Karnataka High Court
The State Of Karnataka vs Saritha on 28 November, 2023
Author: H.B.Prabhakara Sastry
Bench: H.B.Prabhakara Sastry
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CRL.A.No.425 OF 2017
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 28TH DAY OF NOVEMBER, 2023
PRESENT
THE HON'BLE DR. JUSTICE H.B.PRABHAKARA SASTRY
AND
THE HON'BLE MR. JUSTICE ANIL B KATTI
CRL.A No.425 OF 2017 (A)
BETWEEN:
THE STATE OF KARNATAKA
BY THALAGHATTAPURA POLICE STATION
BENGALURU
REPRESENTED BY
STATE PUBLIC PROSECUTOR,
HIGH COURT OF KARNATAKA,
BENGALURU. ... APPELLANT
(BY SRI B.N. JAGADEESHA, ADDL. SPP)
AND:
1. SARITHA
W/O. NAGARAJU
AGED ABOUT 29 YEARS,
R/AT RENTED HOUSE OF MARIYAPPA,
NARAYANAPPA LAYOUT,
MATRIMONIAL HOUSE AT
KALLAREPURA VILLAGE,
MALAVALLI TALUK,
MANDYA DISTRICT-571 430.
2. SHIVU
S/O. MARIYAPPA,
AGED ABOUT 30 YEARS,
R/AT NARAYANAPPA LAYOUT,
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CRL.A.No.425 OF 2017
THALAGHATTAPURA,
PERMANENT R/AT MALLENAHALLI VILLAGE
MARALAVADI HOBLI,
KANAKAPURA TALUK-562 117. ... RESPONDENTS
(BY SRI. MOHAMMED PASHA C., ADVOCATE FOR R-1;
SRI. JAVEED S., ADVOCATE FOR R-2;
[APPOINTED AS AMICUS CURIAE V/O. DATED 22.08.2023])
-------
THIS CRIMINAL APPEAL IS FILED UNDER SECTION 378
(1) & (3) OF CR.P.C., PRAYING TO GRANT LEAVE TO APPEAL
AGAINST THE JUDGMENT AND ORDER OF ACQUITTAL DATED
26.10.2016 PASSED BY THE VII ADDITIONAL DISTRICT AND
SESSIONS JUDGE, BENGALURU RURAL DISTRICT, BENGALURU
IN S.C.NO.106/2011, THEREBY, ACQUITTING THE ACCUSED/
RESPONDENT FOR THE OFFENCE P/U/S 302 AND 201 OF IPC
AND ETC.
THIS CRIMINAL APPEAL HAVING BEEN HEARD THROUGH
PHYSICAL HEARING/VIDEO CONFERENCING FOR FURTHER
ARGUMENTS AND RESERVED ON 24.08.2023, COMING ON FOR
PRONOUNCEMENT OF JUDGMENT,THIS DAY ANIL B.KATTI, J.,
DELIVERED THE FOLLOWING:
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CRL.A.No.425 OF 2017
JUDGMENT
Appellant/State feeling aggrieved by judgment of Trial Court on the file of VII Additional District and Sessions Judge, Bengaluru in S.C.No.106/2011 dated 26.10.2016 preferred this appeal.
2. Parties to the appeal are referred with their ranks as assigned in the Trial Court for the sake of convenience.
3. The factual matrix leading to the case of prosecution can be stated in nutshell to the effect that on 21.11.2010 Nagaraju s/o Huchaiah filed complaint stating that on 18.11.2010 when he returned from work, his daughter Tanushree was found missing from the house. As she was not traceable in spite of diligent search made by him, hence, filed missing complaint on 21.11.2010 and case was registered in Thalaghattapura Police Station in Crime No.587/2010.
On 28.11.2010, one Ravi s/o Mariyappa, brother of accused No.2, filed complaint stating that on 22.11.2010 at about 8.00 A.M., his brother Shivu working as driver in -4- CRL.A.No.425 OF 2017 J P Nagar went out of the house on pretext of going to work and he did not return back to the house. In spite of due search and enquiry with neighbours and relatives, whereabouts of his brother Shivu was not traced. On the basis of said complaint dated 28.11.2010, the PSI registered a case in Thalagattapura police station in Crime No.600/2010.
During investigation of missing complaint registered in Crime No.600/2010 of Thalagattapura Police Station, accused Nos.1 and 2 were arrested and produced before the PSI of Thalagattapura police by one Durgegowda H.C.30 from Hargi Village of Shivamogga on 17.12.2010. During the course of investigation, after arresting accused Nos.1 and 2, the PSI of Thalagattapura police station filed requisition before the CJM, Bengaluru dated 18.12.2010 for treating him as the complainant in the case registered in Crime No.600/2010. On the basis of said requisition, another FIR was drawn in the same Crime No.600/2010 of Thalagattapura police station for the offences punishable under Sections 302 and 201 of IPC. The Investigating -5- CRL.A.No.425 OF 2017 Officer after completing the investigation filed charge sheet for the offences punishable under Sections 302, 201 of IPC.
4. In response to summons, accused Nos.1 and 2 appeared through their counsel. The Trial Court on being prima facie satisfied of charge sheet materials framed charges against accused for the offences alleged against them. Accused Nos.1 and 2 pleaded not guilty and claimed to be tried. Prosecution in order to prove the allegations made against the accused relied on the oral testimony of PWs.1 to 15 and documents Exs.P.1 to P.19, so also got identified MOs.1 to 5.
5. On closure of the prosecution evidence, the statement of accused under Section 313 of Cr.P.C. came to be recorded. Accused Nos.1 and 2 have denied all the incriminating material evidence appearing against them and claimed that false case is filed. The Trial Court after appreciating the evidence on record acquitted both the accused for the offences alleged against them. -6-
CRL.A.No.425 OF 2017
6. Appellant/State challenging judgment of acquittal of accused Nos.1 and 2 contended that Trial Court has not properly appreciated the evidence of PW.3-Nagaraju, father of the deceased-Tanushree and PW.6-Chandramma, mother of PW.3, who are the material witnesses to speak on the allegation of missing of accused No.1 and Tanushree from the house. PW.3-Nagaraju has filed missing complaint on 21.11.2010 Ex.P.3 and he has also identified the dead body of his daughter and the photographs taken Exs.P4 to P6. The case of prosecution rests on circumstantial evidence. There is strong motive for accused Nos.1 and 2 to commit murder of Tanushree, since she was an obstacle for their illicit relationship and the same is substantiated by the oral testimony of PW.3- Nagaraju and PW.6-Chandramma. PW.10-Mallesh, Gate Operator is witness on the last seen theory who has seen accused Nos.1 and 2 with deceased Tanushree on the dam site. Accused No.1 has pledged her gold Mangalya Chain and Ring and the same has been recovered as per MOs.4 -7- CRL.A.No.425 OF 2017 and 5 at the instance of accused No.1 which has been substantiated by the oral testimony of PW.8-P Kumar who is working in Nandi Bankers Jewellery shop and PW.9- Ladhuram owner of the said shop. The evidence of these two witnesses is further corroborated by the oral testimony of Investigating Officer PW.15- T. Mahadev. PW.3-Nagaraju identified MOs.4 and 5. The dead body of Tanushree was recovered at the instance of accused Nos.1 and 2 and the said fact is corroborated by the evidence of PW.2-Satish, PW.4-Mahadev and PW.11-Swamy. The prosecution out of the evidence of above referred material witnesses has established the complete chain of circumstances to prove that it is accused Nos.1 and 2 who have committed murder of Tanushree. The Trial Court was not justified in outrightly rejecting their evidence and committed serious error in acquitting accused Nos.1 and 2 for the offences alleged against them. The observations and findings recorded by the Trial Court are contrary to the evidence on record. Therefore, prayed for allowing the appeal and to set aside the judgment of Trial Court, -8- CRL.A.No.425 OF 2017 consequently to convict both the accused for the offences alleged against them.
