Karnataka High Court
Rajappa vs The State Of Karnataka on 19 October, 2020
Bench: B.Veerappa, K.Natarajan
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 19TH DAY OF OCTOBER, 2020
PRESENT
THE HON'BLE MR. JUSTICE B. VEERAPPA
AND
THE HON'BLE MR. JUSTICE K. NATARAJAN
CRIMINAL APPEAL NO.998 OF 2015
BETWEEN:
1. RAJAPPA
S/O. VENKATAPPA,
AGED ABOUT 53 YEARS,
OCC: AGRICULTURIST,
R/O. VADDARAPALYA VILLAGE,
CHITRADURGA TALUKA,
CHITRADURGA DISTRICT-577 501
2. YELLESH @ INDRA
S/O. TIPPESWAMY,
AGED ABOUT 26 YEARS, STUDENT,
R/O. CHIKKENAHALLI VILLAGE,
CHITRADURGA TALUKA,
CHITRADURGA DISTRICT-577 501
3. UMESH @ UMESH NAIKA
S/O. MURTHY NAIKA,
AGED ABOUT 25 YEARS,
DRIVER,
R/O. MADAKARIPURA VILLAGE,
CHITRADURGA TALUKA,
CHITRADURGA DISTRICT-577 501.
... APPELLANTS
2
(BY SRI UMESH P.B., ADV., FOR
SRI R.B. DESHPANDE, ADV., FOR A2 AND A3;
SRI VIKAS M., ADV., FOR A1)
AND:
THE STATE OF KARNATAKA,
CHITRADURGA RURAL POLICE STATION,
CHITRADURGA DISTRICT-577 501.
... RESPONDENT
(BY SRI S. RACHAIAH, H.C.G.P.)
***
THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374(2)
OF THE CR.P.C PRAYING TO SET ASIDE THE JUDGMENT AND
ORDER OF CONVICTION DATED 24.07.2015 PASSED BY THE
PRINCIPAL DISTRICT AND SESSIONS JUDGE, CHITRADURGA IN
S.C.NO.119/2012-CONVICTING THE APPELLANT/ACCUSED
NOS.1 TO 3 FOR THE OFFENCES PUNISHABLE UNDER
SECTIONS 302, 201, 120B READ WITH SECTION 34 OF THE IPC.
THIS CRIMINAL APPEAL IS COMING ON FOR HEARING
THIS DAY, B. VEERAPPA, J., DELIVERED THE FOLLOWING:
JUDGMENT
Accused Nos.1 to 3 have filed the present appeal against the judgment and order of conviction dated 24.07.2015 made in S.C.No.119/2012 on the file of the 3 Principal District and Sessions Judge, Chitradurga, sentencing the accused persons for the offences punishable under Sections 302, 120B and 201 read with Section 34 of Indian Penal Code (for short 'IPC') for imprisonment of life and fine of Rs.10,000/- each for the offence punishable under Section 302 read with Section 34 of IPC and in default to pay the fine amount, they shall further suffer simple imprisonment for a period of three years and they shall suffer imprisonment for life and also shall pay fine of Rs.10,000/- each for the offence punishable under Section 120B read with Section 34 of IPC and in default to pay fine amount, they shall further suffer simple imprisonment for a period of three years and they shall suffer rigorous imprisonment for a period of five years and also shall pay fine of Rs.5,000/- each for the offence punishable under Section 201 read with Section 34 of IPC and in 4 default to pay the fine amount, they shall further suffer simple imprisonment for a period of one year.
