Karnataka High Court
Manjunath S/O Ningappa Jainagoudar vs The State Of Karnataka on 31 May, 2022
Author: M.G.S. Kamal
Bench: M.G.S. Kamal
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CRL.A No. 100254 of 2021
C/W CRL.A No. 100251 of 2021
IN THE HIGH COURT OF KARNATAKA,
DHARWAD BENCH
DATED THIS THE 31ST DAY OF MAY, 2022
PRESENT
THE HON'BLE MRS. JUSTICE K.S.MUDAGAL
AND
THE HON'BLE MR. JUSTICE M.G.S. KAMAL
CRIMINAL APPEAL NO. 100254 OF 2021
C/W
CRIMINAL APPEAL NO. 100251 OF 2021
IN CRL.A.NO.100254/2021:
BETWEEN:
1. MANJUNATH S/O NINGAPPA JAINAGOUDAR
AGE. 33 YEARS, OCC. AGRICULTURE,
R/O.HAROHALLI, TQ. MUNDGOD,
DIST. KARWAR.
...APPELLANT
(BY SRI. S. C. JAINAR, ADVOCATE)
AND:
1. THE STATE OF KARNATAKA
BY STATE PUBLIC PROSECUTOR
HIGH COURT OF KARNATAKA
DHARWAD BENCH,
DHARWAD-580011,
(THROUGH BENDIGERI P.S. HUBBALLI)
...RESPONDENT
(BY SRI.V.M.BANAKAR, ADDL.SPP)
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CRL.A No. 100254 of 2021
C/W CRL.A No. 100251 of 2021
THIS CRIMINAL APPEAL IS FILED U/S 374(2) OF CR.P.C.,
SEEKING TO JUDGMENT AND ORDER OF CONVICTION AND
SENTENCE PASSED IN SESSIONS CASE NO.3/2015 DATED
30.07.2021 BY THE I ADDL. DISTRICT AND SESSIONS JUDGE,
DHARWAD SITTING AT HUBBALLI AGAINST APPELLANT/ACCUSED
NO.2 BE SET ASIDE AND THE APPELLANT KINDLY ACQUITTED.
IN CRL.A.NO.100251/2021:
BETWEEN:
1. RAGHAVENDRA S/O. BASAVARAJ MALAGI
AGE 30 YEARS, OCC PRIVATE SERVICE,
R/O H NO.3, SONIA GANDHI NAGAR,
HUBBALLI - 580021.
...APPELLANT
(BY SRI.R H ANGADI, ADVOCATE)
AND:
1. THE STATE OF KARNATAKA
(HUBBALLI BENDIGERI POLICE STATION)
R/BY STATE PUBLIC PROSECUTOR HIGH
COURT OF KARNATAKA DHARWAD BENCH,
DHARWAD - 580011.
...RESPONDENT
(BY SRI.V.M.BANAKAR, ADDL. SPP)
THIS CRIMINAL APPEAL IS FILED U/S 374 (2) OF CR.P.C.,
SEEKING TO KINDLY ALLOW THE APPEAL, AND KINDLY CALL FOR
LCR, AND KINDLY SET-ASIDE THE IMPUGNED JUDGEMENT DATED
30.07.2021 AND ORDER OF CONVICTION SENTENCE DATED
12.08.2021 IN SPECIAL CASE NO.03/2015, PASSED BY I ADDL.
DISTRICT AND SESSIONS JUDGE, DHARWAD, SITTING AT HUBBALLI
AND CONSEQUENTLY ACQUIT THE ACCUSED NO.1/APPELLANT IN
BENDIGERI P.S. CRIME NO.77/2014 FOR THE OFFENCE PUNISHABLE
U/S 363, 302, 201 R/W 34 OF IPC.
THESE CRIMINAL APPEALS COMING ON FOR ADMISSION THIS
DAY, M.G.S.KAMAL J., DELIVERED THE FOLLOWING:
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CRL.A No. 100254 of 2021
C/W CRL.A No. 100251 of 2021
JUDGMENT
1. Present appeals are filed by the appellants/accused Nos.1 and 2 aggrieved by the judgment and order dated 30.07.2021 passed in S.C.No.3/2015 on the file of the I Additional District and Sessions Judge, Dharwad, sitting at Hubballi (hereinafter referred to as 'the trial Court'), by which the appellants/accused Nos.1 and 2 have been convicted and sentenced;
a) To suffer rigorous imprisonment for life for the offence punishable under Section 302 read with Section 34 IPC and to pay fine of Rs.60,000/- each. In default to pay the said fine, to suffer simple imprisonment for a term of two years;
b) To suffer rigorous imprisonment for a term of five years for the offence punishable under Section 201 read with Section 34 IPC and to pay the fine of Rs.5,000/- each. In default to pay the said fine, to suffer simple imprisonment for a term of six months;
c) To suffer rigorous imprisonment for a term of five years for the offence punishable under Section 363 read with Section 34 IPC and to pay the fine of -4- CRL.A No. 100254 of 2021 C/W CRL.A No. 100251 of 2021 Rs.5,000/- each. In default to pay the said fine, to suffer simple imprisonment for a term of six months.
