State By The vs Gurumurthy on 22 March, 2018

[Cites 8, Cited by 0]

Karnataka High Court

State By The vs Gurumurthy on 22 March, 2018

Bench: R.B Budihal

                         1


IN THE HIGH COURT OF KARNATAKA AT BENGALURU

       DATED THIS THE 22ND DAY OF MARCH, 2018

                      PRESENT

       THE HON'BLE MR. JUSTICE BUDIHAL R.B.
                        AND
    THE HON'BLE MRS. JUSTICE K.S. MUDAGAL

           CRIMINAL APPEAL No.1194/2012


BETWEEN:

STATE BY THE
TALAK POLICE STATION
(C.P.I., CHALLAKERE CIRCLE)
                                       ... APPELLANT

(BY SMT.NAMITHA MAHESH B.G. HCGP)

AND:

GURUMURTHY
S/O THIPPAIAH
AGED ABOUT 45 YEARS
OCC: COOLIE
R/O HIREHALLY VILLAGE
PRESENTLY WORKING AS
GARDEN LAND OF DARVESHI AT
CHIKKAMMANAHALLI VILLAGE
CHALLAKERE TALUK. 577522
                                    ... RESPONDENT

(BY SRI C.H.SRINIVAS, AMICUS CURIAE)

     THIS CRIMINAL APPEAL IS FILED UNDER
SECTION 378(1) AND (3) CR.P.C PRAYING TO GRANT
                              2


LEAVE TO APPEAL AGAINST THE JUDGEMENT AND
ORDER OF ACQUITTAL DATED 26.06.2012 PASSED BY
THE ADDL. DISTRICT AND S.J., CHITRADURGA IN
S.C.NO.72/2009 -ACQUITTING THE RESPONDENT
/ACCUSED FOR THE OFFENCE P/U/S 302, 397, 201 OF
IPC.

     THIS APPEAL COMING ON FOR HEARING THIS
DAY, BUDIHAL R.B. J., DELIVERED THE FOLLOWING:



                     JUDGMENT

This appeal is preferred by the State being aggrieved by the judgment and order dated 26.6.2012 passed by the Additional District and Sessions Judge, Chitradurga, in S.C. No.72/2009, whereby the learned Sessions Judge has acquitted the respondent-accused for the offences punishable under Sections 302, 397 and 201 of IPC.

2. Brief facts of the prosecution case as narrated in the complaint (Ex.P.1) is that one T. Gopi, the complainant is the son of late Thippeswamy, and the deceased Shanthamma. In the complaint, he has 3 stated that he is eking his livelihood by doing the business of running the kirana shop. There are two sons to their parents. The complainant's brother Guruswamy is staying at Malappanahatti and eking his livelihood by doing the coolie work. The complainant, his mother Shanthamma, his wife Bhagyamma and two children of the complainant were staying together in Chikkammanahalli. Shanthamma was aged about 55 years. The father of the complainant expired 30 years back. The mother of the complainant was healthy and she was physically fit. His mother was also doing the kirana business along with the complainant. They were having one shop nearby their house and even at the outskirts of the said village, they had a petty shop and they were also doing business in the said shops. On 12.7.2008, morning at 7.30 a.m., the complainant was doing the business by sitting in the petty shop which was at the out skirts of the village. At that 4 time, Shanthamma, mother of the complainant informed his wife that she will collect shells of the dry coconut and went from her house to nearby Darga. She did not return even at 10.30 a.m. and they enquired with one Shivanna, who was working in Darga. When he enquired as to whether the deceased Shanthamma went near Darga, the said Shivanna told that he went to Darga a bit late, so he did not see her. The complainant went to Darga in the afternoon to see his mother but he did not find her. He enquired with the persons who were present there. They said that they did not see her. He also enquired with the neighbouring land owners. But one Gurumurthy, who was working in the garden of Darmesha, which is just opposite to Darga, told the complainant that he had seen the mother of the complainant going towards Darga from the village. But there afterwards, he did not see her. The complainant and members of the family made search 5 in the entire village. Even then, she was not traced. She did not come back and even till the time of lodging the complaint, they made search in her relatives house, hospitals of Challakere and Chitradurga, etc., but she was not traced. On 16.7.2008 at 10.00 a.m., the people of the village informed that they have seen one dead body in the well of Gurappa, son of Dodda Nagappa and there was foul smell in the said land. When the people of the village was talking about the same, the complainant and people of his village came and saw that the said well which was about 20 feet deep and the dead body was seen facing towards ground. Only the head portion, trunk portion of the dead body was present without having head and limbs. The limbs were cut and it was decapitated body. The upper and lower limbs were not found in the well. No clothes were found on the body. It was the body of a female. In the land nearby the said well, there was one gunny 6 bag and one petty coat was also seen. Petty coat and gunny bag belong to them and then it was confirmed to the complainant that the dead body was of his mother. The deceased was also wearing gold ornaments, the details of which is narrated in the complaint and they were weighing about 8 tolas worth Rs.80,000/-. Some unknown persons cut the upper and lower limbs of the mother of complainant and committed her murder and they have taken away the gold ornaments. The said persons cut the upper and lower limbs of the deceased in order to make it very difficult to identify. The village people have seen that the mother of the complainant was collecting the coconut shells in the coconut garden which was just opposite to Darga. The complainant was informed that Gurumurthy, who is the respondent-accused in this case, was present in the garden. The complainant is having suspicion against the said Gurumurthy. Therefore, he requested the police to 7 identify the culprits and take legal and appropriate action against them. On the basis of the said complaint, FIR came to be registered in crime No.88/2008 for the alleged offences punishable under Sections 302 and 201 of IPC.

3. After conducting investigation, the investigating officer filed charge sheet against the respondent accused for the offences punishable under Sections 302, 397 and 201 of IPC.

4. The learned Sessions Judge framed the charges for the said offences and when the charge was read over and explained to the respondent- accused, he pleaded not guilty and claimed to be tried. Accordingly, charges were framed and plea was recorded and the matter was set down for trial. 8

5. The prosecution, in support of its case, has examined 42 witnesses and got marked the documents as per Exs.P.1 to P.67 and the material objects as per M.Os.1 to 26. Even accused has been examined under Section 313 Cr.P.C. and his statement came to be recorded. On the side of the defence, no witnesses were examined. But during the course of cross examination of P.W.6, the defence got marked the documents as per Exs.D.1 and D.2.

6. After hearing the arguments of both sides and after considering the materials placed before the Court, both oral and documentary, ultimately, the learned Sessions Judge held that the prosecution has failed to prove its case beyond reasonable doubt and the accused was acquitted of giving the benefit of doubt. Being aggrieved by the judgment and order of acquittal and also challenging the legality and correctness of the said judgment on the grounds as 9 mentioned at grounds Nos.1 to 12 of the appeal memorandum, the appellant-State is before this Court.

7. We have heard the arguments of learned High Court Government Pleader appearing for the appellant-State so also the arguments of learned Amicus Curiae appearing on behalf of the respondent-accused.

8. Learned HCGP for the appellant-State during the course of the arguments made submission that there are witnesses to the incident. P.W.6 is the eye witness who has seen the incident. Even then the learned Sessions Judge has disbelieved the evidence of P.W.6 holding that P.W.6 is not the eye witness to the incident.

Drawing our attention to the deposition of the said witness learned HCGP made submission that there is a seizure mahazar conducted for the seizure 10 of gold articles and weapon produced by the accused as per his voluntary statement.

Learned HCGP made further submission that the gold articles which were recovered in the presence of panch witness (P.Ws.20 and 21), were identified by P.W.1 and his wife that those gold ornaments belong to them and the deceased was wearing the said gold ornaments when she left the house.

She made further submission that even the clothes of the accused i.e., shirt (M.O.17) and lungi (M.O.18) were seized under the mahazar (Ex.P.16) by the investigating officer in the presence of panch witnesses.

Drawing our attention to the evidence of P.Ws.20 and 21, the learned HCGP submitted that the evidence of these two witnesses, in whose presence the recovery of gold articles and weapons so also clothes of accused were made, is consistent and inspires the confidence of the Court with the 11 mahazar (Ex.P.16) and it has been proved by the prosecution by placing acceptable and worth believable materials.

