Karnataka High Court
The State Of Karnataka vs Subramani @ Mani on 24 November, 2020
Bench: B.Veerappa, K.Natarajan
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 24TH DAY OF NOVEMBER, 2020
PRESENT
THE HON'BLE MR. JUSTICE B. VEERAPPA
AND
THE HON'BLE MR. JUSTICE K.NATARAJAN
CRIMINAL APPEAL No.740 OF 2014
BETWEEN
THE STATE OF KARNATAKA,
THROUGH CPI,
ANEKAL CIRCLE,
ANEKAL - 562 106.
...APPELLANT
(BY SRI VIJAYAKUMAR MAJAGE, ADDL. SPP)
AND
SUBRAMANI @ MANI
S/O. LATE CHINNAPPA,
AGED ABOUT 22 YEARS,
OCC: DRIVER,
RESIDING AT
RAMASANDRA VILLAGE,
JIGANI HOBLI, ANEKAL TALUK,
PERMANENTLY RESIDING AT
KALLUKUNTE, AGRAHARA,
ANUGONDANAHALLI HOBLI,
HOSAKOTE TALUK - 562 106.
...RESPONDENT
(BY SRI N.S. SAMPANGIRAMAIAH, Amicus Curiae
VIDE COURT ORDER DATED 29.09.2020)
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THIS CRIMINAL APPEAL IS FILED UNDER SECTIONS 378
(1) AND (3) OF THE CODE OF CRIMINAL PROCEDURE, PRAYING
TO a) GRANT LEAVE TO APPEAL AGAINST THE JUDGMENT AND
ORDER OF ACQUITTAL DATED 17.12.2014 PASSED BY THE III
ADDITIONAL DISTRICT & SESSIONS JUDGE, BANGALORE
RURAL DISTRICT SITTING AT ANEKAL IN S.C.No.140/2011 FOR
THE OFFENCES PUNISHABLE UNDER SECTIONS 302 AND 392
OF IPC; b) SET ASIDE THE JUDGEMENT AND ORDER OF
ACQUITTAL DATED 17.02.2014 PASSED BY THE III ADDITIONAL
DISTRICT AND SESSIONS JUDGE, BANGALORE RURAL
DISTRICT SITTING AT ANEKAL IN S.C.NO.140/2011
ACQUITTING RESPONDENTS FOR THE OFFENCES PUNISHABLE
UNDER SECTIONS 302 AND 392 OF THE INDIAN PENAL CODE
BY ALLOWING THE APPEAL; AND c) CONVICT AND SENTENCE
THE ACCUSED FOR THE OFFENCES PUNISHABLE UNDER
SECTIONS 302 AND 392 OF THE INDIAN PENAL CODE, BY
ALLOWING THE APPEAL.
THIS CRIMINAL APPEAL COMING ON FOR HEARING THIS
DAY, B. VEERAPPA, J., DELIVERED THE FOLLOWING:
JUDGMENT
The State has filed the present appeal against the impugned judgment and order of acquittal dated 17.02.2014 made in SC No.140/2011 on the file of the III Additional District and Sessions Judge, Bangalore Rural District, sitting at Anekal, acquitting the accused for the offences punishable under Sections 302 and 392 of IPC.
2. It is the case of the prosecution that on 02.11.2010, at about 4.45 p.m., Chowdamma, the deceased went to graze her cow in the land bearing Sy.No.19 belonging to 3 one Govinda Reddy situated on the side of Koppa Ramasandra Road. At that time, she was wearing gold Mangalya Chain, Gold Thali, Gold Lakshmi Coin Chain, Gold Gundu and other ornaments and was grazing her cow. At that time, the accused, with an intention to cause robbery of the said ornaments, pushed down Chowdamma and when she fell down on the land, the accused stabbed her with knife on her neck and caused her murder. Then the accused cut the left ear of deceased Chowdamma and took away the ornaments. The complainant, who is the son of the deceased Chowdamma, came to know about the murder of his mother through his friend CW.2-Ravindra Reddy over Telephone. Then he went to the spot, saw the dead body of his mother and did not find the ornaments with his mother. Therefore, he filed the complaint before the PSI of Bannerghatta, the jurisdictional Police, who registered the case in Crime No.135/2010 against unknown persons. After investigation, the jurisdictional Police filed the charge sheet against the accused, apprehended, arrested and produced the accused before 4 the Additional Civil Judge and JMFC Court, Anekal. The Additional Civil Judge took cognizance of the offence and committed the case to the Principal District and Sessions Judge, Bangalore Rural District. The learned Sessions Judge secured the presence of the accused, framed the charges against the accused for the offences punishable under Sections 302 and 392 of IPC, read over and explained the same to the accused. The accused pleaded not guilty and claimed to be tried.
