Karnataka High Court
A T Maheshwarappa vs The State Of Karnataka on 13 January, 2017
Equivalent citations: 2017 (1) AKR 733
Author: John Michael Cunha
Bench: John Michael Cunha
1 Crl.A.No.524/2012 c/w.
Crl.A.No.661/2012
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 13TH DAY OF JANUARY 2017
PRESENT
THE HON'BLE MR. JUSTICE H.G.RAMESH
AND
THE HON'BLE MR. JUSTICE JOHN MICHAEL CUNHA
CRIMINAL APPEAL No.524 OF 2012 c/w.
CRIMINAL APPEAL No.661/2012
CRL.A.NO.524/2012:
BETWEEN :
SRI A.T.MAHESHWARAPPA
S/O TYARA MALLAPPA,
AGED ABOUT 33 YEARS,
ANUVANAHALLI VILLAGE,
TARIKERE TALUK. ... APPELLANT
(BY SRI S.G.BHAGAVAN, ADVOCATE)
AND:
THE STATE OF KARNATAKA
BY THE STATION HOUSE OFFICER,
AJJAMPURA POLICE STATION. ... RESPONDENT
(By SRI VIJAYA KUMAR MAJAGE, ADDL.SPP)
--------
THIS CRL.A. IS FILED UNDER SECTION 374 OF CR.P.C.,
PRAYING TO SET ASIDE THE JUDGMENT AND ORDER DATED
26.4.2012 AND 30.4.2012 PASSED BY THE PRINCIPAL SESSIONS
JUDGE, CHIKKAMAGALURU IN S.C.NO.122/2011 IN SO FAR AS HE IS
2 Crl.A.No.524/2012 c/w.
Crl.A.No.661/2012
CONCERNED - CONVICTING THE APPELLANT/ACCUSED NO.2 FOR THE
OFFENCE P/U/S 302 R/W SECTION 34 OF IPC AND THE
APPELLANT/ACCUSED NO.2 SENTENCED TO UNDERGO
IMPRISONMENT FOR LIFE AND TO PAY FINE OF RS.2,00,000/-
(RUPEES TWO LAKHS) EACH, IN DEFAULT TO PAY FINE TO UNDERGO
R.I. FOR A PERIOD OF ONE YEAR FOR THE OFFENCE P/U/S 302 R/W
34 OF IPC.
CRL.A.NO.661/2012:
BETWEEN:
SRI NAGARAJA
S/O NEELAKANTHAPPA,
AGED ABOUT 30 YEARS,
OCC:AGRICULTURIST,
R/O ANUVANAHALLI VILLAGE,
TARIKERE TALUK. ...APPELLANT
(BY SRI K.S.GANESHA, ADVOCATE)
AND:
STATE BY AJJAMPURA POLICE
REPRESENTED BY THE PUBLIC PROSECUTOR,
HIGH COURT OF KARNATAKA,
BENGALURU. ...RESPONDENT
(BY SRI VIJAYA KUMAR MAJAGE, ADDL.SPP)
---------
THIS CRL.A. IS FILED UNDER SECTION 374(2) OF CR.P.C.,
PRAYING TO SET ASIDE THE ORDER OF CONVICTION AND SENTENCE
DATED 26.04.2012 PASSED BY THE PRINCIPAL SESSIONS JUDGE,
CHIKKAMAGALURU IN S.C.NO.122/2011 CONVICTING THE
APPELLANT/ACCUSED FOR THE OFFENCE P/U/S 302 R/W SECTION 34
OF IPC. THE APPELLANT/ACCUSED IS SENTENCED TO UNDERGO
IMPRISONMENT FOR LIFE AND TO PAY FINE OF RS.2,00,000/-
(RUPEES TWO LAKHS), IN DEFAULT TO PAY FINE, HE SHALL
UNDERGO R.I. FOR A PERIOD OF ONE YEAR FOR THE OFFENCE P/U/S
302 R/W 34 OF IPC.
3 Crl.A.No.524/2012 c/w.
Crl.A.No.661/2012
THESE CRL.As. HAVING BEEN HEARD AND RESERVED FOR
JUDGMENT ON 03.01.2017, COMING ON FOR PRONOUNCEMENT OF
JUDGMENT THIS DAY, JOHN MICHAEL CUNHA J., DELIVERED THE
FOLLOWING:
JUDGMENT
These appeals are by the convicted accused Nos.1 and 2 against the judgment and order of conviction passed by the Principal Sessions Judge, Chikmagalur, in Sessions Case No.122/2011 dated 26.4.2012 whereunder the accused Nos.1 and 2 are convicted for the offences punishable under section 302 r/w. section 34 of Indian Penal Code and are sentenced to undergo imprisonment for life and a fine of Rs.2,00,000/- each, in default to pay fine, to undergo rigorous imprisonment for a period of one year. It is also ordered that out of the fine amount payable by each of the accused Nos.1 and 2, Rs.1,75,000/- shall be paid to PW.1 Smt.Gowramma, w/o.Revanasiddappa as compensation and the balance amount of Rs.25,000/- shall be confiscated to the State Government.