2. The case of the prosecution;
a) Originally upon a compliant dated 25.02.2014 filed by Smt.Savitri PW9, the mother of the deceased- Ravichandra Kundagol, alleging that between 11:00 p.m. of 19.05.2014 and 04:35 a.m. of 20.05.2014, some unknown person had kidnapped her son aged about 22 years along with his Tata Super Ace vehicle from M/s.Ganesh Enterprises, Karagannavour Hakkal, Yallapur Oni, Hubballi, a case in Crime No.277/2014 was registered for the offence under Section 365 of IPC. Pursuant to the said complaint on 21.05.2014, the police visited the spot and seized certain articles namely left foot chappal, blood stained fibre glass piece, hair and chilly powder found at the spot. That since there was no trace of the deceased for about two and a half months, PW9 being suspicious of the behaviour of accused Nos.1 and 2, informed the Police that her son might have been killed by them. There upon, the police collected call records and arrested the accused, recorded their voluntary statement leading up to recovery of skeleton / dead body of the deceased.
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b) That on further investigation, it was revealed that the deceased hailed from a village Siddanakoppa plot, post Katur, taluk Mundagol in Karwar district. That CW9- the younger sister of the mother of the deceased was married to PW7/CW8 from Hubballi and were residing there. That the deceased came to Hubballi for a livelihood and was staying with PWs.7 and 10. Accused No.2 being their relative was also staying with them for his livelihood. About four months prior to the incident, both accused No.2 and the deceased had left the house of PWs.7 and 10 and stayed in a separate rented house. Both of them had purchased Tata Super Ace vehicle by raising loan from L & T Private Finance Limited with the help of accused No.1, their common friend. The vehicle purchased by the deceased was bearing registration No.KA-25/D-8206. Deceased used to supply/carry milk to and from M/s.Ganesh Enterprises, Karagannavour Hakkal, Yallapur Oni, Hubballi daily between 11.00 p.m. and 6.00 a.m.
c) That after the marriage of accused No.2, the deceased started to harass his wife. As such, accused No.2 had driven the deceased out from their house. Accused No.1 had permitted the deceased to stay in his house. Even there the deceased had started harassing PW20 - the -6- CRL.A No. 100254 of 2021 C/W CRL.A No. 100251 of 2021 younger sister of accused No.1. Thus the accused had decided to eliminate the deceased.
d) That on 20.05.2014 at about 3.30 a.m., when the deceased was keeping milk packet trays in M/s.Ganesh Enterprises, Karagannavour Hakkal, Yallapur Oni, Hubballi, in furtherance of their common intention, accused No.1 poured chilly powder into the eyes of the deceased and throttled him, while accused No.2 assaulted him with a club over his head. Thereby the deceased lost consciousness and fell on to the ground. Thereafter, accused No.1 tied hands and legs of the deceased with a rope, gagged his mouth with cloth and both the accused Nos.1 and 2 took the deceased to a place 5 kms., after Kali river bridge on the way to Joida near Dandeli in a Tata Super Ace vehicle, strangulated him with a rope and killed him. The accused thereafter threw the body in a pit in a land bearing Sy.No.120 and covered the same with mud and garbage, threw the club that was used to commit the offence, mobile phone of the deceased and a bed sheet into Kali river near Dandeli bridge thereby caused disappearance of the evidence and abandoned the Tata Super Ace vehicle near a water tank situated at KIADB housing layout, Tapovana, Dharwad.
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3. That the police after completion of the investigation, filed the charge sheet for the offences punishable under Sections 363, 302 and 201 read with Section 34 of IPC. The trial Court framed charges and on the accused pleading not guilty proceeded to conduct trial.
