Karnataka High Court
Prema @ Shantha vs State By Amruthahalli Police on 20 December, 2018
Bench: K.N.Phaneendra, K.Somashekar
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IN THE HIGH COURT OF KARNATAKA, BENGALURU
DATED THIS THE 20TH DAY OF DECEMBER, 2018
PRESENT
THE HON'BLE MR.JUSTICE K. N. PHANEENDRA
AND
THE HON'BLE MR.JUSTICE K. SOMASHEKAR
CRL.A. NO. 1832/2018 (C)
BETWEEN
1. PREMA @ SHANTHA
W/O BASAVARAJA
AGED ABOUT 45 YEARS
R/O TENKABAYALU POST
THEERTHAHALLI TALUK
SHIMOGA DISTRICT - 577 201
2. RAGHAVENDRA @ RAGHU
S/O SHIVAPPA
AGED ABOUT 33 YEARS
R/AT VARAMBALLI VILLAGE
JAYANAGARA POST
HOSANAGARA TALUK
SHIMOGA DISTRICT - 577 201 ... APPELLANTS
(BY SRI. K. N. JAYAPRAKASH, ADVOCATE)
AND
STATE BY AMRUTHAHALLI POLICE
BENGALURU, REP. BY STATE
PUBLIC PROSECUTOR
HIGH COURT OF KARNATAKA
BENGALURU - 560 001 ... RESPONDENT
(BY SRI. VIJAYA KUMAR MAJAGE, ADDL.SPP)
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THIS CRL.A IS FILED UNDER SECTION 374(2)
CR.P.C., PRAYING TO SET ASIDE THE IMPUGNED
JUDGMENT AND ORDER DATED 03.10.2018 PASSED BY
THE LXIV ADDITIONAL CITY CIVIL AND SESSIONS
JUDGE, BENGALURU IN S.C.NO.852/2012 - CONVICTING
THE APPELLANT/ACCUSED NOs.1 AND 2 FOR THE
OFFENCE PUNISHABLE UNDER SECTION 302 AND 201
READ WITH 34 OF IPC.
THIS CRL.A COMING ON FOR HEARING THIS DAY,
K.N.PHANEENDRA J., DELIVERED THE FOLLOWING:
JUDGMENT
The appellants are arraigned as Accused Nos. 1 & 2 respectively before the LXIV Addl. City Civil and Sessions Judge (CCH-65) at Bengaluru (for short, 'trial Court') in SC No.852/2012. The learned Sessions Judge has convicted the appellants for the offences punishable under Sections 302 and 201 of IPC and sentenced both of them to undergo imprisonment for life and to pay fine of Rs.10,000/- each, with default sentence of imprisonment for six months for the offence punishable under Section 302 of IPC and also sentenced them to undergo imprisonment for three years and to pay fine of Rs.5,000/- each, with default sentence, for the offence punishable under Section 201 of IPC.
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2. We have heard the arguments of the learned counsel for the appellants and the learned Addl. SPP for the Respondent-State, and carefully perused the entire oral and documentary evidence adduced/produced by the prosecution to bring home the guilt of the accused. We have also perused the judgment of the trial Court. On over all re-appreciation of the entire materials on record, the point that would arise for our consideration is,-
"Whether the prosecution has proved beyond reasonable doubt that, Accused Nos.1 & 2 have committed murder of a lady by name Nanjamma by hanging her, with a specific motive of sale of her land for the purpose of making wrongful gain for themselves and also in order to conceal the said act, they have surrounded the neck of the deceased with a sari to the ceiling fan to show the whole world that she has committed suicide?"
3. Sri. Jayaprakash, learned counsel for the appellants has strenuously submitted before this court that, the entire case of the prosecution revolves around circumstantial evidence; the circumstances projected by the prosecution are, the motive factors, homicidal death, 4 last seen theory and recovery of some incriminating articles at the instance of Accused Nos. 1 & 2. Learned counsel also submitted that, none of the above said circumstances have been proved to the satisfaction of the court; In spite of that, relying upon the stale evidence of PW.2 and also the non-proved recovery circumstance, the trial Court was morally convicted and sentenced the accused persons vide the impugned judgment, which is against the principles of criminal jurisprudence. He has taken us through the entire evidence on record.
