Shivappa Mahadevappa Naykar vs The State Of Karnataka on 23 December, 2021

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Karnataka High Court

Shivappa Mahadevappa Naykar vs The State Of Karnataka on 23 December, 2021

Bench: Suraj Govindaraj

           IN THE HIGH COURT OF KARNATAKA
                   DHARWAD BENCH

    DATED THIS THE 23rd DAY OF DECEMBER, 2021

                         PRESENT

 THE HON'BLE MR. JUSTICE SURAJ GOVINDARAJ
                           AND
       THE HON'BLE MS. JUSTICE J.M.KHAZI
           CRIMINAL APPEAL No.100336/2017
                        C/W.
           CRIMINAL APPEAL NO.100346/2017

IN CRIMINAL APPEAL No.100336/2017

BETWEEN:

BASAPPA S/O. DEMAPPA GOTHE,
AGE 27 YEARS, OCC: AGRICULTURE AND COOLIE,
R/O. SOMAPUR, TQ. SAVADATTI,
DIST. BELAGAVI.
                                               ... APPELLANT
(BY SRI. K.L.PATIL, ADVOCATE)

AND:

THE STATE OF KARNATAKA,
BY STATE PUBLIC PROSECUTOR,
HIGH COURT OF KARNATAKA,
DHARWAD BENCH,
THROUGH SAVADATTI POLICE
                                             ... RESPONDENT
(BY SRI. V.M.BANAKAR, ADDL. SPP)

     THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374(2)
OF CR.P.C., SEEKING TO CALL FOR RECORDS AND TO ALLOW
THIS CRIMINAL APPEAL, SETTING ASIDE THE JUDGMENT OF
CONVICTION AND ORDER OF SENTENCE DATED 09.10.2017
PASSED IN S.C.NO.157 OF 2013 BY II ADDL. DISTRICT AND
                             2


SESSIONS JUDGE, BELAGAVI, FOR THE OFENCES PUNISHABLE
UNDER SECTIONS 302, 364, 201 READ WITH SECTION 34 OF IPC
AND ACQUIT THE APPELLANT FROM THE ALLEGED CHARGE.

IN CRIMINAL APPEAL No.100346/2017

BETWEEN:

1.     SHIVAPPA MAHADEVAPPA NAYKAR,
       AGED ABOUT 34 YEARS, OCC: AGRICULTURE,
       R/O. SOMAPUR VILLAGE,
       TQ. SAUDATTI, DIST. BELAGAVI.

2.    MAHADEVAPPA NINGAPPA NAYKAR,
      AGED ABOUT 62 YEARS, OCC: AGRICULTURE
      AND HAVING RATION SHOP,
      R/O. SOMAPUR VILLAGE,
      TQ. SAUDATTI, DIST. BELAGAVI.
                                           ... APPELLANTS
(BY SRI. ARAVIND D. KULKARNI, ADVOCATE)

AND:

THE STATE OF KARNATAKA,
BY SAUDATTI POLICE STATION,
REPRESENTED BY STATE PUBLIC PROSECUTOR,
ADVOCATE GENERAL'S OFFICE,
HIGH COURT PREMISES,
DHARWAD.
                                           ... RESPONDENT

(BY SRI. V.M.BANAKAR, ADDL. SPP FOR RESPONDENT-STATE)

      THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374(2)
OF CR.P.C., SEEKING TO SET ASIDE THE JUDGMENT OF THE
CONVICTION AND ORDER OF SENTENCE DATED 09.10.2017
PASSED BY THE II ADDL. DISTRICT AND SESSIONS JUDGE,
BELAGAVI,    IN   S.C.NO.157/2013  THEREBY   CONVICTING
APPELLANTS FOR THE OFFENCES PUNISHABLE UNDER SECTION
109, 364, 302, 201 READ WITH 34 OF IPC AND CONSEQUENTLY
ACQUIT THE APPELLANTS HEREIN OF ALL THE CHARGES
LEVELLED AGAINST THEM.
                             3


     THESE APPEALS COMING ON FOR FINAL HEARING, HAVING
BEEN HEARD AND RESERVED FOR JUDGMENT, THIS DAY, SURAJ
GOVINDARAJ J., DELIVERED THE FOLLOWING:

                        JUDGMENT

1. The accused No.1-Shivappa and accused No.3- Mahadevappa are before this Court, in Criminal Appeal No.100346/2017 and accused No.2- Basappa is before this Court in Criminal Appeal No.100336/2017, aggrieved by the order of conviction and sentence passed by the II Additional District and Sessions Judge, Belagavi, dated 09.10.2017 in S.C.No.157/2013.

2. By way of the said Judgment, the accused No.1- Shivappa and accused No.2-Basappa were sentenced to life imprisonment for the offences punishable under Section 302 and pay fine of Rs.5,000/- and in default thereof, to undergo six months rigorous imprisonment. The accused No.1- Shivappa and accused No.2-Basappa were 4 sentenced to life imprisonment for the offences punishable under Sections 364 read with Section 34 and fine of Rs.5,000/- and in default thereof, to undergo six months rigorous imprisonment. Accused No.1-Shivappa and accused No.2-Basappa were sentenced to three years rigorous imprisonment and fine of Rs.5,000/- and in default thereof, to undergo six months rigorous imprisonment for the offence punishable under Section 201 read with Section 34 of IPC. Accused No.3-Mahadevappa was convicted for life imprisonment with fine of Rs.5,000/- and in default thereof, to undergo six months rigorous imprisonment for the offence under Section 302 read with Section 109 of IPC. All the sentences were ordered to run concurrently.

3. The case of the prosecution is that, PW.8/CW.15- Fakirappa Somappa Anigol had filed a complaint 5 before the Saudatti police station on 21.01.2013 at 20.00 hours alleging that on 19.01.2013 at 2.00 p.m., one Bhimappa had gone missing after having gone to the Yaragatti Shandy market with the appellant/ accused No.2-Basappa in Criminal Appeal No.100336/2017 and later on he was seen in the company of accused No.1-Shivappa Mahadevappa Naykar, who is the appellant No.1 in Criminal Appeal No.100346/2017, in a Dhaba near Gondi Cross, thereafter Bhimappa did not return home.

4. Subsequently, on 22.01.2013 at 16.00 hours, Saudatti police have registered a Case in Crime No.13/2013 on the basis of a complaint of one PW.1/CW.1-Maruti Y. Gorbal, the elder brother of Bhimappa against accused No.1-Shivappa Naykar, accused No.2-Basappa and accused No.3- Mahadevappa Naykar, for the offences punishable 6 under Sections 302, 201, 109 read with Section 34 of IPC. In the said complaint, it is alleged that accused No.1-Shivappa and accused No.2-Basappa and others had committed the murder of his brother Bhimappa on the intervening night of 19.01.2013 in between 8.30 p.m. to 9.30 a.m. of 20.01.2013 and had concealed the body somewhere. This murder having been committed at the instigation of accused No.3-Mahadevappa, due to the ill-will between the deceased on the one hand and accused No.1-Shivappa & accused No.3- Mahadevappa on the other. The dispute being as regards the ration shop being run by the accused No.3-Mahadevappa. It was further alleged that accused No.2-Basappa had confessed to the said murder before the complainant and his relatives near the house of the complainant on 09.30 a.m. 7 on 20.01.2013 after confessing accused No.2- Basappa ran away.

5. During the course of investigation, the dead body of the deceased Bhimappa was traced by the police near the curve bridge in the bushes by the side of the Yaragatti-Gokak road on 25.01.2013, pursuant thereto accused No.1-Sivappa and accused No.3- Mahadevappa were arrested on 04.02.2013. The accused No.2-Basappa was arrested on 23.04.2013.

6. After completion of the investigation in Crime No.13/2013 a charge-sheet was filed against accused No.1-Sivappa, accused No.2-Basappa and accused No.3-Mahadevappa for the offences punishable under Sections 302, 364, 201, 109 read with Section 34 of IPC against accused No.1- Shivappa, accused No.2-Basappa and accused 8 No.3-Mahadevappa, which came to be numbered as S.C.No.157/2013 and has been assigned to the learned II Additional District and Sessions Judge Court, Belagavi.

7. After hearing the accused and the prosecution, the trial Court framed charges which were read over to the accused in the language known to him in Kannada, the accused denied the same and claimed to be tried.

8. In order to prove its case, the prosecution led evidence of 26 witnesses (P.W.1 to P.W.26), marked 45 documents i.e. Ex.P.1 to P.45 and 10 material objects i.e. MO.1 to MO.10. The trial Court after conclusion of the trial convicted and sentenced the accused as afore stated.

9. Sri. K.L.Patil, learned counsel appearing for the accused No.2-Basappa, who is the appellant in 9 Criminal Appeal No.100336/2017 would submit that:

9.1. The accused No.3-Mahadevappa is the father of accused No.1-Shivappa. Accused No.2-

Basappa is a third party who is not a family member and entirely unrelated to accused No.1-Shivappa and accused No.3- Mahadevappa.

9.2. The trial court has not taken into consideration the evidence on record inasmuch as the trial Court has looked at the said evidence with colored glasses in order to convict the accused, if the evidence had been taken into consideration as it is, then the trial Court ought to have acquitted the accused. 9.3. The entire case of the prosecution is on the basis of the circumstantial evidence based on 10 the last seen theory which has not been established.

9.4. There are two complaints which have been filed which are not only contradictory, but have been filed only with a view to harass the accused.

