Karnataka High Court
Smt.Beebijan W/O Rajesab Nadaf vs State Of Karnataka on 7 January, 2020
Bench: K.N.Phaneendra, Pradeep Singh Yerur
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IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
ON THE 07 T H DAY OF JANUARY 2020
PRESENT
THE HON'BLE MR. JUSTICE K.N. PHANEENDRA
AND
THE HON'BLE MR. JUSTICE PRADEEP SINGH YERUR
CRIMINAL APPEAL NO.100112 OF 2015
C/W
CRIMINAL APPEAL NO.100002/2016
CRIMINAL APPEAL NO.100006/2016
CRIMINAL APPEAL NO.100155/2017
IN CRIMINAL APPEAL NO.100112 OF 2015
BETWEEN
SHASHIDHAR HUGAR
S/O.SHANMUKAPPA HUGAR,
AGE: 38 YEARS,
OCC: AGRICULTURE,
R/O. HOSALLI,
TQ & DIST: GADAG
... APPELLANT
(BY SRI. NEELENDRA. D. GUNDE, ADV.,)
AND
THE STATE OF KARNATAKA
BY GADAG RURAL POLICE
REPRESENTED BY
STATE PUBLIC PROSECUTOR
HIGH COURT BUILDING, DHARWAD.
... RESPONDENT
(BY SRI. V. M. BANAKAR, ADDL., SPP)
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THIS CRIMINAL APPEAL IS FILED UNDER
SECTION 374 OF CR.P.C., SEEKING TO CALL FOR THE
RELEVANT RECORDS AND ALLOW THIS CRIMINAL
APPEAL BY SETTING ASIDE THE JUDGMENT AND
ORDER OF CONVICTION AND SENTENCE RECORDED
BY THE DISTRICT & SESSIONS JUDGE-GADAG IN S.C.
NO.72/2012 DATED 25.03.2015, THEREBY
CONVICTING THE APPELLANT FOR THE OFFENCE
PUNISHABLE UNDER SECTION 302, 120-B READ WITH
SECTION 34 OF IPC.
IN CRIMINAL APPEAL NO.100002 OF 2016
BETWEEN
BASAVARAJ @ BASAPPA
S/O.SHIVAPPA BENTUR @ PATTED,
AGE:28 YEARS,
OCC:AGRICULTURE,
R/O:MADALLI,
TQ:SHIRAHATTI,
DIST:GADAG.
... APPELLANT
(BY SRI. NEELENDRA D. GUNDE, ADV., FOR
SRI. GIRISH S HIREMATH, ADV., FOR APPELLANT)
AND
THE STATE OF KARNATAKA
BY GADAG RURAL POLICE,
REPRESENTED BY
STATE PUBLIC PROSECUTOR,
HIGH COURT BUILDING,
DHARWAD.
... RESPONDENT
(BY SRI. V. M. BANAKAR, ADDL., SPP)
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THIS CRIMINAL APPEAL IS FILED UNDER
SECTION 374(2) OF CR.P.C. SEEKING TO CALL FOR
THE RELEVANT RECORDS AND ALLOW THIS CRIMINAL
APPEAL BY SETTING ASIDE THE JUDGMENT AND
ORDER OF CONVICTION AND SENTENCE RECORDED
BY THE LEARNED DISTRICT AND SESSIONS JUDGE-
GADAG IN S.C. NO 72/2012 DATED 25/03/2015
THEREBY CONVICTING THE APPELLANT FOR THE
OFFENCE PUNISHABLE UNDER SECTION 302, 120-B,
READ WITH SECTION 34 OF IPC.
IN CRIMINAL APPEAL NO.100006 OF 2016
BETWEEN
SMT.BEEBIJAN W/O RAJESAB NADAF,
AGE:37 YEARS,
OCC:AGRICULTURE,
R/O:HOSALLI TQ:GADAG.
