Karnataka High Court
Padma @ Padmamma vs The State Of Karnataka on 8 October, 2020
Bench: B.Veerappa, K.Natarajan
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 8TH DAY OF OCTOBER, 2020
PRESENT
THE HON'BLE MR. JUSTICE B. VEERAPPA
AND
THE HON'BLE MR. JUSTICE K. NATARAJAN
CRIMINAL APPEAL NO.151 OF 2015
CONNECTED WITH
CRIMINAL APPEAL NO.1125 OF 2014
IN CRL.A. NO.151/2015:
BETWEEN:
1. PADMA @ PADMAMMA
W/O. KUMARA,
AGED ABOUT 30 YEARS,
RESIDENT OF GURIGARANAHALLI VILLAGE,
SHRAVANABELAGOLA HOBLI,
CHANNARAYAPATNA TALUK,
HASSAN DISTRICT - 573 116.
2. VENKATESHA @ SWAMANNA
S/O. RANGEGOWDA,
AGED ABOUT 44 YEARS,
RESIDENT OF KORAMANGALA VILLAGE,
DUDDA HOBLI,
HASSAN TALUK AND DISTRICT - 573 118.
... APPELLANTS
(BY SRI C.H. JADHAV, SENIOR ADVOCATE, FOR
SRI PRATHEEP K.C., FOR A-2; AND
APPELLANT NO.1 IS DELETED VIDE COURT
ORDER DATED 12-3-2015)
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AND:
THE STATE OF KARNATAKA
BY SHRAVANABELAGOLA POLICE,
SHRAVANABELAGOLA - 573 135.
... RESPONDENT
(BY SRI VIJAYA KUMAR MAJAGE, ADDL. S.P.P.)
IN CRL.A. NO.1125/2014:
BETWEEN:
SMT. PADMA @ PADMAMMA
W/O. KUMARA,
AGED ABOUT 28 YEARS,
OCCUPATION: COOLIE,
RESIDENT OF GURIGARANAHALLI VILLAGE,
SHRAVANABELAGOLA HOBLI,
CHANNARAYAPATNA TALUK,
HASSAN DISTRICT - 573 116.
... APPELLANT
(BY SRI PRASANNA KUMAR P. DAROJI, ADVOCATE)
AND:
THE STATE OF KARNATAKA
REPRESENTED BY ITS
PUBLIC PROSECUTOR,
BY SHRAVANABELAGOLA POLICE STATION,
AMBEDKAR VEEDI,
HIGH COURT BUILDING,
BENGALURU - 560 001.
... RESPONDENT
(BY SRI VIJAYA KUMAR MAJAGE, ADDL. S.P.P.)
***
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THESE CRIMINAL APPEALS ARE FILED UNDER
SECTION 374(2) OF THE CR.P.C. PRAYING TO SET ASIDE
THE JUDGMENT OF CONVICTION AND ORDER ON
SENTENCE DATED 6-12-2014 PASSED IN SESSIONS CASE
NO.39 OF 2013 BY THE PRESIDING OFFICER, FAST TRACK
COURT AND ADDITIONAL SESSIONS JUDGE,
CHANNARAYAPATNA, CONVICTING THE APPELLANTS-
ACCUSED NOS.1 AND 2 FOR THE OFFENCES PUNISHABLE
UNDER SECTIONS 302 AND 201 READ WITH SECTION 34
OF THE IPC.
THESE CRIMINAL APPEALS HAVING BEEN HEARD
AND RESERVED FOR JUDGMENT ON 14-9-2020 AND
COMING ON FOR PRONOUNCEMENT THIS DAY,
NATARAJAN, J., DELIVERED THE FOLLOWING:
JUDGMENT
Criminal Appeal No.1125 of 2014 and Criminal Appeal No.151 of 2015 are filed by accused Nos.1 and 2 respectively being aggrieved by the judgment of conviction and order on sentence dated 6-12-2014 made in Sessions Case No.39 of 2013 on the file of the Presiding Officer, Fast Track Court and Additional Sessions Judge, Channarayapatna (hereinafter referred to as 'the trial Court') for the offences punishable under Sections 302 and 201 4 read with Section 34 of the Indian Penal Code (for short, 'the IPC').
2. The status of the parties before the trial Court is retained for the sake of convenience.
3. The case of the prosecution is that Shravanabelagola Police filed charge-sheet against accused Nos.1 and 2 for the offences punishable under Sections 302 and 201 read with Section 34 of the IPC. As per the case of the prosecution, accused No.1-Padma @ Padmamma is the wife of Kumara (hereinafter referred to as 'the deceased) having two children, namely Varshini and Shekhar. They were residing in Gurigaranahalli village. Accused No.2- Venkatesh @ Swamanna had obtained the land on lease from P.W.11-Nanjappa in Survey No.15 of Aladahalli village for growing ginger and accused No.1 and her husband were working as coolie in the 5 said land. Accused No.2 used to visit the house of the deceased frequently and while doing so, accused No.2 developed intimacy with accused No.1. After coming to know about their illicit intimacy, panchayat was held in the village and warned accused No.2 not to come to the village and to stop illegal connection with accused No.1. In spite of warning, accused Nos.1 and 2 continued their illicit relationship. Then, accused No.1 and the deceased shifted residence to the farmhouse of Nanjappa in which accused No.2 was cultivating. Making use of the circumstances, accused No.2 started frequently visiting the house of the deceased and continued his illicit intimacy with accused No.1. It is further alleged that on 23-9-2012 at about 7.30 p.m., when accused Nos.1 and 2 were in the said house, on seeing the said incident, the deceased abused accused No.1 and also tried to assault her. At that 6 time, accused Nos.1 and 2 said to have decided to kill the deceased, as the deceased was obstacle for their relationship. Thereby, with an intention to commit murder, accused No.2 assaulted the deceased on his head with a chopper and caused injuries. After confirming the death of the deceased, accused Nos.1 and 2 in order to destroy the evidence, thrown the dead body into a ditch near Harikethamma temple to draw the presumption that somebody might have committed the murder and in order to screen the offence, they removed the blood stains on the ground by putting the same into the plastic cover and thrown into the water.
4. The further case of the prosecution is that, on 3-10-2012, P.W.1-Mahendra, who is the cousin brother of the deceased, got to know about the dead body of the deceased, intimated to the Police and 7 also lodged a complaint as per Ex.P.1. The Police, after registering the case, conducted inquest panchanama on the dead body of the deceased and sent the dead body for Post-Mortem examination. After recording the statements from relatives and others, the Police arrested accused Nos.1 and 2 and recorded the voluntary statements. Accused confessed the commission of crime and produced M.O.8-chopper used for the commission of the murder of the deceased. Thereafter, they were remanded to the judicial custody. After completion of investigation, the Investigating Officer filed the charge-sheet before the jurisdictional Magistrate. After committal of the case, the sessions case has been registered and the trial Court, after securing the presence of the accused, framed the charges for the offences stated supra. Accused pleaded not guilty and claimed to be tried.
