Karnataka High Court
State Of Karnataka vs Sadar Shankar @ Shankarappa Shivappa ... on 9 December, 2022
Author: Suraj Govindaraj
Bench: Suraj Govindaraj
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CRL.A No. 100449 of 2019
C/W CRL.A No. 100197 of 2020
IN THE HIGH COURT OF KARNATAKA,
DHARWAD BENCH
DATED THIS THE 9TH DAY OF DECEMBER, 2022
PRESENT
THE HON'BLE MR JUSTICE SURAJ GOVINDARAJ
AND
THE HON'BLE MR JUSTICE G BASAVARAJA
CRIMINAL APPEAL NO. 100449 OF 2019
C/W
CRIMINAL APPEAL NO. 100197 OF 2020
IN CRL.A.NO.100449/2019
BETWEEN:
Digitally MALLIKARJUNGOUDA @ MALIK
signed by S/O. ISHWARGOUDA PATIL
SUJATA
SUBHASH AGE: 40 YEARS, OCC: AGRICULTURE,
PAMMAR R/O. HIREHARAKUNI,
TQ: KUNDGOL, DIST: DHARWAD
...APPELLANT
(BY SRI. RAVI B. NAIK, SENIOR COUNSEL FOR SRI.F V
PATIL, AND SRI. B. S. KUKANAGOUDAR, ADVOCATES)
AND:
THE STATE OF KARNATAKA
BY STATE PUBLIC PROSECUTOR
HIGH COURT OF KARNATAKA,
DHARWAD BENCH,
THROUGH KUNDGOL POLICE
...RESPONDENT
(BY SRI.V . M. BANAKAR ADDL SPP, ADVOCATE)
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CRL.A No. 100449 of 2019
C/W CRL.A No. 100197 of 2020
THIS CRIMINAL APPEAL IS FILED U/S 374(2) OF
CR.P.C., PRAYING TO CALL FOR THE RECORDS OF TRAIL
COURT IN S.C.NO.136/2015 ON THE FILE OF V ADDL.
DISTRICT AND SESSIONS JUDGE DHARWAD SITTING AT
HUBBALLI AND SETTING ASIDE THE JUDGMENT OF
CONVICTION DATED 24/09/2019 AND ORDER OF
SENTENCE DATED 26/09/2019 PASSED IN
S.C.NO.136/2014 BY THE V ADDL. DISTRICT AND
SESSIONS JUDGE DHARWAD SITTING AT HUBBALLI, FOR
THE OFFENCES U/S 302, 201 R/W 34 OF IPC AND ACQUIT
THE APPELLANT (A1) FROM THE ALLEGED CHARGES.
IN CRL.A.NO.100197/2020
BETWEEN:
STATE OF KARNATAKA
REPRESENTED BY THE
THE POLICE SUB-INSPECTOR,
KUNDAGOL POLICE STATION,
DIST: DHARWAD, THROUGH THE ADDL.
STATE PUBLIC PROSECUTOR,
ADVOCATE GENERAL OFFICE,
HIGH COURT OF KARNATAKA,
DHARWAD BENCH.
...APPELLANT
(BY SRI. V. M. BANAKAR, ADDL. SPP.)
AND:
SADAR SHANKAR @ SHANKARAPPA SHIVAPPA SADAR
AGE: 38 YEARS, OCC: AGRICULTURE,
R/O: HIREHARAKUNI,
TQ: KUNDAGOL, DIST: DHARWAD.
...RESPONDENT
(BY SRI.MALLIKARJUNSWAMY B. HIREMATH, ADVOCATE)
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CRL.A No. 100449 of 2019
C/W CRL.A No. 100197 of 2020
THIS CRIMINAL APPEAL IS FILED U/S 378 (1) & (3)
OF CR.P.C., PRAYING TO GRANT LEAVE TO APPEAL
AGAINST THE JUDGMENT AND ORDER OF ACQUITTAL
DATED 24/09/2019 PASSED BY THE V ADDL. DISTRICT
AND SESSIONS JUDGE AT DHARWAD SITTING AT
HUBBALLI IN S.C. NO.136/2015 AND TO SET ASIDE THE
JUDGMENT AND ORDER PASSED BY THE V ADDL.
DISTRICT AND SESSIONS JUDGE AT DHARWAD, SITTING
AT HUBBALLI IN S.C.NO.136/2015 DATED 24/09/2019 SO
FAR IT RELATES TO ACQUITTAL OF RESPONDENT /
ACCUSED NO.2 AND CONVICT AND SENTENCE THE
RESPONDENT / ACCUSED NO.2 FOR THE OFFENCES
PUNISHABLE UNDER SECTIONS 302 AND 201 OF IPC.
THESE APPEALS HAVING BEEN HEARD AND
RESERVED FOR JUDGMENT ON 15.11.2022, COMING ON
FOR PRONOUNCEMENT OF JUDGMENT THIS DAY, SURAJ
GOVINDARAJ J., PRONOUNCED THE FOLLOWING:
JUDGMENT
1. Crl.A.No.100449/2019 has been filed by accused No.1 aggrieved by the judgment of conviction and order of sentence passed by the V Addl. District and Sessions Judge, Dharwad, sitting at Hubballi, in S.C.No.136/2015 dated 24.09.2019.