2. The case of the prosecution is that the deceased Revanasiddappa and his wife Smt.Gowramma (PW.1) were the residents of Anuvinahalli village, Tarikere taluk, Chikmagalur 4 Crl.A.No.524/2012 c/w. Crl.A.No.661/2012 district. On 16.4.2011, after dinner, they were sleeping in their house. At about 10.30 or 11.00 p.m., somebody rung the calling bell. The deceased peeped through the window and asked as to what was the matter and the person who was outside the house informed him that she-buffaloes are found grazing in the onion field. Immediately the deceased put on his monkey-cap and went out carrying a torch light. On the next day morning, when PW.1 - the wife of the deceased went in search of the deceased, she found him lying dead with injuries on his head and private parts. One of his testicles was also found at a distance.
3. On receiving the information of the incident, PW.24 - the PSI of Ajjampura Police Station rushed to the spot and received a written complaint from the wife of the deceased (PW.1) and on its basis, Cr.No.42/2011 came to be registered against unknown persons. The further investigation was continued by PW.26 -the CPI, Tarikere. He visited the place of incident, drew up an inquest mahazar and seized the material objects found at the spot of occurrence including a key. It is the case of the prosecution that the son-in-law of the deceased PW.9 5 Crl.A.No.524/2012 c/w. Crl.A.No.661/2012 identified the said key as that of the motorbike of accused No.1 and hence, along with the panch witnesses, the Investigating Officer proceeded to the house of accused No.1 and found a motorbike parked outside his house. Having found that the said bike could be started with the key found at the spot of occurrence, he seized the motorbike. On 23.5.2011, accused Nos.1 and 2 were arrested and on the basis of the alleged voluntary statements of accused Nos.2 and 3, the blood stained clothes worn by them at the time of the incident were recovered and were sent to Forensic Laboratory for scientific examination and on completing the investigation, charge-sheet was laid against the accused.
4. In order to prove the charges framed against the accused, the prosecution examined in all 26 witnesses and produced in evidence 22 documents marked as exhibits P1 to P22 and the material objects at MOs.1 to 14. The Trial Court on evaluation of the material on record and after hearing the parties, convicted the accused for the offence punishable under 6 Crl.A.No.524/2012 c/w. Crl.A.No.661/2012 section 302 r/w. section 34 Indian Penal Code and sentenced them as above.
5. Learned Advocate on either sides have argued in support of their respective cases and both of them have taken us through the material on record including the judgment of the court below.
6. The case of the prosecution is rested solely on circumstantial evidence. The circumstances relied on by the prosecution are that:
(i) Key of the motorbike of accused No.1 was
found near the dead body;
(ii) Recovery of the clothes worn by the accused at
the time of the incident;
(iii) Abscondence of the accused and their
apprehension at a far away place;
(iv) The accused were seen going near the house
of the deceased on the night of the incident;
(v) Ill-will between the accused and the deceased in respect of the land dispute;
7 Crl.A.No.524/2012 c/w.Crl.A.No.661/2012
7. The learned Sessions Judge believed the evidence let in by the prosecution and has held that the prosecution has proved all the above five circumstances which unerringly point out the guilt of the accused and accordingly convicted both the accused for the murder of the deceased.
8. The contention of the learned counsel for the accused is that the prosecution has failed to prove any of the above circumstances with cogent and convincing evidence. It is the submission of the learned counsel that the Trial Court has not appreciated the evidence in proper perspective and therefore, the conviction recorded by the learned Sessions Judge without there being any evidence to connect the accused to the alleged offence cannot be sustained under law and in the facts and circumstances of the case. Learned counsel for accused No.2 would submit that none of the circumstances alleged by the prosecution establish the charge against accused No.2 and therefore, the conviction recorded against accused No.2 is wholly illegal and liable to be set aside by this court. 8 Crl.A.No.524/2012 c/w. Crl.A.No.661/2012
9. In view of the above contentions, we have reassessed the entire evidence on record and have carefully scrutinized the impugned judgment.