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5. In order to bring home the guilt of the accused, the prosecution in all examined 29 witnesses as per P.W.1 to P.W.29, marked 34 documents as per Ex.P.1 to Ex.P.34(a) and M.O.1 to M.O.8. After completion of the prosecution evidence, the statements of the accused under Section 313 of the Code of Criminal Procedure have been recorded. The incriminating evidence appeared against the accused were read over to them and they have denied the same as false, but not entered into any defence evidence.
6. After hearing the arguments and based upon the evidence on record, both oral as well as documentary, the trial Court held that accused Nos.1 and 2 found guilty and convicted for the offences punishable under Sections 302 and 201 of the IPC and sentenced them to undergo 9 imprisonment for life and to pay fine of Rs.10,000/- each for the offence punishable under Section 302 read with Section 34 of the IPC. Further sentenced to undergo imprisonment for a period of five years and to pay fine of Rs.5,000/- each for the offence punishable under Section 201 read with 34 of the IPC. The same is challenged by both the accused before this Court by filing different appeals.
7. We have heard the arguments of Sri C.H. Jadhav, learned senior counsel for accused No.2 and Sri Prasanna Kumara P., learned counsel for accused No.1 and Sri Vijaya Kumara Majage, learned Additional State Public Prosecutor for the respondent-State.
8. Before adverting to the arguments addressed by the learned counsel on both sides, we 10 feel it just and necessary to have a cursory look at the evidence of the prosecution witnesses.
9. P.W.1-Mahendra is the first informant, who filed the written complaint as per Ex.P.1 to the Police on 3-10-2012 and he has supported the case of the prosecution. He has spoken about the relationship of the deceased with accused No.1 and also illicit intimacy of accused No.1 with accused No.2. He got know about the dead body of the deceased in the ditch, and later, he lodged the complaint. He has also spoken about the illicit intimacy between accused No.1 and accused No.2 and panchayat held in that regard and elders of the villager warning accused No.2 to disconnect the relationship with accused No.1.
10. P.W.2-Umesha is a panch witness to the spot drawn by the Police as per Ex.P.2 and he has 11 supported the case of the prosecution. According to him, the Police seized the slippers where the dead body was found. He identified the same as M.O.6.
11. P.W.3-Ramesha and P.W.4-Puttegowda are the inquest panch witnesses drawn by the Police as per Ex.P.7. Both the witnesses have spoken about the inquest conducted by the Police and dead body of the deceased found in the ditch is not disputed.
12. P.W.5-Sarojamma is the mother of the deceased and she has supported the case of the prosecution. She speaks about the motive aspect and the relationship of the deceased with accused Nos.1 and 2. She speaks about illicit intimacy between accused No.1 and accused No.2. She further speaks about residing of accused No.1 along with the deceased with the children and thereafter, 12 shifting of the house by accused No.1 and her son to the farmhouse of Nanjappa in which accused No.2 was cultivating ginger crop. After getting to know about the death of her son, she visited the spot and was present during the panchanama and identified that the dead body belongs to her son which was shown in the photographs as per Exs.P.3 to P.6. She also identified the clothes of the deceased which was marked as M.Os.1 to 7.
13. P.W.6-Kenchappa is the panch witness for seizure of the clothes of the deceased drawn by the Police as per Ex.P.9 and the same is not disputed by him.
14. P.W.7-Raju is mahazar witness and material witness drawn by the Police as per Ex.P.10 He has spoken regarding drawing up of mahazar at the farmhouse and seizing of M.O.8-chopper which 13 was used by accused No.2 for committing the murder of the deceased. This witness has supported the case of the prosecution. According to this witness, himself along with other witness, the Police and accused No.2 had gone to the farmhouse, at that time, the house was kept locked and it was made to open. Accused No.2 went inside the house, took out the chopper and produced before the Police. The same was seized by the Police under the panchanama and he identified the chopper as M.O.8. He also identified the photographs as per Exs.P.12 to P.14. He also speaks that the accused showed the spot where they had thrown the dead body of the deceased. The Police prepared the panchanama on the spot as per Ex.P11. Learned counsel for the accused has disputed the recovery and presence of this witness in the cross- examination.
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15. P.W.8-Nanjundappa and P.W.9-Nagendra are cousin brothers of the deceased. Both of them have given evidence in respect of illicit intimacy between accused Nos.1 and 2 and also about warning given to accused No.2 in the panchayat. Further, they have deposed regarding shifting the house by accused No.1 with her husband and residing in the farmhouse of accused No.2. They also deposed that they got the information about the dead body of the deceased found in the ditch and Police recorded their statements.
16. P.W.10-Manjamma is a coolie in the land which is leased out to accused No.2. According to the case of the prosecution, this witness has seen the accused in the company of the deceased about ten days prior to finding of the dead body in the ditch. She has stated in her evidence that, seven to 15 ten days back, she went to the land of accused No.2 to get her wages, at that time, the deceased was with accused No.1. She has deposed about the relationship between accused Nos.1 and 2 and quarrel between accused No.1 and the deceased in connection with illicit intimacy and residing of accused No.1 and the deceased in the land of accused No.2. She further deposed that one year prior to her evidence, she went to the land of accused No.2, at that time, accused No.1 told the deceased to go to ragi flour mill, at that time, the deceased told that he was fed up with the attitude of accused No.2. At 5:00 p.m., while she was returning back home, P.W.15-Annegowda, accused No.2 and P.W.14-Yashoda were also present. After seven days, she had gone near the house of the deceased, at that time, the deceased was not present, but accused No.1 and 2 were present. On enquiry, 16 accused No.1 informed that the deceased had gone to Halebelagola and after two or three days, she found the dead body of the deceased. She also identified the dead body of the deceased as shown in Exs.P.3 to P.6 and also identified M.Os.1 to 7. She further deposed that the accused persons were the cause for the death of the deceased. Her evidence was seriously disputed by the learned counsel for the accused in the cross-examination.
17. P.W.11-Nanjappa is the owner of the land in survey No.15. He leased out the said land to accused No.2 and P.W.15-Annegowda for cultivating ginger crop. P.W.12-Thayavva is the wife of P.W.11. P.W.13-Shivakumara is the son of P.Ws.11 and 12. All these three witnesses have turned hostile.
18. P.W.14-Yashoda, P.W.17-Suresha and P.W.18-Krishna are the circumstantial witnesses. 17 They have turned hostile and not supported the case of the prosecution.
19. P.W.15-Annegowda is the joint lease holder of the land in survey No.15 along with accused No.2. He also turned hostile and not supported the case of the prosecution.
