Karnataka High Court
The State By vs Mallappa S/O Pakirappa Kattimani on 2 November, 2017
Author: B.V. Nagarathna
Bench: B.V. Nagarathna
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IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 2ND DAY OF NOVEMBER, 2017
PRESENT
THE HON'BLE MRS. JUSTICE B.V. NAGARATHNA
AND
THE HON'BLE MR. JUSTICE B.A. PATIL
CRIMINAL APPEAL No.3703/2010
BETWEEN:
The State by Mudgal Police Station
Represented by Addl. State Public Prosecutor
Office of the Advocate General,
Gulbarga.
...Appellant
(By Sri Prakash Yeli, Addl. SPP)
AND:
Mallappa
S/o Pakirappa Kattimani
Age: 21 years
Occ: Shephered and Agricultural
R/o Vyakarnal Village.
...Respondent
(By Sri M.Sharanabasappa Patil, Advocate for
Sri Ustad Sadat Hussain, Advocate)
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This Criminal Appeal is filed under Section 378 (1) and
(3) of Cr.P.C praying to grant leave to appeal against the
judgment and order of acquittal dated 26.04.2010 passed
in S.C.No.62/2009 on the file of the Fast Track Court-I at
Raichur, acquitting the respondent/accused for the offences
punishable under Sections 302, 376 and 392 of Indian
Penal Code.
This Criminal Appeal having been heard reserved on
30.06.2017 and coming on for pronouncement of judgment
this day, B.A. Patil J., delivered the following:-
JUDGEMENT
This appeal has been preferred by the State assailing the judgment and order of acquittal, dated 26.4.2010 passed by the Fast Track Court-I, Raichur, in SC.No.62/2009.
2. The case of the prosecution in brief is that on 24.1.2009 at about 9.00 a.m., accused/respondent herein went to land bearing Sy.No.152 of Vykarnal Village for bringing jaali leaves for his sheep. When he was cutting -3- the branches of the jaali tree, at that time Leshamma who was present in the land shouted at the accused "asking who he is and that she is fed up of shepherds." She came near the accused and identified him and dared him to the village. On hearing this accused hurriedly went away from that place. Remembering that he had left his axe in the said place, he came back to take the same. At that time, deceased Leshamma asked the accused as to why he returned and abused him. In response, accused with an oblique intention asked her to sleep with him, for which Leshamma further abused the accused and questioned as to how he could make such a demand for which accused became angry and assaulted Leshamma over her left knee. Out of severe pain she cried saying that she would die and as a result of the assault, she fell down. At that time, the accused disrobed her by pulling her saree and committed the offence of rape on her. Thereafter, he cut her ears along with ear-studs using a sickle and also took away Lingadakai from her person. Assuming that Leshamma is -4- left alive she would disclose the said fact in the village, accused assaulted her on her head and left lungs with an axe and caused her death. When PW.18 went near the land, he noticed that Leshamma had fallen down with injuries. He informed the said fact to the relatives and thereafter, he filed a complaint. On the basis of the complaint, a case was registered in Crime No.13/2009 and after completion of investigation, charge sheet came to be filed against the accused for the offence under Section 302 of IPC.
3. Learned JMFC took cognizance and after following the procedure as laid down under Section 207 of Cr.P.C., he committed the case to the Sessions Court. The Sessions Court after taking cognizance, secured the presence of the accused and after hearing him before charge, framed charges for offences punishable under Sections 302, 376 and 392 of the IPC to which the accused pleaded not guilty. As such, the case was set down for trial.
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4. In order to prove its case, the prosecution in all examined twenty-two witnesses as PWs.1 to 22 and got marked twenty-one documents as per Exs.P1 to P21 and also got marked Material Objects as per MO.Nos.1 to 14. After closure of the prosecution case, statement of the accused was recorded under Section 313 of Cr.P.C, 1973. Accused denied the incriminating materials against him. However, he did not lead any evidence on his behalf. But during the course of cross-examination, he got marked Exs.D1 to D3.
5. The trial Court after hearing learned Public Prosecutor and the learned counsel appearing for the accused, passed the impugned judgment acquitting the accused for the offences with which he was charged. Being aggrieved by the same, the State is before this Court in this appeal.
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6. We have heard Sri Prakash Yeli, learned Additional SPP appearing for the appellant-State and Sri Sharanabasappa M.Patil, learned counsel appearing on behalf of Sri Ustad Sadat Hussain for respondent-accused and perused the material on record as well as original records.
