Karnataka High Court
Smt.Savitha Shrishail Ganager @ Jyoti vs The State Of Karnataka on 6 July, 2022
Author: M.G.S. Kamal
Bench: M.G.S. Kamal
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CRL.A No. 100066 of 2020
C/W CRL.A No. 100004 of 2020
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 6TH DAY OF JULY, 2022
PRESENT
THE HON'BLE MRS JUSTICE K.S.MUDAGAL
AND
THE HON'BLE MR JUSTICE M.G.S. KAMAL
CRIMINAL APPEAL NO. 100066 OF 2020 (C-)
C/W
CRIMINAL APPEAL NO. 100004 OF 2020
CRIMINAL APPEAL NO. 100066 OF 2020
BETWEEN:
1. HANUMANTAGOUDA S/O.RUDRAGOUDA
BASANAGOUDAR
AGE - 28 YEARS,
OCC - LABOURER
R/O - MAVINTOP,
HIREKERUR TQ,
HAVERI DIST.
...APPELLANT
(BY SRI. K.L. PATIL, ADVOCATE)
AND:
1. THE STATE OF KARNATAKA
REPRESENTED BY STATE PUBLIC PROSECUTOR
HIGH COURT BUILDINGS,
HIGH COURT OF KARNATAKA
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CRL.A No. 100066 of 2020
C/W CRL.A No. 100004 of 2020
BENCH AT DHARWAD,
THROUGH RANEBENNUR RURAL POLICE STATION.
...RESPONDENT
(BY SRI.V.M.BANAKAR, ASPP)
THIS CRIMINAL APPEAL IS FILED U/S 374 (2) OF CR.P.C.,
PRAYING TO CALL FOR THE RECORDS PASSED BY THE II
ADDL. DISTRICT AND SESSIONS JUDGE, HAVERI (SITTING AT
RANEBENNUR) IN S.C.NO.72/2016, PERUSE THE SAME,
ALLOW THIS APPEAL, SET ASIDE THE JUDGMENT AND
ORDER OF CONVICTION DATED 11/12/2019 AND SENTENCE
DATED 13/12/2019 U/S 302 AND 201 R/W SECTION 34 OF IPC
ACQUIT THE APPELLANT AND SET THE APPELLANT /
ACCUSED NO.1 AT LIBERTY.
CRIMINAL APPEAL NO. 100004 OF 2020
BETWEEN:
1. SMT.SAVITHA SHRISHAIL GANAGER @ JYOTI
AGED ABOUT: 29 YEARS,
OCC: HOUSEHOLD,
R/O: MAVINTOP,
TQ: HIREKERUR,
DIST: HAVERI.
...APPELLANT
(BY SRI. T.M.NADAF, ADVOCATE)
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CRL.A No. 100066 of 2020
C/W CRL.A No. 100004 of 2020
AND:
1. THE STATE OF KARNATAKA
BY SPI RANEBENNUR RURAL POLICE STATION,
REPT. BY ADDL. STATE PUBLIC PROSECUTOR,
HIGH COURT OF KARNATAKA,
DHARWAD BENCH.
...RESPONDENT
(BY SRI.V.M.BANAKAR, ASPP)
THIS CRIMINAL APPEAL IS FILED U/S 374 (2) OF CR.P.C.,
PRAYING TO CALL FOR THE RECORDS IN S.C.NO.72/2016 ON
THE FILE OF THE II ADDL. DISTRICT AND SESSIONS JUDGE,
HAVERI (SITTING AT RANEBENNUR) AND TO SET ASIDE THE
JUDGMENT OF CONVICTION AND ORDER OF SENTENCE
DATED JUDGMENT OF CONVICTION AND ORDER OF
SENTENCE DATED 11.12.2019 AND 13.12.2019, PASSED BY
THE II ADDL. DISTRICT AND SESSIONS JUDGE, AT HAVERI
(SITTING AT RANEBENNUR), IN S.C. NO.72/2016, CONVICTING
THE APPELLANT FOR THE ALLEGED OFFENCE PUNISHABLE
UNDER SECTION 109 R/W SECTION 34 IPC ON 11.12.2019
AND SENTENCED HER TO UNDERGO LIFE IMPRISONMENT
AND TO PAY FINE OF RS.3,000/- IN DEFAULT TO UNDERGO
R.I. TO 2 YEARS, ON 13.12.2019, FOR THE OFFENCE
PUNISHABLE UNDER SECTION 109 IPC.
