Karnataka High Court
Karabasappa S/O Ramesh ... vs Ramesh S/O Mahadevappa Betageri on 24 March, 2022
Bench: H.T.Narendra Prasad, Rajendra Badamikar
1
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 24TH DAY OF MARCH 2022
PRESENT
THE HON'BLE MR. JUSTICE H.T.NARENDRA PRASAD
AND
THE HON'BLE MR. JUSTICE RAJENDRA BADAMIKAR
CRL.A.No.100086/2016 C/W
CRL.A.No.100016/2016
IN CRL.A NO 100086 OF 2016
BETWEEN
STATE OF KARNATAKA,
REPRESENTED BY THE
POLICE INSPECTOR,
KALAGHATAGI POLICE STATION,
DHARWAD.
THROUGH THE ADDL. STATE PUBLIC PROSECUTOR,
ADVOCATE GENERAL OFFICE,
HIGH COURT OF KARNATAKA,
DHARWAD BENCH.
.....APPELLANT
(BY SRI V.M. BANAKAR, ADDL. SPP)
AND
1. RAMESH S/O MAHADEVAPPA BETAGERI,
AGE: 36 YEARS, OCC: AGRICULTURE,
R/O: HINDASAGERI.
2. MANJUNATH S/O CHINNABASAPPA TIPPANNAVAR,
AGE: 33 YEARS, OCC: AGRICULTURE,
R/O: HINDASAGERI.
3. MUDAKAPPA @ SHETTEPPA,
2
S/O HANAMANTAPPA ADARGUNCHI,
AGE: 32 YEARS, OCC: AGRICULTURE WORK,
R/O: UGNIKERI.
4. MANJUNATH S/O BASAPPA GANJIGATTI,
AGE: 35 YEARS, OCC: AGRICULTURE,
R/O: HINDASAGERI.
.....RESPONDENTS
(by sri K.L. PATIL, ADV. FOR R-1, R-3 & R-4
APPEAL AGAINST R-2 STANDS ABATED)
THIS CRIMINAL APPEAL IS FILED U/S 378 (1) & (3) OF
CR.P.C. SEEKING TO GRANT LEAVE TO APPEAL AGAINST THE
JUDGMENT AND ORDER OF ACQUITTAL DATED 20.11.2015 IN
S.C.NO.20/2012 ON THE FILE OF II ADDL. DISTRICT AND
SESSION AND SPECIAL COURT, DHARWAD AND TO SET ASIDE
THE JUDGMENT AND ORDER DATED 20.11.2015 PASSED BY II
ADDL DISTRICT AND SESSION AND SPECIAL COURT, DHARWAD
IN S.C.NO. 20/2012.
IN CRL.A NO 100016 OF 2016
BETWEEN
KARABASAPPA S/O RAMESH KARABASANNANAVAR,
AGED ABOUT 40 YEARS, OCC:AGRICULTURE,
R/O:HINDASGIRI, TQ:KALAGHATAGI,
DIST:DHARWAD.
.....APPELLANT
(BY SRI MAHESH WODEYAR, ADV.)
AND
1. RAMESH S/O MAHADEVAPPA BETAGERI,
AGED ABOUT 35 YEARS, OCC:AGRICULTURE,
R/O:HINDASGIRI, TQ:KALAGHATAGI,
DIST:DHARWAD.
2. MANJUNATH S/O CHANNABASAPPA TIPPANNANAVAR,
AGED ABOUT 33 YEARS, OCC:AGRICULTURE,
R/O:UGNIKERI, TQ:KALAGHATAGI,
DIST:DHARWAD.
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3. MUDUKAPPA @ SHETTEPPA
S/O HANUMANTAPPA ADARGUNCHI,
AGED ABOUT 33 YEARS, OCC:AGRICULTURE,
R/O:MAVANUR, TQ:KALAGHATAGI,
DIST:DHARWAD.
4. MANJUNATH S/O BASAPPA GANJIGATTI,
AGED ABOUT 33 YEARS, OCC:AGRICULTURE,
R/O:HINDASGIRI, TQ:KALAGHATAGI,
DIST:DHARWAD.
5. STATE OF KARNATAKA
REP BY ADDL. STATE PUBLIC PROSECUTOR,
HIGH COURT OF KARNATAKA, DHARWAD BENCH,
DHARWAD.
.....RESPONDENTS
(BY SRI K.L. PATIL, ADV. FOR R-1, R-3 & R-4
SRI V.M. BANAKAR, ADDL. SPP FOR R-5)
THIS CRIMINAL APPEAL IS FILED U/S 372 OF CR.P.C.
SEEKING TO CALL FOR RECORDS AND TO SET ASIDE THE
JUDGMENT AND ORDER OF ACQUITTAL DATED:20.11.2015
PASSED BY THE II ADDL. DISTRICT SESSIONS AND SPECIAL
JUDGE, DHARWAD IN S.C. NO. 20/2012 AND CONSEQUENTLY
CONVICT THE RESPONDENTS NO. 1 TO 4 FOR THE OFFENCES
PUNISHABLE U/SEC 120-B, 364, 302, 201 R/W SECTION 34 OF
IPC.