7. In response to the notice of appeal, respondent No.1 (accused No.1) appeared through counsel and vide order dated 22.8.2023, Amicus Curiae was appointed to represent respondent No.2. The Trial Court records have been secured.
8. Heard the arguments of both sides.
9. After hearing both sides and on perusal of the Trial Court records, including the impugned judgment, the following points arise for consideration:
1)Whether the prosecution proved beyond reasonable doubt that accused No.1 and 2 had illicit relationship and as deceased Tanushree had seen the same, accused having apprehended that she may reveal the same before others, on 18.11.2010, at about 9.00 a.m. took Kum.Tanushree from Thalaghattapura to the bridge on H.D.Devegowda Barrage at Iggaluru and at about 6.30 p.m. pushed her to the dam water with an intention and knowledge to commit her murder, thereby -9- CRL.A.No.425 OF 2017 committed the offence punishable u/s 302 r/w 34 of IPC?
2) Whether the prosecution has further proved beyond all reasonable doubt that both accused No.1 and 2 after committing the murder of deceased Tanushree in order to screen themselves from the legal punishment caused disappearance of evidence and thereby committed the offence punishable u/s 201 r/w of IPC?
3) Whether the judgment of Trial Court requires any interference by this Court ?
10. On careful perusal of oral and documentary evidence placed on record, it would go to show that accused No.1 is the wife of PW.3-Nagaraju and they were living with their daughter Tanushree in Thalaghattapura. Accused No.2 is the son of owner of the house in which PW.3-Nagaraju and accused No.1 were residing as tenants. The father of deceased Tanushree i.e. PW.3-Nagaraju filed missing complaint of his daughter on 21.11.2010 vide Ex.P3. Similarly, one Ravi, brother of accused No.2, filed missing complaint of accused No.2 on 28.11.2010 Ex.P7 alleging
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CRL.A.No.425 OF 2017 that his brother Shivu is missing from 22.11.2010 and accordingly, case was registered in Thalaghattapura police station on 28.11.2010 Ex.P.8. The details of information regarding missing of accused No.2 is recorded as per Ex.P9 are the facts not in serious dispute and the same also borne out from the material evidence placed on record by the prosecution.
11. The prosecution has classified the evidence of prosecution witnesses to prove the circumstances i.e., (1) motive (2) last seen theory (3) recovery of dead body at the instance of accused Nos.1 and 2 (4) recovery of pledged gold articles belonging to accused No.1 at the instance of accused Nos.1 and 2 and lastly, (5) conduct of accused Nos.1 and 2 who were found together in the house rented by them in Harige village of Shivamogga.
12. The prosecution to prove the motive of accused Nos.1 and 2 to commit murder of Tanushree, since she was an obstacle for their illicit relationship, relies on the oral testimony of PW.3-Nagaraju, father of deceased Tanushree and PW.6-Chandramma, mother of PW.3. On
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CRL.A.No.425 OF 2017 the point of last seen theory, the prosecution relies on the evidence of PW.10-Mallesh who was working as Gate operator in the dam site of H.D.Devegowda Barrage at Iggaluru. On the point of recovery of dead body at the instance of accused Nos.1 and 2, the prosecution relies on the evidence of PW.1-Mahadev, PW.2-Satisha and PW.11 Swamy. The prosecution to prove the recovery of the pledged gold articles of accused No.1 and recovery at her instance, relied on the oral testimony of PW8-P.Kumar working in Nandi Bankers Jewellery Shop and PW.9- Ladhuram who is the owner of the said shop, so also the evidence of PW.15-T.Mahadev, the Investigating Officer. Lastly, on the conduct of accused Nos.1 and 2, relies on the oral testimony of PW.13-Durgegowda who found accused Nos.1 and 2 living together in Harige village of Shivamogga and produced before the Investigating Officer and that of the Investigating Officer, PW.15- T Mahadev.
13. The learned Additional SPP has argued that the prosecution out of the evidence of PW.3-Nagaraju and
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CRL.A.No.425 OF 2017 PW.6-Chandramma has proved that accused No.1 and Tanushree were found missing from the house of Thalaghattapura from 18.11.2010 and accordingly, he has filed missing complaint on 21.11.2010 Ex.P.3. PW.10 Mallesh is the Gate Operator who has last seen accused Nos.1 and 2 with deceased Tanushree on the dam site. On arrest of accused Nos.1 and 2 dated 17.12.2010, on the basis of their confession recovered the dead body of Tanushree at their instance and the said fact has been substantiated by the oral testimony of PW.1-Mahadev, PW.2-Satisha and PW.11-Swamy.
Accused Nos.1 and 2 were living together after the murder of Tanushree and the same is corroborated by the evidence of PW.13-Durgegowda. Accused No.1 has pledged her Mangalya Chain and Gold Ring and on the basis of their voluntary statements as per Ex.P.17 and P.18, Mangalya chain and Gold Ring -MO.4 and MO.5 were recovered from Nandi Bankers Jewellery Shop and PW.9- Ladhuram, owner of the said shop. Their evidence is corroborated by the evidence of PW.15- T Mahadeva,
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CRL.A.No.425 OF 2017 Investigating Officer. There is nothing in the cross- examination of prosecution witnesses to deny the above referred motive deposed by PW.3-Nagaraju and PW.6- Chandramma and the circumstances brought on record by the prosecution unerringly point out fingers against the accused that it is accused Nos.1 and 2 have committed murder of Tanushree who was an obstacle for their illicit relationship.
14. Per contra, learned counsel for respondents No.1 and 2 has argued that the missing complaint of Tanushree itself was filed after three days of the incident on 21.11.2010 as per Ex.P3. It at all accused No.1 was having any illicit relationship with accused No.2 then, she would not have brought back Tanushree from the parents house of PW.3-Nagaraju where she was pursuing her studies. The alleged involvement of accused Nos.1 and 2 in the commission of offence is based on the voluntary statements of accused Nos.1 and 2 and the complete chain of circumstances to substantiate the alleged confession of
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CRL.A.No.425 OF 2017 accused Nos.1 and 2 has not been proved by the evidence of prosecution witnesses. The last seen theory claimed by the prosecution and the recovery of dead body at the instance of accused Nos.1 and 2, so also the recovery of pledged articles of accused No.1 has not been proved by the prosecution. Accused No.1 was with her husband PW.3, Nagaraju when he filed missing complaint Ex.P.3. The body of deceased Tanushree was decomposed and the identity of dead body being that of Tanushree has also not been established by the prosecution. The Trial Court has rightly appreciated the evidence on record and the findings recorded in acquitting accused Nos.1 and 2 are based on material evidence on record and the same does not call for any interference by this Court.