7. Learned Additional SPP would contend that the entire case rests on circumstantial evidence and that he would demonstrate the case of prosecution by relying upon the following circumstances:
(a) The first circumstance on which the prosecution relies on is, the motive for commission of the alleged offence. When accused asked the deceased Leshamma to come and sleep with him, she refused and scolded him. The accused got furious and thereafter disrobed her by pulling her saree and committed the offence of rape on her.
Further, assuming that if she is survived she would disclose -7- the said fact in the village, for which accused assaulted her with an axe and caused her death.
(b). The second circumstance is that the accused was going towards the land of the deceased before the incident and PWs.13, 14 and 15 have seen the same. PWs.12 to 16 have also seen the accused returning with empty hands. Further, when the accused was returning hurriedly, husband of PW.15 asked the accused as to why he came back with empty hands. But accused did not respond to him and being frightened he went away. Further, these witnesses have also seen the accused with the blood- stained shirt.
(c). The third circumstance is, the recovery of ear- studs and lingadakai of the deceased, so also the weapon used for commission of the offence has been recovered at the instance of the accused.
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(d). The last circumstance on which the learned Additional SPP relies on is that the accused has made an extra-judicial confession before PW.21 and thereby he confessed that he had committed the alleged offence.
8. The learned Additional SPP has contended that all the circumstances relied upon by the prosecution would cumulatively point out towards the guilt of the accused. Though such evidence was available before the trial Court, it has wrongly acquitted the accused. In support of his case, learned Additional SPP has relied upon the decisions of the Apex Court in the case of Baskaran & another Vs. State of Tamil Nadu, reported in (2014)2 Criminal 6; and in the case Kusuma Ankama Rao Vs. State of Andhra Pradesh, reported in (2008) 13 Criminal 557 contending that in case an extra-judicial confession is made and if it is voluntary, true and made in a fit state of mind, the same can be a basis to convict the accused. He contended that extra-judicial confession made by the -9- accused before PW.21 is one such circumstance sufficient to convict him for the alleged offence. He has further contended that minor discrepancies in the investigation does not help the accused to reject the case of the prosecution. In support of this contention, he has relied upon a decision of the Apex Court in the case of Leela (D) through Duli Chand Vs. State of Haryana & another, reported in AIR 1999 SC 3717. His further contention is that when the evidence has been adduced by rustic villagers who are not educated, while appreciating such evidence, missing out/absence of trivial particulars do not help the case of the accused. On these grounds he prayed for allowing the appeal by convicting the respondent- accused for the alleged offences.
9. Per contra, learned counsel appearing on behalf of the respondent-accused would however justify the impugned order of acquittal by contending that the prosecution has utterly failed to prove the circumstance of
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motive for commission of the alleged offence. He has contended that all the circumstances relied upon by the prosecution have not been established to substantiate its case. The chain of events which the prosecution is intending to rely upon, has not been proved as contemplated under law and after considering the said fact, the trial Court has rightly acquitted the respondent. Hence, he has contended that there is no merit in the appeal and as such the same is liable to be dismissed by confirming the impugned order of acquittal.
10. Keeping in view the aforesaid submissions, let us consider whether the Prosecution has proved the guilt of accused by relying on the circumstances, beyond reasonable doubt.
11. PWs.1 and 11 are the pancha witnesses for the spot mahazar Ex.P1. PW.1 has deposed that police have seized lingadakai, club, cloth, sickle, bangles, stained and unstained mud at the time of drawing the mahazar. During
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the course of cross-examination, PW.1 has admitted that on all bunds of land, there are jaali trees; by the time he went to the spot, mahazar was drawn and thereafter he signed the same. Except this nothing has been in the evidence of PW.1.
PW.2 is the pancha witness for seizure mahazar at Ex.P2, under which clothes of the deceased were seized.
PW.3 is the photographer who took photographs of the dead body. He has deposed that he also accompanied the accused to the place where he has kept the axe, ear- studs. He also took the photographs of them and handed over the said photographs and CD to the police. During the course of cross-examination, nothing has been elicited so as to discard the evidence of this witness.
PW.4 is the Police Constable who carried Ex.P5, the FIR to the jurisdictional Court.
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PW.5 is also the Police Constable who was keeping a watch over the dead body on the spot and thereafter he shifted the dead body to the hospital for postmortem examination. After postmortem examination, he handed over the body to the relatives of the deceased and after collecting the clothes of the deceased, he produced the same before the Investigating Officer as per Ex.P6.
