Karnataka High Court
State Of Karnataka vs Shattappa Alias Sathyappa on 30 November, 2020
Bench: B.Veerappa, K.Natarajan
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 30TH DAY OF NOVEMBER, 2020
PRESENT
THE HON'BLE MR. JUSTICE B. VEERAPPA
AND
THE HON'BLE MR. JUSTICE K. NATARAJAN
CRIMINAL APPEAL NO.982 OF 2015
BETWEEN:
STATE OF KARNATAKA
REPRESENTED BY C.P.I.
OF BYNDOOR CIRCLE - 576 214.
... APPELLANT
(BY SRI VIJAYAKUMAR MAJAGE, ADDL. SPP.)
AND:
SHATTAPPA ALIAS SATHYAPPA
BOVI VADDAR,
AGED ABOUT 47 YEARS,
S/O. LATE HANUMANTHAPPA,
RED STONE QUARRY MISSION OPERATOR,
RESIDING NEAR MARUTI TEMPLE,
GANESH NAGAR, SHIRASI,
N.K. DISTRICT - 581 401.
... RESPONDENT
(BY SRI N.R. KRISHNAPPA, ADV.)
***
THIS CRIMINAL APPEAL IS FILED UNDER SECTIONS
378(1) AND (3) OF THE CODE OF CRIMINAL PROCEDURE,
PRAYING TO GRANT LEAVE TO APPEAL AGAINST THE
JUDGMENT AND ORDER OF ACQUITTAL DATED 30.03.2015
PASSED BY THE ADDITIONAL DISTRICT AND SESSIONS JUDGE,
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UDUPI (SITTING AT KUNDAPURA), KUNDAPURA, IN
S.C.No.9/2013, ACQUITTING THE RESPONDENT-ACCUSED No.1
FOR THE OFFENCES PUNISHABLE UNDER SECTIONS 302, 397
AND 201 READ WITH SECTION 34 OF THE INDIAN PENAL CODE
AND ETC.
THIS CRIMINAL APPEAL HAVING BEEN HEARD AND
RESERVED FOR JUDGMENT ON 18.11.2020 AND COMING ON
PRONOUNCEMENT THIS DAY, NATARAJAN, J., DELIVERED
THE FOLLOWING:
JUDGMENT
The State has preferred this appeal against the impugned judgment and the order of acquittal dated 30.03.2015 made in S.C.No.9/2013 on the file of the Additional District and Sessions Judge, Udupi (sitting at Kundapura) (hereinafter referred to as 'Trial Court') acquitting accused No.1 for the offences punishable under Sections 302, 397, 201 read with Section 34 of Indian Penal Code (for short 'IPC').
2. The case of the prosecution is that the Circle Inspector of Police, Byndoor Circle has filed charge- sheet against accused No.1- Shattappa alias Sathyappa Bovi Vaddar and absconding accused No.2-Ramesh 3 Naika for the aforesaid offences alleging that accused No.1 earlier working as machine operator owned by the deceased-Ramakrishna Ganiga with an intention to commit murder of the deceased has falsely assured the deceased on 11.07.2009 that some stone quarry labours were available at Mundagodu Taluk and he can make arrangement for the labours to work in the stone quarry owned by the deceased. The deceased believing his words carried a cash of Rs.15,000/- for the purpose of making arrangements for the stone quarry labours. Accused No.2 also joined them at Ugginakere of Mundagodu Taluk. On 13.07.2009, at about 10.30 p.m., when the deceased picked up quarrel with the accused persons stating that they have wasted money and they are not able to find the labours, at that time in furtherance of their common intention to rob the cash, the accused persons committed murder of the deceased and robbed cash of Rs.9,400/- and also two golden rings. In order to destroy the evidence, the dead body 4 was buried in a manure pit near the house of PW.5- Hulagappa and thereafter, both of them fled away from the spot. Subsequently, the son of the deceased PW.1- Annappa Ganiga lodged a missing complaint as per Ex.P.1 on 16.07.2009 before Byndoor Police stating that his father left the house on 11.07.2009 along with accused No.1 with an amount of Rs.15,000/-. But did not return and requested to trace his father. Therefore, the Police arrested accused No.1 and recorded voluntary statement and the accused revealed and confessed the crime that he had committed the murder of the deceased and after robbing of the cash, gold rings and buried the dead body. Then the Investigating Officer after securing the panchas in presence of Assistant Commissioner, the body was exhumed and post mortem was conducted and identified the body of the deceased by the relatives and thereafter, filed the charge-sheet against accused No.1 and shown accused No.2 as absconding. Learned JMFC after taking cognizance 5 committed the case to the Court of Sessions. Later, the Trial Court framed charges against the accused for the aforesaid offences. The accused pleaded not guilty and claimed to be tried.
3. In order to prove the case of the prosecution, the prosecution in all examined 24 witnesses as per PW.1 to PW.24, marked 34 documents as per Ex.P.1 to Ex.P.34 and marked 12 Material Objects as per M.O.1 to M.O.12. After completion of the prosecution evidence, the statement of the accused under Section 313 of Cr.P.C., has been recorded. The case of the accused was one of the total denial, but not entered into any defence.
4. After hearing the arguments, the learned Trial Court held that the prosecution has failed to prove the circumstances and the guilt of the accused. By extending the benefit of doubt, acquitted the accused by the impugned judgment dated 30.03.2015. Being 6 aggrieved by the same, the State has preferred this appeal.