15. Before proceeding further in analysing the evidence laid in the matter, it is to be borne in mind that it is an appeal against the judgment of acquittal of accused from the alleged offence punishable under Sections 302, 201 of IPC. Therefore, accused have primarily the double benefit.
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CRL.A.No.425 OF 2017 Firstly, the presumption under law that, unless their guilt is proved, the accused have to be treated as innocent in the alleged crime. Secondly, the accused are already enjoying the benefit of judgment of acquittal passed under the impugned judgment. As such, bearing the same in mind, the evidence placed by the prosecution in the matter is required to be analysed. The Hon'ble Apex Court in catena of judgments has laid down the general principles regarding powers of the Appellate Court while dealing in an appeal against an order of an acquittal. It would be appropriate to refer to the latest two judgments of Hon'ble Apex Court in Jafarudheen Vs. State of Kerala reported in (2022) 8 SCC 440 at para 25 of the judgment, the Hon'ble Apex Court was pleased to observe as below:
"25. While dealing with an appeal against acquittal by invoking Section 378 Cr.P.C, the appellate Court has to consider whether the trial court's view can be termed as a possible one, particularly when evidence on record has been analysed. The reason is that an order of acquittal
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CRL.A.No.425 OF 2017 adds up to the presumption of innocence in favour of the accused. Thus, the appellate Court has to be relatively slow in reversing the order of the trial court rendering acquittal. Therefore, the presumption in favour of the accused does not get weakened but only strengthened. Such a double presumption that enures in favour of the accused has to be disturbed only by thorough scrutiny on the accepted legal parameters."
The Hon'ble Apex Court in another latest judgment in Roopwanti vs. State of Haryana and Others reported in 2023 SCC Online 179 wherein it has been observed and held in paragraph No.7 that :
"In cases where a reversal of acquittal is sought, the Courts must keep in mind the presumption of innocence in favour of the accused, on grounds of it surviving to rigorous of a full trial is strengthened and stands fortified. The prosecution then while still working under the same burden of proof, is required to discharge a more onerous responsibility to annual and reverse the fortified presumption of innocence. This fortification of the presumption
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CRL.A.No.425 OF 2017
of innocence has been held in catena of
judgments by this Court."
It is keeping in mind the above principles laid down by the Hon'ble Apex Court, we proceed to analyse the evidence placed on record by the prosecution.
16. On careful perusal of the oral and documentary evidence placed on record by the prosecution, it would go to show that PW.3-Nagaraju filed missing complaint Ex.P.3 before Thalaghattapura Police Station stating that on 18.11.2010 on return to house after work, found his daughter Tanushree aged about 8 years was missing from the house. The daughter of complainant Tanushree, in spite of due search was not traced and filed missing complaint on 21.11.2010 Ex.P.3, which came to be registered in Thalaghattapura Police Station Crime No.587/10 Ex.P.10. The brother of accused No.2, one Ravi, also filed missing complaint of accused No.2 Ex.P.7 stating that his brother left the house on 22.11.2010 for going to his work, but did not return to the home. In spite
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CRL.A.No.425 OF 2017 of due search and enquiry with the relatives, he was not traced out. Hence, filed missing complaint of his brother- accused No.2 on 28.11.2010 which was registered in Thalaghattapura Police Station in Crime No.600/2010 Ex.P.8.
17. The prosecution alleges that the Investigating Officer PW.7-A.P.Kumar while investigating the case registered in Crime No.600/2010 Ex.P.8 of Thalaghattapura police station, deputed PW.13 Durgegowda CW.18 Venkategowda for tracing Shivu. On the basis of information received from informers, they went to Haragi village in Shivamogga and produced accused Nos.1 and 2 before him on 17.12.2010 at 11.30 a.m. During the course of enquiry, accused Nos.1 and 2 gave voluntary statement Exs.P.18 and P.17 respectively, wherein they have disclosed that for the last two years, they have been in illicit relationship. The daughter of complainant, Tanushree used to accompany accused No.1 and this has caused obstacle for continuing their illicit relationship.
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CRL.A.No.425 OF 2017 Therefore, they decided to eliminate eight year old Tanushree and to stay away from Thalaghattapura.
In pursuance of confession of accused Nos.1 and 2 by way of voluntary statement Exs.P.18 and P.17 respectively, the Investigating Officer, PW.7-A.P.Kumar filed requisition in Crime No.600/2010 of Thalaghattapura Police Station Ex.P.12 seeking permission to treat him as complainant in this case. On the basis of such requisition, FIR was drawn in the same crime number for the offences punishable under Sections 302, 201 of IPC Ex.P.13.
The prosecution further alleges that accused Nos.1 and 2, pursuant to their voluntary statement Exs.P.18 and P.17 respectively, shown the place of incident from where they threw Tanushree from the dam site and the spot panchanama was prepared in the presence of PW.1- Mahadeva, PW.5-Siddaraju Ex.P.1. The search for the dead body in river Shimsha was conducted and the dead body was found stuck in between the stones and it was decomposed. On the basis of school uniform, complainant PW.3-Nagaraju and accused No.1 have identified the dead
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CRL.A.No.425 OF 2017 body as that of Tanushree. Inquest panchanama-Ex.P.2 was conducted in the presence of PW.2-Satisha and PW.4 Mahadeva.
Accused Nos.1 and 2, pursuant to their voluntary statement Exs.P.18 and P.17 respectively, lead the police officials and panchas to Nandi Bankers Jewellery shop belongs to PW.9-Ladhuram and at the instance of accused Nos.1 and 2, PW.9-Lathuram has produced Mangalya chain and Gold Ring which came to be recovered under the recovery panchanama Ex.P.14 and the relevant register is Ex.P.15 in the presence of Investigating Officer PW.15- T.Mahadeva.
18. The case of the prosecution rests on circumstantial evidence and the law is well settled in this regard that where the case is based on circumstantial evidence, the prosecution is required to prove all the circumstances to complete the chain of circumstances to conclusively hold that it is none else than accused Nos.1 and 2 alone have committed the murder of Tanushree. The prosecution
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CRL.A.No.425 OF 2017 mainly relies on five circumstances i.e., 1) motive 2) last seen theory 3) recovery of the dead boy of Tanushree at the instance of accused Nos.1 and 2 4) recovery of gold articles of accused No.1 and lastly 5) conduct of accused Nos.1 and 2 who were found together in Haragi village of Shivamogga.
The well known rule governing circumstantial evidence is that each and every incriminating circumstances must be clearly established by reliable evidence and the circumstances proved must form a chain of events from which the only irresistible conclusion about the guilt of the accused can be safely drawn and no other hypothesis except the guilt of the accused. It is profitable to refer the landmark judgment of Hon'ble Apex Court in SHARAD BIRDHICHAND SARDA Vs. STATE OF MAHARASHTRA reported in (1984) 4 SCC 116, wherein five golden rules set out must be fulfilled before a case against an accused can be said to be fully established on circumstantial evidence as under :
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1. the circumstances from which the conclusion of guilt is to be drawn must or should be and not merely 'may be' fully 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 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.