THESE APPEALS COMING ON FOR FINAL HEARING
THIS DAY, K.S.MUDAGAL J., DELIVERED THE FOLLOWING:
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CRL.A No. 100066 of 2020
C/W CRL.A No. 100004 of 2020
JUDGMENT
Aggrieved by the order of conviction and sentence passed against them, accused Nos.1 and 2 in S.C.No.72/2016 on the file of the II Addl. District and Sessions Judge, Haveri, sitting at Ranebennur, have preferred the above appeals.
The appellants were prosecuted in the said case for the offences punishable under Sections 302, 201 and 109 read with Section 34 of IPC on the basis of the charge sheet filed by Halagarli Rural police, in Crime No.86/2016 of their police station. The appellant in Crl.A.No.100004/2020 was accused No.2 and appellant in Crl.A.No.100066/2020 was accused No.1 in SC No.72/2016. For the purpose of convenience, the parties will be referred to henceforth according to their ranks before the trial Court.
2. Accused No.2 is the wife, PWs.1 and 5 are the brothers of deceased Shrishail. PW12 is the widowed sister-in- law of deceased Shrishail. Shrishail and accused No.2 begot a daughter out of their wedlock. On 19.5.2016 in the morning -5- CRL.A No. 100066 of 2020 C/W CRL.A No. 100004 of 2020 hours, Shrishail was found dead near Basaveshwara temple of Dandagihalli village. Shrishail and his motorbike were lying under the neem tree situated by the side of Nesvi road, near Dandagihalli village, Basaveshwara temple.
3. PW1 filed complaint as per Ex.P1 alleging that somebody after committing the murder of Shrishail during the intervening night of 18/19.5.2016 by some weapons have laid the dead body and the motorbike at the scene of offence to project the same as motorcycle accident. Therefore, he sought investigation and action in the matter. PW13, the PSI of Ranebennur police station on receiving the complaint registered the FIR as per Ex.P76 in Crime No.86/2016 against the unknown persons. Then he handed over further investigation to PW16-CPI of Renebennur rural circle. During the course of investigation, PW16 arrested accused Nos.1 and 2 and on conducting the investigation, filed the charge sheet against them for the offences punishable under Sections 302, 201 and 109 r/w Section 34 of IPC.
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4. The case of the prosecution in brief is as follows:-
That Shrishail was doing scrap papers business by traveling to various places. Accused No.1 was also doing the same business. Therefore, he used to visit the house of Shrishail. During such visits, accused Nos.1 and 2 developed illicit intimacy with each other. Accused No.1 had borrowed Rs.55,000/- from Shrishail. Shrishail was pestering him to return the said amount. Accused No.1 was fed up with that. In addition to that, accused No.2 was abetting him to eliminate Shrishail and possess her. On 18.05.2016, accused No.1 inducing Shrishail of repayment of the money, took him to Davangere. Accused No.1 without returning the money took Shrishail to Haveri. Both of them went to Nimba motors and obtained quotations for purchasing new motorcycle. At that time, on seeing the money in the bag of accused No.1, Shrishail started pestering him to pay the money. Accused No.1 promised to pay the money took him to Ranebennur. Both of them consumed beer and egg rice in Swagat Bar in Ranebennur. Then they went to Siddeshwara temple and slept -7- CRL.A No. 100066 of 2020 C/W CRL.A No. 100004 of 2020 there. There also Shrishail started pestering accused No.1 for paying the money. On 19.5.2016 at 5.00 am, accused No.1 woke up Shrishail and when they were proceeding near Basaveshwara temple, Dandagihalli, accused No.1 assaulted Shrishail with MO22-the wooden repiece on his head and committed his murder. To screen the evidence of offence, accused No.1 dragged the dead body under the neem tree and placed the motorcycle on the dead body, then escaped from there. During the course of investigation, on the basis of the call details, I.O. arrested accused No.1. His interrogation revealed the involvement of himself and accused No.2 in the crime. At the instance of accused No.1, his blood stained clothes and MO22 were recovered. The investigation showed the motive for them to murder and that the accused and the deceased were last seen together. The investigation reveals the involvement of both the accused in the crime. Therefore, charge sheet was filed.