... APPELLANT
(BY SMT. M. L. DESAI, ADV.,)
AND
STATE OF KARNATAKA
REPRESENTED BY SPP
HIGH COURT DHARWAD BENCH,
(GADAG RURAL PS CPI)
... RESPONDENT
(BY SRI. V. M. BANAKAR, ADDL., SPP)
THIS CRIMINAL APPEAL IS FILED UNDER
SECTION 374(2) OF CR.P.C. SEEKING TO SET ASIDE
THE CONVICTION AND SENTENCE ORDER DATED
25/03/2015 PASSED BY ADDITIONAL DISTRICT AND
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SESSION JUDGE GADAG FOR OFFENCES PUNISHABLE
UNDER SECTION 302, 120B, IPC READ WITH SECTION
34 IPC IN SC 72/2012 AND ACQUIT THE APPELLANT/
ACCUSED NO.2 FOR THE CHARGES FRAMED AGAINST
HER.
IN CRIMINAL APPEAL NO.100155 OF 2017
BETWEEN
SMT. SHEKHAWWA @ MADEVI
W/O BASAPPA CHALAPPANAVAR,
AGE: 41 YEARS,
OCC: AGRICULTURE,
R/O: MADALLI,
TAL: SHIRAHATTI, DIST: GADAG.
... APPELLANT
(BY SRI. NEELENDRA D. GUNDE, ADV., FOR
SRI. VIJAYKUMAR B HORATTI, ADV., FOR APPELLANT)
AND
THE STATE OF KARNATAKA,
BY GADAG RURAL POLICE,
REPRESENTED BY
STATE PUBLIC PROSECUTOR,
HIGH COURT BUILDING,
DHARWAD.
... RESPONDENT
(BY SRI. V. M. BANAKAR, ADDL., SPP)
THIS CRIMINAL APPEAL IS FILED UNDER
SECTION 374 OF CR.P.C., PRAYING TO CALL FOR THE
RELEVANT RECORDS AND ALLOW THIS CRIMINAL
APPEAL BY SETTING ASIDE THE JUDGMENT AND
ORDER OF CONVICTION AND SENTENCE RECORDED
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BY THE DISTRICT AND SESSIONS JUDGE, GADAG IN
S.C.NO. 72 OF 2012 DATED 25.03.2015, THEREBY
CONVICTING THE APPELLANT FOR THE OFFENCE
PUNISHABLE UNDER SECTION 302, 120-B READ WITH
SECTION 34 OF IPC.
THESE CRIMINAL APPEALS COMING ON FOR
FINAL HEARING, THIS DAY, K.N.PHANEENDRA, J.,
DELIVERED THE FOLLOWING:
JUDGMENT
The appellant in Criminal Appeal No.100112/2015, the appellant in Criminal Appeal No.100006/2016, the appellant in Criminal Appeal No.100155/2017 and the
appellant in Criminal Appeal No.100002/2016, respectively, are arraigned as accused Nos. 1 to 4 in a Sessions Case in SC No.72/2012 on the file of Principal District Judge, Gadag. They have preferred these appeals independently against the judgment of conviction and sentence passed against them in the above noted case vide judgment dated 25.03.2015, wherein the learned :6: Sessions Judge has convicted and sentenced them to undergo imprisonment for life and to pay a fine of Rs.5,000/- each with default sentence of one year imprisonment for the offence under Section 302 r/w section 34 of the Indian Penal Code and also sentenced them to undergo rigorous imprisonment for two years for the offence under Section 120-B read with Section 34 of the Indian Penal Code. However, the accused were acquitted for the offence under Section 176 of the Indian Penal Code for which they were also charged.
2. Before adverting to the submissions made by the learned counsel for the appellants and the learned Additional SPP, we feel it just and necessary to have the brief factual matrix of the case on hand.
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3. The respondent police have laid a charge-sheet against the accused persons for the offences punishable under Sections 302, 120-B, 176 read with Section 34 of the Indian Penal Code. As per the charge-sheet submitted by the police, the allegations made against the appellants are that, accused No.3 is the wife of the deceased, Basappa. Basappa is no other than the brother of the complainant by name Channappa, examined as P.W.3 before the Trial Court. The said accused No.3 had some illicit intimacy with accused No.4. In spite of best advice from the elders of the family and the villagers, the accused Nos.3 and 4 have continued their illicit intimacy with each other. For this particular aspect, deceased, Basappa, was often assaulting accused No.3. In the above said backdrop, it is further alleged that accused Nos.3 and 4 have contacted accused Nos.1 and 2 :8: seeking their help to do away with the life of the deceased, Basappa and they assured that they would pay an amount of Rs.1,00,000/- each to accused Nos.1 and 2 in order to help accused Nos.3 and 4 to eliminate deceased, Basappa.