In another latest judgment of the Hon'ble Apex Court in Dinesh Kumar V. State of Haryana reported in AIR 2023 SC 2795 has reiterated the same principle in SHARAD BIRDHICHAND SARDA Vs. STATE OF MAHARASHTRA (supra) regarding the conditions to be fulfilled before a case against an accused can be said to be fully established on circumstantial evidence.
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19. The material witness of prosecution is, complainant PW.3-Nagaraju who has deposed to the effect that accused No.1 is his wife and their marriage was performed about 10 years back. Further, Tanushree is their daughter and they are residing as tenant in the house of one Gowramma and accused No.2 is her son. The deceased Tanushree was studying in 4th standard and she has told him about accused No.2 visiting to the house and talking with accused No.1. On 18.11.2010 at 7.30 P.M. when he came back to the house after work, found the door of the house was locked and made enquiry with the neighbours. His wife, accused No.1 and daughter Tanushree did not return to the house and he filed the missing complaint in the Police Station.
After three days of missing of Tanushree from the house, accused No.1 called PW.3-Nagaraju over phone and informed that she is in Kollegal. PW.3-Nagaraju went to Kollegal and brought accused No.1 back to home and on enquiry with her about daughter Tanushree, she disclosed that she beat Tanushree and she has gone somewhere.
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CRL.A.No.425 OF 2017 On receiving such information, filed missing complaint of his daughter Tanushree Ex.P.3.
Thereafter his wife, accused No.1 without informing him went away from the house. On 17.12.2010 he was called by the police to Thalaghattapura Police Station, accused were carried by the police to Iggaluru dam and were in search of his child. At the place as shown by accused Nos.1 and 2, the dead body was found in a decomposed state and he identified the dead body on the basis of school uniform that it is the dead body of his daughter Tanushree. The photographs were taken at that time Exs.P.4 to P.6 and he identifies the school uniform of his daughter Tanushree as MOs.1 and 2 and the beads chain-MO.3. He has further deposed that accused Nos.1 and 2 were having illicit relationship and they have an apprehension that Tanushree may inform of such relationship to him is the cause of they committing murder of his daughter Tanushree.
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20. Another material witness relied by the prosecution is PW.6-Chandramma, mother of complainant PW.3- Nagaraju. She has deposed to the effect that PW.3- Nagaraju is her son and accused No.1 her daughter-in- law. Accused No.2 is the son of owner of the house in which PW.3-Nagaraju was a tenant. The marriage of PW.3-Nagaraju and accused No.1 was performed about 10 years back and they have two children by name Madesha and Tanushree, the son-Madesha is studying and stays with his grand parents. About six months prior to the murder of Tanushree, she was brought by accused No.1 to Thalaghattapura, since then she was residing with accused No.1 and PW.3-Nagaraju at Thalaghattapura.
PW.6-Chandramma further deposed to the effect that Tanushree informed her that accused No.2 used to come to the house and further accused No.1 and PW.3-Nagaraju used to quarrel. On receiving such information from Tanushree, she has advised her son PW.3-Nagaraju and accused No.1 and went to Kallarepura where she was residing.
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CRL.A.No.425 OF 2017 About one-and-half years back, her son PW.3- Nagaraju over phone enquired that his daughter Tanushree and wife accused No.1 are not in the house and whether they have come to her and she replied that they have not come to Kallarepura. On the next day, her son PW.3-Nagaraju informed over phone that accused No.1 called him over phone and told that she is in Kollegal and asked PW.6-Chandramma to come to Malavalli. Thereafter, accused No.1 was brought to Thalaghattapura to the house of PW.3-Nagaraju and on enquiry, accused No.1 revealed that she had gone in search of her missing daughter. On the next day, accused No.1 left the house of PW.3-Nagaraju. She further deposed to the effect that after 20 days, accused Nos.1 and 2 were arrested by the police and she was called to the police station, further police informed her that they have committed murder of Tanushree by pushing her in Iggaluru dam site.
21. The evidence of these material witnesses PW.3- Nagaraju and PW.6-Chandramma regarding the missing of
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CRL.A.No.425 OF 2017 Tanushree from the house of complainant PW.3-Nagaraju, till accused Nos.1 and 2 were apprehended and the alleged confession made by them before the police that they have committed murder of Tanushree will have to be appreciated with the aforementioned circumstances relied by the prosecution in deciding as to whether the prosecution could able to prove the motive of accused Nos.1 and 2 in committing the murder of Tanushree.
22. The entire case of prosecution in involving accused Nos.1 and 2 in this case on the charge of they committing murder of Tanushree is based on their alleged confession i.e. the voluntary statement Exs.P.18 and P.17 respectively on their arrest on 17.12.2010 at 4.00 A.M. by PW.13-Durgegowda from Haragi village of Shivamogga. Their alleged confession by way voluntary statement Exs.P.18 and P.17 respectively before the Investigating Officer PW.7-A.P.Kumar during their police custody is inadmissible in law. Therefore, the prosecution has to prove independently the above referred circumstances to
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CRL.A.No.425 OF 2017 conclusively prove that it is accused Nos.1 and 2 who have committed murder of Tanushree.
23. The first circumstance relied by the prosecution is the motive of accused Nos.1 and 2 in committing the murder of Tanushree is that accused Nos.1 and 2 were having illicit relationship and Tanushree who was to be with accused No.1 was an obstacle for their such relationship and therefore, accused Nos.1 and 2 thought of eliminating Tanushree and to settle somewhere by leaving Thalaghattapura. The allegation of accused Nos.1 and 2 having illicit relationship has cropped for the first time in their voluntary statement Exs.P.18 and P.17 respectively.