5. The trial Court framed the charges against accused for the offences punishable under Sections 302, 201 and 109 r/w Section 34 of IPC. The accused denied the -8- CRL.A No. 100066 of 2020 C/W CRL.A No. 100004 of 2020 charges and claimed the trial. Therefore, the trial was conducted. In support of the case of the prosecution, PWs.1 to 16 were examined, Exs.P1 to 84 and MOs.1 to 23 were marked. The accused after his examination under Section 313 Cr.P.C., did not lead any evidence. However, Ex.D1-the Hematology report which was part of charge sheet was marked as Ex.D1 by confronting the same to PW14 the Doctor who conducted the PM examination and PW16-the I.O.
6. The trial Court on hearing both the parties, by the impugned judgment and order convicted accused No.1 for the offences punishable under Sections 302 and 201 r/w 34 of IPC and accused No.2 for the offence punishable under Section 109 of IPC. Further, the trial Court sentenced accused Nos.1 and 2 as follows:-
i) Accused No.1 was sentenced to undergo R.I. for the period of seven years and fine of Rs.5,000/-
for the offence punishable under Section 201 r/w 34 of IPC and in default of payment of fine, to undergo R.I. for one year.
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ii) Accused No.1 was sentenced to undergo life imprisonment and fine of Rs.3,00,000/- for the offence punishable under Section 302 of IPC and in default of payment of fine, to undergo R.I. for five years.
iii) Accused No.2 was sentenced to undergo life imprisonment and fine of Rs.3,000/- for the offence punishable under Section 109 of IPC and in default of payment of fine, to undergo R.I. for two years.
7. The trial Court held that the motive circumstance, i.e. the illicit relationship between accused Nos.1 and 2 and financial transaction were proved by the evidence of PWs.1, 5 and 12 and from call details records-Exs.P82 to 84 and Ex.P81-the voluntary statement of accused No.1. The trial Court further held that the last scene circumstance was proved by the evidence of PWs.6 to 8, 10 and 11. The circumstance of recovery of weapon of offence and the presence of the accused was proved. The trial Court further held that medical evidence and FSL evidence supported the charges, thus, proceeded to convict and sentence the accused as aforesaid.
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CRL.A No. 100066 of 2020 C/W CRL.A No. 100004 of 2020 Submission of Sri K.L.Patil and Sri. T.M. Nadaf, learned counsel for the appellants:
8. PW6 who is the alleged sole eye witness and PW7-the res gestea witness did not support the prosecution theory. The evidence of PWs.1, 5 and 12 was not cogent and consistent regarding motive circumstance. PWs.6 to 8, 10 and 11-the witnesses to the last seen circumstance did not support the prosecution version. The recovery of incriminating articles on the basis of the alleged voluntary statement of accused No.1 was not cogent and consistent. The trial Court committed grave error in convicting accused No.2 on the basis of the alleged confession of accused No.1 which is inadmissible. Further Exs.P83 and 84 the alleged call details records were not proved by producing the certificate as required under Section 65B of the Evidence Act. The trial Court committed grave error in relying on those documents to hold that illicit relationship between accused Nos.1 and 2 was proved. According the FSL report-Ex.P79, the blood group found on the weapon of offence, clothes of the accused and deceased belong to 'B' group whereas Ex.D1 says that blood group of the deceased
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CRL.A No. 100066 of 2020 C/W CRL.A No. 100004 of 2020 was 'A positive'. Thus, there were material contradictions in the prosecution evidence demolishing the prosecution case itself. The trial Court relied on the judgment of Shafhi Mohammad Vs. Sate of Himachal Pradesh1 to hold that Exs.P83 and P84 were admissible even without the certificate under Section 65B. On a reference the judgment in Shafhi Mohammad's case was over ruled by the Hon'ble Supreme Court in Arjun Panditrao Khotkar Vs. Kailash Kushanrao Gorantyal and Others. Therefore, they seek the reversal of the impugned judgment and order of conviction and sentence.
9. In support of their submissions, they rely on the following judgments:
i) Arjun Panditrao Khotkar Vs. Kailash
Kushanrao Gorantyal and Others2
ii) Surinder Kumar Khanna Vs. Intelligence
Officer, Directorate of Revenue Intelligence3 Submission of Sri. V.M.Banakar, learned ASPP 1 (2018) 2 SCC 801 2 AIR 2020 SC 4908 3 (20189) 8 SCC 271
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CRL.A No. 100066 of 2020 C/W CRL.A No. 100004 of 2020
10. The evidence of PWs.1, 5, 12 was cogent and consistent with regard to the motive circumstance. Similarly, the evidence of PWs.6 to 8, 10 and 11 showed that accused No.1 and victim were last seen together and then the victim was found dead. The medical evidence shows that death was homicidal one. Therefore, accused No.1 had to explain how the death occurred. The recovery of the incriminating materials under Exs.P50 and P51 was satisfactorily proved. Ex.D1 was probably related to another person and not the victim. Even in the absence of the call details Exs.P83 and P84, there was sufficient material to convict the accused. Therefore, the impugned order of conviction and sentence does not warrant interference of this Court.