4. The prosecution in order to prove the guilt of the accused examined 31 witnesses out of 36 witnesses cited in the charge sheet as PWs.1 to PW31 including two additional witnesses under Section 311 of Cr.P.C. and exhibited 87 documents marked as Exs.P1 to P87 and 11 material objects marked as MOs.1 to 11. CW29 was given up and the process to CWs.6, 15, 17, 21, 22 and 33 were dropped and thereby closed its side. The trial Court by the impugned judgment and order found accused Nos.1 and 2 guilty of offences punishable under Sections 302, 201 and 363 read with Section 34 of IPC. Being aggrieved by the same, the appellants are before this Court.
5. Learned counsel for the appellants reiterating the grounds urged in the memorandum of appeal submitted that; -8- CRL.A No. 100254 of 2021 C/W CRL.A No. 100251 of 2021
a) The entire case of the prosecution is based on circumstantial evidence and the prosecution has failed to establish the chain of events beyond reasonable doubt.
b) That the prosecution has failed to prove the alleged motive of deceased having illicit relationship with the wife of accused No.2 and harassing the sister of accused No.1. The versions of PW7, PW9 and PW10 regarding the motive for the murder are inconsistent and mutually contradictory.
c) That the witnesses to the spot panchanama and seizure panchanama have not supported the case of the prosecution.
d) That the trial Court has solely relied upon the evidence of Investigation Officer-PW13, the Taluk Executive Magistrate-PW21 and the Doctor-PW28 in arriving at erroneous conclusion of the prosecution having proved the recovery of the dead body as recorded in panchanama at Ex.P26 without appreciating the material contradictions in the said evidence.
e) That the prosecution has not produced any evidence connecting the mobile seized in the case to that of the accused. The certificate issued by PW24 under Section 65B of the Indian Evidence Act -9- CRL.A No. 100254 of 2021 C/W CRL.A No. 100251 of 2021 is inadmissible as the CDRs do not pertain to the accused persons.
Hence sought for allowing of the appeal.
6. On the other hand, the learned Additional State Public Prosecutor supporting the judgment and order passed by the trial Court submitted that;
a) The voluntary statement given by the accused persons led to the recovery of the remains of the dead body but for such information provided by the accused could not have been recovered. This alone is sufficient, strong and clinching circumstance against the accused of they having committed the offence.
b) That apart the circumstances and material evidence collected by the Investigation Officer more particularly the call records, the seizure of materials and conduct of the accused persons duly corroborated with the evidence of the other witnesses has established the guilt of the accused beyond reasonable doubt.
c) The appeal is devoid of merits and the impugned judgment and order warrants no interference. Hence, seeks for dismissal of the appeal.
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CRL.A No. 100254 of 2021 C/W CRL.A No. 100251 of 2021
7. Heard the learned counsel for the parties. Perused the records. The point that arises for consideration is, "whether under the facts and circumstances, the trial Court is justified in convicting the accused of the offences punishable under Sections 302, 201 read with Section 34 of IPC?"
8. It is seen that the entire case of the prosecution is based on the circumstantial evidence. Even as noted by the trial Court, PWs.1 to 6, 8, 12 to 15, 19, 20 and 22 have turned hostile. Thus, the impugned order of conviction and sentence passed by the learned Trial Judge is solely based on:
a) the deposition of PWs.7, 9, 10 regarding the motive;
b) the deposition of PWs.10 and 11 regarding the last seen theory;
c) the deposition of PWs.21, 28 and 30 regarding recovery of the skeleton/dead body found at the place purportedly shown by the accused as recorded in mahazar at Ex.P26 and the inquest report drawn as per Ex.P27.
9. Before appreciating the aforesaid evidence produced by the prosecution, it is apposite to refer to the
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CRL.A No. 100254 of 2021 C/W CRL.A No. 100251 of 2021 judgment of the Apex Court in the case of Sharad Birdhichand Sarda vs. State of Maharashtra reported in AIR 1984 SC 1622, wherein the Apex Court has held as under:
"151. .........
"It is well to remember that in cases where the evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should in the first instance be fully established and all the facts so established should be consistent only with the hypothesis of the guilt of the accused. Again, the circumstances should be of a conclusive nature and tendency and they should be such as to exclude every hypothesis but the one proposed to be proved. In other words, there must be a chain of evidence so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability the act must have been done by the accused."
152. A close analysis of this decision would show that the following conditions must be fulfilled before a case against an accused can be said to be fully established:
(1) The circumstances from which the conclusion of guilt is to be drawn should be fully established.
It may be noted here that this Court indicated that the circumstances concerned 'must or should' and not 'may be' established. There is not only a grammatical but a legal distinction between 'may be proved' and 'must be or should be proved' as was held by this Court in Shivaji Sahabrao Bobade & Anr. v. State of Maharashtra (1973) 2 SCC 793 where the following observations were made:
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"certainly, it is a primary principle that the accused must be and not merely may be guilty before a court can convict and the mental distance between 'may be' and 'must be' is long and divides vague conjectures from sure conclusions."