2. By virtue of the said judgment, the accused No.1 was convicted for offences punishable under Sections 302 -4- CRL.A No. 100449 of 2019 C/W CRL.A No. 100197 of 2020 and 201 read with Section 34 of the IPC and was sentenced to undergo imprisonment for life and make payment of fine of Rs.3,00,000/- in default thereof, to undergo three years Rigorous Imprisonment insofar as the offence under Section 302 of the IPC was concerned. Insofar as the offence under Section 201 of the IPC is concerned, accused No.1 was sentenced to undergo imprisonment for a period of 3 years and fine of Rs.50,000/-, in default thereof, to undergo Rigorous Imprisonment for a further period of six months. Out of the said fine amount, the trial Court directed release of a sum of Rs.3,25,000/- in favour of PW1 and PW15 proportionately and Rs.25,000/- to be credited to the account of the State Exchequer as expenses towards the transaction.
3. The accused No.2 having been acquitted, the State is on appeal in Criminal Appeal No.100197/2020 -5- CRL.A No. 100449 of 2019 C/W CRL.A No. 100197 of 2020 seeking for setting aside the order of acquittal and for conviction of the accused No.2.
4. The case of the prosecution is that;
4.1. On 21.07.2015, at about 0930 hours, PW1, mother of the deceased had lodged a complaint with Kundagol Police Station alleging that her son Basayya @ Iranna was a good friend of Mallik @ Mallikarjungouda Ishwaragouda Patil (accused No.1). 4.2. On 14.07.2015 at about 11.00 am, on receiving a phone call stated to be that from accused No.1, he took his bike and went to the house of accused No.1, but did not return even after sunset. Hence, she went to the house of accused No.1. When she found only the parents of accused No.1 and saw her son's bike parked there, the father of accused No.1 informed her that his son along -6- CRL.A No. 100449 of 2019 C/W CRL.A No. 100197 of 2020 with her son might have gone to Hubballi. He tried calling accused No.1 on his mobile number as also the deceased son of the complainant. But the mobiles were not reachable.
4.3. The complainant alleges that, on the next day morning, she had again gone to meet accused No.1, who was then found in the house. He consoled that the deceased was somewhere else and he will bring him back within two days. Thereafter he dropped her back at her house in the bike of the deceased.
4.4. She had been informed that, on 14.07.2015, at around 2.00 pm, her son went inside the house of accused No.1 but did not come out. It is in that background she gave a missing complaint to trace out her son suspecting -7- CRL.A No. 100449 of 2019 C/W CRL.A No. 100197 of 2020 accused No.1, on which basis Crime No.78/2015 was registered for the offences under Section 363 of the IPC.
4.5. The matter was taken up for investigation and spot panchanama of the place where alleged incident took place was made. 4.6. At this stage, a dead body was found near Muragoli Balebankad Cross, Chandika river, emitting very bad smell, in a gunny bag. The gunny bag was opened by the police with the help of some of the gathered people, where a dead body of a man aged about 35-40 years was found in a highly decomposed situation with maggots eating the body. 4.7. A case was registered in Crime No.197/2015 for the offences punishable under Sections 302, 201 of the IPC against unknown persons. The post-mortem was conducted. -8- CRL.A No. 100449 of 2019 C/W CRL.A No. 100197 of 2020 Some of the articles found on the body were preserved and forwarded to Kumta Police Station and thereafter the body was buried. 4.8. In the meanwhile, after reading a newspaper article about the recovery of unknown dead body, on 30.07.2015, the complainant, her husband and her daughter-in-law (wife of the deceased) visited the Kumta Police Station to make enquiries, where they were shown the clothes found on the dead body in Kumta, which is identified by the complainant, her husband and daughter-in- law to be that of the son of the complainant, as regards which a missing complaint was registered in Crime No.78/2015. 4.9. It is in that background that the investigation was taken over by the Kundagol Police with -9- CRL.A No. 100449 of 2019 C/W CRL.A No. 100197 of 2020 the Kumta Police Crime number being transferred to Kundagol Police.
5. The investigation having been carried out, a charge sheet was laid on 21.10.2015 against accused No.1 and one Sadar Shankar @ Shankarappa for offences punishable under Sections 302 and 201 read with Section 34 of the IPC.
6. The accused having been arrested were produced before the committal court, when they denied the charges. The matter was committed and made over to the Sessions Court in S.C.No.136/2015. The accused having denied the charges, pleaded not guilty and claimed to be tried.
7. The prosecution in order to prove its case, in all examined 46 witnesses as PWs.1 to 46 and got marked 77 documents as Exs.P1 to P77 as also marked 11 material objects as M.Os.1 to 11. The incriminating evidence having been put across to the
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CRL.A No. 100449 of 2019 C/W CRL.A No. 100197 of 2020 accused, their respective statements under Section 313 of the Criminal Procedure Code was recorded, where they denied the incriminating evidence. But however, did not lead any defence evidence.
8. After conclusion of the trial and hearing the parties, the trial Court passed the aforesaid judgment of conviction and order of sentence, which is impugned in these proceedings.
9. Sri. Ravi B. Naik, learned Senior Counsel appearing on behalf of accused No1. submits that:
9.1. The entire case of the prosecution is a falsehood. The accused has not committed the murder as alleged. The case of the prosecution is based entirely on suspicion and presumptions without there being any legally tenable evidence.
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CRL.A No. 100449 of 2019 C/W CRL.A No. 100197 of 2020 9.2. The accused No.1 and his family are financially better situated than the deceased, as such, the contention that the accused No.1 had borrowed a sum of Rs.13,00,000/- which has not been repaid to the deceased is completely false.
9.3. Accused Nos.1 and deceased were good friends. Accused No.1 would not cause the death of the deceased. The entire case of the prosecution being based on circumstantial evidence, it is required for the prosecution to prove beyond reasonable doubt each and every link of the chain of circumstantial evidence and establish that the accused No.1 is guilty of the offences as alleged. 9.4. The body of the deceased has not been properly identified. The body found at Kumta has not been definitely identified to be that
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CRL.A No. 100449 of 2019 C/W CRL.A No. 100197 of 2020 of the son of the complainant. There is no DNA report which has been collected and/or available on file to establish that the body found is indeed that of the son of the complainant.