THESE APPEALS HAVING BEEN HEARD AND
RESERVED FOR JUDGMENT ON 05.03.2022, THIS DAY,
RAJENDRA BADAMIKAR, J. PRONOUNCED THE FOLLOWING:
JUDGMENT
These two appeals are filed by the complainant and the State challenging the judgment of acquittal passed by the II Additional District and Sessions Judge & Special Judge, Dharwad, in S.C.No.20/2012, dated 20.11.2015 whereby the 4 learned Sessions Judge has acquitted the accused/respondents herein for the offence punishable under Sections 120-B, 364, 302 and 201 read with Section 34 of Indian Penal Code, 1860 (hereinafter referred as 'IPC', for short).
2. For the sake of convenience, the parties herein are referred with the original ranks occupied by them before the trial Court.
3. Brief factual matrix leading to the case are that the accused No.1 was possessing a TATA ACE vehicle bearing No.KA-25/C-2957 and he used to carry labourers from Hindasageri village to Budnal pickle factory in his vehicle earlier. It is alleged that thereafter the deceased Mahadevappa also began to carry labourers in his TATA goods vehicle bearing No.KA-27/A-2923 and started to compete with the accused No.1. Hence, it is alleged that accused No.1 has developed grudge and animosity against the deceased and he along with accused No.2 to 4 conspired to get rid of deceased. It is the case of the prosecution that on 08.08.2011 accused No.1 with the assistance of accused Nos.2 to 4, secured the deceased Mahadevappa to Aishwarya Hotel at Kalaghatagi by 5 calling him through a mobile and there, the accused and deceased had food. Thereafter the accused asked Mahadevappa to go to Yellapur with his vehicle on hire but Mahadevappa refused. It is alleged that then the accused Nos.1 to 4 kidnapped him from the above hotel in the vehicle of the deceased at about 9.30 p.m. and took him near Magod cross after Yellapur and at about 12.00 in the midnight, the accused stopped the vehicle and deceased was made to get down from the vehicle. It is the further case of the prosecution that accused No.1 has throttled the neck of the deceased with hands while accused No.2 kicked him on his testicles while accused Nos.3 and 3 caught hold the hands and legs of the deceased. Later on after committing the death of the deceased at about 12.30 in the midnight, the accused with an intention to cause disappearance of the evidence of commission of the murder and in order to destroy the evidence, threw the chappals of the deceased in a bush and took the dead body in TATA ACE vehicle near 26 km. stone of Ankola near Mastakatta forest area and thrown the dead body. It is also urged that the pant and shirt of the deceased were removed and torn and accused No.1 smashed the head 6 and chest with stone and accused No.2 took the Nokia mobile of the deceased and removed the SIM and broken it into pieces and then kept it in a carry bag and threw the same in nearby bush and accused No.4 kept pant and shirt in the bed- sheet and thrown it in the Mastakatta Range Hotel in the forest area by the side of the drainage and accused No.2 threw gripper cover of the steering of TATA ACE vehicle of the deceased at some distance.
4. Later on 08.08.2011 when the deceased did not go to factory to bring the labourers, one of the labourers contacted the complainant and complainant called the deceased on his mobile but his mobile was found switched off. Then they learnt that the vehicle was parked near Mishrikoti cross and complainant went there and they found TATA ACE vehicle parked there belonging to the deceased but deceased was not traced there. By using the duplicate key, the vehicle was brought back and they searched the deceased for two days and later on a missing complaint was filed.
It is the further case of the prosecution that the police were not able to break the dead lock in the missing complaint and meanwhile the complainant came to know from one 7 Channappa that the accused Nos.1 and 4 while passing near his land were talking regarding they finishing the deceased and police are unable to search his dead body and after over hearing this information, he reported the same to the complainant. Thus, the complainant has lodged a complaint in this regard against the accused which was registered in Crime No.177/2011. Initially accused Nos.1 to 4 were arrested and the Investigating Officer recorded their confessional statements. It is alleged that at their instance, the skeleton of the deceased was traced and certain clothes, mobile SIM etc. were recovered and he has also recorded the statements of the witnesses and last seen theory was put forward and as such, the charge sheet came to be submitted against the accused Nos.1 to 4.
5. The accused Nos.1 to 4 were arrested and initially remanded to judicial custody. Subsequently, they were enlarged on bail. After submission of the charge sheet, the learned Magistrate took cognizance and he also furnished the copies of the prosecution papers to the defence counsel. Since the offence under Section 302 of IPC is exclusively triable by the Court of sessions, he has committed the matter to the 8 Sessions Court. Then the matter was placed before the II Additional District and Sessions Judge and he secured the presence of the accused and charges framed were read over and explained the accused and they pleaded not guilty.
6. To prove the guilt of the accused, prosecution has examined in all 28 witnesses as PW-1 to PW-28 and 88 documents were marked as Exs.P-1 to P-88(a). Further material objects were marked as M.O. 1 to 13. After the conclusion of the evidence of the prosecution, the statement of the accused under Section 313 of Code of Criminal Procedure, 1973 (hereinafter referred to 'Cr.P.C.', for short) is recorded to enable the accused to explain the incriminating evidence appearing against them in the case of the prosecution. The case of the accused is of total denial and they did not chose to lead any defence evidence in support of their contention.