4. In the above said backdrop, it is the further allegation of prosecution that on 02.06.2012, accused Nos.1 and 2 have taken the deceased along with them on a motorcycle and they took the deceased for the purpose of consuming alcohol. It is alleged that accused No.3 has mixed some poison in water and gave the same to accused No.1 and accused No.1 to forcibly administer the poison to deceased Basappa. Said Basappa has refused to drink the said poison and thereafter it is alleged that accused Nos.1 and 2 took the deceased to Mulagund Kurthkoti road and forcibly tried to :9: administer the said poison again mixed with alcohol and thereafter, they took him to Chikkahandigol cross near Kailash Ashram Matt, near Survey No.205/5 and at about night 8.00 p.m. At that place, they forcibly administered alcohol containing poison and accused No.1 in fact, smothered the mouth and nose of the deceased and accused No.2 has squeezed the testicles of the deceased. Due to the impact of the said acts of accused Nos.1 and 2, the deceased died due to asphyxia complications. On the basis of which, the police have investigated the matter thoroughly and nabbed the accused persons during the course of the investigation and sent the accused persons for trial. After committal proceedings, the Trial Court after securing the presence of the accused, proceeded to frame charges for the offences under Sections 302, 120- : 10 : B, 176 read with Section 34 of the Indian Penal Code and put the accused persons on trial.
5. The prosecution in order to bring home the guilt of the accused examined as many as 23 witnesses as P.W.1 to P.W.23 and got marked 33 documents as Ex.P.1 to Ex.P.33 and material objects as M.Os.1 to 18. After examination of the prosecution witnesses, the accused persons were also examined by the Trial Court under Section 313 of the Code of Criminal Procedure. The accused were also called upon to enter into any defence evidence on their side. As the accused did not choose to do so, after hearing both the sides, the Trial Court has arrived at a conclusion that the prosecution has proved its case beyond all reasonable doubt. Hence, it convicted the accused persons for the above said offences and sentenced them as noted supra.
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6. The learned counsel for the appellants strenuously argued before the Court that the entire case revolves around circumstantial evidence and the circumstances projected by the prosecution have not been properly and beyond reasonable doubt established. The witnesses examined for last seen together, P.Ws.6 and P.W7 have not supported the case and P.W.15 also not fully supported the case and his cross- examination has not been properly appreciated by the Trial Court. The prosecution though relied upon the evidence of P.Ws.3, 6, 7 and 15 to prove the motive factor also, there is absolutely no evidence to draw any inference with regard to existence of any such motive. The postmortem report also shows that the doctor has not given a specific opinion with regard to homicidal death of the deceased. It is only stated that the death was due to asphyxia complications. The reasons for : 12 : asphyxia has not been stated by the doctor in the postmortem examination report. Therefore, the Trial Court has committed an error that there was a proof with regard to homicidal death of the deceased. There is absolutely no recovery of any incriminating materials, which connect accused persons to the crime. There is absolutely no evidence that too no witnesses have even by means of semblance of evidence deposed with regard to the conspiracy entered into between accused Nos.1 to 4. Therefore, he contends that on overall looking to the entire materials on record, the prosecution has not proved the case beyond reasonable doubt. The Trial Court, on the basis of conjectures and surmises and on its own imagination has drawn the inferences, which is not based on any appreciation of evidence on record, convicted and sentenced the accused : 13 : persons. Therefore, the said judgment deserves to be set-aside.
7. Per contra, the learned SPP has argued before the Court that, there is a strong evidence of P.W.15, who has last seen the accused Nos.1 and 2 taking away the deceased on a motorcycle on the previous day of the incident and on the next day the dead body of the deceased was found. There is strong evidence by P.W.15 that the accused persons, particularly, accused Nos.1 and 2 were last seen together with deceased. There is absolutely no explanation from accused Nos.1 and 2 as to what happened after they took away the deceased along with them. In the absence of such explanation by the accused, the inference drawn by the Trial Court that they must be the perpetrators of the crime, cannot be easily brushed aside. The motive factor is a : 14 : hidden factor in the mind of the accused Nos.3 and 4. It can only be gathered from the surrounding circumstances. P.W.3 and P.W.15 have to some extent spoken about the existence of motive coupled with the last seen and the motive, the Trial Court has rightly convicted accused persons for the above said offences. Therefore, there is no reason for this Court to interfere with the judgment of the Trial Court and hence, he pleaded for dismissal of the appeal.
