Karnataka High Court
Vandleppa S/O Hanumanthappa vs The State Of Karnataka on 29 July, 2015
Author: K.N.Phaneendra
Bench: K.N.Phaneendra
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IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
ON THE 29TH DAY OF JULY, 2015
PRESENT
THE HON'BLE MR. JUSTICE H.BILLAPPA
AND
THE HON'BLE MR. JUSTICE K.N.PHANEENDRA
CRIMINAL APPEAL No.3743/2010
BETWEEN:
VANDLEPPA
S/O HANUMANTHA
AGE : 40 YEARS,
OCCU : AGRICULTURIST
R/O VANDALLI,
TQ.DEODURG,
DIST.RAICHUR.
... APPELLANT
(BY SRI JAMBAYYA SWAMY HIREMATH, ADVOCATE)
AND:
THE STATE OF KARNATAKA,
REPRESENTED BY THE PUBLIC PROSECUTOR
HIGH COURT OF KARNATAKA
BENCH AT GULBARGA.
...RESPONDENT
(BY SRI P.S. PATIL, HCGP)
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THIS CRIMINAL APPEAL IS FILED U/S. 374 (2) OF
CR.P.C., PRAYING TO SET ASIDE THE ORDER OF
CONVICTION AND SENTENCE DATED 05.04.2008 PASSED
IN S.C.NO.121/2007 ON THE FILE OF THE FAST TRACK
COURT-IV AT RAICHUR, CONVICTING THE
APPELLANT/ACCUSED FOR THE OFFENCE P/U/S.302 OF
IPC AND THE APPELLANT/ACCUSED IS SENTENCED TO
UNDERGO IMPRISONMENT FOR LIFE AND TO PAY A FINE
OF RS.5,000/- IN DEFAULT, FOR SIX MONTHS FOR THE
OFFENCE P/U/S.302 OF IPC.
THIS APPEAL HAVING BEEN HEARD AND RESERVED
FOR JUDGMENT ON 17-07-2015, COMING ON FOR
PRONOUNCEMENT OF JUDGEMENT THIS DAY,
K.N.PHANEENDRA J., DELIVERED THE FOLLOWING:
JUDGMENT
The appeal is preferred against the judgment of conviction and sentence passed by the Fast Track Court-IV, Raichur, in S.C.No.121/2007 dated :
5-4-2008 for the offence punishable U/Sec.302 IPC and sentenced him to undergo imprisonment for life and to pay a fine of Rs.5,000/- and in default to undergo simple imprisonment for six months. 3
2. The brief factual matrix that emanate from the records are that :-
A person by name Siddappa s/o Chandappa Chinchirker of Vandalli village, Tq.Deodurg in Raichur District, lodged a complaint as per Ex.P-1 stating that he is the resident of Vandalli village along with his family members. His brother Dodda Shivappa is also residing in the same village separately. On 6-7-2007 in the morning at about 10-00 a.m., PW-2 Chandrama s/o Shivappa ( deceased ), came to the complainant and told that some person was murdered near five pool well near their village. Immediately, PW-2 had been to that place and found that the dead body was that of his brother Shivappa. After receiving some information, the complainant PW-1 along with PW-2 Chandrama and one Shivkantamma had been to the said five pool well and saw dead body of deceased Shivappa who sustained severe injuries on his head, right elbow and other parts of the body, narrating that the deceased has left the 4 house on the previous evening at 5-00 p.m., he did not come back. Therefore, he lodged a complaint as per Ex.P-1 which was registered by the PSI Hatti Police in Crime No.126/2007 for the offence punishable U/Sec.302 IPC. The police during the course of investigation, conducted the inquest proceedings and recorded the statements of the witnesses. The police came to know that the accused is the person who took the deceased on the previous day between 5-00 p.m to 7-00 p.m., and killed him near five pool well in Vandali village, by assaulting the deceased with a knife and strangulating his neck with a rope. The police after completion of the investigation were of the opinion that the circumstance of the case clearly indicates the commission of the offence by the accused. Therefore, they laid the charge sheet against the accused for the above said offence.
3. The accused was arrested and he has been in judicial custody since the date of his arrest i.e. from 5 13-7-2007. After committal proceedings, the Sessions Judge has secured the presence of the accused and framed the charges against the accused for the offence U/Sec.302 IPC. The accused has pleaded not guilty and claimed to be tried.