She made submission that the seized articles were referred to FSL and the report of the FSL is as per Ex.P.67. In the report of FSL, it is stated by the FSL authorities about the articles more particularly i.e, the weapon machchu which is at item No.7, shirt at item No.8 and lungi at item No.9. The analysis of the said report goes to show that all the three articles were blood stained so also the other items at Sl. Nos.1 to 4 were having blood stains. Even the serology report is produced which is at Ex.P.67 which states that the blood stains are human blood and blood grouping is also ascertained. Hence, referring to this material, she made submission that if at all the accused is not involved in committing the offence, there was no reason that M.Os.17 and 18 were also having blood stains.

The learned HCGP made submission that the voluntary statement of accused is as per Ex.P.57 and looking to his statement, he has stated that if he is taken to the said place, he will point out and produce the said material. Though the body was cut into pieces, it was decapitated, upper and lower limbs were separately found in the well. It is the further submission of learned HCGP that the matter was referred to DNA and the report of the DNA is as per Ex.P.52, which shows that the dead body was that of Shanthamma and hence, the prosecution has established the fact that the deceased was Shanthamma only. The learned HCGP made further submission that looking to the Ex.P.52, wherein it is mentioned that the articles found were seized under Ex.P.16 from the place in the garden land and as per the report of the DNA, they were belonging to the deceased Shanthamma.

Learned HCGP drew our attention to the oral evidence of Scientific Officer (P.W.41), who issued the DNA report as per Ex.P.62. Looking to the evidence of P.W.41, it is clearly stated in his evidence that the teeth which were sent for examination were belonging to the deceased Shanthamma.

The learned HCGP also made submission that if the entire material produced by the prosecution is appreciated, it clearly makes out a case that it is the accused who committed the murder of Shanthamma. In spite of that, the learned Sessions Judge has wrongly read the evidence, both oral and documentary, and proceeded to hold that the prosecution has not proved its case beyond all reasonable doubt. Hence, she made submission that the judgment and order of acquittal passed by the learned Sessions Judge is not in accordance with the materials placed before him. On the basis of the materials placed by the prosecution, the appeal be 14 allowed and the judgment and order of acquittal passed by the learned Sessions Judge be set aside and the respondent-accused be convicted for the offences for which the charges were framed against him.

9. Per contra, learned Amicus Curiae for the respondent-accused made submission that looking to the materials placed on record so also the observation made by the learned Sessions Judge, firstly there are no direct witnesses to the case of prosecution and the entire case rests on the circumstantial evidence. P.W.6 in fact is not the eye witness as contended by the prosecution and P.W.6 is the planted witness to suit the case of prosecution.

Referring to the oral evidence of PW.6 and drawing our attention to the cross examination of P.W.6, the learned Amicus Curiae submitted that this itself clearly goes to show that P.W.6 has not at all seen the deceased going inside the garden land and 15 respondent-accused committing her murder. P.W.6 has admitted that the walls of the garden land are at the height of 6-8 feet and there is only one gate to the said garden land and if the person enters said garden land, the darga and the other places are not visible. Therefore, it is his submission that the evidence of P.W.6 in the cross examination makes it clear that he has not seen anything and it is subsequently created and set up by P.W.6 in the case.

Referring to the voluntary statement of the accused, learned Amicus Curiae made submission that there is no acceptable evidence. Panch witnesses have not stated that the accused made such statement that he has hidden the things and if he is taken to the said place, he will point out and produce the same. Hence, in this connection, the learned Amicus Curiae, drew our attention to the cross examination portion of one Tippeswamy (P.W.20). On page No.3 of his deposition to the 16 question i.e. Whether Gurumurthy has stated anything in your presence ? The answer of the witness is 'no'. Referring to this material, learned Amicus Curiae made submission that such a statement by the accused was not at all in the presence of witnesses P.Ws.20 and 21. Hence, in the absence of such material, only on the ground that accused lead police and panch witnesses to the place of incident and has produced the material as stated in seizure mahazar (Ex.P.16), cannot be relied upon. Even the mahazar (Ex.P.16) and voluntary statement of the accused (Ex.P.57) are not satisfactorily established by the prosecution by placing cogent and worth believable material. Regarding the gold ornaments said to have worn by the deceased is concerned, the evidence of family members i.e., wife (P.W.2) of P.W.1 as well as P.W.1 is not consistent to say that really, the deceased was wearing the gold 17 ornaments when she alleged to have left the house to go to Darga and the garden land of Darveshi.

It is the contention of that Amicus Curiae looking to the judgment and order of the trial Court about which, he drew our attention, these aspects were extensively considered by the learned Sessions Judge. Drawing our attention to the relevant paragraphs at para Nos.48 to 51, the learned Amicus Curiae made submission that the learned Sessions Judge has discussed about the oral evidence in detail and ultimately, came to the conclusion that the evidence on the side of the prosecution is not worth believable to establish the charges as against the accused. Hence, he made submission that even looking to the evidence of P.W.6, he has not stated that actually he has seen the accused person assaulting the deceased and committing her murder. Hence, P.W.6 cannot be termed as the direct witness to the incident. Apart from P.W.6, even according to 18 the prosecution case, there are no eye witnesses to the incident.

      Learned           Amicus       Curiae      also      made    the

submission         that    story     of   the    prosecution       that

accused persons gives the voluntary statement as per Ex.P57 is also doubtful in this case. It is not established by the prosecution with the help of acceptable material.

In this regard, he drew our attention to the evidence on record and made submission that, as per the prosecution version, the accused himself got admitted to the hospital and the Police went to the hospital and recorded his statement which was treated as a voluntary statement. The learned counsel submitted that there is no discharge certificate or the summary produced by the prosecution and without producing such material, it cannot be accepted that the Police Officer went to the Hospital on 17.7.2008 itself and recorded the 19 voluntary statement under Ex.P57. It is also his submission that when the accused said to have given a voluntary statement on 17.7.2008, earlier to that, when the other materials like saree and other things were lying at the spot which was within the knowledge of the Police as well as witnesses, the relatives of the deceased, why they were not seized by the Police.

It is his submission that looking to the prosecution material itself, timing of recording of voluntary statement on 17.7.2008 and drawing of the Mahazar under Ex.P14 against which, it raised doubt in the mind of the Court that the voluntary statement was not given by the accused persons as put forth by the prosecution. It is also the submission by the learned Amicus Curiae regarding gold ornaments are concerned, there is no cogent and acceptable material by the prosecution that on that day, deceased Shanthamma was wearing those gold and gold 20 ornaments said to have been seized under the alleged voluntary statement of the accused persons belonging to deceased Shanthamma. Even it is his submission that, looking to the evidence of PW.6, during the course of cross examination, it cannot be said that he is eye witness to the incident. Hence, the learned Amicus Curiae submitted that the evidence by way of oral as well documentary adduced by the prosecution is not worth believable and is not acceptable. Hence, on that ground also, learned Amicus Curiae submitted that prosecution case cannot be believed and the Judgment and Order of acquittal passed by the Court below is in accordance with the materials placed on record.

Lastly, learned Amicus Curiae submitted that the judgment and order of the Court below is in accordance with the materials on record. No illegality has been committed by the learned Sessions Judge. No grounds are made out by the appellant-State to 21 interfere with the judgment and order of the learned Sessions Judge. Hence, no merit in the appeal and the same is liable to be rejected.

10. We have perused the grounds urged in the appeal memorandum, judgment and order of acquittal passed by the learned Sessions Judge, oral evidence of the prosecution witnesses (P.Ws.1 to 42) so also the documents Exs.P.1 to P.67 and the documents Exs.D.1 and D.2. We have also considered the oral submissions made by the learned counsel on both sides at the Bar.