9.5. Insofar as the oral evidence of PW15, the father of the deceased is concerned, he alleged that the deceased had borrowed loan from the bank to make available the same to accused No.1. However, no investigation has been made by the Investigating Officer as regards the application for loan availed, disbursement of the loan, withdrawal of the amounts from the account of the deceased and handing over of the same to the accused No.1. In the absence thereof, the entire story of the prosecution that accused No.1 had borrowed the loan which he is not
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CRL.A No. 100449 of 2019 C/W CRL.A No. 100197 of 2020 returning is only a make-believe story and not established by the prosecution. 9.6. The recovery of the body cannot be said to be at the instance of the accused inasmuch as the body was already recovered and a separate Crime No.197/2014 is registered by the Kumta Police. The police knowing where the body was, the question of the accused leading the police and/or investigator to the body would not at all arise.
9.7. As regards the identification of seizure of the car, he submits that, though a car has been mentioned and it is alleged that the said car was used to transport the dead body, no evidence to that effect has been produced. The seizure of the car was in a location which is public in nature in front of a hospital where anybody could have parked the
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CRL.A No. 100449 of 2019 C/W CRL.A No. 100197 of 2020 vehicle and as such, there being no evidence to link the offence and the car of the accused, the prosecution has tried to make out a story which is not based on the real facts.
9.8. On the basis of the above, he submits that the judgment of conviction and order of sentence passed against accused No.1 is required to be set aside.
9.9. In support of his contentions, he has relied upon the following decisions of the Hon'ble Apex Court:
9.10. Nandu Singh Vs. State of Madhya Pradesh reported in 2022 LiveLaw (SC)
229. The relevant paragraphs 10, 11 and 12 are extracted below for easy reference:
10. In a case based on substantial evidence, motive assumes great significance. It is not as if
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CRL.A No. 100449 of 2019 C/W CRL.A No. 100197 of 2020 motive alone becomes the crucial link in the case to be established by the prosecution and in its absence the case of Prosecution must be discarded. But, at the same time, complete absence of motive assumes a different complexion and such absence definitely weighs in favour of the accused.
11. In Anwar Ali vs. State of Himachal Pradesh (2020) 1 SCC 166, this Court made the legal position clear in following words:-
24. Now so far as the submission on behalf of the accused that in the present case the prosecution has failed to establish and prove the motive and therefore the accused deserves acquittal is concerned, it is true that the absence of proving the motive cannot be a ground to reject the prosecution case. It is also true and as held by this Court in Suresh Chandra Bahri v.
State of Bihar, 1995 Supp (1) SCC 80 that if motive is proved that would supply a link in the chain of circumstantial evidence but the absence thereof cannot be a ground to reject the prosecution case. However, at the same time, as observed by this Court in Babu v. State of Kerala, (2010) 9 SCC 189, absence of motive in a case depending on circumstantial evidence is a factor that weighs in favour of the accused. In paras 25 and 26, it is observed and held as under : (Babu case, SCC pp. 200-01) "25. In State of U.P. v.
Kishanpal,(2008) 16 SCC 73 this Court examined the importance of motive in cases of circumstantial evidence and observed : (SCC pp. 87-88, paras 38-39) '38..... the motive is a thing which is primarily known to the accused themselves and it is not possible for the prosecution to explain what actually promoted or ex- cited them to commit the particular crime.
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CRL.A No. 100449 of 2019 C/W CRL.A No. 100197 of 2020
39. The motive may be considered as a circumstance which is relevant for assessing the evidence but if the evidence is clear and unambiguous and the circum- stances prove the guilt of the accused, the same is not weakened even if the motive is not a very strong one. It is also settled law that the motive loses all its importance in a case where direct evidence of eyewitnesses is available, because even if there may be a very strong motive for the accused persons to commit a particular crime, they cannot be convicted if the evidence of eye- witnesses is not convincing. In the same way, even if there may not be an apparent motive but if the evidence of the eyewitnesses is clear and reliable, the absence or inadequacy of motive cannot stand in the way of conviction.'
26. This Court has also held that the absence of motive in a case depending on circumstantial evidence is a factor that weighs in favour of the accused (Vide Pannayar v. State of T.N.(2009) 9 SCC
152)"
12. In the subsequent decision in Shivaji Chintappa Patil vs. State of Maharashtra, (2021) 5 SCC 626 this Court relied upon the decision in Anwar Ali1 and observed as under:-
"27. Though in a case of direct evidence, motive would not be rele- vant, in a case of circumstantial evidence, motive plays an important link to complete the chain of circumstances. The motive... ..." 9.10.1. State of Karnataka Vs. Chand Basha reported in 2016 (1) SCC
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CRL.A No. 100449 of 2019 C/W CRL.A No. 100197 of 2020
501. The relevant paragraph 14 is extracted below for easy reference:
14. The prosecution story relies upon the 'last seen together' theory, which resulted into the death of Ganesh. This Court has time and again laid down the ingredients to be made out by the prosecution to prove the 'last seen together' theory. The Court for the purpose of arriving at a finding as to whether the said offence has been committed or not, may take into consideration the circumstantial evidence. However, while doing so, it must be borne in mind that close proximity between the last seen evidence and death should be clearly established. Yet, the prosecution has failed to prove the evidence which establishes the 'last seen together' theory beyond reasonable doubt to prove the guilt of the accused. The prosecution merely proved the motive which could have compelled the accused, and that the accused went to the bar with one other person, but the identity of that other person is not clearly established at all.