3. In order to prove the case, the prosecution, in all, examined 25 witnesses PWs.1 to 25, got marked the documentary evidence Exs.P.1 to P.18 apart from the material objects MOs.1 to 15. On behalf of the accused, Exs.D.1 to D.2 were marked during the evidence of PW.20. After completion of the evidence of the prosecution witnesses, the learned Sessions Judge recorded the statement of the accused as contemplated under Section 313 of Cr.P.C. The accused denied all the incriminating 5 evidence adduced against him by the prosecution and not entered any defence evidence.
4. The learned Sessions Judge considering the evidence on record, formulated the following two points for consideration:-
" 1. Whether the prosecution proves that on 02.11.2010 at about 4.45 p.m., in land Sy.No.19 belonging to one Govinda Reddy situated on the side of Koppa Ramasandra Road when deceased Chowdamma was grazing her cow, the accused with an intention to rob the gold ornaments from deceased Chowdamma pushed her and when deceased Chowdamma was lying on the land, the accused has stabbed with knife to her neck and caused murder of deceased Chowdamma and thereby committed an offence punishable under Section 302 of IPC?
2. Whether the prosecution proves that on 02.11.2010 at about 4.45 p.m., in land Sy.No.19 belonging to one Govinda Reddy situated on the side of Koppa Ramasandra Road when deceased Chowdamma was grazing 6 her cow, the accused with an intention to rob the gold ornaments from deceased Chowdamma, pushed her and when deceased Chowdamma was lying on the land, the accused has stabbed with knife to her neck and caused murder of deceased Chowdamma and robbed the ornaments from deceased Chowdamma and thereby committed an offence punishable under Section 392 of IPC?"
5. Considering both oral and documentary evidence on record, learned Sessions Judge recorded a finding that the prosecution has filed to prove that on 02.11.2010, at about 4.45 p.m. in the land bearing Sy.No.19 belonging to one Govinda Reddy situated on the side of Koppa Ramasandra Road when the deceased Chowdamma was grazing her cow, the accused with an intention to rob the gold ornaments, pushed the deceased down and stabbed on her neck with knife and caused the murder of Chowdamma, thereby he committed the offence punishable under Section 302 of IPC. The learned Sessions Judge further recorded the finding that the 7 prosecution has failed to prove that the accused caused the murder of Chowdamma and robbed the ornaments from her, thereby committed the offence punishable under Section 392 of IPC. Accordingly, the learned Sessions Judge acquitted the accused for the offences punishable under Sections 302 and 392 of IPC. Hence, the present appeal by the State.
6. We have heard the learned counsel for the parties.
7. Sri Vijayakumar Majage, learned Additional State Public Prosecutor appearing for the State contended with vehemence that the impugned judgment and order of acquittal passed by the learned Sessions Judge acquitting the accused for the offences punishable under Sections 302 and 392 of IPC is erroneous and cannot be sustained. He contended that the entire case of the prosecution is based on the circumstantial evidence. He further contended that the circumstances made out by the prosecution to convict the accused are firstly, MO.2-gold chain and MO.3-gold Lakshmi coin chain of the deceased 8 were seized at the instance of the accused from his house under Ex.P.2-seizure mahazar. The material witnesses PWs.3, 4 and 9 have supported the case of the prosecution. The MO.1-blood stained pant of the accused was seized. PWs.3 and 4 supported the prosecution case but PW.9 turned hostile. PW.13-Sathish is the signatory to Ex.P.2-seizure panchanama of ornaments. Secondly, he contended that recovery of MO.5-knife under Ex.P.10- seizure panchanama is supported by the panch witness PW.15-Nandakumar. PW.13-Sathish, the Police Constable is the signatory to Ex.P.10. Ex.P.11-FSL Report clearly depicts the blood stains on the clothes of the deceased and the accused. Thirdly, he contended that the homicidal death of the deceased is proved. Fourthly, he contended that the motive is proved at the instance of PW.6- Manjunatha. Fifthly, he contended that PW.20-Jagadeesh, the son of the deceased has identified the gold ornaments of the deceased which were recovered from the accused. The learned Sessions Judge has not considered all these circumstances while passing the impugned judgment and 9 order of acquittal. Therefore, the same cannot be sustained. Hence, he sought to allow the appeal.