The prosecution to prove the said motive, relied on the oral testimony of complainant PW.3-Nagaraju and that of his mother PW.6-Chandramma. PW.3-Nagaraju in his examination-in-chief deposed to the effect that his daughter Tanushree informed him that accused No.2 Shivu used to come to the house and on such information, he enquired with accused No.1-Saritha who told that nobody
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CRL.A.No.425 OF 2017 is coming to the house. The evidence of PW.6- Chandramma would go to show that deceased Tanushree has informed her that accused No.2 used to come to the house and her parents are quarrelling, she further deposed that she has advised her son PW.3-Nagaraju and accused No.1-Saritha. On careful reading of entire evidence of PW.3-Nagaraju and PW.6-Chandramma, it would go to show that they have admitted about marriage of PW.3-Nagaraju with accused No.1-Saritha was performed about 10 years back and they have two children by name Madesha and Tanushree. There were no any quarrels between complainant PW.3-Nagaraju and accused No.1-Saritha on the pretext of she having illicit relationship with accused No.2. It is not in dispute that accused No.2 is the son of Gowramma who is the owner of the house in which complainant PW.3-Nagaraju and accused No.1-Saritha with their daughter Tanushree were residing as tenants. PW.6-Chandramma admitted in her cross-examination that there were no any quarrels between PW.3-Nagaraju and accused No.1-Saritha in the
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CRL.A.No.425 OF 2017 past 10 years of their marriage. PW.6-Chandramma further admitted that her son PW.3-Nagaraju and accused No.1-Saritha were residing at two places in Thalaghattapura and that she was not visiting her son. Her evidence further goes to show that she has gone to the house of her son only for two days in Thalaghattapura and she further admits that she did not enquire with her son, PW.3-Nagaraju as to why he has quarreled with his wife accused No.1-Saritha. It is the evidence of PW.3- Nagaraju and PW.6-Chandramma that Tanushree has informed about accused No.2 visiting the house to PW.6- Chandramma during her two days stay in the house to her son PW.3-Nagaraju. Their one line statement that Tanushree informed them about accused No.2 visiting the house itself cannot be said as sufficient evidence to hold that they were having illicit relationship and the same has been seen by deceased Tanushree. PW.3-Nagaraju admitted in his cross-examination that his marriage with accused No.1 was performed about 10 to 12 years back and they were having cordial relation with each other and
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CRL.A.No.425 OF 2017 he has good opinion about accused No.1. PW.3-Nagaraju admitted in his cross-examination that he has not informed about the illicit relationship to the neighbours or to his mother PW.6-Chandramma. PW.6-Chandramma has also admitted in her cross-examination that after she coming to know from Tanushree about accused No.2 visiting the house, she did not enquire accused No.1 to ascertain the truthfulness of the said fact revealed by Tanushree. Investigating Officer PW.7-A.P.Kumar has admitted in his cross-examination that he did not enquire with anybody regarding the alleged illicit relationship between accused Nos.1 and 2 as stated by them in their voluntary statement Exs.P.18 and P.17 respectively. PW.15-T.Mahadeva, the second Investigating Officer has stated in the cross-examination that he has enquired with the neighbours about the illicit relationship of accused Nos.1 and 2. However, he admits that he has not cited them as witness nor recorded any of their statement. Looking to the above referred evidence of PW.3- Nagaraju, PW.6-Chandramma, PW.7-A.P.Kumar and that of
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CRL.A.No.425 OF 2017 PW.15-T Mahadev, it would go to show that other than the alleged confession of accused Nos.1 and 2 by way of voluntary statement Exs.P.18 and P.17 respectively, there is virtually no evidence on record to prove the alleged illicit relationship between accused Nos.1 and 2. It appears from the evidence of the Investigating Officer PW.15- T.Mahadeva, the alleged disclosure of accused Nos.1 and 2 of they having illicit relationship is accepted as gospel truth and without making any efforts to ascertain the truthfulness of such statement has projected as a strong motive for accused to commit the murder of Tanushree.
Undisputedly, Tanushree was pursuing her education by living with her grand parents and deceased Tanushree studied upto 4th standard by staying with her grand parents and she was brought by accused No.1 and complainant PW.3-Nagaraju for providing good education in Thalaghattapura and got admitted her to 5th standard. If at all accused No.1 was having any illicit relationship with accused No.2, then she would not have brought back
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CRL.A.No.425 OF 2017 her daughter from the house of her in-laws and to get her admitted in the school at Thalaghattapura. The said fact would nullify the case of the prosecution that accused Nos.1 and 2 were having any illicit relationship between them. Therefore, prosecution has failed to substantiate by evidence on record regarding the first circumstance of motive of accused Nos.1 and 2 having illicit relationship and as Tanushree being an obstacle for their such relation they thought of eliminating Tanushree, has not been established by the prosecution beyond all reasonable doubt.
24. The accused have also denied the identity of the decomposed dead body being found which was stuck in between the stones of Shimsha river as that of Tanushree. Therefore, the prosecution is also required to prove the identity of decomposed body found in the Shimsha river is that of deceased Tanushree. PW.12-Dr.Pradeep Kumar on 18.12.2010 on requisition of CPI conducted post mortem examination and issued post mortem report Ex.P.16. The
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CRL.A.No.425 OF 2017 evidence of PW.12-Dr.Pradeep Kumar and post mortem report-Ex.P.16 would go to show that the decomposed foul smelling dead body was produced for post mortem examination and as per the opinion of the doctor, PW.12- Dr.Pradeep Kumar, the cause of death is undetermined. PW.12-Dr.Pradeep Kumar admitted in his examination-in- chief itself that on the basis of the requisition filed by the police, he has stated in the post mortem report that the dead body is of female child. Further stated that if the child is below 12 years, on examination of bones, the gender cannot be ascertained and because of that reason only he has not mentioned the gender in the post mortem report Ex.P.16. PW.12-Dr.Pradeep Kumar has admitted in his cross-examination that the face of the dead body was unidentifiable. PW.3- Nagaraju, father of the deceased Tanushree and mother-accused No.1, Saritha were alleged to have identified the decomposed dead body of the child as that of Tanushree on the basis of school uniform. It is the evidence of PW.3 -Nagaraju that Tanushree had gone to the school on 18.11.2010 and when he came back to
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CRL.A.No.425 OF 2017 the house, found the house was locked. PW.3-Nagaraju though claims in his cross-examination that he went to the school and enquired about his daughter Tanushree, wherein they have informed that accused No.1-Saritha picked up Tanushree in the afternoon. However, he admits that he has not stated so in the missing complaint filed by him at Ex.P.3. The school bag of Tanushree has not been traced and according to the evidence of PW.3-Nagaraju he searched in the house, it was not found. It means that Tanushree had gone to school with school bag and if at all Tanushree was picked up in the afternoon from the school itself then, naturally the school bag would have been found in possession of Tanushree. If at all the school bag was left in the house after accused No.1-Saritha picking up her daughter Tanushree then, it should have been found at least in the house or where the dead body of Tanushree was found. According to the evidence of PW.3-Nagaraju, he searched for the school bag in the house but it was not there.
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CRL.A.No.425 OF 2017 It is pertinent to note that Tanushree was missing from 18.11.2010 and the missing complaint came to be filed on 21.11.2010 Ex.P.3. It has not been stated in the missing complaint Ex.P.3 that accused No.1-Saritha and Tanushree were missing from the house. The prosecution has not placed any evidence on record to prove that it is accused No.1-Saritha has picked up her daughter from the school in the afternoon as claimed by complainant PW.3 - Nagaraju.
PW.3-Nagaraju claims in his evidence that after three days of missing of Tanushree, accused No.1 called him over the phone and told that she is in Kollegal. Thereafter he went to Kollegal and brought back his wife accused No.1-Saritha to the house. It is thereafter missing complaint at Ex.P.3 was filed. It means that while PW.3-Nagaraju filed the missing complaint Ex.P.3, accused No.1-Saritha was very much available in the house of complainant PW.3-Nagaraju. PW.3-Nagaraju claims in his examination-in-chief that he enquired with his wife about Tanushree and she told that she has beat her and she has
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CRL.A.No.425 OF 2017 gone somewhere. If that was to be the fact then, the same would have been mentioned in the missing complaint Ex.P.3 filed by complainant PW.3-Nagaraju. The evidence of his mother PW.6-Chandramma is also silent on this aspect. There is also no evidence on record to show that PW.3-Nagaraju received phone call from his wife Saritha (A1) who told him that she is in Kollegal and PW.3- Nagaraju went to Kollegal and brought back his wife accused No.1, Saritha to the house. Other than the uncorroborated evidence of PW.3-Nagaraju in this regard, there is absolutely no any other evidence on record to prove the said fact.