(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."
10. Thus in the light of the aforesaid legal principles, the prosecution shall establish the hypothesis of guilt of the accused by proving the facts consistent with the said hypothesis. It is in this background, the material evidence produced by the prosecution needs to be evaluated.
11. It is necessary to note that the incident alleged to have taken place on 19/20.05.2014 and the recovery of the remains of the dead body purportedly at the instance of the accused is stated to have been made on 21.08.2014.
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CRL.A No. 100254 of 2021 C/W CRL.A No. 100251 of 2021 Therefore, it is imperative for the prosecution to primarily establish that the said dead body was that of the deceased- Ravichandra Kundagol and that his death was a homicidal. Identification of the deceased:
12. The prosecution had apparently collected hair, blood stains found on the fibre glass cut piece from the shop premises namely M/s.Ganesh Enterprises belonging to PW4 being the scene of offence as per the spot panchanama at Ex.P3 dated 21.05.2014. The prosecution on 20.10.2014 had addressed a letter as per Ex.P82 to the Deputy Director, DNA Division, Madiwala, Bengaluru for conducting DNA examination of femur bones, tibia bones, hair, blood stained fibre glass, long bones and the blood sample of PW9-the mother of the deceased. That upon the examination, DNA report was received as per Ex.P53 and PW29-FSL expert Bengaluru, has been examined in this regard who has deposed that MO10, hair examined by her pertains to biological issue of PW9 and MO4 blood stains found on the fibre glass piece also pertains to biological issue of PW9. Thus the prosecution contends that the
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CRL.A No. 100254 of 2021 C/W CRL.A No. 100251 of 2021 DNA profile test of the articles matches with that of the DNA blood sample of PW9-the mother deceased and thus the remains on the death body were that of the deceased- Ravichandra Kundagol.
Cause of the death:
13. As regards, the cause of the death, it is seen from the inquest report at Ex.P27 that only scattered bones were found on the spot. The postmortem report produced by the prosecution at Ex.P52, reveals that on examination, it is found that the remains are that of a male, aged approximately about 22 years, that the height, physic etc., is reported as "can't say". In the column of opinion as to cause of the death or probable cause of death, it is stated as under:
"Cause of death could not be made out because of the skeletonization."
14. Thus from the aforesaid material evidence, though the prosecution is able to prove that the bones/dead body were that of the deceased-Ravichandra, the prosecution has not proved that the death was a homicidal and same has remained inconclusive. Under the circumstance, it is necessary to
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CRL.A No. 100254 of 2021 C/W CRL.A No. 100251 of 2021 scrutinize if the evidence brought on record by the prosecution is sufficient to prove the guilt of the accused, which is as follows:
Mahazar and neighbouring witnesses:
15. PWs.1 and 2 are the witnesses to the mahazar at Ex.P1 drawn while seizing Tata Super Ace vehicle on 28.06.2014 and also to the mahazar-Ex.P2 of seizing the skeleton of the dead body of the deceased along with other materials on 11.09.2014 between 19:15 and 20:15 hours. The said witnesses have turned hostile and have not supported the case of the prosecution.
16. PW3 and PW8 are the witnesses to mahazar at Ex.P3 drawn at the place of scene namely M/s.Ganesh Enterprises with regard to seizing of the left foot slipper, chilly powder, hair and blood stained fibre glass piece. The said witnesses have turned hostile and have not supported the case of the prosecution.
17. PW4 is the owner of the aforesaid M/s.Ganesh Enterprises, scene of incident from where according to the
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CRL.A No. 100254 of 2021 C/W CRL.A No. 100251 of 2021 prosecution, the deceased was assaulted and kidnapped. The said witness has completely turned hostile and has not supported the case of the prosecution.
18. PWs.5 and 6 are the neighbouring witnesses turned hostile and have not supported the case of the prosecution.
19. PW12 who is witness to Ex.P20-seizure mahazar of mobile of accused No.1 and Ex.P21 spot mahazar of the place shown by the accused as M/s.Ganesh Enterprises, Joida Road, Kali river bridge etc., Ex.P26 spot mahazar shown by the accused in the forest by the side of Joida road near Dandeli, Ex.P27 inquest, Ex.P28 spot mahazar of place shown by the accused at Tapovan, Dharwad having parked vehicle and Ex.P29 seizure mahazar of motorbike has turned hostile. PW13 and PW14 are the mother and father of accused No.1 and they have turned hostile. PW15 is the landlord of accused No.2. She has turned hostile. PW19 is the auto driver who turned hostile. PW20 is the sister of accused No.1 who has turned hostile. PW22 is a witness produced by the prosecution regarding
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CRL.A No. 100254 of 2021 C/W CRL.A No. 100251 of 2021 having seen deserted Tata Super Ace vehicle near the water tank. The said witness has turned hostile.