PW.6 is the Junior Engineer who prepared the sketch in respect of the place of incident as per Ex.P7.
PW.7 is the Village Accountant, who issued record of rights in respect of the land wherein the dead body was lying, as per Ex.P8.
PW.8 is the Doctor who conducted autopsy of the deceased Leshamma and issued PM report as per Ex.P9. He has deposed that on examination, he found that both the earlobes were torn, over the ear pinna just below the earring perforations; there was a chop wound measuring
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about 12x4 cms. over the left temporal region of head; there was fracture of left temporal bone and fracture of left parietal bone; there was a deep lacerated wound measuring about 4x2 cms. over right side of temporal bone. PW.8 has opined that deceased Leshamma died due to hemorrhagic shock as a result of severe head injury. During the course of cross-examination, PW.8 has admitted that there are eight types of fractures in the skull and the type of fracture will normally give a clue regarding the weapon used. He has deposed that external wounds on the body would suggest the type of weapon and fractures are internal injuries. He has admitted that he has not mentioned the type of fracture on left temporal bone and left parietal bone in the PM report. He has also not mentioned any external injuries corresponding to parietal bone. He has further deposed that on left temporal bone, there was chop wound. He has also admitted that there was no injury on the knee portion of body when he conducted the postmortem examination; there was no injury either abrasion or bruise
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over buttock or over back of the deceased Leshamma when he examined the dead body in order to hold that there was a rape; on the perusal of the serological report and his clinical report he is of the opinion that there was no rape. He has also admitted that if any heavy cutting weapon is used to assault on the body, entry wound will be deep and clear, but the exit wound will not be clear and deep. He has further admitted that he has not mentioned the dimension of wounds and only mentioned the measurements. Except this nothing has been elicited in the evidence of this witness.
PWs.9 and 10 are the panchas for inquest mahazar at Ex.P14.
PW.12 is the brother of the deceased. He has deposed that on 24.1.2009, he came to know about the murder of his sister Leshamma from CWs.1 and 7; thereafter he went to the spot and noticed the injuries over the body of the deceased. He has deposed that PW.18
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went to the Police Station and lodged the complaint. He came to know from the villagers that accused committed the murder of the deceased; when he was in the house, CW.9 came and informed that when he was coming from the land, he saw the accused going in the direction holding an axe and on that basis, he suspected that accused committed murder of the deceased. During the course of cross-examination, nothing has been elicited except denial of the suggestions.
PW.13 is a material witness who has deposed that he, CWs.14 and 15 had been to their lands to harvest the crops early morning on the relevant day, at that time, accused came from the field of Bennar; at that time, he asked the accused as to where he was going. He has further deposed that Mallappa who is accused before the Court went towards the land of Bheemanagouda to bring leaves for his sheep; accused returned with empty hands and when asked as to where he was going he went away
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hurriedly. Further, he has deposed that CW.1 went towards his land by taking his cow and immediately he returned along with CW.16 and informed them that Leshamma was murdered and people started moving towards that direction. He also went to the spot and noticed the injuries on deceased Leshamma. During the course of cross- examination, he has admitted that Shankergouda, husband of the deceased Leshamma had two wives; Leshamma had no children, whereas the second wife, Ambamma has two children. He has also admitted that about fifteen days prior to the death of Shankergouda, a dispute had arisen between his two wives and the matter was taken before the elders of the village and the property was equally distributed by the elders; the second wife Ambamma was dissatisfied with the distribution of the property as she was having children and was intended to get more share in the property. He further admitted that when toor crop is tender, no sheep would be allowed for grazing. He has further deposed that he does not know, whether accused
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heard him or not, when he asked him as to where he was going or while returning from that side. He further admitted that he has not informed anybody about the fact that the accused went hurriedly except his statement before the police, after three days of the incident. He has further admitted that as per Shivaraj and Bheemanagouda he is giving evidence.
PW.14 is the relative of the deceased, who has deposed that her house and house of the deceased are opposite each other; on the date of the incident, when she was sitting in the houseyard, she saw Leshamma going to the land by holding sickle and cloth.
PW.15 is the wife of CW.9, who has deposed that she and her husband had been to the land for agricultural work on the morning of the date of incident; at about 7.00 a.m. accused came from the field of Bennar, at that time, her husband asked the accused as to where he was going. PW.15 has also identified the accused before the Court.