4. Learned Addl. SPP appearing for the Respondent-State has submitted that, though there are some discrepancies in the evidence of the prosecution witnesses, but the evidence of PW.2 is very strong, since he was actually present on the particular date and time of the incident and he has seen the accused along with the deceased lastly in the house of the deceased and thereafter he found the deceased hanging to the ceiling fan and he informed the same to PW.1 later. Therefore, his evidence though belatedly recorded by the police, the same cannot be easily discarded. He also submitted 5 that, though there are some discrepancies with regard to MO Nos. 1 & 2 (ornaments of the deceased),which were recovered at the instance of Accused Nos. 1 & 2, but the same can be believed as the same are identified by PW.1. Non-explanation by the accused with regard to those ornaments also go to show that, they are the perpetrators. In the above circumstances, the trial Court has rightly convicted and sentenced the accused accordingly. Therefore, there is no room for this court to interfere with the impugned judgment of conviction and order of sentence passed by the trial Court.
5. Before adverting to the relevant evidence on record, we would like to have a brief cursory look at the evidence adduced by the prosecution after having a brief factual matrix of this matter.
5.1 It is the case of the prosecution that, the deceased Nanjamma was mother of PW.1-Girish and she was living along with PW.2-Vamshi in her house situated at Mariynnanapalya at Bengaluru. Accused Nos. 1 to 3 by name, Prema @ Shantha, Raghavendra @ Raghu and Sundaresha N., were all very well known to deceased 6 Nanjamma and they had link between themselves having illegal business with regard to prostitution. In this context, there were differences between Nanjamma and as well as the accused persons. Therefore, the accused persons have decided to do away with the life of the deceased. In this context, it is alleged that, on 23.05.2010 all the accused persons have visited the house of the said Nanjamma and they gave some drinks by mixing some sleeping tablets to her and after she drank the same, she fell unconscious and thereafter, she was hanged to a ceiling fan of her house. Thereafter, the accused persons have actually robed her by taking her gold ring and gold covered (artificial) neck chain. The further case of the prosecution is that, PW.2-Vamshi has informed about the death of the deceased to PW.1- Girish and PW.3-Arogya Swamy. Thereafter, PW.3- Arogya Swamy informed the same to the police as per Ex.P2 and on the basis of the said information, the police have registered a case in UDR No.18/2010 and conducted inquest proceedings. Thereafter, it appears 'B' report has been submitted on the basis of the investigation materials.
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5.2 It is the further case of the prosecution that, the police nabbed the accused persons in connection with some other case in Crime No. 78/2010 pertaining to Bellavi Police station and during interrogation of the accused persons in the said case, they have disclosed about the present case in Crime No.18/2010 and also there was recovery of MOs. 1 & 2 pertaining to this case. The police thereafter have started investigation in the matter by registering a criminal case against the accused persons. It is the case of the prosecution that, at the instance of Accused Nos. 1 & 2, MOs. 1 & 2 were recovered and they were identified by PW.1 as that of his mother ie., the deceased Nanjamma. The Police have also recorded the statement of PW.2-Vamshi, who disclosed that, on 23.05.2010 night, the accused persons were very much present in the house of the deceased and on the next day morning the deceased found hanging to the ceiling fan of her house. On the basis of the above said factual aspects, the police have investigated the matter and submitted charge sheet against Accused Nos. 1 to 3.
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5.3 As the trial Court found absolutely zero evidence sofar as Accused No.3 is concerned, it acquitted him of the alleged offences. On the other hand, on the basis of the materials available on record, the trial Court has recorded judgment of conviction against the appellants herein.