7. After having heard the arguments by the Public Prosecutor and defence counsel, the learned Sessions Judge by the impugned judgment found that the prosecution has failed to prove the guilt of the accused beyond all reasonable doubt and as such acquitted them by exercising powers under 9 Section 235(1) of Cr.P.C. for the offence punishable under Section 120-B, 364, 302, 201 read with Section 34 of IPC. Being aggrieved by this judgment of acquittal, the complainant has filed the appeal under Section 372 of Cr.P.C. with the leave of this Court. Simultaneously, the State has also filed the appeal under section 378(1) and (3) of Cr.P.C. challenging the judgment of acquittal passed by the trial Court.
8. Since both these appeals are arising out of the same judgment of acquittal, they are heard together and common order is being passed.
9. We have heard the arguments advanced by the learned counsel for appellants and the learned Additional State Public Prosecutor and the learned counsel for respondent at length. Perused the records.
10. Learned counsel for the complainant/appellant and learned Additional State Public Prosecutor would contend that though the case is based on circumstantial evidence, the evidence clearly disclose that there was a strong motive for accused to commit the murder of the deceased as there is a 10 professional rivalry. He would further contend that Ex.P-37 is a missing complaint and the evidence of PW-2 and other witnesses clearly disclose that recovery and tracing of the skeletal of the deceased was at the instance of the accused. He would also contend that PW-10 overheard the talk while PW-8 is a last seen witness and PW-14 is a star witness, who has also identified the accused for having last seen them along with the deceased. He would further contend that DNA report at Ex.P-87 clearly establish that the skeletal is of the deceased Mahadevappa as the blood samples of his parents is matching with DNA profile and the certificate is admissible under Section 293 and 294 of Cr.P.C. as while marking these documents, there was no objection by the defence. He would also contend that at the instance of the accused the skeleton of the deceased was recovered and it is material piece of the evidence and phone call details disclose that accused had called the deceased prior to alleged incident. They would also contend that recovering panchas have also supported and last seen theory is also corroborated with the evidence and there is chain of links and other circumstances including the motive supports the case of the prosecution. Hence, he would 11 contend that the trial Court has erred in properly appreciating the oral and documentary evidence and has given undue importance to the irrelevant factors which has resulted in miscarriage of justice. They would also contend that though in paragraph 20 of the judgment, the trial Court has held that recovery is proved but the trial Court failed to consider that the recovery which was within the knowledge of the accused and hence, they sought for allowing the appeals by setting aside the impugned judgment of acquittal and prayed for convicting the accused.
11. Per contra, learned counsel for accused/respondents No.1, 3 and 4 would support the judgment of acquittal passed by the trial Court. He would contend that the entire case is based on the circumstantial evidence and as such, heavy burden is casted on the prosecution to establish the link between the chain of circumstances. He would contend that though the alleged incident of missing has taken place on 08.08.2011, missing complaint was lodged on 10.08.2011, after two days and the complaint against accused was lodged on 01.09.2011. He would also contend that PWs-1, 2, 8, 9, 13 and 18 are all 12 relatives and interested witnesses. He would further contend that since the entire case is based on the circumstantial evidence, motive plays important role and except PW-1, none of the other witnesses have deposed regarding the motive. Further he has also invited the attention that the recovery pancha is from a village which is situated at a distance of 60 km from Kalaghatagi and scene of offence itself is at a distance of 88 km from Kalaghatagi and why the Investigating Officer has preferred a witness from such a long place is not at all explained as PW-2, who claims to be the star witness, was resident of Naregal. He would also contend that the evidence of mahazar witness regarding seizure of mobile is also inconsistent. He further contended that PW-14 was posed to be the star witness, he identified the accused as per the say of the owner of the Hotel and no identification parade is held. He also invited attention that through the call details and considering the evidence of PW-17 who has answered recklessly and the location of the tower was not at all disclosed to ascertain the place from where the calls have been made or received. He would further argues that there is no link of chain and there is no time of death forthcoming and 13 location was also not traced out in the call details and as regards last scene theory, no material evidence is forthcoming. He would also contend that the motive is not at all established and the chain of circumstances is not linking with each other and hence, he would contend that the trial Court is justified in acquitting the accused. He would further submit that there is always presumption of innocence in favour of the accused during the course of the trial and when the accused are acquitted by the trial Court this presumption becomes more stronger and prosecution is required to establish the case on high standard to set aside the judgment of the trial Court. He would contend that the circumstantial evidence does not establish any link and as such he would seek for dismissal of the appeals by confirming the judgment of acquittal passed by the trial Court.
12. Having heard the arguments advanced by the learned counsel for both the parties and after perusing the records of the trial Court, the following point would arise for our consideration:
"Whether the trial Court has committed an error in acquitting the accused and whether the 14 judgment of the trial Court suffers from perversity, infirmity or arbitrariness so as to calls for any interference by this Court?"
13. The accused have been prosecuted for the offence punishable under Sections 120B, 364, 302, 201 read with Section 34 of IPC. Admittedly, the dead body was not traced and only the skeleton was traced. The defence counsel has also disputed the identity of the deceased as claimed by the prosecution. There is no material evidence or eyewitness in the instant case and the entire case rests on circumstantial evidence. The prosecution is relying on i) motive, ii) last seen theory, iii) recovery of the incriminating materials and
iv) tracing the skeleton at the instance of the accused so as to prove the link. When the prosecution is basing its entire claim on circumstantial evidence, the prosecution is required to prove the continuation of chain of links and high standard of proof is required. With these cardinal principles of law in mind, we will have to assess the evidence led by the prosecution.