2. It is the case of the prosecution that accused No.1-Rajappa being the elder brother of the deceased Manjappa alias Manjunatha had an intention to do away the life of said Manjappa @ Manjunatha for the purpose of gaining his property, therefore, he approached accused No.2-Yallesh and accused No.3- Umesh both being the Supari killers and asked them to do away the life of his brother Manjappa @ Manjunatha by promising them to pay some amount. Accordingly, accused Nos.2 and 3 as supari killers agreed to commit murder of the said Manjappa @ Manjunatha (deceased). Consequent upon the said conspiracy, that on 27.04.2012 in the afternoon hours, accused Nos.2 and 3 under the pretext of jackfruit sellers, secured the deceased-Manjappa @ Manjunatha to his garden land 5 situated at Vaddara Palya village, Chitradurga taluk wherein, jackfruit trees have been grown. They entered into a contract with deceased under the pretext to purchase the jackfruits which have been grown therein. When the deceased was in the said garden land around 5.15 p.m., accused No.2 threw chilli powder to his eyes and all the accused knocked him to the ground, wherein accused Nos.2 and 3 sat upon him and held him tightly. At that time, accused No.1 strangulated the neck of the deceased with a drip wire and also with a clutch wire and caused his death by chocking. In order to cause disappearance of evidence for having committed the murder, the accused took the dead body of the deceased in his car bearing No.KA-16/M-6630 towards Hosuru village, Chennagiri taluk and on the way leading Kashipura village, near Kerebilachi Channel, accused made the dead body of the deceased be sat in the driver seat of the car and pushed the car into the Kerebilichi 6 Channel to make believe as if he died in a car accident by driving the car in a rash and negligent manner and fell into the said channel. Initially, on the basis of the complaint made by PW.28-Netravathi, the Jurisdictional Police registered the case in Crime No.59/2012 for the offence punishable under Sections 279, 304A of IPC. After investigation, Section 302 was inserted. The J.M.F.C., Chitradurga took cognizance of the offence and committed the case to the Court of Sessions. Learned Sessions Judge framed the charge on 02.11.2012 for the offence punishable under Sections 302, 201, 120B read with Section 34 of IPC and the charges were read over to the accused in Kannada language known to them. The accused have pleaded not guilty and claimed to be tried. In order to substantiate the case, the prosecution in all examined 28 witnesses as per PW.1 to PW.28, got marked 36 documents as per Ex.P.1 to Ex.P.36, got marked 11 7 material objects as per M.O.1 to M.O.11 and the accused got marked one document as per Ex.D1.
3. After completion of the evidence of the prosecution witnesses, the statement of the accused persons was recorded under the provisions of Section 313 of Cr.P.C. The accused persons denied the incriminating evidence adduced against them and did not come forward to adduce the defence evidence as contemplated under Section 233 of Cr.P.C. However, in the cross-examination of PW.3, Ex.D1 and D1(a) are marked as the relevant portion in the statement of PW.3.
4. Learned Sessions Judge framed three points for the consideration. After considering both oral and documentary evidence, the learned Sessions Judge recorded the findings that the prosecution had proved beyond reasonable doubt that on 27.04.2012 at about 8 5.15 p.m., in the garden land of deceased-Manjappa, accused Nos.1 to 3 in furtherance of common intention, be parties to a criminal conspiracy to commit murder of the deceased Manjappa and thereby, accused have committed an offence under Section 120B read with Section 34 of IPC and further recorded the finding that the accused Nos.1 to 3 in furtherance of common intention, committed murder of the deceased where accused No.2 threw chilli powder to his eyes and all the accused knocked him to the ground and then accused Nos.2 and 3 sat upon the deceased holding him tightly, at that time accused No.1 strangulated the neck of the deceased with a drip wire and also with a clutch wire, thereby, the accused committed offence punishable under Section 302 read with 34 of IPC. Learned Sessions Judge further recorded the finding that in order to cause disappearance of evidence for having committed the murder and to screen themselves from 9 legal punishment, the accused made belief as if the deceased died in the car accident by driving the car in a rash and negligent manner, thereby the accused have committed the offence punishable under Section 201 read with Section 34 of IPC.
5. Accordingly, learned Sessions Judge convicted the accused persons for the aforementioned offences with fine. Hence, the present appeal is filed.