The post-mortem report fails to specify any approximate time of death and in light of the recovery of the dead body on 20.01.2001, after 4 days, which is not a small gap since the deceased disappeared on 16.01.2001, it is not appropriate to convict the accused when his role is not firmly established. 9.10.2. Ramanand alias Nandlal Bharti Vs. State of Uttar Pradesh reported in 2022 SCC Online SC 1396. The relevant paragraphs 45
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CRL.A No. 100449 of 2019 C/W CRL.A No. 100197 of 2020 to 48 are extracted below for easy reference:
45. In 'A Treatise on Judicial Evidence', Jeremy Bentham, an English Philosopher included a whole chapter upon what lies next when the direct evidence does not lead to any special inference. It is called Circumstantial Evidence. According to him, in every case, of circumstantial evidence, there are always at least two facts to be considered:
a) The Factum probandum, or say, the principal fact (the fact the existence of which is supposed or proposed to be proved; &
b) The Factum probans or the evidentiary fact (the fact from the existence of which that of the factum probandumis inferred).
46. Although there can be no straight jacket formula for appreciation of circumstantial evidence, yet to convict an accused on the basis of circumstantial evidence, the Court must follow certain tests which are broadly as follows:
1. Circumstances from which an inference of guilt is sought to be drawn must be cogently and firmly established;
2. Those circumstances must be of a definite tendency unerringly pointing towards guilt of the accused and must be conclusive in nature;
3. The circumstances, if taken cumulatively, should form a chain so complete that there is no escape from the conclusion that within all human probability
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the crime was committed by the accused and none else; and
4. The circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused but should be inconsistent with his innocence. In other words, the circumstances should exclude every possible hypothesis except the one to be proved.
47. There cannot be any dispute to the fact that the case on hand is one of the circumstantial evidence as there was no eye witness of the occurrence. It is settled principle of law that an accused can be punished if he is found guilty even in cases of circumstantial evidence provided, the prosecution is able to prove beyond reasonable doubt the complete chain of events and circumstances which definitely points towards the involvement and guilty of the suspect or accused, as the case may be. The accused will not be entitled to acquittal merely because there is no eye witness in the case. It is also equally true that an accused can be convicted on the basis of circumstantial evidence subject to satisfaction of the expected principles in that regard.
48. A three-Judge Bench of this Court in Sharad Birdhichand Sarda v. State of Maharashtra, (1984) 4 SCC 116, held as under:
"152. Before discussing the cases relied upon by the High Court we would like to cite a few decisions on the nature, character and essential proof required in a criminal case which rests on circumstantial evidence alone. The most fundamental and basic decision of this Court is Hanumant v.
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State of Madhya Pradesh [AIR 1952 SC 343 : 1952 SCR 1091 : 1953 Cri LJ 129] . This case has been uniformly followed and applied by this Court in a large number of later decisions up-to-date, for instance, the cases of Tufail (Alias) Simmi v. State of Uttar Pradesh [(1969) 3 SCC 198 : 1970 SCC (Cri) 55] and Ramgopal v. State of Maharashtra [(1972) 4 SCC 625 : AIR 1972 SC 656] . It may be useful to extract what Mahajan, J. has laid down in Hanumant case [AIR 1952 SC 343 : 1952 SCR 1091 :
1953 Cri LJ 129] :
It is well to remember that in cases where the evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should in the first instance be fully established, and all the facts so established should be consistent only with the hypothesis of the guilt of the accused. Again, the circumstances should be of a conclusive nature and tendency and they should be such as to exclude every hypothesis but the one proposed to be proved. In other words, there must be a chain of evidence so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability the act must have been done by the accused.
153. A close analysis of this decision would show that the following conditions must be fulfilled before a case against an accused can be said to be fully established: (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'
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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 Sahabrao Bobade v. State of Maharashtra [(1973) 2 SCC 793 : 1973 SCC (Cri) 1033 :
1973 Cri LJ 1783] where the following observations were made : [SCC para 19, p. 807 : SCC (Cri) p. 1047] Certainly, it is a primary principle 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, (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.
154. These five golden principles, if we may say so, constitute the panchsheel of the proof of a case based on circumstantial evidence."
10. Sri. V. M. Banakar, learned Addl. SPP would submit that;
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CRL.A No. 100449 of 2019 C/W CRL.A No. 100197 of 2020 10.1. The prosecution has established beyond reasonable doubt that it is accused Nos. 1 and 2 who have committed the murder of the deceased. In fact the trial Court ought to have convicted accused No.2 also. The trial Court not having been done so, a separate appeal has been filed.
10.2. The prosecution was able to establish that there was a financial transaction between the accused No.1 and the deceased. The deceased demanding for the monies to be returned, accused No.1 did not repay the money and on the deceased persisting for the payment, the accused No.1 having got disgusted and tired of such repeated reminders made by the deceased, had conspired with accused No.2 who was in need of money to make payment of sum of Rs.2,00,000/- to accused No.2 and it is on
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CRL.A No. 100449 of 2019 C/W CRL.A No. 100197 of 2020 that basis that the accused also involved the relative of accused No.1, namely PW16, who arranged for a party along with deceased and the PW16 bringing alcohol, the deceased having consumed the alcohol, accused Nos. 1 and 2 attacked the deceased, assaulted on his head and strangulated him causing his death thereafter.
10.3. The prosecution has been able to establish that the body was put into a gunny bag, taken in a Tata India car bearing registration No.KA-29/A-630. The brother-in-law of accused No.1 had thrown the dead body near Kumta. The police having conducted mahazer, seized the incriminating articles, the prosecution has established the motive for the murder being the repeated reminders made by the deceased for repayment of monies.
