agriculture work. The prosecution has failed to explain as to under what circumstances, the said injuries were sustained. When all the other circumstances relied on by the prosecution itself having not been established, the aforesaid injuries said to have been sustained by the accused cannot be said to be significant.
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29. P.W.18 is the Scientific Officer, who issued the FSL report as per Ex.P10. The prosecution wants to rely on the said FSL report to hold that the bloodstains found on the spot and on the towel which were recovered under Ex.P3 as well as the clothes of the deceased at M.Os.3 to 7 contained human blood of 'A-Group' origin. However, in this regard, the recovery itself having not been established, it cannot be said that Ex.P10-FSL report would come to the aid of the prosecution to connect the accused with the crime.
30. Having re-appreciated the entire evidence and materials meticulously, the circumstances relied upon by the prosecution cannot be said to be conclusive in nature. The circumstances, are not consistence with the hypothesis of the guilt of the accused. As it is a settled law that the circumstances from which the conclusion of guilt is drawn should be thoroughly proved, but in the present case, we find that the prosecution has failed to prove the circumstances which it has relied upon. For the aforesaid reasons, the Judgment and Order of conviction and sentence passed by the learned Sessions Judge cannot be 33 CRL.A. No.1189/2013 said to be sound and proper. Accordingly, we pass the following:
ORDER The appeal is allowed. The impugned Judgment and Order of conviction and sentence dated 16.03.2013 passed by the Principal District and Sessions Judge at Davanagere in S.C. No.24/2009 is set aside. Accused-appellant herein is acquitted of the offences with which he was charged.
Accused-appellant herein shall be released forthwith, if he is not required in any other case.
Sd/-
JUDGE Sd/-
JUDGE CT-NR Ksm*