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She has deposed that accused went towards the land of Bheemanagouda to bring jaali leaves for his sheep; after about one and half hours, accused returned and at that time, her husband again asked him as to why he did not bring jaali leaves though he went to bring the same; however, accused went away hurriedly without speaking to her husband. She has further deposed that she asked her husband as to why Mallappa (accused) did not speak, for which her husband said that the accused had been to bring jaali leaves and somebody might have scolded for the same and therefore he did not talk to him. During the course of cross-examination, PW.15 has admitted that there are Sarkari jaali trees by the road side. She has deposed that she does not know as to how many sheep the accused was having.
PW.16 is also the relative of the deceased. He has deposed that on the date of the incident, he had been to his land for cultivation; at about 8.00 a.m., deceased went
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towards her land holding sickle and cloth; at about 12.00 Noon, Shivaraj came there with his cow and after some time Shivaraj returned; she enquired as to why he was returning so early to which he informed about the murder of his aunt Leshamma and therefore, he was going towards the village. During the course of cross-examination he has deposed that except seeing Leshamma and Shivaraj going that way he has not seen any other person.
PW.17 is the panch witness for recovery mahazar at Ex.P.15. He has deposed that police had summoned him and CW.23 for panchanama; accused was present on the spot and he said that he would take them to the place where he had killed the deceased; he took them to the land of Bheemanagouda in the cart; accused showed the spot and police saw the spot and wrote; thereafter the accused said that he would show the ear-studs of the deceased and took them to his land; there was a tamarind tree and jaali tree in the land; there was a heap of stones near the jaali
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trees; he had kept one stone beside the other and after removing them, he produced the ear-studs which were in a plastic cover and the same were seized by the police. He has further deposed that accused took them to the land where he had cultivated the land on core basis and accused removed the axe from the place where the harvesting of sajji was done and the axe was also seized; thereafter the accused showed the blood stained clothes belonging to him in his house and the same were seized as per Ex.P15. During the course of cross-examination, not much has not been elicited from this witness.
PW.18 is the complainant who has filed the complaint as per Ex.P16. He has deposed that when he was in the house, CWs.7 and 8 came and informed them that accused had murdered the deceased. He has also spoken about PW.21 informing about the confession made by the accused. During the course of cross-examination, nothing has been elicited.
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PW.19 is the photo and videographer, who has recorded the recovery process. He has not supported the case of the prosecution with material particulars.
PW.20 is the CPI who investigated the case and laid the charge sheet.
PW.21 is the witness before whom the accused has made the extra-judicial confession. He has deposed that at about 10.00 p.m., the accused Mallappa came to his house and woke him up; Mallappa called him to come out of his house; thereafter he asked the accused as to why he came and called him out of his house; at that time he told that on Saturday he had been to the land of Bheemanagouda to bring leaves for his goats. At that time, Leshamma who was present there, scolded him as he would destroy the trees by cutting them, as such he threw the leaves there itself and returned. As he had forgotten to bring his axe, he went back, at that time deceased scolded
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him again as to why he came back. After confirming that there was nobody around, the accused asked Leshamma for a sexual favour for which she scolded him, at that time, he assaulted Leshamma on her left leg with an axe. He disrobed her by pulling her saree and committed rape on her. Assuming that she would reveal the said fact in the village, he assaulted her with axe and caused her death. PW.21 has further deposed that accused requested him to save him by telling the said fact to Hanumagouda and as such he informed the same to Hanumagouda. During the course of cross-examination, he has deposed that he was a member of village panchayat and when accused informed him the incident, he did not feel like informing the same to Gowda or to the police. PW.21 has further deposed that he did not make any effort to call the police and hand over the accused. He did not reveal the said fact to anybody till he went and informed Gowda. On the next day at about 5.00 p.m., he went to the house of Gowda, wherein the police were present along with Hanumagouda, Shivanagouda,
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Amaregouda, and Bheemanagouda. Except this nothing has been elicited from this witness.
PW.22 is the witness who has deposed that he saw the accused going hurriedly and he also saw that the shirt of the accused was stained with blood; when he asked the accused as to why his shirt has become blood stained the accused went away without answering him. During the course of cross-examination, PW.22 has deposed that after coming to know about the death of the deceased, he suspected that the accused might have committed the murder of the deceased. But he did not inform either to the police or to Bheemanagouda. He has further deposed that before informing Bheemanagouda, he had informed his mother and sister about seeing the bloodstained shirt of the accused. Except this, nothing has been elicited from this witness.