11. Having regard to the rival submissions and considering the materials on record, the questions that arise for consideration are:-
i) Whether the trial Court was justified in holding that the charges against accused No.1 for the offences punishable under Sections 302 and 201 r/w Section 34 of IPC and the charge against
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CRL.A No. 100066 of 2020 C/W CRL.A No. 100004 of 2020
accused No.2 for the offence punishable under Section 109 r/w Section 34 of IPC were proved beyond reasonable doubt?
ii) Whether the impugned judgment, order of conviction and sentence is sustainable in law?
Analysis
12. Some of the admitted facts of the case are as follows:-
Accused No.2 is the wife, PWs.1 and 5 are the brothers, PW12 is the sister-in-law of the deceased Shrishail. On 19.5.2016 at 5.00 am, the dead body of Shrishail was found under a neem tree by the side of Nesvi Road, near Basaveshwar Temple, Dandigehalli village. On the body his motorcycle No.KA-27-L2164 was lying.
13. According to the prosecution, accused No.1 and Shrishail were doing scrap paper business, accused No.1 was frequenting the house of Shrishail. During such visits, accused No.1 and accused No.2 developed illicit relationship. Shrishail had lent Rs.55,000/- to accused No.1. It is the further case of
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CRL.A No. 100066 of 2020 C/W CRL.A No. 100004 of 2020 the prosecution that Shrishail started to pester accused No.1 to repay the loan amount. Accused No.2 abetted accused No.1 to eliminate Shrishail to continue the relationship of herself and accused No.1. Therefore, to get rid of demand of Rs.55,000/- and Shrishail, accused No.1 took Shrishail near the scene of offence and committed his murder by assaulting him with MO2- the wooden repeice. To screen the evidence of offence, accused No.1 placed the dead body under the neem tree laying the motorcycle on that to project that the incident was motor accident.
14. The case of the prosecution rests on:-
i) The evidence of eye witness -PW7
ii) The circumstance of motive
iii) The victim and accused No.1 were last seen
together and thereafter victim was found dead
iv) The circumstance of recovery of MOs.20 to 23; The blood stained clothes of the accused, the weapon of offence and the mobile phone of the accused under the Mahazar- Ex.P51;
v) Medical evidence and the evidence of FSL expert;
vi) The evidence of official witnesses i.e. PW13-PSI who registered the FIR and PW16 the I.O.
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CRL.A No. 100066 of 2020 C/W CRL.A No. 100004 of 2020 Reg: evidence of eye witness
15. According to the prosecution on 19.5.2016 accused No.1 took the victim near Basaveshwara temple, to commit murder of the victim, pulled a wooden repiece which was kept in the chariot shelter of the temple and assaulted the victim near temple. It is the further case of the prosecution that PW7 was a celibate living in the said temple and PW6 was the Archaka of the said temple. It is the case of the prosecution that PW7 witnessed accused No.1 quarrelling with the victim and assaulting him. On seeing that he became panic and informed PW6 to come to the temple immediately. Then PW6 came there and found the dead body of Shrishail and accused No.1 moving away with the repeice.
16. PW7 though admitted that he was living in Basaveswhara temple, he denied witnessing the incident. He deposed that he does not know Shrishail, but about 2 years back at 6.00 am, he heard people talking that dead body is found near neem tree, went there and saw the dead body. Though the Public Prosecutor cross examined him on treating
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CRL.A No. 100066 of 2020 C/W CRL.A No. 100004 of 2020 him as hostile, he denied the suggestions that he witnessed accused No.1 assaulting the victim at 4.45 am, and giving statement as per Ex.P68 to that effect.
