Karnataka High Court
State Of Karnataka vs V Ramesh Bairy on 20 January, 2022
Bench: K.Somashekar, Pradeep Singh Yerur
1
R
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 20TH DAY OF JANUARY, 2022
PRESENT
THE HON'BLE MR.JUSTICE K.SOMASHEKAR
AND
THE HON'BLE MR. JUSTICE PRADEEP SINGH YERUR
CRIMINAL APPEAL NO. 1436 OF 2017
CONNECTED WITH
CRIMINAL APPEAL NO. 1699 OF 2017
CRL.A.No.1436 OF 2017:
BETWEEN:
Smt. Shrungeshwari Adiga
W/o Late Lakshmi Narayana Adiga
Aged about 63 years
R/at Kokkana Bailu
Vandaru Grama, Vandaru Post
Udupi Taluk, Dakshina Kannada.
...Appellant
(By Sri. Vishnumurthy - Advocate)
AND:
1. V. Ramesh Bairy
S/o. Late Subbanna Bairy
Aged about 41 years
R/at Subramanya Nilaya
Kokkanabailu
Vandaru Village
Udupi Taluk.
2
2. Subramanya Udupa
S/o. Venkata Ramana Udupa
Aged about 55 years
R/at Malige Mane
House No.34/7, 14th Cross
10th Main, Wilson Garden
Bengaluru.
3. Umesh
S/o Late Murugesha
Aged about 41 years
R/at No.186, 6th Main
Banashankari 3rd Main
Bangalore.
4. Naveen C
S/o. Late Chennappa
Aged about 34 years
R/at No.124, Hosakere Halli
Pushpagiri Nagara Layout
Banashankari 3rd Main
Bangalore.
5. K.S. Raghavendra
S/o. Srinivas Murthy
Aged about 33 years
R/at No.4/1, 4th Cross
Goudanapalya
Padmanabha Nagar
Bangalore.
6. Mohan Kumar D
S/o. Dharmalingam
Aged about 33 years
R/at No.9, 15th Cross
8th Main, B.S.K. II-Stage
Bangalore.
3
7. Ravichandra T.C
S/o. Chandrashekaraiah
Aged about 33 years
R/at No.3088, M Cross
C-Block, Gayathrinagar
Bangalore.
8. Vijaya Sarathi S.K
S/o. Late Sooryanarayana
R/at Sitadel, No.4
19th B Main, 15th Cross
Padmanabhanagar
Bangalore.
9. State of Karnataka
By Shankara Narayana P.S
Kundapura
R/p by Public Prosecutor
High Court of Karnataka
Bangalore - 01.
...Respondents
(By Smt. K.P. Yashoda - HCGP for R-9;
Sri. M.J. Alva - Advocate for R-2;
Sri. B. Anand - Advocate for R-1, R-3 to R-8)
This Criminal Appeal filed under Sec.372 of
Criminal Procedure Code, by the Advocate for the
appellant praying to set aside the judgment passed by
the learned Addl. District and Sessions Judge, Udupi
(Sitting at Kundapura), Kundapura in S.C.No.4/2014
vide its judgment dated 11.05.2017 and convict the
respondents in this case.
4
CRL.A.No.1699 OF 2017:
BETWEEN:
State of Karnataka
By Dy.S.P. Kundapura
R/p by State Public Prosecutor
High Court Building
Bangalore - 01.
...Appellant
(By Smt. K.P. Yashoda - HCGP)
AND:
1. V. Ramesh Bairy
S/o. Late Subbanna Bairy
Aged about 41 years
R/at "Subramanya Nilaya"
Kokkanabailu, Vandaru Village
Udupi Taluk-576101.
2. Subramanya Udupa
S/o. Venkataramana Udupa
Aged about 55 years
R/at "Malige Mane"
House No.34/7, 14th Cross
10th Main, Wilson Garden
Bengaluru-560027.
3. Umesh
S/o Late Murugesha
Aged about 41 years
R/at No.186, 6th Main
Banashankari 3rd Main
Bangalore-560085.
4. Naveen C
S/o. Late Chennappa
Aged about 34 years
5
R/at No.124, Hosakere Halli
Pushpagiri Nagara Layout
Banashankari 3rd Main
Bangalore-560085.
5. K.S. Raghavendra
S/o. Srinivas Murthy
Aged about 32 years
R/at No.4/1, 4th Cross
Goudanapalya
Padmanabha Nagar
Bangalore-560070.
6. Mohan Kumar D
S/o. Dharmalingam
Aged about 33 years
R/at No.9, 15th Cross
8th Main, Banashankari II-Stage
Bangalore-560085.
7. Ravichandra T.C
S/o. Chandrashekarayya
Aged about 33 years
R/at No.3088, M Cross
C-Block, Gayathrinagara
Bangalore-560021.
8. Vijaya Sarathi S.K
S/o. Late Y.V Sooryanarayan
R/at Sitadel, No.4
19th B Main, 15th Cross
Padmanabhanagar
Bangalore-560070.
...Respondents
(By Sri. B. Anand - Advocate for R-1, R-3 to R-8
Sri. M.J. Alva - Advocate for R-2)
6
This Criminal Appeal filed under Sec.378(1) and
(3) of Criminal Procedure Code, by the Advocate for the
appellant praying to grant leave to appeal against the
judgment and order of acquittal dated 11.05.2017
passed by Addl. District & Sessions Judge, Udupi
(Sitting at Kundapura) Kundapura in Sessions Case
No.4/2014, acquitting the accused/respondents of the
offences punishable under Sections 143, 144, 147, 148,
341, 302, 201 r/w Sec. 149 of IPC; set aside the
judgment and order of acquittal dated 11.05.2017
passed by Addl. District & Sessions Judge, Udupi
(Sitting at Kundapura) Kundapura in Sessions Case
No.4/2014, acquitting the accused/respondents of the
offences punishable under Sections 143, 144, 147, 148,
341, 302, 201 r/w Sec. 149 of IPC and convict and
sentence the respondents/accused.
These criminal appeals coming on for further
arguments through video conference this day,
K. Somashekar .J delivered the following:
COMMON JUDGMENT
The appeal in Crl.A.No.1436/2017 is preferred by
Smt.Shrungeshwari Adiga being the complainant and
the appeal in Crl.A.No.1699/2017 is preferred by the
Appellant/State. Both these appeals have been
preferred by the appellant / complainant and so also
State by challenging the acquittal judgment rendered by
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the of Additional District and Sessions Judge, Udupi
(sitting at Kundapura) Kundapura in S.C.No.04/2014
dated 11.05.2017 acquitting the accused for the
offences punishable under Sections 143, 144, 147, 148,
341, 302, 201 read with Section 149 of Indian Penal
Code, 1860.
2. The appellant - Smt.Shrungeshwari Adiga in
Crl.A.No.1436/2017 seeks for setting aside the
judgment of acquittal rendered by the trial Court in
S.C.No.04/2014 dated 11.05.2017 and to convict
respondents / accused for the aforesaid offences.
3. Whereas, the State has preferred appeal in
Crl.A.No.1699/2017 by challenging similar acquittal
judgment in S.C.No.04/2014 dated 11.05.2017 and
seeking to set-aside the judgment of acquittal and to
convict the accused who are arraigned as respondents
in this appeal. Both these appeals arise out of same
judgment of acquittal in S.C.No.04/2014 dated
8
11.05.2017. Therefore, both these appeals have to be
disposed of through this common judgment.
4. Heard learned counsel Sri.Vishnumurthy for
the appellant/complainant in Crl.A.No.1436/2017,
learned counsel Sri.M.J.Alva for respondent No.2 and
learned counsel Sri.B.Anand for respondent Nos.1, 3
and 8 who are appearing through video conferencing
and so also, learned HCGP for State namely
Smt.K.P.Yashoda who is present before the Court
physically. Similarly, heard arguments of learned HCGP
for the State namely Smt.K.P.Yashoda in
Crl.A.No.1699/2017 and learned counsel Sri.B.Anand
for respondent Nos.1, 3 to 8, counsel Sri.M.J.Alva for
respondent No.2. Perused the judgment of acquittal
rendered by the trial Court in S.C.No.04/2014 dated
11.05.2017 consisting the evidence of PW.1 to 96 and
so also several documents which are got marked at
Exs.P1 to 240 and MOs.1 to 67.