5. We have heard the learned counsel for the parties.
6. Sri Vijayakumar Majage, learned Additional SPP has strenuously contended that the judgment of the Trial Court acquitting the accused is not sustainable under the law. The Trial Court ignored the evidence of the prosecution witnesses who have supported the case of prosecution. The circumstances relied by the prosecution regarding last seen theory, recovery of dead body by exhumation, recovery of gold rings belong to the deceased have been proved by examination of the witnesses i.e., PWs.3, 8, 20, 21. The prosecution is also successful in proving that the deceased was met with homicidal death by examining the doctor who conducted autopsy and given opinion that the death was occurred due to the head injury which was totally 7 ignored by the Trial Court which is against the evidence on record. He further contended that the last seen theory has been proved by examining PWs.3, 8 and 21. The identification of the deceased was not disputed by the accused which was proved by examining PWs.1, 3 and 23-Doctor who conducted surgery on the hand of the deceased. The key found in the shirt pocket of the deceased and wrist watch in the hand of the deceased has been identified by the family of the deceased which clearly establishes that the body belongs to Ramakrishna Ganiga. But the Trial Court came to the wrong conclusion that the dead body of the deceased was not established.
7. Learned SPP further contended that the body was exhumed on the voluntary statement made by the accused. Accused along with the Police as well the Assistant Commissioner and the witnesses shown the spot and with the help of PW.9-Anwar Khan Kasim 8 Khan, the body was exhumed. Once the prosecution discharged its duty and burden that the deceased was found in the company of the accused and subsequently, the dead body of the deceased recovered at the instance of the accused, thereby, the chain link has been established by the prosecution. Then the accused is required to discharge his burden by leading rebuttal evidence and he has to explain as to what happened to the deceased and further he should explain that the body which was exhumed at his instance belongs to the deceased was not forthcoming. Therefore, the Trial Court ought to have convicted the accused for committing murder of the deceased but wrongly held that the accused was not guilty which is against the evidence on record. The entire explanation proceedings have been recorded through videographing with the help of videographer and M.O.8-C.D which clearly shows that the body of the deceased was exhumed. The gold ring of the deceased has been recovered from the house 9 of PW.11-Smt. Madevi which clearly connects the accused with the crime. Therefore, prayed for allowing the appeal and to reverse the judgment of acquittal and prayed to convict the accused.
8. Per contra, Sri N.R. Krishnappa, learned counsel appearing for the respondent-accused has supported the judgment of acquittal passed by the Trial Court and contended that the prosecution in all relied ten circumstances. But none of the circumstances were proved against the accused beyond reasonable doubt. There was in-consistency in the evidence of the witnesses. The watch found on the wrist of the dead body appears to be new one and it is in working condition which is not acceptable. PW.18-Dr.G.B.Laxmi Devi who conducted post mortem examination on the dead body given opinion as to the cause of death and FSL report is also not reliable. The evidence of PW.18 shows that there was lack of infrastructure in the 10 hospital, hence, the bones and skull were taken to the FSL, K.M.C. The son and wife of the deceased have stated that they cannot identify the deceased. PW.5-Hulagappa turned hostile. The deceased was seen by PW.21-Dinesh Kumar alone prior to the recovery of the dead body. PW.3-Laxmi/wife of the deceased was not at all seen the accused in the company of the deceased. Therefore, their evidence cannot be relied upon. PW.1- Annappa Ganiga lodged the complaint and FIR was registered against unknown person and absolutely, there is no evidence placed on record by the prosecution in order to show that the accused was the ex-employee of the deceased. The Investigating Officer did not visit the stone quarry to confirm whether the accused worked with the deceased. In the absence of the evidence, question of presuming that the accused was the employee of the deceased is not acceptable. After 13.07.2009, the deceased might have gone some where and somebody might have done something, but, 11 the prosecution suppresses the material fact. Even then the recovery of gold ring was not established as PW.11-Madevi who is the wife of accused No.2 turned hostile and she has stated that she has not given any ring to the Police. Therefore, the link of chain regarding recovery of ring has been broken. The prosecution story is based upon the voluntary statement of the accused which is not permissible. The Trial Court after considering all the circumstance has rightly recorded a finding that the prosecution has failed to prove the guilt of the accused and acquitted the accused. There is no perversity in the finding in order to interfere by this Court and to reverse the judgment. Hence, prayed for dismissing the appeal.
9. Upon hearing the rival contentions made by the parties, the points that arise for our consideration are:
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(i) Whether the prosecution proves beyond reasonable doubt that the accused No.1 along accused No.2 committed murder of the deceased-Ramakrishna Ganiga and robbed the cash as well as gold rings and buried the dead body near the house of PW.5 and caused disappearance of the evidence, thereby committed offence punishable under Sections 302, 397 and 201 read with Section 34 of IPC?
(ii) Whether the judgment of acquittal is against the evidence on record and perverse which is liable to be interfered by this Court?
10. Upon hearing the rival contention of the learned counsel and in order to re-appreciate the evidence on record, it is necessary to have a cursory look into the evidence adduced by the prosecution before the Trial Court which is as under: 13
(i) PW.1-Annappa is the complainant and son of the deceased has deposed before the Court in accordance with the complaint lodged by him before the Police. He speaks about missing of his father, lodging of missing complaint, suspecting the accused and his accompany with the Police along with Assistant Commissioner for exhumation of the dead body. He has identified the dead body as his father and narrated the motive aspect and purpose for which the accused accompanied his father. He has supported the case of the prosecution.
(ii) PW.2-Ananda Ganiga speaks about the accused who worked under the deceased. The accused went along with the deceased for procuring labours for quarry. He also speaks about the exhumation of the body of the deceased and identified the body, recovery of the articles from the shirt and wrist watch and also 14 identified the photographs. He also supported the case of the prosecution.
(iii) PW.3-Lakshmi is the wife of the deceased has deposed that her husband went along with the accused for the purpose of procuring labours from Shirsi by taking money from the house. Later, spoke about missing of her husband, lodging of the complaint, then identifying the deceased and gold rings of the deceased. She also supported the case of the prosecution.
(iv) PW.4-Manjunath Ganiga is the son of the deceased. He came to know about missing of his father and exhumation of the body and identified the body of his father after exhumation. He has also supported the case of the prosecution.