8. Per contra, Sri N.S.Sampangiramaiah, learned amicus curiae, appointed on behalf of the accused justified the impugned judgment and order of acquittal and contended that in view of the evidence of PW.10- Dr.Venkatesh, the homicidal death is not in dispute. He contended that insofar as recovery of MO.1-pant of the accused, PW.2-Harish has witnessed Ex.P.1-seizure panchanama of pant. In the cross-examination, he has stated that he signed four to five papers as directed by the Police and do not know what was written on it. The Police have directed him to sign those papers and accordingly, he signed. He further stated that he was not aware of what was written in Ex.P.1 and do not know about further witnesses to Ex.P.1.
9. Learned amicus curiae further contended that PWs.11 and 15 were the witnesses to MO.4-blood stained shirt seized under Ex.P.9-seizure panchanama of shirt, but 10 the evidence of PW.11-Ravi is inconclusive. His examination-in-chief was not completed and there was no opportunity to cross-examine PW.11. Therefore, the evidence of PW.11 is of no assistance to the case of the prosecution to link the accused with the alleged offence. PW.15-Nandakumar who is the witness to Ex.P.9 has stated in the cross-examination that MO.5-knife was recovered from the tank bund and he is not aware of what was written in Ex.P.10-seizure panchanama of knife and who has signed it. The Police called him to visit the spot and directed him to sign the documents and he accordingly signed Ex.P.10. His signature is at Ex.P.10(c) and he is not aware of the time when he signed. He further stated that he verified MO.4-blood stained shirt and the collar label showed it as readymade shirt. On the front side of the chest, red coloured 'D' mark was there. He stated that MO.4-shirt was not torn anywhere, but the button was cut. There were no blood stains on the collar, but there was blood stain on the right hand side. He further stated that he could not identify the blood stains on the shirt. 11
10. Learned amicus curiae further contended that though MO.5-knife seized under Ex.P.10-mahazar was witnessed by PWs.11 and 15, the evidence of PW.11 is incomplete. He further contended that MO.11-towel was seized under Ex.P.15 and PWs.20, 22 and 24 are the panch witnesses. In the examination-in-chief, PW.22-Muniyappa has stated that the accused is the resident of Koppa. About two to three years back at about 4.50 to 5.00 p.m., the accused took the towel of PW.22 when he was in the house and went to some other house, changed his dress and returned the towel. Thereafter, the Police came and took the said towel and marked the same as MO.11. When the accused took the towel, he was not wearing any clothes except underwear. The Police directed him to sign the mahazar and he accordingly signed. He do not know what was written in the said mahazar. PW.25, the Investigating Officer also stated in the cross-examination that MO.11 was not seized by him. He further stated that the complainant appeared before the Police Station and produced the bills of Devatha Jewellers as per Ex.P.14. He 12 further stated that he has seen MO.11 but it was not seized by him and somebody brought the same. Therefore, the recovery of MO.11 is not proved. PW.23- Rajanna has turned hostile. PW.24-Babu has stated that he has signed Ex.P.15 and was not aware of what was written in it and the Police have not shown any clothes to him and the towel was not stolen.