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5. Factual matrix of these appeals are as under :
It is transpired in the case of the prosecution that
the accused No.1 - Ramesh Bairy by avocation as
Astrologer, Palmist and so also called as God-man
abode of Vandaru village of Kundapura Taluk and
accused No.2 - Subramanya Udupa is the brother-in-
law of accused No.1 who is also by avocation as
Astrologer and Palmist being abode of Wilson Garden
locality at Bengaluru. Deceased - Vasudeva Adiga is
also being abode of Vandaru village situated in
Kundapura Taluk and his house is situated near the
house of accused No.1 - namely Ramesh Bairy who were
sharing long standing enmity relating to the land
bearing Sy.No.30/7P1, Sy.No.1/1B, Sy.No.103/1
situated at Vandaru village at Kundapura Taluk.
Several litigations were pending on the file of Civil
Courts of Kundapura and several litigations passed on
from generation to generation between both the families.
10
But ultimately deceased - Vasudeva Adiga succeeded in
securing the decree of possession relating to the
aforesaid disputed properties. The Court passed an
order for handing over the possession of disputed land.
But accused No.1 - Ramesh Bairy was adamant and did
not wanted to vacate the premises inspite of the order
passed by the Court of law. Accused No.1 - Ramesh
Bairy suffered several set backs in civil litigations and
also suffered humiliation and consequently, had under
gone depression. Apart from this, several criminal cases
were also initiated against accused No.1 - Ramesh Bairy
by the deceased - Vasudeva Adiga. Both were
maintaining some sort of criminal litigations which is to
be termed as criminal prosecution. In addition to that
accused No.1 - Ramesh Bairy in order to widen the road
leading to his house situated in Vandaru village of
Kundapura Taluk that the public trees and plants were
cut off by him. In this regard, deceased - Vasudeva
Adiga had launched criminal prosecution against the
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accused by filing complaint before the Forest
Department. Consequently, officials of the Forest
Department had issued notice to the accused and also
held enquiry and convicted and sentenced the accused
to pay fine and closed the file relating to the criminal
prosecution initiated by deceased - Vasudeva Adiga. In
these developments in between accused No.1 and the
deceased they became desperado and helpless and
consequently, started some sort of grudge against
deceased - Vasudeva Adiga and ultimately, accused
No.2 who is none other than brother-in-law of accused
No.1 residing at Bengaluru, they held criminal
conspiracy among themselves in order to eliminate
deceased - Vasudeva Adiga. Accordingly, accused No.3
- Umesh who is abode of Bengaluru was also one of the
disciple and follower of accused Nos.1 and 2. On
13.07.2012 and 04.01.2013 accused Nos.1 to 3 entered
into criminal conspiracy in order to eliminate deceased -
Vasudeva Adiga.
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6. It is further stated that due to the criminal
conspiracy hatched among themselves, accused No.3
further contacted co-accused Nos.4 to 8 who were also
abode of Bengaluru and briefed the criminal conspiracy
among themselves in order to eliminate deceased -
Vasudeva Adiga. But accused Nos.1 and 2 have under
gone mental agony regarding set back insofar as the
civil litigations and so also, criminal prosecution which
caused harassment to them and so also, due to the
criminal prosecution initiated inter-se between deceased
- Vasudeva Adiga and accused No.1 - Ramesh Bairy.
But according to the criminal conspiracy hatched
among them, accused Nos.3 to 8 met accused No.1 and
they held meeting as a conspiratorial agreement on
04.01.2013. Accused No.1 - Ramesh Bairy with an
intention to eliminate deceased - Vasudeva Adiga,
hatched the criminal conspiracy among themselves and
also made an arrangement of sending photographs of
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deceased - Vasudeva Adiga through his relative to
accused No.3 regarding identification of the deceased.
7. On 05.01.2016 accused Nos.3 to 8 were present
in the office of accused No.3 and according to the
criminal conspiracy hatched to eliminate the deceased -
Vasudeva Adiga, accused Nos.1 to 3 started from
Bengaluru in Safari vehicle bearing Registration No.KA-
04-MD-7080 and Scorpio vehicle bearing Registration
No.KA-05-MD-7934 on 07.01.2013 and through those
vehicles they passed through Tumkur Toll Gate and
then they came to Hosalli-Kalmani cross and prior to
that there was some sort of agreement which was
agreed between accused Nos.3 to 8 and accused No.1.
Accused No.1 - Ramesh Bairy started from Vandaru
village in the morning on 07.01.2013 with his driver
under the false pretext that they will proceed to his
sister's house and accused No.1 will meet these accused
Nos.3 to 8 who started from Bengaluru at Kalmani cross
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to discuss regarding the criminal conspiracy hatched
among themselves. They got down from their vehicle
after filling petrol at Agumbe and passed through check
out and came to the locality of Vandaru village of
Kundapura Taluk on 07.01.2013 at around 8.30 p.m.
According to the criminal conspiracy hatched among
them, they searched for deceased - Vasudeva Adiga to
commit his murder and on 07.01.2013 at around 8.30
p.m. accused were armed with deadly weapons such as
jack liver and wooden cudgel and they were able to see
deceased - Vasudeva Adiga who was coming to his
house in Vandaru village on his motor cycle bearing
Registration No.KA-05-A-596 and they wrongfully
restrained him at Vandaru village and immediately,
accused No.4 encircled rope around the neck of
deceased - Vasudeva Adiga and pulled him down from
his motor cycle and when the deceased - Vasudeva
Adiga fell down from his motor cycle, accused No.3
alleged to have assaulted with means of iron jack lever
15
on the head of deceased. Thereafter, accused Nos.6, 7,
and 8 held the deceased with means of their hands
firmly and at that time accused No.5 alleged to have
assaulted deceased with means of wooden cudgel on his
head and then co-accused Nos.3 and 4 encircled rope
around his neck and pulled it and also compressed his
neck. The deceased lost his breath due to Asphyxia. As
a result of the acts made by the accused on him,
injuries inflicted on his head part with means of iron
jack lever and wooden cudgel alleged to have been used
by the accused. Subsequent to the murder of the
deceased, accused Nos.3 to 8 with an intention to
destroy the evidence, carried the dead body of the
deceased in Scorpio vehicle bearing Registration No.KA-
05-MD-7934 and they proceeded towards Madagada
open tank situated in Yemmedoddi of Kadoor Taluk in
Chikkamagaluru District and therein brought down the
body of the deceased from the aforesaid vehicle and tied
the dead body with means of nylon rope and barbed
16
fence wire and tied 20 kgs weight stone to the dead
body of Vasudeva Adiga and dropped the dead body in
Madagada open tank so that the dead body of would
sink into water tank and then they went from there.
8. It is further alleged that deceased - Vasudeva
Adiga, did not return to the house on 07.01.2013 even
at late night. But his mother Smt.Shrungeshwari Adiga
who is arraigned as CW.1 called upon one Arun Kumar
Shetty who is cited as CW.2 and informed about her son
- Vasudeva Adiga did not return to the house on
07.01.2013. Therefore, CW.2 - Arun Kumar Shetty
proceeded to Shankarnarayana Police Station and
lodged missing complaint on 07.01.2013 which was
received on 08.01.2013 in the night at 00.15 hours and
case was registered in Crime No.54/2013 by
Shankarnarayana Police Station House Officer namely
Dejappa who is cited as CW.129 and CW.127 then one
police officer of Shankarnarayana Police Station came to
17
be informed by CW.2 - Arun Kumar Shetty at around
10.00 a.m. by making a telephone call that ball point
pen belonging to the deceased - Vasudeva Adiga and
also bottle cap is found near the house of accused No.1
- Ramesh Bairy and the deceased - Vasudeva Adiga.