9.5. The contention of the complainants is that the date of incident is between 8.30 p.m. on 19.01.2013 to 9.30 a.m. on 20.01.2013. It is further alleged that the complainants had been informed of the murder of the deceased on 21.01.2013 at around 9.30 a.m., despite which the first complaint is filed as per Ex.P.3 on 20.01.20213 at 8.00 p.m. on the basis of which FIR at Ex.P.17 was registered, which was a missing complaint, wherein no 11 allegations have been made against the accused.

9.6. It is only on the second complaint dated 22.01.2013, registered at 4.00 p.m., as per Ex.P.1 on which basis FIR came to be registered as per Ex.P.16 that the allegations have been made against the accused implicating them.

9.7. The allegations made in the complaint are contradictory to the evidence on record which has not been taken into consideration by the trial Court.

9.8. The prosecution has been unable to prove the last seen theory inasmuch as there is contradiction in the evidence of CW.17/P.W.4-Ramappa Naykar and CW.18/P.W.5-Anand Uppin who are stated to 12 have last seen the deceased in the company of the accused No.1 -Shivappa and accused No.2-Basappa.

9.9. The entire case being based on circumstantial evidence, it was required for the prosecution to prove each and every link in the chain of events, the same not having been established by the prosecution, the trial Court ought to have acquitted the accused.

9.10. The trial court could not have applied the principles of extra-judicial confession inasmuch as even as regards the extra- judicial confession, there are numerous contradictions that would go to the root of the matter, thus requiring the same to be disregarded.

9.11. Apart from the above, he submits that there are several contradictions as regards the age of the body found, the time at which the body was found, which would mean that the prosecution has not established its case. 9.12. There is no evidence which has been placed on record to establish any ingredients of Section 34 of IPC between accused No.1- Shivappa, accused No.2-Basappa and accused No.3-Mahadevappa. Section 106 of the Indian Evidence Act would not be applicable to the present case, more so, when the last seen theory is not applicable. 9.13. The alleged motive which has been attributed to accused No.1 -Shivappa and accused No.3- Mahadevappa is of the year 2011 and the 14 incident has occurred in the year 2013 cannot be said to have persisted till then. 9.14. He, therefore, submits that the appeal has be allowed and the accused acquitted.

10. Sri. Aravind D. Kulkarni, learned counsel for the Appellants in Criminal Appeal No.100336/2017, while adopting the arguments of Sri. K.L.Patil in Criminal Appeal No.100346/2017, would submit that, 10.1. There is a gross delay in filing of the complaint in as much as the allegation is that the deceased went missing between 19.01.2013 and 20.01.2013, the first complaint was filed on 21.01.2013 at 8.00 p.m., the second complaint was filed on 22.01.2013 at 4.00 p.m. 15 10.2. All the evidence on record is that of interested witnesses, who are the relatives of the deceased.

10.3. The seizure of stones allegedly used for causing the death of the deceased were seized on 04.02.2013 when in fact, the body was recovered on 25.01.2013.

10.4. The extra-judicial confession cannot be looked into. In this regard, he relies upon the decision of the Apex Court in Criminal Appeal No.333-334/2017, [Shailendra Rajdev Pasvan and others, Vs. State of Gujarat, etc.,] more particularly paragraph Nos.12, 13, 14, 18, 19 and 20 which are reproduced hereunder for easy reference.

12. Thus the entire case of the prosecution is based on circumstantial evidence. It is well settled 16 that in a case which rests on circumstantial evidence, law postulates two fold requirements:-

(i) Every link in the chain of the circumstances necessary to establish the guilt of the accused must be established by the prosecution beyond reasonable doubt.

(ii) All the circumstances must be consistent pointing only towards the guilt of the accused.

13. This court in the case of Sharad Birdichand Sharda v/s State of Maharashtra1 has enunciated the aforesaid principle as under:-

"The normal principle in a case based on circumstantial evidence is that the circumstances from which an inference of guilt is sought to be drawn must be cogently and firmly established; that those circumstances should be of a definite tendency unerringly pointing towards the guilt of the Accused; that 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 they should be incapable of explanation on any hypothesis other than that of the guilt of the Accused and inconsistent with his innocence".

14. Another important aspect to be considered in a case resting on circumstantial evidence is the lapse of time between the point when the accused and deceased were seen together and when the deceased is found dead. It ought to be so minimal so as to exclude the possibility of any intervening event involving the death at the hands of some other person. In the case of Bodh Raj Alias Bodha v/s State of Jammu and Kashmir, Rambraksh v/s State of Chhattisgarh, Anjan Kumar Sharma v/s State of Assam4 17 following principle of law, in this regard, has been enunciated:-

"The last seen theory comes into play where the time gap between the point of time when the Accused and 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 Accused and deceased were last seen together, it would be hazardous to come to a conclusion of guilt in those cases".

18. Lastly, the extra-judicial confession is questionable. In the complaint filed by Paramhansh (PW-1) he had alleged that the appellants had acted upon the behest of Ramkeval but did not allude, as admitted in his cross-examination, to any confession being made by Appellant No. 1 about abducting Arjun and handing him over to Appellant Nos. 2 and 3. That such a confession was allegedly made emerged during the examination of the Paramhansh (PW-1), Sadhusharan (PW-9) and Hiralal Yadav (PW-22). Notwithstanding the fact that Sadhusharan (PW-9), as mentioned earlier, is the brother-in-law of the complainant - Paramhansh (PW-1) and Hiralal (PW-22) a neighbour, there are noticeable contradictions about the circumstances in which the confession was made, viz., the number of people in whose presence it was made, degree of coercion/fear/intimidation that elicited the alleged confession, among others.

19. In Sahadevan v. State of T.N. referring to the aspect of evidentiary value of extra-judicial confession, it was observed: 18

"14. It is a settled principle of criminal jurisprudence that extra-judicial confession is a weak piece of evidence. Wherever the court, upon due appreciation of the entire prosecution evidence, intends to base a conviction on an extra-judicial confession, it must ensure that the same inspires confidence and is corroborated by other prosecution evidence. If, however, the extra-judicial confession suffers from material discrepancies or inherent improbabilities and does not appear to be cogent as per the prosecution version, it may be difficult for the court to base a conviction on such a confession. In such circumstances, the court would be fully justified in ruling such evidence out of consideration."

Elaborating on the jurisprudence that has evolved with regard to extra-judicial confessions, this Court in Sahadevan (supra) had stipulated the principles that are required to be kept in mind while relying on extra- judicial confession as evidence. These principles have been succinctly mentioned in Jagroop Singh v. State of Punjab as:

"30. Recently, in Sahadevan v. State of T.N., after referring to the rulings in Sk. Yusuf v. State of W.B. and Pancho v. State of Haryana, a two-Judge Bench has laid down that the extra- judicial confession is a weak evidence by itself and it has to be State of Haryana, a two-Judge Bench has laid down that the extra-judicial confession is a weak evidence by itself and it has to be examined by the court with greater care and caution; that it should be made voluntarily and should be truthful; that it should inspire confidence; that an extra-judicial confession attains greater credibility and evidentiary value if it is supported by a chain of cogent circumstances and is further corroborated by other prosecution evidence; that for an extra-judicial confession to be the 19 basis of conviction, it should not suffer from any material discrepancies and inherent improbabilities; and that such statement essentially has to be proved like any other fact and in accordance with law."

20. In the present case, there are no eye witnesses to affirm and corroborate the fact that the Appellant No. 1, as allegedly confessed, had taken Arjun on a bicycle and handed over the child to Appellant Nos. 2 and 3. Further, the unfounded last seen theory, contradicting medical evidence, and facts of the case, particularly concerning the recovery of the body, belie the material details of the alleged extra-judicial confession. Ergo, in the absence of any credible corroboration of both: the actual occurrence of such a confession and the incriminating facts alleged to have been disclosed in the confession, this Court cannot accept that the conviction of the appellants can be sustained on the basis of such a confession."

10.5. He also relies upon the decision of the Apex Court in the case of Anjan Kumar Sarma and others Vs. State of Assam, reported in AIR 2017 SC 2617 more particularly paragraph Nos.13, 15, 18 and 21, which are reproduced hereunder for easy reference:

"13. Admittedly, this is a case of circumstantial evidence. Factors to be taken into account in adjudication of cases of circumstantial evidence laid down by this Court are:

(1) The circumstances from which the conclusion of guilt is to be drawn should be fully established.

The circumstances concerned 'must' or 'should' and not 'may be' established;

(2) The facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty;

(3) The circumstances should be of a conclusive nature and tendency;

(4) They should exclude every possible hypothesis except the one to be proved; and (5) There must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.

15. It is no more res integra that suspicion cannot take the place of legal proof for sometimes, unconsciously it may happen to be a short step between moral certainty and the legal proof. At times it can be a case of "may be true." But there is a long mental distance between "may be true"

and "must be true" and the same divides conjunctures from sure conclusions.

18. The circumstance of last seen together cannot by itself form the basis of holding the accused guilty of the offence. In Kanhaiya Lal v. State of Rajasthan (2014) 4 SCC 715 : (AIR 2014 SC (Supp) 788, Paras 12 & 14) this court held that:

"12. The circumstance of last seen together does not by itself and necessarily lead to the inference that it was the accused who committed the crime.

There must be something more establishing connectivity between the accused and the crime. Mere non-explanation on the part of the appellant, in our considered opinion, by itself cannot lead to proof of guilt against the appellant.

15. The theory of last seen-the appellant having gone with the deceased in the manner noticed hereinbefore, is the singular piece of circumstantial evidence available against him. The conviction of the appellant cannot be maintained merely on suspicion, however strong it may be, or on his conduct. These facts assume further importance on account of absence of proof of motive particularly when it is proved that there was cordial relationship between the accused and the deceased for a long time. The fact situation bears great similarity to that in Madho Singh v. State of Rajasthan [(2010) 15 SCC 588]."