5.4. PW.1-Girish is no other than the son of the deceased; PW.2-Vamshi, is the grandson of the deceased; PW.3-Arogya Swamy is the owner of the house in which the deceased was living and PW.4- Kumaraswamy is also another son of the deceased; PW.5-Nanjappa is the resident of the same village where the deceased Nanjamma was residing and he identified Accused No.1 as the person, who was often visiting the house of the deceased; PW.6-Nagaraja P., is a panchwitness to Exs. P3 and P4, under which MOs. 1 & 2 have been recovered at the instance of Accused Nos. 1 & 2; PW.7-Loorda Mary is a panchwitness to inquest panchanama-Ex.P5. She has not supported the case of the prosecution; PW.8- Dr. B.M.Nagaraja, who conducted autopsy on the dead body of the deceased and issued 9 post-mortem examination report as per Ex.P6 and also sent his opinion to the police as per Ex.P7; PW.9- Hemanth Kumar is a pawn broker, who has partially supported the case of the prosecution with regard to recovery of some incriminating articles ie., one gold ring at the instance of Accused No.1; PW.10-Ashok, Police Inspector, has partly investigated the matter and arrested the accused and he has also earlier registered a case as per Ex.P8 (Crime No.93/2011) ; PW.11-.O.B. Kalleshappa has also partly investigated the matter, who recorded the voluntary statement of Accused No.1; PW.12-Rathnakarashetty is the Investigating Officer, who completed the investigation and laid the charge sheet against the accused persons; PW.13-K. Veeranna has submitted that, on the basis of UDR No.18/2010, he had completed the investigation and submitted 'B' report to the court, which was accepted by the jurisdictional court; PW.14-G. Siddaraju is the Circle Inspector of Police, who has spoken about the arrest of Accused Nos. 1 & 2 on 17.04.2011 and recovery of incriminating articles under Ex.P3 -Seizure Panchanama.
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6. As rightly argued by the learned counsel, the entire case of the prosecution revolves around four important circumstances, viz.,-
i) Motive
ii) Homicidal death of the deceased
iii) Last seen of the accused and the deceased
together
iv) Recovery of incriminating articles at the instance of
the accused persons and connection of those articles with the crime.
I. Motive:
We would like to discuss the relevant evidence to connect this particular circumstance. We have carefully perused the entire evidence on record. We have noticed from the records that, except the Investigating Officer, nobody has spoken about the motive factor. It is the case of the prosecution that, Accused Nos.1 & 2 were often visiting the house of the deceased and they were doing the prostitution business by bringing some girls to the house of the deceased and she was assisting Accused Nos. 1 & 2 in this regard. But it is not even suggested to any of the witnesses in the course of cross- examination or elicited in the examination chief by the 11 prosecution itself. On the guise of this particular motive, it is alleged that, there was some differences between the accused and the deceased. On careful perusal of the evidence of PW.1 and PW.3, in fact the defense has suggested the same that the deceased was doing some prostitution business in her house for the purpose of her livelihood. This aspect even denied in the course of cross-examination. There is absolutely no evidence sofar as this motive factor is concerned. Hence, we are of the opinion that the prosecution has not proved this particular aspect.
II. Homicidal death of the deceased:
i) It is the case of the prosecution that, at the earliest point of time it was disclosed to the police by PW.3-Arogya Swamy that, the deceased died due to hanging. On the basis of which a case has been registered in UDR No.18/2010 and thereafter the case has been concluded considering death as suicide.
ii) Now let us examine this particular aspect with reference to the evidence of PW.1 and PW.3 and as well as PW.8-Dr. B.M. Nagaraja. PW.1 has deposed 12 before the court that PW.2 is his son and PW.2 has been residing along with the deceased at Mariyannana Palya in Bengaluru, in the house of PW.3-Arogya Swamy, on rent.