20. P.W.16-Rajashekar is one of the cousins of the deceased. He has supported the case of the prosecution. He has deposed that accused No.1 and the deceased were residing in the land which was leased out to accused No.2 by P.W.11. Prior to the incident, he had visited the house of accused No.1 and the deceased, at that time, the deceased was not there in the house. On enquiry, accused No.1 informed that the deceased had gone to her parental house. Immediately, accused No.1 came out of the house and gave a phone call to someone and 18 informed that the deceased is not in her parental house as they sent him to Bengaluru. Further on questioning accused No.1, she told that she came to know the said fact by telephoning the deceased and he returned back. After few days, he heard the news that the dead body of the deceased was found near Harikethamma temple. He identified the clothes of the deceased as well as identified the deceased in the photographs shown to him. In the cross- examination, he has stated that, he came to know from the villagers that unknown dead body was found near the temple. Further, he has stated in the cross-examination that when he visited the house of the deceased, the deceased was not there, but accused Nos.1 and 2 and other two to three persons were present and he does not know them. According to him, accused No.1 has not disclosed the whereabouts of the deceased.
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21. P.W.19-Girisha is a photographer. He has deposed that the Police took him to the spot to take the photos of the dead body and identifies the same as Exs.P.3 to P.6. He has further deposed that he has taken the photographs while accused No.1 handing over the chopper to the Police as per Exs.P.12 to P.14. He also identifies M.O.8-chopper which was handed over by accused No.2 to the Police. Except denial, nothing has been elicited in the cross-examination by the learned counsel for the accused in respect of seizing M.O.8 in the house of accused No.1 and the deceased.
22. P.W.20-Mohankumar, Revenue Inspector, who issued RTC in respect of the land in survey No.15 which is in the name of P.W.11-Nanjappa. He identifies Ex.P.23 is the said R.T.C. extracts. 20
23. P.W.21-Dr. Radha is the Scientific Officer working at R.F.S.L., Mysuru. According to her evidence, on 13-11-2012, she received two articles for chemical examination and issued FSL report as per Ex.P.24.
24. P.W.22-Dr. Sujatha is another Scientific Officer working at R.F.S.L., Mysuru. She examined viscera of the deceased which was sent by the Police for chemical analysis and according to her evidence, there was no poison found in the viscera of the deceased.
25. P.W.23-Dr. Yuvaraj has deposed that, at the request of the Police, he has conducted Post- Mortem examination in the mortuary of the hospital between 5:20 p.m. and 7:30 p.m. According to his evidence, the deceased had fracture of backside skull for 4 inches and rest of the part was intact. 21 Further, he collected viscera of the deceased and sent the same to F.S.L. According to him, the death was caused due to head injury and issued Post- Mortem examination report as per Ex.P.27. In the cross-examination, he has stated that, if any person falls on the sharp edged object, the injury found on the head of the deceased could be caused and further stated that the death might have occurred 72 hours prior to the Post-Mortem examination.
26. P.W.24-Naga @ Nagaiah, coolie, working in the leased land of accused No.2. He turned hostile and not supported the case of the prosecution.
27. P.W.25-Ramakrishna, Police Constable, who apprehended accused No.2. P.W.26-Vani, Women Police Constable, who apprehended accused No.1. P.W.27-Marappa, Investigating Officer, who 22 investigated the case and filed the charge-sheet. P.W.28-Mohan Kumar, Police Constable, who carried F.I.R. to the Court. P.W.29-Narayana, Sub-Inspector of Police, who partly investigated the case and handed over the investigation to P.W.27.
28. On careful perusal of the evidence, both oral and documentary as well as material objects, goes to show that the entire case rests upon the circumstantial evidence and there is no eyewitness to the incident.
29. On careful evaluation of the above said evidence of the prosecution witnesses, as they are the main witnesses which we have to re-appreciate meticulously with reference to the circumstances projected by the prosecution.
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30. Before adverting to the same, we would like to refer the submissions made by the learned counsel in this regard.
31. Sri C.H. Jadhav, learned senior counsel appearing for accused No.2, has vehemently contended that the evidence of the prosecution witnesses are all interested and in inimical terms with the accused and the deceased. Therefore, it is not safe to rely on the evidence of those witnesses. Even otherwise, the motive is a week piece of evidence. The motive, however, is strong that it cannot find a place of roof. The evidence of the prosecution witnesses clearly goes to show that the deceased was residing with accused No.1 in Aladahalli village. There was strange relationship between the deceased and the prosecution witnesses. P.W.1 is the cousin brother of the 24 deceased and there was property dispute between them. Such being the case, there is likelihood of falsely implicating accused No.1. Even otherwise, after knowing fully that accused No.1 having illicit intimacy with accused No.2 and in spite of warning in the panchayat, the deceased cannot shift his residence to the farmhouse of accused No.2 and the same cannot be believable. Therefore, the motive in respect of commission of offence cannot be acceptable.
32. Learned counsel has further contended that as regards to the last seen theory by P.W.10 is also not acceptable as she was a coolie worker said to have been seen the accused and the deceased ten days prior to the incident and thereafter, the deceased was not seen. She has not disclosed about witnessing the deceased with accused Nos.1 and 2 to 25 the Police. Though the Sub-Inspector of Police had gone to the spot at 7:15 a.m., but has registered the case at 1:00 p.m. The statement of P.W.10 has been recorded on 4-10-2012 and there is delay in recording the statement of the witness with regard to last seen of the deceased in the company of the accused is not proved by the prosecution. There is no corroboration in the evidence of P.W.10. Therefore, the circumstance of last seen theory is also not satisfactorily proved by the prosecution.
33. Learned counsel has further argued in respect of arrest and recovery of the weapon alleged to have been used by the accused and recovered by P.W.27-Investigating Officer in the house of accused No.1 in the presence of the prosecution witnesses cannot be believable. As per the evidence of P.W.7- recovery panch witness, the house was kept locked. 26 There is no connecting evidence to show that who has locked the house and the key was in whose custody and there is a chance of planting and the chopper seized by the Police in the house is not ruled out. That apart, the case of the prosecution is that after killing the deceased, they destroyed the evidence by wiping the blood stains from the house and thrown the same into the water. Such being the case, keeping the weapon with blood stains in the house is not acceptable one. That apart, the blood stains on M.O.8-chopper are not proved that it belongs to the deceased as it was disintegrated. There is no connecting evidence to show the recovery of the weapon from the accused.