14. It is the case of the prosecution that there was animosity between the deceased Mahadevappa and accused 15 No.1 in respect of carrying the labourers from Hanchatageri to Budnal pickle factory in the respective goods vehicles and there was professional rivalry. Hence, the prosecution is attributing the motive in this regard. According to the prosecution, with this motive, the accused No.1 developed grudge against deceased and he conspired along with accused Nos.2 to 4 and on 08.08.2011, secured the deceased near Aishwarya Hotel, Kalaghatagi and later on kidnapped him in his goods vehicle at 9.30 p.m. and thereafter committed his murder. It is the specific case of the prosecution that the accused have kidnapped the deceased in his own vehicle but absolutely no piece of evidence is forthcoming regarding kidnapping of the deceased. This material evidence and material link itself is missing and none of the witnesses are able to disclose the act of kidnapping.
15. PW-1 is the complainant and brother of the deceased. Except this witness, none of the witnesses have deposed regarding the motive as alleged. Though he has deposed regarding the motive for commission of offence by 16 the accused No.1, it is hard to accept that this motive has prompted the accused No.1 to cause the death of the deceased on the ground that there was animosity between them. Very interestingly, the witness further deposes that the accused No.1 and deceased used to have food regularly in the restaurant and in that event, question of they developing animosity does not arise at all. Further, except the evidence of PW-1, none of the other witnesses have supported the case of the prosecution regarding alleged motive.
16. The entire case of the prosecution rests on evidence of PW-8 and PW-14, who claim that they have witnessed the deceased along with accused near Aishwarya Hotel in Kalaghatagi at about 8.00 p.m. to around 9.30 p.m. Very interestingly, it is to be noted here that PW-8 is the relative of the complainant as the wife of his brother i.e., PW-9, Sangappa and wife of PW-8 are sisters. Further, his evidence discloses that two years back, he has seen the deceased standing near Aishwarya Hotel along with 4 to 5 persons and he did not identify any of them. According to 17 him, he was summoned by the police near the Hotel 8 days after the missing incident of Mahadevappa and he has shown the spot. But as per the case of the prosecution, after three weeks, the spot was shown. Further, PW-8 identified accused No.1 in the photograph but his evidence discloses that he did not initially identify the accused No.1 before the Court. Very interestingly, Investigating Officer has not conducted test of identification to enable PW-8 to identify the accused No.1. Further, this witness was treated as hostile and he denied that he has given statement as per Exs.P-35 and P-36. Hence, the evidence of PW-8 does not assist the prosecution in any way.
17. The other witness is PW-14, regarding last seen theory. He claims to be an employee of Aishwarya Hotel and deposed that one and half years back, at 9.30 p.m., five persons came to hotel and took meals and went away. He identified the accused Nos.1 to 4 and photograph of the deceased. His cross-examination reveals that there are no documents to show that he was working as waiter in Aishwarya Hotel and he was on the duty at the relevant 18 point of time and he was getting monthly salary of Rs.8,000/-. Very interestingly, the Investigating Officer has not collected any documents in this regard nor recorded the statement of the owner. Apart from that, PW- 14 specifically deposes that number of customers used to visit the hotel and there was no such special occasion to memorize the visit of deceased and accused.
18. It is important to note here that since this case is based on circumstantial evidence and on last seen theory, the prosecution is required to prove that on a particular date in the night, the deceased was seen in the company of the accused. But the evidence discloses that PW-14 has not at all stated the exact date or week of the visit of the accused to the Hotel. But very interestingly, he also deposed that all the accused and deceased used to frequently visit the Hotel for meals and therefore, he cannot specify the specific date. If this version is taken into consideration, then accused and deceased were in good terms and as such, the theory of the prosecution regarding motive is destroyed.
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19. However, his further cross-examination discloses that as per the say of the owner that in all five persons had come to the hotel for meals and since the definite information is given by the owner, he is giving the evidence in this regard. This admission in the evidence of PW-14 clearly established that he has no personal knowledge regarding visit of accused and deceased. Even otherwise, if the evidence is taken into consideration, then deceased and accused are frequent visitors and in that event, the base i.e., motive itself is destroyed. Further, no identification parade was conducted in this regard. The prosecution is required to prove that the deceased was seen in the company of the accused which is prior to his disappearance and prior to this death. But this material evidence is missing.
20. Apart from that, it is also important to note here that prosecution has also not able to fix the time of the death. When the time of the death is not fixed, there is no proximity between last seen theory as asserted by the prosecution. The prosecution is relying on voluntary 20 statement of the accused but to fix the time of the death, the voluntary statement of the accused in this regard is inadmissible. Considering this material lapse, the evidence of PW-14 regarding last seen theory itself becomes doubtful. Apart from that, it is only a weak type of evidence and that itself cannot be a ground for conviction.