6. We have heard the learned counsel for the parties.
7. Sri Vikas M, learned counsel for appellant No.1-accused No.1 has contended that the impugned Judgment and order of conviction and sentence, convicting the accused persons is without any basis and cannot be sustained. He further contended that the prosecution has not proved the homicidal death of the 10 deceased and the post-mortem report does not depict the cause of the death. He further contended that no call details of accused Nos.1 and 2 are produced by the prosecution to prove the conspiracy as alleged and there is no eye-witness to the incident. The last seen theory is also not proved and the entire case of the prosecution is only based upon the circumstantial evidence. He further contended that accused No.1 was arrested on 18.08.2012 and the voluntary statement was recorded. Based on the said voluntary statement, M.O.11-clutch wire was recovered. Even though, witness to the panchanama Ex.P.36-seizure mahazar has been examined, they have turned hostile, therefore, M.O.11 cannot be believed. He further contended that no material produced to prove the motive i.e., enmity in respect to partition of properties between the deceased and accused No.1 as alleged in the complaint. PW.1- Rudramma suspected only accused No.1 and PW.8- 11 Prasanna turned hostile. The entire case of the prosecution is only based upon circumstantial evidence and no circumstances have been proved to link accused No.1 in connection with the death of the deceased. Therefore, he sought to allow the appeal.
8. Sri Umesh P.B, learned counsel for accused Nos.2 and 3 contended that there are two complaints by the prosecution. PW.2-Sadashiva, brother of the deceased lodged a missing complaint dated 29.04.2012 in Crime No.175/2012 as per Ex.P1. Another complaint was lodged by PW.28-Netravathi, the first wife of the deceased on 30.04.2012 under Section 279, 304A of IPC as per Ex.P.21. After the investigation, Section 302 of IPC was inserted. Accused Nos. 2 and 3 were arrested on 05.05.2012, accordingly, PW.3-Basappa, who has last seen accused Nos. 2 and 3, when the deceased had taken him to his garden land supported the case of the 12 prosecution. Except the statement of PW.3, no other material produced by the prosecution to prove the involvement of the accused persons. Further contended that with regard to the recovery of M.O.5-drip wire, witnesses of -PW.11 and PW.12 turned hostile. The circumstantial witness of PWs.4, 6, 7, 8, 9, 10, 11, 12, 15, 18, 19 have turned hostile. The prosecution has not made out any suggestions beyond reasonable doubt that the cause of death is homicidal or suicide. In view of Ex.P.25-Post-mortem report and Ex.P.26-FSL report, PW.25-the doctor has opined that after post-mortem examination and chemical analysis report from FSL, Davanagere cause of death could not be ascertained as the body was in advanced state of putrefaction. Therefore, he has contended that absolutely, there is no material produced and also there is no oral or documentary evidence implicating the accused in the offence made out in the charge memo. He further 13 contended that based upon Ex.P.30-voluntary statement of accused No.3, conducted seizure mahazar as per Ex.P.5. Though PW.24, Investigating Officer recovered Rs.2,800/- on the basis of voluntary statement made by accused No.3 and recovery of M.Os., are not proved by the prosecution. Therefore, he sought to allow the appeal.
9. Per contra, Sri S. Rachaiah, learned High Court Government Pleader for respondent-State while justifying the impugned judgment and order of conviction contended that the evidence of PWs.3 to 28 and recovery of MOs.5, 6, 7 and 8 at the instance of accused Nos.2 and 3 and at the instance of accused No.1 clearly depicts accused persons involved in the alleged incident occurred on 27.4.2012. PW.28- Netravathi, the first wife of the deceased suspected accused No.1. PW.2-brother of the deceased, though 14 lodged missing complaint on 29.04.2012 supported the case of the prosecution and suspected accused No.1 and thereby, accused Nos.2 and 3 conspired with accused No.1 as he had an intention to do away the life of deceased-Manjappa due to the dispute in respect of landed property. Therefore, he contended that the impugned judgment of conviction and order of sentence passed by learned Sessions Judge is just and proper and this Court cannot interfere in the present appeal exercising the power under Section 374(2) of Cr.P.C., and sought to dismiss the appeal.