(v) PW.5-Hulagappa-Though he has treated hostile for the purpose of last seen theory near his 15 house, the accused and the deceased were seen prior to the incident but this witness says only about exhumation of the body near his house and he was not aware as he was not in the station. Except the exhumation of the body near his house he has not admitted remaining fact of last seen theory. However, exhumation of the body in the manure pit near the house of PW.5 which was buried and recovered by the Police at the instance of the accused were not in dispute.
(vi) PW.6-Yallappa is inquest pancha to the exhumation of body who turned hostile and not supported the case of the prosecution.
(vii) PW.7-Pushparaj Shetty speaks about the exhumation of body at the spot shown by the accused.
He also speaks about the motive of taking the deceased by the accused and he supported the case of the prosecution.
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(viii) PW.8-Hanumanthappa is the elder brother of the accused deposed that he knew the deceased. He deposed that both the accused and the deceased came to his house in search of labours and they both stayed in his house on that night. The deceased did not have food in his house, however, the accused had food in his house. Next day morning, they went towards Mundagodu in search of labours. Thereafter, he came to know about the death of the deceased. He supported the case of the prosecution.
(ix) PW.9-Anwar Khan Kasim Khan helped the Police team for exhumation of the dead body of the deceased and he has spoken about the exhumation of the dead body which was already decomposed and identified the material objects. He also supported the case of the prosecution.
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(x) PW.10-Rajasab also speaks about the exhumation of the dead body near the house of PW.5- Hulagappa. He has spoken about the exhumation of the dead body by denying the last seen theory that the deceased and the accused came in search of labours. He has partly supported the case of the prosecution.
(xi) PW.11-Smt. Madevi is the wife of the absconding accused No.2 from whom M.O.3-gold ring was seized by the Police but, she has tuned hostile. According to her evidence, she has not received any gold ring from accused No.1.
(xii) PW.12-Annayya is the brother-in-law and elder brother of PW.3-Laxmi. He is the panch witness who speaks that the Police came to the house of the deceased and opened the drawer of the deceased by using the key which was recovered by the Police from the shirt pocket of the deceased while exhumation of the body. He has supported the case of the prosecution. 18
(xiii) PW.13-A.V.Naik is the village accountant who gave the RTC stating that the land where the dead body was buried belongs to the Forest Department. He has also supported the case of the prosecution.
(xiv) PW.14-Dr.Vinod C. Nayak who conducted autopsy of the skeleton, mandible bone, the maxilla, femur bones and given opinion that the skeletal belongs to an individual of age more than 45 to 50 years and according to his opinion, the death was due to injury caused to the head, due to blunt force trauma and he has issued report as per Ex.P.21. He has identified the bones as per M.O.9.
(xv) PW.15-Narayana is the Head Constable who received the missing complaint from PW.1 on 16.07.2009 and registered the case in Crime No.168/2009 as per Ex.P.4. Further he received a 19 complaint from Circle Inspector of Police and registered the FIR as per Ex.P.24.
(xvi) PW.16-Ramdas retired Assistant Sub- Inspector attached to the Byndoor Police Station was deputed for apprehending the accused. He along with PC - 2078 apprehended accused No.1 on 01.10.2009 and produced before the Investigating Officer.
(xvii) PW.17-Ashoka is the inquest panch witness while exhuming the dead body of the deceased. He has given evidence about exhumation of the dead body at the instance of the accused with the help of PW.9- Anwar Khan Kasim Khan and in the presence of Tahsildar and the Assistant Commissioner. He had identified the inquest mahazar as per Ex.P.15 and also identified the watch found in the wrist of the deceased as M.O.1 and key found in the shirt of the deceased as M.O.2 and shirt of the deceased as M.O.4. He supported the case of the prosecution.
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(xviii) PW.18 - Dr. G.B. Laxmi Devi who conducted autopsy on the dead body of the deceased on 02.10.2009 on the spot where the body was exhumed. According to her evidence, the body was totally decomposed and external injuries and fracture could not be made out due to skeletonisation of the body and skull is fully skeletonised with detachment of cervical bones and on skull structure, front is discontinuity on right side both upper jaw and lower jaw and cause of death at that time could not be furnished because of skeletonisation of the body. She has issued a report as per Ex.P.26. The Photographs also marked as per Exs.P.2, 5, 6 and 7, the skull is marked as per M.O.10 and other four bones are marked as per M.O.9. After receipt of the FSL report from KMC Hospital as per Ex.P.21, she has given opinion that the death is due to hemorrhage and shock as a result of injury to front of skull, brain and major vessels of skull. In the cross- 21 examination, she has stated that the death was unnatural, because of the discontinuity of the skull bone. She has supported the case of the prosecution.
(xix) PW.19-N.C.Nagegowda is the Police Inspector in Byndoor Police station has stated that when he was working as in-charge Police Sub-Inspector in the Byndoor Police station, he took up the case from Assistant Sub-Inspector on 05.08.2009 and appointed the staff for searching Ramakrishna Ganiga-deceased. On 12.08.2009, he has recorded the statement of the wife of the deceased and then, he handed over the case to Sri Yogeesh Kumar, Police Sub-Inspector for further investigation.
(xx) PW.20-Jagadeesh, Assistant Commissioner, Shirsi Sub Division has deposed that on 02.10.2009 at the request of the Circle Inspector of Police-Sri Kanthraj he exhumed the body of the deceased on the spot shown by the accused and at the time of exhumation of 22 the body, he has taken three witnesses as panchas. The body was exhumed with the help of PW.9-Anwar Khan Kasim Khan and the body was in decomposed stage. The photo was taken on the skeleton body. Panchanama was prepared during 1.00 p.m., to 2.30 p.m. He has prepared inquest pancha as per Ex.P.11 and recovered the wrist watch as per M.O.1. He has also stated that the son of the deceased and another person has identified that the said body belongs to the deceased. Photographs were also taken which was marked as per Exs.P.2, 5, 6 and 7. He supported the case of the prosecution.