Accordingly, the Police officials proceeded to that place
and inspected the place and drew panchanama which is
to be termed as spot and consequently, seized the ball
point pen and bottle cap in the presence of panch
witnesses CW.2, 10 and 11. At the same time from little
distance from there, they inspected the place and found
motor cycle parked at Iliyana locality in Goliyangadi
belonging to the deceased - Vasudeva Adiga came to be
recovered by drawing panchanama and they were able
to see the slipper stuck to the foot rest of the two
wheeler and came back to police station and started
investigation to find out the whereabouts of deceased -
Vasudeva Adiga. In pursuance of this, on the same day
i.e. on 08.01.2013 deceased mother CW.1 -
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Smt.Shrungeshwari Adiga went to the
Shankarnarayana Police Station and lodged a written
complaint making allegation against accused No.1 -
Ramesh Bairy and his brother - Krishna Murthy Bairy
and others that they have abducted her son - Vasudeva
Adiga. Accordingly, criminal case was registered by
recording FIR for the offences punishable under
Sections 120B, 143, 144, 147, 148, 341, 302, 201 read
with Section 149 of Indian Penal Code, 1860.
9. Criminal law was set into motion by recording
FIR based upon the complaint made by
Smt.Shrungeshwari Adiga and it is relevant to refer FIR
of Kadoor PS at Ex.P157, FIR of Shankarnaraya PS at
Ex.P160 and FIR No.05/2013 of Shankaranaraya PS at
Ex.P195. Subsequent to registration of the crime,
investigating agency made elaborate arrangement to
find out suspected offender / accused / felonies in the
crime. CW.138 being CPI conducted investigation after
19
registering the crime based upon the written complaint
filed by Smt.Shrungeshwari Adiga. During the
investigation on 18.01.2013 visited Vandaru village of
Kundapura Taluk and recorded the statements of
CWs.2, 10, 11, 12, 13, 19, 35, 36 and made
arrangements to trace the suspected accused persons.
But in consultation with superior officer as the
Superintendent of police they have informed two or
three wings assisting police officials to trace the real
culprits who have been involved in the incident.
10. On 10.01.2013 CW.138 being CPI received
information that mobile is lying at locality called as
Kakambailu and came to know that it belongs to the
deceased - Vasudeva Adiga and it was inserted with sim
of Airtel company and the same was recovered during
mahazar. On 12.01.2013, CW.138 being CPI received
the information that dead body of male is floating in
Madagada open tank situated in Yemmedoddi village
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Kadur Taluk, Chikkamagaluru District. The dead body
of male was tied with means of rope and barbed fence
wire and 20 kgs weighing stone. On search being made
of the pockets of the clothes of the deceased, a chit was
found in which name of the deceased - Vasudeva Adiga
is mentioned and chit is pertaining to recharging of
cable connection of Vasudeva Adiga's house.
Immediately, CW.138 - CPI informed the said matter to
the brother of the deceased - Krishna Murthy Adiga.
Accordingly CW.6 - Krishna Murthy Adiga proceeded to
Kadoor and on the way he was informed that dead body
was shifted to McGann hospital at Shivamogga and
whereby the identification of the dead body of Vasudeva
Adiga and his clothes on the same day on 12.01.2013
was done. CW.138 - CPI of Shankarnarayana had
proceeded to McGann Hospital, Shivamogga and
inspected the dead body of Vasudeva Adiga and after
identification of the dead body he returned to
Kundapura. In the meanwhile, superior officer had
21
passed an order that investigation is to be conducted by
then DYSP - Yashoda S Ontagodi, CW.139 and handed
over further investigation to CW.139.
11. CW.139 - Yashoda S Ontagodi took the case
for further investigation on 13.01.2013. In the
meanwhile, Superintendent of Police, Udupi had already
appointed CW.138 being CPI and also Byndoor Circle
Inspector who is cited as CW.137 in order to collect
evidence. On 08.01.2013 she had appointed CW.130 -
Sampath Kumar Shetty being PSI to proceed for
collecting evidence relating to the conversation that took
in between the suspected accused and others. During
investigation on 13.01.2013 CW.139 - Yashoda S
Ontagodi visited the place of the incident and also
visited the house of accused No.1 - Ramesh Bairy and
verified the C.C camera installed in the house of
accused No.1, but found that C.C. camera was kept
non-functioning particularly on 07.01.2013 when the
22
incident had occurred. CW.138 collected call records
relating to mobile of accused No.1 - Ramesh Bairy and
his brother-in-law - accused No.2 and so also suspected
other persons as accused. There was some sort of
conversation through mobile cell phone between one
Jayashri, Sumathi, Sundar, Raghavendra and others
and accordingly, the investigating officer continued the
investigation in the same direction relating to the
incident of the deceased - Vasudeva Adiga.
12. In pursuance of criminal law set into motion
by recording FIR based upon the written complaint filed
by CW.1 - Smt.Shrungeshwari Adiga and the case has
been investigated by CW.138 and CW.139 and collected
the material evidence and also seized the Safari car and
Scorpio car alleged to be used by the accused and so
also, conducted seizure mahazar as well as spot
mahazar inclusive of inquest over the dead body of the
deceased - Vasudeva Adiga and seized ropes and barbed
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fence wire as wells as 20 kgs of weighing stone alleged
to have been used by the accused and inclusive of iron
jack lever and wooden cudgel and drew mahazar in the
presence of panch witnesses and recorded the voluntary
statement of the accused and after completion of
thorough investigation by the investigating agency,
charge sheet came to be laid against the accused before
the committal Court in C.C.No.1035/2013 for the
offences punishable under Sections 120B, 143, 144,
147, 148, 341, 302, 201 read with Section 149 of IPC,
1860. Subsequent to laying of charge sheet by the
investigating officer against the accused before
committal Court in C.C.No.1035/2013, the committal
Court had passed an order under Section 209 of Cr.P.C
by following provision under Sections 207 and 208 of
Cr.P.C.
13. Subsequent to committing the case to the
Court of sessions for trial that the case in
24
S.C.No.04/2014 has been registered for the aforesaid
offences. Subsequent to securing the accused to face
the trial, that the trial Court heard the arguments of the
learned Spl Public Prosecutor and also defence counsel
and on prima facie case against the accused found that
that charges were framed against the accused and read
over the charges to all the accused in the language
known to them. Accused Nos.1 to 8 did not pleaded
guilty but claimed to be tried. Accordingly, plea of the
accused has been recorded separately. Subsequently,
the case was set down for trial and prosecution let in
the evidence by subjecting to examination in all PWs.1
to 96 and got marked Ex.P1 to P240 and also got
marked MO.1 to MO.67. Subsequent to the closure of
the evidence of the prosecution that the accused were
examined as required under Section 313 of Cr.P.C for
enabling them to answer to the incriminating evidence
appeared against them and the accused denied the
truth of the prosecution witnesses adduced so far.
25
Accordingly, it was recorded separately. Subsequently,
accused were called upon to adduce defence evidence as
contemplated under Section 233 of Cr.P.C, but the
accused did not came forward to adduce any defence
evidence and the same was also recorded.
14. Subsequent to the closure of the evidence, the
trial Court had heard the arguments advanced by the
learned SPP and also defence counsel for accused and
on convincing the evidence adduced by the prosecution
so far even though it is plethora of evidence and
convincing the evidence let in by the prosecution,
arrived at the conclusion that the prosecution did not
facilitate worthwhile evidence for conviction relating to
the murder of the deceased - Vasudeva Adiga and
consequently, the trial Court rendered the acquittal
judgment in S.C.No.04/2014 dated 11.05.2017 in
respect of the offences leveled against them. This is the
26
judgment which is challenged under this appeal by
urging various grounds.
15. Learned HCGP for the State namely
Smt.K.P.Yashoda and also the learned counsel by
namely Sri. Vishnumurthy in Criminal Appeal
No.1436/2017 have taken us through the evidence of
PW.10 - Smt.Shrungeshwari Adiga who is none other
than the mother of deceased - Vasudeva Adiga. She
has stated in her evidence on 07.01.2013 Vasudeva
Adiga did not return to his house even at late night.