11. Now coming to the evidence of P.W.1- complainant, he has deposed in the examination in chief that about two years back on Saturday at about 6.00 a.m. before going to the shop, he had seen his mother for the last time. He came to know from the family member that as the cylinder gas was 22 exhausted, the deceased went to coconut garden of Darveshi in order to collect the coconut shells. In front of the said garden land, there is Darga. The accused was present in the said garden land. When the complainant enquired the accused, he told the complainant that he has seen the mother of the complainant from certain distance, but he did not know as to again, where she had gone. When he enquired with one Shivanna, watch man in the Darga, who told that he does not know. They made search of his mother at all the places, but even then they did not find his mother. Then they heard the talks in the village that there was one dead body in the well of one Gurappa and there was foul smell. Then the police came. When they went there, they saw the dead body of the female. Nearby the said well, there was petty coat belonging to the mother of the complainant so also gunny bag which she carried from the house. The police seized the petty coat and 23 gunny bag under the mahazar (Ex.P.2) and his signature was also taken as per Ex.P.2(a). P.W.1 has further deposed that always, his mother used to wear the gold ornaments namely ear stud, ear chain, bugudi and also she was having neck chain and silver karimani chain. She was wearing red colour bangles and also havai chappal. Then the police came nearby the bore well. With the help of the JCB, digging was done. There, they found one red colour saree, skull, black and white colour hair and havai chappal of the left leg. All those belongings were of his mother. He identified the gunny bag as M.O.1, petty coat as M.O.2, saree as M.O.3 and one havai chappal as M.O.4. P.W.1 has further deposed that on Friday, the police brought the accused person. The accused person lead the police to his residential house and took one tar box. The gold ornaments were kept in the said box. They found one bugudi stick, stone ear ring, neck chain, silver karimani 24 chain. From the thatched portion of the house, he took out one machchu and produced the same before the police. Then the accused lead the police to the nearby water tank and he shown the said place. It seems that the blood was burnt at the said place. The area became blackish. The red colour broken bangle pieces and three teeth were lying there. When the accused pointed out the said place, the police seized the teeth and also the broken bangle pieces. He further deposed that he had seen ornaments wore by his mother and it is identified as M.Os.7 to 10. The police called the complainant as well as his brother Guruswamy to the Government Hospital at Challakere. They were called after 25 days of the incident. Thereafter, the blood of the complainant as well as his brother was collected in the hospital.

In the cross examination, P.W.1 denied the suggestion that before he left the house, on that day, initially the female members did not inform him that 25 the gas of the cylinder was exhausted and afterwards his wife informed him about the same. They have not stored the fire wood. It was for the first time, on that day, his mother went to collect the fire wood. On that day, lunch was prepared after bringing the fire wood from the house of his mother-in-law. He denied the suggestion that he is intentionally deposing that his mother went to collect the fire wood and he had not produced the receipt to show that he is having the gas cylinder. He denied the suggestion that in the said shop, they were selling ganja, afeem and they were running the shops even upto 1.00 to 2.00 O'clock during night. He denied the suggestion that the customers used to be there and they were sleeping there itself. During that situation, the mother of the complainant was taking out gold ornaments and also money from the said persons. He denied further suggestion that the persons have picked up quarrel number of times with his mother 26 and because of that reason, his mother was having enmity with said persons. He deposed that between 9.00 a.m. and 10.00 a.m., his wife came and informed that his mother, who went to bring the fire wood, has not at all come back. As his wife told that his mother had gone towards the garden of Darveshi, he went to the said place at about 10.30 a.m. or 11.00 a.m. and enquired with the accused. Firstly, the accused told that he had not seen. Then, he told that he had seen her coming at some distance. The complainant enquired with other persons at the garden land of Darveshi and also in the Darga. He did not get information. It was about 1.00 or 1.30 p.m. when he enquired with Shivanna, he told that he had not seen her. He also made enquiry with their relatives over the phone. They made efforts to search the mother of the complainant till 9.00 or 10.00 p.m. on that day. But he had not given complaint about the missing of his mother. Even on 27 the next day also, he had not given the complaint. There are bus and auto rickshaw facilities to reach Talaku from Chikkammanahalli. He denied the suggestion that as his mother was not missing on that day and therefore, that was the reason for not lodging the complaint. On Sunday at about 10.00 a.m., he again went to accused and enquired about his mother, the accused told that he had not seen her. P.W.1 further deposed that by seeing him, the accused himself came and stood before the gate. On that day, he was not having any suspicion as against the accused person. When the question was put to P.W.1 that, on Sunday, whether he had gone inside garden of Darveshi in order to search his mother, he answered as he was not allowed to go inside and the accused came near the gate and spoke to him there itself. At that time, he was not having any suspicion as to why the accused was not allowing him to go inside.

P.W.1 has further deposed that P.W.6 was not his relative but he belongs to the same community. Thereafter, on Thursday, himself went inside the garden of Darveshi. He has admitted the suggestion that around the compound garden of Darveshi, there was iron fencing and in front of Darga, there was a gate and through the said gate, one had to enter the garden. P.W.1 has also deposed that nearby the well of Gurappa, the said fencing was cut into certain portion and it was looking that recently, the fencing was cut. The investigating officer also had seen and observed about the cutting of the said fencing. He denied the suggestion that the wire fencing was not cut and it was possible only to enter through the gate. The witness admitted the suggestion that the petty coat and gunny bag were lying towards the garden of Darveshi at the distance of 50 meter. The said information was given to him by one Guyrumurthy (not accused) of their village and one 29 Venkatesha. The police were also present at the said place and police noted the same. When it was asked that whether there was any identification marks on petty coat and gunny bag, P.W.1 answered that the cloth which was brought for the purpose of stitching it as pant by the complainant was used by his mother for the purpose of petty coat and he had seen the edge portion of the said cloth and on that basis, he said that petty coat belonged to his mother. He has further deposed that he had not signed the writing made in respect of the saree which was collected. M.Os.3, 4 and 6 belongs to his mother, but they were not having any such identification marks. He denied the suggestion that he is deposing falsely that accused took machchu and produced. He denied the further suggestion that teeth were lying there and the police collected them and he is deposing falsely. He denied the suggestion that even though the accused person has not committed any offence, he is deposing 30 falsely against the accused as he lost his mother. He has denied the suggestion that he has deposed falsely that blood of himself and brother was collected in the hospital.

12. PW.2 Bhagamma who is wife of the complainant and the daughter-in-law of deceased Shanthamma deposed in her evidence in the examination-in-chief that her mother-in-law is not alive and about two years back on Saturday, she went to the garden of Darbeshi as the cylinder gas was exhausted, to bring the coconut shells for the purpose of using them as fire wood and at that time, she was wearing gold ornaments and red colour saree. She was wearing neck chain of two rows, pair of gold 'Ole' i.e. ear stud and one pair of `Bugudi'. She was also wearing a black colour petticoat and she was wearing red colour bangles and wearing Hawai Chappals. She did not come back. Therefore, family 31 members became panic, they phoned to the relatives, made search. In spite of that, she was not traceable. On the 4th day, people were talking that in the garden well of Gurappa, the body of a person was lying, then they went there and they have seen a body, at a certain distance, there was a gunny bag and petticoat. They identified as they belonged to her mother-in-law and the dead body was decapitated body. After 5 days, they have seen the ornaments of the deceased and they were at Darbeshi garden. She identified the gold ornaments as MOs 1 to 4. One gunny bag, langa, saree and chappal are MOs.1 to 4. They were worn by her mother-in-law.

13. Later, during the course of cross-

examination, she admitted that about five to six years back her mother-in-law was running liquor, ganja and afeem shop and they used to close the shop at about 9 p.m during night. Even she has admitted 32 that all these business used to be done in the shop itself. But she denied the suggestion that persons who were consuming liquor were also sleeping in the said shop and at that time, she was taking out their amount (cash) and also the chain and rings of such persons. She further denied the suggestion that in the morning those persons were picking up quarrel and insisted for return of their ornaments. Denied further suggestion that because of these reasons deceased was having enemies around her. She deposed that she cannot say which company gas they are using in their house but they are having two gas cylinders. She deposed that, they were not keeping the fire wood in the house. The gas cylinder was exhausted and the fire wood was not there. On that day, she left the house at 8 or 8.30 a.m. Her mother- in-law Shanthamma was aged about 60 years. To the suggestion that except the ear stud and nose stud, other ornaments were worn on the festival occasion 33 but she further deposed that her mother-in-law always used to wear the ornaments but she denied the suggestion that the mother-in-law was wearing those ornaments only on the festival days. Daily she used to wear the ornaments. She further deposed the garden of Darveshi is at a distance of 1 or 2 kms. She alone went by walk.