10. Before proceeding to discuss the evidence produced by the prosecution on the five circumstances alleged against the accused, it may be necessary to refer to the injuries found on the dead body as noted by PW.23 -the Doctor who conducted the post mortem examination. According to PW.23, he noted the following injuries over the body:
1. Peeling of skin 1) Over left lateral upper arm, (2) left lateral and posterior aspect of elbow. 3) medio anterior aspect of the left thigh. 4) Medial aspect of right lower leg. 5) Ventral aspect of right arm and ventral aspect of right forearm. 6) Lower aspect of left anterior chest. 7) Left anterior leg near and below left knee joint.
2. Contusion injury over dorsal aspect of left forearm measuring 3 x 3 c.m.s circular.
3. Contusion injury measuring 10 c.m.s above the previous injury measuring 3.5 x 3 c.m.s over dorsal aspect of left forearm.9 Crl.A.No.524/2012 c/w. Crl.A.No.661/2012
4. Irregular contusion injury 1.5 x 1.5 c.m.s just lateral to previous injury.
5. Right testis - everted out with cut incised scrotal skin about 5 c.m.s in length.
6. Left testis - absent with cut incised scrotal skin measuring 7 c.m.s in length.
7. Incised wound over left temporal and orbital region two wounds 1 c.m. apart measuring 2 c.m.s in length.
8. Comminuted fracture of maxilla present.
9. Comminuted fracture of mandible present.
10. Contusion injury just above left eyelid including eyelid with protrusion of left eye.
11. Fracture of nasal bone present.
12. Incised wound measuring 5 c.m.s in length near right Zygomatic area just lateral to right eye.
13. Incised would 1 c.m. length over the forehead.
14. Incised sound over the chin 2 c.m.s in length.
15. Denture completely lost its position with also injuries to teeth and gums.
16. Fracture of temporal bone on both side present.
17. Fracture of parietal bone on both sides present.
18. Crush injury to brain tissue with internal hemorrhage present."10 Crl.A.No.524/2012 c/w. Crl.A.No.661/2012
PW.23 has opined that the death is due to shock and hemorrhage as a result of injury to brain and skull. According to PW.23, the death might have taken place 12 to 18 hours prior to the post mortem conducted by him at about 4.00 pm on 17.4.2011.
11. It is not in dispute that the dead body was found in the onion field situated close to the house of the deceased. According to the prosecution, on the night of the incident, the deceased had gone out of the house wearing a monkey cap and carrying a torch light with him and on the next day morning, at about 6.30 a.m., his dead body was found by PW.1 in the onion field. Undisputedly, there are no eye-witnesses to the incident. The evidence of PW.1 the wife of the deceased, indicates that only PW.1 and deceased were living in the house on the night of the incident and the deceased went out of the house at the call of someone who has not been identified either by PW.1 or any other witnesses. Here itself it is relevant to note that none of the accused were implicated in the murder of the deceased at the earliest point of time. The complaint was lodged against 11 Crl.A.No.524/2012 c/w. Crl.A.No.661/2012 unknown persons. Except stating that someone rang the bell and informed the deceased that she-buffaloes have strayed into his onion field, PW.1 has neither named accused No.1 nor did she suspect the involvement of the accused in the alleged incident at the time of lodging the complaint. It is only during her evidence before the court for the first time PW.1 has stated that "accused No.1 came and called him by saying that in our onion field she-buffaloes have entered and grazing the same." This evidence is proved to be an improvement and therefore, no reliance could be placed on this part of the testimony of PW.1. Even otherwise if PW.1 had identified accused No.1 as the person who had come to their house to inform about the grazing of she-buffaloes, nothing prevented her from mentioning the name of accused No.1 in the complaint Ex.P1 which was lodged on the next day i.e., on 17.4.2011 at 10.45 a.m. This indicates that till the lodging of FIR, the finger of suspicion was not pointed at accused No.1.
12. Even in the inquest mahazar which is stated to have been conducted on 17.4.2011 between 1.30 p.m. and 4.00 p.m., 12 Crl.A.No.524/2012 c/w. Crl.A.No.661/2012 the name of either accused No.1 or accused No.2 did not figure out even though in their evidence, PW.1 - the wife of the deceased and PW.9 - the son-in-law of the deceased have stated that early in the morning when they traced the dead body, they found the motorcycle key belonging to accused No.1 at the spot. If PW.1 and PW.9 were knowing that the key found at the spot of occurrence was that of accused No.1, in all probability the name of accused No.1 would have been mentioned in Ex.P1 and the investigation would have been proceeded in that direction. But the records reveal that until 23.5.2011 no efforts were made to trace A1 and A2 . It is in this backdrop of facts, we have to analyze the evidence produced by the prosecution to find out whether the evidence on record is sufficient to prove the basic facts establishing the circumstances alleged by the prosecution so as to connect the accused to the murder of the deceased.