10. In view of the rival contentions urged by learned counsel for the parties, the only point that arises for the consideration is:
"Whether the accused persons have made out a case to interfere with the impugned judgment and order of conviction for the offences under the provisions of 302, 201 and 15 120B read with Section 34 of IPC in the facts and circumstances of the case?"
11. In order to re-appreciate the entire material on record, it is relevant to consider the evidence of the prosecution witnesses and the documents relied upon.
(a) PW.1-Rudramma, wife of the deceased stated that on 27.04.2012, her husband had been to the garden land by 12.00 noon, thereafter, around 5.00 p.m., she contacted her husband over phone, as to know whether he was present in the garden land. But at about 5.30 p.m., when she called him, his mobile was reachable. After four days, she went to the Police station along with PW.2-Sadashivappa and gave oral complaint. Thereafter, Santhebennuru Police called her over phone and informed that her husband-Manjappa's dead body was found at Kerebilachi channel. She 16 suspected accused No.1 and identified M.O.1-pant, M.O.2-Shirt and also M.O.3-car.
(b) PW.2-Sadashiva is the younger brother of accused No.1 and elder brother of the deceased. He lodged the missing complaint as per Ex.P1 on 29.04.2012 at about 5.30 p.m. On the same night, he got information from Santhebennuru Police that the dead body of the deceased and the car was found in the channel. He is witness to the seizure mahazar and identified M.O.3-Car.
(c) PW.3-Basappa is the circumstantial witness, who stated that prior to one year at about 2.30 p.m., the deceased had taken him to his garden land and at that time, he had seen accused Nos.2 and 3 who had come for jackfruit business to the garden land of the deceased-Manjappa. PW.2 took them to his garden, since there was jackfruit and they told him to give them 17 for Rs.900/-. PW.2 told them to give for Rs.1,000/- and he stayed at garden land only. Those persons went to the garden land along with the deceased as he had told that he will give for Rs.2,600/-. He identified Ex.D1- portion in the statement of PW.3 before Police and another contradictory statement marked as per Ex.D.1(a). He supported the case of the prosecution.
(d) PW.4-Thimmesh is the circumstantial witness and not supported the case of prosecution. The statement of PW.4 is marked as Ex.P3. He has stated that on 27.04.2012, the deceased called him and asked him to put currency to his phone. He turned hostile.
(e) PW.5-Manjunatha is also the circumstantial witness stated that two years prior to the incident accused No.3-Umesh had come to Vishwabandhu Jewellers and pledged the gold items of Rs.2,800/-. Police came to the jewelry shop and taken Rs.2,800/- 18 and taken his signature. At that time, accused No.3- Umesh was also there. He is the witness to Ex.P.5- seizure mahazar of cash of Rs.2,800/-. He has supported the prosecution case.
(f) PW.6-Raghu @ Raghavendra, PW.7-Ajay, PW.8-Prasanna, PW.9-Rangaswamy, PW.10-Dayananda, PW.11-Samiulla, PW.12-Sakkaf Khan are all circumstantial witnesses and witness to the seizure mahazar. They have not supported the case of the prosecution.
(g) PW.13-Indudar, Inquest panch witness for Ex.P16. He has stated that prior to one and half years, he got information that the deceased-Manjappa had died in the accident. As soon as he received the information, he had gone to Kerebilachi Hospital and saw the dead body of the deceased. He is the witness to Ex.P16-inquest mahazar.
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(h) PW.14-Krishnamurthy is the circumstantial witness. He states that the deceased is his brother. About one and half years ago, he went to Sulekere Hospital to see the dead body. He has supported the case of prosecution.
(j) PW.15-Somappa is the panch witness to the spot mahazar and turned hostile.
(k) PW.16-Mallikarjuna is the panch witness to the seizure mahazar as per Ex.P.17 and supported the case of the prosecution.