8. We have carefully re-evaluated the entire oral and documentary evidence on record. As rightly contended by both the counsel, the entire case revolves around circumstantial evidence. The prosecution has broadly divided its case into the following circumstances and projected the same in order to prove the guilt of : 15 : the accused persons. The circumstances can be divided in the following manner:
i) Conspiracy between accused Nos.1
to 4.
ii) Accused Nos.1 and 2 and deceased
were last seen together in
furtherance of their said conspiracy.
iii) Homicidal death of the deceased.
iv) The motive.
v) Recovery of some incriminating articles like mobiles from all the accused persons coupled with Ex.P.31/call details.
vi) Possession of the motorcycle used in the course of offence by accused No.1, the accused Nos.1 and 2 receiving the amount of : 16 : Rs.1,00,000/- each to help accused Nos.3 and 4.
9. Before specifically adverting to the above said circumstances, we would like to have a brief cursory look at the evidence of the prosecution witnesses recorded by the Trial Court.
10. P.W.1, Manjunath Karigoudar, is an inquest witness, who is the attester to Ex.P.1, who has only stated about witnessing the dead body and the police drawing up inquest panchanama on the dead body of the deceased. There is no much dispute from the other side sofar as this particular aspect is concerned. Further, the drawing up of the inquest panchanama itself will not incriminate the accused in any manner.
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11. P.W.2, Channabasavaraj, is the spot pancha witness, attester to Ex.P.2 under which the police have seized M.Os.7 and 16, a water bottle and Havai Chappal. There is no explanation sofar as these two items are concerned how they would connect the accused persons.
12. P.W.3, the complainant, who is a star witness to the prosecution, who is the person who lodged Ex.P.3/UDR information and subsequently, a detailed complaint as per Ex.P.4. We would like to discuss the evidence of this witness little later with reference to the circumstances noted above.
13. P.W.4, Shivanand, who is also a pancha witness for recovery of mobiles and SIM cards, which are marked at M.Os.6 to 14 under Ex.P.5, which is the panchanama drawn by the police. : 18 :
14. The learned SPP has fairly conceded before the Court that though Ex.P.31 is the call details marked before the Court, there is no witness examined in order to prove the contents of this Ex.P.31. The Investigating Officer also has not stated how the call details connect the accused persons to the crime. Therefore, we are of the opinion that there is no need for this Court to in detail discuss about M.Os.6 to 14 with reference to Ex.P.31, as the said documents and material objects do not in any manner connect accused persons except showing the recovery from them.
15. P.W.5, Ramajan Sab, who is also a circumstantial witness speaks about accused persons consuming alcohol along with the deceased. This witness has not supported the case of the prosecution. He turned hostile. : 19 :
16. P.W.6, P.W.7 and P.W.15 are the witnesses, who alleged to have seen the accused Nos.1 and 2 along with the deceased on the relevant time and date, just prior to the incident. The evidence of these witnesses also we would like to discuss little later.
17. P.W.8, Lalitavva, who is the owner of a shop from whom P.W.12 has purchased some lisle powder.
18. P.W.9, Mallikarjun, is a police constable, who took the material objects to the FSL Belagavi. In our opinion, he is a formal witness. Likewise, P.W.10, Prabhappa, a police constable carried the First Information Report as per Ex.P10 to the Court is also a formal witness as there is no delay in dispatching the First Information Report to the Jurisdictional Court. : 20 :
19. P.W.11, Dr. H. Nagaraj, who issued postmortem report as per Ex.P.11 and he speaks about the FSL report marked at Ex.P.12. He speaks about the cause of death of the deceased.
20. P.W.12, Shobha, is no other than the daughter of the deceased, Basappa, who speak about purchasing of lisle powder, but she has not fully supported the case of the prosecution.
21. P.W.13, Ramesh, the manager of a bar, who was examined for the purpose of establishing that the accused No.1 has purchased some alcohol from the said bar. He has also not supported the case of the prosecution.