11. The learned amicus curiae further contended that MO.2-gold chain and MO.3-gold Lakshmi coin chain recovered under Ex.P.2 were witnessed by PWs.3, 4 and 9. He further contended that a careful reading of the complain0t-Ex.P.12 depicts that on the date of the incident, at the time of the death of the deceased when he saw the dead body, the gold mangalya chain, gold thali, two gold Lakshmi coins, two black beeds and two red pearls and two gold balls as well as golden earrings and maati on the right side ear were there. But only left earring and maati were not found as the left ear was cut and removed by unknown persons. He further contended 13 that the complaint was not against the accused but it is against unknown persons and some of the ornaments were intact. He further contended that PW.3 has stated in the cross-examination that he was directed to sign on Ex.P.2- seizure panchanama of ornaments in the Police Station. Accordingly, he signed and he did not know what was written in it. He is not aware of which ornaments were worn by the deceased and did not know anything about the case of the prosecution. PW.4-Manjunatha partly turned hostile. PW.9-Raju totally turned hostile.
12. The learned amicus curiae further contended regarding motive that though PW.6-Manjunatha was examined, he has not stated anything about the incident that occurred on the fateful day. He has stated that the accused called him through phone and inquired if the Police had asked for him. He further stated that he purchased Tata Ace about four years back. He was supposed to pay the monthly installments and due to financial difficulty, he requested the accused to give 14 Rs.70,000/- as loan. Accordingly, the accused paid him Rs.20,000/- and the remaining amount of Rs.50,000/- was not paid and there was quarrel between him and the accused. In the meantime, the finance people have taken the vehicle. Except the said statement, nothing has been stated by PW.6 with regard to motive of the accused for committing the murder of the deceased. Therefore, the learned Sessions Judge considering the entire material on record has come to the conclusion that the prosecution has failed to prove beyond reasonable doubt that the accused was involved in the homicidal death of the deceased as alleged by the prosecution. Therefore, he sought to dismiss the appeal.
13. In view of the aforesaid rival contentions urged by the learned counsel for the parties, the only point that arises for our consideration in the present appeal is as follows:-
" Whether the prosecution has made out a case to interfere with the impugned judgment and order of acquittal passed by the Trial court 15 acquitting the accused for the offences punishable under Sections 302 and 392 of IPC in the facts and circumstances of the present case?"
14. We have given our anxious consideration to the arguments advanced by learned counsel for the parties and perused the entire material on record including the original records carefully.
15. In order to re-appreciate the entire material on record, it is relevant to consider the evidence of the prosecution witnesses and the material documents relied upon, which are as under;
i) PW.1-Rajanna is the son of the deceased Chowdamma. He went to the spot after receiving the information from PW.20-Jagadeesh about the death of his mother. He supported the prosecution case.
ii) PW.2-Harish is the panch witness to Ex.P.1- seizure panchanama under which MO.1-blood stained pant of the accused was seized. He supported the prosecution case.
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iii) PW.3-B.M.Narayanaswamy is the panch witness to Ex.P.2-seizure panchanama under which MOs.2 and 3, the gold ornaments of the deceased were seized at the instance of the accused from his sister's house. He supported the prosecution case.
iv) PW.4-Manjunatha is the panch witness to Ex.P.2- seizure panchanama. He identified MOs.2 and 3, the gold ornaments of the deceased. He partly turned hostile.
v) PW.5-Vittal is the Assistant Engineer who prepared the spot sketch Ex.P.4.
vi) PW.6-Manjunatha is the driver of the Tata Ace. He has stated that the accused is known to him and admit the financial transaction between him and the accused with regard to Tata Ace bought by him through loan.
vii) PW.7-Manjunatha son of K Mallaiah is the Village Accountant who issued Ex.P.5-RTC extract in respect of the property at which place the incident has occurred.
viii) PW.8-R.V. Ajay Kumar is the Police Constable who carried Ex.P.6-FIR to the Judicial Magistrate. He supported the prosecution case.
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ix) PW.9-Raju is the panch witness to Ex.P.2-seizure panchanama. He turned hostile.
x) PW.10-Dr.Venkatesh conducted the Post-Mortem examination and issued Post-Mortem Report Ex.P.7.
xi) PW.11-Ravi is the panch witness to Ex.P.9 under which MO.4-blood stained shirt was seized. He is also the panch witness to Ex.P.10 under which MO.5-knife was recovered at the instance of the accused. His evidence was not completed in the examination-in-chief and no cross-examination was allowed by learned counsel for the accused.
xii) PW.12-Puttabasavaiah is the Assistant Director of Forensic Science Laboratory (FSL). He submitted the FSL Report as per Ex.P.11.