4. The prosecution in order to prove the guilt of the accused, examined 16-witnesses as PWs-1 to 16 and got marked Exs.P-1 to 25 and material objects MOs-1 to 19. The accused was also examined by the trial Court U/Sec.313 Cr.P.C., He denied the incriminating materials found in the prosecution evidence. However, he did not choose to lead any defence evidence on his side.
5. The trial Court after hearing the arguments on both sides, after evaluating the oral and documentary evidence and also considering the material objects found the accused guilty of the offences, as such convicted and sentenced him accordingly. 6
6. The entire case of the prosecution revolves around the circumstantial evidence. In the circumstantial evidence cases, the prosecution has to prove the circumstances relied upon by it beyond all reasonable doubt and also the proved circumstances should be sufficient to complete the chain and that chain should unerringly indicate and point out towards the guilt of the accused. Dr.Jambayya Swamy Hiremath, learned counsel for the appellant in this regard drawn our attention to the decision of the Hon'ble Apex Court, which is reported in AIR 1984 SC 1622 in the case of Sharad Birdhichand Sarda .Vs. State of Maharashtra, wherein the Hon'ble Apex Court has laid down certain guidelines as to how the circumstantial evidence has to be considered and it laid down five important golden principles which constitute panchsheel of proof of the case based on circumstantial evidence, which are enumerated below :-
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(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established. It may be noted here that this Court indicated that the circumstances concerned 'must or should' and not 'may be' established. There is not only a grammatical but a legal distinction between 'may be proved' and 'must be or should be proved as was held by this Court in Shivaji Sahebrao Bobade v. State of Maharashtra where the following certainly, it is a primary principles that the accused must be and not merely may be guilty before a Court can convict, and the mental distance between 'may be' and 'must be' is long and divides vague conjectures from sure conclusions.
(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.
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(4) they should exclude every possible hypothesis except the one to be proved, and (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.
7. We are conscious of the above said principles laid down by the Hon'ble Apex Court. In the background of the above said decision, the Court has to consider what are the circumstances which are proposed to be proved before the Court by the prosecution and whether such circumstance have been to the full satisfaction of the Court established beyond reasonable doubt in order to bring home the guilt of the accused. It is also to be noted that all circumstances which are projected by the prosecution need not be established but what the Court has to see is that, the circumstances which are proved to the satisfaction of the Court and proved beyond reasonable doubt whether 9 those proved circumstance are sufficient to complete the chain in order to unerringly point towards the guilt of the accused. In this background, first we have to go through briefly the evidence of the prosecution witnesses examined before the Court and then take up each and every circumstance projected by the prosecution to ascertain whether those circumstances are proved and that whether those proved circumstances are sufficient to complete the chain to hold that the accused is guilty or not.
8. (a) PW-1 Siddappa brother, PW-2 son of the deceased, speak about the previous history, motive, relationship between the accused and the deceased and last seen accused with the deceased. PW-3 Basamma is the witness for motive. She speak about the previous conduct of the accused. However, this witness turned hostile to the prosecution and in cross examination by the prosecution, Ex.P-2 is the portion of her statement marked.
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(b) PW-4 Basha sab is the panch witness to Ex.P-3 inquest panchanama and Ex.P-4 spot mazhar and Ex.P-5 which is the seizure panchanama of the clothes of the deceased which are marked as Mos-8 and 9 at the spot. The police have also seized Mos-1 to 7 under Ex.P-4.
(c) PW-5 Chandappa is the father of the deceased. He also speak to the factum of previous conduct of the accused and the motive.
(d) PW-6 Hanumantha, cousin brother of the accused, PW-7 Mallamma wife of PW-6 examined to prove the extra judicial confession by the accused and also change of the clothes of the accused after the incident. PWs-6 and 7 turned hostile and portion of their statements are marked at Ex.P-6 and Ex.P-7.
(e) PW-8 Narasappa who is the panch witness to Ex.P-12, under which the police, at the instance of the 11 accused have seized MO-11 rope, MO-12 knife and also got marked Exs.P-8 to 11 which are the photographs taken at the time of drawing of Ex.P-12 Mahazar. He is also a witness for recovery of shirts and dhotis at the instance of the accused marked at MOs-13 to 16 and also Ex.P-13 and Ex.P-14 the photographs under mahazar Ex.P-15.