34. Learned counsel has further contended that even taking into the consideration the medical evidence, the Post-Mortem examination report which 27 shows the time, since death of the deceased was 72 hours prior to the time of Post- Mortem examination. If 72 hours is calculated, the deceased would have died either on 30-9-2012 or on 1-10-2012. But the case of the prosecution is that, accused Nos.1 and 2 have committed the murder of the deceased on 23-9-2012, that too, about ten days prior to tracing the body from the spot. The time since death also not satisfactorily proved to connect the accused with the crime. That apart, he further contended that as per the prosecution witnesses, the children of accused No.1 and the deceased, aged about ten years and eleven years respectively, were residing together, but the statements of these two children were not recorded by the Investigating Officer. They may be the eyewitnesses to the incident because they were residing together with the deceased and accused No.1. The non-examination of these 28 material witnesses is fatal to the prosecution case. Therefore, he has contended that the prosecution has utterly failed to prove the connecting of circumstances against the accused to show that the accused committed the murder of the deceased. The story of the prosecution is not believable and benefit of doubt may be extended to the accused. Hence, he prayed for acquitting accused No.2.
35. Sri Prasanna Kumar P. Daroji, learned counsel appearing for accused No.1, has also argued on the same line as argued by the learned counsel for accused No.2. In support of his arguments, he has relied upon the judgment of the Hon'ble Supreme Court in the case of GANPAT SINGH v. STATE OF MADHYA PRADESH reported in (2017) 16 SCC 353. Hence, he prayed for acquitting accused No.1.
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36. Per contra, Sri Vijaya Kumara Majage, learned Additional State Public Prosecutor for the respondent-State, has supported the judgment of conviction and order on sentence passed by the trial Court and contended that the evidence of the prosecution witnesses, i.e. P.Ws.1, 8, 9, 10 and 16 have clearly spoken about illicit intimacy between accused Nos.1 and 2 and the panchayat held in that regard. Thereafter, accused No.1 and the deceased were residing in the farmhouse of accused No.2 and the same has been proved by the prosecution and from the evidence of P.W.10. The prosecution has established that the accused and the deceased were together near the house of accused No.1. P.W.16, in his evidence has clearly stated that prior to the incident, he had visited the house of accused No.1 and the deceased, at that time, the deceased was not there in the house. On enquiry, accused No.1 30 informed that the deceased had gone to her parental house. After three days, the deceased was found dead in the ditch. Accused No.1 gave different information regarding the deceased which clearly goes to show that accused No.1 in collusion with accused No.2 have committed murder of the deceased in order to continue their illicit intimacy. Merely, the witnesses are related witnesses to the incident that itself is not a ground to disbelieve their evidence. Absolutely, there is no delay in lodging the complaint. The presence of the children though came in the evidence of the prosecution witnesses, but it is not elicited by the learned counsel for the accused regarding presence of the children in the house as on the date of the incident. It is in the personal knowledge of accused No.1 to explain what happened to the deceased, who is the husband of accused No.1. The evidence of P.W.21-Radha, 31 Scientific Officer, goes to show that she verified M.Os.2 and 8 and reported that the blood stains found on those objects were that of human blood. Though it was disintegrated, but the prosecution is able to prove the recovery of M.O.8 through P.W.7- material witness, P.W.19-photographer and P.W.29- Investigating Officer. The prosecution is able to prove the motive for the commission of the offence and the last seen theory that the accused found in the company of the deceased prior to the death. The recovery of the dead body or recovery of the weapon clearly indicates that all the circumstances relied by the prosecution has been proved satisfactorily. Therefore, the circumstances clearly establish that accused are the culprits, who committed the murder of the deceased, as he was an obstacle to continue their illicit relationship. Therefore, the trial Court has rightly found accused Nos.1 and 2 guilty and 32 convicted them. There is no reason to interfere with the findings given by the trial Court in convicting the accused. Therefore, he prayed for dismissing the appeals.
37. On overall analysis of the entire oral and documentary evidence on record, the prosecution has divided this case into several segments. The circumstances which are relied upon by the prosecution are:
I) Homicidal death and recovery of dead body of the deceased;
II) Motive;
III) Last seen theory of the deceased in the company of the accused; and IV) Recovery of M.O.8-chopper at the instance of accused No.2.
38. Before adverting to the above circumstances relied upon by the prosecution, we 33 should remind ourselves with regard to, how the prosecution should establish in the cases where the prosecution mainly relies upon the circumstantial evidence.
39. In this regard, it is worth to refer a decision of the Hon'ble Supreme Court in the case of C. CHENGAREDDY AND OTHERS v. STATE OF A.P reported in (1996) 10 SCC 193, which reads as under:
"In a case based on circumstantial evidence, the settled law is that the circumstances from which the conclusion of guilt is drawn should be fully proved and such circumstances must be conclusive in nature. Moreover, all the circumstances should be complete and there should be no gap left in the chain of evidence. Further, the proved circumstances must be consistent only 34 with the hypothesis of the guilt of the accused and totally inconsistent with his innocence...."
As per the principles laid down by the Hon'ble Supreme Court in the above said decision, we required to examine as to whether there is any lapse on the part of the prosecution in respect of proving the guilt and link the chain of circumstances against accused Nos.1 and 2 in order to say that they were the authors of the crime.
Homicidal death and recovery of dead body of the deceased:
40. In order to prove this circumstance, the prosecution has relied upon P.W.1-complainant- cousin brother of the deceased, who came to know that the dead body of the deceased was found in the ditch near Harikethamma temple. He has informed 35 the Police and in turn, they have visited the spot. After confirming the dead body of the deceased, the Police obtained complaint from P.W.1. As per Ex.P.1-complaint and P.W.29-P.S.I, who registered the case, visited the spot, prepared spot panchanama and inquest panchanama on the dead body in the presence of P.Ws.2, 3 and 4. All these three witnesses have supported the case regarding the recovery of dead body of the deceased near the ditch at Harikethamma temple which was identified by P.W.1, P.W.5-mother of the deceased including accused No.1-wife of the deceased. Evidence of P.Ws.1 to 4 and also evidence of P.W.29 clearly go to show that the dead body of the deceased was found dead near the ditch at Harikethamma temple which was recovered by the Police after conducting panchanama. There is no dispute from the accused 36 regarding the recovery of dead body of the deceased near the ditch at Harikethamma temple.
As per the evidence of P.W.29-Investigating Officer, after conducting inquest and spot panchanama in the presence of P.Ws.1 to 4, referred the dead body to the Doctor for conducting Post- Mortem examination. The P.W.23-Dr. Yuvaraj, who conducted Post-Mortem examination on the dead body of the deceased, has given evidence before the Court that the death of the deceased occurred due to head injury sustained and it is homicidal death. Evidence of P.W.23 and Ex.P.27-Post-Mortem examination report corroborate with each other that there was head injury on the dead body of the deceased which caused the death. The defence has also not disputed that the death of the deceased was homicidal one. Therefore, evidence of P.Ws.23 and 37 29 coupled with Ex.P.27 and inquest panchanama also reveals that there was head injury on the deceased, and the evidence of P.W.22-Scientific Officer and Ex.P.26-F.S.L. report, prosecution is able to establish that the dead body of the deceased was recovered near Harikethamma temple in the ditch and the deceased had sustained head injury and the death was homicidal one.