20. Thus the very genesis of the case namely the scene of first offence of kidnap itself has created serious doubt. PW4 who is the owner of the shop has specifically denied the prosecution version of recovery of articles from his shop. Though the prosecution has produced the photographs, the same has not been proved in accordance with law. Further, in view of the specific denial by the panch witnesses and PW4 with regard to drawing up of mahazar and seizure of the material objects, as contended by the prosecution, prosecution has failed to prove the very genesis of the case itself.
21. Similar is the circumstance of recovery of Tata Super Ace vehicle where all the mahazar witnesses have denied about drawing up the mahazar while seizing the vehicle at the location claimed by the prosecution creating doubt regarding the usage of vehicle in committing the crime.
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CRL.A No. 100254 of 2021 C/W CRL.A No. 100251 of 2021 Witnesses regarding motive circumstances:
22. According to the prosecution, motive was the illicit relationship which the deceased had with the wife of accused No.2 and the deceased harassing the sister of accused No.2. PW7 is the brother-in-law of the complainant-PW9, he has spoken about the motive. The said witness has stated that the deceased was residing with them and he knows the accused persons. That about four months prior to the incident, accused No.1 had taken the deceased and the accused No.2 to his house and all three were staying in the house of accused No.1. That about three months prior to the incident, deceased had purchased Tata Ace Vehicle bearing No.KA-25/B-8206 by borrowing loan and was using the said vehicle to carry goods during the day time and for supply of milk during the night. He has spoken about PW9 informing him about the deceased not returning home on 20.05.2014. He has also spoken about PW4 informing about the deceased not rendering the accounts of milk supply. The said witness has further deposed that about three months after the incident, he learnt from the Police that the accused had murdered him near Kali river of Dandeli and
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CRL.A No. 100254 of 2021 C/W CRL.A No. 100251 of 2021 have confessed having committed the crime. He has further deposed that while the deceased was working in his shop, the deceased had lent a sum of Rs.7 to Rs.8 lakhs of loan to the accused over four years and there were differences between the deceased and the accused on this count, which has led to the accused killing the deceased. In the cross-examination, the said witness has deposed that the deceased was working with him from 2008 till 2014. That he removed the deceased from the job as he was not bringing any earnings from his Tata Super Ace vehicle. That earlier he was not paying any salary to the deceased, but since two years, he was paying the salary. He states that he has not given any statement to the Police with regard to the aforesaid loan transaction between the deceased and the accused.
23. PW9 is the mother of the deceased who has spoken about she having given a complaint as per Ex.P12. She has stated that her son was killed by the accused as he was progressing in his business and was earning well. That she was informed by the Police about the accused throwing away his dead body by wrapping it up with a mat near Dandeli. The said
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CRL.A No. 100254 of 2021 C/W CRL.A No. 100251 of 2021 witness has also turned hostile, as she denied having given any statement to the Police as per Ex.P14. She has also denied about the deceased harassing the sister of accused No.1 leading up to quarrel between accused No.1 and the deceased. She has also denied about the deceased having illicit relationship with the wife of accused No.2. She has denied having given statement as per Ex.P14 regarding accused No.1 and accused No.2 being responsible for causing harm to the deceased for the aforesaid reasons. In the cross-examination, PW9 has also stated that initially when she lodged the complaint, she has not stated that the accused persons were responsible for the death of the deceased. She has also stated that at the time of giving the complaint, accused persons had accompanied her.
24. Thus it is seen from the deposition of PW9 -the mother of the deceased that the deceased must have been killed by the accused for he was doing well in his business. In the cross-examination, the said witness has specifically denied the theory of deceased having had any illicit relationship with
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CRL.A No. 100254 of 2021 C/W CRL.A No. 100251 of 2021 the wife of accused No.2 and he having harassed the sister of accused No.1.