xiii) PW.13-Sathish is the Police Constable who apprehended the accused based on the information received from the Investigating Officer. He recorded the voluntary statement of the accused. He also identified MO.1-blood stained pant and he is the signatory to Exs.P.1 and P.2 under which MOs.2 and 3 were recovered at the 18 instance of the accused. He is also the signatory to Ex.P.9 under which MO.4-blood stained shirt was recovered and Ex.P.10 under which MO.5-knife was seized. He supported the prosecution case.
xiv) PW.14-N.Ramesh is the Head Constable who produced the articles belonging to the deceased before the CPI. He supported the prosecution case.
xv) PW.15-Nandakumar is the panch witness to Ex.P.9 under which MO.4-blood stained shirt was seized. He is also the panch witness to Ex.P.10 under which MO.9- rope was seized. He identified the same before the Court.
xvi) PW.16-Jagadeesh is known to the accused. The accused had enquired with him whether any Police had come in search of him.
xvii) PW.17-K Vishwanath is the PSI who received the complaint as per Ex.P.12, registered the FIR, apprehended the accused and produced him before the CPI. He supported the prosecution case.
xviii) PW.18-Suresh is the panch witness to Ex.P.13- inquest panchanama. He supported the prosecution case. 19
xix) PW.19-Chandrashekar is the Head Constable who handed over the dead body of the deceased to the relatives of the deceased.
xx) PW.20-Jagadeesh is the complainant and son of the deceased Chowdamma who lodged the complaint as per Ex.P.12. He mentioned about the missing ornaments of his mother in his complaint and produced the bill towards purchase of Mangalya chain as per Ex.P.14. He identified MOs.2 and 3 as belonging to his mother. He supported the prosecution case.
xxi) PW.21-Ravindra Reddy is the neighbour of deceased Chowdamma. He received the information over phone from the persons working in the land about the death of Chowdamma due to injuries caused by the cow. He informed the complainant about the death of Chowdamma and the injury found on her neck. He supported the prosecution case.
xxii) PW.22-Muniyappa gave the towel to the accused. He identified MO.11-towel. He deposed that the accused was not wearing any clothes except the 20 underwear when the accused took the towel from him. He has supported the prosecution case.
xxiii) PW.23-Rajanna is the panch witness to Ex.P.15 under which MO.11-towel was seized. He turned hostile.
xxiv) PW.24-Babu is the panch witness to Ex.P.15 under which MO.11-towel was seized. He turned hostile.
xxv) PW.25-H.S. Venkatesh is the Police Inspector who completed the investigation and filed the charge sheet. He recorded the voluntary statement as per Ex.P.17. He supported the prosecution case.
16. On going through the entire prosecution evidence, it is clear that there are no eyewitnesses to the alleged incident and the entire case of the prosecution is based upon the circumstantial evidence. To prove the guilt of the accused, the prosecution has relied upon the following circumstantial evidence.
a) Homicidal death of the deceased.
b) Motive.
c) The deceased was grazing the cow by wearing
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gold ornaments.
d) The arrest of the accused.
e) Recovery of the articles at the instance of the
accused.
a) Homicidal death
17. In order to prove the homicidal death of the deceased, PW.1 has stated in his evidence that he went to the land and saw somebody has stabbed on the neck of the deceased and caused her murder. Though PW.1 was cross-examined, he denied the injuries sustained by the deceased as also the further suggestion that because the cow dragged the deceased, she fell down and sustained injuries. PW.18-Suresh heard about the death of the deceased, came to spot and he is the signatory to Ex.P.13- inquest panchanama. On a careful consideration of the evidence of PWs.1, 18, 20 and 21, it clearly depicts that the death of the deceased is homicidal, but not otherwise. PWs.18 and 25 have given evidence that PW.25 observed the injuries on the dead body and drawn the inquest 22 panchanama as per Ex.P.13. Therefore, the prosecution has proved that the death of the deceased is a homicidal death.