(xxi) PW.21-Dinesh Kumar has stated that on 11.07.2009, he has seen the accused with the company of the deceased. He spoke to the deceased and the deceased said that he and the accused were going to Shirsi for procuring labours. Thereby, he was summoned to the Police Station. The accused gave 23 statement and participated in the exhumation proceedings and identified the dead body. Further, he says that the accused also taken to the house of PW.11 and seized M.O.3-gold ring under the panchanama as per Ex.P.19 which belongs to the deceased and he also says that the entire exhumation proceedings has been videographed by the Police as per M.O.8-C.D. He supported the case of prosecution.
(xxii) PW.22-Devaraj, Photographer also deposed that he has taken photographs as well as videographed the exhumation of the dead body of the deceased. He supported the case of prosecution.
(xxiii) PW.23-Dr. Shivakumar has given evidence that on 27.06.2000, he treated the deceased- Ramakrishna Ganiga, conducted surgery and fixed implant nail due to the fracture of Ulna and issued the certificate as per Ex.P.25 about conducting the surgery of the deceased and subsequently, he has produced the 24 inpatient admission records of the deceased. This witness has been examined in order to prove the identity of the deceased.
(xxiv) PW.24-Kanthraju K.R., Investigating Officer investigated the case and filed the charge-sheet.
11. On careful perusal of the evidence of the prosecution witnesses and on perusal of the documents which reveals the entire case of prosecution rest upon the circumstantial evidence.
12. The Hon'ble Supreme Court in respect of circumstantial evidence relied by the prosecution which required to prove the guilt of the accused beyond reasonable doubt without any hypothesis. In the case of Anjan Kumar Sarma and Others vs. State of Assam reported in (2017) 14 SCC 359 at paragraph 14 which reads as under:
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"14. Admittedly, this is a case of circumstantial evidence. Factors to be taken into account in adjudication of cases of circumstantial evidence laid down by this Court are:
(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established. The circumstances concerned "must" or "should" and not "may be" established;
(2) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty;
(3) the circumstances should be of a
conclusive nature and tendency;
(4) they should exclude every possible
hypothesis except the one to be proved;
and (5) there must be a chain of evidence so complete as not to leave any reasonable 26 ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused."
13. We are also aware about the dictum of the Hon'ble Supreme Court in the case of Arulvelu and another vs. State reported in (2009) 10 SCC 206 that the accused is entitled for double presumption of innocence, once the Trial Court acquitted the accused, the Appellate Court shall not ordinarily reverse the finding of acquittal until it was perverse. The relevant paragraph Nos. 33 and 40 reads as under:
"33. In Chandrappa v. State of Karnataka this Court reiterated the legal position as under: (SCC p. 432, para 42) "(1) An appellate court has full power to review, reappreciate and reconsider the evidence upon 27 which the order of acquittal is founded.
(2) The Code of Criminal Procedure, 1973 puts no
limitation, restriction or condition on exercise of such power and an appellate court on the evidence before it may reach its own conclusion, both on questions of fact and of law.
(3) Various expressions, such as, 'substantial and compelling reasons', 'good and sufficient grounds', 'very strong circumstances', 'distorted conclusions', 'glaring mistakes', etc. are not intended to curtail extensive powers of an appellate court in an appeal against acquittal. Such phraseologies are more in the nature of 'flourishes of language' to emphasise the reluctance of an appellate court to 28 interfere with acquittal than to curtail the power of the court to review the evidence and to come to its own conclusion.
(4) An appellate court, however, must bear in mind that in case of acquittal, there is double presumption in favour of the accused. Firstly, the presumption of innocence is available to him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent court of law.
Secondly, the accused having secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the trial court.
(5) If two reasonable conclusions are possible on the basis of the evidence on record, the appellate 29 court should not disturb the finding of acquittal recorded by the trial court."
40. Unquestionably, the appellate court has power to review and reappreciate the entire evidence on record. The appellate court would be justified in reversing the judgment of acquittal only if there are substantial and compelling reasons and when the judgment of the trial court is found to be a perverse judgment. Interfering in a routine manner where other view is possible is contrary to the settled legal position crystallised by the aforementioned judgments of this Court. The accused is presumed to be innocent until proven guilty. The accused possessed this presumption when he was before the trial court. The trial court's acquittal bolsters the presumption that he is innocent. This fundamental principle must be kept in view while dealing with the judgments of acquittal passed by the trial court."30
14. Keeping in mind the principles laid down by the Hon'ble Supreme Court and coming to the case on hand, the prosecution has relied upon the following circumstances:
a) Missing of the deceased and lodging of complaint.
b) Last seen theory - the deceased found in the company of the accused.
c) Recovery of the dead body of the deceased, gold ring of the deceased at the instance of the accused.
d) Homicidal death of the deceased.
e) Identification of the deceased.
(a) Missing of the deceased and lodging of the complaint.
15. In order to prove the circumstances i.e., missing of the deceased and lodging of the complaint, PW.1-Annappa/complainant who is the son of the 31 deceased has stated that on 11.07.2009, his father Ramakrishna Ganiga went along with the accused in order to procure labours from Shirsi. His father also taken Rs.15,000/- with him by informing his mother PW.3-Laxmi that the deceased and the accused were going by train and has stated that he will return home on 13.07.2009. But, he did not return, hence, he has lodged the missing complaint on 16.07.2009. Even then, his father was not found. Later, Police arrested the accused and he has seen the accused in the Police Station. Then, he came to know about the murder of the deceased as the accused revealed that he has committed murder of his father and buried the dead body. To corroborate his evidence, he has identified the missing complaint lodged by him before the Police which is marked as Ex.P.1. The evidence of PW.15- Narayana, Head Constable who was also stated that PW.1 came to the Police Station and lodged the complaint on 16.07.2009 and the Police registered the 32 case in Crime No.168/2009 and issued FIR as per Ex.P.4. PW.3-wife of the deceased also stated that her husband went along with the accused for the purpose of procuring labours from Shirsi by taking an amount of Rs.15,000/- and later, he was missing and did not return back, therefore, they lodged the complaint. The evidence of PWs.1, 3 and 15 clearly goes to show that the deceased left the house on 11.07.2009 along with money together with the accused and thereafter, he did not return back for 4 to 5 days. Later on 16.07.2009, a missing complaint came to be lodged for tracing the deceased. Thereby, the prosecution is successful in proving the first circumstance of missing of the deceased and lodging of the complaint.