Therefore, she called upon PW.15 - Arun Kumar Shetty
and informed him about that her son deceased -
Vasudeva Adiga did not return to his house. PW.15 -
Arun Kumar Shetty approached Shankarnarayana
Police Station and lodged a missing complaint on
07.01.2013 and the same was received on 08.01.2013
in the night around 00.15 hrs. Consequently, registered
the missing complaint in Crime No.54/2013. As on
27
08.01.2013 Shankarnarayana Police Station House
Officer namely Dejappa, CW.129 and CW.127, then
police officer of Shankarnarayana Police Station came to
be informed by PW.15 - Arun Kumar Shetty at 10.00
a.m. by making a telephonic call that a ball point pen
belonging to the deceased - Vasudeva Adiga and a bottle
cap was found near the house of accused No.1 -
Ramesh Bairy. Accordingly, Shankarnarayana Police
officials rushed to the said place and inspected the
place and drew panchanama at the spot itself and ball
point pen and bottle cap were recovered in the presence
of PW.15 - Arun Kumar Shetty who is cited as CW.2
and so also, CW.10 and CW.11. Consequently,
inspected the place and at that time from little distance
from there they were able to find out one motor cycle
parked at Iliyana locality in Goliyangadi belonging to the
deceased and it came to be recovered by preparing
panchanama and they were also able to see the slipper
stuck to the foot rest of the two wheeler and came back
28
to Police Station. Thereafter started investigation to find
out the whereabouts of the deceased. On the same day
on 08.01.2013 deceased - Vasudeva Adiga's mother
namely Smt-Shrungeshwari Adiga came to
Shankarnarayana Police Station and lodged written
complaint alleging that accused No.1 - Ramesh Bairy
and his brother - Krishna Murthy Bairy and others have
abducted her son. Accordingly, criminal law was set
into motion by registering the case and recording FIR
and the same was dispatched to the Court having
jurisdiction.
16. Subsequent to registration of the crime and to
find out the suspects in the crime, CW.138 - CPI took
up the case for investigation. In continuance of this
investigation on 18.01.2013 he visited Vandaru village
and recorded the statements of several witnesses and
made arrangements for apprehending the accused. At
the same time Superintendent of Police in consultation
29
with the higher officers formed a team consisting of
police officials to find out the culprits and the suspected
accused who have been involved in eliminating
Vasudeva Adiga. On 10.01.2013, CW.138 received
information that a mobile is lying at the locality called
Kakambailu and came to know that it belonged to the
deceased and more so, it was inserted with sim of Airtel
company, and the same was recovered by preparing
panchanama. As on 12.01.2013, CW.138 who is the
investigating officer in part, received information that
dead body of male is floating in Madagadha kere
situated in Yemmedoddi village, Kadur Taluk of
Chikkamagaluru district and the dead body is tied with
ropes and also barbed fence wire and stone weighing 20
kgs and on search being made of the pockets of the
clothes of the deceased, a chit was found in which it
disclosed the name of Vasudeva Adiga and that chit was
relating to recharging of cable connection of Vasudeva
Adiga's house and CW.138 informed the matter to CW.6
30
- Krishna Murthy Adiga who is the brother of the
deceased and who was examined as PW.18. Then PW.18
- Krishnamurthy Adiga proceeded to Kadoor and on the
way he was informed that dead body of a male was
shifted to Mcgann Hospital at Shivamogga and identified
the dead body of a male by his brother and also
identified his clothes. On the same day on 12.01.2013
CW.138 who is CPI of Shankarayana Police Station
proceeded to Mcgann hospital at Shivamogga and
inspected the dead body of Vasudeva Adiga and
identified it and came back to Kundapur. But as per
orders of the superiors he handed over the investigation
to the then Dy.SP namely Smt.Yashoda S Ontagodi who
is cited as CW.139.
17. CW.139 took up the case for investigation on
13.01.2013. In the meantime, the Superintendent of
Police of Udupi had appointed CW.138, CPI and also
Byndoor Circle Inspector CW.137 in order to collect
31
evidence. On 08.01.2013 she had appointed CW.130 -
Sampath Kumar Shetty, PSI to collect evidence and
investigation was intensified by her to collect suitable
conversation in between the suspected accused and
others. In continuation of investigation on 13.01.2013
she gave visit to the place of incident and gave visit to
the house of accused No.1 and inspected CC camera
installed in the house of accused No.1 - Ramesh Bairy
but found that CC camera was kept non-functioning
particularly on 07.01.2013 when the incident had
occurred. CW.138 - CPI having collected the call details
relating to accused No.1 - Ramesh Bairy and his
brother-in-law, accused No.2 - Subramanya Udupa,
and suspected other accused gave information about it
and list disclosed. But in fact accused No.1 called upon
to phone 080-202567865 and there were mobile calls
exchanged in between one Jayashri, Sumathi, Sundar,
Raghavendra and others and she continued the
investigation in the same direction. This theory set up
32
on the part of the prosecution and the investigating
officer who is cited as CW.137 - Sampath Kumar
Shetty, CW.136- CPI and CW.149 who collected the
records relating to the land disputes pending between
the deceased - Vasudeva Adiga and accused No.1 -
Ramesh Bairy both criminal and as well as civil cases.
Whereas CW.129 - Dejappa informed CW.149 that
properties have been seized at the time of preparing
inquest mahazar over the dead body of Vasudeva Adiga
have been forwarded to Shankarnarayana Police Station
by Kadoor Police and secured permission of the Court to
investigate the offences under Sections, 302, 201 of IPC
and on 16.01.2013 she was informed by CPI - Arun
Naik CW.137 that Scorpio vehicle bearing Registration
No.KA-05-MD-7936 belongs to accused No.3 - Umesh
and his companions accused No.4 and 5 and they were
taken into custody and will be produced before her. On
17.01.2013 at about 11.00 a.m. when she was in DYSP
office, CW.137 CPI produced accused Nos.3, 4 and 5
33
before the Court of law with report. Accordingly,
accused were sent to judicial custody. Subsequently,
recorded the voluntary statements of accused Nos.3 to 5
and they have confessed that they have committed
murder of deceased - Vasudeva Adiga along with others
and executed the plan as per the criminal conspiracy
hatched among themselves. Accordingly, conducted the
mahazar. Subsequent to laying of the charge sheet by
the investigating officer against the accused before the
committal Court for the offences punishable under
Sections 120B, 143, 147, 148, 341, 302, 201 read with
Section 149 of IPC, 1860. Subsequent to framing of
charges against the accused that the prosecution had
let in the evidence of PW.1 to PW.96 and got marked
several documents as per Exs.P1 to P240 and also got
marked MOs.1 to 67. However, the trial Court after
scrutinizing the evidence of the prosecution inclusive of
documents and material objects, arrived at a conclusion
that the prosecution has failed to establish the guilt of
34
the accused by facilitating the worthwhile evidence and
rendered the acquittal judgment in S.C.No.04/2014
which is challenged under this appeal by urging various
grounds.
18. It is contended that the trial Court failed to
appreciate the evidence even though sufficient evidence
has been facilitated by the prosecution in recording the
conspiracy held by accused on 13.07.2012 and also
again on 04.01.2013 in the house of accused No.2 -
Subramanya Udupa situated in Wilson Garden,
Bengaluru to eliminate deceased - Vasudeva Adiga. As
according to the conspiracy that the accused Nos.3 to 8
who are co-accused were armed with deadly weapons
such as jack lever, wooden cudgel and having formed
unlawful assembly and accused traveled in two vehicles
said to have been used and also started their journey
and came near the house of the deceased and
wrongfully restrained the deceased by tying him with
35
means of Nylon rope and assaulted him with deadly
weapons and committed his murder. Subsequent to
committing murder of the deceased - Vasudeva Adiga
his body was dropped into Madagadha kere after tying
the dead body with nylon rope and barbed fence wire
and 20 Kgs weighing stone. As such the prosecution
had established the guilt of the accused by facilitating
the worthwhile oral and documentary evidence. The trial
Court did not appreciate the evidence in a proper
perspective manner which has resulted in substantial
miscarriage of justice. The trial court had erroneously
held that the prosecution had not established the guilt
of the accused by facilitating the worthwhile evidence
and not produced corroborative evidence relating to the
recovery of the articles from accused Nos.3 to 8 and
further erroneously held in disbelieving the prosecution
theory with regard to accused had traveled in two
vehicles namely Scorpio and Safari which are marked as
MO.1 and MO.13 and so also, erroneously disbelieving
36
the evidence of PWs.18, 19, 20, 21 inclusive of PW.12
and 13 with regard to the identification of accused
Nos.3 to 8 by Kalmane cross. Therefore, in this appeal it
requires for revisiting the entire evidence and also re-
appreciation of the evidence as wherein the trial Court
was misdirected, if not, scrutinizing the evidence in
respect of those witnesses, certainly there shall be
miscarriage of justice substantially. But evidence of
PWs.12, 13 and 14 are sufficient and if there is closely
scrutinized, then it is sufficient to hold that the accused
were seen prior to the scene of the incident coupled with
their evidence with regard to the test identification
parade and it is only evidence of materials on
prosecution for consideration in respect of eliminating
deceased - Vasudeva Adiga. It is further contended that
the trial Court ought to have seen that the prosecution
has established the guilt of the accused even for
consideration of ball point pen and also vehicle
belonging to deceased which were found nearby the
37
house of the deceased at Vandaru village. The recovery
of ball point pen was got marked as MO.9 under Ex.P35
and vehicle as MO.12 under Ex.P36, and the same has
been established from the evidence of PWs.15, 17 and
19 which found to be in credence to the prosecution
case with regard to the abduction of Vasudeva Adiga
and committing his murder. Therefore, the court below
ought to have seen the evidence regarding last scene
theory. It is through the evidence of PW.29 at around
9.00 p.m. on the date of the incident alleged the PW.29
who had spoken in his evidence that about the last
scene to the effect that having seen the deceased at
night and thereafter the deceased has not seen alive can
be taken into consideration.