(l) PW.17-Ujjinappa is the panch witness to the seizure mahazar as per Ex.P.17 and supported the case of the prosecution.
(m) PW.18-Durgappa is the panch witness to the seizure mahazar as per Exs.P.18 and P.19 and turned hostile.
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(n) PW.19-Haleshappa is the panch witness to the seizure mahazar as per Exs.P.18 and P.19 and turned hostile.
(o) PW.20-Komala is the circumstantial witness. She has stated that she knows accused No.2-Yallesh that he was a money collecting agent in Agrigold company. Prior to two years, accused No.2-Yallesh had taken her Election Identity Card and two photographs. Thereafter, she came to know from the Police that accused No.2 has taken SIM card in her name, she did not remember the number of the SIM card. She supported the case of the prosecution.
(p) PW.21-Jadeshankaraiah, Assistant Sub- Inspector, Santhebennuru Police Station who arrested accused No.2-Yallesh and gave report as per Ex.P.20 and stated that on 04.05.2012, he along with C.W.31- Ramareddy, Head Constable and C.W.33-Nagaraju, 21 Police Constable were deputed to search the accused. Accused No.2-Yallesh was arrested and produced before CPI and supported the case of the prosecution.
(q) PW.22-Ramanayaka, ASI, on the instructions of CPI-CW.41 on 04.05.2012, he was deputed along with CW.40 to search accused No.3.Umesh and he was arrested and produced before CPI-CW.41.
(r) PW.23-Linganagowda Negaluru, PSI, Santhebennuru Police Station, based on the complaint as per Ex.P.21 filed by PW.28-Netravathi, registered FIR as per Ex.P.22 and conducted inquest mahazar as per Ex.P.16 and spot mahazar as per Ex.P.2. He has stated that on 30.04.2012 at about 10.00 a.m., PW.28- Netravathi filed a written complaint as per Ex.P.21 and based upon the complaint, he registered FIR as per Ex.P.22. On the same day he visited mortuary at 22 Kerebilachi Government Hospital to conduct inquest over the dead body in the presence of CW.16, CW.18 and CW.19 as per Ex.P.16 and recorded the statement of the relatives of the deceased. Later, he has sent the dead body of the deceased for conducting post-mortem examination. After post-mortem examination, the dead body of the deceased was handed over to the legal heirs of the deceased. He has identified Ex.P.23-sketch of scene of occurrence. On 05.05.2012, on the instructions of CW.41-CPI along with CW.32, CW.34 and CW.35 arrested accused No.3-Umesh and produced before the CPI.
(s) PW.24-Prabhugowda Kallanagowda Patil, CPI-Investigating Officer recovered M.Os.1 and 2-pant and shirt of the deceased and recorded the voluntary statement of accused No.2 as per Ex.P.29 and voluntary statement of accused No.3 as per Ex.P.30. He recovered 23 M.Os.5, 6, 7, 8, 9 and 10, Ex.P.31-receipt of Vishwabandhu jewellery shop, Ex.P.32-IMV Report and supported the case of prosecution.
(t) PW.25-Dr.Vishwanath, Medical Officer, PHC, Kagathur who conducted post-mortem over the dead body from 1.30 p.m., to 4.30 p.m., and gave a report as per Ex.P.25 and FSL report as per Ex.P.26 on 30.04.2012 and after post-mortem examination and chemical analysis report from FSL, Davanagere, cause of death could not be ascertained as the body was in advanced state of putrification. Though he supported the case of the prosecution, but his evidence is not supported to prove that the death was homicidal one.
(u) PW.26-S.Balachandranayak, PSI, Rural Police Station, Chitradurga who registered a complaint of PW.28 as per Ex.P.27 in Crime No.272/2012 and Ex.P.28-Memo issued by S.P., Chitradurga. He stated 24 that on 29.06.2012, Crime No.59/2012 of Santhebennuru Police Station was transferred on jurisdiction and he registered a case after obtaining memo by the S.P., Chitradurga. On the same day, he handed over the file to PW.27-CPI.