PW.3-Nagaraju admits in his cross-examination that he has not stated in the missing complaint Ex.P.3 that his daughter had gone to the school by wearing beads chain. PW.3-Nagaraju further admits in his cross-examination that while filing the missing complaint Ex.P3 or before the police he has not stated that his daughter Tanushree had gone along with accused No.1-Saritha. PW.3-Nagaraju further admits that he has not stated in the missing
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CRL.A.No.425 OF 2017 complaint Ex.P.3 that Tanushree has gone to the school by wearing uniform and he do not know the clothes worn by Tanushree when she left the house for going to school. The evidence of PW.6-Chandramma is silent regarding the identification of the decomposed body as that of Tanushree. The evidence of Investigating Officer PW.15 T. Mahadev is to the effect that pursuant to the disclosure made by accused Nos.1 and 2 in the voluntary statement Exs.P.18 and P.17 respectively, on 17.12.2010 lead the police officials and the panch witnesses to the dam site and shown the place from where they threw Tanushree into Shimsha river. The prosecution has relied on the evidence of PW.1-Mahadeva and PW.5-Siddaraju to prove the spot panchanama Ex.P.1. PW.1-Mahadeva is the barrage operator and his evidence is based on the information given by the Investigating Officer, PW.15- T Mahadev when they had come at dam site with accused Nos.1 and 2. PW.1-Mahadeva admitted in his cross examination that while leaving the work place in the barrage, entry will be made in the ledger maintained in the
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CRL.A.No.425 OF 2017 office. He has further admitted that on the barrage public will be moving.
PW.5-Siddaraju has admitted in his cross-examination that 3 to 4 workers will be in the pump house and there is a pump house attached to the dam. Further, there will be movement of people and the vehicle on the dam so also security personnel will be deputed to guard the barrage. If the evidence of PWs.1 and 5 is appreciated with the spot features recorded in the spot panchanama Ex.P.1, it would go to show that there is cement parapet wall and the water flows from north to south under the bridge. There is fencing of 8 ft. height and the fencing gate will always be closed. If the above referred evidence of PW.1- Mahadeva and PW.5-Siddaraju is appreciated then, it is difficult to accept the case of the prosecution that accused Nos.1 and 2 were swinging Tanushree at gate No.4 and threw her in the Shimsha river.
25. The prosecution claims that accused Nos.1 and 2 thereafter accompanied the police officials in search of the
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CRL.A.No.425 OF 2017 dead body of Tanushree and on tracing the decomposed dead body, the same was brought to the river bank and post mortem examination was conducted. It is recorded in Ex.P.2 that one blue langa and green colour shirt with beads in the neck were there. In view of the above referred evidence on record in the form of complainant PW.3-Nagaraju, there is reasonable doubt of Tanushree having left the house with school uniform. However, there is subsequent insertion of school uniform/light blue colour in missing complaint Ex.P.3.
PW.7-A.P.Kumar, the first Investigating Officer has admitted in his cross-examination that he does not know as to who has written and when it was written the last word in the missing complaint Ex.P.3 and he does not know while filing the requisition Ex.P.12, there was mentioning of school uniform in Ex.P.3. Investigating Officer PW.7-A.P.Kumar has further admitted that he did not enquire PW.3-Nagaraju as to whether he has written the last words of 'school uniform'. Investigating Officer PW.7-A.P.Kumar though claims
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CRL.A.No.425 OF 2017 in his cross-examination that he has visited the school and enquired about Tanushree attending school on the date of missing, but admits that he has not recorded the statement of either complainant, PW.3-Nagaraju or the school staff. The identity card and the school bag of Tanushree was not found with the dead body, nor the same has been recovered from any other place by the Investigating Officer. Therefore, looking to the above referred evidence, it is difficult to believe the evidence of complainant PW.3-Nagaraju in identifying the decomposed body of the child as that of Tanushree. It is profitable to refer to the judgment of the Hon'ble Apex Court in SHIVAJI CHINTAPPA PATIL v. STATE OF MAHARASHTRA reported in AIR 2021 SUPREME COURT 1249 regarding absence of motive in a case of circumstantial evidence. It has been held that absence of motive in a case depending on circumstantial evidence is a factor that weighs in favour of the accused. Therefore, the prosecution has failed to establish the motive and identity of decomposed dead body of the child as Tanushree on the
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CRL.A.No.425 OF 2017 basis of identification given by PW.3-Nagaraju on the basis of the school uniform.
26. The prosecution to prove the second circumstance of last seen theory, relied on the evidence of PW.10-Mallesh who was working as Gate Operator in Iggalur dam. PW.10-Mallesh has deposed to the effect that on 18.11.2010 he was on duty in the second shift from 2.00 P.M. to 10.00 P.M. At about 5.00 P.M., both the accused were found watching the dam site with a child and thereafter in the evening after putting the light, went to the house. On the next date, another watchman, PW.5- Siddaraju told him that the chappals of the child were found near the dam site.
On 17.12.2010 police had brought accused Nos.1 and 2 and the police enquired with him of having seen accused earlier to it. He told the police that accused had come to dam site. The police accompanying accused Nos.1 and 2 told him that accused have pushed the child in the dam water and the dead body was found in between the stones
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CRL.A.No.425 OF 2017 near Sargoor and he identifies the child on seeing the photograph Ex.P.6.
PW.10-Mallesh refers the name of PW.5-Siddaraju having told the chappals of the child was found near the dam site. However, the evidence of PW.5-Siddaraju does not speak anything that he having told PW.10-Mallesh that the chappals of the child were found lying near the dam site. The evidence of PW.5-Siddaraju is also silent that he having seen accused Nos.1 and 2 with the child. Therefore, on what basis PW.5-Siddaraju told PW.10- Mallesh about the chappals of the child found lying near the dam site has not been clarified by the prosecution out of the evidence placed on record. PW.10-Mallesh during the course of cross-examination admits that he has not produced any documents to the police that he was on duty at dam site, further admits that there is movement of vehicles and the public on the dam site and he cannot identify any such public. PW.10-Mallesh further admits he cannot tell the dresses worn by accused Nos.1 and 2 and also the child. If at all PW.10-Mallesh had an occasion to
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CRL.A.No.425 OF 2017 see the child accompanying accused Nos.1 and 2 on the dam site, then at least the said child wearing school uniform could not have gone unnoticed by him. The photograph Ex.P.6, which was shown to PW.10-Mallesh by the police, was taken after tracing the dead body having school uniform. When according to case of prosecution PW.10-Mallesh could able to identify the child in the photograph Ex.P.6 with the school uniform, then there was absolutely no any difficulty for him to disclose the said fact before the Investigating Officer that he has seen the child with accused Nos.1 and 2 who was in the school uniform. The wearing of school uniform by the child could have been noticed by anybody who is near the child. PW.10- Mallesh further admitted in his cross-examination that after PW.5 Siddaraju informing him about having found the chappals at the dam site, he has not informed the same to the police. PW.10-Mallesh further admits in his cross- examination that the police has not taken any attendance register to show that he was on duty at dam site on the relevant date. Therefore, in view of the above referred
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CRL.A.No.425 OF 2017 evidence of PW.10-Mallesh, it is difficult to believe his evidence to prove the last seen theory claimed by the prosecution that PW.10-Mallesh has seen Tanushree in the company of accused Nos.1 and 2 at the dam site on the date of incident. In this context of the matter, it is profitable to refer the latest judgment of Hon'ble Apex Court in Dinesh Kumar V. State of Haryana reported in AIR 2023 SC 2795 wherein it has been observed and held that the evidence of last seen itself was on a weak footing considering the long gap of time between last seen by neighbour and time of death of deceased. The Hon'ble Apex Court by referring to it's earlier judgment in Malleshappa v. State of Karnataka reported in AIR 2008 SC 69 has held that :
"The circumstances of last seen together does not by itself lead to irrevocable conclusion that it is the accused who had committed the crime. The prosecution must come out with something more to establish this connectivity with the accused and the crime committed. Particularly, in the present case when there is no close proximity between circumstances of
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CRL.A.No.425 OF 2017 last seen together and the appropriate time of death, the evidence of last seen become weak."