In Arjun Marik v. State of Bihar, 1994 Supp (2) SCC 372 this court held that:

"31. Thus the evidence that the appellant had gone to Sitaram in the evening of 19-71985 and had stayed in the night at the house of deceased Sitaram is very shaky and inconclusive. Even if it is accepted that they were there it would at best amount to be the evidence of the appellants having been seen last together with the deceased. But it is settled law that the only circumstance of last seen will not complete the chain of circumstances to record the finding that it is consistent only with the hypothesis of the guilt of the accused and, therefore, no conviction on that basis alone can be founded."

21. It is clear from the above that in a where the other links have been satis made out and the circumstances to the guilt of the accused, the circumstance of last seen together and absence of explanation would provide an additional link which completes the chain. In the absence of proof of other circumstances, the only circumstance of last seen together and absence of satisfactory explanation cannot be made the basis of conviction. The other judgments on this point that are cited by Mr.Venkataramani do not take a different view and, thus, need not be adverted to. He also relied upon the judgment of this Court in State of Goa v. Sanjay Thakran, (2007) 3 SCC 755 : (AIR 2007 SC (Supp) 61 Para 29) in support of his submission that the circumstance of last seen together would be a relevant circumstance in a case where there was no possibility of any other persons meeting or approaching the deceased at the place of incident or before the commission of crime in the intervening period. It was held in the judgment as under:-

"34. From the principle laid down by this Court, the circumstance of last seen would normally be taken into consideration for finding the accused guilty of the offence charged with when it is established by the prosecution that the time gap between the point of time when the accused and the deceased were found together alive and when the deceased was found dead is so small that possibility of any other person being with the deceased could completely be ruled out. The time gap between the accused persons seen in the company of the deceased and the detection of the crime would be a material consideration for appreciation of the evidence and placing reliance on it as a circumstance against the accused. But, in all cases, it cannot be said that the evidence of last seen together is to be rejected merely because the time gap between the accused persons and the deceased last seen together and the crime coming to light is after (sic of) a considerable long 23 duration. There can be no fixed or straitjacket formula for the duration of time gap in this regard and it would depend upon the evidence led by the prosecution to remove the possibility of any other person meet move the possibility of any other person meeting the deceased in the intervening period, that is to say, if the prosecution is able to lead such an evidence that likelihood of any person other than the accused, being the author of the crime, becomes impossible, then the evidence of circumstance of last seen together, although there is long duration of time, can be considered as one of the circumstances in the chain of circumstances to prove the guilt against such accused persons. Hence, if the prosecution proves that in the light of the facts and circumstances of the case, there was no possibility of any other person meeting or approaching the deceased at the place of incident or before the commission of the crime, in the intervening period, the proof of last seen together would be relevant evidence. For instance, if it can be demonstrated by showing that the accused persons were in exclusive possession of the place where the incident occurred or where they were last seen together with the deceased, and there was no possibility of any intrusion to that place by any third party, then a relatively wider time gap would not affect the prosecution case."

As we have held that the other circumstances relied upon by the prosecution are not proved and that the circumstances of last seen together along with the absence of satisfactory explanation are not sufficient for convicting the accused. Therefore the findings recorded in the above judgment are not applicable to the facts of this case."

10.6. Based on the above, he submits that, this Court ought to intercede in the matter and the order of conviction overturned, resulting in acquittal of the accused.

11. Sri. V.M.Banakar, learned Addl. SPP would submit that:

11.1. CW.1/P.W.1-Maruthi Yallappa, CW.13/P.W.2-

              Saroja,                    CW.14/P.W.3-Hanmant,

              CW.19/P.W.6-Demappa             and   CW.15/P.W.8-

Fakeerappa have consistently stated about the motive for causing the death of the deceased, namely the opposition from the deceased against the ration shop being run by the accused No.3-Mahadevappa, Deceased and his friends setting up a society to obtain authorization to run a ration shop and in this regard, he refers to Ex.P.13 being the 25 representation given by various villagers against the accused No.3-Mahadevappa's ration shop, at the behest of the deceased, whose signature is found at Sl.No.52 thereof.

11.2. As regards extra-judicial confession he submit that CW.1/P.W.1-Maruthi Yallappa, CW.13/P.W.2-Saroja, CW.19/P.W.6-

Demappa, CW.20/PW.7-Ashok Modalabhavi and CW.15/P.W.8-Fakeerappa have categorically deposed about the accused No.2-Basappa having confessed before them as regards accused No.1-Shivappa and accused No.2-Basappa having caused the death of the deceased on the instruction of accused No.3-Mahadevappa. This confession having been made in front of general public, it is admissible in evidence.

11.3. As regards the identification of the body he submits that CW.1/P.W.1-Maruthi Yallappa and CW.13/P.W.2-Saroja being the brother and wife of the deceased have identified the body on the basis of the clothes which were seized by CW.40/P.W.14-Police Constable, Murgod Police Station as per Ex.P.15 for which CW.6/P.W.20-Ramanna was the panch witness. Therefore, he submits that the body is that of the deceased which is not in doubt nor has it been questioned during the course of the trial.

11.4. As regards last seen theory he submits that, CW.17/P.W.4-Ramappa Naykar and CW.18/P.W.5-Anand Uppin have categorically deposed having seen the deceased in the company of accused No.1-Shivappa and accused No.2-Basappa at 8.30 pm. Prior to 27 that CW.20/PW.7-Ashok Modalabhavi has spoken of the deceased and accused No.2- Basappa leaving together and thereafter CW.13/P.W.2-Saroja has spoken of the deceased and accused No.2-Basappa leaving to carry out some work. Therefore, the chain of events indicate that accused No.2-Basappa was present with the deceased throughout the day and even up to 8.30 p.m. as per the evidence of CW.17/P.W.4-Ramappa Naykar and CW.18/P.W.5-Anand Uppin. It is only thereafter that the deceased went missing and his body was found and as such, the last seen theory would apply.

11.5. He submits that the order of conviction therefore has to be confirmed.

12. In reply, Sri. K.L.Patil, learned counsel for the accused No.2-Basappa would submit that, there is no recovery which has been made through the accused inasmuch as the body was recovered on 25.01.2013, when the accused were not present, panchanama was conducted on 26.01.2013. The accused have not taken the police to the spot on 25.01.2013, it is the police who took the accused No.1-Shivappa and accused No.3-Mahadevappa to the spot on 04.02.2013 and seized the stones. Hence, Section 27 of the Indian Evidence Act is not applicable. He submits that, one of the most important witness, CW.16-Siddappa, has not been examined and hence, adverse inference is required to be drawn. On the above basis, he submits that the order of conviction is required to be reversed.

13. It is in the above background, that we are required to examine and re-appreciate the evidence on 29 record to ascertain whether the order of conviction and the consequent order of sentence is proper and correct.

14. P.W.1/C.W.1 Maruti Yallappa Garabala, who is the complainant has deposed that-

14.1. The deceased Bhimappa was his brother and he knows accused No.1-Shivappa, accused No.2-Basappa and accused No.3- Mahadevappa. He has stated that the deceased Bhimappa had studied up to B.A., B.Ed. Accused No.3-Mahadevappa had a ration shop with 530 ration cards attached to it, but he was only providing material for 400 ration cardholders. Hence, the deceased Bhimappa had formed a society and a representation came to be made about the malpractices of accused No.3-Mahadevappa, 30 to the Deputy Commissioner and the Tahashildar, who had in turn ordered accused No.3-Mahadevappa to close the shop pending an enquiry. In view thereof, the shop was closed for 5 months and all the cards were shifted to Basaveshwar Society.

14.2. His brother had formed a group/gang of labourers who would go to different sugarcane fields to cut the sugarcane crop. He had been designated as the gangman i.e. the leader of the said group of workers. 14.3. His brother on 19.01.2013 at 9.00 a.m. went to work in the sugarcane field of CW.17/P.W.4-Ramappa Naykar and CW.1/P.W.1-Maruthi Yallappa went to his field in the morning. When he came back home at 6.00 p.m., in the evening, the 31 deceased Bhimappa had not come back. Even when at 7.00 p.m., Bhimappa had not come back, his uncle Siddappa (not examined) had told him that Bhimappa was with accused No.2 Basappa during the day. Siddappa went and spoke to the father of accused No.2 Basappa who informed him that accused No.2 Basappa had also not came home and they may come back in the morning.