14. She deposed that she does not know as to when anybody goes to Darveshi garden, they were allowing to have the coconut shells. She deposed that there is no owner of the said garden. She further deposed that, except `this person', there is no other person who will be in the garden, then the Court put the question `this person' means who? Then she answered, Gurumurthy. She denied further suggestion as to whether they are having gas cylinder, she answered, there was no occasion for her to go to the garden land to bring coconut shells as 34 they are having two cylinders and she has denied the suggestion that she is deposing falsely. She further denied the suggestion, even though the gold ornaments were not at all lost only to implicate the accused that he has committed murder, therefore, she is giving false evidence. In the further examination-in-chief, she identified MO Nos. 7 to 10 and when further cross-examination, she deposed that after the Police have marked Ex.P7 to 10 from the accused they were shown to her.

15. P.W.3 one Mangalamma in her evidence in the examination-in-chief that she knows deceased Shanthamma so also the accused Gurumurthy. She has seen Darveshi garden, about two years back, Shanthamma expired and about two years back, at about 8 a.m. when she was coming back after selling flower, she saw Shanthamma collecting fire wood nearby the gate of the garden land. She was alone. In 35 the cross-examination, she deposed that, she has not stated before the Police in her statement that when she saw Shanthamma along with her she has also seen accused Gurumurthy. The said portion is marked as Ex.P3 and she has denied even though she has seen the deceased along with the accused she is giving false evidence.

16. In the cross-examination by the defence, she denied the suggestion that she is giving false evidence that on that day she has seen Shanthamma in front of the gate of the garden land.

17. PW.4 Thippaiah is another witness who deposed that, he knows CW.6 and Malleshi the accused Gurumurthy and Shanthamma and he has seen Shanthamma collecting the coconut shells at 6 a.m. and nobody was present along with her. Herself and Malleshi saw the deceased. They have not given 36 before the Police if anybody were along with the said Shanthamma. The witness was also turned hostile one. During the cross-examination he has denied that he has given the statement as per Ex.P5.

18. PW.5 Malleshi's evidence is also same as the evidence deposed by PW.3 and 4 and the portion of the statement of this witness got marked as Ex.P6. PW.6 Shivanna deposed in his evidence in the examination-in-chief that, he knows accused Gurumurthy, deceased Shanthamma. Accused is working in the garden of Darveshi and he is getting the salary for the same. He is staying in the garden itself. About 2 years back, Shanthamma expired. About 2 years back at 8 a.m, he was sweeping in the Darga, Shanthamma came to the Darga and she offered the prayer and then she went back. She went to the garden of Darveshi, she told that gas was exhausted and therefore, she has come there to 37 collect coconut shells in the garden. Stating so, she went inside the garden. When he was sweeping, he heard crying noise. It is towards the garden. The voice was of a female. By the time, he went inside the garden, Shanthamma was lying down nearby the water tank. The accused was holding Machu in his hand. After seeing the accused, he chased him and he ran away. Because of the fear of the accused stating that he will cause damage to his sons and other relatives, he did not disclose this to anybody, He was running fever. After two or three days, I heard of dead body of Shanthamma lying in the well of Guruppa. The Head portion was on one side, the limbs were also on another place and he can identify Machu. On that day, Shanthamma was wearing red colour saree and she was also wearing ornaments and Hawai chappal. He can identify those materials. He identified Machhu and also the saree which are marked as MO.3, Machu MO5. Accused-Gurumurthy 38 is also having the mobile number so also the accused Gurumurthy talking over mobile phone. Accused gave threat if he discloses the incident to anybody, he would eliminate him also. He cannot tell the mobile numbers of himself and Gurumurthy. On that day, when he slept because of the fever, PW.1 Gopi came to him at about 11.a.m. when he asked whether he has seen mother of the complainant but he told that he does not know. In the cross-examination, he deposed that, every day morning at 6 a.m. even before 6 a.m. he comes to the Darga and he will be there upto 10 to 11 a.m. Though he will come back to house for meals, after having meals, he will go back to the Darga. On that day, he was alone in the Darga sweeping. Both people belonging to Hindu and Muslim community offer their prayers in the Darga. When Shanthamma came to Darga it was 7.30 a.m. or 8 a.m. When he was asked as to whether Shanthamma came to Darga on that day, witness 39 answered that she was holding gunny bag in her hand and when he asked why she has brought gunny back, Shanthamma told him that gas is exhausted therefore, she came there to collect the coconut shells for using it as fire wood. Even earlier also, she used to come and collect fire wood whenever necessary. When asked as to why Shanthamma came to Darga, he answered to offer prayers and after that she went to collect the coconut shells. He told that he was working in the Darga for the last 7 years. It may be an area of 4 acres. He cannot say the distance between the Darga gate and the land of Darveshi. He deposed that, compound wall of Darga is at the height of 6 to 8 ft. He admitted as true that from the place where he was sweeping if he has seen towards the garden gate, he cannot see the persons going inside but it will be visible if one comes near the compound. When Shanthamma came to Darga it was 7.30 or 8.00 a.m. Immediately after 2 or 3 minutes 40 when she went from the Darga, he heard the screaming noise. He deposed that, compound wall of Darga is at the height of 6 to 8 ft. He admitted as true that from the place where he was sweeping if he has seen towards the garden gate, he cannot see the persons going inside but it will be visible if one comes near the compound. When Shanthamma came to Darga it was 7.30 or 8.00 a.m. immediately after 2 or 3 months when she went from the Darga, he heard the screaming noise. It was asked to the witness whether he has gone towards the sound, he answered he went there to know why there is said sound. He also deposed that he went, the gate was open. He has seen red colour saree and in the meanwhile, accused came running and he was telling if anybody discloses, then he will eliminate them with the Machhu. He further deposed that accused person came towards him and he threatened him. When question was put to the said witness, whether he has made any hue 41 and cry calling the people that this has happened, witness answered `No'. He further deposed that, the accused person threatened him by showing Machhu. He has not done so. He deposed that, he has not told about anything in front of villagers about the incident and further deposed even he has not told about the said incident before his wife and son. He has not lodged a complaint against the accused persons requesting the Police to come to protect him. He denied the suggestion that Talaku Police arrested him and took him along with them insisting him that in case if he agrees that he is direct witness in the case then only he will come otherwise, no.

19. Accused was wearing Lungi and not pant and he has not observed cloths worn by accused were blood stained or not. Even he has deposed that he did not go near the scene where there was blood stains. He denied the suggestion that no such 42 incident had taken place and he is giving false evidence in the case. He denied further suggestion that, accused has no connection with the Machhu, Saree, chappal and gunny bag.

20. It is the case of the prosecution that, accused gave voluntary statement as per Ex.P57. Same was recorded and thereafter, he lead the Police and Panch witnesses PWs. 20 and 21 to the place and pointed out the place of alleged incident throwing dead body into the dilapidated well and put the head portion by covering with the saree in the bore well so also putting the cut lower limbs in another bore well. He has also lead the Police and Panch witnesses to the place where he has kept tar box and within that there is one more box for keeping gold ornaments also took the Police and witnesses to the place where he has kept the tar box. He lead the police and witness to the thatched house where he kept the 43 MOs. It is the prosecution case that at the instance of the accused person and as lead by the accused, they went to those places and conducted the seizure mahazar as mentioned at Ex.P16 a detailed Mahazar in respect of the places.