(f) PW-9 Syed Mehaboob Hussain, Village Accountant, who has furnished Ex.P-16 the ROR copy of Sy.No.741 of Village Anvari stood in the name of Basappa s/o Hanamappa.
(g) PW-10 Jaya Gopal, PC, who speak about taking of the dead body to post mortem examination and produced the clothes of the deceased before the Investigating Officer after the post mortem examination. PW-11 Krishnarao, HC, who carried the articles to FSL on 23-7-2007. His report is marked at Ex.P-17. PW-12 Narasingappa, PSI who partly investigated the case speak about the registration of the complaint as per 12 Ex.P-1 and dispatching of the FIR to the jurisdictional Magistrate as per Ex.P-18 and also apprehended the accused on 13-7-2007.
(h) PW-13 Dr. Md. Shakeer Moinuddin, who conducted the post mortem examination on the dead body of the deceased on 6-7-2007 and he has given the opinion that the deceased died a homicidal death due to neurogenic shock as a result of injuries to vital organ, as per Ex.P-19 post mortem report and he also speak about the opinion given by him with regard to the weapons as per Ex.P-20.
(i) PW-14 Yalaguresh is the Jr. Engineer, who at the request of the Investigating Officer visited the spot and drawn the spot sketch as per Ex.P-21.
(j) PW-15 Sanganna is the Circle Inspector of Police and the Investigating Officer, who recorded the voluntary statement of the accused as per Ex.P-22 and 13 speak about the recovery of the incriminating articles at the instance of the accused.
(k) PW-16 Mahesh is the CPI, who after completion of the investigation submitted the charge sheet.
9. There is no dispute with regard to the homicidal death of the deceased. On the basis of the materials placed before the Court also it is established that the deceased died a homicidal death. The evidence of PW-4 Basha Sab who has categorically stated in his evidence that on 6-7-2007 in the after noon at about 2-00 p.m., this witness had been to the scene of offence. The Circle Inspector of Police ( Investigatng Officer ) was also there and this witness has identified the dead body of the deceased as Vandalli Shivappa and police have conducted the inquest proceedings on the dead body of the deceased. He has categorically stated that the dead body was in the pool of blood and even on the face of 14 the deceased there was blood. The police have conducted the inquest panchanama as per Ex.P-3 and he has put his signature as per Ex.P-3(a). The Investigating Officer has also categorically stated about the conducting of inquest and the inquest report also shows the dead body had the injuries on the right forehead, temporal region of the head, near right eye, i.e. all those injuries are stab injuries. The Doctor PW- 13 Md. Shakeer Moinuddin has described the injuries sustained by the deceased and also the conducting of the post mortem examination and he has given the opinion that the death of the deceased was due to Neurogenic shock as a result of injuries to vital organ. He has given his opinion as per Ex.P-19. He has also stated that those injuries could be caused by sharp edged weapons. Therefore, looking to the above said circumstances and the evidence of the Doctor and the inquest report, it is crystal clear that the deceased died a homicidal death. The question remains for consideration of this Court is - "Who is the cause for the 15 homicidal death of the deceased". To find out the same, this Court to go through the other circumstances projected by the prosecution.
10. The prosecution has mainly relied upon the following circumstances :-
i) The accused last seen with the deceased;
ii) Motive;
iii) Extra Judicial Confession of the accused;
iv) Recovery of incriminating articles at the instance of the accused;
11. Now this Court has to deal with each and every circumstance to ascertain as to whether those circumstances have been established beyond reasonable doubt or if any of the above said circumstance proved the guilt are sufficient to complete the chain in order to hold the accused guilty.
16THE ACCUSED LAST SEEN WITH THE DECEASED :-
12. So far as this aspect is concerned, the prosecution has relied upon the evidence of PWs-1 and
2. The learned counsel for the accused Dr.Jambayya Swamy Hiremath, has seriously contended that these two witnesses are interested witnesses because they are none other than the brother and son of the deceased. Therefore, their evidence has to be carefully scrutinized. There is no argument addressed before us that, any other witness who have last seen the accused with the deceased and the prosecution has not produced the evidence of such witness. In the absence of such things, the Court has to evaluate the evidence of these two witnesses very carefully.