17. According to prosecution on PW7 informing him at 5.00 am, about the incident PW6 rushed to the spot and found accused No.1 moving away with MO-22 the wooden repiece in the cart road. But in his chief examination he does not speak to that effect. He says that about 2 years back, on he leaving the temple after performing pooja, PW7 called him on phone to come to the temple immediately. But, he returned to the temple after performing the poojas in the other places. He denies having seen accused No.1 near temple or PW7 informing him about the incident. He says that he does not know who have taken MO22 from the shelter of chariot of their temple. He further says that he does not know which act accused No.1 was committed. He denies having given statement before the I.O. as per Exs.P66 and P67 to that effect.
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CRL.A No. 100066 of 2020 C/W CRL.A No. 100004 of 2020
18. Nothing could be elicited in the cross examination of PWs.6 and 7 to show that they are in any way interested in the accused or they are deposing falsely. Therefore, their evidence is of no avail to the prosecution. Reg: Motive
19. According to the prosecution, the accused had twofold motives against the victim. The first one is the victim pestering accused No.1 to repay the loan of Rs.55,000/- to him. The second one was the illicit relationship of accused Nos.1 and 2.
20. To prove the said circumstances, the prosecution relies on the evidence of PWs.1 and 5- the brothers and 12-the sister-in-law of the deceased and PW11-a scrap merchant. PW11 was examined to prove that accused No.1 was also doing scrap paper business, thereby, to show that accused No.1 and the deceased together were doing the scrap paper business and he came to know that accused No.1 committed murder of Shrishail due to financial transaction and illicit relationship of accused Nos.1 and 2. PW11 deny having any acquaintance with
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CRL.A No. 100066 of 2020 C/W CRL.A No. 100004 of 2020 accused No.1 or giving statement in that regard as per Ex.P75. Even as per his statement under Section 161 Cr.P.C. his knowledge regarding motive was hearsay one.
21. The only evidence in the chief-examination of PW1 regarding motive is that on 27.5.2016 he was summoned to the police station, found accused Nos.1 and 2 in the police custody. He further states that accused No.1 revealed that since Shrishail was pestering Rs.55,000/- and accused No.2 abetted him to kill Shrishail and to get her he committed the murder of Shrishail. Except that, he does not speak of his personal knowledge of such loan transaction or the illicit relationship of accused Nos.1 and 2.
22. According to PW1, he learnt about the incident through one Iranna Gouda, Mallana Gouda, Revena Gouda of their village. Strangely he says that even after going to the scene of offence and seeing dead body, since people informed him that the phone is ringing in the victim's pocket, he rang the victim's phone and confirmed that the dead person is his
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CRL.A No. 100066 of 2020 C/W CRL.A No. 100004 of 2020 younger brother. He admits that along with him and his family members accused No.2 also had gone to the scene of offence.
23. It is no doubt true that PW5, the other brother of the deceased deposes about accused No.1 borrowing Rs.55,000/- from the victim and victim demanding Rs.55,000/- and that accused Nos.1 and 2 were having illicit relationship. In the chief-examination itself he says that he learnt about the illicit relationship since the villagers were talking about the same. He himself say that accused No.1 had left the village about 8-10 months prior to the incident. He further says that in March 2016, though himself and his brother had gone to seek money from accused No.1 he was not found. Thereby his evidence indicates that accused No.1 had left the village 8-10 months prior to the incident. In the cross examination he admits that himself and his brothers are living separately. He does not say that at any time he found accused No.1 in the house of accused No.2 in a suspicious manner.
24. He admits that accused No.1 was working in Ajjampura and he owns big house in his village. According to
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CRL.A No. 100066 of 2020 C/W CRL.A No. 100004 of 2020 accused No.1 he hails from well off family and therefore, there was no need for him to borrow the loan from the victim. When it was not the case of the prosecution that accused No.1 and deceased were doing scrap paper business in partnership, PW5 says that they were doing that business in partnership. But there is no record for the same. This witness also admits that accused No.2 accompanied him and his family members to the scene of offence on getting the information. He says only after police coming to the scene of offence, he came to know that that dead body is that of his brother.
25. So far as illicit relationship between accused Nos.1 and 2, PW5 says that he had informed victim Shrishail about the same and panchayat was held in that regard. If that be so it goes hard to believe that on learning about such illicit relationship, Shrishail accompanies the paramour of his wife that too during such night hours. Strangely in the cross examination he says that after accused No.1 was sent to jail on the third day he met him, but he did not reveal that before the police in his statement.