It is stated in the evidence of PW.3 that, on 24.05.2010, PW.2-Vamshi had come to this witness and told him that deceased has committed suicide in her house. In fact, PW.3 enquired with PW.2 and in turn he told that a lady and two persons had come to the house of the deceased. But, he do not know anything as to what happened later. Immediately, he informed Amruthahalli Police Station about the same and the Police came and took the dead body to Ambedkar Hospital and thereafter, PW.3 went to the hospital and identified the dead body of the deceased and he gave statement as per Ex.P1. In Ex.P1 also, there is no information given with regard to the information given to him by PW.2 with regard to the presence of one lady and two persons on the date of the alleged incident. PW.2 has also stated that, he can identify the ornaments of his mother. We can say that, at that time itself PW.2 could have given the information with regard to the ornaments worn by his mother, but the same has not been disclosed by him in Ex.P1 or to 13 PW.3. Therefore, at the initial stages, he was also believed that, the death of the deceased was by hanging. PW.3-Arogya Swamy has also stated that PW.2-Vamshi had been to the house of this witness on 25.4.2010 at about 7.00 a.m. in the morning and told that, his grand mother has committed suicide by hanging herself and, thereafter PW.3 went to the Police Station and gave his report as per Ex.P2, on which basis the said UDR case has been registered. Here also this witness never said that some other persons were also present in the house on the previous night and there was a hand of some third person in the death of the deceased.
iii) In the above context, the evidence of the Doctor (PW.8) discloses that, he conducted autopsy on the dead body of the deceased. He has stated that, the death was due to hanging and he also stated that there were absolutely no injuries on the dead body of the deceased at any place and all other parts of the body were found intact and even on dissection of the body, the internal organs of the body were found intact. Therefore, he gave his opinion as per Ex.P6- P.M Report. 14 He also clearly deposed that, the death was due to asphyxia, as a result of hanging. The Doctor has never suspected that the death of the deceased was other than hanging. Though the police have requested the doctor, after nabbing the accused particularly on 27.05.2011, they made a request through a letter asking the Doctor to verify whether it was homicidal death or suicidal death. He has given his information that, he cannot specifically say whether it is homicidal or suicidal death. But in the course of evidence before the court he has stated that, if a person is administered with any sedative or if the person is unconscious or partially unconscious in such an eventuality, anybody can hang that person. The stomach portion of the deceased has not been sent to FSL for examination to find-out whether there was administration of any sedative or sleeping tablets to the deceased so as to make her unconscious for the purpose of hanging. These materials are conspicuously absent in the evidence of the Doctor. Therefore, on looking to the above said important aspects, primarily the prosecution was of the opinion that, the death is due to hanging, therefore, the aspect 15 whether it is homicidal death or not, has to be tested from other materials on record and the circumstance of last seen of the accused and deceased together and the recovery also have to be tested as to whether it connects the accused persons with the death of the deceased. Therefore, in our opinion, the prosecution has not established the aspect of homicidal death and also the aspect of last seen of accused with deceased together and also recovery of any incriminating articles, beyond reasonable doubt. Hence, the prosecution has failed to establish the above aspects.
III. Last seen circumstance
i) The next strong circumstance relied upon by the prosecution is the last seen theory. The prosecution has banked upon its case on the evidence of PW.2. Whether PW.2 can be believed in this particular case is the question. Of course, statement of PW.2 under Section 161 of Cr.P.C. has been recorded by the police on 20.05.2011, that was long after the incident being taken place and at that time, PW.2 has stated that, he had been residing with the deceased Nanjamma at 16 Bengaluru along with sister at Mariyannana Palya at Bengaluru. He has stated that on 25.03.2010 all the Accused Nos. 1 to 3 had come to their house and this witness and his sister were watching TV and the deceased told them to go and sleep. Later in the night, this witness had observed that, his grand mother and accused persons were drinking juice. In spite of that, this witness went and slept once again and on the next morning at 7.00 a.m. he saw the dead body of his grandmother which was hanging to the ceiling fan. Immediately he went to the house of PW3-Arogya Swamy and informed him about the said incident and thereafter, the police came to the house and the police got down the dead body of the deceased from hanging posture. About one year later, again he had been to the Police Station and identified Accused Nos.1 & 2 in the Police Station, as the persons who had visited the house of the deceased on the previous night of death of the deceased.
ii) In the course of cross-examination, it is suggested that this witness had not at all seen anything, 17 but he has given false evidence before the court and he has not seen the accused persons at any point of time nor he has seen the ornaments of his grand mother - Nanjamma. The evidence of this witness clearly goes to show that at the earliest point of time, he has not disclosed this factual aspect to PW.3-Arogya Swamy and PW.1-Girish, who is no other than his father.