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12. On considering the aforementioned evidence, it is clear that there are no eye witnesses to the incident in question. The entire case of the prosecution rests on circumstantial evidence. It is well established principle of law that, if a case rests on circumstantial evidence, all the circumstances are to be linked with one another and the Court will be in a position to see the chain of events and if the chain of events and important links have been established by the prosecution, then it is said to have proved the case. This proposition of law has been laid down in the case of Shaikh Abdul Hameed and another Vs. State of Madhya Pradesh, reported in AIR 1998 SC 942 which reads as under:-
"8. We have considered the circumstantial evidence in this case and find that all the links of chain of circumstances are unbroken and complete. We are, therefore, of the opinion that circumstantial evidence is consistent with the guilt of the two accused."
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13. It is also well established principle of law that the prosecution has to establish that the circumstances proved lead to one and only conclusion i.e., towards the guilt of the accused. The evidence produced must be complete and incapable of explanation of any other hypothesis, than that of the guilt of the accused. The said dictum is laid down in the case of Rukia Begum Vs. State of Karnataka, reported in AIR 2011 SC 1585 which reads as under:-
10. "No doubt it is true that for bringing home the guilt on the basis of the circumstantial evidence the prosecution has to establish that the circumstances proved lead to one and the only conclusion towards the guilt of the accused. In a case based on circumstantial evidence the circumstances from which an inference of guilt is sought to be drawn are to be cogently and firmly established. The circumstances so proved must unerringly point towards the guilt of
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the accused. It should form a chain so complete that there is no escape from the conclusion that the crime was committed by the accused and none else. It has to be considered within all human probability and not in fanciful manner. In order to sustain conviction circumstantial evidence must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused. Such evidence should not only be consistent with the guilt of the accused but inconsistent with his innocence. No hard and fast rule can be laid to say that particular circumstances are conclusive to establish guilt. It is basically a question of appreciation of evidence which exercise is to be done in the facts and circumstances of each case. Here in the present case the motive, the recoveries and abscondence of these appellants immediately after the occurrence point out towards their guilt. In our opinion, the trial court as also the High Court on the basis of the circumstantial evidence
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rightly came to the conclusion that the prosecution has been able to prove its case beyond all reasonable doubt so far as these appellants are concerned."
14. Keeping in view the above proposition of law, the question that arises for our consideration is, whether the prosecution has established all the circumstances, so as to bring home guilt of the accused beyond reasonable doubt.
15. The first and foremost circumstance relied upon by the prosecution is the motive for commission of the offence. In the instant case, the accused went back to the spot as he had forgotten to bring his axe, when he went back, deceased scolded him as to, why he came back for which accused became angry. After seeing and confirming that there was nobody in the field, accused asked the deceased for sexual favour. On hearing the same, she became angry and abused him, at that time, accused assaulted her on the left leg and when she fell down,
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accused pulled her saree and sexually assaulted her. Thinking that she would reveal the said fact in the village, accused assaulted her with an axe on her occipital region and caused her death. Thus prosecution has relied on the aspect of motive as the first circumstance. Motive is of no consequence when there is a direct eye witness to establish the crime. But in cases of circumstantial evidence, motive assumes significance. Evidence regarding motive for the crime would, no doubt, go a long way in cases wholly dependent on circumstantial evidence. Such evidence would form one of the links in the chain of circumstantial evidence in such cases. This proposition of law has been laid by the Apex Court in the case of Bipin Kumar Mondal Vs. State of West Bengal, reported in (2010)12 SCC 91, which reads as under:-
"Motive-
22. In fact, motive is a thing which is primarily known to the accused himself and it may not be possible for the prosecution
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to explain what actually prompted or excited him to commit a particular crime.
23. In Shivji Genu Mohite v. State of Maharashtra this Court held that in case the prosecution is not able to discover an impelling motive, that could not reflect upon the credibility of a witness proved to be a reliable eyewitness. Evidence as to motive would, no doubt, go a long way in case wholly dependent on circumstantial evidence. Such evidence would form one of the links in the chain of circumstantial evidence in such a case. But that would not be so in cases where there are eyewitnesses of credibility, though even in such cases if a motive is properly proved, such proof would strengthen the prosecution case and fortify the court in its ultimate conclusion. But that does not mean that if motive is not established, the evidence of an eyewitness is rendered untrustworthy.