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CRL.A No. 100449 of 2019 C/W CRL.A No. 100197 of 2020 10.4. The deceased was last seen entering the house of accused No.1 and thereafter was not seen. The Tata India car was seen at different locations going up to Kumta and back again, which establishes that the car was used for the purpose of disposal of the body. The body was found near Kumta in a gunny bag in a highly decomposed state and the body was identified only on the basis of the clothes found on the dead body. 10.5. At the time when the complainant went to the house of the accused on the date of disappearance of the deceased, the accused No.1 was not present, she returned on the next day and the accused No.1 had promised the complainant that he will speak to the deceased and get him to come back at the earliest.
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CRL.A No. 100449 of 2019 C/W CRL.A No. 100197 of 2020 10.6. All these factors, he submits, indicate that the accused No.1 has caused the murder of the deceased.
10.7. Insofar as accused No.2 is concerned, he submits that accused No.2 was seen in the company of accused No.1 in Tata Indica car by various witnesses while the car was traveling towards Kumta. Accused No.2 was also absconding and later on arrested on 06.08.2015 by CPI Kumata(dead) along with PWs.31 & 33. If at all the accused No.2 was not involved in the crime, he ought not to have absconded and he ought to have explained the circumstances in his 313 statement.
10.8. The trial Court has not properly appreciated the evidence of PW2 who has clearly stated that on the date of the incident he had seen
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CRL.A No. 100449 of 2019 C/W CRL.A No. 100197 of 2020 the accused No.2 along with accused No.1 coming out of the house of accused No.1 which would establish that the accused No.2 was also present at the spot of the Crime when the crime occurred.
10.9. PW11 has spoken of the presence of accused No2. along with accused No.1 in the Tata Indica car indicating that he was involved in transporting the dead body.
10.10. These two witnesses and certain other witnesses having categorically stated about the presence of accused No.2, the chain of events implicates accused No.2 in the crime as committed.
10.11. On this basis, he submits that the judgment of conviction as against accused No.1 is required to be confirmed. The judgment of acquittal in respect of accused No.2 needs to
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CRL.A No. 100449 of 2019 C/W CRL.A No. 100197 of 2020 be set aside and accused No.2 is also to be convicted for the offences.
11. It is in the background of the above submissions that we have been called upon to re-appreciate the evidence on record to ascertain if the impugned judgment passed by the trial Court is proper or not.
12. The present case is clearly a case of circumstantial evidence, there being no eyewitnesses to the crime, which has committed, in terms of the decision of the Hon'ble Apex Court in Nandu Singh's case (Supra) as also Ramanand's case (supra), it is clear that in cases relating to circumstantial evidence, the prosecution has to establish the circumstances from which the conclusion of guilt has to be drawn. The circumstances unerringly pointing towards the guilt of the accused, the circumstances forming a chain of evidence are to be so complete that there is no escape from the conclusion that the crime was
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CRL.A No. 100449 of 2019 C/W CRL.A No. 100197 of 2020 committed by the accused and none else. The circumstances must be complete and incapable of explanation of any other hypothesis.
13. It is in the background of the above legal position that we are required to appreciate the circumstantial evidence to consider whether the prosecution has established and satisfied the above requirement and established that the accused is guilty of the offence alleged beyond reasonable doubt.
14. Motive:
14.1. The first aspect which would be relevant for consideration would be the motive.
14.2. The motive alleged by the prosecution is that, the accused had borrowed nearly 13 lakhs of rupees from the deceased and it is on account of the deceased repeatedly asking repayment of the said monies that
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accused No.1 caused the murder of the deceased with the assistance of accused No.2 so that the said demands could not be made.
14.3. In order to establish this, the prosecution would firstly have to establish that the deceased had the money which is claimed to have been lent to the accused, the deceased had in fact lent the amount to accused No.1 and had made repeated demands to accused No.1 for repayment of monies.
14.4. PW1 has spoken about the deceased having informed him that the deceased had given 13 lakh rupees to Mallikarjungouda, i.e., accused No.1 and that the deceased was requesting accused No.1 to return the money, which he did not. In the cross- examination, when she was asked how and
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CRL.A No. 100449 of 2019 C/W CRL.A No. 100197 of 2020 from where the deceased paid the money, she has stated from the bank, but does not know from which bank. On enquiry whether she had any document to show that the money was earned from the agricultural land, she has stated that she does not have any document.
14.5. PW2 has stated that the deceased and the accused No.1 were close friends and were like brothers and that they had money transactions between them. He has stated that he got to know later that the money transaction is the reason for the murder. He is an hearsay witness.
14.6. PW14 has stated that he got to know that the accused No.1 committed the murder on account of 13 lakh money matter between
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CRL.A No. 100449 of 2019 C/W CRL.A No. 100197 of 2020 him and the accused. He is an hearsay witness.