(v) PW.27-Ramesh Kumar, CPI, Chitradurga and Investigating Officer stated that on 28.07.2012 he secured the RTC relating to scene of crime as per Ex.P.33. On 31.07.2012, he secured the Histo Pathology report from J.J. Medical College as per Ex.P.34. On 18.08.2012, he recorded the voluntary statement of accused No.1-Rajappa as per Ex.P.35. He stated that on 30.06.2012, he completed the investigation and filed charge-sheet before concerned Court showing accused No.1-Rajappa as absconding. On 31.07.2012, he received FSL report and Histopathology report and the same was sent for final 25 opinion to PHC, Kagattur and after getting final opinion, he submitted it to the Court. On 18.08.2012, he arrested accused No.1-Rajappa and recorded his voluntary statement and seized clutch wire as per Ex.P.36 on the basis of voluntary statement of accused No.1. He supported the case of prosecution.
(w) PW.28-Netravathi, first wife of the deceased stated that she married the deceased in the year during 2004. They were staying at V.Palya. Prior to four years, when she was at V.Palya, PW.2-Sadashiva informed her that the deceased is dead due to the accident. On 30.04.2012, herself, PW.2, accused No.1-Rajappa and her mother went to Kerebilachi Hospital and saw the dead body of the deceased and thereafter, they all proceeded to the Channagiri Police Station and lodged the complaint as per Ex.P21. As per her evidence, the 26 deceased died due to rash and negligent driving and accident death.
12. The learned Sessions Judge considering the entire material on record, proceeded to convict the accused mainly on the basis of evidence of PW.2 and recorded a finding that the vital evidence of prosecution case has been conspired among themselves to eliminate the deceased, as such accused Nos.2 and 3 had been to the garden land of the deceased with the pretext to purchase the jackfruits grown in the scene of crime of the arecanut garden land of the deceased and there was discussion for having purchased the jackfruits by accused Nos.2 and 3 with the deceased and the agreement was made for Rs.2,600/-. PW.3-Basappa being the uncle of the deceased who has seen the deceased along with accused Nos.2 and 3 in his garden land, therefore, the prosecution put forth the last seen 27 theory of the deceased and as such PW.3 has been examined to establish the last seen theory that accused Nos.2 and 3 being the supari killers have been secured by accused No.1, being the brother of the deceased as he had vengeance against him and was saying as to do away his life. That itself indicates that accused No.1 conspired with accused Nos.2 and 3 to kill his own brother Manjappa-deceased. Learned Sessions Judge further recorded a finding that the prosecution has relied upon the circumstantial evidence to establish the theory as put forth that the deceased was present along with accused Nos.2 and 3 soon before his death and these accused have been conspired to kill the deceased and accordingly, accused No.1-Rajappa strangulated the neck of the deceased with a drip wire and also with a clutch wire and caused his death by chocking. Thereafter, in order to cause disappearance of evidence for having committed the murder, the accused took the 28 dead body of the deceased in his car bearing No.KA- 16/M-6630 towards Hosuru village and on the way leading towards Kashipura village, near Kerebilichi channel made the dead body of the deceased be sat in the driver seat of the car and pushed the car into the channel to make believe as if the deceased died due to an accident by driving the car in a rash and negligent manner to cause disappearance of the evidence with an intention to screen themselves from the legal punishment and the evidence as put forth by the prosecution is acceptable. Therefore, learned Sessions Judge convicted the accused persons. It is evident from the complaint as per Ex.P.1 that the deceased was missing. PW.28-first wife of the deceased lodged a complaint as per Ex.P.21 stated that on 29.04.2012 at about 8 p.m., she came to know that her husband along with the car was found in the channel. On 30.04.2012, herself, PW.2, accused No.1-Rajappa and her mother 29 went to Kerebilachi Hospital and saw the dead body of the deceased and stated that it seems that the deceased died due to car accident. In the entire complaint, there is no allegation against accused No.1 or other accused persons or in the first complaint as per Ex.P1 lodged by PW.2-brother of the deceased. Therefore, the PSI recorded the statement of accused No.1 who stated that he suspected on Kamalamma-2nd wife of the deceased and also PW.4-Thimmesha. He also recorded the statement of PW.2, statement on par with accused No.1 and he also suspected Kamalamma and Thimmesha. PW.14-Krishnamurthy has also stated that the deceased died in the road accident due to rash and negligent driving.