22. P.W.14, Pradeep, is a police constable, who carried the dead body after the inquest proceeding for postmortem examination. : 21 :
23. P.W.16, Boodesh, the driver of tom-tom vehicle and P.W.17 is the owner of a tom-tom vehicle. In fact, both have not fully supported the case of the prosecution.
24. P.W.18, Basappa, is the father of accused No.3. He was examined to establish the motive factor. He has also not supported the case of the prosecution.
25. P.W.19, Shekhappa, the owner of the motorcycle has not fully supported the case of the prosecution.
26. P.W.20, Chandrappa, who saw the dead body first and informed the police and in turn after ascertaining the telephone number of P.W.3, the death of the deceased was informed to P.W.3.
27. P.W.21, Mahantgouda, is an assistant Executive Engineer, visited the spot and drew a : 22 : sketch as per Ex.P.24, which is also not much disputed and it is not so relevant for consideration of other circumstances.
28. P.W.22, Basavantrao, ASI has conducted part investigation and P.W.23 Mr. Naragaj, Deputy Superintend of Police arrested the accused persons, recorded the confession statement and ultimately he completed the investigation and laid the charge-sheet against the accused persons.
29. Now we would like to examine the above said circumstances with reference to the evidence on record in detail.
Conspiracy:
30. In order to establish existence of conspiracy between accused nos.1 to 4 except the evidence of P.W.3 no other witnesses have been examined. The conspiracy as defined u/S 120-B of the Indian Penal code itself : 23 : presupposes that when two or more persons agreed to do or caused to be done an illegal act or an act which is not legal by illegal means, such an agreement is designated as criminal conspiracy. Therefore, the prosecution has to show that there was an agreement though not in writing between the accused persons in order to do an illegal act particularly in this case, to do away with the life of the deceased Basappa.
31. P.W.3 in this regard has only stated that the accused nos.1 and 2 had taken away the deceased along with them one day prior to the incident as per the information given to him by P.Ws.6 and 7. Except stating that in the examination in chief he has never stated that, at any point of time prior to the incident accused nos.1 to 4 have seen together or met each other for the purpose of conspiring themselves for to do any illegal act. Further added to that, it is the case of the prosecution that accused nos.3 and 4 have given an : 24 : amount of Rs. 1,00,000/- each to accused nos.1 and 2 in order to help them for eliminating the deceased. For that also there is absolutely no witness examined to show that accused Nos.3 and 4 met accused nos.1 and 2 prior to the incident at any point or time or after the incident and amount has been given to the accused nos.1 and 2. Perhaps the prosecution mainly relying upon the voluntary statement of accused nos.1 to 4 in this regard which cannot be used against them, without there being any other corroborative evidence on record. The court cannot even look into the voluntary statement of the accused if the same does not fall U/s. 27 of the Indian Evidence Act. Therefore, as rightly contended by the learned counsel for the accused there is absolutely zero evidence sofar as the conspiracy circumstance is concerned.
Homicidal death of the deceased:
32. The prosecution, in fact, in order to prove the homicidal death, though examined some of the witnesses : 25 : who were present at the time of drawing up of the inquest by the Police and also the postmortem examination report conducted by the P.W.11. Of course, there is no much dispute with regard to the death of the deceased. The identification of the deceased by P.W.3 (the dead body) as that of the deceased is not in much controversy in the course of cross examination particularly with reference to the identity. But, mere death of a person is not sufficient to prove the homicidal death of the said person. The prosecution has to establish with all cogent and convincing materials to establish homicidal death. If the homicidal death itself is suspicious in nature, in such an eventuality the prosecution cannot be said that, it has proved the case beyond reasonable doubt. Of course P.W.1 has stated that he was present at the time of inquest panchanama. There were absolutely no injuries found on the dead body because as per the evidence of P.W.11/doctor, the dead : 26 : body was already decomposed and head portion was also decomposed.