13. PW-1 has stated in his evidence that on the previous day of the incident, he does not exactly say the date but in the evening at about 5-00 p.m., his brother deceased Shivappa had came to his land at that time accused also came and took the deceased along with 17 him to go to Hatti village. He saw both of them going in a bus. The Court has put a question, in which bus, they went, but the witness said that they went to Sirvar Bus. During the course of cross examination of this witness, except putting a suggestion that he has given false evidence before the Court, nothing has been elicited as to why this witness has to be dis-believed. The relevant portion in the cross examination is that, it is suggested that since 5-6 years, the deceased was consuming alcohol. He has given answer in the Affirmative, but he volunteers that both the accused and the deceased together consuming alcohol. Of course, this witness has not stated that he saw the accused and the deceased together went on that particular day in the FIR at Ex.P-1. But, during recording his statement before the police and before the Court he has substantiated the same. In the course of cross examination, it is suggested without any basis that he is giving false evidence before the Court. He never stated that he is the eye witness to the incident. He is only a witness to the 18 circumstance. Apart from this, it is also suggested with regard to the conduct of the deceased that he was behaving like rowdy element and he has got lot of cases against him etc., but all those suggestions have been denied by the witness.
14. PW-2 Chandrama, has stated in his evidence that on the previous day of the incident, he had been to his land and came back from the land at about 6 to 7 p.m., at that time, his father and accused were there in the house. His father deceased Shivappa told him to feed the cows in the house. Thereafter, the accused and the deceased went together stating that they would like to go to the lands and thereafter his father did not return to the house. In the course of cross examination by the defence counsel, it is elicited on the next day in the morning this witness had been to the main entrance of the said village and found the accused and he asked about his father but the accused went without saying anything and in fact he saw the dead body of his father 19 on that particular day. It is also suggested that the deceased was growing Ganja crop in his land but he has stated that both the accused and the deceased jointly used to consume Ganja and they were also jointly used to go to Hatti village for the purpose of consuming alcohol. It is suggested that the deceased always used to go to Hatti to consume Alcohol. But, this witness has stated that as and when accused called his father, then only his father went along with the accused to consume alcohol. It is suggested that he is deposing falsehood before the Court that he saw the accused and the deceased going together on that particular day.
15. On over all reading of the evidence of these two witnesses, there is nothing to dis-believe the evidence of these witnesses. On the other hand, the cross examination portion fortified that the accused and the deceased always used to go together and they consume alcohol and consume Ganja and also grow Ganja crop in their lands. All these facts elicited in the 20 course of cross examination support the prosecution story. Of course, there is some discrepancy in stating the timings as pointed out by the learned counsel that PW-1 has stated that he saw the deceased and the accused on the previous day at about 5-00 p.m., and this witness PW-2 said that he saw the accused and the deceased at about 6 to 7 p.m., This discrepancy in mentioning the time, though it is elicited in the examination in chief itself but the substantive evidence of the witness seeing the accused and the deceased on that particular day is not disturbed in the course of cross examination. It cannot be expected from the witness particularly when the witnesses are rustic villagers, coming from rural background that they have to be meticulous about the timings. Therefore, though there is some discrepancy in the timings, the evidence of these two witnesses are not demolished in the course of cross examination so far as this last seen circumstance is concerned. Of course, the FIR does not specifically show that the accused and the deceased 21 went together on the previous day. But, the FIR cannot be an encyclopedia that it should contain each and every minute particulars. As we have already noted, the witnesses are from the rural background. Therefore, over all evidence of the prosecution has to be looked into whether these witnesses are believable or not. So far as this circumstance is concerned, in our opinion, there is no worth evidence in the course of cross examination to dis-believe the witnesses. On the other hand, if the cross-examination and the examination in chief read are together, it shows that the accused and the deceased always used to go together and on that day also they must have gone together between 5 to 7 p.m., The evidence of the doctor PW-13 coupled with the PME report goes to show that the death of the deceased occurred between 12 to 18 hours prior to post mortem examination that means to say death must have occurred between 9 to 10 p.m., because the post mortem examination was conducted on the next day, i.e. on 6-7-2007 between 2-00 p.m., to 4-30 p.m., 22 Therefore, soon after the deceased and the accused last seen together, within a span of 2-3 hours, the death of the deceased has occurred. The accused has not shown to the Court as to when he parted with the company of the deceased. Even in the course of recording statement of the accused U/Sec.313 of Cr.P.C., the accused has not at all explained this particular strong circumstance against him. When it is proved to the satisfaction of the Court that the accused and the deceased went together on the previous day of the incident about 3 to 4 hours prior to the death of the deceased, it must be presumed that what happened between 5-00 p.m., to 10-00 p.m., is exclusively within the knowledge of the deceased and the accused. The accused is the proper person to explain as to what happened in between 5-00 p.m., to 10-00 p.m., on that particular day and when he parted with the accused. Otherwise, the silence of the accused also is an added circumstance to the last seen circumstance proved by the prosecution. Therefore, we are of the opinion that the prosecution has proved 23 beyond reasonable doubt this particular circumstance, that the accused and the deceased last seen together just prior to the incident.