19. Further, it is contended that the trial Court
has failed to appreciate that prosecution proved the test
identification parade conducted by PW.86 wherein
accused Nos.3 to 7 were identified with the help of
38
PWs.12 to 14. PW.86, Taluk Executive Magistrate
conducted the test identification parade to identify
accused Nos.3 to 7 on 19.02.2013. The evidence of
PW.86 coupled with evidence of PWs.12 to 14 on the
part of the prosecution is to be appreciated in a proper
perspective manner, then the said evidence is sufficient
to hold that the aforesaid witnesses have identified
accused Nos.3 to 7. But mere delay in conducting the
test identification parade in heinous cases is no fatal to
the case of prosecution and it cannot be a ground to
discard the same. PW.86 being Taluk Executive
Magistrate conducted test identification parade of
accused Nos.3 to 7 and they have been identified by
PWs.12 to 14. But the trial Court has given more
credentiality to their evidence which is based on
assumptions and presumptions and the same has
resulted in substantial miscarriage of justice. Therefore,
in this appeal it requires for consideration of the
evidence of those witnesses insofar as identification of
39
accused Nos.3 to 7 wherein the trial Court has held that
delay in conducting test identification parade is fatal to
the prosecution case and also erroneously held that the
evidence of PW.86 Taluk Executive Magistrate and also
evidence of Pws.12 to 14 have not been inspired the
confidence in the mind of the Court. The trial Court
erroneously disbelieved the test identification parade in
respect of accused Nos.3 to 7 and so also, relating to the
evidence of PW.12 to 14. Therefore, under this appeal it
requires for consideration of material evidence for re-
visiting and re-appreciation of evidence whereby the
trial Court has been mis-directed.
20. It is further contended that at the instance of
accused, MOs.1 and 13, vehicles were seized. M.O.1 -
Scorpio vehicles was inspected and also the seat cover
and they were sent for the purpose of DNA test and
opinion of experts disclose that blood stains in the
article and was found containing bloodstains of male
40
human being. The reasons stated by the trial Court is
not in accordance with law. Further, it is contended
that the trial Court has failed to appreciate the recovery
of MO.29 jack lever under mahazar conducted at
Ex.P72 and also recovery of M.O.32, knife and M.O.15,
wooden cudgel and the reasons assigned by the trial
Court to reject the recovery from the accused of the said
articles are erroneous and not in accordance with law.
Therefore, under this appeal it requires for re-visiting
and also re-appreciation of the evidence, if not, there
shall be substantial miscarriage of justice. On all these
premises learned HCGP for the State seeks for allowing
the appeal by considering the grounds as urged by
referring to the evidence of the prosecution witnesses
inclusive of mahazars and so also material objects and
seeks to set-aside the acquittal judgment rendered by
the trial Court in S.C.No.04/2014 dated 11.05.2017
and convict the accused for the offences punishable
41
under Sections 143, 144, 147, 148, 341, 302, 201 read
with Section 149 of IPC, 1860.
21. Learned counsel Sri.M.J.Alva for accused No.2
and learned counsel Sri.B Anand for accused Nos.1, 3
to 8 addressed their oral arguments and they have
submitted synoptic notes by referring the evidence of
prosecution witnesses and mainly relied upon the
evidence of PW.6, Ramakrishna Udupa, PW.7, Linga
Devru, PW.8, Mahesh Bhat and PW.9, Prashant. But all
these witnesses have been subjected to examination on
the part of prosecution and they did not support the
theory of prosecution with regard to conspiracy between
Accused No.1, 2 and 3. All these four witnesses have
been treated as hostile. Except the evidence of these
four witnesses, there is absolutely no evidence on the
part of prosecution to substantiate the theory of
conspiracy which is said to have been germinated from
Wilson Garden, Bengaluru. Therefore, first theory of the
42
conspiracy hatched among accused itself have been
turned around by the prosecution witnesses. There is
no any other supportive evidence in respect of
conspiracy hatched and projecting the theory by the
prosecution. Therefore, the first charge against the
accused in respect of conspiracy, the trial Court has
rightly held negative by assigning reasons. In view of
the same there is absolutely no material evidence placed
against accused No.2 by the prosecution and the
prosecution has miserably failed to bring the complicity
of the accused No.2 with the alleged offences. In
support of this concept of conspiracy theory counsel has
placed reliance of 2020 (5) SCJ 86 of Sathish Kumar &
another Vs. State of Himachal Pradesh whereby Hon'ble
Supreme Court has held in Paras 24 and 25 that in
case of acquittal there is double presumption in favour
of the accused. The power of the appellate court in case
of acquittals is restricted not confined only in cases if
43
the findings are found to be perverse and are not
possible by any reasonable person.
22. The Apex Court has followed the judgment in
the case of Chandrappa Vs. State of Karnataka reported
in 2007 (4) SCC 415.
23. In the case of Union of India Vs. Dafadar
Karthar Singh reported in 2020 (2) SCJ 177 - para 9 -
the Apex Court has held that the judgment of acquittal
may be reversed or otherwise disturbed only for very
substantial and compelling reasons.
24. In the case of Union of India Vs. Sepoy Pravat
Kumar reported in 2020 (2) SCJ 517 - Para 16 - The
Apex Court has held that if two views can be reached,
the one that leads to acquittal has to be preferred to the
other which would end in conviction.
25. In the case of R.Damodaran Vs. State reported
in 2021 (2) SCJ 220 - Paras 13 & 14 have been
44
extensively addressed by the Apex Court wherein it is
held that when the case rests upon the circumstantial
evidence such evidence must satisfy the four such as (i)
the circumstances from which an inference of guilt is
sought to be drawn must be cogently and firmly
established, (ii) those circumstances should be of a
definite tendency unerringly pointing towards guilt of
the accused, (iii) the circumstances taken cumulatively
should form a chain so complete that there is no escape
from the conclusion that within all human probability
that crime was committed by the accused and none else
and (iv) the circumstantial evidence in order to sustain
conviction must be complete and incapable of
explanation of any other hypotheses than that of the
guilt of the accused and such evidence should not only
be consistent with the guilt of the accused but should
be inconsistent with his innocence.
26. In the case of Sundar @ Sundararajan
reported in 2013 (5) SCJ 650 - Para 19 - The Apex
45
Court has drawn the five golden principles to constitute
the panchasheel of the proof of the case based on
circumstantial evidence.
27. In the background of these well settled
principles of law, the case based upon circumstantial
evidences in cases of acquittal, the above appeals are
required to be considered. However, the trial judge had
synchronized the following circumstances relied by the
prosecution in para 37 of its acquittal judgment.
28. Insofar as first circumstance regarding to the
death of Vasudeva Adiga, the trial Court has given
affirmative findings in para 38 in detail and conclude
that the death is proved and same is the homicidal
death. It is not the case of the defence that the
Vasudeva Adiga is alive. Therefore, the defence is that
accused are in no way responsible for his death and
there is absolutely no role to play from their end in the
alleged crime relating to eliminating the deceased -
46
Vasudeva Adiga as narrated. The moot question
whether there is any complicity on the part of the
accused No.2 and also role of co-accused but even in
the backdrop of the fact that the deceased himself
involved in the political activities. Therefore, he
developed several enemies around him due to his
involvement in the political field relating to mining,
quarrying and other activities in Udupi District.