14.7. PW15, the father of the deceased has stated that the deceased has taken loan from the bank by mortgaging the property and the said amount was given to accused No.1. In the cross-examination when it was inquired as to from which bank the loan was taken and whether the amount came into the bank account, he has stated that Rs.13 lakhs was from the bank loan out of which Rs.3,00,000/- is in his name and Rs.7,00,000/- in the name of the deceased. He has confirmed that the loan amount was issued through a cheque addressed in his name and has stated that the amount was paid to accused No.1 by cheque under his signature. He has admitted that the documents are there in the bank relating to
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CRL.A No. 100449 of 2019 C/W CRL.A No. 100197 of 2020 the loan and payment, but he had not produced the same and furnished the same to the police. On enquiry as to how much was given and what duration it was to be returned back, he has stated that he did not ask the deceased about the same. 14.8. PW19, who is a common friend and acquainted with the deceased and accused No.1 has stated that, he knew both of them. They were friends, there were money transactions between them and the deceased lending money to the accused. He has categorically stated that the deceased had told him and to CW29 about 13 lakhs having been given on loan to the accused No.1 and the non-payment of the same by the accused No.1. In the cross-examination he has stated that he had also requested for certain loan from the deceased at the time when PW19
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CRL.A No. 100449 of 2019 C/W CRL.A No. 100197 of 2020 was constructing his house. But the deceased did not make available the funds stating that he has lent the money to the accused No.1 and upon the accused No.1 returning the money, he would make available some of it to PW19. He has denied the suggestions put across to him that there were no financial transactions between the deceased and the accused No.1 . He has withstood the test of cross-examination and supported the case of the prosecution. 14.9. In the above background, we are of the considered opinion that there is no evidence on record which would indicate firstly, that the deceased had about Rs.13,00,000/- and secondly that the deceased handed over Rs.13,00,000/- to accused No.1 and thirdly, that the deceased was repeatedly asking for repayment of the money.
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CRL.A No. 100449 of 2019 C/W CRL.A No. 100197 of 2020 14.10. The investigation is completely silent on these facts. There apparently has been no enquiry made by the Investigating Officer with the witnesses, more particularly PW15, as regards the name of the bank and other aspects. There is no follow up made by the Investigating Officer with the bank to source the documents. In the evidence of the Investigating Officer, it is not stated that any attempts have been made in this regard and/or that despite attempts being made, no documentary evidence were sourced. This we find to be a serious lapse in the investigation conducted.
14.11. Result of either the witnesses not producing the documents and/or Investigating Officer not discharging its obligation to ascertain the truth, we are left with a situation that there is nothing on record to establish the alleged
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CRL.A No. 100449 of 2019 C/W CRL.A No. 100197 of 2020 motive to cause the murder of the deceased as alleged by the prosecution.
15. Last Seen 15.1. Insofar as the last seen theory is concerned, the allegation is that, the murder having occurred in the house of accused No.1, the body was transported to Kumta by using the brown coloured Tata Indica Car. 15.2. PW11 has stated that at around 3.30 to 4.00 pm, on the fateful day, when he was going to his village from Harakuni, the two accused dropped him in a red car to his village. 15.3. PW13 has stated that, at about 6.30 pm, on the fateful day, she had left the cows for grazing near the well and at that time, she saw accused No.1 driving the red coloured car towards Kundagol and thereafter he
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CRL.A No. 100449 of 2019 C/W CRL.A No. 100197 of 2020 picked up accused No.2 in the car, accused No.2 was standing there in the car. In the cross-examination, she has stated that accused No.2 came to the said place at 4.00 pm. But she has not observed any writings or pictures on the car or on the backside. She has identified picture of the car at Ex.P15.
15.4. PW24 has stated that the red coloured Indica car bearing registration No.KA-29/A-0630 belongs to him.
15.5. CW27, who is the brother-in-law of accused No.1 is a friend of PW24 who used to take the car from him and use it, however he has not been examined. PW24 has stated that on the fateful day, CW27 took the car by saying that he is going to Sahasra Linga Shambulinga Temple near Sirsi, the car was
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CRL.A No. 100449 of 2019 C/W CRL.A No. 100197 of 2020 returned on next day. Thereafter PW24 was using the car for 15 days since he was going for kidney treatment in Tatwadarsha Hospital at Hubballi, when the police seized the car for investigation. He has identified the car as per the photographs at Exs.P15 and P16. During the course of cross-examination, he has admitted the transaction between him and CW27 for sale of the car to CW27 as also certain business differences due to which he was agreeable to give the car to CW27 and had in fact handed over the documents relating to car to CW27. He has stated in cross-examination that CW27 was using the car from 2015.
15.6. PW31 is the witness to the seizure of the car.
But he does not remember what was written on the car.
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CRL.A No. 100449 of 2019 C/W CRL.A No. 100197 of 2020 15.7. PW11 has spoken about the car being present at Hire Harakuni. From the above it is clear that the car was seen at around 3.30 to 4.00 pm near Harakuni and subsequently around 6.30 pm on the road to Kundagol. Though the car was subsequently seized from PW24 and PW24 has stated that CW27, the brother-in-law of accused No.1 was using the car, shockingly the car itself has not been examined. The car stated to have been used for the purpose of transportation of the body of the deceased in a gunny bag, it was but required for the Investigating Officer to have ascertained traces of blood if any present in the dicky of the car where the gunny bag is alleged to have been placed and/or any other evidence to indicate the transportation of the body.
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CRL.A No. 100449 of 2019 C/W CRL.A No. 100197 of 2020 15.8. There is absolutely no examination of the car which has been done by the Investigating Officer and/or Forensic Experts, to establish that the car was used to transport the dead body.
15.9. Even as regards to the time PWs.3 & 4 have stated that they saw the deceased entering the house of accused No.1 at Hireharakuni at 11.30 am. As per the case of the prosecution, the murder of the deceased occurred at the house of accused No.1 and thereafter the body was transported to Kumta. The distance from the scene of occurrence to Kumta is about 200-225 kms as per the evidence the PW31 which would take about 5. Hours.
15.10. Thus, in terms of the evidence of the witness namely, PW11, the car was seen at 3.30 pm
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CRL.A No. 100449 of 2019 C/W CRL.A No. 100197 of 2020 at Harakuni with accused No.2 in it. That would pre-suppose that the car was coming to the house of accused No.1 for collection of the body if the prosecution story is to be believed.