EXTRA JUDICIAL CONFESSION :-
16. It is the case of the prosecution that after the incident, the accused had been to the house of PWs-6 and 7 Hanumantha & Mallamma and changed his clothes, kept his blood stained clothes in their house and after wearing the dress of PW-6 telling that he has committed the murder of the deceased and went away from their house. This particular circumstance is not proved to the satisfaction of the Court because of the relationship between PWs-6 and 7 with that of the accused. These two witnesses have turned totally hostile to the prosecution.
17. PW-6 Hanumantha though has stated that after the incident accused had come to his house and he received such information from Mallamma PW-7 but 24 he did not say anything more than that. In the course of cross examination, it is suggested by the prosecution that on that day, i.e. on 6-7-2007 the accused had visited the house and this witness was very much present and this witness inquired the accused as to how he was wearing blood stained clothes, then he disclosed that he had developed some intimacy with the wife of the deceased Shivappa and that incident has led to the quarrel between himself and the deceased Shivappa and thereafter on 5-7-2007 he has committed the murder of deceased Shivappa and he requested PWs-6 and 7 not to disclose the same to anybody. Therefore, this extra judicial confession circumstance is not supported by any other source of evidence and these two witnesses have turned hostile and their statements before the police were marked as per Ex.P-6 and 7. Therefore, it cannot be said that the prosecution has proved the extra judicial confession circumstance against the accused.
25RECOVERY AND ITS CONSEQUENCE :-
18. The prosecution strongly relied upon this particular circumstance. It is the case of the prosecution that, after arrest of the accused on 13-7-2007, the investigating officer PW-15 Sanganna recorded the voluntary statement of the accused as per Ex.P-22 and the accused has led the investigating officer and the panch witnesses to a place where knife and rope were hidden and the blood stained clothes of the accused were kept in the house of PWs-6 and 7 and in the presence of panch witnesses, those articles were recovered at the instance of the accused and subsequently they were sent to FSL along with the blood stained clothes of the deceased and it is the case of the prosecution that all those incriminating articles contain the blood group of the deceased i.e., "O" group. Therefore, the prosecution projected this circumstance to prove the connection between the death of the deceased and the accused.
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19. In order to prove this particular circumstance, the prosecution has relied upon the evidence of PW-4 Basha Sab and also PW-8 Narasappa and the evidence of the investigating officer and also to some extent the evidence of PW-6 Hanumantha. PW-4 Basha Sab is the panch witness to Ex.P-3 to Ex.P-5. Ex.P-3 is of no significance because Ex.P-3 is the inquest mazhar drawn in the presence of panch witnesses to show the death of the deceased, a homicidal one. As we have already discussed, there is absolutely no dispute with regard to the homicidal death of deceased Shivappa. Ex.P-4 is the spot panchanama under which MO-1 a Quarter bottle, MO-2 Madhu Tambaku Packet, MO-3 Moosi a wooden pipe, MO-4 Ganja powder, MO-5 sample mud, MO-6 blood stained mud and MO-7 one stone were seized at the spot. Ex.P-5 is the seizure of the clothes of the deceased as per Mos-8, 9, and 10, which are blood stained shirt, banian and dhotara of the deceased. Infact, PW-4 has 27 fully supported the case of the prosecution. He has categorically stated that on that particular day the police have secured the presence of those witnesses at about 2-00 p.m., and went to the spot, Circle Inspector of Police was present and in their presence, the CPI has recorded the inquest panchanama as per Ex.P-3. He identified his signature as Ex.P-3(a). He also categorically stated that the police have seized Mos-1 to 7 at the spot and he identified the said items before the Court and also he supported the spot mazhar Ex.P-4 by identifying his signature as per Ex.P-4(a). The witness further support the case of the prosecution that the police have also seized in his presence the clothes of the deceased which were stained with blood sent by the Doctor who has taken out the said clothes at the time of post mortem examination. He identified those clothes as Mos-8 to 10 and he also fortified the mazhar by accepting his signature as per Ex.P-5(a). In the course of cross examination, nothing worth has been elicited to dis-card the evidence of this witness though the learned 28 counsel for the appellant has contended that this witness has stated that the police have taken certain signatures of him but he denied the suggestion that he has put his signatures to the blank papers and police thereafter have filled up those blank papers. He also stated in the course of cross examination that the police had sent a jeep to him to go to the spot. This fact found fault by the learned counsel for the appellant because the other witness PW-8 has not stated so. But, such contradiction, in my opinion would not go to the root of the case of the prosecution because the other factual aspects with regard to the seizure of the above articles are not disturbed during the course of cross examination. Therefore, looking to the evidence of PW-4, the prosecution successfully established before the Court that the police have seized Mos-1 to 7 under Ex.P-4 Mahazar and Mos-8 to 10 under Ex.P-5 Mahazar.