(b) Last seen theory - the deceased found in the company of the accused.
16. To prove this circumstance, PW.3-wife of the deceased has categorically stated in her evidence as well 33 the statement made before the Police where she has deposed about running of Stone quarry by her husband, accused taken her husband for procuring labours from Shirsi to work in their stone quarry. She has also stated that while leaving home, her husband-deceased took Rs.15,000/- from her. She has also stated that she know the accused as the accused was working in their stone quarry. She further stated that her husband borrowed an amount of Rs.10,000/- from one Anantha Kothari. Thereafter, her husband did not return back home and she lodged a complaint through her son. Later, she has also filed Habeas Corpus petition before the High Court for tracing her husband. The Police arrested the accused and later, she came to know that the accused has committed murder of her husband and buried the dead body. The evidence of PW.3 also corroborates with the evidence of PW.1-complainant who is the son of the deceased who lodged missing complaint to the Police. PW.1 also categorically stated 34 that the accused took his father for procuring labours. However, PW.1 came to know about the fact from his mother i.e., deceased went with the accused. PW.8- Hanumanthappa who is the elder brother of the accused also deposed that about 2 to 3 years prior to the date of his evidence, his brother/accused along with the deceased came to his house in search of labours and they both stayed in his house. PW.8 also said to the deceased that the labours may available at Mundagodu Taluk. On that night, the deceased did not have food in his house, but, the accused had food in his house. On the next day morning, both went towards Mundagodu Taluk in search of labours. He further says that the accused and the deceased requested him to accompany them, but, he was unable to accompany them for the reasons that he had some other work. After one month, he came to know about the murder of the deceased by looking to the newspaper and also stated that he came to know that his brother/accused 35 had committed the murder of the deceased. PW.21- Dinesh Kumar also deposed that on 11.07.2009, he has seen the accused with the company of the deceased that they were going to Shirsi for procuring labours. He also identified the accused before the Court. He has also stated that the accused was previously working in the stone quarry of the deceased. Thereafter, he came to know that the accused committed murder of the deceased and he has given statement to the Police. He also participated in the exhumation proceedings of the dead body of the deceased. The evidence of these three witnesses i.e, PWs.3, 8 and 21 clearly corroborates with each other that on 11.07.2009, the accused took the deceased along with him for the purpose of procuring labours from Shirsi to work in the quarry of the deceased. PW.8 who is the brother of the accused has categorically stated that he also advised that labours may available near Mundagodu and the accused and the deceased both stayed in his house. The evidence of 36 these witnesses i.e., PWs.3, 8 and 21 corroborates with each other that they have seen the accused with the company of the deceased. Though PW.5-Hulagappa also witnessed in whose house the accused and the deceased were stayed but, he has turned hostile and not supported the case of the prosecution. Therefore, even without the evidence of PW.5, evidence of PWs.3, 8 and 21 is trust worthy and reliable and nothing has been elicited by the counsel for the accused to disbelieve the evidence of these three witnesses and fact that the accused took the deceased along with him for procuring labours towards Shirsi. Thereby, the prosecution is successful in establishing the circumstance of last seen theory.
c) Recovery of the dead body of the deceased and gold ring of the deceased at the instance of the accused.
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17. Another circumstance relied upon by the prosecution is recovery of the dead body, gold ring of the deceased and other incriminating articles:-
i) Recovery of the dead body.
ii) Identification of the dead body by recovery of
key, watch and implant (nail) fixed to the Ulna joint of the bone of the deceased.
iii) Recovery of gold ring at the instance of the accused.
18. Out of the circumstance of recovery, the body of the deceased has been recovered at the instance of the accused based upon the voluntary statement of the accused. PW.24-Kanthraju, Police Inspector deposed that he took up the investigation and the accused has been produced by PW.16-Ramdas, retired Assistant Sub-Inspector before him and he has arrested the accused. The accused gave confession statement and he has stated that he will show the dead body of the 38 deceased as well as return the gold ring of the deceased. The voluntary statement has been recorded as per Ex.P.32. The voluntary statement or confession statement made before the Investigating Officer by accused persons is inadmissible except the recovery or disclosing statement under Section 27 of the Indian Evidence Act. PW.24-Kantharaju based upon the voluntary statement made by the accused summoned PW.21-Dinesh Kumar and one Pushparaj and recovered Rs.700/- from the accused in the panchanama as per Ex.P.18 and identified the cash as per M.O.5. Further on the basis of voluntary statement of the accused, he also secured the witnesses and the relatives of the deceased and the accused took them to the place where the dead body was buried. Early morning on 22.10.2009, the Police along with the panchas, videographer went in jeep. PW.20-Jagadeesh, Assistant Commissioner also requested to accompany them for the purpose of exhumation and also requested PW.18- 39 Doctor for conducting post-mortem examination. All together, they went to the place where the accused identified the place near the house of PW.5-Hulagappa and with the help of PW.9-Anwar Khan Kasim Khan, exhumed the body. It was in decomposed stage and the same was taken out and removed the skeletons of the body. They found the shirt and wrist watch in the hand of the skeleton and they prepared panchanama as per Ex.P.11. He has identified the said watch as per M.O.1.