iii) Now let us consider the evidence of PW.2 compared to the evidence of PW.1 & PW.3. PW.1 has stated that on 24.05.2010, after receiving information, about the suicidal death of his mother, he came to Aimangala Police Station and he came to know from PW.2 that some lady and as well as two persons had come to their house on the date of the incident. Thereafter, he went to Ambedkar Hospital and saw the dead body of his mother and gave information to the Police as per Ex.P1. If at all this PW.2 had intimated about the presence of a lady and as well as two other persons in the house of the deceased on that particular day, PW.1 is the last person to suppress that particular factual aspect in not disclosing the same to the Police at 18 the earliest point of time. Ex.P1, as we have already referred to, it is the statement given by this witness before the police, wherein that particular statement, he never stated about the information given by PW.2 to him at any point of time. Even otherwise, the police who have visited the spot, have also not examined this child witness (minor-11 yrs.) at the relevant point of time, who was said to be with the deceased at the time of incident. Therefore, it creates a serious doubt whether this witness was actually present in the house of the deceased. Another doubt is, whether Accused Nos.1 to 3 have actually visited the house of the deceased on that particular date.
iv) PW.3 is also another witness, who connects this particular circumstance. PW.3 is no other than the owner of the house in which the deceased and PW.2 were living. It is deposed by PW.3 that, on 24.05.2010 at about 7.00 a.m. PW.2-Vamshi, who is the grandson of the deceased Nanjamma, went to him and told that his grandmother had committed suicide by hanging. But this witness never stated that PW.2 has informed anything 19 more than that particularly, the presence of any persons in their house on the date of such incident. But he says that about one year later, the police had called this man and shown Accused Nos. 1 & 2 in the Police Station and he identified them since the Accused Nos. 1 & 2 were often visiting the house of deceased Nanjamma. But, he never stated that, he has seen them at any point of time prior to the death of the deceased in her house.
v) In the course of cross-examination also he has categorically admitted that, after PW.2 told him n the next day pf the incident that, after he went for sleeping on that particular night, the deceased has committed suicide and only the said information was given to this witness and nothing else. Therefore, this witness also never disclosed anything about the presence of any of the persons in the house of the deceased while giving information to the police as per Ex.P2 and on that basis alone, the police had registered a case in UDR No.18/2010.
vi) Therefore, the two documents viz., Exs. P1 & P2 coupled with the evidence of PWs. 1 to 3, would 20 clearly disclose that, PW.2 never informed to this witness at the earliest point of time that one Aunty and two male persons had been to the house of the deceased Nanjamma and they were all sitting and talking together and they all together consuming some juice etc. For over a period of one year this particular factum has not been disclosed to anybody by PW.2, till the police registering a case against the accused on the basis of recovery of some ornaments in connection with some other case. Therefore, in our opinion, last seen theory projected by the prosecution is very stale and as such, it is very difficult to believe as to why this witness (PW.1) having come to know about a lady and two male persons had visited the house of the deceased Nanjamma on the date of the incident and as to why he has not disclosed the same to the police. If it was disclosed on that particular point of time itself, the police would have registered a case for some other offences and investigated the matter. Therefore, the evidence of PW.2, in our opinion, the strong circumstance of last seen of accused and deceased together prior to the incident in question, as relied upon by the prosecution, is not credit worthy for 21 acceptance and the same is stale one. Hence, we are of the opinion that the prosecution has not proved the said circumstance, beyond reasonable doubt. IV. Recovery
i) The last circumstance is recovery of MOs. 1 & 2 at the instance of Accused Nos. 1 & 2. The prosecution has relied upon the evidence of the Investigating Officer as well as PW.9- Hemanthkumar and PW.6- Nagaraja, in this context. Of course, the Investigating Officers viz, PW.11 and PW.14 have deposed so far as this aspect is concerned. PW.11-O.B. Kalleshappa has stated that on 17.04.2011 at about 5.30 p.m., CW.9 has produced the accused persons before this witness and he has arrested them and recorded the voluntary statement of Accused No.1 as per Ex.P10. But, he not conducted any recovery proceedings except recovery of a vehicle- Maruthi Omni bearing Registration No.KA.04.MA.5496. But, it is not relevant sofar as that recovery is concerned as the said vehicle is not connected with this particular case. In the course of cross-examination, he has stated that, he has not recorded the voluntary statement of Accused Nos. 1 22 & 2 in connection with this case. It shows that, he is the only person who arrested the accused persons after they being produced before this witness.