In the present case also PW.10 Mallesh alleged to have seen deceased Tanushree in the company of accused Nos. 1 and 2 on 18.11.2010 and the decomposed body which is said to be that of Tanushree is recovered on 17.12.2010. There is not only long gap between the last seen theory and recovery of decomposed dead body, further it was found that evidence of PW.10 Mallesh is unreliable, so also the identity of decomposed dead body has not been established by the prosecution. Therefore, prosecution has failed to prove the second circumstance of last seen theory through the evidence of PW.10-Mallesh.
27. The prosecution to prove the third circumstance of recovery of dead body at the instance of accused Nos.1 and 2 seeks to rely on the evidence of PW.2-Satisha, PW.4-Mahadeva and PW.11-Swamy. PW.2-Satisha has deposed to the effect that about one-and-half year back, police took him to Iggalur dam site for searching the dead
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CRL.A.No.425 OF 2017 body of daughter of complainant PW.3-Nagaraju. He searched the dead body of daughter of complainant PW.3- Nagaraju along with the police and the dead body was found stuck in between the stones where the water was flowing. The dead body was in a decomposed state. On the basis of school uniform, PW.3-Nagaraju identified that the decomposed dead body of the child is that of Tanushree and accordingly, inquest panchanama is prepared at Ex.P.2 and has signed as Ex.P.2(a), so also identified MOs.1 and 2.
28. PW.4-Mahadeva has deposed to the effect that on 17.12.2010, the dead body of Tanushree was found which was stuck in between the stones. It is only the bones were found and accused have shown the said place. Accordingly, inquest panchanama Ex.P.2 was prepared and he has signed at Ex.P.2(b).
29. PW.11-Swamy has deposed to the effect that police had brought accused Nos.1 and 2 near Shimsha river and while he was fishing, found the dead body of the child
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CRL.A.No.425 OF 2017 stuck in between the stones and he has shown the place where the dead body was found to the police. Accused Nos.1 and 2 have seen the dead body, accused No.1 identified the dead body as that of Tanushree. PW.11 further deposed to the effect that he has carried the police officials and the accused in a raft and he identified the child on seeing the photograph Ex.P.5.
30. Accused have denied that the dead body of Tanushree was recovered at their instance. It is suggested to the PW.15-T.Mahadeva, Investigating Officer during the course of cross-examination that fisherman who were catching fish in the Shimsha river have given information to the police about having seen the dead body and they have told the said fact to the villagers and the police. PW.2-Satisha in his entire examination-in-chief does not vouchsafe the evidence of PW.11-Swamy that he has taken police officials and accused Nos.1 and 2 in his raft. PW.4-Mahadeva though states that accused have shown the place where the dead body was found lying, but his
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CRL.A.No.425 OF 2017 examination-in-chief is totally silent about PW.11-Swamy having carried police officials and the accused in his raft and they shown the place where the dead body of Tanushree was found. PW.2-Satisha admitted in his cross- examination that he knew complainant PW.3-Nagaraju and his wife accused No.1-Saritha, since he is in visiting terms to the house of PW.3-Nagaraju and the witnesses Manjunatha and Mahadeva are also known to PW.3- Nagaraju. PW.4-Mahadeva admitted in his cross- examination that he is the relative of PW.3-Nagaraju and therefore, he had gone to Thalaghattapura. The presence of PW.2-Satish and PW.4-Mahadeva at the time of recovery of dead body of Tanushree was not corroborated by the evidence of PW.11-Swamy. Therefore, the presence of PW.2-Satisha and PW.4-Mahadeva in spite of PW.2 knowing PW.3-Nagaraju very well and PW.4 being the relative, their presence at the time of recovery of dead body of Tanushree is very much doubtful. Further PW.11- Swamy also has not spoken about the presence of PW.2- Sathish and PW.4-Mahadeva at the time of recovery of
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CRL.A.No.425 OF 2017 dead body. If the above referred evidence of PW.2- Swamy, PW.4-Mahadeva and PW.11-Swamy is appreciated and read together then, it would go to show that it is difficult to believe their evidence that decomposed dead body which was alleged to have identified by complainant PW.3-Nagaraju on the basis of school uniform has been recovered at the instance of accused Nos.1 and 2.
31. The prosecution relies on the fourth circumstance regarding recovery of pledged gold articles of accused No.1 in Nandi Bankers Jewellery shop. The prosecution to prove the same relies on the oral testimony of PW.8- P.Kumar, PW.9-Ladhuram and that of the Investigating Officer, PW.15-T.Mahadeva. The recovered gold articles have been identified by complainant PW.3-Nagaraju. PW.8-P Kumar is working in Nandi Bankers Jewellery shop belongs to PW.9-Ladhuram and has deposed to the effect that accused No.1 was brought to their shop on the pretext that she has pledged the ornaments of the child and enquired about the same with his owner. The owner of
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CRL.A.No.425 OF 2017 the shop produced one Mangalya chain and gold ring which came to be recovered under the panchanama Ex.P.14 and identifies his signature Ex.P.14(a). Further, he identified the said articles MOs.4 and 5.
32. PW.9-Ladhuram who is the owner of Nandi Bankers Jewellery shop in Malavalli has deposed to the effect that PW.8-P.Kumar is working in his shop for the last 5 years and about three years back, accused No.1 came to his shop as a customer and pledged the chain and ring and has issued the receipt accordingly.
Thereafter, police had brought accused No.1 and another person to his shop and the ornaments with receipts came to be seized under panchanama Ex.P.14 and he could identify the receipt if shown to him.