33. It is the case of the prosecution that, accused No1. has actually throttled the neck as well as smothered the mouth and nose of the deceased in order to block the air passage of the deceased. It is further alleged that the accused No.2 has squeezed the testicles of the deceased. But there are no visible injuries external or internal found by the Doctor as per Ex.P.11 and also as per the evidence of P.W.11, the Doctor. The consequence of squeezing of the testicles has not been spoken to even by the Doctor in order to come to a conclusion that it has got any impact with regard to the cause of death of the deceased. When the Doctor-P.W.11 has stated that death was due to asphyxia complications but he has not in detail explained the cause for asphyxia, except stating mechanically in the said manner. Asphyxia can be due to various reasons. It may be due to blocking of the air : 27 : passage or due to strangulation or hanging or for some other reasons, which can only be diagnosed by an expert while conducting the postmortem examination. In this case how that asphyxia has occurred, is not at all stated by the doctor. Therefore, it cannot be said that only due to the smothering or throttling of the neck or due to squeezing of the testicles, the death has occurred. May be due to some other reasons if the death has occurred it cannot be said that there was any connection between the act alleged against the accused and the death of the deceased. Therefore, in the absence of such explanation in the postmortem examination report and in the evidence of the Doctor, the Court may not be in a position to conclusively hold that prosecution has proved the homicidal death of the deceased beyond reasonable doubt.
34. The second ground that has been taken by the prosecution with reference to the death of the : 28 : deceased is that the accused Nos.1 and 2 have administered alcohol and also poison mixed with alcohol. But the FSL report at Exs.P.12 and 33, both of them have negatived this particular aspect. There is nothing on record to show that either the deceased has consumed alcohol or any poison was found in the stomach or any other part, which was sent by the Doctor for FSL examination. Therefore, the Police might have inferred this fact on the basis of the voluntary statement of the accused, it is only an imaginary inference drawn by the Police at the time of filing of the charge sheet. Therefore, the above facts and circumstances, in our opinion, creates a serious suspicion in the case of the prosecution with reference to the proof of homicidal death.
35. Be that as it may, even assuming that the deceased died a homicidal death, whether the accused persons are responsible for the homicidal death of the deceased, is also a point that has to be looked into. : 29 : Last seen together:
36. The strong and vital important aspect relied upon by the prosecution is that the accused nos.1 and 2 were last seen together with the deceased. For this, the prosecution has relied upon the evidence of P.Ws.3, 6, 7 and 15. Of course, P.W.3 is not a witness for last seen but he receives the information from P.Ws.6 and 7. According to him, as stated in Ex.P.4, P.Ws.6 and 7 met him and told him that accused nos.1 and 2 had taken away the deceased on the motorcycle on the previous day of the incident. Except that, he has not personally stated anything about the accused nos.1 and 2 taking away the deceased in his presence on that particular day. His evidence, in our opinion, is not even corroborated from the evidence of P.Ws.6 and 7. P.Ws.6 and 7 have totally turned hostile sofar as this particular last seen theory is concerned. They have virtually broken the backbone of the prosecution. In the course of examination in chief : 30 : they not even stated that, they have seen the dead body of the deceased after the incident. They also turned hostile sofar as the motive factor is concerned.
37. In the course of cross-examination also nothing has been elicited from the mouth of these witnesses in order to at least seek corroboration to the evidence of P.W.15.
38. The last witness remained sofar as this last seen theory is P.W.15/Murigeppa. He has stated that, about three years ago on one day, the accused nos.1 and 2 at about 12 noon came near the house of Basappa, the deceased. At that time, this witness was sitting in front of his house, at that place the accused nos.1 and 2 between 12.30 and 1 p.m. took the deceased along with them. In the evening also at about 4 p.m. the accused No.1 came to the house of deceased Basappa and accused Nos.1 and 2 took the deceased with them on a motorcycle. They all went towards Yatnalli road on a : 31 : motorcycle at about 5 or 5.30 p.m, thereafter the Basappa did not return. He came to know later about the death of Basappa on the same night at about 11 p.m. as the news was spread in the village by that time, but he did not go to the hospital on the next day. But, he again says that some senior members of the village had visited the hospital. Very strangely he states that deceased sustained injuries underneath to his waist and other parts of the body, which were bleeding injuries and there was a swelling on the neck portion and he suspected that Basappa might have been murdered due to assault by some people.
39. Looking to the above said evidence, even in the examination in chief without going to the cross examination he has not specifically stated about on what day exactly that he has seen the accused nos.1 and 2 with the deceased going together, about three years ago. : 32 :
40. In this context it is worth to mention here a passage in "Sarkar - Law of evidence, 19th edition - Volume-1" which is based on a decision of the decision of the Division Bench of this Court reported in (2006) 2 KLJ 173 between State of Karnataka v.