On the contrary, as per the evidence of PW7, the motive was that the deceased had lent Rs.7 to 8 lakhs to the accused over a period of four years and when he demanded repayment of the same, the accused had eliminated. The said witness has admitted that he had not stated so before the Police. The said theory apart from inconsistent with the case of the prosecution is also improbable inasmuch as apparently the deceased himself had borrowed loan to purchase Tata Ace Super vehicle. Prior to that he was working without salary under PW7. PW7 had removed him from the job for the reasons of the deceased not bringing the earnings from his Tata Ace Super vehicle. This being the deposition of PW7, the possibility of deceased having financial ability to lend Rs.7 to 8 lakhs to the accused is far fetched. Besides, nothing has been brought on record in this regard.
25. PW10 on the other hand has pleaded ignorance about deceased having had any illicit relationship with the wife
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CRL.A No. 100254 of 2021 C/W CRL.A No. 100251 of 2021 of accused No.2 and harassing sister of accused No.1. She has in fact stated that deceased was not of that character.
Even in the light of the aforesaid improbability and inconsistency of the witnesses regarding motive, the trial Court has taken their evidence to be sufficient enough to establish the motive. In our considered view, the said finding of the trial Court is unsustainable.
Last seen witnesses:
26. Prosecution in its attempt to establish the "last seen theory" has examined PWs.10 and 11.
27. PW10 is the sister of PW9 and wife of PW7. In her deposition she has stated that when the police informed her about the deceased-Ravichandra harassing the wife of accused No.2 and sister of accused No.1, she had replied that Ravichandra was not of that character. She has further stated that on the last date the deceased had taken food in her residence and as he was wearing only a baniyan, she had asked him to wear the shirt which was seized as per MO5. Since she turned hostile, she was subjected to cross-examination by the
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CRL.A No. 100254 of 2021 C/W CRL.A No. 100251 of 2021 prosecution in that she has specifically pleaded ignorance about the deceased having any relationship with the wife of accused No.2 and sister of accused No.1 and also about the accused quarrelling with the deceased on the said aspect.
28. PW11 has deposed that the deceased-Ravichandra is known to him and he was taking milk from them to supply to M/s.Ganesh Enterprises. That on 20.05.2014, at 3.15 in the morning, he had taken milk from them. That about 4.00 a.m., he received a call from M/s.Ganesh Enterprises regarding they not receiving the milk. He has also informed about again he receiving the call from M/s.Ganesh Enterprises regarding Ravichandra not reaching his shop and about blood stains and chilly powder found in the shop. The said witness has turned hostile.
29. The trial Court has relied upon the aforesaid depositions of PWs.10 and 11 for "last seen theory". A perusal of the deposition of the said witnesses as noted above hardly lends any link to the guilt of the accused. Assuming the said witnesses had last seen the deceased they have not mentioned
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CRL.A No. 100254 of 2021 C/W CRL.A No. 100251 of 2021 anything about the accused accompanying or seen with the deceased. There is no proximity established between the accused and the deceased to justify the circumstance leading up to the commission of offence by the accused. This is hardly a last seen circumstance and as such it cannot be countenanced.
Witnesses regarding recovery of skeleton/dead body:
30. Recovery of skeleton/dead body has been projected to be the strongest circumstance by the prosecution. In this regard, it has relied upon the evidence of PWs.21, 28 and 30.
31. PW21 is the doctor who has spoken about having received the requisition from the Tahasildar along with dead body details for PME as per Exs.P46 and P47. He received the requisition at 04:45 p.m. at the spot as he was called there by the Tahasildar. He speaks about the searching around the spot where the bones were scattered here and there and he having collected and arranged them in order. He also speaks about forwarding the bones and other materials to HOD, Forensic Department, KIMS, Hubballi and also having issued PME report
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CRL.A No. 100254 of 2021 C/W CRL.A No. 100251 of 2021 as Ex.P37. He has deposed that he has not formed opinion regarding cause of death due to skeletonized body and also about not forming opinion regarding the nature and injuries at the time of the death. However, he states that as per the DNA profiling report, PW9 was the biological mother of the deceased. In the cross-examination, he stated that Tahasildar, Joida, Taluk Health Officer, Joida and two other Medical Officers were present at the spot; that scattered bones were not collected or arranged before he went to the spot; that the head and cervical vertebras' bag was lying in the area of water flow; that all bones were found scattered within 10 metres radius from the spot; that he also states that the clothes were scattered.