14.4. In the morning when the tractor driver CW.18/P.W.5-Anand Uppin came to pickup Bhimappa and his other labourers, at that time all the people in the house of Bhimappa and relatives had gathered, CW.18/P.W.5- Anand Uppin informed the persons gathered that after cutting the crop in the CW.17/P.W.4-Ramappa Naykar field the deceased and accused No.2 Basappa had 32 gone to Yaragatti and when CW.17/P.W.4- Ramappa Naykar and CW.18/P.W.5-Anand Uppin were returning back after unloading the sugarcane they saw the deceased along with accused No.2-Basappa and another person in a Dhaba, near gondi cross, at around 8.30 p.m. 14.5. Hence, at 9.30 a.m., CW.1/P.W.1-Maruthi Yallappa went to the house of accused No.2- Basappa, found accused No.2-Basappa there and took him to his house for enquiry. At that time, Ishwarappa Gorabal (C.W.26), Shivaputrappa Gorabal (C.W.27), Fakirappa (CW.15/P.W.8), Yamanappa Naikar (CW.9/P.W.22), Babu Badiger (C.W.31), Paramesh Naikar (C.W.29), Saroja (CW.13/P.W.2), the mother of Bhimavva (not examined) were present at the spot. 33 14.6. CW.1/P.W.1-Maruthi Yallappa enquired with accused No.2-Basappa as to the whereabouts of his brother and why he had not come back home, at that time accused No.2-Basappa confessed that since Bhimappa had closed the shop of accused No.3-Mahadevappa, accused No.3 ordered him and accused No.1- Shivappa to murder Bhimappa, having said this accused No.2-Basappa ran away. 14.7. On 21.10.2013 CW.1/P.W.1-Maruthi Yallappa searched for Bhimappa, but in vain. He went to the Murugodu police station at night and gave complaint, but the police did not register it. On 21.01.2013 his father-in-law Fakirappa (CW.15/P.W.8) filed a missing complaint before the Savadatti Police Station. He has stated that on 22.01.2013 he went to the Savadatti Police Station at 4.00 p.m. and 34 informed them that the accused had murdered his brother. He has identified the complaint at Ex.P.1 and his signature at Ex.P.1A.

14.8. On 25.01.2013 the Savadatti Police called him near the curved bridge of Yaragatti town and had shown him a dead body. The dead body's face was burnt to a crisp. He identified the body as that belonging to his brother on the basis of the clothes worn by him i.e. shirt and pant. He has identified the blood stained shirt and pant of the deceased which were marked as MOs.1 and 2. He has identified his knicker as MO.3.

14.9. He has stated that, he had gone to the Munuvalli police station at 10.00 a.m on 20.01.2013 after accused No.2-Basappa 35 confessed of the murder of the brother, but the PSI there directed him to file a complaint in Murugodu police station. At 6.00 p.m. on the same day when he went to the Murugodu police station, PSI refused to take complaint. On 21.01.2013 he along with others had gone to the Belagavi and gave representation to the Inspector General of Police who in turn gave a letter to them and directed them to deliver it to Savadatti CPI. He has stated that accordingly he met CPI and gave the letter of the IGP, it is only then that the CPI started to search for the deceased. The complaint came to be registered on 22.01.2013 at 4.00 p.m. by the Savadatti CPI. The delay in filing the complaint is on account of the aforesaid reason.

14.10. During the course of cross-examination, he has admitted that he had two siblings, and both were dead, his father had also expired. He is a farmer having 3 acres of farm land. His brother had been married to Meenakshi, but they had divorced as Meenakshi had an affair with one Malleshi. He denied that the deceased Bhimappa was having any quarrel with Malleshi.

14.11. His cousin Dyavappa was married to Bhimavva, he denied that Bhimavva was having an affair with one Pundalik and that the deceased had a quarrel with the said Pundalik. He however, stated that there is a complaint which has been filed in this regard. 14.12. He admitted that the deceased Bhimappa had contested the panchayat elections, the 37 accused had supported Pundalik's uncle Chidananda who won the election.

14.13. He denies that his brother had any quarrel with the Hanumanth Kenchannavar as regards the public well near his house that the deceased used to irrigate the fields. 14.14. He has denied that his brother had a quarrel with the Gote family for loosing the bid to them at Ramasaheb place and in that regard a complaint had been filed in the Murugodu police station.

14.15. He denied that the deceased Bhimappa had quarreled with the brothers of his father. He denied the suggestions that the deceased had compromised the accident that had happened between a Tom-Tom vehicle and his tractor since the vehicle drivers did not have valid 38 license and two persons had been injured. He further contended that the deceased took Rupees one lakh each from the tractor and Tom-Tom driver for payment of compromise, however, since the compromise did not get effected, they started asking for their money. 14.16. He admitted that when the Sugar Factory pays the workers, the deceased took an additional sum of Rs.2,000/- from the sugarcane field owner. He denied that there was any quarrel between himself and any gang members for not distributing the money properly.

14.17. He has stated about his sister-in-law Saroja (CW.13/P.W.2) having told him that the deceased Bhimappa and accused No.2 Basappa had gone to Munuvalli at 6.00 p.m. 39 But however, till 8.00 a.m. next day, until he met the tractor driver he did not search for his brother. After accused No.2 Basappa confessed about the crime and ran away when he admits that there were 5 to 6 people.

14.18. He states that thereafter he tried searching for his brother. He stated that, he did not go to accused No.3-Mahadevappa's house, but started searching for the deceased Bhimappa. 14.19. On 25.01.2013, the CPI had called him at 5.00 p.m. and informed that they had found a body on the Gokak road. Eight of them went to see the body, and the police were there. He admits that, the face was smashed and maggots had eaten it, but the rest of the body was intact. He denied that animals had 40 eaten the body. He denied that the body did not belong to the deceased Bhimappa and that the clothes were not of Bhimappa. He denied that, there was no enmity between the deceased Bhimappa and accused No.3 - Mahadevappa. Apart from that, he has denied various other suggestions put forward and has supported the case of the prosecution.

15. P.W.3/C.W.13 is Saroja Gorabal, the wife of the deceased. She deposed that-

15.1. The complainant is her brother-in-law, the deceased was her husband. The witnesses are known to her. She knows the accused who were before the Court and identified them. She has also reiterated the work being done by the deceased Bhimappa, the dispute 41 as regards the ration card with accused No.3

-Mahadevappa.

15.2. She has stated that about 9.00 a.m., on 19.01.2013 her husband Bhimappa gone to CW.17/P.W.4-Ramappa Naykar farm to cut the sugarcane and thereafter her husband went to Yaragatti to distribute the pay to the other workers. She met her husband at Yaragatti Santhe, purchased various items, when they were returning back to the home accused No.2 Basappa came and informed that he had some work with the deceased, hence, her husband asked her to proceed to the house saying that he will come back later. In view thereof, she got into the jeep which ferried the people and got back home. 42 15.3. She has stated that her husband did not come home even by 8.00 p.m. that day. When she informed her mother-in-law and father-in-law. Her mother-in-law informed CW.13/P.W.2-Saroja's brother-in-law Siddappa (C.W.16) who has not been examined. C.W.16 went to the accused No.2

-Basappa's house at 1.00 a.m. to enquire about whereabouts of her husband Bhimappa when the father of the accused No.2 told him that his son had also not came back and they may come back in the morning.

15.4. In the morning of 20.01.2013, when Anand Uppin (CW.18/P.W.5) came to the village in his tractor to take the workers to the sugarcane field he told her and the others that he has seen her husband Bhimappa in a 43 Dhaba at Gondi Cross along with accused No.1 -Shivappa and accused No.2 -Basappa. 15.5. On being so informed CW.1/P.W.1-Maruthi Yallappa went to the accused No.2 -Basappa's house at 9.00 a.m. and brought accused No.2

-Basappa who confessed before everybody that accused No.3 -Mahadevappa had told him and accused No.1 -Shivappa to murder Bhimappa. Therefore, accused No.1-Shivappa and accused No.2-Basappa murdered Bhimappa near the curved bridge of Yaragatti village. After saying so, accused No.2 - Basappa ran away.

15.6. On 25.01.2013, the police called her and others to curved bridge near Yaragatti, where they were shown a body. She identified the said body to be that of her husband on the 44 basis of the clothes on the dead body and the characteristics of the body. The said clothes were identified as MOs.1 to 3. She has stated that, accused Nos.1 to 3 have murdered her husband Bhimappa because of the grudge that accused No.3 -Mahadevappa had with her husband regarding the ration shop. 15.7. During her cross-examination she had admitted that her husband Bhimappa had been married to another woman before marrying her, but they were divorced. She stated that, she does not know if her husband had any quarrel with the neighbour Fakirappa. She denied that she had tried to commit suicide because of her husband torturing her. But she admits that she tried to commit suicide on account of the harassment from her children.

15.8. She admitted that her husband had filed a complaint against accused No.3- Mahadevappa's ration ship and he had formed a society, but she denied that the authorities did not give the deceased permission to run ration shop on account of he having filed a false complaint.

15.9. She states that, she met her husband Bhimappa at Yaragatti Shandy market, when she and her daughter had gone there and they were there till 7.30 p.m. She reiterated the various complaints which were sought to be filed, visit to the IGP's office, letter given by the IGP and thereafter the complaint being registered.

15.10. She has denied all suggestions put to her during the course of cross-examination. 46

She has withstood the test of cross- examination and supported the case of the prosecution.

16. CW.14/P.W.3 Hanamanth Kareppa Ramapur has stated that, he knows the deceased and the accused. He has stated about the deceased having given a complaint about the ration shop run by the accused No.3-Mahadevappa to the Deputy Commissioner which led to revocation of license of accused No.3-Mahadevappa. He denied that he had given any statement to the police. The Public Prosecutor therefore sought permission to treat CW.14/P.W.3-Hanmant as hostile and cross- examined him. Though he admitted that, he had gone to the house of accused No.3-Mahadevappa in the evening of 18.01.2013, he has denied all 47 other suggestions put to him. Nothing much was elicited from him during the course of cross- examination. During the course of cross- examination by the counsel for the accused he has spoken of his residence, location of ration shop of accused No.3-Mahadevappa, the deceased having petitioned the Deputy Commissioner's office alleging that accused No.3-Mahadevappa did not properly distribute the ration to 130 people, he denied that the deceased was trying to some how acquire the ration shop of accused No.3- Mahadevappa, he denied that the deceased was always drinking alcohol. He also denied that the deceased wife (CW.13/P.W.2) had taken poison.