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CRL.A No. 100066 of 2020 C/W CRL.A No. 100004 of 2020
26. Coming to the evidence of PW12, in the chief examination itself she says that she does not know about Shrishail demanding accused No.1 to pay the money. So far as the illicit relationship between accused Nos.1 and 2, she says PW1 was saying so. She also states that it was PW1 who told her that accused No.1 had committed the murder of Shrishail. She also states that PW1 and others were discussing that accused No.1 might have committed murder as accused No.1 and Shrishail were doing business jointly and accused No.1 had borrowed money from Shrishail.
27. It is the defence of accused No.2 that some amount of Land acquisition compensation was payable towards the share of Shrishail and to grab that, the LIC amount and other sums of Shrishail, PW1 has falsely implicated accused No.2 in the case. PW12 admits that PW1 separated from the house first. She also admits that her husband Kumar and Shrishail were living together after PW1 and PW4 separating from the family. Her husband died prior to Shrishail. She admits that PW1 was not enquiring about the affairs of her
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CRL.A No. 100066 of 2020 C/W CRL.A No. 100004 of 2020 husband and Shrishail. She admits that when Shrishail allegedly lent Rs.55,000/- she was not present.
28. According to PW5 (deposition page 8, first paragraph) Shrishail had lent loan to accused No.1 on 04.11.2014. Ex.P37 according to the prosecution is the diary of account maintained by Shrishail between 09.1.2014 and 07.12.2014. In that no entry regarding payment of Rs.55,000/- is found. The above evidence of PWs.1, 5 and 12 goes to show that their evidence with regard to the illicit relationship of accused Nos.1 and 2 and lending of the loan was not cogent and consistent.
29. In holding that the motive of illicit relationship is proved, the trial Court relies on Exs.P83 and 84 the call details records and the alleged voluntary statement of accused No.1 in that regard. Section 25 bars proving a confession of accused made before the police officer against him. The only exception is under Section 27 of the Evidence Act which permits proving of only that part of the confession which leads to discovery of a fact. Therefore, proving of such confession, against the accused
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CRL.A No. 100066 of 2020 C/W CRL.A No. 100004 of 2020 or co-accused is barred unless there is some discovery of fact. Though the trial Court marked Ex.P81 only that part of the alleged voluntary statement of accused No.1 leading to discovery, relied on the entire voluntary statement of accused No.1 to hold that the same proves illicit relationship of accused Nos.1 and 2. The evidence defined in Section 3 of the Evidence Act, means and includes all the statements which the Court permits or requires to be made before it by witnesses in relation to matters of fact under enquiry and the records produced for inspection of the Court. When the entire voluntary statement of accused No.1 was not marked in evidence and having regard to the bar under Section 25 of the Evidence Act, the trial Court fell in error in relying on the same to hold that the motive circumstance is proved.
30. The other evidence relied on by the trial Court were Exs.P82, 83 and 84 alleged call details records of the cell phones of the deceased, accused Nos.1 and 2 respectively. The trial Court says that as per those records there were exchange of calls between accused Nos.1 and 2, that proves the illicit relationship. The I.O. did not collect any records to show that
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CRL.A No. 100066 of 2020 C/W CRL.A No. 100004 of 2020 those phone numbers were standing in the name of those persons. Secondly, they were the electronic evidence. But, the I.O. did not collect and produced the certificate as required under Section 65B(4) of the Evidence Act. The trial Court relying on the judgment in Shafi Mohammed's case referred to supra held that in the case on hand, such certificate was not required. However, on reference the larger Bench of the Hon'ble Supreme Court in Arjun Panditrao's case referred to supra over ruled the judgment in Shaffi Mohammed's case holding that the same has not laid down the law correctly. It was held that a certification under Section 65B in such cases is mandatory. Therefore, the finding of the trial Court that the motive circumstance was proved based on such document is unsustainable.
Reg: last seen theory
31. To prove that accused No.1 and deceased were last seen together, the prosecution relied on the evidence of PW6 to 8 and 9 to 11. As already discussed PWs.6 and 7 did not support the said theory. PW8 is a BMTC bus driver. He
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CRL.A No. 100066 of 2020 C/W CRL.A No. 100004 of 2020 was examined to state that on 19.5.2016 in the morning hours, accused boarded the bus of PW8 with blood stained clothes and he was found in a panic condition. PW8 did not support the prosecution version in that regard. He says that on that day at 6.20 am, he had boarded Shikaripur-Davangere bus to go to Bangalore to attend to his duty. He further says that in Harogoppa, accused No.1 boarded the same bus and spoke to him and his conduct was normal and he deboarded the bus in Harihar. He denied having seen MO21 the alleged blood stained T-shirt of accused No.1. He denied having given statement as per Ex.P72 in that regard. In the cross examination he states that he had come to the village on weekly off. But I.O. has not collected any material to show that he was on weekly off.