b) Motive
18. The next circumstance relied upon by the prosecution is that the motive for commission of murder of the deceased by the accused as there was need of money for the accused. In this regard, the prosecution has relied upon the evidence of PW.6-Manjunatha, the driver of Tata Ace with regard to motive. PW.6 has stated in his evidence that the accused is known to him and about four years back, PW.6 purchased Tata ACE vehicle and used to go on rent basis and was supposed to pay the monthly installments to the concerned company. Therefore, he requested the accused to give Rs.70,000/- as loan. Accordingly, the accused gave him a sum of Rs.20,000/- to him. Subsequently, on the demand made by PW.6, the accused could not pay the remaining Rs.50,000/- and therefore, there was a quarrel between PW.6 and the 23 accused. Due to non-payment of the installments, the vehicle was seized by the Finance Company. Thereafter, he did not speak with the accused. In the entire evidence of PW.6, he has not stated anything about the incident and for want of money, the accused has committed the murder. The evidence of PW.6 clearly depicts that the accused was not in need of finance and in fact, he had given Rs.20,000/- to PW.6 and no documents are produced by the prosecution that PW.6 has sold the vehicle in favour of the accused. In the absence of any material documents produced by the prosecution, the evidence of PW.6 is not sufficient to prove that the accused was in need of money. Hence, we hold that the prosecution has failed to prove motive on the part of the accused beyond reasonable doubt for committing the murder.
c) Deceased was grazing the cow wearing gold ornaments.
19. Another circumstance relied upon by the prosecution is that the deceased was grazing the cow by wearing 24 ornaments. The evidence of PW.1, 18, 20 and 21 depicts that she was grazing the cow by wearing gold ornaments. It is well known that in the villages, the womenfolk will wear ornaments even at the time of working in their land. The deceased was taking the cow to graze in the surrounding lands in the village. If the evidence of the prosecution is taken into consideration, it clearly shows that the prosecution has established the moving of the deceased to graze the cow by wearing ornaments.
d) The arrest of the accused.
20. The prosecution has relied upon the seizure of articles at the instance of the accused as contemplated under Section 27 of the Indian Evidence Act after the arrest of the accused. PWs.13 and 17 have deposed that on 07.11.2010, they searched for the accused, apprehended and produced him before the CPI. PW.13 has denied the same. PW.17 has given evidence that on that day, one lady was in the house and did not know the name of the said lady. He has given evidence that he has 25 not intimated the said lady. If the evidence of PWs.13 and 17 is taken into consideration, it clearly depicts that they do not know the identification of the accused. The said lady is the sister of the accused. She is the important witness to speak about the apprehension of the accused on the day in question. If the admission by PW.17 is taken into consideration, it clearly shows that doubt arose about the apprehension of the accused on the date in question as stated by PWs.13 and 17. Considering the said fact, the prosecution has failed to establish the apprehension of the accused stated by them before the Court beyond reasonable doubt.
e) Recovery of articles at the instance of the accused.
21. Another circumstance relied upon by the prosecution is recovery of articles at the instance of the accused. PW.25 arrested the accused and recorded the confession statement leading to recovery of articles. He has given evidence that the accused has stated before him that if he 26 comes along with him, he will show the place where the ornaments are kept. Ex.P.17, the confession statement has been marked with relevant portion under the provisions of Section 27 of the Evidence Act. If the entire voluntary statement of the accused is taken into consideration, it clearly shows that the voluntary statement recorded by the Investigating Officer is nothing but the confession statement made by the accused before the Investigation Officer while in custody which is not admissible under Section 25 of the Indian Evidence Act. The confession statement made before the Police Officer cannot be proved against the accused for any offence except the relevant portion leading to the discovery of any fact regarding recovery which is permissible under Section 27 of the Indian Evidence Act. As per Section 27 of the Indian Evidence Act, in the absence of recovery of any ornaments or proof of recovery, the confession statement made by the accused is not useful to the prosecution case. The prosecution has failed to prove any recovery of articles with the help of any independent panch witness. 27
22. PW.22 has given the evidence that he gave the towel to the accused and the accused was wearing only underwear at that time. If this evidence is taken into consideration, it shows that prior to arrest, the accused was not wearing pant or shirt. The evidence also shows that the accused went to the house of another and wore dress, kept the towel in front of his house and went away. The evidence clearly depicts that the accused was wearing different pant at the time of committing the offence. The evidence of PW.22 takes away the evidence of PWs.2, 13 and 25 in respect of seizure of MO.1 at the instance of the accused. Therefore, the evidence of the said witnesses do not help the prosecution to prove the seizure of the above articles at the instance of the accused before the Court beyond reasonable doubt. The prosecution failed to establish seizure of MO.1 at the instance of the accused under Ex.P.1-panchanama before the Court beyond reasonable doubt. If the entire cross-examination is taken into consideration, the evidence of PWs.3, 4 and 13 do not 28 help the prosecution to prove the alleged panchanama- Ex.P.2 beyond reasonable doubt. It clearly depicts that the prosecution has failed to prove the seizure of MOs.2 and 3 at the instance of the accused under Ex.P.2- panchayana beyond reasonable doubt.