17. CW17/P.W.4 Ramappa Dyamappa Naikar has stated that his land is situated 2 kilometers from the hometown. He grows sugarcane in the said land. He knows the deceased and the accused. He 48 has stated that on the fateful day, the deceased came with his other workers to get the sugarcane in his farm, the sugarcane was loaded on the tractor of Anand (CW.18/P.W.5) and at 11'o clock CW.17/P.W.4-Ramappa Naykar and CW.18/P.W.5- Anand Uppin went to the factory in the tractor loaded with the sugarcane. He was informed that the deceased and the other workers went the Yaragatti Shandy market. He has stated that in the evening at 8.30 p.m., near Gondi Cross, when they were returning after delivering the sugarcane at the factory, the deceased was sitting with the accused No.1 -Shivappa and Accused No.2- Basappa in a Dhaba. When CW.17/P.W.4-Ramappa Naykar enquired with him if he would be coming with him in the tractor to the village, the deceased has informed him that he will come on the motorcycle. Hence, CW.17/P.W.4-Ramappa Naykar 49 left to his hometown. He has further deposed that when CW.1/P.W.1-Maruthi Yallappa came to his house at 9'O clock on the next day morning and enquired about the deceased he has told him about he having seen the deceased in the company of accused No.1 -Shivappa and Accused No.2- Basappa at the Dhaba. He later on came to know about the murder of the deceased by accused No.1-Shivappa and accused No.2-Basappa on the instructions of accused No.3-Mahadevappa. During the course of cross-examination, he has stated that he had 04 acres of farm in Somapur, it would take one day to load and unload the cane. He came to know about the deceased death after 8 days, but he did not go to see the body and that the police did not enquire with him about the matter.

18. C.W.18/P.W.5 Anand Uppin has stated that he is a tractor driver who would transport the sugarcane as also the laborers. He knows CW.17/P.W.4- Ramappa Naykar who has a sugarcane farm which was cut by the deceased and his gang of laborers. On 19.01.2013, the deceased Bhimappa and his gang went to Talur at 2.00 p.m. and thereafter to Yaragatti Shandy market. He further stated that when he and CW.17/P.W.4-Ramappa Naykar were coming back from the factory, he saw the deceased in the company of accused No.2-Basappa at a Dhaba near the Gondi cross. Hence, he asked him whether he wanted a lift in the tractor for that, the deceased replied that he will come on the motorcycle. In the cross-examination, he has admitted that the deceased Bhimappa has taken additional amount of Rs.1500/- from CW.17/P.W.4-Ramappa Naykar. He has stated that 51 there were constant quarrels between the deceased Bhimappa and the other laborers as regards the additional amounts being taken by the deceased. He has stated that it takes about 2-3 days to unload the sugarcane at the factory. Gondi cross is a major junction with lot of people traveling there. He denied that he went there to eat and stated that he was there only for five minutes. He denied that he saw anything at the Dhaba. He has stated that the police had not enquired with him, that he has not seen the body of the deceased Bhimappa. He denied all other suggestions. He has denied that he has gone inside the Dhaba. He has also stated that he has not seen anything inside the Dhaba. CW.18/P.W.5-Anand Uppin has not completely supported the case of the prosecution.

19. C.W.19/P.W.6 Dyavappa Jamanal has stated that he knows CW.1/P.W.1-Maruthi Yallappa, deceased as also the accused. He has spoken of the deceased having formed a society and complained against the accused No.3 Mahadevappa's shop which was closed down by the authorities for nearly five months after which the licence of accused No.3 Mahadevappa was reinstated. He was part of the gang of laborers of 10 of which the deceased was the leader, who made payment. On 19.09.2013, they received payment at Yaragatti Shandy market.

20. CW.17/P.W.4-Ramappa Naykar and CW.18/P.W.5- Anand Uppin went to the Factory. On the next day even though CW.18/P.W.5-Anand Uppin called him to cut the sugarcane, he refused to go without the deceased. When CW.18/P.W.5-Anand Uppin informed him about meeting the deceased near the 53 gondi cross. He has also stated about how CW.1/P.W.1-Maruthi Yallappa went and got accused No.2 Basappa who confessed to the murder of the deceased and ran away. During the course of cross-examination, he has stated about how the deceased had constituted a society called 'Yuvaka Mandali'. He denied that accused No.3 Mahadevappa has contested the panchayat election. He stated that accused No.3 Mahadevappa had supported one Chidananda against the deceased. He states that, all the laborers went to Yaragatti at 2.00 p.m. and he went to Somapur along with his wife at 5.00 p.m. He did not see accused No.2 Basappa and the deceased at the Shandy market. He has stated that when accused No.2-Basappa came and confessed about the crime there were 20 people at the place after confessing, accused No.2-Basappa 54 ran away, they did not try to catch him. He has stated that, he accompanied others for two days to search for the deceased. The police took his statement on 20.01.2013, but he did not tell the police about accused No.2- Basappa confessing. He denied that the deceased was drunkard or that he had many enemies. He denied all other suggestions.

21. C.W.20/P.W.7 Ashok Basavanneppa Madalabhavi has reiterated what has been stated by CW.19/P.W.6-Demappa. During the course of cross-examination, he has answered as regards the quantum of sugarcane cut. He stated that he does not know the amount paid by the factory, but he was paid Rs.200/-per day. He received his payment at Yaragatti Shandy market at 3.00 p.m., where he stayed for another half and hour and left for home. He had met accused No.2-Basappa and 55 the deceased at the Shandy market, but does not know that, on the next day morning CW.1/P.W.1- Maruthi Yallappa who brought accused No.2- Basappa. He has denied that accused No.3- Mahadevappa had participated in the panchayat election, but has stated that accused No.3- Mahadevappa has supported Chidananda who was contesting against the deceased.

22. Again, he stated that, when he was at deceased's house at 8.00 a.m., at 9.00 a.m. CW.1/P.W.1- Maruthi Yallappa brought accused No.2- Basappa when accused No.2- Basappa confessed about murdering the deceased and ran away. He states that he did not chase after him, but others did, he does not know if they caught him. He stated that, thereafter he searched for the deceased for two days and gave a statement to the police, but has stated that he did not inform the parents about the 56 CW.1/P.W.1-Maruthi Yallappa bringing accused No.2-Basappa and or accused No.2-Basappa confessing about the killing of the deceased. He denied that the deceased had many enemies.

23. C.W.15/P.W.8 Fakirappa Somappa Anigol has stated that CW.1/P.W.1-Maruthi Yallappa is his cousin, who has married his sister. He knows the accused, he has stated about the disputes relating to the ration shop between the deceased and the accused No.3-Mahadevappa, formation of society by the deceased, closure of accused No.3- Mahadevappa's ration shop by the authorities and reopening thereof, after a period of 5 months. He has stated about accused No.1-Shivappa being accused No.3-Mahadevappa's son and accused No.2-Basappa being accused No.1-Shivappa's friend. He has stated that all accused held grudge against the deceased for the ration shop incident. 57 When the deceased did not come back home, the deceased's mother enquired with him and C.W.16- Sidappa who went to accused No.2-Basappa's house and enquired with the accused No.2- Basappa's father who had informed that his son accused No.2-Basappa had also not come and may come in the morning.

24. Next day morning when CW.18/P.W.5-Anand Uppin came near the house of the deceased, he had informed about him seeing accused No.1-Shivappa and accused No.2-Basappa in the company of the deceased at the Dhaba.

25. He has stated about how CW.1/P.W.1-Maruthi Yallappa caught accused No.2-Basappa the next day and brought him to the house of the deceased, where accused No.2- Basappa confessed about killing the deceased at the instructions of accused 58 No.3-Mahadevappa, and accused No.2-Basappa running away after the confession.

26. On coming to know of the same, he has stated that he along with the others had searched for the deceased, but could not find him. Hence, he went to Savadatti police station and filed a complaint. He has further stated that, how the police had told him that it can only be a missing complaint and not a complaint of murder till the body is found. He has identified his complaint as Ex.P.3. He has stated about how he had gone along with CW.1/P.W.1-Maruthi Yallappa and others to I.G.P office in Belagavi. He has stated about how on 25.01.2013 the deceased body was found near the curved bridge of Yaragatti town on Yaragatti-Gokak Road and he having gone there and seen the body. During the course of cross-examination, he has stated about his ration card being attached to the 59 shop of accused No.3-Mahadevappa who has given him ration without any problem. He has stated that the deceased was married to CW.13/P.W.2-Saroja, but denied any knowledge of any disputes in the Court between the deceased and his first wife. He stated that he does not know that the deceased wanted to establish his own ration shop. Though he was with the deceased and his gang on 19.01.2013 for loading of the sugarcane crop, he did not go to the Yaragatti Shandy market. On being informed about Bhimappa having not come back, he along with his uncle Siddappa (C.W.16) (not examined) had searched for the deceased.

27. He has also spoken about how on the next date when CW.18/P.W.5-Anand Uppin came to the house of the deceased, CW.1/P.W.1-Maruthi Yallappa had gone and caught accused No.2- Basappa to the said place, accused No.2-Basappa 60 having confessed and ran away. He has stated about how on 25.01.2013, the Inspector called CW.1/P.W.1-Maruthi Yallappa at 2.30 p.m., to identify the body found near the curved bridge of Yaragatti town and he having accompanied CW.1/P.W.1-Maruthi Yallappa. He denied all other suggestions made to him.