32. PW28 is the Tahasildar who has stated that on 21.08.2014, Assistant Commissioner, Karwar Sub Division, had instructed him to go along with the Police to the spot and to prepare the inquest pachanama. That on the said date, at 01:30 p.m., he along with the Police and the accused went to the spot shown by the accused near Beerampali cross on Joida Dandeli road. That there was dead body which was half buried
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CRL.A No. 100254 of 2021 C/W CRL.A No. 100251 of 2021 and half seen. That on inspection after removing the mud, there were only bones. There was plastic covered on the head portion. In that there was skull, bones were scattered and there was pant and a shirt. That he prepared the panchanama between 02:30 to 04:30 p.m. which is marked at Ex.P27. PW21 (Joida Hospital Doctor) was with them and he issued a requisition for conducting the postmortem as per Exs.P46 and P47. Postmortem was conducted and photo and videography was done. In the cross-examination, he has deposed that Police have not given any requisition letter to inspect the dead body and to conduct the inquest panchanama. Police have not come to his place. He further deposed that when they saw, there was no complete dead body it was half skeleton and half dead body. He admits that there is no such mention of half skeleton and half dead body in the panchanama. He further states that because of the wild animals, some of the bones of the body were scattered around 4 to 5 feet distance from the place where it was buried. He further states that he has not mentioned in the panchanama about the direction and distance at which the bones were scattered.
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CRL.A No. 100254 of 2021 C/W CRL.A No. 100251 of 2021
33. PW30 is the Investigating Officer who has spoken about registration of case, visit to the scene of the offence, seizure of articles, obtaining CDRs, seizure of Tata Super Ace vehicle, arrest of accused persons, recording of their voluntary statement, recovery of dead body at the information of the accused. As regards the preparation of panchanama at Ex.P26, he states that the same was prepared between 11:30 to 12:30 p.m. In the cross-examination, he admits that the SIM card was not in the name of the accused No.1. He admits that the bones were scattered. He also admits that there was no dead body near Joida road. He also admits that mere seeing the bones it was not possible to identify the deceased. He also states that PWs.9, 7 and 10 have not given statement before him.
34. As regards the information furnished by the accused which according to the prosecution led to recovery of the dead body is concerned, there are serious inconsistencies at every stage by every witness. PW1 who is the witness to the mahazar at Ex.P26 drawn in this regard, has turned hostile and the prosecution has not examined the other mahazar witness. From
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CRL.A No. 100254 of 2021 C/W CRL.A No. 100251 of 2021 the contents of Ex.P26, it is seen that the mahazar witnesses namely Abudul Khadar Jilani and Mohammed Sayed along with the Police Inspector and the accused persons went to the spot at about 11:30 a.m. and shown the place where they had allegedly burried the deceased. It is stated in the said mahazar that some of the human bones appeared to have been pulled from the earth by wild animals. That the Police Inspector had informed the Sub Divisional Commissioner to inquire into the burried dead body. The contents of this mahazar report are in conflict with the deposition of Tahasildar PW28. According to him, the Police had come to his place along with the accused persons at about 01:30 p.m. and the accused persons had shown them the spot, where they found half of the dead body was buried while the other half was seen. That on removing the mud, they only found scattered bones, pant and shirt. The said person during the cross-examination has admitted not mentioning about the said situation in the panchanama.
35. The deposition of PW21 Doctor in this regard is also relevant to note. According to him, he received the requisition by the Tahasildar at about 04:15 p.m. at the spot and he found
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CRL.A No. 100254 of 2021 C/W CRL.A No. 100251 of 2021 that the bones were scattered around 10 metres radius from the spot and the clothes were also scattered. The said witness has also deposed that along with the Tahasildar there was a Taluka Health Officer and two other Medical Officers.
36. Further, PW21 in his deposition has mentioned presence of Taluka Health Officer and two other Medical Officers. Nothing prevented the prosecution from taking the signatures of the said persons while drawing the panchanama. From the perusal of the deposition as noted above, the very presence of PW21, PW28 at the spot becomes doubtful as each have given different versions.
37. The prosecution and the trial Court have relied upon the deposition of the aforesaid witnesses to come to the conclusion regarding the accused having committed the crime. In fact, the entire case of the prosecution has unraveled from the circumstance of alleged recovery of the dead body. From the narration of the spot and situation of the dead body/its skeleton and the timing of recording of the mahazar and
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CRL.A No. 100254 of 2021 C/W CRL.A No. 100251 of 2021 inquest and the denial by the panch witness, serious doubt arises with regard to the very theory of recovery.
38. From the above evidence, it is clear that the entire case of the prosecution is based on recovery of the dead body made purportedly upon the information furnished by the accused. The prosecution has attempted to link the other circumstances to bring home the guilt of the accused.
39. The said circumstances do not inspire the confidence of this Court. Based on this inconsistent evidence, it is very improbable to conclude that the dead body was recovered at the instance of the information given by the accused.