21. In this connection, let us examine the oral evidence lead by the prosecution i.e. PWs. 20 and 21. PW.20 is one Thippeswamy who deposed in his evidence in examination-in-chief that about 2 years back, Police called him nearby Darga in connection with the Panchanama. Accused was also with the Police. Accused lead them near one Water Tank. Blood was seen there. Three teeth, three white colour hair, broken bangle were there. Earlier, the accused told that head portion he put in the water tank and then he took them there near the bore well and he told before them that he put the head portion, red colour saree and one left leg chappal in the borewell. 44 He took them to the borewell and told that he put upper and lower limbs in the said bore well then he took them to his house on thatched portion from there he took out machhu and nearby the said place there was one wall and there was one dabba used for keeping the tar inside in the cover that there were the ornaments kept in the cover he took out the ornaments and shown the ornaments. They were, two row chain, one stud, one bugudi kaddi and one pair of chain. They were gold. He took them nearby a well and told that he threw the body in the said well. Said well is of one Gurappa. Then he further said after one furlong, he put the gunny bag petticoat at the said place. By the side of the water tank at the place, it was seen that, something was burning and there was an ash, the hairs which were muddy and there were teeth also. He again took them to the house. The Police have seized all these materials after making it in writing. The Police have taken his signature in the 45 Mahazar. He identified Ex.P16 and his signature Ex.P16(a) and even he has identified Material Objects MO.12 broken bangle pieces, MO.13 hair, MO.14 ash, MO.15 Mud, MO16 Tar pasted dabba and gold ornaments MO.7 to MO.10 and Macchu MO.5 which is already marked.

22. At this stage, prosecution for a limited purpose treated the witness as hostile witnesses and hence were examined by public prosecutor.

He admitted as true when he was at Bus stand in Chikkammanahalli, CPI called him and the accused gave his clothes. That is blue colour shirt and striped pant and then he identified those materials as MO17 and 18. He admitted near water tank one burnt black beads chain was also seized as given by the accused which was also marked as MO.19.

In the cross-examination, he deposed, when the question was put to those witness whether in his presence accused has stated anything, the answer is `No'. He further deposed after coming to Durga, Gurumurthy took them nearby water tank and they again went to Durga from Bus Stand in the jeep. About 8 to 10 Police, himself, Gurumurthy came in a jeep. The blood was soaked at the above place about size of the table top. Police have noted the same. It was also noted in his evidence dimension of the table which was shown while deposing it was 3 x 3 ft. The witness further deposed that by the side of the said place where the blood was soaked, there were broken bangle pieces also but, he admitted to the suggestion made to the witness that when ever there are broken bangle pieces, same will be thrown in a place of garbage and the same will be used along with the manure in the land while manuring the land. At the edge of ash, there were hairs, only some portion was 47 looked like burnt. He admitted that MO.13 the hairs which he saw were not at all burnt. When it was asked whether the ash and hairs were in open place, the witness answered, one small water tank (gundi) was there which was about 1 feet deep. The witness further deposed that, the water in the water tank was also inch. There were circumstances of throwing the body into the said water tank and there was also smell and same is noted in the Mahzar and it was a fowl smell from the rotten body means whenever a person is dead, same is mentioned in the Mahzar by the Police. The accused kept the Machhu in the thatched house and he gave the machhu after washing the blood stains. Police have mentioned the same in Ex.P16. Inside the tar Dabba, there was another Dabba put wherein the ornaments were kept. The Police have seized the gold ornaments. He has also deposed that there were totally four wells and one was in working condition. Three were fallow bore 48 wells. The teeth were in the ash itself and he denied the suggestion that no doubt clothes of the accused were seized from the house there were no stains on the said clothes. The Police secured the gas light from the Chikkammanahalli. The same led them to conduct the Mahzar. When it was suggested that on that day accused person has denied that Gopi and Police have asked him to give statement in that and he is giving like that. When the Police came to the village, the members of Grampanchayat have taken care of them.

23. We have also perused the evidence of PW.39 he is one Pampapathi, CPI. He has deposed in the examination in chief about the investigation that has been conducted and also about recording the voluntary statement of the accused on 17.7.2008. He deposed that, he came to know from ASI Gurumurthy, a murder case is reported and one 49 Gurumurthy the accused person was admitted into the District Hospital, there is suspicion in the same immediately we went to Chitradurga District Hospital he enquired with the accused and even he has enquired with the Doctor also. The Doctor told that his health condition is alright. He gave voluntary statement stating that if they went along with him, he will show the place where he committed murder of Shanthamma so also the place he put the limbs in the borewell, the place where he has kept the gold ornaments and produce them. Accordingly, he recorded the voluntary statement of the person accused as also stated in his voluntary statement of the persons. The accused has also stated in his voluntary statement that he has shown the dead body in decapitated condition while it is nearby his garden. He has also stated in his statement if they went along with him he will show the objects and produce them. The said statement of the accused is 50 marked by the learned trial Judge as per Ex.P57 and he has also deposed in detail about the accused person leading to such places pointing out the said places and also producing the gold ornaments, Machu and other articles as noted in Ex.P16. Even the witness deposed in the further examination-in- chief the accused led them for about 3 meters from the said place. He stopped at the said place and shown that it was a fallow borewell and showed where threw the dead body of Shanthamma, the saree and chappal. Then after obtaining permission from the Asst. Commissioner, the above were traced in the borewell. The witness also deposed thereafter, accused lead till about 60 metrs. And shown one fallow borewell and told that he has put the upper and lower limbs in the said borewell. The casing pipes were shown of the said borewell that they were getting fowl smell from the said borewell. They made an attempt to take out the limbs but, it was 51 unsuccessful. They have taken photo vide Ex.P38. Thereafterwards, accused took them towards his house. He took out one dabba from the house for putting tar stating that he kept gold ornaments of Shanthamma. Even it should not be seen by anybody and there should not be any sort of suspicion, he has kept in a tar box. All those ornaments were also tested by one Thippeswamy Achari. He has mentioned the weight of the gold ornaments. They are marked as per Ex.P39 and 41. Those articles were put in the box and the seal was put to the same by using seal having the letter `CN'. Then the accused lead them 10 meters towards west and he stopped nearby one water tank and he told that he has hidden the crushed front portion of the body. Photos of the said place were taken at Ex.P43 and 44. There they were getting foul smell and they want at a further distance of about 12 mtrs towards `Vayavya' direction and there one neem tree was there and 52 there also a foul smell was coming and he told that he has seen the decapitated portion of the body and he threw in the well. Photo of the place nearby the neem tree is also taken as per Ex.P45. Then they went at a distance of 50 mtrs. There was one dilapidated well and he told that he put the body in the said well. Photo was taken as per Ex.P40. They they went towards west at the distance of about 50 mtrs. And the accused person showed the place where he kept the gunny bag and petticoat of Shanthamma. The photo of the said place is at Ex.P47 and thereafter, the accused produced his clothes which were having the blood stains. He told that he washed those clothes then he again wore the same clothes. He was taken to his house after seizing the said clothes and marking at Ex.P17 and 18. The details were mentioned in the Mahazar Ex.P16. 53

