Karnataka High Court
Raju @ Basavaraju vs State Of Karnataka on 16 April, 2018
Equivalent citations: AIRONLINE 2018 KAR 1776
Author: R.B Budihal
Bench: R.B Budihal
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 16TH DAY OF APRIL 2018
PRESENT
THE HON'BLE MR. JUSTICE BUDIHAL R.B.
AND
THE HON'BLE MRS. JUSTICE K.S.MUDAGAL
CRIMINAL APPEAL NO.1399/2012
C/W
CRIMINAL APPEAL NO.4/2013
IN CRL.A. NO.1399/2012
BETWEEN:
RAJU @ BASAVARAJU
S/O SHANKARAIAH
AGED ABOUT 28 YEARS
R/AT NAGARAGHATTA
NONAVINAKERE HOBLI
TIPTUR TALUK - 572 224. ...APPELLANT
(BY SRI M.SHASHIDHARA, ADV.)
AND:
STATE OF KARNATAKA
BY NONAVINAKERE P.S. - 572 224. ...RESPONDENT
(BY SRI VIJAYAKUMAR MAJAGE, ADDL. SPP.)
THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374(2)
CR.P.C., PRAYING TO SET ASIDE THE ORDER DATED 10.9.12
PASSED BY THE P.O., FTC, TIPTUR IN S.C.NO.30/09 -
CONVICTING THE APPELLANT/ACCUSED FOR THE OFFENCES
P/U/S 302, 201 R/W 34 OF IPC AND THE APPELLANT/ACCUSED
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IS SENTENCED TO UNDERGO LIFE IMPRISONMENT AND TO PAY
FINE OF RS.20,000/-, IN DEFAULT OF PAYMENT OF FINE TO
UNDERGO S.I. FOR FURTHER PERIOD OF SIX MONTHS FOR
THE OFFENCE P/U/S 302 OF IPC R/W 34 OF IPC AND THE
APPELLANT/ACCUSED IS SENTENCED TO UNDERGO R.I. OF 5
YEARS AND FINE OF RS.10,000/- IN DEFAULT OF PAYMENT OF
FINE TO UNDERGO S.I. FOR FURTHER PERIOD OF 3 MONTHS
FOR THE OFFENCE P/U/S 201 R/W 34 OF IPC.
IN CRL.A. NO.4/2013
BETWEEN:
SRI G.S.SHIVAMURTHY
S/O SHIVALINGAPPA
AGED ABOUT 49 YEARS
R/O GOPEGOWDANAPALYA
NONAVINAKERE HOBLI
TIPTUR TALUK
TUMKUR DISTRICT. ...APPELLANT
(BY SRI K.V.NARASIMHAN, ADV.)
AND:
STATE BY NONAVINAKERE POLICE
TIPTUR,
TUMKUR DISTRICT. ...RESPONDENT
(BY SRI VIJAYAKUMAR MAJAGE, ADDL. SPP.)
THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374(1)
CR.P.C., PRAYING TO SET ASIDE THE IMPUGNED JUDGMENT
OF CONVICTION AND ORDER DATED 10.9.12 PASSED BY THE
P.O., FTC, TIPTUR IN S.C.NO.30/09 - CONVICTING THE
APPELLANT/ACCUSED FOR THE OFFENCES P/U/S 302, 201
R/W 34 OF IPC AND THE APPELLANT/ACCUSED IS SENTENCED
TO UNDERGO LIFE IMPRISONMENT AND TO PAY FINE OF
RS.20,000/-, IN DEFAULT OF PAYMENT OF FINE TO UNDERGO
S.I. FOR FURTHER PERIOD OF SIX MONTHS FOR THE OFFENCE
P/U/S 302 R/W 34 OF IPC AND THE APPELLANT/ACCUSED IS
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SENTENCED TO UNDERGO R.I. FOR 5 YEARS AND FINE OF
RS.10,000/- IN DEFAULT OF PAYMENT OF FINE TO UNDERGO
S.I. FOR FURTHER PERIOD OF 3 MONTHS FOR THE OFFENCE
P/U/S 201 R/W 34 OF IPC.
THESE CRIMINAL APPEALS COMING ON FOR HEARING
THIS DAY, BUDIHAL R.B., J., DELIVERED THE FOLLOWING:
JUDGMENT
Since these two appeals arise out of common judgment and order and since common questions of law and facts are involved in these two appeals, they are taken together to dispose of them by this judgment.
2. Crl.A.No.1399/2012 is preferred by accused No.2 and Crl.A.No.4/2013 is preferred by accused No.1, being aggrieved by the common judgment and order of conviction dated 10.9.2012 passed by the Fast Track Court at Tiptur in S.C.No.30/2009, wherein the appellants herein are convicted for the offences punishable under Sections 302 and 201 r/w Section 34 of IPC.