19. The evidence of PW.24-Investigating Officer is corroborated with the evidence of PW.20-Jagadeesh, Assistant Commissioner of Shirsi Sub Division that at the request of the Investigating Officer, he along with the accused, panchas, Police team, photographer all went to the incident spot, where the accused shown the place where the body was buried. Then in his presence, the body was exhumed with the help of PW.9-Anwar Khan Kasim Khan and prepared the panchanama as 40 per Ex.P.11. The photographer took the photos and also videographed the exhumation proceedings. He has also stated that the watch was found on the wrist of the skeleton which was identified as per M.O.1. M.O.1 has been identified by PW.4-Manjunath Ganiga, son of the deceased. He further says by looking to the shirt, watch and a key which was found in the shirt pocket of the deceased, the son of the deceased identified the dead body was that of his father. The skeletal bones were collected for the purpose of post-mortem examination. He has also identified the photographs as per Exs.P.2, 5, 6 and 7. This witness also identified M.O.1 is 'Air Time Quartz' watch. The evidence of PWs.20 and 24 are corroborated by the evidence of PW.21-Dinesh Kumar, independent witness, who also acted as pancha to the exhumation proceedings. The panchana-Ex.P.11 also reveals that when body was exhumed, the watch was found in the hand portion of the skeleton. The CD- M.O.8 which was prepared at the time of exhumation 41 proceedings also reveals that when the body was exhumed, the watch was found in the wrist of the skeletal bone of the dead person.
20. The exhumation of the body was not disputed by the defence counsel and by the evidence of PW.20-Assistant Commissioner, Shirsi Sub Division. The evidence of PW.24-Investigating Officer also corroborates with the evidence of PW.1-son of the deceased. PW.21 is the independent witness who accompanied in the exhumation proceedings and PW.9- Anwar Khan Kasim Khan who dig and exhumed the body and taken out the watch from the wrist of the skeletal hand of the dead person which was revealed with the pancha as well as C.D. It is not the case, that the watch was planted by the Police in the hands of the dead person prior to the exhumation. Further, after the exhumation, the key was found in the shirt pocket of the dead person which was identified by PW.1 and 42 PW.4-another son of the deceased and they identified that the said key bunch belongs to the table drawer in their house. Subsequently, the Investigating Officer has submitted the skeleton bone to PW.18. PW.18-Dr. Laxmi Devi conducted autopsy on the body. She has stated that the body was identified however with the help of skull and other parts of the body. She has stated that the implant (nail) fixed to the Ulna joint of the bone of the deceased. PW.18 also identified the photographs as per Exs.P.2, 5, 6 and 7 and mandible bone, skull bone and other bones were marked as M.O.10. 4 bones were marked as M.O.9. PW.22-Devaraj, Photographer also supported the case of the prosecution in respect of accused shown the spot of exhumation of the body. He has taken photos and also he has signed on the pancha as per Ex.P.11 and videographed the entire exhumation proceedings and videographed the same and C.D., has been marked as M.O.8. He has also stated that the relative of the deceased has identified the body on the 43 basis of the wrist watch, implant (nail) fixed to the Ulna joint of the bone and key found in the shirt pocket. Nothing has been elicited to disbelieve the evidence of these witnesses to show that the dead body was not recovered or exhumed at the instance of the accused.
21. On perusal of the evidence of PWs.1, 4, 18, 20, 21, 22 and 24, the prosecution is successful in proving the exhumation of the body from the spot where the accused shown the spot. The body of the deceased has been identified by PWs.1 and 4-Both the sons of the deceased by identifying the watch, the key which was seized from the shirt pocket as per M.O.2 and nail fixed to the bone as per M.O.9(a). It is pertinent to note in order to further confirm that the dead body belongs to Ramakrishna Ganiga, the prosecution also examined PW.23-Dr. Shivakumar of Government Hospital, Kundapura who has given evidence that he has given treatment to Ramakrishna Ganiga. Ramakrishna 44 Ganiga came to the hospital due to the fracture of left hand. He has conducted surgery on 27.06.2000 and fixed the implant (nail) to the Ulna joint of the bone and the said person was discharged on 05.07.2000 and he also brought the medical documents of Ramakrishna Ganiga which was marked as per Ex.P.28 and hospital records as per Ex.P.29. He also seen M.O.9(a)-nail on the implant. Though, this witness is unable to say the same nail is fixed on Ramakrishna Ganiga but there is no specification on the nail. However, the said surgery has been done by him in the year 2000 at the undisputed time and incident of exhumation of body conducted in the year 2009 i.e., almost 9 years from the surgery. This witness has no personal interest to depose against the accused. The evidence of this witness is only for the purpose of identifying the said nail which has been fixed in the hands of Ramakrishna Ganiga and the said nail implant was found in the body. Apart from the evidence of blood relatives of the 45 deceased identifying the watch, this witness also strengthens the story of the prosecution that he has identified the body is that of Ramakrishna Ganiga by which having implant in his hand.