28. C.W.37/P.W.9 Uday Manohar Angadi, the Doctor who conducted the postmortem on the body of the deceased, has opined that the cause of death of the deceased was due to a heavy blow on the head. He has spoken about the skull bone had been sent to the FSL for examination and FSL has opined that the head injury on the skull was ante- mortem i.e. prior to the death. He received three large stones from the Investigating Officer and has opined that the injuries could have been caused by the said stones. During the course of cross- 61 examination, he has admitted that, it was not possible to recognize the face of the deceased, several bones were not present on the deceased face, maggots were present on the body, nothing much was elicited from him, during the course of cross-examination.

29. C.W.39/P.W.10 is the Constable who delivered the FIR in Crime No.13/2013 to the JMFC Court, Savadatti, who received the same at 5.30 a.m. on 22.01.2013.

30. C.W.22/P.W.11 is stated to be the Manager of Shilpa Bar namely the Dhaba at the Gondi gate. He stated that he does not know anything about the incident. The prosecutor sought permission to treat him as hostile and cross examine him. During the course of cross-examination, nothing much was 62 elicited from him. He has not supported the case of the prosecution.

31. C.W.33/P.W.12 Manjunath Ramachandra Iligeri, is the supplier in the Shilpa Bar. He was also treated as hostile. During the course of cross-examination, nothing much was elicited from him. He has not supported the case of the prosecution.

32. C.W.34/P.W.13 Manjunath Shivappa Sunkad is the Manager of another Bar namely Durga Bar. He has denied giving any statement to the police, hence he has been treated as hostile. During the course of cross-examination, nothing much was elicited from him. He has not supported the case of the prosecution.

33. C.W.40/P.W.14 Dadasaheb Mullasaheb Dargad took the body for postmortem. During the course of cross-examination, he has stated that he has 63 not seen the body in detail. He stated that the body was in an unrecognizable condition. He is one who had produced the clothes of the deceased for the investigation.

34. C.W.44/P.W.15 Ninganagouda Anneshgouda Patil was the PSI at the Savadatti police station at the relevant point of time. He had received a complaint on 22.01.2013 at 4.00 p.m. from CW.1/P.W.1- Maruthi Yallappa, based on which Crime No.13/2013 was registered. He had sent the FIR and the complaint to the Magistrate through C.W.39/P.W.10-Police Constable Ramesh Chikkannavar. He has identified the First Information Report as Ex.P.16 and his signature on it at Ex.P.16A. During the course of cross- examination, he states that he is unable to say as to how many persons had come to the police station when Crime No.12/2013 was filed nor has 64 he enquired who had written the complaint. He has denied that, he has filed a false complaint at the instance of his superiors.

35. C.W.41/P.W.16 Parashuram Narayan Ranjekar was the Head Constable at Savadatti Police Station at the relevant point of time. He delivered the MOs to RFSL, Belagavi and he gave report to CPI on 16.03.2013. He has taken the skull of the deceased to BHIMS Hospital. This witness has not been cross-examined.

36. C.W.2/P.W.17 Maruti Chandrappa Naikar, the KEB Lineman, acted as a panch witness to the inquest. He identifies the panchanama as Ex.P.19 and his signature at Ex.P.19A. He identifies Ex.P.20 as a spot panchanama of the place where the body was found and that he had signed the sketch of the spot as per Ex.P.21 and photographs at Ex.P.22 65 and Ex.P.23, which were taken in his presence. During the course of cross-examination, he submits that at the time of the mahazar there were 8-10 people present. On the panchanama being prepared he has signed the same near the curved bridge of Yaragatti town between 5.00 p.m. to 5.30 p.m. He admits that he has signed all the panchanamas.

37. C.W.4/P.W.18 Basha Kashimsab Makandar has stated that on 24.02.2013 the police had called him to Shilpa Bar and Restaurant Dhaba, near the Factory Cross and Dondi Cross. When he was at the Dhaba, he saw a stout person on a motorbike, he did not know him, he was with two other persons. Later on, the police had called him to the Dhaba and a panchanama was prepared and he signed it. In the cross-examination he states that they were having lunch at Dhaba between 1'O 66 clock to 2'O clock in the afternoon, the deceased and others were there and left after 10-15 minutes. After the persons left, the police came half an hour later and took his signature. He has denied all suggestions put across to him during the course of cross-examination.

38. C.W.5/P.W.19 Somashekhar More is the witness to the panchanama at the Shilpa Bar and Restaurant. He identified Ex.P.24 as the said panchanama. He has signed it, but he does not know the contents thereof. He was treated as hostile, but nothing much was elicited during the course of cross- examination to support the case of the prosecution.

39. C.W.6/P.W.20 Ramanna Jamanal is the witness to the Seizure Panchanama of the clothes of the deceased which were seized on 26.01.2013. He 67 has identified the clothes as MO.1 to MO.3. This witness has not been cross-examined.

40. C.W.8/P.W.21 Gurunath Mahadevappa Naikar is a witness to the spot mahazar. He has identified accused No.1-Shivappa in the Court. CW.45/PW.26-CPI, Savadatti had told him that accused No.1-Shivappa would show the spot where the deceased had been murdered. He has stated about how from Yaragatti Police Station accused took them near the curved bridge of Yaragatti town and shown 2 to 3 stones which according to him were used to cause the murder of the deceased. These stones were seized, and a panchanama was prepared. He has identified the panchanama as Ex.P.26 and the stones as MOs.4 to 6. During the course of cross-examination, he has denied all the suggestions put across to him. He has supported the case of the prosecution.

41. C.W.9/P.W.22 Yamanappa Tammanna Naikar is a witness to the spot panchanama and the seizure panchanama of the stones i.e. MO.4 to 6 and Ash at MO.7. he has identified the motorbike seized at accused No.1-Shivappa's house. During the course of cross-examination, he admits that he was married to the deceased's sister and that it was about 10.00 a.m. to 11.00 a.m. when they went to Somapur to the house of accused No.1, where no one was in there and thereafter near the curved bridge of Yaragatti town, he did not see the place where the MO.4 to 6 were seized. He denied the rest of the suggestions put to him.

42. C.W.10/P.W.23 Maruti Bhimappa Basaridon has stated that he knows C.W.11 Sahadeva and accused No.2-Basappa. He denied that he has signed the spot panchanama, the Public Prosecutor sought permission to treat him as hostile, and 69 during the course of cross-examination, nothing much was elicited to support the case of the prosecution.

43. C.W.11/P.W.24 Sahadev Mudukappa Naikar has stated that, he knows C.W.10/P.W.23. On 20.03.2013, the CPI, Savadatti had called him and CW.10/P.W.23 to the house of accused No.2- Basappa when the accused No.2-Basappa told the police that he will show the spot of the crime so committed if they were to accompany him. He took them near the curved bridge of Yaragatti town and showed the place where the murder was committed. The panchanama was drawn in his presence and he has identified the spot panchanama as Ex.P.27 and his signature at Ex.P.27B. After this, accused No.2- Basappa took him to his farm, where a panchanama was prepared as per Ex.P.28 which bears his signature 70 at Ex.P.28B. He stated that, he does not know what was shown to the police at the farm land. The Public Prosecutor sought permission to treat him as partially hostile and cross-examined him. However, nothing much was elicited from him during the course of cross-examination to support the case of the prosecution.

44. C.W.36/P.W.25 Doulath Yamanappagouda Patil is the Tahashildar at Savadatti. When he received a requisition from the CW.45/PW.26-CPI,Savadatti in furtherance of which he furnished the complaint copy given by the locals against the ration shop of accused No.3-Mahadevappa, which he identifies as Ex.P.30. He has also furnished an application filed by CW.13/P.W.2-Saroja for cancelling the license of accused No.3-Mahadevappa and to transfer the said license to her or anyone else, which he identifies as Ex.P.31. The order of the Tahashildar 71 dated 07.02.2013 and letter written by the Deputy Commissioner, Belagavi to Tahashildar Saundatti dated 06.02.2013 at Ex.P.33. During the course of cross-examination, he states that he does not know if there is any enquiry done based on the Ex.P.30 being the complaints of the locals and that he does not know if the complaint was dismissed as baseless.

45. C.W.45/P.W.26 Muttappa Somalingappa Patil is the CPI, Savadatti, who is the Investigating Officer. 45.1. He has stated that he has taken over the investigation on 22.01.2013 from C.W.44/P.W.15-PSI,Savadatti Police Station. 45.2. He has visited Somapur village on 22.01.2013 and recorded the statements of CW.12-Bhimavva, CW.13/P.W.2-Saroja, CW.15/P.W.8-Fakeerappa, CW.16-Siddappa, 72 CW.17/P.W.4-Ramappa Naykar, CW.18/P.W.5-Anand Uppin and CW.14/P.W.3-Hanmant.

45.3. He again visited Somapur village on 23.01.2013 and recorded the statement of CW.7-Bhimappa, CW.20/PW.7-Ashok, CW.16- Siddappa Dyamappa Gorabal, CW.22- Nagappa Yallappa Bhusannavar, CW.23- Hanamanth Fakirappa Badiger, CW.24- Mahantesh, CW.25-Ishwar, CW.26-Ishwar Dyamappa Gorabal, CW.27-Shivaputrappa Dyamappa Gorabal, CW.28-Gangappa, CW.29-Paramesh, CW.30-Yamanappa and CW.31-Babu Badiger.

45.4. On 22.01.2013 the PSI, Muragod had informed him at 5.00 p.m. that they found a body near the curved bridge of Yaragatti 73 town, after which he went to the spot conducted inquest panchanama in the presence of CW.2/P.W.17 and C.W.3 as per Ex.P.23. He has sent the body for postmortem to CW.40/P.W.14-Police Constable, Murgod Police Station, as also requisition in terms of Ex.P.34.