3. Brief facts of the prosecution are, P.W.2 one Cheluvaiah filed the complaint as per Ex.P1 alleging that 4 about 22 years back the complainant married Siddagangamma and they were leading happy marital life. They are having three children, one female and two male. Three years prior to the alleged incident, wife of the complainant got influenced by the devil force and they were working on her and because of that reason, she was talking unusually and often used to leave the house and thereafter, return the house. About 15 days prior to the incident, mother of said Siddagangamma came to the house of the complainant on 30.8.2008 and deceased went along with her to drop her mother to her place and came back. On 31.8.2008 at about 3.30 p.m., on the same day during night, all the family members had dinner slept and at about 9.30 p.m. wife of the complainant suddenly went out of the house. The family members thinking that she might have gone to neighbour's house and may come late for sleeping, kept mum and they slept. On 1.9.2008 in the morning at 8.00 a.m. when the father of the complainant who went to the land was returning, he found beetle leaf bag of the deceased nearby the brick factory by the side of the land and when he was coming 5 by taking the same, P.W.5-Ningappa told the father of the complainant that previous night at 12.30 p.m. he heard screaming noise of his daughter-in-law and also the sound of passing of the motorcycle and due to fear, he did not come out of the house. When the father of the complainant informed the same, the complainant and his son Kantharaju came near Kaidala gate and saw blood stains and also tyre marks of the motorcycle on the road. When they followed the same till the bank of Nonavinakere lake and saw that the deadbody was dragged on the tar. They found saree and petty coat of the deceased lying nearby the said lake and also seen the deadbody of Siddagangamma floating in the lake facing downwards in a nude position. There were abrasions on her back and also on the buttocks. It is stated that some miscreants for unlawful reason might have committed the murder of Siddagangamma and to screen the evidence might have brought the dead body and thrown in the lake. Accordingly, requested to take appropriate action against the culprits. On the basis of the complaint, case was registered in Crime No.68/2008 for the offences punishable under 6 Sections 302 and 201 of IPC. The Investigating Officer, after conducting investigation filed charge sheet for the offences punishable under Sections 302 and 201 r/w Section 34 of IPC.
The learned Fast Tract Judge, on hearing both sides, framed charges. When the charges were read over and explained to accused Nos.1 and 2, they pleaded not guilty and claimed to be tried in the matter. Accordingly, matter was posted for trial.
In support of its case, the prosecution, in all, examined 19 witnesses and got marked 17 documents and also 15 material objects as M.Os.1 to 15. Then the accused persons were examined under Section 313 of Cr.P.C. and their statements came to be recorded. On the side of the defence no witnesses were examined, but during the course of cross- examination of the prosecution witnesses, Exs.D1 and D2 were marked. After considering the materials placed on record, both oral and documentary, so also, after hearing the arguments on both sides, the learned Fast Track Court Judge has come to the conclusion that prosecution has proved its 7 case beyond all reasonable doubt against both accused persons for the charges framed against them and convicted both of them. Being aggrieved by the judgment and order of conviction and also the sentence imposed on them, so also, challenging the legality and correctness of the judgment and order of conviction, the appellants are before this Court in these appeals, on the grounds as mentioned in the respective appeal memorandums.
4. We have heard the arguments of learned Counsel appearing for the appellants-accused No.2 & 1 respectively and also the learned Addl. SPP for the respondent-State.
5. Learned counsel appearing for accused No.1 in Crl.A.No.4/2013 during the course of his arguments drew our attention to the oral evidence of P.W.13, Dr.Raghu T Gokale who conducted autopsy over the dead body of the deceased and also to the post mortem report and submitted that the Doctor has noticed cut and lacerated injuries on the body of the deceased and cause of death is mentioned as by throttling 8 and also by smothering. As per the prosecution case, accused Nos.1 and 2 have committed the murder of deceased Siddagangamma. It is also not the case of the prosecution that accused have used any weapon to commit her murder. But the evidence of the Doctor shows that some of the injuries are caused by a weapon having a sharp edge. Hence, looking to the evidence of the Doctor, so also, the post mortem report, it cannot be concluded that it is homicidal death. Learned counsel further submitted that the case of the prosecution is, a plastic wire has been tied to the lower limbs of the deceased and she has been dragged to a distance of about 3 kms and thereafter, they have thrown the dead body into the lake and if it is so, there would have been some ligature marks on the places of the body where such plastic wire was tied, which were not found by the Doctor. Hence, it is most unnatural to believe that the body of the deceased has been dragged by the accused persons that too for a distance of about 3 kms. on the public road. He has submitted that these materials raises doubt in the mind of the Court about the case of the prosecution.
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Regarding the extra judicial confession statement made by the accused persons, learned counsel drew our attention to the evidence of P.W.8 Seetharam and submitted that, though it is the case of the prosecution that accused persons made extra judicial confession before him on 1.9.2008, but till 9.9.2008, P.W.8 kept mum and not brought this fact to the notice of the police or to the relatives of deceased Siddagangamma. Therefore, the evidence of P.W.8 will not inspire the confidence of the Court and the same cannot be relied upon by the Court.
So far as the last seen theory is concerned it is the submission of the learned counsel that it is the prosecution case that deceased went out of the house during the night at about 9.30 p.m. on 31.8.2008. However, P.W.3 Pavithra, the daughter of complainant has deposed in her evidence that she did not sleep during that night and was reading. At about 10.45 p.m.. she received phone call of P.W.7 Shashidhar and he told her that her mother is with him and gave the phone to the deceased Siddagangamma who also spoke to her, but subsequently, the phone call got 10 disconnected. It was also informed to Pavithra that since deceased wanted to go to Tiptur hospital, accused Nos.1 and 2 who are also going to the said place, are taking the deceased Siddagangamma along with them. During the night itself, P.W.2 informed about this fact to the family members.
Learned Counsel also drew our attention to the evidence of P.W.4-Singraiah, the father of the complainant. He has deposed that he had been to Nagaraghatta gate wherein he met accused No.1 and asked about the deceased for which, accused No.1 told him that he has not seen her and told P.W.4 that he will drop him to the house on his two wheeler vehicle and accordingly, he brought him up to Kaidala gate and went away. Thereafter, while coming back to the house, P.W.4 went near the brick factory and noticed blood stains, bangles, flowers and also beetle leaves bag and identified it as belonging to deceased Siddagangamma. However, P.W.2 Cheluvaiah, husband of the deceased has not mentioned about these things in the complaint.