24. In the cross-examination, the witness deposed that, on 16.7.2008, the crime was registered. During this period, there was no missing complaint of the deceased. Even the relatives have not at all orally told before the Police. He does not know whether it was informed to the Police Station. During the investigation he came to know that there was no such oral say. They have not seen any sign that the deceased collected the coconut shells in the gunny bag. He did not collect the information or any documents during his investigation to know the gas cylinder of the house of Gopi stands in whose name. There was no difficulty for him to mention the dates in the Mahazar. He denied the suggestion that whatever the photos they were taken it is only to give boost to the case and they have not at all collected any items as mentioned in the said photograph. Whenever photos were taken through digital camera and in that date will be recorded but the witness 54 answered that in his digital camera the said arrangement was not there. He denied the suggestion that he has managed to see that the date and time of taking the photo should not appear. He denied the suggestion that in the said land of Gurappa, there is no well at all and that was the reason that not obtaining the records of the said land. He cannot say what was the weight of the decapitated body. The only one person cannot lift it from the well. He admitted that in front of Darga there is a main gate of garden. He denied the suggestion except that, around there is wire fencing. Witness further deposed in between the Darveshi garden and the ground of Gurappa towards south there is wire fencing. The witness deposed that it was damaged here and there. There are no stab marks on the black colour petticoat and also gunny bag so that they belonged to deceased Shanthamma. He denied the suggestion that they were not at all belonged to the deceased. When it was 55 asked that the place where the Langa and gunny bag were lying photos were taken the witness answered that they were lying here and there and they were gathered. They took up the said items as identified by son Gopi that their recent photo was not taken however, the witness further deposed that Exs.P.23 and P.24 photos are in respect of Langa and gunny bag and they are visible. He denied the suggestion that photos at Exs.P.23 and P.24 are created for this purpose. He denied the suggestion that MO5 particularly sharpened portion of MO5 is not sufficient for cutting the body. He has not received the FSL report pertaining to `Machhu'. He seized MO5 Machu there were no blood stains on it. He denied the suggestion that panchas have expressed that because of the ornaments on the body of the deceased, the accused might have committed the murder of her. He does not remember the time of his visit to the Hospital. He cannot say even referring to 56 the case file because it was not mentioned but, he denied the suggestion that he has not gone to the Hospital. There is no mention of time. Witness further deposed that straightaway he did not go to the accused person firstly he met the doctors then he enquired about the condition of the accused person. Then he came to know that he was admitted. He enquired for what reason he was admitted but he did not get the documents in that regard from the doctors even he has not issued any requisition in that regard. He denied the suggestion that he has not given anything in writing but, the copy would have been in the file.

25. He took one hour to record the statement of the accused but he is not recollecting from the memory what had taken place on 18.7.2008. At about 4.00 p.m., he apprehended the accused. It is at the Talaku Police station. The Police Constable 57 brought the accused persons from the Hospital and produced before him. When he phoned to the Doctor and enquired about the accused, the Doctor told that he is alright and he can be taken back. He phoned to the DHO and he told about the same. He has not obtained the call list to show that he has called over the phone. He denied the suggestion even though he was knowing that everything should be in written form only, only to adjust he has not taken written statement. He enquired with the Doctor and he is giving false evidence. He denied the suggestion that accused not at all given voluntary statement as per Ex.P57 before him. He denied further suggestion that by using force as against the accused though for obtaining his signature Ex.p57. He denied the suggestion that he has used the voluntary statement according to his convenience and for that reason immediately on the very date it was not sent to the Court. He has not asked the Doctors to give in writing 58 to the effect that they are going to discharge him. He denied suggestion that there is nothing on record about the said fact. He has not at all requested the Doctors that was the reason that the said request was available in file. He made requisition to the Asst. Commissioner on that day which he recorded voluntary statement of the accused it was at 11.30 a.m. the Assistant Commissioner came to the spot at 12.30 a.m or at 1.00 O'clock he was present. As the accused has given statement to the effect of putting the head portion of Shanthamma in the borewell Asst. Commissioner in order to exhume the same. He denied the suggestion that Asst.Commissioner has not at all come to the place nor he has drawn Mahazar Ex.P14. He denied the further suggestion that photograph produced are all fabricated. He denied the suggestion that Asst.Commissioner has not at all seized the placed materials under Ex.P58. He deposed that out of that, the skull, red colour 59 saree and one chappal were given to the Doctor and the hair were given to himself in Ex.P14. It is not mentioned about the three articles given to the Doctor. But there is a mention that they were sent to the Doctor for the purpose of conducting Post Mortem examination. He admitted that in the annexed petition at Sl.15 only it is mentioned the voluntary statement of the accused. He denied the suggestion that gold smith is not at all examined nor has examined the gold ornaments and nor the accused persons produced any gold ornaments. When it was suggested that the place where the hair of the black and white were found, it was an open place and because of wind they will be taken away. Witness deposed that in this case they were lying at the said place. Around the said place there was a grass. He has not mentioned about the place of Mahazar. He denied that they are belonging to some other place. He denied the suggestion that three teeth, the red 60 colour saree were not at all belonged to Shanthamma. He denied when conducting of any Mahazar proceedings has mentioned in Ex.P16, he is giving false evidence. Denied the further suggestion that obtaining signature of accused Ex.P16 also by threatening the accused persons. He denied when he has not at all given his voluntary statement.

26. When accused took them to his house it was not under lock. When accused took nearby the borewell wherein the limbs of the deceased were put, with the help of Hitachi machine area was dug was about 10 feet depth and as the people of Hitachi told that it cannot be gone further deep, he conducted Mahazar Ex.P15. He denied the suggestion that no further Mahazar proceedings were conducted.

When the accused was produced along with review application on 18.7.2008 at that time he has not produced copies of the voluntary statement 61 before the Magistrate. He denied the suggestion that he has not at all recorded the statement of any of the witnesses as mentioned in para.13 of examination-in- chief.

With regard to Mob. Phone, he went to Bannerghatta Airtel Head Office but he has not obtained any endorsement. The Special Public Prosecutor has addressed a letter to BSNL in respect of No.9480630317. The said Mobile was with the accused person. The Mobile No. of Shivanna is 9980673812. The same belongs to the accused but the mobile no. of Shivanna is 9480630317. He did not get any information about the same till he handed over the charge to the next Officer. He denied the suggestion that though the mobile phones were belonged to them, in order to fix the accused persons, he made attempt to give false evidence, he has prepared the case favourable to him even though accused has no connection with them. He denied the 62 suggestion that he is giving false evidence about the seizure of gunny bag and also petticoat though there is no case at all against the accused, and he has also falsely fixed the accused in the said case.

27. We have perused the evidence of Dr. Raghavendra (P.W.35) who conducted post mortem examination over the body of the deceased. He gave his evidence that his opinion was reserved until receipt of DNA and FSL report. P.M. certificate issued by him is marked as per Ex.P.50. He has deposed that on 16.07.2008, he conducted P.M. examination of limbless and neckless dead body of Shanthamma between 5.15 p.m. and 7.00 p.m. near one Gurappa's old well at Chikkamanahalli at the instance of P.C. Krishnamurthy P.C.981 of Thaluku P.S. The body was entirely decomposed. Head was not there and it was cut at around 4-6 cms above the clavicle, both upper limbs were separated at shoulder 63 level. Both lower limbs were cut at knee joints level. Rigor mortis absent. The body measured from neck to knee joint about 103 cms. P.W.35 has further deposed that upon the police furnishing him DNA and RFSL report, he issued his final opinion letter regarding the cause of death as per Ex.P.52 stating that cause of death is due to decapitation (transection of the neck). There is likelihood of severe of head and limbs with the help of chopper (M.O.5) which was shown to him. The RFSL report dated 31.8.2008copy of which was furnished by the police revealed that there were no toxin detected in the viseras sent for examination. He has seen the original report as per Ex.P.53.

28. We have also perused the oral evidence of P.Ws. 41 and 42. P.W.41 is the Scientific Officer, DNA Center, FSL, Bengaluru. He has deposed about the test he had conducted and inspection of the items 64 found at item Nos.1 to 14. He has further deposed that he has extracted DNA from femur bone and it was coded as H12 and blood sample of Gopi was coded as H-16 and the blood sample of Guruswamy was coded as H-17. Based on the result, it was concluded that the deceased was the biological mother of T. Gopi and Guruswamy. Accordingly, he issued DNA report as per Ex.P.62 and his signature is at Ex.P.62(a). It is also his deposition that Exs.P.63 to P.66 are the part and parcel of Ex.P.62.

In the cross examination, P.W.41 has deposed that blood samples of Karibuddappa, Rathnamma, Gopi, Guruswamy and three teeth of the deceased were completely utilized for DNA examination and it is not mentioned in ExP.62. The receiving authority of 14 articles have made an endorsement that the seals found on the 14 articles are tallying with the specimen seal sent by the investigating officer. The Receiving Authority of 14 articles was The Asst. 65 Director, Biology Section, FSL, Bengaluru. That endorsement made by the Asst. Director was not sent along with Ex.P.62 and this fact was not mentioned in Ex.P.62. He has further deposed that he had not enclosed the documentary evidence to show that he had undergone training and also about his educational qualification. The procedural aspect which had been done by The Asst. Director, with regard to articles is mentioned in Ex.P.62. He had not seen case file which was sent to The Assistant Director.