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20. It is the case of the prosecution that the accused led the police to the place where he has concealed a rope and knife and they recovered the same under Ex.P-12 Mahazar and photographs have also been taken at the spot as per Ex.P-8 to Ex.P-11. The accused also led the police and the panch witness to the house of PWs-6 and 7 and there, they produced the incriminating articles such as Mos-15 and 16 which are the blood stained clothes of the accused and mahazar was also drawn as per Ex.P-15 and photographs have been taken at that time are marked as Exs.P-13 and 14. PWs-6 and 7 have turned hostile so far as this circumstance is concerned. However, PW-8 Narasappa has fully supported the case of the prosecution. He has stated before the Court that on that particular day, a person was in the custody of the police, this witness and another witness by name Ayyappa were secured by the police. The said person who was in the custody of the police took all of them to a place called Mullali road and at a distance of about 5-feet the accused took out 30 one knife and a rope from a country bush in their presence and the police have seized and sealed them. He identified those articles Mos-11 and 12 (knife and rope ). He also stated that the said person who was in the custody of the police was the accused Vandleppa, though the accused was absent on the date of examination of this witness, but the learned counsel for the accused did not dispute the identity of the accused, therefore, evidence was recorded by the Court. The witness has also identified the accused and the witnesses and the police in the photograph which are marked at Ex.P-8 to Ex.P-11. He also fortified his evidence by means of identifying his signature on the mazhar Ex.P-12 as EX.P-12(a). He further deposed that on the same day the accused also took them to Rodalbanda village to his relative house ( house of PW-6 ) and the accused took out some clothes from a box which were stained with blood i.e. a shirt and a dhotra. The police have also seized the said articles and sealed them in their presence and he identified them as 31 MOs.13 and 14. He also identified the photographs taken out on that particular time marked at Ex.P-13 and 14. Ex.P-13 and Ex.P-14 contain the photographs of the accused, witnesses and the police. He also identified his signature to the mahazar at Ex.P-15(a). In the course of cross examination, he further confirmed the incident of recovery by stating that the said land from where the knife and the rope were recovered at the instance of the accused was nearby a land in which Brinjal and Onion were grown but he cannot say the name of owners of the said land. But, he says that nobody was present in those lands and he also specifically stated that the articles which were shown by the accused were not visible to anybody because the said articles were inside a thorn bush. He also stated that police have taken about 15-signatures of him, but he denied that the police have taken his signature in the police station and he did not go to any spot to sign the mahazars. It is elicited in the course of cross examination about the presence of the photographer at 32 the time of the above said mahazar and taking of the photographs. Therefore, in the course of cross examination, the evidence of this witness has strengthened, instead of discarding it. There was some discrepancies in explaining and identifying the blood stained clothes produced by the accused as stated by this witness in the examination in chief. Fortunately to the prosecution, that has been got explained during the course of cross examination. Actually, this witness has identified MOs.13 and 14 which were actually not stained with blood because of the reason that the police have not only seized the clothes of the accused worn by him at the time of the incident but also the clothes which were worn by the accused when he was arrested, which were said to be the clothes of PW-6 worn by the accused. It is elicited/clarified in the course of cross examination that instead of showing the blood stained clothes of the accused, the clothes which were worn by him after the incident were shown to him by confusion. Subsequently, in the course of cross examination, the 33 said blood stained clothes of the accused were shown to the witness, identified and they were marked as MOs.15 and 16 and he further clarified that MOs.15 and 16 are the clothes of the accused which were stained with blood and those are the articles seized by the police in the house of PW-7. Therefore, the doubt which was created in the course of examination in chief has been fully clarified and this particular aspect is also spoken to by the Investigating Officer. Therefore, looking to the above said cross examination of this witness, nothing worth has been elicited to discard the evidence of this witness. On the other hand, strong evidence is placed before the Court to establish that the above said articles have been recovered at the instance of the accused.