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24. It is settled legal proposition that even if the absence of motive as alleged is accepted that is of no consequence and pales into insignificance when direct evidence establishes the crime. Therefore, in case there is direct trustworthy evidence of witnesses as to commission of an offence, the motive part loses its significance. Therefore, if the genesis of the motive of the occurrence is not proved, the ocular testimony of the witnesses as to the occurrence could not be discarded only by the reason of the absence of motive, if otherwise the evidence is worthy of reliance. (Vide Hari Shanker v. State of U.P., Bikau Pandey v. State of Bihar and Abu Thakir V. State of T.N.).
25. In a case relating to circumstantial evidence, motive does assume great importance, but to say that the absence of motive would dislodge the entire prosecution story is giving this one factor an importance which is not due. Motive is in the mind of the accused and
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can seldom be fathomed with any degree of accuracy. (Vide Ujjagar Singh v. State of Punjab).
26. While dealing with a similar issue, this court in state of U.P. v. Kishanpal held as under: (SCC p.88, para 39) "39. The motive may be considered as a circumstance which is relevant for assessing the evidence but if the evidence is clear and unambiguous and the circumstances prove the guilt of the accused, the same is not weakened even if the motive is not a very strong one. It is also settled law that the motive loses all its importance in a case where direct evidence of eyewitnesses is available, because even if there may be a very strong motive for the accused persons to commit a particular crime, they cannot be convicted if the evidence of eyewitnesses is not convincing. In the same way, even if there may not be an apparent motive but if the evidence of the eyewitnesses is clear and reliable, the
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absence or inadequacy of motive cannot stand in the way of conviction."
16. It is also a well established principle of law that if the prosecution proves the existence of motive, it would make its case stronger particularly in a case depending on the circumstantial evidence and the said evidence would be counted as one of the circumstances to bring home the involvement of the accused in the alleged crime. Proving or not proving of the aspect of motive in a case of circumstantial evidence would not make much difference, if there are other strong circumstances on which the prosecution is intending to bring home the guilt of the accused. But it would play an important role if other circumstances are proved. In the instant case, though the prosecution got examined the doctor-PW.8 who conducted the autopsy over the dead body and has issued the PM report as per Ex.P9, he has deposed that there were no injury or abrasion or bruise on the deceased Leshamma, when he examined the dead body in order to hold that she
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was raped. PW.8 has admitted that by considering the serological report and clinical report, he has opined that there was no rape. Even the PM report at Ex.P9 is also silent with regard to the said aspect of the matter. Under the circumstances, it can safely be held that the prosecution has utterly failed to prove the fact that the accused had committed rape on the deceased and thereafter due to fear that she would reveal the same in the village, he assaulted her with an axe and caused her death. Hence, we are of the view that the first limb of the case on which the prosecution has intended to rely upon does not have any substance.
17. The second circumstance on which the prosecution has relied upon is that the witnesses have seen the accused going towards the field of Beemanagouda holding an axe and when they asked the accused, he informed that he was going to cut leaves for his sheep. After some time the witnesses saw the accused coming back empty handed and
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at that time when he was questioned, he went away hurriedly without answering them. In this behalf the prosecution has relied upon the evidence of PWs.12, 13 and
15. PW.12 has deposed that CW.9 informed him that while he was coming from his land, he saw the accused going that way holding an axe. PW.13 has also deposed that he and CWs.14 and 15 had been to the land to harvest the crop and at that time, accused came from the field of Bennar and he asked the accused as to where he was going. The accused went towards the land of Bheemanagouda to bring the leaves for his sheep and thereafter he returned empty handed. When he asked the accused as to why he was going with empty hands, he went away hurriedly and thereafter he heard that deceased was murdered.
18. PW.15 is the wife of PW.13. She has reiterated the evidence of PW.13. As could be seen from the evidence of these witnesses, they have deposed that the accused was
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going towards the land of Bheemanagouda but returned empty handed. If we carefully peruse the evidence of PW.22, he has deposed that when he saw the accused, at that time, he was wearing a blood stained shirt. If really PWs.13 and 15 have seen and asked him as to why he was empty handed, they would also have witnessed the blood stains on the shirt of the accused as they were in very close proximity with the accused. These two witnesses have not whispered anything about the said aspect, when as per the prosecution they are the persons who saw the accused rushing in a hurry after commission of the offence. In that light, the evidence of PWs.13 and 15, who were working in the field and who were said to have witnessed the accused moving towards the land of Bheemanagouda and his return and asking him as to why he returned without any leaves for his sheep creates a doubt. Thus, the prosecution has utterly failed to prove the said circumstance on which it is intending to rely upon and which does not help the prosecution so as to strengthen its case.