15.11. Thereafter at 6.30 pm, the car was seen near Soppin's well at Harakuni which is on the Kundagol - Kumta road.
15.12. Thus there appears to be evidence on record to indicate that the car traveled from the scene of occurrence to Kumta on that day were the body was found much later.
16. Seizure 16.1. PW2 has stated that he was the witness to the seizure of the iron rod. He has supported the case of the prosecution. He has stated that the seizure happened in the house of
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CRL.A No. 100449 of 2019 C/W CRL.A No. 100197 of 2020 accused No.1. The iron rod was in an open place which was identified by accused No.1. 16.2. PW25, the doctor who has done the post-
mortem has stated that the death was on account of the assault on the head and that the seized iron rod M.O.11 could have caused the injuries.
16.3. PW22 is a witness to the seizure panchanama of the clothes, mobile, red car and the rod marked as M.O.11. He is a witness to the seizure of the black mobile phone, but he has stated that the police had already prepared the panchanama, which he has signed.
16.3.1. Three to four days later, he was again called to the Kumta Police Station, when he was taken along with CW13 and the accused in a
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CRL.A No. 100449 of 2019 C/W CRL.A No. 100197 of 2020 jeep. First they went to Kaatagana which is approximately 10 kms from Kumta, where they showed him the place where the body of the deceased had been kept.
16.3.2. After that they went to Sirsi and had breakfast in one shop where the accused are stated to have bought bananas and then to a petrol bunk, where the accused are stated to have bought petrol in a bottle. Since it had become dark by then, they stayed in Hubballi Police Station. 16.3.3. Next day they went to Kundagol, went inside the house of the accused where the place of incident was shown by the accused. When the accused has stated to have informed
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CRL.A No. 100449 of 2019 C/W CRL.A No. 100197 of 2020 them that they had assaulted the deceased on the head with an iron road and showed them where it was kept, thereupon the same was seized.
16.3.4. Later they returned to Hubballi, where he has shown red coloured Indica car parked near Hubballi hospital, which was seized. He has supported the case of the prosecution.
16.3.5. In the cross-examination, he has admitted that he has given evidence in more than 50-60 cases in Kumta Court and has been a witness to many of the seizures, spot panchanamas etc. On enquiry as to why he had gone to the Police
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CRL.A No. 100449 of 2019 C/W CRL.A No. 100197 of 2020 Station and whether the police had called him, he has stated that the police had not called him, but he has gone to the Police Station to enquire about passport of one of his friends. 16.3.6. When specifically asked as to where the seized items were, he has stated that the seized items, namely, clothes, Linga, mobile, etc., were on the Police Station table packed in a bag.
16.3.7. But later on he in the cross-
examination stated that there was no mobile present and that two to three days later, he was once again called when he had been shown the mobile. He does not know its number.
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CRL.A No. 100449 of 2019 C/W CRL.A No. 100197 of 2020 16.3.8. Later on, he was again called to sign the panchanama and being asked where the rod was kept, it was stated that it was kept in the lair at the house of the accused No.1 which is about 50 ft in length and 30 ft in width. He does not know how many doors are there in the house. He does not know the location and as to which direction the doors faced. He does know the boundaries and/or the chakabandi of the place where the iron rod was seized. He admits that he and PW23 have given evidence in different cases.
16.4. PW23, who is stated to be the president of the village panchayat has stated that;
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CRL.A No. 100449 of 2019 C/W CRL.A No. 100197 of 2020 16.4.1. He is a witness to the panchanama.
He has identified M.Os. 1 to 8, which were in sealed packages on the day of panchanama. On 02.08.2015, he had been called to the Police Station, where enquiry was conducted with accused No.1, seized a mobile from his possession and conducted a mobile seizure panchanama.
16.4.2. He had gone along with the police and accused No.1 to Kumta, where the accused showed them the place where the body was thrown, then to a place where the accused showed them the location where the gunny bag and clothes were burnt. The burnt pieces of gunny bag were marked as M.O.11, the accused No.1 showed him place where he threw
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CRL.A No. 100449 of 2019 C/W CRL.A No. 100197 of 2020 the mobile phone of the deceased when photos were taken.
16.4.3. Thereafter he went to a shop in Hubballi-Sirsi road and purchased banana from there and then to a petrol bunk, where accused is said to have filled a bottle with petrol. 16.4.4. Then they went to the house of accused No.1 where the iron rod was seized, which was identified by him. Thereafter they went to the hospital where the car was seized.
16.4.5. In the cross-examination, he has stated that he is a witness to two other cases pending in the Sessions Case and that he is witness in many cases in Kumta Court.
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CRL.A No. 100449 of 2019 C/W CRL.A No. 100197 of 2020 16.4.6. He has stated that he is pancha in about 5-6 cases and deposed as witness in about 8 cases. He has stated that the police shown him the red t-shirt, ash coloured underwear, white colour half baniyan, pant, one red coloured waist string and the linga tied with string and that they are in sealed cover and having written on it. The police have shown it to him and took his signature. 16.4.7. On enquiry he is unable to state the chakabandi/boundaries of the spot where the body had been thrown and/or where the iron rod was seized.
16.4.8. He does not know the name of the shop owner where banana was
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CRL.A No. 100449 of 2019 C/W CRL.A No. 100197 of 2020 bought or the name of the petrol bunk, where the petrol was bought. 16.4.9. He has also stated that the lair measured 50x30 ft and the accused No.1 took them to the spot where the iron rod was kept. He is not able to give the chakabandi/boundaries of the house and/or the place where the iron rod was seized.