21. The prosecution is harping on the fact that the dead body is discovered and incriminating articles were recovered at the instance of the accused and recovery is a strong circumstance to prove the guilt of the accused. In this regard, prosecution is placing reliance on the evidence of PW-2, a pancha witness for inquest and spot mahazar at Ex.P-5. This witness, no doubt, has supported the case of the prosecution and he deposed regarding the accused leading them to the skeleton of the dead body, production of chappals of the deceased, broken mobile, stone, clothes of the deceased etc. At the same time, the evidence of PW-2 is silent as to which of the accused has laid for which recovery. This is also important to note here that this witness is native of Naregal in Hanagal Taluk and it is at a 21 distance of 65 km from Kalaghatagi. In that event, it is for the Investigating Officer to explain as to why he has not preferred a local witness but he preferred a witness of far distance. It is also important to note here that wife of the deceased is from Naregal village and he had visited along with father-in-law of the deceased to the village of the deceased after getting the information of missing of Mahadevappa.
22. The further evidence of PW-2 discloses that 15- 16 days after missing of Mahadevappa, Kalaghatagi police have called him as a pancha by reporting that dead body is traced. This statement of the witness indicates that the dead body/skeletal was not shown by the accused by leading the pancha for the first time but the police were having the knowledge of this aspect. There is no material evidence as to on what basis they collected the information prior to mahazar which is alleged to have been led by the accused. Further the evidence of PW-2 discloses that police have obtained his signatures in police station two days prior to the mahazar and two days later on he was taken to 22 Ankola. His further evidence discloses that police have called him from Naregal village through father-in-law of the deceased by sending a telephone message. What is the interest of the investigating agency or the complainant in calling the pancha from long distance is not at all forthcoming. His evidence clearly establishes that it is not trustworthy and the police knew the existence of dead body well in advance before the accused alleged to have led to the spot. Considering these lapses, the prosecution ought to have examined other co-panchas but the prosecution has not examined them.
23. The other interesting aspect is that the area wherein the skeleton, clothes and other incriminating materials were recovered is a forest area and it was heavy raining area in this locality. The evidence also discloses that when they had been for recovery, it was again raining. It is hard to accept that when for almost three weeks, when the properties were exposed to heavy rain, they were found intact, without therebeing any damage to the properties including the broken mobile piece. The intactness of these 23 properties itself raise a serious doubt regarding mahazar being conducted by the prosecution. It is hard to accept that chappals were lying there itself when they were exposed to rain including the clothes, mobile pieces as well as pant, shirt and blanket and naturally they would have been scattered all along but the evidence led by the prosecution discloses that they were intact which create suspicion regarding genuineness of the mahazar itself. Very interestingly, the allegation of the prosecution is regarding the accused showing the stone from the nala which alleged to have been used for commission of the offence. In such monsoon season and that too in such a raining area, is it possible for tracing a particular stone without therebeing any special identification marks is a doubtful aspect. Similarly, the allegation regarding the recovery of steering gripper is also doubtful as when the rubber is continuously exposed to air or rain, it is bound to be damaged but no such things have been observed in this regard. As such considering these aspects, the evidence of PW-2 does not support the recovery and conduct of the investigation also fall short of proving the recovery. As 24 such, this ground of recovery cannot assist the prosecution in any way.
24. The prosecution has placed reliance on the evidence of PW-4 and PW-5 regarding recovery of mobile from the custody of accused Nos.1 and 4 but the evidence of PW-1 and PW-4 is inconsistent regarding seizure of one mobile or two mobiles, particular company and as such that is also not trustworthy as observed in the recovery of vehicle steering cover and clothes of the deceased. It is a doubtful aspect and hence, the evidence of PW-4 also does not have any much relevance.
25. Evidence of PW-6 has no much relevance as well evidence of PW-7 and regarding seizure of vehicle does not have any relevancy as admittedly it was being used by the complainant and his brother thereafter it was traced near Mishrikoti cross but three weeks before tracing skeleton.
26. The prosecution is giving much importance for recovery, last seen theory and motive. As observed above, the last seen theory is not trustworthy and recovery is also 25 not proved by the prosecution and the recovery is doubtful. Further, proof of motive will be important corroborative piece of evidence and in case, it is proved, it only strengthens the case of the prosecution. Further, the motive assumes great importance where conviction is sought on the basis of the circumstantial evidence.
27. As observed above, except PW-1, none of the witnesses have deposed regarding alleged motive. Further the evidence of PW-14 itself discloses that the accused and deceased together used to visit the Hotel frequently and in that event, the allegations of grudge or animosity is ruled out. Further, there is no evidence to prove that there was any incident of quarrel between the deceased and accused No.1 prior to the incident.
28. PW-19 did not speak regarding enmity between accused and deceased. As per the case of the prosecution, one Channappa i.e., PW-10, overheard the conversation between accused Nos.1 and 4 who were talking slowly while this witness was working in his field that they have made the plan that Mahadevappa cannot be traced any 26 time and police could not trace him and as such, he informed this factor to PW-1. His cross-examination reveals that the deceased was closely related to him being brother- in-law of the deceased. It is interesting to note that according to him, while he was working in his land, accused Nos.1 and 4 were talking in low voice. Admittedly this witness was not following accused Nos.1 and 4 nor standing near them so as to hear the low voice conversation. Very interestingly, when he heard the conversation, on the same day he did not take any steps in this regard. On the next day, he claims that he reported the matter to the complainant. This conduct of this witness is against a natural human conduct and as such, it is evident that he is a planted witness by the Investigating Officer.