21. In support of the evidence of this witness, the investigating officer PW-15 has also stated about the arrest of the accused on 13-7-2007 and he recorded the statement of the accused as per Ex.P-22 and that the accused has disclosed that he would show the blood 34 stained clothes and also other incriminating articles if the police accompany him. He specifically stated that he secured the presence of the panch witnesses i.e. PW-8 and one Ayyappa and went along with the accused and recovered Mos-11, 12, 15 and 16 at the instance of the accused and he also identified the photographs taken at the time of the recovery of these articles. He also stated that the accused has taken out his blood stained clothes kept by him in the house of PW-7 and worn the shirt and dhotra belonging to PW-6. Therefore, the said clothes were also recovered at the instance of the accused in the presence of panch witnesses. The investigating officer has identified those clothes as Mos- 13 and 14. He specifically stated that Mos-15 and 16 are the blood stained clothes recovered at the instance of the accused. Except putting suggestions in the course of cross examination, nothing has been elicited from the mouth of this witness in order to dis-believe the version of this witness. Mere suggestions that the witness did not record the voluntary statement of the accused and 35 recover any incriminating articles at the instance of the accused is not sufficient to dis-card the version of this witness. Therefore, looking to the above said unbeatable evidence of PW-8 and the investigating officer, it can be safely inferred that the prosecution has proved that Mos-11 to 16 which are the incriminating articles were seized at the instance of the accused.
22. The learned counsel for the appellant strenuously contends before us that this witness PW-8 is a regular stock witness to the police and therefore his evidence should not be believed. He relies upon the portion of evidence of PW-8 at paragragh-5 and 6, wherein, he has stated that the police have taken his signature at the spot and also in the police station and they have taken about 15 to 16 signatures. It is suggested that the police have taken his signatures on the blank papers. But he denied the said suggestion. He argued that there is no question of taking 15 to 16 signatures in this case. Therefore, he must be a stock 36 witness. Only on the basis of this isolated sentence in the course of cross examination, witness cannot be dubbed as a stock witness to the police. The witness never deviated himself from the case on hand. He only asserts in connection with this case that the police have taken so many signatures. Though there is some exaggeration in examination in chief that police have taken so many signatures but in fact the Court has to see whether he has identified his signatures on the mazhars which are relevant pertaining to this case or not and also whether in his presence the incriminating articles were recovered or not. As we have meticulously dealt with the evidence of these witnesses coupled with the evidence of the Investigating Officer, it shows that the prosecution has established the recovery beyond reasonable doubt.
23. Now let us see how these articles are relevant to connect the culpability of the accused. 37
24. PW-15 Sanganna Tumbagi, Investigating Officer has deposed before the Court that on 22-7-2007 he sent all the seized and recovered articles to the FSL through HC-100 and PC-206. This portion of the evidence is not subjected to cross examination by the appellant. On the other hand, in the course of cross examination, it is specifically elicited at paragraph-27 of this witness that this witness has sent 9-articles to the FSL i.e. to say one stone, blood stained and unstained earth, shirt and banian of the deceased, shirt and dhotra, a knife, a rope recovered at the instance of the accused to the FSL. The Investigating Officer has also produced the FSL report before the Court which is marked as Ex.P-25. Ex.P-25 shows that the Regional FSL Laboratory, Naganahalli, Gulbarga, through its Director, received the 9-articles under Letter No.44/FSL/2007 dated : 22-7-2007 which were in sealed position and those articles were opened after comparing with the corresponding seal. It is seen that out of the above said 9-articles, except Item No.3 sample 38 mud, all the other articles were stained with human blood particularly "O" blood group, that shows that Item No.1 stone and blood stained earth marked at Item No.2 which were seized from the scene of offence where the dead body was found and Item No.4, 5 and 6 shirt, banian and dhotra pertaining to the deceased and Item No.7 knife, Item No.8 and 9 shirt and dhotra of the accused contained the "O" group blood stains that clearly establishes that the shirt and dhotra and Chaku ( knife ) recovered at the instance of the accused were stained with the blood which matches with the blood group of the deceased.