32. PW9- Govindappa Baddi Vaddar is a sales man in Nimba Motors, Haveri, PW10 -Kotrappa was a Manager in Swagat Bar. According to the prosecution, accused No.1 and deceased Shrishail together went to Nimba motors, Haveri and collected the quotations Exs.P28 and 29 from PW9. Though PW9 admits having issued Exs.P28 and 29 he does not support
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CRL.A No. 100066 of 2020 C/W CRL.A No. 100004 of 2020 the theory that accused nos.1 and deceased had come together and collected Ex.P28 and 29 together. He also denies having identified accused No.1 during the investigation and having given statement as per Ex.P73.
33. According to the prosecution accused No.1 and the victim on 18.5.2016 at 10.00 pm had gone together to Swagath Bar, Ranebennur and purchased King Fisher Beer bottles from PW9. This witness also does not support the said theory or sighting accused No.1 and deceased and identifying accused No.1 or giving statement as per Ex.P74. Therefore, the evidence of the prosecution with regard to the circumstance that accused No.1 and deceased were last seen together was not cogent and consistent.
Reg: Recovery of MOs.20 to 22
34. According to the prosecution accused No.1 made confession as per Ex.P81 before I.O.-PW16 volunteering to show the place where he has disposed MO22 -the weapon of offence. Accordingly, he led PW16 and the Panchas-PWs.3 and 4 to a land near Basaveshwara temple and produced MO22
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CRL.A No. 100066 of 2020 C/W CRL.A No. 100004 of 2020 which was hidden under the earth and PW16 seized the same under Mahazar Ex.P51.
35. Though PW3 and PW4 supported the version of the I.O. regarding seizure of MOs.20 to 22 at the instance of accused No.1, the said version does not match with the scientific evidence. As per the prosecution the clothes of accused No.1 and MO22 the repiece were stained with the blood of the deceased. As per Ex.P27 the FSL report, the blood stains found on the clothes of the victim, accused and MO22 were of 'B' group. Ex.D1-the hematology report issued by Om Clinical Laboratory, Halageri was found in the charge sheet records submitted to the Court.
36. PW16 -the I.O. admitted that he received Ex.D1 along with the PM report from the Doctor. He admitted his signature on the same. ExD1 states that blood samples of Shrishail Ganiger (deceased) was sent to the said Laboratory by Dr. Shreevidhya (PW14) for blood group assessment and the same belonged to 'A' group. The said document demolishes the case of the prosecution that MOs.20 and 21 were the
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CRL.A No. 100066 of 2020 C/W CRL.A No. 100004 of 2020 clothes of accused No.1 worn by him at the time of the offence and MO22 was the weapon of the offence. That also demolishes the prosecution theory regarding the seizer of MOs.20 to 22 and the clothes of the deceased.
37. The above discussions go to show that there were inherent and glaring contradictions and inconsistencies in the evidence which demolished the core case of the prosecution. Therefore, the impugned judgment and order of conviction and sentence is unsustainable in law and liable to be set aside. Hence, the following:-
ORDER The appeals are allowed.
The impugned judgment and order of conviction and sentence passed against the appellants/accused Nos.1 and 2 are hereby set aside.
The appellant/accused No.1 is acquitted of the charges for the offences punishable under Sections 302 and 201 read with Section 34 of IPC. The appellant/accused No.2 is acquitted of the charge for the offence punishable under Section 109 read with Section 34 of IPC.
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CRL.A No. 100066 of 2020 C/W CRL.A No. 100004 of 2020 Accused No.1 shall be set at liberty forthwith, if his detention is not required in any other case.
The bail bonds of accused No.2 and her sureties shall stand discharged.
The order of the trial Court with regard to the disposal of the property is maintained.
The fine amount deposited, if any, by accused Nos.1 and 2 shall be refunded to them.
Registry shall communicate this order forthwith to the trial Court and the concerned Jail Authorities.
Pending interlocutory applications stood disposed off.
Sd/-
JUDGE Sd/-
JUDGE Vmb/kgk