(i) Motorbike key
13. The first and foremost circumstance relied on by the prosecution is the motorbike key which is stated to have been found near the dead body at the spot of occurrence. PW.1 the 13 Crl.A.No.524/2012 c/w. Crl.A.No.661/2012 wife of the deceased has stated before the court that in the morning when she went in search of the deceased, at about 6.30 a.m., she found the dead body of her husband in the onion field and a monkey cap, torch, one stone, chappals and a key chain were found near the dead body. PW.1 has further stated that after the arrival of the police, the police took the key chain and went to the house of A1 and by inserting the key to the motor bike of A1, the motor bike got started and thereafter, the motorbike was also seized by the police. Similar evidence is given by PW.9 the son-in-law of the deceased. The relevant portion of his evidence reads as under:
"After all the proceedings in the evening the police went along with the key which was found at the place, to the house of A1 and with the said key when they started the motorbike of A1 it started and the police also seized the motorbike."
The other witnesses examined by the prosecution namely PW.2 the panch witness to the spot mahazar as well as PW.12 the daughter of the deceased have also spoken about the finding of the key at the spot of occurrence.
14 Crl.A.No.524/2012 c/w.Crl.A.No.661/2012
14. What emanates from the above evidence is that a key M.O.2 was found near the dead body in the onion field and with the said key the motorbike M.O.1 parked in front of the house of accused No.1 was started by the Investigating Officer. But the crucial question to be determined is whether the said motorbike key M.O.2 belonged to accused No.1 and whether the above evidence is sufficient to infer that accused No.1 had been to the spot of occurrence? In answering this question, it is necessary to refer to the evidence of PW.26. The relevant portion of his evidence reads as under:
"At the time of drawing Ex.P2, I seized M.Os.2 to 8. At the time of seizing the key of motorbike PW.9 identified the key as that of A1's motorbike. Along with panch witnesses, I went to the house of accused and we found M.O.1 motorbike standing in front of the house of A1 and by applying the key found near the deadbody we started and the motorbike started with the said key. There we also seized M.O.1 motorbike in the presence of PW.2 and CW.3 in Ex.P2."
Here itself it is pertinent to note that PW.9 in his evidence has nowhere stated that he identified the said key as that of accused 15 Crl.A.No.524/2012 c/w. Crl.A.No.661/2012 No.1 as stated by PW.26. Likewise, PW.2 has also not stated anything about the identification of the said key as belonging to A1. PW.2 has given a bald statement before the court stating that "police drew up the spot mahazar and also recovered M.Os.1 to 8." He has not even spoken about the seizure of individual items from the spot of occurrence. Therefore, the statement of PW.26 that the key found at the spot of occurrence was identified by the PW.9 and other witnesses as that of accused No.1 which prompted him to seize the motorbike M.O.1 does not find any corroboration.
15. Viewed from another angle, if PW.1 and PW.9 were aware that the key found at the spot of occurrence was that of the accused No.1, in all probability, they would have suspected the involvement of accused No.1 in the murder of the deceased and he would have been implicated as the prime suspect in the complaint Ex.P1 at the earliest point of time. But, in the instant case, it has come in evidence that till the completion of the inquest mahazar which was prepared late in the evening between 1.30 p.m. and 4.00 p.m., none of the witnesses have 16 Crl.A.No.524/2012 c/w. Crl.A.No.661/2012 stated that there was any suspicion against accused No.1 or that the keys belonging to the motorbike of accused No.1 were found at the spot of occurrence. In this context, it is relevant to refer to the evidence of PW.7 and PW.8, the independent witnesses examined by the prosecution. Though PW.7 and PW.8 are examined to speak to the fact that on the date of the incident, accused No.1 had borrowed the motorbike of the husband of PW.8 Smt.A.M.Bhagya, both these witnesses are treated hostile by the prosecution; yet in the cross-examination of PW.8 it is suggested by the Public Prosecutor as under:
"It is false to suggest that on 16.4.2011 at about 8.00 p.m., A1 came when I and my husband were there in the house and asked the motorbike to go to Shivani and we told that you accused is owning a motorbike you take the same and at that time A1 told that his father will not allow him to take the motorbike in the night and after repeated request he took the motorbike of my husband."