29. PW-13 is the father-in-law of the deceased and father of PW-10 as admitted by him in cross-examination. According to him, on 08.08.2011, the deceased left his house in Naregal at 3.30 p.m. and when he called the deceased, it is disclosed that the deceased was taking meals with accused No.1 and other friends. Very next day, 27 the deceased found missing and interestingly PW-13 did not report this matter either to the complainant or to police for the best reasons known to him. Why he waited for long days is not all forthcoming. Further his conduct is doubtful, as he claims that he called his son-in-law from the mobile of one Malleshappa and the Investigating Officer did not attempt to collect the mobile call details of said Malleshappa. Further, he is the father of PW-10. PW-10 earlier deposed regarding he hearing low voice conversation between accused Nos.1 and 4 and both PW-10 and PW-13, son and father did not bother to take any initiation in this regard which disclose that their evidence is unnatural and cannot be trusted.
30. The other last seen witness, PW-12 has turned hostile.
31. PW-17 is the photographer who claims that he accompanied the Investigating Officer and others during the recovery and snapped the photographs regarding recovery of the articles. He claims in his cross-examination that he has taken these photographs from digital camera 28 wherein the date and time is available but none of these photographs disclose the date and time of taking these photographs. Further photographs were marked subject to objection regarding production of negative or memory card. But the same is not produced by the investigating agency and as such no much importance can be given to the evidence of this witness also.
32. The prosecution is further placed reliance on call details marked at Exs.P-47 and P-57. PW-21 is the Dy.S.P. who has acted as a Nodal Officer. According to him, the call details were sought in respect of ten mobile numbers and he has furnished them as per Ex.P-47. He claims that on 03.11.2011 the said information was provided and prior to 03.11.2011 the said information was transferred to Kalaghatagi police station but he pleads ignorance whether Ex.P-47 contains all the call details of all mobiles and this discloses his reckless attitude.
33. Apart from that, the evidence of PW-24, who is a Nodal Officer of Bharati Airtel Ltd. discloses that the call details were furnished on 21.11.2011 as per the request of 29 Kalaghatagi police dated 19.11.2011. But the evidence of PW-21 discloses that they were produced on 03.11.2011 itself i.e., prior to the demand. Hence, the evidence regarding call details is not trustworthy.
34. Apart from that, the mobile number is not standing in the name of the deceased and the Investigating Officer did not bother to ascertain the person in whose name it is standing. Further the call details pertaining to accused No.4 disclose that it is not standing in the name of accused but no attempt has been made by the Investigating Officer in this regard to ascertain in whose name it was standing and no statement of the said witness was recorded. Further, Ex.P-57 is another call details which does not bear the signature of the authority but Ex.P-47 bears the signature and no explanation is offered in this regard. The other material lapses in this regard is that in call details, the location is not disclosed and the Nodal Officer, who collected the call details did not give explanation as to why the location is not disclosed. The location of call details can be easily made available to trace 30 the tower and this material link was found missing in the instant case.
35. The prosecution has placed reliance on DNA test report to prove the identity of the deceased. However, it is to be noted here that dead body was found in skeletonized position. The evidence of PW-23 discloses that cause of death cannot be determined in view of skeletisation of the body. Even the evidence of PW-15, a forensic expert discloses that he cannot give any clear opinion regarding the cause of death as there are no antemortem injuries on the bone and he further deposed that if doctor conducting the postmortem had sent skull bones, he could have ascertained the factor. According to the prosecution, the skull bones were available and it is the specific case of the prosecution that skull was smashed and bones were available but they were not sent for chemical examination.
36. The DNA report is marked as per Ex.P-87 and as per the said report, the femur bone of the deceased is off spring of Ramappa and Sangavva, the parents of the deceased. According to the Scientific Officer's report, he 31 has received one sealed with EDTA coated vacutainer said to contain blood sample. But the doctor who has collected the blood sample has stated that he did not collect the blood by using EDTA chemical and according to him, he has collected the blood by using the Sodium Citrate. Hence, these two circumstances are also inconsistent which create more suspicion over the genuineness of the case of the prosecution.
37. When the prosecution is resting the case on circumstantial evidence, all the chain circumstances should be complete and there should not be gap left in the chain of evidence and proved circumstance must be consistent with the allegations of the prosecution regarding the guilt of the accused and they should be inconsistent with the innocence of the accused.
38. The Hon'ble Apex Court has already laid down that the suspicion, however, strong cannot substitute for proof and burden lies on the prosecution to substantiate its contention. Further the evidence also discloses that there are number of forest check posts and if the vehicle of the 32 deceased was moved in the said area from Dharwad District to Karwar, there should have been some entries in the forest check. But relevant documents from the forest department were not collected which is admitted by the Investigating Officer. In forest check post, movement of every vehicle will be recorded in the register which is also a material link missing in the case of the prosecution.
39. Learned counsel for appellant has placed reliance on a decision in the case of Harpal Singh @ Chhota Vs. State of Punjab reported in (2017) 1 SCC
734. But the facts and circumstances of the case are entirely different. In the said case, recovery of currency notes, iron rods, vehicle was beyond any suspicion. But in the instant case, the evidence discloses that recovery itself is in doubtful and it is surrounded with suspicious circumstances and as such, the said principles do not come to the aid of the prosecution or the complainant in any way.