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19. In so far as the evidence of PW.22 is concerned, he is said to have seen the accused proceeding hurriedly and at that time, the shirt of the accused was blood stained and when he asked as to why his shirt was blood stained, accused went away without informing anything to him. Though this witness has deposed about seeing the accused with blood stained shirt, during the course of cross- examination, he deposed that he suspected the accused after coming to know about the murder of the deceased Leshamma. But he has not informed the said fact either to police or to Bheemanagouda. However, he informed the same to his mother and sister. If really PW.22 has seen and asked the accused and also suspected him, definitely he would not have kept quiet after coming to know about the murder of the deceased. Be that as it may, in the first instance, though PWs.13 and 15 have seen the accused from a short distance and spoke to the accused, they have not noticed any blood stains on the shirt of the accused but
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how PW.22 noticed the blood stains on the shirt of the accused, that too when he was proceeding in the village creates a doubt in our minds. On analyzing the evidence of PWs.13, 15 and 22, it does not inspire any confidence in us about the truthfulness of the said circumstance. Hence, the aforesaid circumstance on which the prosecution has relied upon is also not established by it beyond all reasonable doubt.
20. The next circumstance on which the prosecution is intending to rely upon is the recovery of axe, ear-studs and blood stained shirt at the instance of the accused. Though the prosecution has got examined PWs.3 and 19, the photographer and vediographer, so also PW.17, the panch witness to the recovery mahazar at Ex.P15, on close scrutiny of evidence of these witnesses, the ingredients of recovery as contemplated under Section 27 of the Indian Evidence Act ('Act' for short) are not satisfied. If the evidence has to be admitted under Section 27 of the Act, it
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is obligatory on the part of the Investigating Agency, to record the information, and the same has to be recorded in the words of the accused and thereafter the accused has to lead and produce the articles, then only the said incriminating articles could be said to have been recovered from the possession of the accused. When the evidence on record does not satisfy the ingredients of Section 27 of the Act, it indicates that the recovery is not made at the instance of the accused and it is hypothetical or make belief circumstance created by the Investigating Agency. In this regard the evidence of the above witnesses does not inspire confidence of this Court about the truthfulness of the information furnished by the accused that at his instance, the same has been recovered. In that view of the matter, the said circumstance also does not assist the case of the prosecution any further.
21. The last circumstance on which the prosecution is intending to rely on is that the extra-judicial confession
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made by the accused. In order to prove its case, the prosecution has relied upon the evidence of PW.21. PW.21 has deposed that Mallappa-accused came to his house at about 10.00 p.m. and woke him up. He called him outside the house and thereafter he confessed that he had been to the land of Bheemanagouda to collect leaves for his goats and at that time, the deceased scolded him and he came back. As he had forgotten to bring his axe he again went to the land and at that time also the deceased scolded him which made him angry. After seeing and confirming that there was nobody, the accused asked the deceased Leshamma to sleep with him, to which she became angrier and abused the accused who assaulted on her left leg and she fell down. Thereafter, the accused pulled her saree and raped her. Assuming that she would disclose the said fact in the village, he assaulted her with an axe and caused her death.
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22. Learned Additional SPP by relying upon the evidence of PW.21 and the decision of the Apex Court in Kusuma Ankama Rao's Case (cited supra), has contended that an extra-judicial confession can be relied upon for the purpose of conviction of the accused. We have no contrary view on the said proposition of law laid down by the Apex Court. In the aforesaid decision, the Apex Court has observed that an extra-judicial confession if voluntary and true and made in a fit state of mind, can be relied upon by the Court after subjecting the evidence of the witness to a rigorous test on the touchstone of credibility. Keeping in view the said proposition of law if the evidence of PW.21 is scrutinized by us, it would indicate that accused went to the house of PW.21 at about 10.00 p.m. and made the extra- judicial confession before him. During the course of cross- examination, PW.21 has deposed that immediately after confession made by the accused, he did not inform the said fact either to Basanagouda or to the police and even did not think of informing them. He did not also make any effort
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by calling anybody to apprehend the accused though he became aware of the murder of the deceased Leshamma. He has further deposed that he never disclosed the said fact to anybody till he informed Basanagouda on the next evening. If really the accused had made the extra-judicial confession before him, he would have definitely disclosed the said fact to Basanagouda. Be that as it may, in order to prove an extra-judicial confession made before any person, it should inspire confidence or otherwise the person before whom the accused made the extra-judicial confession, must be so closely associated with the accused. Then only, the accused would confess before him about the truth. As already noted an extra-judicial confession can be relied upon if it is voluntary, true and made in a fit state of mind. It also depends upon the veracity of witness to whom the extra-judicial confession has been made. In the instant case no such circumstances are forthcoming in the evidence of PW.21. On the other hand, it has come in the evidence of PW.21 that accused and PW.21 belong to different castes;
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he never used to disclose any secret or confidential matters with him and they are also not staying in the same lane or close by. If that test is made applicable to the evidence of PW.21, then it does not satisfy the rigorous test so as to inspire confidence to hold that the accused has made an extra-judicial confession before PW.21.