It is also his contention that P.W.1 Manjunath has deposed that when he was going to Tiptur to go to Bangalore, 11 near Nagaraghatta gate deceased Siddagangamma met him and told that one of her relatives is in the hospital at Tiptur and asked him to drop her to Tiptur, by that time, accused Nos.1 and 2 told that they are going to Tiptur and that they will drop her. Accordingly, deceased went along with accused Nos.1 and 2. If this is true and the family members of the deceased came to know about these things during the night itself or in the early morning on the next day, the same could have been narrated in the complaint as well as in the inquest mahazar proceedings since as per the prosecution case the inquest mahazar has been conducted in between 2 and 4 p.m. on 1.9.2008 and by that time, even PW1 Manjunath had returned back from Bangalore to the said place. Hence, it is his submission that there is no acceptable and cogent material placed by the prosecution during the course of trial regarding the last seen theory.
Learned counsel further submitted that even regarding the seizure of M.Os 1 to 5 there is no satisfactory material placed by the prosecution through the mouth of prosecution witnesses. In this connection, he has drawn our attention to 12 the entire material in the paper book and submitted that even while lodging the complaint, it is mentioned that some unknown persons for some reasons have committed murder of deceased Siddagangamma. This itself shows that till the complaint was filed and till the inquest mahazar proceedings were conducted, they were not knowing who has committed the alleged act on deceased Siddagangamma.
Learned Counsel has submitted that these important material aspects were not properly appreciated by the learned Fast Track Judge and he has wrongly come to the conclusion that prosecution placed the material to prove its case beyond all reasonable doubt. He has submitted that the reasonings adopted by the learned Fast Track Judge are not in accordance with the materials placed on record and as such, the judgment and order of conviction passed is not sustainable in law. Accordingly, submitted to allow the appeal filed by the accused No.1 and to set aside the judgment and order of conviction and to acquit accused No.1 from all the charges.
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6. Learned Counsel appearing for accused No.2 in Crl.A.No.1399/2012 firstly adopted the arguments made by the learned Counsel on behalf of accused No.1 and in addition to that, submitted that there is no satisfactory and worth believable material placed by the prosecution regarding the last seen theory. Learned Counsel drew our attention to the post mortem report as well as to the oral evidence of P.W.13 Dr.Raghu T Gokhale and submitted that the injuries cannot be caused in the manner as projected by the prosecution. He mainly submitted that if it is the case of prosecution that deceased was tied with plastic wire and was dragged on the public road to a distance of 3 kms. then there ought to be severe injuries on the back of the deceased. In the post mortem report and in the doctor's evidence only partial injuries are mentioned and no injuries are found on the hind portion of the head. The nature of the injuries mentioned by the doctor shows that they might have been sustained by the deceased in an accident and not because of the act as alleged by the prosecution against accused Nos.1 and 2.
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Learned Counsel further submitted that as per the prosecution case there was telephone conversation between P.W.3 Pavithra, the daughter of the complainant and P.W.7 Shashidhar during the night about the deceased being in the company of accused Nos.1 and 2. However, no details are collected by the Investigating Officer during Investigation to show that really such phone calls were received by Pavithra during the night. He also submitted that though it is the opinion of the Doctor that death is due to manual strangulation and by smothering, no finger marks are found on the neck of the deceased. Even the Doctor has not specifically deposed about these things in his evidence nor he has mentioned in his post mortem report.
Even with regard to the extra judicial confession, learned Counsel submitted that the evidence of P.W.8 is not satisfactory. Out of the two accused persons, who made extra judicial confession and with what words is not specifically mentioned. Under such circumstances, it cannot be accepted that prosecution has placed cogent material so far as extra judicial confession is concerned.
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It is also his submission that the investigating officer has not obtained the signatures of accused Nos.1 and 2 on their voluntary statements, hence, the said voluntary statements cannot be relied upon by the Court. In view of these materials placed by the prosecution it cannot be said that the prosecution has proved its case beyond all reasonable doubt. Accordingly, submitted to allow the appeal and to set aside the judgment and order of the learned Fast Track Judge and to acquit accused No.2 from all the charges.
7. Per-contra, learned Addl. SPP submitted that looking oral evidence of P.W.1 Manjunath, P.W.2 Cheluvaiah, P.W.5 Ningappa, P.W.6 Varadaraju, so also, the oral evidence of P.W.4, the father-in-law of deceased Siddagangamma their evidence clearly establish the last seen theory of the prosecution. The evidence of P.W.1 and P.W.7 i.e., Manjunath and Shashidar clearly shows that accused Nos.1 and 2 were in the company of the deceased during that night since they told that even they are going towards Tiptur and they will drop her to the hospital at Tiptur and that Manjunath has 16 seen the deceased going along with accused Nos.1 and 2. He submitted that once the prosecution has established the fact of last seen theory, it is for the accused persons to explain as to what has happened to the deceased thereafter and in their defence they have not made it clear to the Court as to what has happened to deceased Siddagangamma thereafter.
Referring to the medical evidence and the opinion of the Doctor, the learned Addl. SPP submitted that the Doctor gave the opinion regarding the cause of death as by throttling and smothering. Hence, submitted that when the opinion of the Doctor regarding the cause of death clearly shows that it is homicidal death and the last seen theory of the prosecution is established to the satisfaction of the Court, the prosecution has proved its case beyond all reasonable doubt. He has submitted that the learned Fast Track Court Judge has rightly appreciated these materials and has rightly come to the conclusion in convicting both the accused persons for the charges leveled against them. No illegality has been committed nor there is any perverse or capricious view taken by the Court below. There are no grounds for this Court to 17 interfere into the judgment and order of the Court below and accordingly, submitted to dismiss both the appeals.