He has placed reliance on the decision in the case of Sonu @ Amar Vs. State of Haryana reported in (2017) 8 SCC 570. But again as observed above, the facts and 33 circumstances are entirely different and in the said case, the disclosure statements of accused have lead to recovery of dead body from a premise of temple. But here in the instant case, the identity of the deceased itself is under doubtful. Further, in the said case, CDRs of mobile clearly disclose interaction of the accused and deceased and hence, the principles enunciated in the above cited case cannot be made applicable to the facts circumstance of the case in hand.
Learned counsel for the appellant further placed reliance on the decision in the case of Yogesh Singh Vs. Mahabeer Singh and others reported in (2017) 11 SCC
195. In the said case also the recovery was established but in the instant case, recovery itself is doubtful. Hence, the said principles do not have any assistance to the prosecution in any way. He has placed reliance on the decision in the case of Dilip Mallick Vs. State of West Bengal reported in (2017) 12 SCC 727 but in the said case, PWs-3, 4 & 5 have consistent regarding last seen theory which is supported by recovery at the instance of 34 the accused which is proved beyond all reasonable doubt but in the instant case, recovery itself is not proved beyond all reasonable doubt. The last seen theory as put forward by the prosecution is not at all trustworthy and in the cross-examination, the defence counsel has exposed the same. Hence, the said principles do not assist the prosecution in any way.
40. Learned counsel for appellant further placed reliance on the decision in the case of Surendra Singh & another Vs. State of Uttarakhand reported in AIR 2019 SC 99 and invited the attention of the Court to paragraphs 34 to 50. But in the said case, the motive was proved along with last seen theory. Further, the recovery of clothes containing bloodstains, identification of the stolen articles along with the discovery of weapons was established but none of these principles are applicable to the case in hand and as such the principles enunciated in the said decision will not assist the prosecution in any way.
41. Learned counsel for appellant has further relied on the decision in the case of Sandeep Vs. State of Uttar 35 Pradesh reported in (2012) 6 SCC 107 but the facts in the said case are entirely different as in the said case, there was no FIR regarding theft of car which was put forward as a defence and the defence taken by the accused that he was not present at the time of occurrence of incident and indirectly put forward the plea of alibi which he has failed to establish. The Hon'ble Apex Court has also held that when the accused has failed to prove the plea of alibi, the presumption is required to drawn against him under Section 106 of the Indian Evidence Act. As such, the principles enunciated in the said decision will not come to the aid of the defence in any way.
42. Learned counsel for appellant lastly placed reliance on the decision in the case of A.N. Venkatesh & another vs. State of Karnataka reported in 2005 (7) SCC 714. It was a case for kidnapping for ransom, committing the murder and dead body was identified and found at the instance of the accused and recovery was clearly established. But in the instant case the said material aspect itself are not established and identity of the 36 deceased itself is under dispute. Under such circumstance, the principles enunciated in the above said decision will not come to the aid of the prosecution in any way.
43. Learned counsel for respondent/accused has placed reliance on decision in the case of Mohd. Younus Ali tarfdar Vs. State of West Bengal reported in 2020 (3) SCC 747 wherein the Hon'ble Apex Court has held that when the circumstance relied upon by the prosecution to prove the guilt of the accused are not complete and not leading to conclusion with all human probability of murder must have been committed by the accused, the conviction cannot follow. On this point only he has further relied on a decision in the case of Anwar Ali and another vs. State of Himachal Pradesh reported in AIR 2020 SC 4519. The principles enunciated in the above referred citations are applicable to the facts and circumstances of the case in hand.
44. He has also relied on a decision in the case of Digamber Vaishnav and another Vs. State of Chhattisgarh reported in 2019 AIAR (Criminal) 463 37 wherein the larger Bench of the Hon'ble Apex Court has dealt with the fundamental principles of criminal jurisprudence in the said decision. The Hon'ble Apex Court has observed as under:
A. Fundamental principles of criminal jurisprudence--One such principle is undeniably that the burden of proof squarely rests on the prosecution and that the general burden never shifts--There can be no conviction on the basis of surmises and conjectures or suspicion howsoever grave it may be--Strong suspicion, strong coincidences and grave doubt cannot take the place of legal proof--The onus of the prosecution cannot be discharged by referring to very cused nor falsity of defence could take the place of proof which the prosecution has to establish in order to succeed--Though a false plea by the defence at best, be considered as an additional circumstance, if other circumstances unfailingly point to the guilt.
B. Circumstantial evidence--Sustaining conviction on --The Court must satisfy itself that various circumstances in the chain of evidence should be established clearly and that the completed chain must be such as to rule out a reasonable likelihood of the innocence of the 38 accused--In order to sustain the conviction on the basis of circumstantial evidence, the following three conditions must be satisfied--
(i) the circumstances from which an inference of guilt is sought to be drawn must be cogently and firmly established;
(ii) those circumstances should be of a definite tendency unerringly pointing towards the guilt of the accused;
(iii) the circumstances taken cumulatively should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else, and it should also be incapable of explanation on any other hypothesis than that of the guilt of the accused
--It is also well settled principle that in criminal cases, if two views are possible on evidence adduced in the case, one binding to the guilt of the accused and the other is to his innocence--The view which is favourable to the accused should be adopted--This principle has a special relevance in cases wherein the guilt of the accused is sought to be established by circumstantial evidence.