22. Apart from that, the prosecution has also established that the Investigating Officer went to the house of the deceased and tested the key which was matching with the drawer lock in the house of the deceased. This was spoken by PW.21 and the Investigating Officer further confirms the key which was found in the shirt pocket of the deceased was matching with the drawer lock kept in the house of the deceased. Thereby, the prosecution is successful in proving that the skeleton body is that of the deceased-Ramakrishna Ganiga. There is nothing to disbelieve in identifying the body of the deceased is that of Ramakrishna Ganiga. If at, all the arguments of the counsel for the accused is acceptable if the body does not belongs to Ramakrishna 46 Ganiga, then the accused is required to explain as to whose body it belongs to which was exhumed at his instance. It is not the case that the body belongs to somebody and it was buried in burial ground where other bodies also found, but it is lonely place near the house of PW.5 which was exhumed at the instance of the accused on the disclosure statement made by him in the voluntary statement which is admissible under Section 27 of the Indian Evidence Act. The findings of the Trial Court holding that the body does not belong to Ramakrishna Ganiga which was not identified and confirmed by the prosecution, is perverse without any basis and against the evidence on record. The evidence of these witnesses have not been properly appreciated by the Trial Judge while holding that the dead body doesn't belong to Ramakrishna Ganiga. On the other hand, the accused having personal knowledge about burying the dead body and he has taken the Police team and Assistant Commissioner to the spot and shown the 47 spot where the body was buried. If the said body is not that of Ramakrishna Ganiga, then the accused has to explain as to whose body it was. Non explanation by the accused goes against the accused and thereby, we hold that the prosecution is successful in proving the identity of the body of the deceased and it was exhumed at the instance of the accused.
23. Another circumstance regarding seizure of the gold ring which belongs to the deceased at the instance of the accused. In order to prove the said circumstance, PW.24-Investigating Officer has stated that on the voluntary statement of the accused recorded by him as per Ex.P.32, the accused disclosed that he will show the dead body where it is buried as well as the gold ring of the deceased. Then after exhumation of the dead body, the accused led them to the house of PW.11 where he had handed over the gold ring of the deceased. PW.11 is the wife of accused No.2 who is absconding 48 from the date of incident. PW.24 has stated that on 03.10.2009, the accused took him along with panchas to the house of accused No.2. The wife of accused No.2 was found in the house and she brought the gold ring and handed over to the Police. The same is seized under Ex.P.13 before PWs.7 and 21-pancha witnesses and identified the ring as M.O.3. To corroborate the evidence of Investigating Officer, PW.7 and PW.21 has stated that the accused led them to the house of PW.11 and recovered M.O.3-gold ring which belongs to the deceased. However, PW.11-wife of accused No.2 turned hostile and she has stated that accused No.1 has not given any ring to her and it was not recovered by the Police. However, she has stated that the Police brought the accused to her house and enquired about the ring but not stated about the seizure of gold ring from her. Merely, this witness i.e., PW.11 turned hostile regarding recovery of the gold ring from her house. 49
24. The evidence of PWs.7, 21, 24 and Ex.P.13 cannot be disbelieved. It is also pertinent to note that PW.11 is the wife of the absconding accused No.2, such being the case, we cannot expect any support from her against her own husband. On the other hand, the independent panch witness i.e., PWs.7 and 21 clearly stated about the seizure of M.O.3-gold ring at the instance of the accused from the house of PW.11. Thereby, the prosecution is successful in proving the seizure of M.O.3 from the house of PW.11 which belongs to the deceased. M.O.3 has been identified by PW.1-son of the deceased and PW.3-wife of the deceased and PW.4-another son of the deceased and also identified M.O.3 belongs to the deceased which was seized from PW.11 at the instance of the accused, based upon the voluntary statement which is admissible under Section 27 of the Indian Evidence Act. The Trial Court has committed error in disbelieving the recovery of M.O.3 on the ground that there was no mention in the complaint 50 about the ring when he was found missing, that itself is not a ground to disbelieve the evidence of family members in disbelieving the identity of the deceased. Thereby, the finding of the Trial Court in respect of disbelieving M.O.3 is required to be reversed.
25. On perusal of the circumstances relied by the prosecution, even as per the circumstance relied by the Trial Court totally 10 circumstances relied by the Trial Court has been clearly proved by the prosecution by examining the witnesses. The first circumstance relied by the prosecution in respect of last seen theory is that accused No.1 and the deceased went to Mundagod has been proved by the prosecution through the evidence of PW.3-wife of the deceased and PW.8-elder brother of accused No.1. There is nothing to disbelieve their evidences. Though, the learned counsel for the accused has contended that the accused No.1 working as driver in the stone quarry of the deceased has not 51 been proved, but it is categorical evidence of PWs.1, 3, 4, 8 that the accused was previously working with the deceased in the stone quarry and he took the deceased for the purpose of procuring labours from Shirsi. The last seen theory has not been shaken by the accused in the cross-examination to disbelieve their evidence and there is no enmity for them to depose against the accused. Thereby, the findings of the Trial Court in disbelieving the last seen theory is also not acceptable. On the other hand, the circumstance of last seen theory has been fully established by the prosecution beyond all reasonable doubt.
26. The next circumstance relied by the prosecution in respect of staying in the house of PW.5- Hulagappa on the night of 11.07.2009. Merely, the said Hulagappa turned hostile, that itself is not a ground to disbelieve the evidence of other witnesses i.e., PWs.3 and 8, since, the last seen theory has been proved by 52 the prosecution from the evidences of PWs.3 and 8. Therefore, if one witness has not supported the case, that itself is not a ground to reject the entire evidence of PWs.3 and 8. Even otherwise, the said Hulagappa has stated that he was not present in the house but he came to know that the Police exhumed the body near his house but he was not aware of the same. The factum of recovery of the dead body near the house of PW.5-Hulagappa has been established by the prosecution. Therefore, the Trial Court has committed error in disbelieving the last seen theory, merely one of the witness i.e., PW.5 turned hostile. Therefore, we hold that the findings of the Trial Court in respect of disbelieving the last seen theory is perverse and is required to be reversed.
27. The another circumstance relied by the Trial Court is arrest of the accused No.1 and recording the voluntary statement by PW.24. As we have already 53 stated above, the voluntary statement or confession statement made before the Investigating Officer is not admissible except recovery and disclosure statement of recovery made in which it is admissible under Section 27 of the Indian Evidence Act. Ex.P.32 is the voluntary statement which discloses the recovery of the dead body and recovery of the gold ring belongs to the deceased. Therefore, disbelieving the recovery made by the Police at the instance of the accused by the Trial Court required to be set aside.