45.5. Thereafter, he has recorded the further statement of CW.1/P.W.1-Maruthi Yallappa, CW.13/P.W.2-Saroja, CW.14/P.W.3- Hanmant, CW.15/P.W.8-Fakeerappa and of C.W.12-Bhimavva.

45.6. He has conducted the spot mahazar on 26.01.2013, when the hair on the body and plastic bottle without cap were seized as per Ex.P.20, the photographs of the spot were taken as Ex.P.23 and a rough sketch 74 prepared as per Ex.P.21. He has stated that on 26.01.2013 the body was given to the family after being examined by CW.37/PW.9- Medical Officer. The clothes panchanama for seizure of MO.1 to MO.3 was conducted as per Ex.P.25.

45.7. He arrested accused Nos.1-Shivappa and accused No.3-Mahadevappa on 04.02.2013. He has recorded the confession/voluntary statements of accused No.1-Shivappa as per Ex.P.36 as per the information given by accused No.1-Shivappa along with witnesses, he has gone to the spot conducted a panchanama. Accused No.1-Shivappa had shown the stones with the stains of blood, which were recovered in terms of MO.4 to MO.6 and MO.9 being the burnt towel. He recorded the further statements of the 75 witnesses and sent accused No.1-Shivappa and accused No.3-Mahadevappa to the judicial custody. He received the sketch, Postmortem report. He visited Shilpa Dhaba on 22.04.2013, sent the seized properties to RFSL and the skull to the BHIMS Hospital on 13.02.2013.

45.8. Arrested accused No.2-Basappa on 23.04.2013, recorded his voluntary statement in terms of Ex.P.41. As per the information given by the accused No.2- Basappa, the mobile phone of the deceased was seized from the farm land, near Daddi road and he prepared panchanama as per Ex.P.28. He received the opinion from the RFSL as regards the stones. He sent a requisition, regarding the ration shop, to the Tahashildar and received the information 76 from him. On investigation being completed the charge-sheet was filed on 26.01.2013. 45.9. Subsequently, on receipt of the final report of the Medical Officer at Ex.P.7, the report from BHIMS Hospital at Ex.P.6, the same were furnished to the Court. During the course of cross-examination, he had admitted that he has not investigated the Crime No.12/2013 being the missing complaint. He has denied all suggestions made to him. He has stated that, the accused No.1-Shivappa has made his confession statement at Savadatti police station.

45.10. He has stated that, CW.13/P.W.2-Saroja had not given him any statements as regards the deceased dropping her and her daughter at the Jeep stop and later going with accused 77 No.2-Basappa for some work. She had also not informed him about the confession made by accused No.2-Basappa to her and the other elders of the village of murdering the deceased along with accused No.1-Shivappa and accused No.3-Mahadevappa and had thrown the body near the curved bridge of Yaragatti town.

46. The above being the deposition and the exhibits, as also the MOs., which are marked and examination it is in the above background that we are required to re-appreciate the evidence on record in order to ascertain whether the prosecution has been able to prove the guilt of the accused beyond reasonable doubt and as such, if 78 the order of conviction passed by the trial court is proper or not.

47. In the present case, there are no eyewitnesses, the case of the prosecution is based on circumstantial evidence. It is required for us to consider if the circumstantial evidence on record establishes the offence having been committed.

48. Police Complaint and Delay: CW.1/P.W.1 Maruthi Yallappa has stated that Munuvalli police station at 10.00 a.m. on 20.01.2013 after accused No.2 Basappa had confessed to the murder of his brother, Bhimappa. But the PSI directed them to file a complaint at Murugodu police station, but when he went there at 6.00 p.m., the Murugodu police refused to take his complaint.

49. In the meanwhile, he has stated that since the Murugodu police had not accepted the complaint, 79 he along with several others including CW.13/P.W.2-Saroja, wife of the deceased had gone to Belagavi and gave a representation to the Inspector General of Police, who in turn gave a letter to them directing them to deliver the same to the Savadatti CPI.

50. It is only after the letter of the IGP was given to the Savadatti CPI, they registered the complaint and started search for the deceased. The registration being done on 22.01.2013 at 4.00 p.m. These statements have also been deposed to by CW.13/P.W.2-Saroja and CW.15/P.W.8- Fakeerappa. Thus, it is seen that there was an attempt made by CW.1/P.W.1-Maruthi Yallappa and CW.13/P.W.2-Saroja to lodge a complaint at the earliest. However, they have stated that, the same has not been accepted.

51. He came to know later that on 21.01.2013 his father-in-law C.W.15/P.W.8 Fakirappa had filed a complaint before the Savadatti police station about the deceased having gone missing.

52. The fact that they have also stated that they went to the IGP, Belagavi, lends credence to the statements made by them. In the cross- examination of the Investigating Officers, the counsel for the accused has not posed any question relating to this. Thus, we are of the considered opinion that, there is no particular delay which has been caused in filing of the complaint.

53. MOTIVE : The first issue that is required to ascertained is as to whether there was a motive on the part of the accused to cause the death of the deceased.

54. CW.1/P.W.1-Maruthi Yallappa, the complainant has stated that there was an issue relating to the ration shop being run by the accused No.3- Mahadevappa, the deceased had formed a society and had raised a complaint as regards accused No.3-Mahadevappa and his ration shop, contending that though 530 ration cards have been attached to the shop, he was providing the material only to 400 card holders and the balance of the material was being misused by the accused No.3- Mahadevappa.

55. On the complaint being lodged, the Deputy Commissioner is stated to have caused an inspection of the said ration shop and suspended the supply of material to the ration shop.

56. He has also stated that, the deceased wanted to obtain a license for himself through a society 82 formed by him, which would also have caused loss, harm and injury to accused No.3- Mahadevappa.

57. This aspect has been reiterated by CW.13/P.W.2- Saroja, the wife of the deceased, CW.14/P.W.3- Hanmant, CW.19/P.W.6-Demappa, CW.20/P.W.7- Ashok, CW.15/P.W.8-Fakeerappa. CW.20/P.W.7- Ashok further stating that the accused No.3- Mahadevappa had supported one Chidananda when the deceased contested the village panchayat elections. All these facts would establish that there was an enmity between the accused No.3- Mahadevappa and the deceased and the deceased was causing several problems to accused No.3- Mahadevappa on account of the complaints filed, the application for grant of license for the ration shop, as also contesting elections. 83

58. These factors have been connected by all the aforesaid witnesses to be the cause of the dispute between the deceased and accused No.3- Mahadevappa due to which accused No.3- Mahadevappa wanted to get rid of the deceased, in our considered opinion all the above facts give rise to a motive on the part of the accused No.3- Mahadevappa to cause the death of the deceased.

59. The accused No.1 is the son of accused No.3. The evidence also establishes that accused No.3 had directed accused No.1 to get rid of the deceased by causing his death. Accused No.2 is working as a coolie and was roped in by the accused No.1 to carry out directions of accused No.3. Thus, accused No.1 being the son having subscribed to the motive of accused No.3, accused No.2 was engaged to help and assist the accused No.1 in completing the task.

60. Last Scene Theory : CW.1/P.W.1-Maruthi Yallappa has stated that, his brother, the deceased, left the house on 19.01.2013 at 9.00 a.m. in the morning along with other members of his labour gang including Accused No.2 - Basappa, to go to the sugarcane field of CW.17/P.W.4- Ramappa Naykar. CW.13/P.W.2-Saroja has also deposed of the same. CW.19/P.W.6-Demappa has deposed that, he has also accompanied the deceased to the aforesaid farm, where he and the other gang and laborers had loaded the sugarcane into the tractor of CW.18/P.W.5-Anand Uppin. Thereafter, the deceased along with other members of the gang of laborers including the accused No.2-Basappa went to Yaragatti Shandy market, where he received his payment from the deceased. He has stated in his cross-examination that all the laborers went to Yaragatti at 2.00 p.m. 85 and received their payment. CW.20/P.W.7-Ashok has also reiterated the statement of CW.19/P.W.6- Demappa. CW.13/P.W.2-Saroja, the wife of the deceased has stated that she had also gone to the Shandy market with her daughter when she met her husband in the Shandy market in the afternoon. She along with her husband had purchased various items and when they were going to the Jeep Stop to board the Jeep to come back home at 7.30 p.m., the accused No.2 Basappa had approached her husband with a request to accompany him for some work. In view thereof, her husband brought her to the Jeep Stop and asked her to go home, telling that he would come back home later. Thereafter, CW.17/P.W.4- Ramappa Naykar has stated that while returning back from the sugarcane factory at about 8.30 p.m., he had seen the deceased in the accompany 86 of accused No.1-Shivappa and accused No.2- Basappa, at a Dhaba near the Gondi Cross. He has further stated that, he had also joined the deceased and the others for dinner and on enquiry with the deceased whether he would come in the tractor to drop him, the deceased has informed him that he will come along with accused No.1- Shivappa and accused No.2-Basappa on their motorcycle. CW.18/P.W.5-Anand Uppin, the driver of the tractor, has not completely supported the case of the prosecution, but he has stated that he had accompanied CW.17/P.W.4-Ramappa Naykar to Gondi Cross, where in a Dhaba, the deceased was present with accused No.2-Basappa.