29. Dr. K. Srinivasa Naik (P.W.42) is another witness. He is lecturer in Biology, Government P.U. College, Sindagi, Bijapur. He has deposed in his examination in chief that case bearing crime No.88/2008 and BS No.138/2008 was received on 31.7.2008 at RFSL, Davanagere by P.C. No.682 of Thalak P.S. Nine articles were received in this case, 66 the wax seals found on the articles and the investigating officer's samples seal were tallied and intact. These nine exhibits were subjected for blood stained examination and serological analysis using Benzidine test and Gel electrophoresis and absorption elution method. He has given the detail of examination.

In the cross examination, P.W.42 has not deposed as to on what date, the articles were analyzed and it was mentioned in the office file. When a question was put as to whether he had brought the office file, for that the witness said he was not working in that original department and relieved from that department. When a question was put that there was any hurdle for him to go to RFSL, Davanagere and to bring the office file, for that witness said that he was operated on both the legs for verucos veins and he stays very far from Davanagere. He had come by train via Davanagere. Again, when a 67 question was put to him that would he alight to Davanagere and would have go to RFSL and collected the office file, for that the witness said that there was no conveyance from Davanagere Railway Station to RFSL. From Davanagere Railway Station to RFSL, it is about 20 kms. It was possible for him at Davanagere railway station that after alighting, by taking auto or car, he would have gone to RFSL and after collecting the office file, he could have come. He deposed that conveyance is not made by the department. Whatever the traveling expenses that he would have expended, he could reimburse it. P.W.42 has further deposed that the investigating officer had not sent the sucked blood from the dead body and sent to him for the blood group analysis. He said that blood cannot be sucked from the dead body. The blood can be sucked from the dead body immediately, but not after four hours. P.W.42 had also spoken about the machchu (M.O.5), gunny bag 68 (M.O.1), shirt (M.O.17), lungi (M.O.18), havai chappal (M.O.4). He has stated that if a woman worn with saree and if her legs were cut off and consequential to it, the blood would profuse and the entire saree and her leg portions will be soaked with blood stains. He denied the suggestion that in order to oblige the police, he had given the false Ex.P.67.

30. Perusing the materials which we have already referred, firstly, the case of prosecution is that the accused gave his voluntary statement as per Ex.P.57 and in pursuance of the said voluntary statement, recoveries were effected and they were mentioned in mahazar Ex.P.16. In this connection, we are referring to section 27 of the Indian Evidence Act, which reads as under:

Section 27: How much of information received from accused may be proved: Provided that, when any fact is deposed to as discovered in consequence of 69 information received from a person accused of any offence, in the custody of a police officer, so much of such information, whether, it amounts to a confession or not, as relates distinctly to the fact thereby discovered, may be proved.

Therefore, one of the essential ingredients enunciated in Section 27 of the Act is that the accused making the voluntary statement must be in the custody of police officer.

31. In this regard, let us examine the materials placed before us that whether the accused was in the custody of police. Ex.P.57 was made before the investigating officer. In this regard, the evidence of P.Ws.31 and 39 are relevant to refer.

32. P.W.31 is one Devaraj, who was working as P.C.882 of Thalaku police station. He has deposed in the examination in chief that he along with head 70 constable on the same day, i.e. on 18.7.2008 at 4.00 p.m. took Gurumurthy, who was admitted in the government hospital, and produced before CPI. The accused slept on the bed. The doctor told that he was all right and he could be taken. So the evidence of P.W.31 shows that the accused was in the hospital even on 18.7.2008 till 4.00 p.m.

33. Coming to the evidence of investigating officer (P.W.39) CPI, Haveri, in the examination in chief, he has stated that on 17.7.2008, as he came to know that the suspected Gurumurthy (accused) had been admitted in the district hospital on Chitradurga, immediately, he went to the said hospital and enquired Gurumurthy and also the doctor. The doctor told him that the accused is all right. He has further deposed that when he interacted with Gurumurthy, he gave his voluntary statement stating that if they come along with him, he will show the 71 place where he committed the murder of deceased Shanthamma and also the place where he put the upper and lower limbs and also he will produce the gold ornaments. Accordingly, he had recorded the voluntary statement of the accused and obtained the signature of the accused to the said statement. P.W.39 has also stated as follows:

"£ÀªÀÄä vÉÆÃlzÀ ¥ÀPÀÌz° À è£À MAzÀÄ ºÁ¼ÀÄ ¨Á«AiÀÄ°è J¸É¢gÀÄvÉÛÃ£É. £ÀAvÀgÀ ªÀ¸ÀÄÛU¼ À £ À ÀÄß ªÀÄvÀÄÛ ªÀ¸ÀÄÛU¼ À £ À ÀÄß ¨ÉÃgÉ PÀqÉ §aÑnÖgÀÄvÉÛÃ£É. £À£Àß eÉÆvÉ §AzÀgÉ vÉÆÃj¹ vÉUz É ÀÄ ºÁdgÀÄ ¥Àr¸ÀÄvÉÛÃ£É".

This portion has been marked in Ex.P.57. This goes to show that P.W.39 recorded the said voluntary statement under Ex.P.57 when the accused was in the hospital getting treatment. There is no evidence that P.W.39 with police for the purpose of recording the statement he has arrested the accused and then he has recorded the voluntary statement of the accused. Therefore, the evidence of PWs..31 and 39 if 72 read together, it will not leave any doubt that the accused was said to be in the hospital and whether he was really in the hospital or not. We will make discussion little later. So far as Ex.P.57 is concerned, we are of the opinion that the prosecution has not placed any material to show that when it was made before P.W.39, he was in police custody as required under the provisions of section 27 of the Evidence Act.

The further case of the prosecution is that in pursuance of the voluntary statement, the recoveries are effected. When the very basis for relying upon Ex.P.57 itself has not been established by the prosecution, then whatever the recovery said to have been made in pursuance of the same cannot be said that they are binding on the accused person. Even with regard to the said voluntary statement, there is no oral evidence of PW.39 that he has made such statement. Even with regard to machchu (M.O.5) 73 that the accused has hidden it in thatched house and if he is taken to the said place, he will take out and produce the same, there is no reference in the oral evidence of the investigating officer.

Coming to the cross examination of P.W.39, there was no evidence that the deceased collected coconut shells in the garden of Darveshi. During investigation, he has not enquired regarding the gas cylinder used by Gopi and in whose name, the cylinder was standing and he has not collected any document in that regard. Regarding the black colour petty coat and gunny bag is concerned, a question was put to this witness as to when he saw the black colour petty coat and gunny bag and whether they were seen in the open place or in the hidden place. He answered that there were other old sarees. Below that, there was black colour petty coat and gunny bag. The witness voluntarily deposed that some people, who were nomadic, might have left the old 74 clothes and saree. He has stated that below them, these two items were found. But he admitted that in the mahazar, it was not mentioned. He further deposed that as it was not necessary, the same was not mentioned in the mahazar. He denied the suggestion that the petty coat and gunny bag were not at all present and he is giving false evidence that they were collected. When he was asked as to whether the photographs of the petty coat and gunny bag were taken, the witness said that they were not taken. Again he was questioned as to why photograph was not taken, for that the witness answered that when the people gathered were making the search and Gopi, the son of the deceased, was already holding the petty coat and gunny bag, it was not possible to take photographs.