29. In respect of second circumstance, the trial
Court has discussed the circumstance as not
convincingly established with corroborative evidence of
the witnesses facilitated by the prosecution referring to
the evidence of PWs.6 to 9 and held that even the
alleged conspiracy dated 13.07.2012 and 04.01.2013
has not been established by the prosecution by
facilitating cogent evidences with the conjoint reading of
Section 120B and Section 10 of Indian Evidence Act.
But the trial Judge had arrived at a conclusion by
47
assigning cogent reasons and finally came to conclusion
that prosecution has miserably failed to prove the guilt
of the accused.
30. In respect of the third circumstance, the trial
judge had discussed extensively at paras 58, 29 and
166 and arrived at a conclusion that the prosecution
has not proved the incident of conspiracy convincingly,
on 07.01.2013 even though witnesses PWs.12, 13 and
14 were subjected to examination.
31. Insofar as the fourth circumstances at paras
60 and 167 the trial Court had extensively discussed by
referring to evidence of PWs.5, 20 and 21 with MOs.1
and 13 and held that the same has not been proved
with cogent and convincing evidence and insofar as the
fifth circumstance the trial judge by referring to the
evidence of PW.5 that the dead body of Vasudeva Adiga
was lying beneath the seat of the moving Scorpio
marked as MO.1 during darkness of night or through
48
the streetlight in the remote village outskirts. Except
the said one witness there is no other evidence to prove
the incidence of transportation of the body in the
aforesaid vehicle.
32. In respect of the sixth circumstance, the trial
judge has discussed in paras 81 and 168 relating to the
seizure of the ball point pen which is marked as MO.9
and the chappal at MO.11 and these material objects
have been seized through mahazar as per Ex.P35. Mere
because MOs.9 and 11 were found and recovered by the
investigating officer during the course of investigation, it
cannot give rise to any inference of the commission of
the offence by the accused persons and this
circumstance will not be of any support to the
prosecution case. Therefore, the genesis of the offence
in respect of conspiracy and also execution of the same
which has been established by convincing evidence
which is missing in the prosecution case which is fatal
evidence of chain of circumstances.
49
33. In respect of seventh circumstance the trial
judge had extensively discussed in paras 95 and 169 as
there was inordinate delay of 42 days in conducting test
identification parade by PW. 86, being Taluk Executive
Magistrate and PWs.12 to 14 have been examined but
PW.12 and 14 had turned hostile and PW.13 did not
support the case of prosecution and this evidence was
also extensively discussed by trial Court and it rightly
held that same has not been proved by the prosecution
by facilitating worthwhile evidence.
34. In respect of eighth circumstance relating to
the exchange of calls between accused Nos.1 to 7
whereas in acquittal judgment at paras 98 and 170 that
the trial Court had extensively made discussion and
held that the prosecution did not facilitate the
worthwhile evidence by proving the said facts and
arrived at a conclusion keeping in view the concept of
Section 65-B of Indian Evidence Act, more particularly,
50
sub-Section 4 thereof makes it obligatory to produce the
certificate in the matter and there is total non-
compliance of this statutory requirement of law. In the
absence of fulfilling the mandatory provisions of law, the
prosecution had made futile attempt to rely upon the
call details particularly whether the prosecution has
failed to prove the said call details were derived through
the electronic records and more production of call
details will not be sufficient to prove the same as held
by the Apex Court in the case of Anwar P.V Vs P.K
Basheer reported in (2014) 10 SCC 473, the trial Court
has held that the prosecution has failed to prove the
said aspect.
35. Insofar as the ninth circumstance, the trial
Court has discussed in detail in paras 101 and 171
relating to the apprehension of accused persons and it
is nobody's case that they are not apprehended.
Therefore mere apprehending the accused will not be
51
sufficient to infer their complicity in the alleged crime.
The trial court has held that there is no worthwhile
evidence on the part of the prosecution case be
considered.
36. Insofar as tenth circumstance, the trial court
had discussed at paras 109 and 174 relating to the
articles recovered by the investigating officer while the
accused were in their custody. But the articles
recovered are mainly the movement register at Agumbe
Check Post relating to the movement of the vehicles and
the same has to be considered keeping in view Section
27 of Indian Evidence Act, 1872. However, the trial
Court had rightly came to conclusion that the same is
not proved.
37. Insofar eleventh circumstance, the trial Court
made extensive discussion at paras 112, 175 and177
whereby arrived at the conclusion that bloodstains
alleged to have been found at MOs.1 and 29 which is
52
made after the inordinate delay of 20 days is doubtful
and held the same has not been proved by the
prosecution.
38. Insofar as 12th circumstance, the trial Court
had concluded in para 178 even the prosecution had
not completed the chain of circumstances and arrived at
firm conclusion that the entire evidence placed by the
prosecution even after subject to examination of several
witnesses, the guilt of accused Nos.1 to 8 had left
reasonable doubts for conclusion consistent with the
innocence of the accused persons. The body was
recovered on 12.01.2013 even though the offence was
alleged to have been committed on 07.01.2013. The
deceased was sharing enmity with several persons as he
was associated with political activities. This aspect was
also noted in the material available on record and the
learned counsel for accused No.2 has also taken this
ground for seeking intervention and even for the
53
intervention as sought for by the State in respect of the
acquittal judgment rendered by the trial Court. But it is
only futile exercise and there is no justifiable reason for
seeking intervention. Apart from this, learned counsel
for accused Nos.1, 3 to 8 is in conformity with the
arguments advanced by learned counsel Sri.M.J.Alva for
accused No.2. It is also contended that the learned trial
Judge has highlighted the doubtful circumstance such
as collection of evidence until body was found on
12.01.2013 that the investigating agency had failed to
investigate the case. The entire case put forth by the
prosecution is mainly against accused No.1 who is the
immediate neighbour who had several civil as well as
criminal litigations between him and deceased -
Vasudeva Adiga. Mere because there is some civil
litigation as well as criminal prosecution launched in
between them it will not be sufficient to conclude that
the same is the root cause for the crime. But at the
best the inference can be drawn that the prosecution
54
had acted at the instance of PW.10 who had enmity with
accused No.1 - Ramesh Bairy in view of the land
dispute.
39. It is further contended that the prosecution
has failed to establish the guilt of the accused by
facilitating worthwhile evidence even though
investigation has been carried by initiation of the case
in Crime No.4/2013 and proceeded with the same with
recovery of ball point pen at MO.9 by drawing mahazar
at Ex.P35. But there was no absolute investigation in
Crime No.4/2013 and even on the other hand entire
investigation was only proceeded in Crime No.5/2013
by setting the criminal law into motion by registering
the case in Crime No.4/2013. Therefore, lodging of
complaint by PW.10 at Ex.P11 can only be treated as
the statement under Section 161 of Cr.P.C which can be
used for the purpose of contradicting PW.10. The
subsequent recording of FIR at Ex.P195 relating to the
55
case in the Crime No.5/2013 cannot be treated as the
FIR within the definition and meaning provided under
Section 154 of Cr.P.C. Therefore, for all practical
purposes in criminal justice delivery system there is no
investigation at all and the investigation conducted by
complying the provision of Section 173(2) of Cr.P.C and
laying of the charge sheet relating to the case in Crime
No.5/2013 suffers from procedural lapses and the
charge sheet itself is void under law. In this regard, the
view of the Hon'ble Apex Court in the reliance of Ashok
Deb Barma Vs. State of Tripura reported in (2014) 4
SCC 747 (para 15).
40. On all these premises counsel for respondent
No.2 and counsel for respondent Nos.1, 3 to 8 are
seeking for consideration of grounds as urged in the
synoptic notes by referring all circumstances and so
also, evidence inclusive of arrival at conclusion by the
trial Court and therefore, the grounds urged by the
56
State by preferring appeal do not hold any water and
does not call for any interference. Therefore, seeking to
set aside the acquittal judgment rendered by the trial
Court and consequently to dismiss the appeal preferred
by the State as devoid of merits by confirming the
judgment of acquittal rendered by the trial Court in
S.C.No.04/2014 dated 11.05.2017.