13. Based on the aforesaid witnesses, the Police Inspector has shown the reasons for the death that on 27.04.2012 in the afternoon hours, the deceased went 30 from his village in car bearing No.KA-16/M-6630 from Santhebennuru to Hosur village in Kerebilachi Channel due to rash and negligent manner and he fell into the channel along with his car. But, he suspected Kamalamma alias Hudamma and Thimmesha. Further stated that though they suspect Kamalamma and Thimmesha, the deceased died in the channel and the entire body was decomposed. PW.3-Basappa who is the star witness to the prosecution has only stated that he has not aware of any enmity between accused and the deceased. Prior to one year at about 2.30 p.m., the deceased had taken him to his garden land and at that time, he had seen accused Nos.2 and 3 who had come for jackfruit business to the garden land of the deceased-Manjappa. PW.2 took them to his garden, since there was jackfruit and they told him to give them for Rs.900/-. PW.2 told them to give for Rs.1,000/- and he stayed at garden land only. Those persons went to 31 the garden land along with the deceased as he had told that he will give for Rs.2,600/-. Subsequently, after two days, they came to know that the deceased was dead. In the cross-examination, it is reiterated the same by denying the suggestion. The evidence of PW.3 stated about last seen theory that accused Nos.2 and 3 along with the deceased. He has not stated anything about accused No.1 but there is no other corroborative evidence produced by the prosecution to prove the homicidal death of the deceased. PW.25-Medical officer has stated on oath that on 30.04.2012, he was deputed as Medical officer and on the same day, he conducted post-mortem over the dead body of Manjappa, aged about 32 years, from 1.30 p.m., to 4.30 p.m., and deposed as under:
"I noticed the findings as below:
Male person with moderately built, face swollen, eyes swollen, tongue protruded and 32 black in colour, Abdomen distended, External genetalia swollen, both upper and lower limbs swollen, peeling of skin present over thighs, arm and chest bilaterally, black thread as tied to right wrist, red thread tied to wrist, marbaling present over chest thighs, arms bilaterally, stiffening of both upper and lower limbs present, loss of hair present over scalp.
On desection of the dead body, I noticed that, skull intact, membrane intact, brain- liquefied tissue present.
Both left and right lung intact, soft collapsed and reduced to black mass, Heart and its vessel intact.
Abdomen intact, mouth, pharynx intact, stomach intact and distended with gas and its contains.
Genito Urinary organs intact, scrotem and external genitalia swollen.33
Opinion kept pending awaiting FSL report visceros collected for FSL analysis is as follows:
1. Stomach and its contents.
2. Stomach and its contents to Pathology
3. Contains lungs, liver spleen and kidney.
4. Blood.
5. NaCI Solution preservative used.
After P.M examination and chemical analysis report from FSL, Davanagere, cause of death could not be ascertained as the body was in advanced state of putrification.
Time since death 48-72 hours prior to P.M. Accordingly, I issued P.M.report. Now, I see the PM report and it is marked as Ex.P-25 and my signature is marked as Ex.P-25(a).
Now, I see the FSL report and it is marked as Ex.P-26."
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14. Ex.P.26-FSL report, the Scientific Officer, Regional Forensic Science Lab, Davanagere in his report dated 05.07.2012 has stated as under:
"Colour tests and Gas chromatography instrumental methods have responded for the presence of Ethyl alcohol in exhibit Nos.1, 2 and 3; but no other poison was detected in all the above stated exhibits."