ii) PW.14-G.Siddaraju, PSI, has deposed before the court that, the Circle Inspector of police has authorized him to conduct further investigation in connection with this case. This witness has stated that, on 17.04.2011 he has taken the custody of Accused Nos. 1 & 2 at about 10.00 am. and produced them before the Circle Inspector of police at 5.30 p.m. and in turn, the Circle Inspector of Police has authorized him to conduct further investigation. He further deposed that, he has perused the voluntary statement of Accused Nos. 1 & 2 and on the basis of which he collected two panchwitnesses viz., PW.6-Nagaraj and CW.13- Lokesh. PW.14 has further deposed that, Accused No.1 took the police personnel and panchwitnesses to her house, which is a rented house situated at Vinoba Nagar in Shivamogga City and she has produced one Umagold chain (MO.2) and also one slip pertaining to pledging of one Gold Ring and in turn, he has recovered the same 23 under Ex.P3. He has also stated that, Accused No.1 took the police and panchwitnesses to a Pawn Broker/Jewellary shop situated at Gandhi Nagar in Shivamogga City and after showing that slip to the owner of the said shop, she (A1) asked the owner of the shop to produce one Gold Ring and accordingly, the owner of the said shop (PW.9-Hemanth Kumar) has produced a ring (MO.1) before the police and the police have recovered the same under a Mahazar (Ex.P4). It is not stated whether Accused Nos. 1 & 2 were present at the time of this recovery. But actually, it is stated that the ring was recovered at the instance of Accused No.1.
iii) The above facts disclose that, Accused No.1 is the person from whom these two items have been recovered and in fact PW.14 has not stated anything about Accused No.2, from whom any articles have been recovered. PW.14 also never stated in examination chief about the presence of Accused No.2 at the time of recovery of MOs.1 & 2.
iv) The above said evidence of the Investigating Officer is not fully corroborated with the evidence of PWs. 24 6 & 9. PW.6-Nagaraja P in fact, is a panchwitness. He has deposed before the court that, Ex.P3 bears his signature. It is stated that the police have conducted mahazar in the house of Accused No.1 and recovered a rold-gold chain between 11.30 am and 12.30 pm. And thereafter, the police took this witness to a shop at Gandhi Nagar and recovered one gold ring under Mahazar (Ex.P4). At that time, CW.13-Lokesh was also present and Accused Nos. 1 & 2 were also present. The said rold-gld chain and gold ring were already marked as MOs. 1 & 2 and he identified them. This witness has not been cross-examined and though he was not cross- examined, the evidence of this witness is distorted. He never stated that both Accused Nos. 1 & 2 or only Accused No.1 had took them to her (A1's) house and she produced any chit as stated by PW.14 and after collection of the said chit, the police had been to Gandhi Nagar to a jewellary shop. This witness never stated that Accused No.1 has led the police to her house and produced Uma- gold chain and he also never stated that it is Accused No.1, who led the police to the said jewellary shop and there, the police have recovered one gold ring. The 25 facts as to how the Police could know about the house of the accused and the said jewellary shop was not explained in the evidence of this witness. Peculiarly enough, PW.14 himself has not stated about the presence of Accused No.2 at that particular point of time, but this witness say about the same. However, the recovery as stated by PW.14 is not established from the evidence of this witness.