This suggestion implies that on 16.4.2011, accused No.1 had been to the house of PW.8 and had borrowed the motorbike of her husband. In the further examination of PW.8 it is elicited 17 Crl.A.No.524/2012 c/w. Crl.A.No.661/2012 that accused No.1 returned at about 10.30 p.m. and left the motorbike near their house and at that time, PW.8 saw that accused No.1 had consumed alcohol. According to the prosecution, incident had taken place between 10.30 p.m. and 11.00 p.m. If accused No.1 was holding the key of his motor bike during the occurrence as sought to be made out by the prosecution, there was absolutely no necessity for accused No.1 to approach PW.8 to borrow the motorcycle of her husband. All these circumstances therefore throw doubt on the prosecution case that the key found at the spot belonged to accused No.1 and that he was carrying the said key with him during the occurrence.
16. It is also important to note that even though it is the case of the prosecution that on the date of the incident itself, the motocycle M.O.1 was seized, the prosecution has not produced any documents to show that the said motorbike M.O.1 stood in the name of accused No.1 at the relevant point of time. In the absence of any such document, solely on the basis of evidence of PW.26 it cannot be concluded that the keys found at the spot 18 Crl.A.No.524/2012 c/w. Crl.A.No.661/2012 of occurrence pertained to the motorcycle owned by accused No.1. In the wake of these discrepancies and unexplained circumstances, we are not inclined to accept the theory put forward by the prosecution that the key M.O.2 found at the spot of occurrence belonged to accused No.1. The evidence discussed above does not establish the basic facts leading to the proof of the circumstance connecting accused No.1 to the murder in question.
(ii) Seizure of clothes:
17. Another circumstance pressed into service by the prosecution is that after the arrest of the accused on 23.5.2011, the clothes worn by accused Nos.1 and 2 were recovered at their instance. In order to prove this recovery, the prosecution has examined PW.2 and PW.4 the panch witnesses to the seizure of clothes M.Os.11 to 14. The evidence of PW.2 reads as under:
"3. About 7-8 months back again myself and C.W.6 were called by the police. Along with police A1 and A2 were present. Accused led us to Devanakere situated at Lingadahalli road. There the accused told that in the said Devanakere they took bath and have 19 Crl.A.No.524/2012 c/w. Crl.A.No.661/2012 thrown the clothes. In the said Devanakere the clothes were floating. In the first instance A1 Nagaraj went and brought and produce one shirt and one pant. The said pant and shirt were mud stained and were also stink with blood. Thereafter A2 also went inside Devanakere and he also brought and produced one T- shirt and one panche. The said T-shirt and panche were also mud stained and were also stink with blood. I can identify the said clothes produced by A1 and A2 if shown to me. (Now two sealed covers are shown to the learned counsel for the accused. The seals are found intact. They have no objection to open the same. The same are now opened). The first cover contains one shirt and one pant. The same are now marked as M.O.11 and 12 respectively. M.O.11 and 12 are belonging to A1. The second cover contains one T-shirt and one panche. The same are now marked as M.O.13 and 14 respectively. M.O.13 and 14 are belonging to A2. M.O.11 to 14 were seized by the police by drawing a mahazar."
18. PW.4 another panch witness to the seizure mahazar Ex.P3 has been treated hostile by the prosecution; but in the course of cross-examination, he admitted the suggestion made by the public prosecutor and answered as under: 20 Crl.A.No.524/2012 c/w. Crl.A.No.661/2012
"6. It is true to suggest that on 24.5.2011 at about 8.30 a.m. police came along with A1 and A2 to our village and there they told by calling us that what the accused say and produce has to be seen by us and thereafter they led us in a police jeep to Devanakere and there A1 and A2 told that after murder they have come and have taken the bath and thrown the clothes in the said kere and they will produce the same. It is true to suggest that thereafter accused persons went inside the said kere and produced M.O.s 11 to 14.
19. It is the argument of the learned counsel for the accused that the alleged recovery cannot be ascribed any weight as the said recovery is not based on the voluntary statement of any of the accused. Learned counsel has pointed out that the Investigating Officer has stated in his evidence that he has recorded the voluntary statement, but the portion of the said statement leading to the recovery is not marked in evidence, therefore, the provisions of section 27 of the Evidence Act cannot be applied to the facts of this case and consequently, the alleged seizure of MOs.11 to 14 relied on by the prosecution are liable to be discarded.