Motive:
41. The next circumstance relied by the prosecution is that of motive for the offence. In this regard, the prosecution has relied upon the evidence of P.Ws.1, 5, 8, 9 and 16. The case of the prosecution is that, the reason for commission of murder of the deceased is illicit intimacy between accused Nos.1 and 2. On perusal of the evidence of the prosecution witnesses stated above, all have 38 categorically stated that accused No.1 and the deceased used to work in the land of accused No.2 as coolie. It is also stated that the land was obtained by accused No.2 on lease from P.W.11-
Nanjappa. Previously, accused No.1 and the deceased resided in their village. Accused No.2 used to visit the house of the deceased, at that time, accused No.1 had developed illicit intimacy with accused No.2 and the same came to the knowledge of the deceased, family members and other villagers. Therefore, it is categorical case of the prosecution that there was panchayat held in this regard and warned accused Nos.1 and 2 to discontinue and disconnect the intimacy. It is further story of the prosecution that after panchayat and six months prior to the incident, the deceased and accused No.1 shifted their residence to the farmhouse of accused No.2 where both were working as coolie. Even 39 thereafter, accused No.2 continued illicit relationship with accused No.1 in spite of the deceased residing with accused No.1 along with their two children, who are aged 11 and 12 years respectively. Accused Nos.1 and 2 committed the murder of the deceased when the deceased objected them on their intimacy on 23-9-2012. It is also noted that there was land dispute between the deceased and P.W.1 and also other cousins and they were not talking to each other. P.W.1 and other cousins admitted in the cross-examination that there was dispute between the deceased and themselves. Therefore, the evidence of P.Ws.1, 8 and 9, who are cousins of the deceased, are not safe to accept in respect of motive for commission of the murder. That apart, there is no logic in the prosecution witnesses to believe that when panchayat was held and accused Nos.1 and 2 warned by the elders of the village to discontinue 40 their intimacy, then the question of accused No.1 and the deceased shifting their residence to the land of accused No.2 and residing in the same land along with children is not acceptable one. No prudent man will accept that when his wife having illicit intimacy with other man knowing fully shifts the residence belonging to that of same man. In this case, accused No.1 having illicit intimacy with accused No.2 and it was known to all villagers and after warning, shifting the residence to the farmhouse of accused No.2 is not believable. P.W.5- mother of the deceased also speaks about illicit intimacy between accused Nos.1 and 2 and panchayat held in that regard. Such being the case, no well wishers of the deceased including mother and cousins would allow the deceased to reside in the house of accused No.2 after knowing about illicit intimacy between accused Nos.1 and 2. It is well 41 settled that motive alone is not a criteria or ground to accept the cause for the murder, but the motive is also an important circumstance to be relied in addition to other circumstances. In this case, we are unable to believe the prosecution witnesses, i.e. P.Ws.1, 8 and 9 because of inimical terms with the deceased. That apart, evidence of P.W.5 does not inspires any confidence because in spite of illicit intimacy between accused Nos.1 and 2, her son shifted the residence to the farmhouse of accused No.2 and allowed to continue their relationship. Therefore, as a whole, motive relied by the prosecution cannot be acceptable, but it can be relied if other circumstances are strongly established by the prosecution.
42
Last seen theory:
42. Another circumstance relied by the prosecution is with regard to last seen theory of the deceased in the company of the accused. In this regard, the prosecution has relied upon the evidence of P.W.10-Manjamma, coolie. According to her evidence, at about ten days prior to finding of the dead body of the deceased, she went to the land of accused No.2, by that time, accused No.1 and the deceased were found near their house and accused No.1 told the deceased to go for ragi flour mill, at that time, the deceased expressed he was fed up with the attitude of accused No.1. She further stated that P.W.14-Yashoda was also present and at the time of completing the work at about 5:00 p.m., accused No.2 also came in his lorry and P.W.15-
Annegowda, who is another joint-lease holder with 43 accused No.2 also came to the land. Thereafter, she went back. After a week, she has gone to the house of the deceased, at that time, the deceased was not present. Accused Nos.1 and 2 were present. On enquiry with accused No.1 about the deceased, she informed that her husband has gone to Halebelagola and after two or three days, she heard the news about the dead body of the deceased found near Harikethamma temple. She has identified the clothes of the deceased and body of the deceased which was shown in Exs.P.3 to P.6-photographs and M.Os.1 to 7-clothes of the deceased. As regards to the identity of the deceased, Exs.P.3 to P.6 and M.Os.1 to 7 are not in dispute. Whether the evidence of this witness is acceptable in favour of the prosecution to prove the guilt of the deceased and last seen theory is the most important circumstance to be viewed by the Court cautiously.
44
In this regard, in the cross-examination, it was of total denial by the learned counsel for the accused. She has stated that she went to the land for getting wages and accused No.1 herself used to give wages. P.W.14-Yashoda was also present and used to take coolie along with her. But P.W.14 has not supported the case of the prosecution and she has denied her statement made before the Police in respect of last seen the accused in the company of the deceased that about ten days prior to the incident. Therefore, the evidence of P.W.14 is not useful for the case of the prosecution. P.W.15- Annegowda, co-lease holder of the land with accused No.2, who also said to be present when P.W.10 seen the deceased with accused Nos.1 and 2 also not supported the case of the prosecution. The only prosecution witness is P.W.10, who has seen the deceased in the company of the accused. In the 45 cross-examination, she has stated that she does not know about the discrepancies of the land belonging to P.W.11, extent of land and who all worked with P.W.11 apart from accused No.1 and the deceased. She further stated that she never went inside the house of the deceased and accused No.1. Further, she has categorically stated that she has not given any statement before the Police that on the said occasion, she went for coolie and except that, she has not stated anything. Further, she has stated that the deceased and accused No.1 led happy married life. She further admits that accused No.1 and deceased along with two children were residing in the said house. Further, the evidence of this witness goes to show that she has not stated before the Police, except she went to the land of the accused for coolie work. In the chief-examination, she has stated that she went to the land for work, at 46 that time, accused No.1 and the deceased were present. Presence of accused No.1 and the deceased together in the house where they resided are not in dispute as they were residing together. Further, as per her evidence, accused No.2 came in lorry to his land at 5:00 p.m. Therefore, accused No.2 coming to his land and presence of P.W.15 in the said land cannot be considered as special circumstance as they used to visit their land regularly. But as already held above, accused No.1 and the deceased resided in the farmhouse situate in the land of accused No.2, as husband and wife found together cannot be said that the deceased was in the company of accused No.1 prior to the incident. That apart, it is not the case that accused No.1 and the deceased resided in the house and seen by P.W.10 on the previous day and from very next date, the dead body of the deceased was found. It is the 47 case of the prosecution that the dead body of the deceased was found on 3-10-2012, after ten days of last seen together. That apart, it is also strange to believe that after a week again, P.W.10 went to the land, at that time, accused Nos.1 and 2 were there and the deceased was not there and accused No.1 informed her that the deceased had gone to Halebelagola. Thereafter, after three days, she saw the dead body the deceased. It is not possible to accept the story of the prosecution that accused No.1 is seen in the company of the deceased near their house and after ten days, dead body of the deceased was found cannot be presumed that accused Nos.1 and 2 are the cause for the death of the deceased. The Court requires to accept the evidence of P.W.10, if it is confidence and reliable. 48
P.W.10, admittedly, in her cross-examination, has stated that when the Police came to the spot, she was also present. P.W.29-Investigating Officer recovered the dead body, conducted spot panchanama and inquest panchanama and recorded the statements of other witnesses, but the Investigating Officer has not recorded the statement of this witness. If at all this witness seen the deceased in the company of accused Nos.1 and 2, ten days prior to the incident and the deceased was not found three days prior to the recovery of dead body, accused No.1 informed that he has gone to Halebelagola and nothing prevented her to say the same to the Investigating Officer on the spot. Hence, non-disclosure of the said fact on the spot to the Police is not safe to accept the evidence of this witness and not inspires any confidence that she has seen the accused in the company of the deceased ten 49 days earlier. Apart from that there is delay in recording the statement of P.W.10 by the Investigating Officer though P.W.10 was present near the spot when dead body was recovered which goes against the case of the prosecution to disbelieve her evidence.