28. The another circumstance relied by the Trial Court is burying the dead body of the deceased after the murder and recovery of the dead body which has been proved from the evidences of PWs.7, 9, 20, 21, 22 and 24 which clearly shows that the exhumation of the body of the deceased at the instance of the accused and the identity of the deceased by the evidence of PWs.1, 3, 4 based upon the evidence of PW.23-Doctor. M.Os.1, 2 54 and 3 are all categorically proved by the prosecution that the body was exhumed was that of Ramakrishna Ganiga but disbelieving the evidence of the doctor and the evidence of the family members, M.Os.1 to 3 are all not correct. If the dead body does not belongs to Ramakrishna Ganiga, then the accused is required to explain that whose dead body was buried by him and how he came to know that the dead body was buried near the house of the PW.5-Hulagappa. This fact was not explained by the accused. On the other hand, the evidence of all these witnesses clearly goes to show that the dead body of Ramakrishna Ganiga was exhumed and it was that of Ramakrishna Ganiga as per M.Os.1 to 3 and M.O.9(a)-implant. Thereby, the prosecution is successful in proving the identity of the deceased and exhumation of the body. Thereby, other circumstances i.e., fourth, fifth and sixth relied by the prosecution have been established by the prosecution and the 55 finding of the Trial Court disbelieving the evidences of the prosecution is reversed.
29. The seventh circumstance i.e., recovery of gold ring and the eighth circumstance i.e., recovery of key from the shirt pocket of the skeleton parts of the bones has been proved by the prosecution by examining PWs.7, 21, 24 and panchanama as per Ex.P.3, M.O.2- key which was recovered from the shirt pocket of the skeleton body of the deceased has been taken to the house of the deceased along with the panchas and it was checked with the table drawer in the house of the deceased which was matched, thereby, the prosecution is successful in proving the identity of the body which is that of the deceased. M.O.3 has been seized from PW.11 at the instance of the accused in the presence of PWs.7, 21, 24 as per Ex.P.13 has been established by the prosecution beyond all reasonable doubt. 56
30. Finally, the tenth circumstance relied by the prosecution is skeletonized bones belonging to the deceased was found to be containing an implant fixed for the purpose of correction of Ulna bone, is also proved by the prosecution by examining PW.23-Doctor who conducted surgery to the deceased in the year 2000 and implant was fixed. This was spoken by PWs.1, 3 and 4 who are the family members and the prosecution in order to establish that the dead body is that of Ramakrishna Ganiga by examining PWs.1, 3, 4 and 23 as well as M.Os.1 to 3 and M.O.9(a) and by recording exhumation proceedings through C.D., thereby successful in identification of the deceased and body was recovered at the instance of the accused. All the ten circumstances relied by the Trial Court has been established without hypothesis and linking all the chain of circumstances clearly goes to show that the accused is a cause for the death of the deceased. The chain link of all the circumstances proved by the 57 prosecution beyond all reasonable doubt. The finding of the Trial Court holding that the circumstance is not established and identity of the deceased is not proved, recovery was not proved are the perverse findings of the Trial Court which required to be reversed by the Court after appreciation of the entire evidence on record by this Court as the First Appellate Court.
31. We also found that the Trial Court has held that M.O.1-watch is in working condition hence, disbelieved the recovery. It is pertinent to note that this watch was recovered from the hand of the skeleton body of the deceased while exhuming the body which was clearly stated in Ex.P.11. The evidence of PWs.7 and 21-panch witnesses and PWs.9, 20, 22, 24 clearly show that M.O.1 has been removed from the hand of the deceased while exhuming the dead body. The Photo as per Ex.P.2 also depicts by viewing from M.O.8-C.D. Therefore, the finding of the Trial Court is perverse in 58 disbelieving the recovery of M.O.1-watch merely because it was in a working condition. By looking to the entire evidence on record, the prosecution is successful in proving the guilt of the accused that the accused is responsible and cause for the death of the deceased. He has snatched the gold ring and also cash by the deceased, though Rs.700 was recovered from the accused as per M.O.5. The accused after committing the murder and robbing the money/gold ring has buried the body to destroy the evidence.
32. Therefore, we answer the point Nos.1 and 2 in the affirmative holding that the State has made out sufficient ground to interfere with the judgment of acquittal on the ground of perversity as the prosecution has proved the charges leveled against the accused beyond reasonable doubt and the judgment of acquittal is required to be reversed by this Court and we hold that the accused No.1 is found guilty for the offence 59 punishable under Sections 302, 397, 201 read with Section 34 of Indian Penal Code.
33. For the reasons stated above, we pass the following:
ORDER
(i) The Criminal Appeal filed by the State is allowed.
(ii) The judgment of acquittal passed in
S.C.No.9/2013 on the file of the
Additional District and Sessions Judge, Udupi (sitting at Kundapura), dated 30.03.2015 is hereby set aside.
(iii) Accused No.1 is found guilty and convicted for the offence punishable under Sections 302, 397, 201 read with Section 34 of IPC.
(iv) Accused No.1 is sentenced to undergo imprisonment for life and shall pay fine of Rs.10,000/- in default, he shall 60 further undergo imprisonment for three years for the offence punishable under Section 302 of IPC.
(v) Further, accused No.1 is sentenced to undergo imprisonment for seven years and shall pay fine of Rs.15,000/- in default, he shall further undergo imprisonment for one year for the offence punishable under Section 397 of IPC.
(vi) Accused No.1 is sentenced to undergo imprisonment for five years and shall pay fine of Rs.5,000/- in default, he shall further undergo imprisonment for one year for the offence punishable under Section 201 of IPC.
(vii) All the sentences are ordered to run concurrently.
(viii) Send a copy of the judgment along with the original records to the Trial Court to secure the presence of accused No.1 61 and to commit him to jail to serve the sentence.
Sd/-
JUDGE Sd/-
JUDGE GBB