8. We have perused the grounds urged in both the appeals, judgment and order of conviction passed by the Court below, oral evidence of the prosecution witnesses P.Ws.1 to 19 and the documents Exs.P1 to P17, so also, the documents Exs.D1 and D2 marked on the side of the defence. We have also considered the oral submissions made by learned counsel on both sides at the bar.
9. To ascertain whether the prosecution was able to establish that the death of deceased was homicidal, firstly, we refer to the evidence of P.W.13 Dr.Raghu T Gokale and the contents of the Post Mortem report.
P.W.13, Dr.Raghu T Gokale has deposed in his evidence in the examination-in-chief that on 1.9.2008 at 4.00 p.m. on the basis of the requisition submitted by the Nonavinakere police on the same day between 4.15 p.m. and 6.15 p.m. he has conducted post mortem examination over the dead body 18 of one Siddagangamma. He has noticed 16 external injuries as mentioned at Sl.Nos.1 to 16 of his deposition and also internal injuries as per paragraph No.4 of his deposition. In paragraph No.9, he has mentioned that if mouth and nose of a person is closed forcibly and neck is pressed with hands, there is possibility of causing death of the person. Therefore, he has opined that death has been caused by somebody. He has also spoken that all the injuries he has noticed are ante mortem in nature. He has issued the post mortem report as per Ex.P7 and his signature is as per Ex.P7(a). He has admitted the suggestion as true that after causing death of a women by asphyxia and thereafter if she is dragged by tying her lower limbs to the distance of miles, there is possibility of sustaining the injuries as mentioned in his post mortem report. When it was suggested to this witness that when a person traveling in a tempo or in a luggage auto holding rope and if the vehicle moves in a zigzag manner and if that person suddenly falls down leaving the rope, there is possibility of sustaining injury Nos.8 to 16, for that the witness answered that in such a situation there is possibility of sustaining only 19 injury Nos.10 to 12. He denied the suggestion that in that process if the persons lips and nose comes in contact with the iron parts of the said vehicle there is possibility of sustaining injury Nos.5 and 6. He has admitted the suggestion as true that injury nos.5 to 7 as mentioned in Ex.P7 can be caused with the weapon having sharp edge. He has voluntarily deposed that such injuries can also be caused with the sharp nails. He has admitted that he has not mentioned about the directions of the injuries in the post mortem report. He has admitted that he has not mentioned in Ex.P7 as to in which object if pressed injury Nos.2 and 3 could be caused. He has admitted the suggestion as true that injury No.2 could be caused if a person traveling in the vehicle falls down and his right side jaw portion comes in contact with the stone or hard surface area. But he denied the suggestion that if a person falls down on the rightside and because of the speed he turns to the left side and comes in contact with the stone or any hard material, there is a possibility of sustaining injury No.3. He admitted as true that as he has mentioned in paragraph No.12, if a person slips from a tempo and falls down, injury 20 Nos.13 and 14 as mentioned in the post mortem report can be sustained. But he denied the suggestion that similarly if a person falls down on the area of about 15-20 mtrs having hard surface, injury Nos.8 and 9 can be sustained and has deposed that there may be normal abrasion injuries. He has also deposed that no bleeding injuries were noticed on the body of Siddagangamma. When he saw the dead body, saree, blouse, petty coat and black colour bra were on her body, but he has not mentioned about the same in his post mortem report. Those clothes were having the blood stains. He denied the suggestion that if a women wearing metal bangles falls down and if she was pressed with such material, injury Nos.15 and 16 mentioned in Ex.P7 could be caused. Even he has deposed that there is no possibility of sustaining abrasions, but some contusion injuries could be caused. He denied the suggestion that if the metal bangles were having sharp edge, even then, injury Nos.15 and 16 cannot be caused. He admitted that if mouth and nose of a person is forcibly closed, there may be possibility of contusion injuries. But in this case, he has not noticed such injuries on the 21 mouth and nose of Siddagangamma. Even he has not noticed the bleeding around the nose and mouth. He admitted the suggestion as true that when a person tries to hold the nose and mouth of a person forcibly and get relieved from the same there is possibility of struggling with the hands and nails. He has not ascertained the blood group of Siddagangamma. He cannot say the blood group of the stains found on the clothes of Siddagangamma. He further admitted the suggestion that if the neck of a person is pressed forcibly, the hayed bone and thyroid cartilage may break. He denied the suggestion that if a person falls from a moving vehicle on the hard surface, there is possibility of sustaining the injury near the neck. He admitted the suggestion that when the neck is pressed, there is possibility of eye balls coming out and also stretching of tongue from the mouth. But in this case, he has not seen the stretching of the tongue of Siddagangamma.
Looking to the evidence of PW-13, the Doctor in his evidence has deposed that injury Nos.5 to 7 could be caused with the weapon having sharp edges or might be because of sharp nails. He denied the suggestion about the possibility 22 of sustaining some of the injuries. But looking to the prosecution case, it is not their case that the accused have committed the murder of deceased-Siddagangamma with any deadly weapon. However, their case is that the accused have throttled the neck of the deceased and caused her death. As submitted by the learned counsel appearing for the accused herein, insofar as throttling is concerned, the Doctor has not mentioned any finger marks on the neck of the deceased.