The prosecution has also relied upon the evidence of P.W.16-cousin of the deceased. He has stated about illicit intimacy in respect of motive aspect and shifting the residence by the deceased to the farmhouse of accused No.2. As per his evidence, about 1½ year back, he went to the house of the deceased, which was in the farmhouse, at that time, accused No.1 was present and the deceased was not there. On enquiry, accused No.1 informed that the deceased had gone to her parental house. Immediately, accused No.1 came out of the house 50 and gave a phone call to someone and informed that the deceased is not in her parental house as they sent him to Bengaluru. Further on questioning accused No.1, she told that she came to know the said fact by telephoning the deceased and he returned back. After few days, he heard the news that the dead body of the deceased was found near Harikethamma temple and he has identified the dead body of the deceased. But in the cross- examination, he has stated that he has seen the dead body of the deceased near Harikethamma temple and stayed back at a distance as Police also came. On perusal of the evidence of this witness, he has not specifically stated on which day, prior to the recovery of the dead body, the deceased was not found in the house. Merely the deceased was not in the house, accused No.1 alone was present, that itself is not a ground to draw an inference that 51 accused No.1 gave a false or wrong information to the witness. According to the evidence of this witness, the deceased was not seen with the accused. The prosecution tried to show that the deceased was not in the company of accused No.1 through this witness. Merely, this witness has not seen the deceased, but accused No.1 alone in the house in which they were residing that itself cannot be doubted that accused have committed the murder of the deceased unless and until prosecution able to connect the sequences that the deceased was found in the company of the accused just a day or two days prior to the recovery of the dead body of the deceased. Therefore, the evidence of this witness is not safe to accept the prosecution story that the deceased was not found in the company of accused No.1.
52
On the other hand, prosecution relies on the evidence of P.W.10 that the accused was in the company of the deceased ten days prior to the incident and on 3-10-2012, dead body of the deceased was found. There is ten days gap in between last seen with accused No.1 in the company of the deceased. Therefore, it is unsafe to accept that accused were the cause for murder or death of the deceased. If it is the case of the prosecution that, a day earlier, both were present and on the next date, death of the husband, then only it is in the personal knowledge of the wife/spouse to explain what happened to her husband/spouse, as regard under Section 106 of the Indian Evidence Act how he died if it is unintentional death, but there is ten days gap in the last seen theory and recovery of the dead body of the deceased. Such being the case, there is every possibility that the deceased going outside and 53 something would have happened to the deceased, which cannot be said to be in the personal knowledge of accused No.1 or accused No.2. In this regard, learned counsel for the appellants-accused Nos.1 and 2 referred to an identical case decided by the Hon'ble Supreme Court in the case of GANPAT SINGH v. STATE OF MADHYA PRADESH reported in (2017) 16 SCC 353, which reads as under:
"10. Evidence that the accused was last seen in the company of the deceased assumes significance when the lapse of time between the point when the accused and the deceased were seen together and when the deceased is found dead is so minimal as to exclude the possibility of a supervening event involving the death at the hands of another. The settled formulation of law is as follows:
"The last seen theory comes into play where the time gap between 54 the point of time when the accused and the deceased were seen last alive and when the deceased is found dead is so small that possibility of any person other than the accused being the author of crime becomes impossible. It would be difficult in some cases to positively establish that the deceased was last seen with the accused when there is a long gap and possibility of other persons coming in between exists. In the absence of any other positive evidence to conclude that the accused and the deceased were last seen together, it would be hazardous to come to a conclusion of guilt in those cases".