16.4.10. In the cross-examination, he was not able to state from where they had entered the house. He has denied all the suggestions and supported the case of the prosecution.
16.5. The seizure witnesses being PW22 and PW23, have clearly stated that they are panchas in numerous other matters and they
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CRL.A No. 100449 of 2019 C/W CRL.A No. 100197 of 2020 have deposed as witnesses on behalf of the prosecution in several matters. 16.5.1. PW22 has stated that he has given evidence in more than 50-60 cases in Kumta Court, has been witnessed to many seizures, spot panchanamas etc. 16.5.2. PW23 has stated that he is a witness in two other sessions cases and witness in many cases in Kumta Court. He is a pancha in about 5-6 cases and deposed as witness in about 8 cases.
16.6. The above would indicate that these witnesses are stock witnesses and that the Investigating Officer has relied upon stock witnesses to try and establish the case of the prosecution against the accused. Apart there
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CRL.A No. 100449 of 2019 C/W CRL.A No. 100197 of 2020 from, PW22 has stated that the seizure items were lying on the table of the police station packed in a bag. If they were lying on the table, there is no question of seizure and/or recovery of the same through the accused. 16.7. There is also a contradiction in the evidence of PW22 inasmuch as he has initially stated that black colour mobile phone was lying on the table, but later on he has reiterated by saying that the said phone was not lying on the table and he was called once again after 2-3 days and showed the mobile phone. But he does not know the mobile number. 16.8. PW23 has been unable to state chakbandi boundaries where the body was thrown, the name of the shop owner where the accused had brought bananas, name of the petrol bunk owner from where the petrol was
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CRL.A No. 100449 of 2019 C/W CRL.A No. 100197 of 2020 purchased. He is not able to clearly identify where the iron rod was found in the house of the accused No.1.
16.9. Thus, apart from the panchas being stock witnesses, there is no seizure of the recovery made through the accused which has been established, there is no link between the so called seized items to accused Nos. 1 and/or 2.
17. In view of the above, when the motive has not been established, last seen has not been categorically established (only surmises can be drawn) nor is the seizure established, we are of the considered opinion that the prosecution has failed to prove its case against the accused. The trial Court on the basis of the suspicions that have arisen has convicted accused No.1, when the said accused cannot be convicted merely on suspicion. The burden of proving
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CRL.A No. 100449 of 2019 C/W CRL.A No. 100197 of 2020 beyond reasonable doubt that the accused has committed the act of murder, which would in turn have resulted in him being imprisoned for life, is a very serious burden which is required to be discharged.
18. In the absence of the prosecution establishing beyond reasonable doubt that it is the accused alone who could have committed the offence, this Court cannot hold the accused guilty of the offence and convict him for life. The lapses on the part of the investigation are too many. The case of the prosecution is full of loop holes and there is no connectivity on the various aspects which are required to be proven, the evidence adduced is not tightly knitted to stablish the guilt of the accused. Though suspicion is present to show the involvement of accused No.1 and presumption could be raised, we are of the considered opinion that, when the case against the accused is not established beyond
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CRL.A No. 100449 of 2019 C/W CRL.A No. 100197 of 2020 reasonable doubt, the benefit of doubt has to be given to the accused No.1.
19. Criminal Appeal No.100197/2020 19.1. There is an appeal filed by the State challenging the acquittal of accused No.2 seeking for setting aside the said acquittal for conviction of accused No.2. 19.2. We have dealt with the aspect of conviction of accused No.1 and involvement of accused No.1 while dealing with Criminal Appeal No.100449/2019 where we have come to the conclusion that the prosecution has failed to establish its case.
19.3. In such a background, when the case against accused No.1 has not been proved, accused No.2 who is said to be an accomplice and helper of accused No.1, cannot be held to be
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CRL.A No. 100449 of 2019 C/W CRL.A No. 100197 of 2020 guilty of the offence, when accused No.1 himself is not.
20. The deceased being the only son of PW1 and PW15 and having been recently married, the deceased being the sole earning member of the family and his death having been caused, we are of the considered opinion that the necessary compensation have to be determined in terms of Section 357A of the Code of Criminal Procedure, 1973 and necessary compensation to be awarded to the victims namely, mother, father and wife of the deceased under the Victim Compensation Scheme.
21. In the above background, we pass the following:
ORDER
i) Criminal Appeal No.100449/2019 is allowed.
a) The judgment of conviction and order of sentence dated 24.09.2019 passed by the V Addl. District and Sessions
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Judge, Dharwad, sitting at Hubballi, in S.C.No.136/2015, in respect of accused No.1 is concerned, is set aside.
b) Accused No.1 is acquitted of all the offences under Sections 302 and 201 read with Section 34 of the IPC.
c) The fine amount deposited is required to be refunded to accused No.1. In the event of the deposited fine amount being disbursed to PW1 and PW15 proportionately as ordered by the trial Court, then in such an event, the District Legal Service Authority (DLSA) is directed to refund the fine amount to the accused No.1 and adjust from and out of the compensation to be awarded in terms of Sections 357 and 357A of Cr.P.C and the Victim Compensation Scheme.
d) In the event of no disbursement having made, the Court is directed to refund the amount to accused No.1 and the DLSA is directed to award compensation to PW1 and PW15 in terms of Sections 357 and 357A of the
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CRL.A No. 100449 of 2019 C/W CRL.A No. 100197 of 2020 Cr.P.C. and the Victim Compensation Scheme.
e) The accused already being on bail, no order of release is required to be made. The bail bonds stands cancelled.
ii) Criminal Appeal No.100197/2020 is dismissed.
Sd/-
JUDGE Sd/-
JUDGE gab List No.: 1 Sl No.: 41