10. Looking to the materials and also suggestion made by the learned counsel appearing for the accused, who is present before the trial Court, though the prosecution witness had committed the murder of the deceased-Siddagangamma, the accused persons have been falsely implicated. Though such suggestion is made by the defence, but the question is whether the prosecution has placed any satisfactory material that the appellant - accused herein have committed the murder of deceased-Siddagangamma or not.
11. Now coming to the merits of the cases are concerned, it is admitted that even according to the 23 prosecution, there are no direct witnesses and the prosecution case rests on the circumstantial evidence. So far as the circumstances are concerned, the last seen theory is relied upon by the prosecution. In this connection, we refer to the relevant portion of the evidence of prosecution witness in connection with the last seen theory.
12. PW-1 in the complaint made the mention that one - Ningappa, who was by the side of the road told to the father of the complainant that on 31.08.2008 at about 12.30 p.m. he heard the screaming noise of the wife of the complainant and also he has heard passing of the motor cycle and because of the fear, he did not come out of the house. In this connection, we have also perused the evidence of PW-5 - Ningappa, wherein he has stated in his examination-in-chief that about 2-3 years prior, at about 11.00 - 11.30 p.m., when he was sleeping in his house, he heard the loud shouting voice of female that "Nan Bidisappa Nan bidisappa Malleshappa nan bidisappa". He came out from his house and he was drowsy. He sat for a while on the Katte of his 24 house and still he was hearing the screaming noise. In the meanwhile, he heard the sound of a bike from his gate which went towards his village. By then, the screaming noise was also silenced, he went inside the house and slept. In the morning, when he woke up and went towards the gate to have coffee, he has seen blood stains on the road, people in the village were also seeing the same. As he was supposed to attend the work, took his Tractor and went. But, when he came back from work, he heard the news that daughter-in- law of Singraiah had been murdered. In the cross- examination, he deposed that the bike came from Kaidala Gate. When he gave the statement before the police, he has stated that when he heard the screaming noise, he was inside the house and he did not come out of his house. In paragraph No.5 of his deposition, he has deposed that he does not know whose screaming noise it was? Therefore, the evidence of PW-5 will not help the prosecution.
13. Apart from this, it is his evidence that he did not come out of the house because of the fear. Another person 25 i.e., Malleshappa, who was nearby the house of PW-5, has not been examined and he was not cited as the charge sheet witness by the prosecution. So far as the evidence of PW-1 is concerned, it is only the hearsay what has been heard by others about Siddagangamma.
14. PW-1- Manjunatha in the examination-in-chief has deposed that two years prior at about 11.30 p.m. with an intention to go to Bengaluru, he was going in his motor bike from Kaidala to Tiptur and near Nagarghatta Gate, Siddagangamma met him and told that her relatives were admitted to hospital and requested to take her to Tiptur, at that time, accused Nos.1 and 2 told that they are also going to Tiptur and they would leave her in Tiptur and thus, he alone proceeded on his motor bike. On the next day, at about 12.00 or 1.00 '0' clock, he came back from Bengaluru, people in his village were talking about the death of Siddagangamma and dead body was thrown in Nonavinakere. Then, he informed to the husband and children of Siddagangamma about what he has seen and heard on the previous night. He 26 went to see the dead body and the dead body was floating in Nonavinakere and it was nude, legs were inside the water, and rest of the body parts was on the bank portion in a sailing position. He further deposed that there is a phone in his house and also there is a phone facility in the house of Siddagangamma. He does not know the motor cycle number and it is his motor cycle. He is not having driving licence. Even, he does not know R.C. owner of the said motor cycle, but on the same day at about 5.45 p.m., he borrowed the motor bike from Venkatesh. When he was going to Nagaraghatta at about 11.30 p.m. he did not see anybody. Siddagangamma did not speak to him. He does not know that it was a Amavasya day. But he denied the suggestion that if there are no street lights, the faces of the people will not be visible. Witness voluntarily deposed that there was a light of his motor bike. At the place when he spoke with Siddagangamma and accused Nos.1 and 2 on the right side there was a water tank. He could not see the boundaries of the said place. He does not know which colour dress accused persons and Siddagangamma had worn. Siddagangamma 27 was not having anything with her. Siddagangamma told her brother's wife is admitted to the hospital for delivery and hence, she is going to the Hospital to see her and requested to take her on the motor bike, then he told her that he is going to Kodi Circle only and he is not going to drop her upto hospital and he will take her upto Kodi Circle. At that time, accused persons told that they will take her upto the said hospital. Upto Nagarghatta Gate, except accused and Siddagangamma, he has not seen anybody. But at Tiptur, the people were moving, he does not know who are those persons. He denied the suggestion that on 31.08.2008 at 11.30 p.m. near Nagarghatta Gate, he has seen the accused and Siddagangamma. Even, he deposed that he was moving on the motor cycle pertaining to one Venkatesh Murthy. Earlier to 31.8.2008, he has not seen either Siddagangamma or his family members moving on the bike.