xxx xxx xxx
13. We must also place in balance the testimony of PW.4 that when he enquired 55 regarding whereabouts of his mother, the appellant informed him that she had stayed back at the house of her sister. This, coupled with the fact that the appellant had absconded after the date of the incident is a pointer to a strong suspicion that the appellant was responsible for the death of Shantabai. However, a strong suspicion in itself is not sufficient to lead to the conclusion that the guilt of the appellant stands established beyond reasonable doubt. There are material contradictions in the case of the prosecution. These have been noticed in the earlier part of its judgment and are sufficient in our view to entitle the appellant to the benefit of doubt. The prosecution failed to establish a complete chain of circumstances and to exclude every hypothesis other than the guilt of the appellant."56
In the present case on hand, charges were framed against the accused specifically alleging that on 23-9-2012 at 7:30 p.m., accused Nos.1 and 2 were found in the house, the deceased came to the house and quarreled with accused No.1 why she continued relationship with accused No.2, at that time, accused Nos.1 and 2 in order to eliminate the deceased and to continue their relationship, accused No.2 took out a chopper and assaulted on the head of the deceased and caused murder. As we stated above, there is no eyewitness to show that on 23-9-2012, accused No.2 assaulted the deceased with M.O.8-chopper. Investigating Officer also not recorded the evidence of the children, belonging to accused No.1 and the deceased, who are aged about 10 and 11 years respectively. As per many prosecution witnesses, especially, P.W.5-mother of the deceased has stated that the deceased and 57 accused No.1 resided with their children in the said house. Such being the case, if any incident took place in the house, naturally, it will be in the knowledge of the children and they are eyewitnesses to the incident. Non-examination of the children on the spot is fatal to the case of the prosecution. That apart, there is no witness stated before the Court that incident actually took place on 23-9-2012. The circumstances evidence relied by the prosecution, especially, on the circumstance of last seen theory, the date and time of the commission of the murder cannot be fixed by the Investigating Officer without any evidence of the witnesses, who are not actual eyewitness to the incident. The date and time of the commission of the murder has to be relied by the prosecution only on assumption and presumption and whims and fancies of the Investigating Officer and in this case, it is fixed based upon the voluntary 58 statements of the accused. Any confession made by the accused in the custody of the Investigating Officer is not admissible, except recovery under Section 27 of the Indian Evidence Act. Such being the case, the date and time of the incident shown by the prosecution stating that on 23-9-2012 at 7:30 p.m. is imaginary one. In order to support our reasoning, it is worth to mention the evidence of P.W.23-Dr. Yuvaraj and Ex.P.27-Post-Mortem examination report which reveals that time since death of the deceased was 72 hours prior to Post- Mortem examination. Even if it is calculated, it comes to three days prior to 3-10-2012. Ex.P.27 clearly shows the appropriate time since death is 72 hours. This aspect has not been elicited by Public Prosecutor in the examination-in-chief as time since death is more than ten days. Evidence of the Doctor, time since death demolishes the case of the 59 prosecution that accused Nos.1 and 2 have committed the murder of the deceased on 23-9-2012. If the death was occurred on 23-9-2012, the time and death should be more than 240 hours from the date of Post-Mortem examination held on 3-10-2012. Therefore, the evidence of the Doctor regarding time since death is not corroborated to accept the case of the prosecution that accused Nos.1 and 2 committed the murder of the deceased on 23-9-2012. Therefore, as argued by the learned counsel for the accused and as per the judgment of the Hon'ble Supreme Court in Ganpat Singh's case (supra), the gap of time when the accused and the deceased last seen alive and the dead body found is after ten days, there may be possibility of other persons coming in between exists. Therefore, P.W.10 seen them together is not acceptable that the accused must be the cause for the death and it is 60 not in the personal knowledge of accused No.1 to explain what happened to her husband as in ten days time, anything would happen to the deceased outside the house. Therefore, Section 106 of the Indian Evidence Act would not attract in this case for explanation by accused No.1 regarding the death of her husband, whose dead body of the deceased was seen after ten days in the ditch. The evidence of P.W.10 is not worth or safe to accept the circumstances relied by the prosecution that P.W.10 has seen the deceased in the company of the accused. Therefore, we hold that the prosecution failed to prove the circumstances of last seen theory satisfactorily to prove the guilt of the accused and connect the accused with crime and death of the deceased. Therefore, the prosecution has failed to establish the link of the chain and the link of last seen theory.
61
Recovery of M.O.8-chopper
43. Another circumstance relied by the prosecution is recovery of M.O.8-chopper at the instance of accused No.2. In this regard, in order to prove the circumstance, the prosecution relied upon the evidence of P.W.29-Investigating Officer, P.W.7- panch witness to the recovery of M.O.8 and P.W.19- Photographer. P.W.29 has stated that P.W.25-Police Constable produced accused No.2 before him on 3-10-2012 and he has recorded the voluntary statement of accused No.2 as per Ex.P.32, wherein accused No.2 has confessed the crime and led to the house of accused No.1 and produced M.O.8 which was used for the commission of the offence and the same seized by him under panchanama as per Ex.P.10. He also identifies M.O.8 and Exs.P.12 to P.14 are the photographs. P.W.19-Photographer has 62 also given evidence that at the request of the Police, he accompanied the Investigating Officer, he visited the spot where the dead of the deceased was recovered and took the photographs. Subsequently, the Police called him to the farmhouse, where accused No.1 took out a chopper and gave to the Police and he has taken the photographs as per Exs.P.12 to P.14. He further stated that accused No.2 was holding chopper as per the photographs. He also identifies the photographs as well M.O.8- chopper. He further stated that the Police seized the same as it was used for the commission of the offence. This witness only speaks about taking of the photographs and accompanying the Investigating Officer. P.W.7, who is a panch witness to the seizure of M.O.8, has given evidence that on 3-10-2012 at 12:00 noon, the Police came to the farmhouse, accused No.2 shown the spot, where he committed 63 the murder of the deceased and accordingly, the Police prepared panchanama. He further stated that accused No.2 showed the spot, where dead body of the deceased was thrown and the Police seized M.O.8 under Ex.P.10. He identifies M.O.8 as well the photographs. In the cross-examination, this witness has stated that they went to the farmhouse, which was kept under lock. Thereafter, the Police opened the lock with the help of the key, but he does not know who brought the key in order to open the lock. He is unable to say the measurement of the house and further stated that accused No.1 took out M.O.8 and gave to the Police. P.W.19 also stated that accused No.1 gave the chopper. According to the case of the prosecution, accused No.1 is the wife of the deceased and accused No.2 is the paramour of accused No.1. This witness has stated that accused No.1 took out chopper and gave to the Police, but the 64 Photographer has taken the photograph as that accused No.2 handing over the chopper. P.W.29- Investigating Officer has stated that accused No.1 was arrested on 13-10-2012 and has given voluntary statement as per Ex.P.33 and she further stated that she will produce chopper which was used for the commission of the offence. P.W.29 has also recorded the voluntary statement of accused No.2 as per Ex.P.32 and accused No.2 led the Police to the house of accused No.1 and gave chopper and the same is recovered under panchanama. Even this witness has not stated that accused No.1 took the chopper from the farmhouse and given to him. Presence of accused No.1 in her house is not spoken by this witness. P.W.7 or P.W.19 or P.W.29 have not explained that when they had gone to the house of accused No.1, the door was locked and from whose custody, they brought the key