Call Detail Records:
40. The next circumstance sought to be made out by the prosecution is the call detail records which according to the prosecution reveal the telephonic conversation emanating from the mobile number from the tower near the place where the aforesaid Tata Super Ace vehicle was parked.
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CRL.A No. 100254 of 2021 C/W CRL.A No. 100251 of 2021
41. PW24 is the Police Constable who has spoken about having submitted the reports at Exs.P56 to 59 and having taken the photographs and videographs and also having taken the call details of the accused No.1. As already noted above, in the cross examination, the said witness admitted that he had submitted the affidavit/certificate as required under Section 65B(4) of the Indian Evidence Act after having led the evidence. He has admitted that the SIM card bearing Nos.8095634855 and 9611519794 are in the names of Basavaraj Malagi and Manju Malagi respectively and that there was no SIM card in the name of the accused No.1.
42. PW27 is the PSI who has spoken about collecting the call details and also the SIM card details belonging to one Basavaraj Malagi, the father of accused No.1. In the cross examination, the said witness has admitted that he has not taken any statement of the Basavaraj Malagi, the father of accused No.1 regarding the SIM. He has also deposed that he has not made any application seeking information of the mobile service provider. He has also spoken that he has not seized the SIM card which was used by accused No.1 as stated by him.
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CRL.A No. 100254 of 2021 C/W CRL.A No. 100251 of 2021
43. PW27 - PSI, who claims to have collected the CDRs. has not given any credible information about the manner and method of collection of said CDR. He has categorically deposed that the SIM card does not belong to accused No.1 and in that case, no such SIM card has been seized. There appears to be no compliance with regard to Section 65B(4) of the Indian Evidence Act. Be that as it is, the prosecution has also not established from the call records, the timings of the alleged communication between the accused and the deceased, the said material evidence is of no avail.
Other official witnesses:
44. PW16 is the Head Constable, who has spoken about carrying the skull and bones etc., to the forensic lab and carrying report thereof as per Exs.P35, P36 and P37. PW17 is the Police Constable who has written the panchanamas at Exs.P1 to P3, P20, 21, 26 to 29. PW18 is the Head Constable who has spoken about carrying the articles to the Bangalore FSL and submitting the report thereof as per Exs.P38, 39, 40 and 41 and MOs.3, 4, 10 and 11.
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CRL.A No. 100254 of 2021 C/W CRL.A No. 100251 of 2021
45. PW23 is the Forest Guard who has spoken about the Police showing him the accused persons and the accused persons taking them to the place of burial of the dead body. He has also spoken about recovery of rope, skull, plastic bag, a mobile and bed sheet. In the cross examination, he has stated that on the said date, only doctor-PW21 was present and other doctors were not present.
46. PW25 is Deputy Director, RFSL, Davangere, who has issued the report on the skull, teeth, blood stained fibre glass. PW26 is the Forest Range Officer who in the cross examination has admitted not having gone to the spot.
47. PW29 is the Assistant Director, DNA Department, FSL, Bengaluru who has spoken about the report as per Ex.P53 with regard to the blood stained fibre glass cut piece, hair and the blood samples of Smt.Savitri Kundagol.
48. PW31 is the Professor and HOD of Forensic Department at KIMS, who has spoken about he having examined bone and skull sent by PME Doctor and issuing of the certificate.
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CRL.A No. 100254 of 2021 C/W CRL.A No. 100251 of 2021
49. For the foregoing reasons and analysis, we are of the considered view that the prosecution has failed to establish the facts consistent with the hypothesis of the guilt of the accused in a conclusive nature excluding the possibility of other hypothesis. The trial Court has not taken these aspects of the matter while passing the impugned judgment and order. The point raised above is answered accordingly. Consequently, the following:
ORDER The appeals are allowed.
The impugned order of conviction and sentence passed against the appellants/accused Nos.1 and 2 are hereby set aside.
The appellants/accused Nos.1 and 2 are acquitted of the charges for the offences punishable under Sections 302, 201 and 363 read with Section 34 of IPC. Accused Nos.1 and 2 shall be set at liberty forthwith, if their detention is not required in any other case.
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The order of the trial Court with regard to the disposal of the property is maintained.
The fine amount deposited if any by the accused shall be refunded to them.
Acting under Section 357A of Cr.P.C., the matters are referred to the District Legal Services Authority, Dharwad for determination and payment of compensation to PW9.
Registry shall communicate this order forthwith to the trial Court and the concerned Jail Authorities.
Pending interlocutory applications stood disposed off.
Sd/-
JUDGE Sd/-
JUDGE KGK/RSH