15. PW-3 - Pavithra, who is the daughter of the complainant deposed in her examination-in-chief that on 31.8.2008, her mother took her grandmother to Melekoppala 28 and after leaving her she came back at 3.30 p.m. Her mother prepared the food, they all had the meals. At about 9 or 9.30 p.m., her mother told that she will go and call the coolie workers for planting the saplings in the field. All persons in the house had slept. At about 10.45 p.m., when she was studying in her house, she received telephone call from PW-7
- Shashidhara from Nagarghatta. Her mother spoke with her from said telephone of PW-7 stating that their relative Shobha was admitted to hospital at Tiptur for delivery and she is going to see her; PW-3 refused to send her, at that time, the phone became cut and her mother went out. She further deposed that after sometime again PW-7-Shashidhara called her and enquired with her about the health of her mother. She replied that her mother is doing fine. Shashidhara informed PW-3 that her mother had gone to Nagarghatta Gate. Thereafter, accused Nos.1 and 2 went behind her mother on the motor cycle. She informed about the said information to all the family members. She further deposed that on 31.8.2008 at about 11 or 11.30 p.m. when Manjunatha - PW-1 of her village was proceeding towards 29 Tiptur, at that time, her mother told that she will also come upto Tiptur and at that time, the accused persons told that they will take her upto Tiptur stating so, they made her mother to stay with them. During the same night, at about 11.55 p.m. Vardaraju when he was coming from Tiptur near Brick Factory, he saw one motor cycle and on the same day Ningappa - the neighbour of the said area heard screaming noise of her mother and from the Brick Factory upto Bochehalli gate there were blood stains on the road, and marks of dragging the body and thereafterwards, the body was in Nonavinakere Tank. In the cross examination she deposed that her mother was drinking alcohol. At 9.30 p.m., when she was going out of the house, she did not tell to whose house she is going and went out of the house. Herself and her father, grandfather and her brothers were in the house. They also slept and she alone was reading. She know to call the persons over the phone, receive the calls and also re-dialing the same. She does not know from which number Shashidhara had called her. She denied the suggestion that on 31.8.2008 at about 10.45 p.m. she had not given call or 30 talked to her mother over phone. She told about the information given by Shashidhara over phone during night itself to her grandfather and others. When she left the house at about 7.00 a.m. in the morning, her father and her brothers were in the house. In the morning at about 7.00 a.m. when she was going to the college, she had seen the blood stains on the road. But she thought, it may be of some goat or sheep. She did not know whose blood marks it was. She does not know the place exactly where her mother was murdered. She denied the suggestion that from the beginning herself, Manjunath, Ninganna, Vardaraj were not in talking terms with the accused persons. When she was going towards Kaidala Gate and after seeing the blood marks, she has not enquired with the neighbours about the same.
16. PW-4 - Singraiah, who is the father-in-law of the deceased - Siddagangamma deposed in his evidence that about 2 ½ years back his daughter-in-law who had been to her parental place came back on Sunday and she had prepared meals and supplied to everybody in the house and 31 she went out of the house at about 9.00 p.m. saying that she will go and inform the coolie workers for planting on the next day morning. They waited for sometime that Siddagangamma will come back, but thereafter they slept. He deposed what his grand daughter - Pavithra told him about the night and when he enquired with Shashidhara, he told that during the night deceased along with the accused came to his house and accused took her along with them. When he went towards Nagaraghatta Gate, accused came there and when he enquired with accused, he told that he has not seen his daughter-in-law. When he came back towards the village by walk near the Brick Factory, he saw bangles pieces, flowers, betel leaf, bag and also the blood stains on the said place. He took the betel leaf bag and went to the house. As the betel leaf bag belongs to his daughter-in-law, he took it to the house, then he told before the grand children about the betel leaf bag and he has also seen the blood at the said place. In the cross examination, he has deposed that if there is any special or important news, his son and grand children will inform him immediately without fail. He has also deposed 32 and admitted that because he was age old, it is not possible for him to walk and if he wanted to go somewhere, he will send his children. About the talks between himself and Shashidhara no other persons have seen. He asked Shashidhara where his daughter-in-law has gone or whether she had called him. He has not asked to Shashidhara about how his daughter-in-law went by walk or vehicle. He has not even not with Shashidhara when she had come to the house of Shashidhara at Nagaraghatta village. Except Shashidhara he has not enquired with anybody. He has not asked Shashidhara to show accused No.2.
17. PW-6 - Varadaraju deposed in his evidence that on 31.8.2008, himself and his wife went to see their relative who met with an accident and on the same night they returned through Ranichannamma rail. They left at 9.00 p.m. and came to Tiptur at 11.30 p.m. They had left the bike at Tiptur Railway Station and they went back to their house on the same motor bike. When they were proceeding nearby the Brick Factory, they have seen a bike which was stopped near 33 to the Brick Factory and it was a red Yamaha bike bearing registration No.KA-44-E-5746. He could identify the said bike, if shown to him and he identified as MO-6. The said bike which he had seen belongs to accused No.1. In the cross examination, he has deposed and denied the suggestion that from Tiptur while going to Kaidala, on the way, they might have seen number of vehicles. When he was taking out his bike at Tiptur Railway Station, he has seen many other bikes, but he has not seen the number of the said bike. While going to his house, Nagarghatta gate comes first. He admitted that from Nagarghatta gate, they can go to Nagarghatta and from there to Kaidala. He deposed that he has not observed the name plate and colour of the said bike. He has not observed whether the person who wrote the said name plate has signed it or not. But he volunteered that in one bike there was a milk can to the said vehicle and thus, he has not observed the name plate of back side of the bike. He does not know accused No.1 used the vehicle of his brother to send the load of tomato to Bangalore. He does not know that his brother delivered the said Tomato to other persons and in that 34 connection, there was a panchayath in their village. He admitted as suggested as to when he was working as an Electrical Contractor, one Hanumanaik who was working under him expired and to get the compensation to his wife and children, accused No.1 came to know and made galata. When it was suggested that he has given compensation to the wife and children of Hanumanaik, witness answered he has not given, but Government has given the said compensation. He has stated before the police in his statement about the said motor bike at Kaidala Gate, but he has not stated before the police on which side the bike was standing, as the police did not ask him. He denied the suggestion himself and his brother have created false witness in the case.