to open the lock. That 65 apart, arrest of accused No.1 also causes serious doubt in the minds of the Court that as per the evidence of P.W.1 and P.W.29, a complaint has been lodged by P.W.1 and he has given further statement on the very next date. Accused No.1 also came to the spot and identified the dead body of the deceased and on the next date, statement of P.W.10 has been recorded with regard to last seen of the deceased in the company of accused No.1. Such being the case, there is no hurdle for Investigating Officer to arrest accused No.1, who was in the village itself, but arrested her only on 13-10-2012. There is no explanation forthcoming from the prosecution in spite of recording the statement of P.W.10, they have not arrested accused No.1 immediately and also not recorded the statement of children, who were residing with accused No.1 and the deceased, which creates several doubts on the prosecution story to 66 believe that accused Nos.1 and 2 on 23-9-2012 committed the murder of the deceased. There is every chance of falsely implicating with the crime is not ruled out. That apart, it is unable to believe that M.O.8 was used for commission of the offence as F.S.L report and the evidence of the Scientific Officer relied by the prosecution is not corroborating in order to connect the accused with the crime and weapon used for the offence. The evidence of P.W.21-Scientific Officer working in R.F.S.L., Mysuru, goes to show that she verified M.Os.2 and 8 sealed by Investigating Officer, she has received four articles, i.e., one chopper, T-shirt, scrapping from machu, cutting of T-shirt and as per Ex.P.24-F.S.L. report, there was a human blood found on M.Os.2 and 8. She has further stated that blood stain on M.O.8 is not sufficient for serological examination and item No.2 was stained with 'O' blood group. 67 Ex.P.26-F.S.L. report is issued by P.W.22-Scientific Officer, who examined the viscera of the deceased and has given evidence that there is no poison in the viscera of the deceased which rules out the death of the deceased by causing poisoning. On continuing the evidence of P.W.21 and Ex.P.24-F.S.L. report, the prosecution failed to connect the seizure of M.O.8 from accused No.2 in the house of accused No.1 to show that M.O.8 used for committing the murder of the deceased. There is no evidence to show the blood stains on M.O.8 and M.O.2 are one and the same which belongs to the deceased. The blood stains on M.O.8 were disintegrated and not able to find out the origin or fit for serological examination. Therefore, the prosecution failed to connect the accused with the crime for recovery of M.O.8 from accused Nos.1 or 2 to show that the accused used M.O.8 for murdering the deceased. 68 That apart, story of the prosecution is not acceptable that the recovery of M.O.8 from the house of accused No.1. It is also not possible to believe the prosecution story since at one stretch, the prosecution shows that accused Nos.1 and 2 committed the murder of the deceased and in order to destroy the evidence, they carried the dead body and thrown into the ditch and in order to further cause disappearance of the evidence, blood stains in the house have been wiped and they have put the same in a plastic cover and thrown into the water. If they have wiped or cleaned the blood stains on the spot in order to cause disappearance of the offence or to destroy the evidence, definitely the accused might have cleaned the blood stains even on M.O.8 and would have thrown the chopper as well. In the case on hand, they have not cleaned the blood stains on M.O.8 and by keeping the same in the house 69 facilitated the Police to come and seize. Once the accused in order to destroy the evidence, cleaned the blood stains on the ground, definitely, they would not allow the blood stains to remain on the weapon and that too, which was kept in the house and they would have thrown M.O.8 with other items into the water. Therefore, the story of the prosecution cannot be acceptable. Accused Nos.1 and 2 cleaned the blood stains in order the cause the disappearance of the evidence in order to attract Section 201 of the IPC. That apart, P.W.7 is also an interested witness and also having enmity with accused No.1 with regard to property dispute and he is unable to say, who opened the key. That apart, the very presence of the blood stains on M.O.8 and keeping the same in the house of the accused is not acceptable, there is every chance of placing M.O.8 in the house is not ruled out. Therefore, we have no confidence to 70 accept the evidence of P.W.7 and P.W.29 to prove the recovery of M.O.8 at the instance of accused No.2 in the house of accused No.1 to connect the accused with the crime.
44. Therefore, we hold that the prosecution utterly failed to prove and connect all these circumstances relied by the prosecution to connect the accused with the crime. As held by the Hon'ble Supreme Court, if there is any break in the chain circumstances, if not established satisfactorily and even if the motive is established that itself is not base for conviction. Until otherwise, clinching chain of circumstances relied upon by the prosecution is satisfactorily connect with each other to establish or presume without any hypothesis that the accused and none other than the accused are the cause for the murder or death of the deceased. Therefore, the 71 evidence of the prosecution witnesses is unsafe to accept the theory of the last seen. The time gap between last seen theory, recovery of the dead body of the deceased is not satisfactorily examined and the evidence of P.W.23-Dr. Yuvaraj, time since death was three days prior to Post-Mortem examination report, but the case of the prosecution is that, the murder was committed ten days prior to the recovery of the dead body which goes to show that there is inconsistency in the evidence of the prosecution witnesses in order to prove the charges framed against them. The evidence of P.Ws.1 and 29 goes to show that the dead body was found on 2-10-2012 itself and on 3-10-2012, P.W.1 gave information to the Police. The Investigating Officer along with Police visited the spot on 3-10-2012 at 7:15 a.m. and he has enquired with all the villagers including accused No.1, who identified the deceased. Though 72 all the villagers were present, P.W.29 has not recorded the statement of any of the witnesses, who identified the deceased, but he goes back to the Police Station, obtained the complaint from P.W.1 and after registering the case, at 1:00 P.M. again he visited the spot, then conducted spot panchanama, inquest panchanama and shifted the dead body of the deceased. All goes to show that there is ordinal delay in registering the case by the Investigating Officer though he visited the spot at 7:15 a.m., he could have registered the UDR case by obtaining information from any of the witnesses before the recovery of dead body and he could not have waited till someone comes for lodging the complaint, which goes to show that after discussion and due deliberation, he registered the case by obtaining the complaint. Therefore, P.W.1 who is in inimical term with accused No.1 and the deceased, there is every 73 chance of falsely implicating accused No.1 on the ground of illicit intimacy with accused No.2 are not ruled out. Therefore, the prosecution failed to prove link the chain of circumstances of last seen theory, recovery of M.O.8 in connection with the death of the deceased and also failed to establish the motive aspect for the crime.
45. In view of the above findings, we hold that the prosecution failed to prove any of the circumstances that on 23-9-2012, accused Nos.1 and 2 committed the murder of the deceased due to illicit intimacy between them and thrown the dead body of the deceased and cleaned the blood stains to cause the disappearance of the evidence of murder in order to attract Sections 302 and 201 of the IPC beyond all reasonable doubt. Therefore, the benefit 74 of doubt shall have to be extended to accused Nos.1 and 2 and they are entitled for acquittal.
46. Accordingly, we proceed to pass the following:
ORDER i. Both the appeals are allowed;
ii. The judgment of conviction and order on
sentence dated 6-12-2014 passed in
Sessions Case No.39 of 2013 on the file Presiding Officer, Fast Track Court and Additional Sessions Judge, Channarayapatna, is hereby set-aside;
iii. Accused Nos.1 and 2 are acquitted for the offences punishable under Sections 302 and 201 read with Section 34 of the IPC; and 75 iv. Accused Nos.1 and 2 are in custody and they are ordered to be set at liberty, forthwith, if they are not required in any other case.
In view of the disposal of the appeals, I.A. No.1 of 2018 in Criminal Appeal No.151 of 2015 is also disposed of.
Sd/-
JUDGE Sd/-
JUDGE GBB / kvk