23. The prosecution mainly relied upon the circumstance of identification of MOs.2 and 3 by the complainant. On going through the cross-examination of PWs.3, 4 and 13, it is clear that they are unable to describe the seized articles at the instance of the accused under Ex.P.2. Considering the evidence on record and admissions given by PWs.3, 4 and 13, the prosecution has failed to establish the seizure of MOs.2 and 3 at the instance of the accused. PW.20 has deposed that the Police told him that MOs.2 and 3 are available in the house of the sister of the accused and he has identified the same. He has produced Ex.P.14, the bills to show that he has purchased the same. Much is cross-examined about the description of MOs.2 and 3 to PW.20. He has given description as stated by the 29 prosecution. PW.20 has admitted that at the time of taking interim custody of MOs.2 and 3, he has produced the bill in the name of deceased Chowdamma. Further, he has admitted that Ex.P.14 bears the name of Ammayamma. He has admitted the difference between the bills produced at the time of taking interim custody of MOs.2 and 3 and Ex.P.14. If the entire cross-examination is taken into consideration, it clearly depicts that the identification of MOs.2 and 3 made by PW.23 appears to be doubtful one. Even otherwise, the other witnesses have also not identified the same.
24. A careful perusal of the original Ex.P.14, it contains two slips, one is the estimate issued by the Devatha Jewellers and Bankers dated 01.09.2006 which shows 'Chavadamma' and 'two items of gold i) one gold Nack chain, gm.30.34 Rs.27,250/- ii) One gold Laxmi Kashujodi, gm.1-96 Rs.1,750/- total amount Rs.29,000/-'. On the very same day, the bill dated 01.09.2006 has been issued in the name of 'Aamaiyamma i) One gold drop, 30.34 old 30 Rs.9450 ii) Batani chain Rs.17,800/- Total 27,250/-'. The two documents show two separate items. The weight and the amount also differ and the same is admitted by PW.20 in his cross-examination. It is not the case of the prosecution that the name of Chowdamma and Ammayamma are one and the same. In the absence of the same, the very recovery of MOs.2 and 3 at the instance of the accused is doubtful. The prosecution has failed to prove the recovery of gold ornaments from the accused. On a careful reading of the complaint averments, at the time of death, the deceased was wearing gold Mangalya chain with gold thali, two gold Lakshmi coins, two black beeds and two red beeds, two gold balls. It is also stated that the gold earring along with maati on the left ear is not forthcoming. Admittedly, the complaint is against unknown persons. Absolutely there is no material to prove that the accused has committed the alleged homicidal death of the deceased.
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25. It is relevant to consider at this stage that the evidence of PW.22 does not disclose exactly the date and time of the presence of the accused. His evidence was restricted to seizure of towel. No other evidence is produced by the prosecution to show that the accused was seen in that area. If the said evidence is taken into consideration, it clearly indicates that the evidence of PW.22 does not prove the case of the prosecution. In the facts and circumstances stated supra, the evidence of PW.1 does not speak about the conduct of the accused. Therefore, the prosecution failed to establish the conduct of the accused and further failed to establish the case beyond reasonable doubt.
26. Ex.P.18-FSL Report depicted that blood stains were found on the cloth of the accused, but PW.25 has stated that he has not collected the blood group of the accused and the deceased and the prosecution failed to establish the seizure of clothes and other articles at the instance of the accused. In the absence of ascertaining the blood 32 group of the deceased and the accused, the evidence does not help to prove the alleged circumstance. The entire case of the prosecution is based on circumstantial evidence and there is no link from the beginning of the investigation till completion to implicate the accused being involved in committing the offence of homicidal death.