15. On careful reading of evidence of PW.25- Medical Officer and post-mortem report and PW.26-FSL report, it does not indicate that it is homicidal death of the deceased. There is no eye-witness to the prosecution except last seen witness i.e., PW.3, no other evidence is produced. Learned Sessions Judge proceeded to convict the accused mainly on the basis of the voluntary statement made by the accused persons and not based on any corroborative evidence to prove the prosecution case.
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16. It is well settled that in order to sustain the conviction on the basis of circumstantial evidence, the following three conditions must be satisfied:
i) The circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established;
ii) Those circumstances should be of a definite tendency unerringly pointing towards the guilt of the accused; and
iii) The circumstances, taken cumulatively, should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else, and it should also be incapable of explanation on any other hypothesis than that of the guilt of the accused.
17. Admittedly, in the present case, the prosecution have failed to prove the circumstantial 36 evidence to link inference of guilt is sought to be drawn, must be cogently and firmly established. But there is no link between the complaint and the prosecution case and the circumstances by PW.3-the actual eye-witness. The first complaint was a missing complaint given by the brother of the deceased and the second complaint was given by the wife due to which the deceased died due to accident. The entire material clearly indicates that absolutely there is no material placed to prove the circumstances implicating the accused persons.
18. There is no link for the recovery of M.O.1 to M.O.11 at the instance of the accused persons, except statement made by the prosecution witnesses. Admittedly, the prosecution has not produced any call details recorded from accused Nos.1, 2 and 3 to prove conspiracy theory of the prosecution. It is also well settled that in criminal cases, if two views are possible 37 on evidence adduced in the case, one leading to the guilt of the accused and the other is to his innocence, the view which is favourable to the accused should be adopted. This principle has a special relevance in cases wherein the guilt of the accused is sought to be established by circumstantial evidence. It is well settled that in view of the provisions of Section 27 of the Indian Evidence Act, the conviction cannot be based on the recovery of M.Os., allegedly used for commission of the offence.
19. Learned Sessions Judge has wrongly recorded the conviction even though there are no circumstances to prove the link between the death of the deceased and the accused persons and in the absence of any material against the accused, the impugned judgment of conviction and sentence passed by the learned Sessions Judge cannot be sustained. 38
20. It also clearly depicts that the learned Sessions Judge recorded the finding that as per last seen theory of the prosecution, accused Nos.2 and 3 being the supari killers secured by accused No.1 and accused No.1, being the brother of the deceased, accused No.2 threw M.O.6-Chilli powder and accused No.1 strangulated the neck of the deceased with drip wire-M.O.5 and clutch wire-M.O.11 is without any basis as seen from the medical evidence of PW.25 and post- mortem report as per Ex.P.25 that there is no strangulation mark or external injuries on the body and the cause of death also could be ascertained. Therefore, the finding of learned Sessions Judge is based on the voluntary statement which cannot be sustained. For the reasons stated above, the point raised in the present appeal is answered in the affirmative holding that the accused persons have made out a case to interfere with the impugned judgment and order of conviction for the 39 offences under Sections 302, 201 and 120B read with Section 34 of IPC.
21. For the reasons stated above, we proceed to pass the following ORDER
(i) Criminal Appeal is allowed.
(ii) The impugned judgment of conviction and order of sentence dated 24.07.2015 passed by the Principal District and Sessions Judge, Chitradurga, in S.C.No.119/2012 is hereby set aside.
(iii) Accused Nos.1 to 3 are hereby acquitted for the offences punishable under Sections 302, 120B and 201 read with Section 34 of Indian Penal Code. They are set at liberty, if they are not required in any other case after following the Standard Operating Procedure and in accordance with law.
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(iv) Registry is directed to communicate this order to the concerned Jail Authorities and the Jail Authorities are hereby directed to release accused Nos.1 to 3, if they are not required in any other case.
Sd/-
JUDGE Sd/-
JUDGE GBB