34. Regarding the visit of P.W.39 to the hospital is concerned, when he was cross examined, 75 he has deposed that he was not remembered to say at what time he visited the hospital and referring to the case file, he said that he could not say. But he denied the suggestion that because he had not been to the hospital, there was no mention about the same. He denied the said suggestion that he had not obtained any document from the doctor that for what purpose the accused was admitted in the hospital. He does not remember as to whether he had issued any requisition in writing to the doctor. He admitted that he issued such requisition and the copy would have been in the file. But he answered that no such copies were available in the file. He had not obtained anything to the effect that the accused person was all right. He has deposed that he was also present while recording Ex.P.57 i.e., only 5 minutes. When he was asked that it was the important case and therefore, doctor has to be present, for that, the witness answered that he made such a request and the 76 doctor told that he has to go urgently. When again they went to call doctor, he told that he proceeded to record the statement and he will come after finishing his work. The doctor did not come. This portion of cross examination goes to show that even the doctor was not present when P.W.39 said to have recorded the voluntary statement (Ex.P.57). He has deposed that he had not issued any writing requesting the doctor to discharge the accused from the hospital. But he deposed that he talked to the doctor over phone, at that time, the doctor said that the accused is all right and he is going to discharge him. The accused had not at all made voluntary statement as per Ex.P.57. The said suggestion had been denied by the witness. P.W.39 also denied the suggestion that by pressurizing the accused, he obtained signature. He also deposed that he had not sent the voluntary statement to the concerned Court on the same day. The witness answered that there is no such practice. 77 He denied the suggestion that he used it whenever it was required for him and he was giving false evidence before the Court that there was no practice to produce the same immediately. Considering this evidence of P.W.39, during the course of cross examination, it shows that even with regard to recording of the alleged voluntary statement (Ex.P.57), no procedure was followed by the investigating officer and that the accused was not in the custody of the police and even according to the prosecution, the accused was still in the hospital. Therefore, it cannot be held that the voluntary statement under Ex.P.57 was recorded as per the requirements of Section 27 of the Evidence Act.

35. The prosecution case is that P.W.6 is the eye witness in the case. Looking to the evidence of P.W.6, he has deposed that the deceased came to Darga and after offering prayer, she left the place 78 stating that she will go to garden of Darveshi and he had seen the deceased entering into the said garden. Immediately, thereafter, he heard the crying voice of a woman. Then he went there to see as to what had happened. He saw Shanthamma lying on the ground. The accused was holding machchu in his hand. This is what P.W.6 has deposed in his evidence. P.W.6 has not at all stated he had seen the accused person assaulting the deceased with machchu in his presence. Therefore, in the absence of such material placed before the Court, it cannot be said that P.W.6 is the eye witness to the act of committing the murder of the deceased Shanthamma. But at the most, he can be treated as one of the circumstantial evidences on the side of the prosecution case. Even looking to his evidence about which we have already made a detailed reference from the date of the alleged offence i.e. from 12.7.2008 till his statement under section 161 of 79 Cr.P.C. was recorded by the police on 18.7.2008, he kept mum and he had not disclosed the incident before anybody i.e., either before the relatives of the deceased or before the police. It is no doubt true that P.W.6 has stated that the accused person threatened him felting that if he disclosed the said fact before anybody, he would not leave him. He was working in the Darga, which was neighbouring place of the garden of Darveshi. Every day people were coming to the said Darga. It is not only for the purpose of this case but for one's protection, in view of the said threat, he could have asked protection from the police immediately and he could have explained about the incident what he had seen. Therefore, the conduct of P.W.6 in keeping mum till everything came to be known by the people of the village and thereafter, he making the statement before the police also, raises a reasonable doubt in the mind of the Court as to 80 whether really, P.W.6 is the eye witness to the incident as projected by the prosecution.

36. So far as the other witnesses, who have also claimed that they have seen the deceased and accused together, have not supported the case of prosecution and they have turned hostile, during the course of evidence. Those witnesses are Mangalamma (P.W.3), who has specifically deposed in her examination in chief that she has seen the deceased alone collecting the fire wood. Another witness Thipaaiah (P.W.4) has also deposed that he has not stated before the police that some other person was also present along with the deceased. One more witness Malleshi (P.W.5) deposed that he has seen the deceased collecting coconut shells but he has not seen any other person with her. Therefore, with regard to the last seen theory of the prosecution that the deceased was seen when she was along with 81 accused person and in his company, the prosecution has not placed any supporting evidence or the material.

It is true that looking to the DNA report, the prosecution is able to establish that decapitated body was that of the deceased Shanthamma. When the question is that whether the accused has committed the murder of Shanthamma, for that the prosecution has to place acceptable material before the Court. It is true that as per the PM report under Exs.P.50 and 51, the doctor's opinion is that death is because of transection of the neck i.e. decapitation. Therefore, the prosecution has placed material to establish the fact that it was homicidal death.

37. With regard to the deceased Shanthamma is concerned, it has come in the evidence of P.Ws.1 and 2 that they were having two shops, one in the village and the other in the outskirts of the village. 82 The deceased Shanthamma was also conducting business by sitting in the said shops. It was suggested to P.W.1 that his mother was also selling ganja, afeem and other prohibited drugs. He denied the said suggestion during the course of cross examination. It was also suggested to P.W.1 that as the deceased was selling such drugs and some of the persons, who were intoxicated, were sleeping in the said place itself and taking advantage of the same, the deceased used to take out money and gold ornaments from such persons and in the morning, those persons were picking up quarrel with the deceased Shanthamma and in this way, Shanthamma was having enemies around. The said suggestions were denied by P.W.1

38. Coming to the evidence of P.W.2, who is the daughter-in-law of deceased Shanthamma, she has clearly admitted in her cross examination that since 83 5-6 years, her mother-in-law was selling liquor, ganja, afeem and she used to close the shop by 9.00 p.m. She has also admitted that they used to do the business in two shops. But she denied the suggestions, that deceased was selling the drugs and some of the persons, who were intoxicated, were sleeping in the said place itself and taking advantage of the same, the deceased used to take out money and gold ornaments from such persons and in the morning, those persons were picking up quarrel with Shanthamma and because of that reason, there was enmity between the people of the neighbouring village and the deceased.

39. Looking to the evidence of P.Ws.1 and 42 about which we have already made reference, P.W.42 has clearly admitted in the cross examination for the question that whether he has brought the original file wherein the date on which the articles were analyzed, 84 to the Court, he answered that may be in the original file. The original file was with the department. Therefore, it was not brought before the Court.

40. We have also perused the mahazar (Ex.P.14), wherein there are some additions and some corrections. There is no initial by the investigating officer about the said correction and addition in the panchanama. It goes to show that looking to the style of writing, it is subsequently added in the said mahazar and the said additions were not there, when originally the other contents were written. With regard to the upper and lower limbs that they were not traceable. There is also over writing in Ex.P.14 which does not have any initial by the investigating officer. With regard to Ex.P.16 is concerned, we have observed referring to the contents of Ex.P.57 that firstly it was not relied upon by the Court below. Even for the purpose of appreciating the prosecution 85 case, we have referred to oral evidence of P.W.39 in this regard and he never stated that the accused told before him that he has hidden the machchu in the thatched house and if he is taken there, he will produce the same before him.

41. We have perused the impugned judgment and order passed by the learned Sessions Judge and the discussions made therein while assigning the reasons for disbelieving the case of prosecution and holding that the prosecution is not able to prove the case beyond all reasonable doubt. The learned Sessions Judge referring to the entire materials, both oral and documentary, extensively, considered every aspect of the matter and then came to the conclusion that the prosecution material is not sufficient to hold that the prosecution has proved the charge beyond all reasonable doubt. Looking to the judgment and order of acquittal passed by the learned Sessions 86 Judge, we are of the clear opinion that the entire materials placed before us have been referred to by the learned Sessions Judge and then he came to such conclusion. Looking to the judgment of the learned Sessions Judge, we do not find any manifest illegality in the said judgment so as to interfere in this appeal either to modify or to set aside the same. There are no valid and justifiable grounds for this Court to interfere with the judgment and order of acquittal passed by the Court below. Therefore the appeal is dismissed confirming the judgment and order of acquittal passed by the learned Sessions Judge.

42. We place on record, the valuable assistance of the learned Amicus Curiae Sri C.H. Srinivas, Advocate.

Registry is hereby directed to pay the amount of Rs.10,000/- to the learned Amicus Curiae Sri C.H. Srinivas, as honorarium.

Sd/-

JUDGE Sd/-

JUDGE Sk- Para Nos.1-26 Cs- Para Nos.27-42

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