27. On a careful perusal of the evidence of PWs.3, 4 and 15, there are so many omissions and contradictions in the evidence of prosecution witnesses, that the entire fabric of the prosecution case appears to be ridden with gaping holes. It is true that due to passage of time, witnesses do deviate from their previous statements as their memory fades to some extent. Reasonable allowance can be made for such discrepancies. But when such discrepancies make the foundation of the prosecution case shaky, the Court has to take a strict note thereof. On a thorough reading of the aforesaid evidences of the prosecution witnesses, the discrepancies are located and the witnesses have discredited themselves. Therefore, in view of the above, 33 the prosecution has not proved beyond reasonable doubt the circumstances relied upon by the prosecution to show that the accused is involved in committing the offence of homicidal death of the deceased so as to attract the provisions of Section 302 of IPC.
28. It is well settled that in exercise of powers under Section 378(1) of Cr.P.C., this Court will not interfere with the order of acquittal passed by the learned Sessions Judge unless there is any perversity in the impugned judgment or it has been passed without assigning any reasons and the same is patently illegal and unsustainable. Our view is fortified by the dictum of the Hon'ble Apex Court in the case of Kashiram v. State of M.P., reported in (2002) 1 SCC 71, wherein at paragraph 21, it has been held as under:
21. We find the judgment of the High Court suffering from several infirmities. The High Court was dealing with an appeal against acquittal. Though the High Court while hearing an appeal against an acquittal 34 has powers as wide and comprehensive as in an appeal against a conviction and while exercising its appellate jurisdiction the High Court can reappraise the evidence, arrive at findings at variance with those recorded by the trial court in its order of acquittal and arrive at its own findings, yet, the salutary principle which would guide the High Court is
-- if two views are reasonably possible, one supporting the acquittal and the other recording a conviction, the High Court would not interfere merely because it feels that sitting as a trial court its view would have been one of recording a conviction. It follows as a necessary corollary, as has been held by this Court in Chandu v. State of Maharashtra [(2001) 4 Scale 590] it is obligatory on the High Court while reversing an order of acquittal to consider and discuss each of the reasons given by the trial court to acquit the accused and then to dislodge those reasons. Failure to discharge this obligation constitutes a serious infirmity in the judgment of the High Court.35
29. In a case of circumstantial evidence, motive assumes great significance and importance, for the reason that absence of motive would put the court on its guard and cause it to scrutinize each piece of evidence very closely in order to ensure that suspicion, emotion or conjecture do not take the place of proof. Admittedly in the present case, no evidence or material is forthcoming where the evidence is of a circumstantial evidence to link the accused to the incident that occurred as there is no eyewitness to the incident. Therefore, it is necessary to find out whether the circumstances on which the prosecution relies upon are capable of supporting the sole inference that the accused is guilty of the crime of which he is charged. The circumstances, in the first place, have to be established by the prosecution by clear and cogent evidence and those circumstances must not be consistent with the innocence of the accused. Therefore, the prosecution has not proved beyond reasonable doubt the involvement of the accused in the homicidal death of the accused.
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30. When the Trial Court considering both oral and documentary evidence has passed the impugned judgment and order of acquittal and the appellant-State has not made out any ground to interfere with the well-founded impugned judgment and the order of acquittal based on the oral and documentary evidence, this Court exercising its appellate powers cannot interfere with the same.
31. For the reasons stated above, the point raised in the present appeal is answered in the affirmative holding that the Trial Court is justified in acquitting the accused for the offences punishable under Section 302 and 392 of IPC and the prosecution has not made out a case to interfere with the impugned judgment and order of acquittal. Hence, the appeal filed by the State is dismissed as devoid of merits. Accordingly, the criminal appeal is dismissed.
32. Appreciating the services rendered by the learned amicus curiae Sri N.S.Sampangiramaiah, we direct the Karnataka State Legal Services Authority to pay the 37 honorarium of Rs.8,000/- to him within three weeks from the date of receipt of copy of this judgment.
Sd/-
JUDGE Sd/-
JUDGE mv