Marulasiddaiah, wherein it is observed that:
"Where the evidence placed on record by the prosecution does not positively indicate that the deceased was last seen in the company of the accused just prior to her death, the evidence of the witness was that they saw the deceased and the accused about a year back or about a year and two months back at about 6 p.m. in the evening, held the evidence did not establish that the accused was last seen in the company of the deceased before her death, the acquittal of the deceased on the charge of murder was upheld by the High Court.
---
In this case also he only deposed, about three years ago, on one day he had seen the accused and : 33 : deceased together, which was very vague in nature in order to draw any inference.
41. In the course of cross examination also nothing worth has been elicited that his evidence can be believed when particularly the sole evidence of this witness, P.W.15 is relied upon, when the other two witnesses who are also similarly placed have turned hostile to the prosecution. Therefore, the last seen theory projected by the prosecution though some semblance of material has been placed before the Court for consideration is not corroborated by any other materials on record. It is the duty of the prosecution to prove that after the accused persons and deceased last seen together, the death of the deceased occurred, there was no interference by any third party in between the death, last seen of the accused and the deceased and the death was immediately after the accused and deceased were last seen together. Therefore, in our opinion the : 34 : evidence of this witness cannot be made sole basis for the purpose of conviction of the accused. Further, added to that, this witness is very well known to P.W.3 and he knew the wife of the accused, they were all known to each other. Therefore, when he saw the dead body on the next day and he received some doubt with regard to the death of the deceased on the same day at about 11 p.m. , it is not explained as to why he kept quite for such a long time till his statement was recorded by the Police and not disclosed the said important vital fact to P.W.3 or to anybody. It is not that P.W.3 has received any information from this witness with regard to the last seen together. P.W.3's evidence shows that he only received such information from P.Ws.6 and P.W.7. Therefore, keeping mum for such a longtime knowing fully well that the deceased Basappa died on the next day and his dead body was found with some injuries, according to him creates a serious doubt. Therefore, when such discrepancy is there in the evidence of this witness it is : 35 : not safe for the court to rely upon the said evidence in order to draw inference of guilt against the accused, which the trial Court has erroneously done. Therefore, we are of the considered opinion that the prosecution has also not proved the last seen theory beyond reasonable doubt.
Motive:
42. The next important factor is the motive, particularly in a circumstantial case the motive play a dominant role, unless strong motive is established and other circumstances are not corroborating the evidence of the prosecution, in such an eventuality, non proving of the motive cut the root of the prosecution case itself. In this background if we examine the evidence of the prosecution witnesses, we are of the opinion that, all the witnesses almost stated that they have got rumors that the accused nos.3 and 4 had some illicit intimacy with each other. Except stating that nothing is there to show : 36 : that any of the witnesses, particularly, P.Ws.6, 7 and 15 as well as P.W.3 have got any special knowledge or personal knowledge or information about the illicit intimacy between accused nos.3 and 4. Mere suspicion and doubt in the mind of the witnesses, that their might be some relationship between accused nos.3 and 4 will not take the place of proof. The prosecution has to prove this factor with some reasonable and acceptable facts otherwise it creates a serious doubt with regard to the existence of the illicit intimacy between the accused nos.3 and 4, because the prosecution case stands on this particular motive in order to connect the accused that they had a strong motive to do away with the life of the deceased.
43. P.W.3 has specifically stated that, accused nos.3 and 4 had some intimacy with each other. Therefore, there was a panchayath in their village wherein P.W.s.6, 7 and other persons by name : 37 : Fakirappa-C.W.10 participated in the said panchayath in order to advise accused nos.3 and 4 not to continue their illicit relationship. As noted above, C.W.10 has not been examined before the court and C.W.12-Basappa and C.W.20-Basavaraj examined before the court have not supported the case of the prosecution. They totally turned hostile sofar as this particular aspect is concerned.
44. P.W.15 also in a very vague manner has stated that there was some rumors in the village that the accused nos.3 and 4 had some illicit intimacy with each other. Such circumstantial evidence, in our opinion, cannot be made basis to draw inference of existence of motive for to do away with the life of the deceased. Therefore, the said circumstance is also not established by the prosecution.