21 Crl.A.No.524/2012 c/w.Crl.A.No.661/2012
20. The law on the question as to the evidentiary value of the incriminating circumstance relating to the recovery of the material objects at the instance of the accused is well settled ever since the decision in PULIKURI KOTAYYA & Others vs. KING-EMPEROR AIR 1947 P.C. 67. In the said decision, it has been held that the statement of the accused relating to the discovery is admissible under section 27 of the Evidence Act. As per section 27 of the Evidence Act, only the information or the statement leading to the recovery would be admissible. In the instant case, admittedly the prosecution has not brought on record any voluntary statement attributed to the accused. Nonetheless in view of the law expounded by the Hon'ble Supreme Court in the case of A.N.VENKATESH & Another vs. STATE OF KARNATAKA reported in 2005 AIR SCW 3914, even if we hold that the disclosure statement made by the accused is not proved under section 27 of the Evidence Act, still the recovery becomes admissible under section 8 of the Evidence Act. In the above decision, the Hon'ble Supreme Court has held as under:
22 Crl.A.No.524/2012 c/w.Crl.A.No.661/2012
"9. By virtue of section 8 of the Evidence Act, the conduct of the accused person is relevant, if such conduct is influenced by any fact in issue or relevant fact. The evidence of the circumstance, simpliciter, that the accused pointed out to the police officer, the place where the dead body of the kidnapped boy was found and on their pointing out the body was exhumed, would be admissible as conduct under section 8 irrespective of the fact whether the statement made by the accused contemporaneously with or antecedent to such conduct falls within the purview of section 27 or not as held by this court in Prakash Chand v. State (AIR 1979 SC 400). Even if we hold that the disclosure statement made by the accused appellants (Ex.P14 and P15) is not admissible under Section 27 of the Evidence Act, still it is relevant under Section 8. The evidence of the investigating officer and PWs.1, 2, 7 and PW.4 the spot mahazar witness that the accused had taken them to the spot and pointed out the place where the dead body was buried, is an amissible piece of evidence under Section 8 as the conduct of the accused."
21. In the instant case, the portion of the evidence extracted above goes to show that after the arrest of the 23 Crl.A.No.524/2012 c/w. Crl.A.No.661/2012 accused Nos.1 and 2, PWs.2 and 4 were summoned to the Police Station and PW.4 has admitted in his evidence that in the presence of PWs.2 and 4 the accused disclosed the place where the clothes were thrown and accordingly, led them to Devanakere and produced the clothes M.Os.11 to 14. This evidence is also corroborated by PW.26 and is also reflected in the seizure mahazar Ex.P3. The photographs produced by the prosecution at Ex.P19 and Ex.P21 also reveal that M.Os.11 to 14 clothes were seized under the mahazar Ex.P3 at the instance of accused No.1 and accused No.3. In the light of this evidence, the legal contention urged by the petitioner that for want of disclosure statement marked in evidence the entire recovery effected from the accused is liable to be rejected cannot be accepted.
22. Needless to say, the recovery of clothes M.Os.11 to 14 by themselves do not relieve the prosecution of the primary burden cast on it to prove the fact that the said clothes were worn by the accused at the time of incident and that they were stained with the blood of the deceased. On evaluation of the 24 Crl.A.No.524/2012 c/w. Crl.A.No.661/2012 circumstances brought out in the evidence, we are of the firm view that the evidence produced by the prosecution to connect these recoveries to the respective accused falls short of the required standard. Undisputedly, the incident took place on 16.4.2011. M.Os.11 to 14 are recovered on 23.5.2011 nearly 37 days after the incident. According to the prosecution, after the incident, the accused took bath in Devanakere (tank) and threw away the clothes in the said tank. According to PWs.2 to 4, these clothes were found floating in the water and they were mud stained and also stained with blood. None of these witnesses have stated that they examined these clothes closely to detect the presence of stains and the size and location thereof. The FSL report also is silent about the size and location of the stains. Except stating that there were few stains here and there, the FSL report Ex.P22 does not specify the size and location of the blood stains in M.Os.11 to 14. No doubt it is true that it is mentioned in the FSL report Ex.P22, that the clothes of the deceased as well as M.Os.11 to 14 were stained with 'AB' group of blood, but that by itself may not be decisive of the fact that the clothes recovered at the instance of the accused were 25 Crl.A.No.524/2012 c/w. Crl.A.No.661/2012 stained with the blood of the deceased. The very fact that these clothes were submerged in the tank and were soaked in water continuously for nearly 37 days, the possibility of foreign material getting absorbed in the threads and strands of the fabric cannot be ruled out. Another circumstance which renders it difficult to connect the blood group detected in the clothes to the accused is that the panch witnesses have affirmed in their evidence that after the accused removed the clothes from the water and handed them over to the Investigating Officer, they were immediately packed and sealed. According to PW.26 the Investigating Officer, on 4.6.2011 he sent the seized articles to RFSL, Mangalore. The contents of Ex.P22 reveal that the articles sent were received in the Laboratory for examination on 9.6.2011 and they were subjected to chemical analysis and the certificate is dated 20.7.2011 which indicates that the clothes were in a sealed condition and they were subjected to examination on 20.7.2011. It cannot be believed that without squeezing the said clothes to drain out the water or getting them dried the Investigating Officer straightaway packed and sealed them as stated by the panch witnesses. If infact these clothes 26 Crl.A.No.524/2012 c/w. Crl.A.No.661/2012 were squeezed, there is a strong likelihood of the stains getting dislocated. In the absence of any details with regard to the conditions of these clothes at the time of recovery as well as at the time of subjecting them to the chemical examination, it is not safe to rely solely on the FSL report to hold that the stains found in M.Os.11 to 14 contained the blood group of the deceased.