25. In the statement recorded U/Sec.313 Cr.P.C., the accused has not taken up the contention or even during the course of cross examination of any of the prosecution witnesses that his blood group is also "O" group and that he sustained any injury and that the blood stains found on his shirt and dhotra are that of his blood group and not the blood group of the 39 deceased. In the absence of such defence being taken up by the accused and in presence of the strong counter materials to show that these articles particularly the incriminating articles were recovered at the instance of the accused which tallies with the blood group of the deceased, in our opinion, this is a very strong connecting material unerringly connects that the accused is the perpetrator of the crime.
26. In this regard, it is worth to mention a decisions of the Hon'ble Apex Court reported in 2013 (14) SCC P-745 between Barku Bhavrao Bhaskar .Vs. State of Maharashtra, wherein at Head Note A, the Court held as :-
A. Penal Code, 1860 - Ss. 302, 364 and 201 - Kidnapping and murder -
Murder of child for wage dispute with father of deceased - Circumstantial evidence - Conviction confirmed - Last seen evidence, extra-judicial confession, 40 recovery of bloodstained clothes and motive - Held, there was no missing link in chain of circumstances - Courts below have discussed evidence in minute details to hold that recovery of body of deceased was only at the instance of the accused and, there was no scope to doubt the same - Conclusion of courts below was right that circumstances were incapable of being explained on any other reasonable hypothesis, except the guilt of appellant, and were totally inconsistent to draw an inference of innocence of appellant.
Therefore, in the absence of any explanation by the accused with regard to the above strong circumstance, it cannot be said that the trial Court has committed any error in convicting the appellant-accused. 41 MOTIVE :-
27. The last but not the least, the motive as pleaded by the prosecution in this case is also established to confirm the culpability of the accused to show that he is the perpetrator of the crime. PW-1 Siddappa, PW-2 Chandrama and PW-3 Basamma are the witnesses to this particular circumstance of "motive".
28. As we have already narrated that these witnesses have fully supported the case of the prosecution, PWs-1 to 3 have categorically stated that the accused is the close friend of the deceased and deceased suspecting that accused had some illicit intimacy with his wife. Prior to the incident, one day, the accused and the deceased joined together in the house of the deceased and while dining, due to some verbal altercations the deceased poured water to the dining plate of the accused. The accused was enraged 42 with that and he has declared on that day that he would kill the deceased on one day. In the course of cross examination also so far as this portion is concerned is not disturbed. On the other hand, it is only suggested that such incident has not happened. In the course of cross examination it is suggested that deceased was in the habit of consuming alcohol, but the witnesses answered that both the accused and the deceased jointly going together to consume alcohol. These are all the circumstances, which shows that all was not well between the accused and the deceased. Invariably, all the witnesses have stated this particular aspect which shows that there was some close friendship between the accused and the wife of the deceased and the deceased was suspecting with reference to the intimacy between the accused and the wife of the deceased. There was some difference between them and that must be the reason for the accused to venture upon to do away with the life of the deceased.
43
29. Though the motive is not strong enough but the prosecution has placed sufficient materials to show that the deceased and the accused were not in good terms with reference to the suspected intimacy with the wife of the deceased by the accused. In cases of circumstantial evidence, the motive factor though play a dominant role but even in the absence of proving the motive, if the other circumstances are strong enough to link the accused to the incident, merely because the weakness of the motive, the Court cannot ignore the other strong proved circumstances which complete the chain and unerringly point out towards the guilt of the accused. Though we are not holding that this motive factor is not proved, even, inspite of accepting the arguments of the counsel for the appellant regarding the weakness of the motive factor, we are of the opinion that all other circumstances are sufficient to prove the guilt of the accused. Therefore, we have absolutely no hesitation to hold that the trial Court has not committed any error in convicting the accused for the 44 offence punishable U/Sec.302 IPC and sentencing him to undergo imprisonment for life and to pay fine as ordered by the trial Court. Therefore, the appeal is devoid of merits and the same is liable to be dismissed.
Accordingly, the appeal is dismissed.
Sd/-
JUDGE Sd/-
JUDGE SGS*