45. Further, to prove the motive factor, the best evidence would have been elicited from the mouth of : 38 : P.W.12-Shobha, who is no other than the daughter of the deceased and accused no.3, who was residing along with the deceased and the accused. She has never spoken anything about the relationship between accused nos.3 and 4 and even she never stated that accused no.3 at any point of time was seen with accused no.4 and there was any quarrel between the deceased and accused no.3 with reference to the illicit intimacy between the accused nos.3 and 4. She only stated that the deceased was a drunkard, he was often assaulting the accused no.3. In fact, the trial Judge has drawn an inference on the basis of this particular aspect that the deceased was a drunkard, therefore, he might have not satisfying the sexual lust of the accused no.3, perhaps it developed the intimacy between the accused nos.3 and 4. Such type of inference cannot be drawn by the court only on the basis of its fertile imagination, without there being any evidence on record.
: 39 :Recovery of the mobile phone and sim cards of the accused:
46. As we have already narrated there is absolutely no evidence whatsoever in order to explain Ex.P.31, the call details pertaining to the mobiles seized from the accused nos.1 to 4 under a mahazar Ex.P.5. P.W.4 except stating that the Police have recovered Mos.6 to 10 from accused nos.1 to 4, there is nothing on record to show as to how the prosecution can connect these recovered articles to the crime. Even the call details have not been explained by the Investigating Officer in his evidence. Therefore, this recovery which is bereft of any other connection, cannot be of any help to the prosecution. Of course the prosecution has relied upon the evidence of P.W.s 16 and 17 who were examined before the court to show that after commission of the murder the accused persons have used the tom tom vehicle to shift the dead body. But these witnesses have not supported the case of the prosecution in any manner. : 40 :
47. One P.W.19-Shekhappa was also examined who was the owner of the motorcycle. He partly turned hostile. Though he has stated that the accused has taken away his motorcycle and brought back the motorcycle and given him back but he has not stated, on which day and for what purpose the motorcycle was taken by the accused no.1 and there is absolutely no other material to show that the accused no.1 has actually used this motorcycle for the purpose of commission of the offence or for the purpose of taking away the deceased along with him, as last seen theory has been disbelieved by the Court.
48. The trial court, in fact, on the basis surmises and conjunctures, has drawn inference with regard to the existence of the evidence of last seen theory and motive which are not based on any evidence as such on record. Merely because the prosecution has pleaded the existence of motive and last seen theory, unless it is : 41 : proved to the satisfaction of the court, such imagination cannot be made by the court. As could be seen from paragraph no.41 of the judgment of the trial Court, the trial court, only on the basis of its imagination drawn the inferences bereft of the evidence on record, particularly, in a circumstantial evidence case the Court has to look for the proof beyond reasonable doubt. That is to say, the prosecution whether projected all the circumstances which are available in that particular case and whether the prosecution has lead any evidence to each and every circumstances and how many circumstances have been proved beyond reasonable doubt by the prosecution and whether proven circumstances constitute completion of the chain so as to draw the inference of guilt of the accused persons. Though some circumstances are projected, as noted above, they are all distorted. Except the last seen theory for other circumstances, no semblance of materials are available. Therefore, on the basis of the above said facts and circumstances, the trial : 42 : court ought not to have convicted the accused persons for the above said offences. Therefore, we are of the opinion, the judgment of conviction and sentence passed by the trial Court is erroneous, it is not based on sound legal principles and sound evidence on record. Hence, we have absolutely no hesitation to reverse the said judgment of the trial court and acquit the accused persons for the above said offences. With these observations we proceed to pass the following order.
ORDER
Appeals are allowed. Consequently,
the judgment of conviction and sentence passed by the trial court against the appellants/ accused nos.1 to 4 is hereby set aside. The accused persons are acquitted of the offences punishable u/s 302, 120-B r/w Sec. 34 of IPC.
: 43 :
Bail bonds executed by the accused and their surety are hereby cancelled, as the accused are on bail granted by this court while suspending the sentence of the trial Court.
If any fine amount is deposited by the accused persons, the same is ordered to be refunded to the accused persons on proper identification and acknowledgement.
Sd/-
JUDGE Sd/-
JUDGE Yan/BVV