61. From the above, it is seen that, from 9.00 a.m., till 0830 pm in the evening the accused No.2-Basappa has more or less been with the deceased throughout the day. The accused No.2-Basappa, 87 went with the deceased to the field of CW.17/P.W.4-Ramappa Naykar, both of them loaded sugarcane into the tractor, thereafter left to Munuvalli and came to Yaragatty Shandy market, where payment to laborers was made at 2.30 p.m. and thereafter again at 7.30 p.m. accused No.2- Basappa, requested the deceased to come with him for some work in the presence of C.W.13/P.W.2 Saroja, CW.17/P.W.4-Ramappa Naykar as also CW.18/P.W.5-Anand Uppin saw them at 8.30 p.m. in the Dhaba near Gondi Cross. Thus, the presence of accused No.2- Basappa throughout the day with the deceased is established, so also the presence of accused No.1- Shivappa with accused No.2 Basappa and the deceased at the Gondi Cross. After this, no one saw the deceased alive. They only saw his dead body.

62. The accused has not led any evidence, nor stated anything in the statement recorded under Section 313 of Cr.P.C. as regards when they left the company of the deceased, let alone establishing the same. Thus, before the death of the deceased he was last seen with the accused No.1-Shivappa and accused No.2-Basappa.

63. Search for the deceased and Extra Judicial Confession: When the deceased did not come back home till the evening, CW.13/P.W.2-Saroja informed about the same, to her brother-in-law (C.W.16) and mother-in-law (C.W.12). When C.W.16 is stated to have gone to the house of accused No.2-Basappa at 1.00 a.m., he in turn informed CW.13/P.W.2-Saroja that accused No.2- Basappa's father had informed him that even accused No.2-Basappa had not come home and he may come back in the morning. The deceased did 89 not return back home in the morning. This of course is a hearsay evidence.

64. In the morning, C.W.18 (P.W.5) Anand Uppin, the driver of the tractor came with a tractor to pick up the deceased and his group of laborers. When he called for the deceased, he was informed that the deceased was not available and they did not know about his whereabouts and at which point of time CW.18/P.W.5-Anand Uppin had informed all those who had gathered that he had seen the deceased in the company of accused No.1-Shivappa and accused No.2-Basappa at a Dhaba near Gondi Cross around 8.30 p.m.

65. In this background, CW.1/P.W.1-Maruthi Yallappa went to the house of accused No.2-Basappa, found him there and brought him in front of the deceased's house for enquiry, since everyone was 90 present there. CW.1/P.W.1-Maruthi Yallappa enquired with the said accused No.2-Basappa as regards the whereabouts of his brother the deceased, accused No.2-Basappa is stated to have confessed that on account of the various disputes between accused No.3- Mahadevappa and the deceased, accused No.3- Mahadevappa having directed accused No.1-Shivappa and accused No.2- Basappa to get rid of the deceased by causing his death and disposed of Bhimappa's body near the curve bridge. After this confession, the accused No.2-Basappa is stated to have run away.

66. This statement of accused No.2 Basappa being in nature of extra-judicial confession was heard by Fakirappa [C.W.15/PW.8], Yamanappa Naikar [C.W.9/P.W.22], Saroja wife of the deceased [C.W.13/P.W.2] who have deposed to that effect. This confession can only corroborate the other 91 evidence and cannot be a sole piece of evidence to convict to the Accused.

67. It is in furtherance of this that CW.13/P.W.2- Saroja, CW.20/P.W.7-Ashok and other villagers had gone in search of the deceased and his body, but were unable to find.

68. Though CW.18/P.W.5-Anand Uppin during the course of his cross-examination has not supported the case of the prosecution entirely, the other witnesses i.e. CW.1/P.W.1-Maruthi Yallappa, CW.13/P.W.2-Saroja, CW.20/P.W.7-Ashok and CW.15/P.W.8-Fakeerappa have all stated about the CW.18/P.W.5-Anand Uppin having come to the village in the morning of 20.09.2013 and having informed everybody that he had seen the deceased in the company of accused No.2-Basappa on the previous night at Dhaba near the Gondi cross. 92

69. These discrepancies in the statements of CW.18/P.W.5-Anand Uppin and or the partial hostility on the part of the CW.18/P.W.5-Anand Uppin will not come in the way for us to consider that the deceased was last seen in the company of accused No.1-Shivappa and accused No.2- Basappa.

70. Identity of Dead body: Shri Arvind Kulkarni has sought to contend that the age of the body as per the FSL report is much more than that of Bheemappa and hence the body was not that of Bheemapa.

71. CW.1/P.W.1-Maruthi Yallappa has stated that on 25.01.2013, the Savadatti police had called him near the curve bridge of Yaragatti town and shown him a dead body, the body's face was burnt to a crisp and he identified the body as that belonging 93 to his brother on the basis of the clothes worn by him i.e. shirt and pant. He has identified the MO.1, MO.2 and MO.3 being the clothes in this regard.

72. CW.13/P.W.2-Saroja, the wife has also identified the body to be that of her husband on the basis of the clothes on the dead body and the characteristic of the dead body. There is no one better than the wife to identify the body of her husband on the basis of the characteristic of the body. Hence, we are of the considered opinion that the identification of the body has been established to be that of the deceased.

73. Cause of Death: CW.1/P.W.1-Maruthi Yallappa has stated that, when he saw the body, the face was burnt to a crisp. CW.37/P.W.9 the Doctor who had conducted postmortem has opined that, the cause of death was due to a heavy blow on the 94 head. He has also spoken about having sent the skull bone for Forensic Science Laboratory for examination and the FSL has opined that the head injury on the skull was ante-mortem. He has further stated that, three large stones sent by the Investigating officer, could have caused the injury resulting in death of the deceased. Thus, it is clear that the death of the deceased is a homicide and neither a suicide nor an accident.

74. In the final analysis the evidence indicates that the events occurred as under:

75. The deceased left his house at 9.00 a.m. on 19.01.2013 along with several members of his labor gang, including accused No.2-Basappa, after loading the sugarcane in the field of CW.17/P.W.4- Ramappa Naykar to the tractor of CW.18/P.W.5- Anand Uppin , he and accused No.2-Basappa went 95 to Munvalli (as deposed by CW.19/P.W.6- Demappa) from Munuvalli, they came to the Yaragatti Shandy market, where he distributed the amounts to the members of his labor gang at about 2.00 p.m. to 2.30 p.m.(as deposed by CW.19/P.W.6-Demappa and CW.20/P.W.7-Ashok). Thereafter, he brought various items in the Shandy market along with his wife and daughter (as deposed by CW.13/P.W.2-Saroja) and left with accused No.2-Basappa at around (7.30 p.m.) as deposed by CW.13/P.W.2-Saroja. Thereafter, the deceased was seen in the company of accused No.1-Shivappa and accused No.2-Basappa at the Dhaba near the Gondi Cross, at about 8.30 p.m. as deposed by CW.17/P.W.4-Ramappa Naykar and CW.18/P.W.5-Anand Uppin. When the deceased did not get back home, C.W.16 had gone to the house of accused No.2-Basappa at 1.00 a.m. when 96 accused No.2-Basappa was not present and the father of the accused No.2-Basappa had informed that he may get back in the morning.

76. On the next day morning at 8.00 a.m., CW.18/P.W.5-Anand Uppin came to the village of the deceased to take the laborers to the sugarcane field when he has stated about him having seen the deceased in the company of accused No.2- Basappa at 8.30 p.m.

77. CW.1/P.W.1-Maruthi Yallappa had gone to the house of the accused No.2-Basappa and brought him to the house of the deceased where in the presence of CW.1/P.W.1-Maruthi Yallappa, CW.13/P.W.2-Saroja, CW.15/P.W.8-Fakeerappa and certain others, accused No.2-Basappa has confessed, that he along with accused No.1- Sivappa has caused the death of the deceased on 97 the instructions of accused No.3-Mahadevappa, and ran away. He had also informed the general location where they had disposed the body i.e., near the curve bridge.

78. CW.1/P.W.1-Maruthi Yallappa tried to lodge a complaint with Munuvalli police, but they did not register the complaint, but directed him to go to Murgod police station. The Murgod police has also not registered the complaint. On 21.01.2013, CW.1/P.W.1-Maruthi Yallappa, CW.13/P.W.2- Saroja and several others had gone to IGP's office in Belagavi. The IGP gave a letter addressed to CPI, Savadatti. It is when the letter has been handed over to the CPI, Savadatti, the complaint came to be registered on 22.01.2013 at 4.00 p.m. and thereafter the investigation taken up. The body of the deceased was found on 25.01.2013 by the Savadatti Police near the curved bridge of 98 Yaragatti town with the body's face burnt to a crisp, the body was identified by CW.1/P.W.1- Maruthi Yallappa and CW.13/P.W.2-Saroja, the cause of death as per CW.37/P.W.9-Medical officer is a head injury caused by use of three stones, thus establishing a homicide.

79. CW.45/P.W.26 the Investigating Officer has stated that, the accused No.2-Basappa had shown them the spot, where the crime was committed and panchanama was drawn up as per Ex.P.27. Accused No.1-Sivappa is stated to have shown the stone with the stains of blood which have been recovered as per MOs.4 and 6. In terms of the information given by the accused No.2-Basappa, the mobile phone of the deceased was recovered from a farm on Daadi road, as per panchanama at Ex.P.28. The recovery of the aforesaid items through accused No.1-shivappa and accused No.2- 99 basappa are material, taking of the aforesaid circumstances into account, it is clear that the prosecution has proved its case and established the guilt of the accused beyond reasonable doubt. The trial Court has considered all the aspects in a proper perspective and convicted the accused, as also sentenced, the sentence also being proper and correct, we find no reason to interfere with the said Judgment and Order of sentence. Hence, we pass the following:

ORDER The appeals as filed stand dismissed.

The accused are on bail. The Trial Court is directed to secure the accused persons to serve the order of sentence.

100

The bail bond stands cancelled.

Sd/-

JUDGE Sd/-

JUDGE *Svh/-

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