v) Another witness PW.9-Hemanth Kumar is the owner of the jewellary shop situated at Gandhi Bazaar in Shivamogga City by name M/s. Shah Gevarchan Peraji. Very peculiarly it is elicited in the examination chief by the prosecution that he knew Accused No.1 and in the month of March 2012 Accused No.1 had been to the shop of this person and pledged one gold ring and took a sum of Rs.4,000/-. But he says that he cannot identify the said ring. Learned Addl. SPP has not made any effort to show the alleged ring to PW.9 and allow him to recall his memory to identify the said ring. That has not been done. Therefore, there is no identification of that particular ring to establish that actually the said ring 26 (MO.1) has been recovered from the shop of this witness. Particularly, here one point should be noted that, according to PW.4, they have recovered one chit pertaining to the said jewellary shop and on the basis of that chit, only this witness (PW.9) identified the said ring and produced the same before the Police. The said aspect is conspicuously absent in the evidence of PW.9.
vi) An astonishing factor elicited in the cross examination of PW.14 at Para No.8 is that, when the Police have recovered a chit at the instance of Accused No.1, the Police have observed that there was no name of Accused No.1 in the said chit and he further admitted that he has not examined the name of the person as to whose name finds a place in that particular chit. The Investigating Officer has in fact suppressed the production of the said chit before the court. There is absolutely no explanation offered by the Investigating Officer as to why they have not produced the said chit, the said chit belongs to whom and such person's name, and whose name was there in the chit, as to how on the basis of the said chit the ring was identified to be 27 belonged to the deceased, and was recovered at the instance of Accused No.1.
vii) Of course, PW.1-Girisha has identified MOs. 1 & 2 as the articles belonged to his mother. None of the other witnesses have identified the same as that ring belonged to the deceased. Very peculiarly enough, for a period of one year, neither PW.1 nor PW.2 have disclosed the loss of any gold articles which were on the body of the deceased. At least after the incident on the very next day when PW.1 saw the dead body, he would have come to know that there was a gold ring and a chain which worn by the deceased, were missing and at least within a reasonable time, he would have informed the Police about the loss of those articles. It is also seen from the judgment of the trial Court that MO.1 (gold ring) was ordered to be confiscated to the State, particularly when it was not claimed by PW.1 or PW.2. MO.2 was also ordered to be destroyed as it is worthless after lapse of the appeal period. It also creates a serious doubt that, when the said Golden Ring (MO.1) belonged to the deceased, why PW.1 has not made any efforts to 28 take that gold ring to his interim custody or to claim that article at the time of disposal of the case. Therefore, these lapses and defects in the prosecution case have not been properly explained. Perhaps, the Police after nabbing Accused Nos. 1 & 2 in this case and only on the basis of the voluntary statement of Accused No.1, they want to implicate the accused persons in the crime, but except voluntary statement no other connecting materials are available to the Police.
viii) In the above facts and circumstances of the case, the so-called recovery as projected by the prosecution is also not explained and/or not established beyond reasonable doubt.
7. Therefore, looking to the above said facts and circumstances, in our opinion, the trial Court has misdirected itself in convicting and sentencing the accused persons. Perhaps, in the evidence of the Investigating Officer, it is elicited that the accused persons were involved in 13 murder cases and perhaps, the trial Court has persuaded itself morally in order to draw an inference to convict the accused. But, we are of 29 the opinion that the judgment of conviction and order of sentence is not based on any legal evidence. Hence, we are inclined to set aside the impugned judgment and sentence passed by the trial Court and proceed to pass the following:-
ORDER The appeal is allowed. Consequently, the Judgment of Conviction and Order of Sentence dated 03.10.2018 passed by the LXIV Additional City Civil and Sessions Judge (CCH-
65) at Bengaluru, in S.C. No.852/2012, for the offences punishable under Sections 302, 201 r/w. 34 of IPC, is hereby set aside.
The appellant (A1) - Prema @ Shantha and the appellant (A2)-Raghavendra @ Raghu are hereby acquitted of the above said offences. Therefore, they shall be set free, if they are not required in any other case.
The order with regard to disposal of the property is not disturbed.
If any fine amount is already deposited by the appellants/accused (A1 and A2) in connection with this case, the same is hereby ordered to be refunded to them, on proper acknowledgement and identification.
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The Registry is hereby directed to communicate this order to the concerned Jail Authorities forthwith, for release of the said appellants/accused forthwith, if they are not required in any other case.
Sd/-
JUDGE Sd/-
JUDGE KGR*