23. It is a well established principle of law that an extra-judicial confession, on the face of it, is a weak piece of evidence and the Courts are reluctant in the absence of a chain of cogent circumstances to rely on such evidence for the purpose of recording a conviction. This proposition of law has been laid down by the Apex Court in the case of Gopal Sah Vs. State of Bihar, reported in (2010)4 SCC (criminal) 466, which reads thus:-
"We are, further, of the opinion that an extra-judicial confession is, on the face of it, a weak piece of evidence and the courts are reluctant in the absence of a chain of cogent circumstances to rely on
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this evidence for the purpose of recording a conviction. In any case, we find that the confession made by Dasrath Sah can, if at all, be used against him and not against his co-accused. The statement of the investigating officer with respect to the place where the two murder weapons had been allegedly thrown makes the recovery itself tenuous. Moreover, as the sickle allegedly in the hands of Gopal Sah had been recovered from a pond three months after the murder, no evidentiary value whatsoever can be attached to this circumstance as well."
24. Keeping in view the aforesaid proposition of law and when the prosecution has failed to prove the other circumstances on which it is intending to rely upon, then we are not inclined to accept the fact that accused has made an extra-judicial confession before PW.21 so as to convict him on the basis of extra-judicial confession.
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25. From the original records we observe that it is the case of the prosecution that accused went back to the land in order to bring his axe and on confirming that there was nobody around, he asked the deceased for a sexual favour for which she became angry and abused him, at that time, accused is said to have assaulted on her left leg with an axe as per the prosecution. But on perusal of the evidence of the doctor-PW.8, along with PM report at Ex.P9, no injury has been mentioned on the left leg of the deceased. If really the alleged incident had taken place as stated by the prosecution, the injury certificate would have definitely disclosed the injuries on her left leg.
26. Even the prosecution has not explained as to why the said injury has been left out in the medical records. It is no doubt true, if any irregularity or illegality has occurred during the course of investigation, it should not be treated as a ground to reject the case of the prosecution. But ignoring the defects in the investigation, if the entire
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evidence on record is perused, the prosecution has utterly failed to prove the guilt of the accused beyond reasonable doubt.
27. Admittedly, in the case on hand there are no eye witnesses to the incident in question. The entire case of the prosecution rests upon the circumstantial evidence. In order to establish the guilt of the accused, the prosecution has to establish all the circumstances on which it relies upon. It is well established principle of law that the proof of circumstantial evidence is based on the fact that men may lie, but the circumstances do not. If all the circumstances are properly established so as to convince the Court in respect of the truth and reliability, then the Court can convict the accused on the basis of said circumstances. It is also well established principle of law that in order to bring home the guilt of the accused under circumstantial evidence, all the circumstances are to be linked up with one another and the Court should be in a position to link the
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chain of events and if the chain of events and important links are established by the prosecution and if the network is completed without there being any gap, then the case of the prosecution is said to have been established. If the said network is not complete and there are gaps and doubts, then it creates a doubt in the case of the prosecution. In that event, benefit of doubt must be given in favour of the accused. This proposition of law has been laid down by the Apex Court in decisions reported in AIR 1998 SC 942 - Sheikh Abdul Hamid & another Vs. State of Madhya Pradesh; AIR 2011 SC 1863 - Bhagwan Dass Vs. State (NCT) of Delhi; AIR 2011 SC 1585 - Rukia Begum Vs. State of Karnataka.
28. It is relevant to note here itself that in a case based on circumstantial evidence, the circumstances from which an inference of guilt of the accused is sought to be drawn are to be cogently and firmly established and the
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circumstances so proved must unerringly point towards the guilt of the accused.
In view of the aforesaid discussion, we are of the considered opinion that there are no grounds made out by the appellant-State to interfere with the order of acquittal passed by the trial Court. Hence, the appeal being devoid of merits, is dismissed.
Sd/-
JUDGE Sd/-
JUDGE *ck/-