23. "Proof" as understood in legal parlance and as defined in the Evidence Act does not mean proof with rigid mathematical demonstration because that is impossible, but proof requires such evidence as would induce a reasonable man to come to a particular conclusion. In the instant case, the manner in which the recovery is effected, the condition of the clothes at the time of the seizure, the manner in which they were sealed and packed and the time taken to subject them to the chemical examination renders the recovery evidence produced by the prosecution susceptible to doubt. In any event, the above evidence is not conclusive to hold that the blood group found in these clothes are that of the deceased so as to connect the accused to the alleged circumstance of recovery of clothes at their instance. 27 Crl.A.No.524/2012 c/w. Crl.A.No.661/2012
(iii) Absconding of the accused
24. "Absconding and absence for several days from the normal place of residence can be a tell-tale circumstance of a guilty mind." In the instant case, the trial court has held that accused Nos.1 and 2 were absconding from the date of incident till they were nabbed on 23.5.2011 which is taken as one of the circumstance connecting the link in the chain of circumstances. But on scrutiny of the material on record, we do not find any convincing material to show that the accused had fled away from the village after the incident in question. Except PW.26, not a single witness has stated before the Court that the accused were not seen in the village after the incident. There is nothing on record to show that the Investigating Officer has made any efforts to trace the accused till 23.5.2011. A perusal of the evidence of PW.26 indicates that for the first time, he constituted two squads to trace and apprehend the accused on 23.5.2011 and on the same day, the accused were apprehended. Though the prosecution has examined PW.17 to PW.20 to show that accused Nos.1 and 2 had been to Aldur, Sagar, Kalgatagi and 28 Crl.A.No.524/2012 c/w. Crl.A.No.661/2012 Hubli in search of job, disguising themselves as Suresha and Mahesha, none of these witnesses have supported the prosecution, as a result, prosecution is not left with any reliable evidence to show that after the incident, accused Nos. 1 and 2 had run away from their place of residence. Therefore even the evidence produced by the prosecutor relating to this circumstance cannot be held against the accused.
(iv) Last seen circumstance
25. The witnesses examined by the prosecution in proof of the fact that prior to the incident, the accused were seen going near the house of the deceased, namely PW.6 and PW.11, have failed to support the prosecution and nothing is brought out in their cross-examination in proof of this circumstance.
(v) Motive/ill-will
26. Lastly, the prosecution has examined the close relatives of the deceased namely PW.1, PW.3, PW.4 and PW.9 to prove the motive for the commission of the offence. According to the prosecution, there was a land dispute between the father of accused No.1 and the deceased and on account of this ill-will, 29 Crl.A.No.524/2012 c/w. Crl.A.No.661/2012 the accused resorted to the murder of the deceased. Even with regard to this aspect, we find the evidence let in by the prosecution is discrepant and inconsistent. PW.1 -the wife of the deceased has stated in her evidence that her husband was owning a land bearing Sy.No.262/5 at Shivani measuring 1 acre 12 guntas and there was a land dispute between accused No.1 and her husband and also in respect of the site owned by her son-in-law PW.9. PW.9 -the son in law of the deceased has totally a different story with regard to the alleged land dispute. According to PW.9, there was dispute between the father of accused No.1 Neelakantappa and deceased Revansiddappa and a suit was filed in 1983. Prosecution has not produced any documents relating to this land dispute and it is not known whether accused No.1 was also a party to the said suit. If the evidence of PW.9 is believed, it goes to show that he had purchased 10 guntas of open space by the side of the house of one Eshwarappa - the brother of father of accused No.1 and three months prior to the death of the deceased, father of accused No.1 came to put up a foundation in that site by the side of his house and on that account, there was ill-will between 30 Crl.A.No.524/2012 c/w. Crl.A.No.661/2012 the members of the accused family and his father-in-law. There is no reliable evidence to show that there was any grudge or ill- will between accused No.1 and the deceased on that count or that any civil or criminal proceedings are pending between them so as to furnish an immediate motive for the accused to do away with the deceased. Even otherwise, the prosecution having failed to substantiate any circumstance connecting the accused to the murder of the deceased, the motive projected by the prosecution, even if accepted, would be of no avail to prove the complicity of the accused in the death of the deceased.