On careful perusal of the oral testimony of PW.7- P.Kumar and PW.9-Ladhuram, it would go to show accused No.1 alleged to have pledged gold chain and ring and the same came to be recovered under the panchanama Ex.P.14. PW.8-P.Kumar and PW.9-Ladhuram both have
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CRL.A.No.425 OF 2017 claimed that receipt has been issued for having pledged the gold articles by accused No.1. However, no any such original receipt has been produced by the prosecution and it is recorded in the deposition of PW.8-P.Kumar that a zerox copy is found in the records. However, the zerox copy of the receipt has not been marked, even subject to objection of defence counsel nor original receipt is produced in this case by the prosecution. The evidence of PW.15-T.Mahadeva, Investigating Officer is totally silent for having seized original receipt from Nandi Bankers Jewellery shop belongs to PW.9-Ladhuram. PW.15- T Mahadeva, Investigating Officer has offered no any explanation for not producing original receipt having pledged the gold articles of accused No.1 with PW.9- Ladhuram. It is only through the evidence of PW.9- Ladhuram the register Ex.P.15 came to be produced on the pretext that the original receipt was not found in his shop and the said register contains the particulars of the pledged articles, the register Ex.P.15 and the relevant page 89 at Ex.P.15(a) came to be marked.
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CRL.A.No.425 OF 2017 It has been elicited in the cross-examination of PW.9- Ladhuram that in Ex.P.15(a) 'Satisha' is over written as 'Saritha' and the description of ring finger or ear ring has not been shown in Ex.P.15. It is stated by PW.9-Ladhuram in the short form it is written in the register, but the details regarding the description of the property pledged will be mentioned in the receipt. The pledged articles will be returned on verifying with the description in the receipt and in the register after receiving back the pledged money by obtaining the signature of the customer. PW.9- Ladhuram has categorically admitted that he has not obtained signature of Saritha or Shivu in Ex.P.15(a). PW.9-Ladhuram further admits that there are no any special identification mark of the pledged articles. PW.9- Ladhuram has further admitted that after taking the receipt from the customer, pledged articles will be returned by obtaining their signature and the receipt will be retained by him. According to the evidence of PW.9- Ladhuram, the original receipt is with the police and he has made endorsement in the register for having delivered
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CRL.A.No.425 OF 2017 the receipt to the police. Therefore, from the said admissions of PW.9-Ladhuram during the course of his cross-examination, it is difficult to believe his evidence regarding accused No.1 having pledged MOs.4 and 5 in the absence of production of original receipt and also taking signature of accused No.1 when the pledged articles were received before giving money. The mere identification of gold articles MOs.4 and 5 by complainant PW.3-Nagaraju during the course of his evidence itself cannot be said as sufficient evidence to hold that the same was recovered at the instance of accused Nos.1 and 2 from the shop of PW.9-Ladhuram. In view of the above referred discrepancies in the evidence of PW.8-P.Kumar and PW.9- Ladhuram, further no explanation having been offered by PW.15-T Mahadeva, Investigating Officer for not producing original receipt, would create serious doubt regarding accused No.1 having pledged MOs.4 and 5 and the same were recovered at the instance of accused No.1 from Nandi Bankers Jewellery shop of PW.9-Ladhuram. The
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CRL.A.No.425 OF 2017 prosecution has failed to prove this circumstance of recovery at the instance of accused Nos.1 and 2.
33. The last circumstance relied by the prosecution is the conduct of accused. Since accused Nos.1 and 2 were found together living in a house at Haragi Village of Shivamogga, the prosecution to prove the said fact relies on the oral testimony of PW.13-Durgegowda and that of the first Investigating Officer PW.7-A.P.Kumar. PW.13-Durgegowda has deposed to the effect on 16.12.2010, himself and PC.1189 Venkategowda were deputed to trace the missing person case registered in Thalaghattapura Police Station in Crime No.600/10. While they were in search of the missing person and collecting information from the informants, went to Haragi village of Shivamogga and both the accused were found in the house of the said village. On arresting both of them at 4.00 A.M. were brought to Thalaghattapura and produced before the Investigating Officer, PW.7-A.P.Kumar.
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CRL.A.No.425 OF 2017 Investigating Officer PW.7-A.P.Kumar has deposed to the effect that he has deputed PW.13-Durgegowda and PC.1189 Venkategowda for tracing the missing person in the case registered in Thalaghattapura Police Station in Crime No.600/10. They produced accused Nos.1 and 2 before him on 17.12.2010 at 11.30 A.M. PW.13-Durgegowda in his cross-examination admits that no warrant was issued for proceeding to Shivamogga, further there is no mention in the register of the Police Station regarding leaving to Shivamogga and he has not signed in the register before proceeding to Shivamogga, so also no any photographs or the description of the missing persons or also description of the accused person was given to them. PW.13-Durgegowda further admits that he has not stated in his statement that in which vehicle they had gone to Shivamogga and he do not know the distance between Thalaghattapura to Harige village and Shivamogga. He further admitted in his cross- examination that he did not call the neighbours of the house before proceeding to arrest accused Nos.1 and 2.
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CRL.A.No.425 OF 2017 PW.13-Durgegowda though states in his cross- examination that the house where accused Nos.1 and 2 were found belongs to their relatives and he did not verify in the said house about any articles belongs to accused Nos.1 and 2.
Investigating Officer PW.7-A.P.Kumar has also admitted in his cross-examination that he has not produced any documents for having deputed PW.13-Durgegowda and PC 1189 Venkategowda for tracing the accused and they having brought the accused from Harige village. Investigating Officer PW.7-A.P.Kumar further admitted in his cross-examination, he did not enquire the owner of the house and did not send any woman police for tracing accused No.1-Saritha. PW.15-T Mahadeva, Investigating Officer has also admitted in his cross-examination that he did not enquire the owner of the house or shown the owner of the house as charge sheet witness, further admits that he did not enquire about any advance having given by accused for taking the house on rent and he has not prepared any panchanama to show that accused Nos.1
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CRL.A.No.425 OF 2017 and 2 stayed in the said house. If the above referred evidence of Investigating Officer, PW.7-A.P.Kumar and PW.13-Durgegowda and that of PW.15-T.Mahadeva, the second Investigating Officer is appreciated then, it is very difficult to believe their evidence that accused Nos.1 and 2 were found together staying in the house situated in Harige village of Shivamogga Taluk and they brought them from the said place and then produced before Investigating Officer PW.7-A.P.Kumar. Therefore, the prosecution has failed to prove the said circumstance regarding the conduct of accused has also not been proved by the prosecution.
34. When the case of prosecution totally rests on circumstantial evidence, the evidence of prosecution witnesses must complete the chain of events as claimed by the prosecution to conclusively hold that it is only accused Nos.1 and 2 who have committed the murder of Tanushree, daughter of complainant PW.3-Nagaraju and accused No.1-Saritha and there is no possibility of involvement of other person in the murder of Tanushree.
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CRL.A.No.425 OF 2017 The prosecution in view of the above recorded reasons has failed to prove the complete chain of circumstance to unerringly point out finger against accused that it is accused Nos.1 and 2 have committed murder of Tanushree. The Trial Court has appreciated the material evidence placed on record and was justified in acquitting accused Nos.1 and 2. We find no any valid reason to interfere with the findings recorded by the Trial Court. Consequently, proceed to pass the following :
ORDER The appeal filed by Appellant/State is hereby dismissed as devoid of merits.
The honorarium of the learned Amicus Curiae for respondent No.2 is fixed as Rs.5,000/- payable by the registry.
Registry is directed to transmit the copy of this judgment along with the records to the Trial Court.
SD/-
JUDGE SD/-
JUDGE rs