The counsel has placed reliances:
1. (2020) 5 SCJ 86 - Sathish Kumar &
another Vs State of Himachal Pradesh;
2. (2020) 5 SCJ 177 - Union of India Vs
Dafadar Karthar Singh;
3. (2020) 2 SCJ 517 - Union of India Vs
Sepoy Pravat Kumar;
4. (2021) 2 SCJ 220 - R Damodaran Vs
State;
5. (2013) 5 SCJ 650 - Sundar @
Sundararajan;
6. (2014) 10 473 - Anvar P.V Vs P.K
Basheer;
57
7. (2014) 4 SCC 747 - Ashok Debbarma Vs
State of Tripura.
41. It is in continuation of the arguments
advanced by the learned counsel Sri.M.J Alva for
accused No.2 and counsel namely Sri.B.Anand for
respondent / accused Nos.1, 3 to 8 and this counsel in
Crl.A.No.1436/2017 clubbed with Crl.A.No.1699/2017
submits the brief facts and also referring the evidence of
witnesses relating to the role of each one of the accused.
But PW.1 - Krishna @ Babu has turned hostile on the
part of prosecution and nothing worthwhile has been
elicited. Even though this witness has been subjected
to examination after being treated as hostile but he has
stated specifically but for the coerciveness to him by the
investigating agency he has given the statement under
Section 164 of Cr.P.C to suit other parties.
42. PW.2 - Srinivas Prabhu who has given
statement before the investigating officer and in his
evidence he has clearly stated sometimes he used to
58
come for agricultural work in the land of accused No.1 -
Ramesh Bairy but he has not traveled with him to
Kalmane cross and he has not seen accused Nos.3 to 8.
This witness has turned hostile and nothing worthwhile
has been elicited to believe the version of this witness to
confirm his statement.
43. PW.3 - Narasimha Nayak also turned hostile
on the part of prosecution and he has clearly stated in
his evidence that he was attending agricultural work of
accused No.1 and there is land dispute emerged
between the deceased and accused No.1. But he has
not traveled with him to Kalmane cross.
44. PW.4 - Venkatesh Kulal - even though this
witness has been subjected to examination on the part
of prosecution but he is a hearsay witness and he has
categorically stated in his evidence that he came to
know that Vasudeva Adiga was murdered on
07.01.2013 but after 6-7 days CW.32 met him and told
59
him on 07.01.2013 in the night in Mandarthi cross near
goli angadi and he saw a black colour Scorpio vehicle
and he stopped his two wheeler and saw in front row
two persons were sitting and in the back row two
persons were sitting and in the middle bottom below the
seat he found a person was sleeping. The person who
was sleeping resembled as Vasudeva Adiga. But this
witness has told CW-32 that Vasudeva Adiga's murder
has been published and to go and inform the DYSP or
police. But he is a hearsay witness and there is no
worth of his evidence even of the incident has been
narrated relating to the elimination of the deceased.
45. PW.5 - Chandra Shetty also turned hostile
and he has categorically stated that on 07.01.2013 after
completing his work in the night around 7-8 p.m. when
he came near goli angadi, a black colour Scorpio was
parked and in that vehicle two persons were sitting at
the front and two persons sitting at the back. As it was
60
blur he could not see the person who was sleeping in
the centre. This witness has been subjected to
examination and have been treated as hostile and
nothing worthwhile has been elicited and also stated
that as it was dark, he could not identify the four
persons who were in the jeep.
46. PW.6 - Ramakrishna Udupa who is a hostile
witness and he has not supported the case of the
prosecution relating to the ingredients with regard to
Section 120-B of IPC relating to conspiracy hatched
among the accused Nos.1, 2 and 3.
47. PW.7 - Linga Devru who is hostile and he did
not support the case of prosecution with regard to
conspiracy between accused Nos.1, 2 and 3.
48. PW.8 - Mahesh Bhat who is also hostile and
he did not support the case of prosecution with regard
to conspiracy between accused Nos.1, 2 and 3. PW.9 -
61
Prashanth who is hostile and spoke with regard to sim
card.
49. PW.10 - Smt.Shrungeshwari Adiga is the
mother of the deceased and complainant. She has
stated in her evidence that on 07.01.2013 around 9
a.m. her son Vasudeva Adiga left home and he did not
return in the evening and his mobile was switched off.
He was not found. But suspected about accused Nos.1
and 2 because they are having some civil disputes with
them and there is ill-will between both families and
therefore, civil litigation and criminal cases are pending.
On 12.01.2013 she came to know through police that
Vasudeva Adiga's dead body was thrown in Madagadha
kere. She identified the clothes and other belongings of
the deceased. This witness has been subjected to
examination at length and even in her cross-
examination she has admitted that for past twenty years
there are some civil and criminal cases between accused
No.1 and her.
62
50. PW.11 - Smt.Shobha is the Judicial Magistrate
First Class. She recorded the statements of PW.1 as
contemplated under Section 164 of Cr.P.C. PW.12 -
Bhaskar Shetty who turned hostile and even
participated in the test identification parade.
51. PW.13 - Lakshman Pujary - This witness
participated in test identification parade after 42 days
and identified both vehicles as MO.1 to 13 which is
Scorpio and Safari vehicle.
52. PW.14 - Vanaja Shedthi who has turned
hostile and she participated in the test identification
parade insofar as identified MO.1 and 13.
53. PW.15 - Arun Kumar Shetty - who lodged
missing complaint as per Exs.P35, 36 and 37 relating to
seizure mahazars. But this witness has been subjected
to examination and he has admitted in his evidence that
63
Vasudeva Adiga was taking documents under RTI and
he had many rivals and which is marked as Ex.D2.
54. PW.16 - Arun H.R has been subjected to
cross-examination on the part of prosecution relating to
the identification of clothes and other belongings of the
deceased in the police station itself.
55. PW.17 - Raghu Shettigar who is panch
witnesses for recovery of ball point pen and bottle cap
during mahazar at Ex.P13 and MOs.9, 11 and 12 has
been got marked.
56. PW.18 - Krishna Murthy who is brother of the
deceased and identified male body as his brother's
Vasudeva Adiga in Mcgann hospital, Shivamogga.
PW.19 - Prithvi Raj Shetty who is co-panch for Ex.P35.
57. PW.20 - Subhashchandra Shetty who is
examined on the part of prosecution relating to seeing of
64
black colour Scorpio on 07.01.2013 at around 4.30 p.m.
in front of his office.
58. PW.21 - Sachin who saw black colour Scorpio
moving towards the house of accused No.1 but he
thought that some persons might have come to ask for
astrology and he has identified MO.1 - jeep.
59. PW.22 - Ganesh Shetty who is panch witness
for seizure of club at Ex.P46 and also spoke that
Vasudeva Adiga and Shankar went in his motorbike and
next day he came to know that Vasudeva Adiga was
abducted. In cross examination he has denied that
Vasudeva Adiga was asking for RTI documents and he
had developed ill-will with many persons. This portion
is marked as Ex.D6.
60. PW.23 - Sunil who is panch for recovery of
mobiles of accused No.2 MOs.16, 17, 18 under Ex.P53
and panch for seizure of cash and mobile from accused
No.1 at Ex.P54.
65
61. PW.24 - Karunakar Shetty - who is panch
witness for the places where accused Nos.3 to 7 took
them, and where all they had traveled from Bengaluru
to Vandaru village.
62. PW.25 - G.Kumar is a panch witness for
seizure of rope near the tank as per MO.33 - Nylon rope
at Ex.P97. PW.26 - Vinay Kumar Shetty who is panch
witness for seizure of motor bike MO.12, slipper MO.11
at Ex.P36. PW.27 - Vijay Shetty is the panch witness for
seizure of mobile of the deceased and also panch
witness for seizure of clothes belonging to the deceased
at Ex.P104.
63. PW.28 - Thimmaiah who is the person lifted
the body from the water of Madagadha kere. PW.29 -
Shankar Nayak, PW.32 - Krishna Nayak and PW.33 -
Girish who were subjected to examination and have
been treated as hostile. Nothing worthwhile has been
elicited in their evidence on part of the prosecution.