39
45. The said principles are directly applicable to the case in hand as in the instant case the circumstances relied by the prosecution will not draw a conclusive inference against the accused and they does not unerringly pointed out finger towards the accused. Further the chain of links is not established and the burden which is on the prosecution, never shifted on accused.
46. The learned counsel for respondent has further placed reliance on a decision in the case of Anjan Kumar Sarma and others Vs. State of Assam reported in AIR 2017 SC 2617 wherein the Hon'ble Apex Court has held that the circumstance of last seen together cannot by itself form basis of holding accused guilty of offence. It is further observed that in the absence of proof of other circumstances, only circumstance of last seen and absence of explanation by the accused cannot be made basis for conviction. In the instant case also evidence of last seen theory is not at all trustworthy considering the conduct of the witnesses. Apart from that, the recovery in the instant case is also doubtful and under these circumstances, the 40 principles enunciated in the above cited decisions are directly applicable to the facts and circumstance of the case in hand.
47. The learned counsel for respondent has further placed reliance on a decision in the case of Vijay Kumar Vs. State of Rajasthan reported in 2014 AIAR (Criminal) 223 wherein the Hon'ble Apex Court has observed that the circumstances from which the conclusion of guilt is drawn should be fully proved and such circumstances must be conclusive in nature. It is further observed that all the circumstances should be complete and there should be no gap left in the chain of evidence. The Hon'ble Apex Court further observed that the proved circumstance must be consistence only with the hypothesis of the guilt of the accused and totally inconsistent with his innocence. The said principles are directly applicable to the case in hand as in the instant case, the circumstance does not establish the chain of links as the recovery is doubtful and evidence of witnesses posed as last seen are not trustworthy witnesses. Their initial silence and preferring 41 witness from a long distance ignoring the local witness for recovery also fatal to the case of the prosecution without there being any explanation. Hence, the chain of circumstance is not completed in the instant case and as such, the above principles are directly applicable to the case in hand. In support of his contention the learned counsel for respondent has also relied on a decision in the case of Roopsena Khatun Vs. State of West Bengal reported in 2011 Crl. L.J. 3597. Hence on considering these aspects, it is evident that the prosecution has failed to substantiate the contention regarding continuation of the chain of circumstances so as to point out the guilt of the accused.
48. Apart from that, the trial Court considering the weak nature of the evidence after elaborately discussing the evidence of the prosecution, has given the benefit of doubt by acquitting them. Under such circumstance, the innocence of the accused is more strengthened by the order of the trial Court and under such circumstance, the powers of the Appellate Court in interfering with the finding of the 42 trial Court becomes limited as observed by the Hon'ble Apex Court in case of Mahaveer Singh Vs. State of Madya Pradesh reported in AIR 2016 SC 5231. The Hon'ble Apex Court in the above reported case has dealt with the powers of the Appellate Court interfering with the finding of the trial Court and further observed that when two conclusions are possible based on evidence available on record, the High Court/Appellate Court is not permitted to interfere with the findings of the trial Court. It is further held that innocence of the accused is reestablished by the judgment of acquittal and the powers of interfering with the order of the acquittal should be exercised cautiously by the Court as observed in the case of State of Kerala Vs. C.P. Rao reported in AIR 2012 SC 2879. It is also cardinal principles of law that when two views are possible and one view point out innocence of the accused, the view favourable to the accused shall prevail. This is again fortified by the decision of the Hon'ble Apex Court in the case of M. R. Purushotham v. State of Karnataka reported in 2015 SC (Criminal) 139 and in the case of Muralidhar @ Gidda and another vs. State of 43 Karnataka reported in AIR 2014 SC 2200. The Hon'ble Apex Court in all the situations clearly discussed the powers of the Appellate Court while interfering with the judgment of acquittal and it is held that such power should be exercised cautiously and the view taken by the trail Court which is possible in view of the evidence on record shall not be disturbed normally. The said principles are directly applicable to the facts and circumstances of the case in hand. In the instant case, the entire case of the prosecution is based on the circumstantial evidence and prosecution is required to prove the chain of the links without giving any gap so as to break the link. But in the instant case, at the fist instance, the motive itself is not established, which is foundation in the circumstantial cases. Further recovery as alleged by the prosecution is also doubtful and not trustworthy and as regards last seen theory, the evidence of the witness is unreliable. The trial Court has appreciated all these facts and circumstances and has arrived at a just decision of acquitting the accused/respondents of the charges leveled against them. Under these circumstances, no grounds are forthcoming so as to interfere with the 44 judgment of acquittal passed by the trial Court. Hence, question of interference with the said judgment of the trial Court does not arise at all. The trial Court has neither committed an error nor the judgment suffers from any perversity, infirmity or arbitrariness so as to call for any interference by this Court. Under these circumstances, the point under consideration is answered in the negative and accordingly, we proceed to pass the following:
ORDER Both the appeals in Crl.A.No.100016/2016 and Crl.A.No.100086/2016 are dismissed by confirming the judgment of acquittal passed in S.C.No.20/2012 dated 20.11.2015 passed by the II Additional District and Sessions Judge & Special Judge, Dharwad.
Sd/-
JUDGE Sd/-
JUDGE Naa