18. PW-7 - Shashidhara deposed in his evidence that on 31.8.2008 at about 9.30 p.m. when he had slept in his house after having the meals, at about 10.30 p.m., he heard the noise of somebody tapping the door. When he opened the door, Siddagangamma and accused who was present before the Court had come to meet him. Siddagangamma and 35 accused No.1 asked him to get the phone connection. Siddagangamma told that she is not feeling well, hence, she wanted to inform her daughter. Then, he asked the phone number to Siddagangamma, she told it as 313699, then he took the phone connection and Siddagangamma told her daughter that she is going to the hospital, then Siddagangamma went along with both the accused persons. In the cross examination, he deposed that except on 31st Siddagangamm has not at all gone to his house on any other day. Witness denied the suggestion that Siddagangamma used to visit his house in connection with the agriculture work. But the witness admitted that Siddagangamma knew the route to go to his house. He denied the suggestion that number of times he has spoken to Siddagangamma. In his presence, Siddagangamma has not at all told that somebody is admitted for delivery purpose and hence she is going to the hospital. He does not know how the accused and Siddagangamma went back. Police came to him and informed about the death of Siddagangamma, but the family members did not inform him.
36
19. Now looking to the evidence of these witnesses, the evidence of Pavithra - PW-3 goes to show about the telephonic conversation between herself and her mother. During night, her mother went along with the accused Nos.1 and 2 as she wanted to go to Tiptur hospital. She informed about this to all the family members during the night itself. When this is so, PW-2, the husband of the deceased - Siddagangamma supposed to have mentioned in his complaint as to what has happened and transpired between his wife and his daughter - Pavithra. If really Pavithra received the information from her mother and Shashidhara, that her mother is along with accused Nos.1 and 2 during the night, without fail PW-2- Cheluvaiah, the husband of Siddagangamma ought to have mentioned in his complaint. But complaint is silent about this aspect. Apart from this, in the complaint it is stated that some unknown persons for some reasons might have committed the murder of his wife. Hence, the culprits are to be traced.
20. PW-1- Manjunatha firstly had seen accused Nos.1 and 2 along with deceased - Siddagangamma near Brick 37 Factory and she requesting him to take her to the hospital at Tiptur and when he told her that he is not going to Tiptur, he is going upto Kodi circle only, at that time, accused Nos.1 and 2 told that they are going to Tiptur and took her along with them and accordingly, she proceeded along with accused Nos.1 and 2. His evidence also goes to show that on the next day, when he came back to the village from Bangalore, people in the village were talking about the death of Siddagangamma and dead body was thrown into the Nonavinakere Tank. If that is so, then in the inquest mahazar conducted in between 2.00 p.m. to 4.00 p.m. in the column about last seen of the deceased necessarily, the name of PW-1 -Manjunatha ought to have mentioned along with accused Nos.1 and 2. But after perusing the contents of inquest mahazar, it is mentioned that lastly it is the family members who have seen the deceased when she left during the night at about 9.00 or 9.30 p.m. Sofar as the death is concerned, it is again mentioned in the inquest mahazar proceedings that some unknown persons for some reasons might have committed her murder. If these aspects are taken into consideration, it goes to show 38 that till inquest mahazar proceedings were conducted, these incidents which is said to have happened during the night hours is within the knowledge of family members of the deceased including PW-1. They were not at all mentioned either in the complaint or in the inquest mahazar proceedings. Therefore, looking to these materials produced by the prosecution regarding last seen theory, we are of the opinion that it is not worth believable and not consistent.
21. Regarding the extra judicial confession said to have been given by accused Nos.1 and 2 in the presence of PW-8 - Seetharam. Firstly, it is the evidence of Seetharam that during the night on 31.8.2008, both of them have come and met with him and they went back. On the next day morning on 01.09.2008 again they came to meet him. At that time, they told him and made the extra judicial confession that they have committed the murder of deceased - Siddagangamma. If that is so, the natural conduct of the accused Nos.1 and 2 that they could have made the same on 31.08.2008 when they met with PW-8 - Seetharam. Apart from that, even if for 39 the sake of appreciation, it is assumed that at last on 01.09.2008, accused Nos.1 and 2 went to PW-8 and made the extra judicial confession, the normal conduct of PW-8 that immediately he should bring to the notice of the police or any of the family members of PW-2 - Cheluvaiah. But he has not done so, he kept mum till 9.9.2008 and only on 9.9.2008 one statement came to be recorded by the police for the first time that is after lapse of 9 days. He could make the statement before the police about the extra judicial confession made by accused Nos.1 and 2. Therefore, the evidence of PW-8 - Seetharam, will not inspire confidence of this Court to accept his evidence that there was such an extra judicial confession said to have been given by accused Nos.1 and 2 in the presence of PW-8.
22. Now coming to the recoveries made during the investigation and as deposed by the witnesses, it is the prosecution case that accused Nos.1 and 2 made the voluntary statement before the Investigating Officer as per Exs.P14 and 15. No doubt true the Investigating Officer - 40 PW-19 deposed in the examination-in-chief in detail about the investigation that he has conducted in the case even about the accused Nos.1 and 2 giving the voluntary statement as per Exs-P14 and 15 and he relied the same. It is the contention of the learned counsel appearing for the appellant herein that accused have not given such voluntary statement. They are created by the police in collusion with PW-1 only to suit their case. We have perused the documents Exs.P14 and P15. As submitted by learned counsel for the appellant there is no signature of accused Nos.1 and 2 respectively, on Exs.P14 and P15. Therefore, when there is no signature of the accused, only on the basis of the evidence of the Investigating Officer that they made such voluntary statement, it is difficult for the Court to accept the said contention. The alleged voluntary statement of accused No.1 under Ex.P14 is marked during the course of the trial. He has stated in the statement that if he is taken to the place of the incident, he will point out the place where they had committed the murder of Siddagangamma along with accused No.2 on 31.8.2008 at 12.30 p.m. and thereafterwards they 41 had thrown the dead body into the water tank, so also producing the motor cycle and wire. In the voluntary statement, accused No.2 under Ex.P15 had stated to the effect that if he is taken, he will show the place where they have committed the murder of Siddagangamma by himself and accused No.1 and he will also show the place at which they had thrown the condoms.