27. It is trite law that in a case based on circumstantial evidence, the Court has to take the totality of circumstances into consideration and come to the conclusion that the facts established in evidence are inconsistent with the innocence of the accused and incapable of explanation on any reasonable hypothesis other than the guilt of the accused. The chain of circumstances must be complete (a) as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused; and (b) to show that within all human 31 Crl.A.No.524/2012 c/w. Crl.A.No.661/2012 probability, the act must have been done by the accused and the accused alone. The following principles are laid down by judicial precedents in proving the culpability of the accused in a case based on circumstantial evidence namely:-
(i) Facts or circumstances alleged must be proved by cogent and convincing evidence;
(ii) They must be of a conclusive nature and tending to be totally inconsistent with the innocence of the accused and are not explainable by any other hypothesis except the guilt of the accused;
(iii) There should be no missing links in the case; yet it is not essential that every one of the links must appear on the surface of the evidence.
Some of the links may have to be inferred from the true facts;
(iv) In drawing the inferences or presumptions, the court must have regard to the common course of events and human conduct in their relation to the facts of the particular case;
32 Crl.A.No.524/2012 c/w.Crl.A.No.661/2012
(v) Where the circumstances are susceptible of two equally possible inferences, the court should accept the inference which favours the accused, rather than an inference which goes in favour of the prosecution.
(vi) Motive is important, though not indispensable.
Failure to prove motive is not fatal by itself.
28. In the case in hand, on re-appreciating the material on record, we find that the prosecution has failed to prove any of the circumstances alleged against the accused with cogent and convincing evidence. None of the circumstances alleged by the prosecution unerringly point out the involvement of the accused in the murder of the deceased. The witnesses examined by the prosecution in support of the theory that the accused were last seen near the place of occurrence have not supported the prosecution. The prosecution has not been able to prove that the key found at the spot of occurrence (M.O.2) belonged to accused No.1 and that he carried the said key to the spot of occurrence during the occurrence. Though the clothes said to 33 Crl.A.No.524/2012 c/w. Crl.A.No.661/2012 have been worn by the accused at the time of the incident are proved to have been recovered at the instance of the accused, the evidence produced by the prosecution is not sufficient to hold that the said clothes were stained with the blood of the deceased so as to prove the complicity of the accused in the incident in question. The plea of absondance of the accused is also not proved with reliable and convincing evidence. The prosecution has not been able to establish even a single circumstance connecting the accused to the murder of the deceased.
29. There is absolutely no evidence whatsoever to prove the involvement of accused No.2 in the incident in question much less any evidence in proof of the common intention to liquidate the deceased as sought to be made out by the prosecution. Under the said circumstances, the learned Sessions Judge was not justified in convicting the accused for the alleged offence and sentencing them for life imprisonment and a fine of Rs.2,00,000/-. For the reasons discussed above, we are unable to concur with the findings recorded by the trial court on the culpability of accused Nos.1 and 2. On re-appreciation of the 34 Crl.A.No.524/2012 c/w. Crl.A.No.661/2012 evidence and for reasons stated above, we are of the firm view that both the accused deserve to be acquitted of the alleged charge under section 302 r/w. 34 of Indian Penal Code by extending the benefit of doubt.
Accordingly, Criminal Appeal No.524/2012 and Criminal Appeal No.661/2012 are allowed. The impugned judgment and order of conviction passed by the Principal Sessions Judge, Chikkamagaluru in S.C.No.122/2011 dated 26.4.2012 is set- aside. Accused Nos.1 and 2 are acquitted of the offence punishable under section 302 r/w. section 34 of Indian Penal Code. Both the accused are ordered to be set at liberty forthwith, if not required in any other case. The bail bonds of the accused stand cancelled and their sureties are discharged.
Registry is hereby directed to communicate the operative portion of this judgment to the concerned jail authorities forthwith to enable them to release accused Nos.1 and 2.
SD/-
JUDGE SD/-
JUDGE Bss.