23. It is the prosecution case that accused Nos.1 and 2, police and panch witnesses went to the said place and accused have pointed out the place where the murder of Siddagangamma was committed, produced the motor bike and also the condoms.
24. Now referring to the panchnama under Ex.P4 regarding the place of offence alleged to have been pointed out by accused No.1 and Ex.P5-the condoms and place of incident by accused No.2 and another panchnama under Ex.P6-wire is concerned, we have perused the said panchnamas, so also evidence of these witnesses. Firstly, as we have also observed the voluntary statement does not bear 42 the signature of accused persons and during the course of cross-examination in paragraph No.68 of the deposition of the Investigating Officer, it is suggested to the said witnesses that accused Nos.1 and 2 have not at all given voluntary statement before him and they have created for the purpose of this case. No doubt, the witness denied the said suggestion, but when it was by the defence specifically to the Investigating Officer that no such voluntary statement was given to him, it is for the prosecution to place the acceptable and cogent material to prove the same. But perusing the documents Exs.P14 and P15, there are no signatures of the accused persons. In this connection, learned Additional SPP relied upon the decision of this Court reported in 2000 Crl.L.J. 197 in the case of K.M.IBRAHIM Alias BAVA AND OTHERS v. STATE OF KARNATAKA. We have perused the said decision and principle enunciated in the said decision. But learned counsel appearing for accused No.2 also referred to the decision of the Division Bench of this Court rendered in Crl.Apl.No.238/1995 decided on 18.2.1998 - FELIX- 43 JOANNAS v. STATE OF KARNATAKA. Paragraph No.10 of the said decision reads as under:-
"10. In that view of the matter, we perused the voluntary statement of the accused. We found to our utter shock that the confession of the accused was not signed by the accused. We asked ourselves the question what reliance can be placed on the confession of the accused which is not signed by the accused. In this regard, the Supreme Court has pronounced that a confession which is not signed by the accused or which does not bear the thumb impression of the accused on that statement renders such statement unreliable. The Supreme Court in 1995 AIR (SCW 3485) : 1995 Cri.LJ 3992) (Jackaram Singh v. State of Punjab) at para 8 has held that the absence of the signature or thumb impression of the accused on the disclosure statement recorded under Section 27 of the Evidence Act detracts materially from the authenticity and the reliability of the disclosure statement."
25. Therefore, looking to this decision, the Division Bench of this Court has referred to the decision of the Hon'ble Supreme Court and as ruled by the Hon'ble Supreme Court 44 that a confession which is not signed by the accused or which does not bear the thumb impression of the accused on that statement renders such statement unreliable. Therefore, looking to the decision of the Hon'ble Supreme Court which is referred in the Divison Bench decision of this Court and as we have observed above that it is specifically suggested to the Investigating Officer that the accused persons have not given such voluntary statement. The prosecution has to place the acceptable and worth believable evidence before the Court to rely upon the said statement. No such material has been placed by the prosecution. Apart from that the said statement said to have been given on 3.9.2008, but before that it was already noticed by the Investigating Officer and all other family members about the said place. Therefore, in view of these materials and as the voluntary statement at Exs.P14 and P15 are not reliable, hence, we are of the opinion that this aspect has not been properly considered and appreciated by the learned Fast Track Court at Tiptur, apart from that, the case of the prosecution is that, after committing the murder of deceased - Siddagangamma, her 45 lower limbs were tied by the wire and dead body was dragged to a distance at about 3 kilometers on the public road upto Nonavinakere Tank, is totally unreliable and unnatural and even this contention of the prosecution is also not supported by the medical evidence given by Doctor - PW.13. PW-13 admitted in his evidence that, if there is any such dragging, then there will be abrasion injuries on the back portion of the deceased. Apart from that, another important aspect is that, if the wire is tied to the lower limbs and the dead body is dragged to about 3 kilometers, then there will be some injuries on the lower limbs like ligature marks, but no such injuries have been found by the Doctor who conducted the post mortem examination over the dead body and we have also observed that there are some of the injuries, but as per the opinion of the Doctor, the said injuries could have been caused by sharp edges. Considering all these aspect of the matter, materials raised reasonable doubt to the alleged incident said to have taken place in the manner as projected by the prosecution. These aspects were not appreciated and considered properly by the learned Fast Track Judge. The 46 learned Judge wrongly read the evidence and wrongly has come to a conclusion that prosecution proved its case beyond all reasonable doubts. The judgment and order of conviction passed by the Court is not in accordance with the materials placed on record. Hence, the appellant - accused has made out a case to interfere with the judgment and order of conviction. Accordingly, we allow both the appeals, set aside the judgment and order of conviction passed by the learned Fast Track Judge.
We hereby acquit accused Nos.1 and 2 from all the charges. Accused Nos.1 and 2 have to be released forthwith, if they are not required in any other case.
Registry to intimate the prison authorities immediately.
Sd/-
JUDGE Sd/-
JUDGE Bkp - Para Nos.1-9 VMB - Para Nos.10-25