66
64. PW.38 - Raghavendra, PW.41 - Vijay have
been subjected to examination and treated as hostile
and nothing worthwhile has been elicited in their
evidence and they have said in their cross-examination
and there is no consequences.
65. PW.46 - Ganesh Shetty turned hostile with
regard to sim. PW.47 - Santhosh Madyastha who is
turned hostile and he did not spoke about mobile
number of accused No.1 - Ramesh Bairy.
66. PW.48 - Babu - who is hostile and relative of
accused No.6. PW.49 - Sumathi - who is hostile and
spoke regarding sim. PW.50 - Nagaraja - who is hostile
and owner of the house where accused No.6 was
residing. PW.51 - Vidya Ganesh S Udupa - who is
hostile and spoke regarding certain mobile numbers.
PW.53 - Praveen - who is hostile and owner of mobile
shop and spoke about sim cards. PW.54- Manjunath -
67
who is hostile and spoke to the effect that he did not
had any contact with accused No.3.
67. PW.56 - M.N.Nagaraj - who has turned hostile
and spoke to the effect that he did not had any contact
with accused No.3. This witness was subjected to
examination and has been treated as hostile but
nothing worthwhile has been elicited in his evidence.
68. Several witnesses have been subjected to
examination such as PWs.59 to 68 but PW.66 who is
Doctor of Sakarayapatna PHC who conducted first post
mortem on the deceased - Vasudeva Adiga at Ex.P138.
69. PW.67 is the Scientific Officer of FSL who
subjected chemical examination of material objects and
issued FSL report at Ex.P140. PW.68 - M Borker -
Tahsildar who gives documents relating to
Sy.Nos.103/1, 1/1, 30/7 P of Vandaru village.
68
70. PW.69 - Shivanna - Surveyor who issued
survey report as per Ex.135. PW.62-Balachandra
Udupa who is brother of accused No.2 has stated that
after seeing TV and newspaper he came to know that
accused Nos.1 and 2 are involved in death of Vasudeva
Adiga. But there is no consequence even though this
evidence has been subjected to examination by the
prosecution.
71. PW.71 - Harish K who prepared the sketch as
per Ex.P148. PW.72 - Taruna Shashi - Assistant
Engineer who prepared sketch as per Ex.149 near
Madagadha kere where the dead body of male found.
72. PW.73 - Geetha Lakshmi - Assistant Scientific
Officer, FSL and subjected to examination of certain
material objects. PW.74 Vasudeva Holla who spoke
about BSNL landline numbers of accused No.1.
69
73. PW.75 - M.S.Lokesh - Head constable who
carried FIR in Crime No.9/2013 to the Court having
jurisdiction. PW.76 - Chandrashekar Shetty - Head
constable who carried FIR in Crime No.5/2013 to the
Court having jurisdiction.
74. PW.77 - Nagaraj Nayak T -Police constable
who carried certain documents in Crime No.5/2013 on
16.01.2013. PW.79 - Santhosh Shetty - PSI who
received the complaint from PW.22 as per Ex.P106 and
registered the case for the offence punishable under
Section 302 of IPC and sent the FIR to the court at
Ex.P157. PW.80 - Sampath Kumar who apprehended
accused Nos.6 and 7.
75. PW.81 - Dr. Robert Robello - who took blood
samples of PW.10 for DNA test. PW.82 - Dejappa - PSI.
On 08.01.2013 around 1 a.m. PW.15 - Arun Kumar
Shetty lodged a complaint with regard to missing of
70
Vasudeva Adiga as per Ex.P.34. He registered a case in
crime No.4/2013 and sent the FIR as per Ex.P160.
76. PW.83 - Stanly Bharathi - Nodal Officer Airtel
Company, who speaks with regard to certain sim card of
the accused. PW.84 - Ratnakar Nayak - DGM, BSNL,
speaks with regard to incoming and outgoing calls of
accused No.1. PW.85 - Balachandre Gowda - CPI
Kadur, with the help of the swimmers, he made
arrangements to lift the body from water and conducted
mahazar and conducted the inquest proceedings
Ex.P98.
77. PW.86 - Abhijin B - Tahsildar, who conducted
the test identification parade. PW.87 - Premnath - ASI
Shankarnarayana PS, who registered the case in Crime
No.5/2013 for the offence under Section 364 of IPC at
Ex.P11, and FIR at Ex.P195. PW.91 - Maruthi Nayak,
CPI, who collected the call details of accused and
deceased.
71
78. PW.92 - Arun Bommaiah Nayak - CPI,
Byndoor who apprehended accused Nos.3, 4 and 5 on
16.01.2013. PW.93 - Shubakara - ASI Shankarnayana
PS, as per the Court order he took the seized currency
notes in Crime No.5/2013 and took them to RBI at the
time of demonetization.
79. PW.94 - Manjunath Kavari - CPI who is the
investigating officer who partially investigated the case.
PW.95 - Praveen.H.Nayak, Police Inspector, Crime
Branch who speaks with regard to call details. PW.96 -
Smt.Yashoda S Ontagodi - Dy.SP who completed the
investigation and submitted the charge sheet to the
court. In this case there are no eye witnesses to the
incident and the case rests on circumstantial evidence.
Prosecution has relied on the following circumstances to
prove the guilt of the accused with regard to the death
of Vasudeva Adiga. However, it requires to be
established by the prosecution as where accused No.1
72
entered into criminal conspiracy hatched on 13.07.2012
and 04.01.2013 in the house of accused No.1 situated
at Wilson Garden, Bengaluru to eliminate deceased -
Vasudeva Adiga and on 07.01.2013 accused No.1 had
gone to Kalmane cross and met accused Nos.3 to 8 and
gave a conclusive shape to the criminal conspiracy that
was entered earlier in the presence of accused Nos.2, 3
and 4. However, the entire case rests upon
circumstantial evidence. But it is the domain vested
with the prosecution to prove the guilt of the accused
beyond all reasonable doubt. But the chain of
circumstances were not cogent to prove the guilt of the
accused. The trial Court had appreciated the evidence
by referring the each one of the evidence let in by
prosecution and so also got marked several documents
and plethora of evidence. But incriminating
circumstances against the accused were not proved by
the prosecution by facilitating worthwhile evidence and
trial Court had arrived at a conclusion that the
73
prosecution has miserably failed to prove the guilt of the
accused beyond all reasonable doubt. Consequently,
rendered the acquittal judgment in S.C.No.04/2014,
dated 11.05.2017 which is under challenge. Even
PW.10 - Smt.Shrungeshwari Adiga who is none other
than mother of the deceased - Vasudeva Adiga and also
PW.18 - Krishna Murthy has preferred the appeal in
Crl.A.No.1436/2017 by challenging the acquittal
judgment rendered by the trial Court in S.C.No.04/2014
but the judgment in S.C.No.04/2014 dated 11.05.2017
has been challenged by the appellant / complainant
namely Smt.Shrungeshwari Adiga and the State has
preferred the appeal in Crl.A.No.1699/2017 and
whereby challenging the acquittal judgment rendered by
the trial Court in S.C.No.04/2014 dated 11.05.2017 but
the appellant namely - Smt.Shrungeshwari Adiga who
has engaged the services of counsel namely
Sri. Vishnumurthy and the appeal preferred by the
State in Crl.A.No.1699/2017 and contention of the
74
counsel Sri.Vishnumurthy and State as well as the
complainant in similar footing and whereby challenged
the acquittal judgment. However, in both these appeals
the State and the complainant / appellant / victim did
not contend with justifiable reasons for seeking
intervention by challenging the acquittal judgment. But
both the appeals suffer from justifiable reasons and
there is no good ground for seeking intervention.
Consequently, both the appeals appear to be devoid of
merits and deserves to be rejected. Accordingly both
counsel namely Sri.M.J.Alva for Respondent No.2 in
Crl.A.No.1699/2017 and counsel Sri.B.Anand for
respondent Nos.1, 3 to 8 in Crl.A.No.1436/2017 and
both counsels have urged by addressing oral arguments
and also submitting synoptic notes by referring the
evidence of the witnesses examined in all PWs.1 to 96
and several documents which have been got marked
inclusive of material objects and so also contradictory
statements. But, however, the appeal preferred by the
75
State and the appeal preferred by PW.10 -
Smt.Shrungeshwari Adiga does not hold any substance
and does not arise call for interference and there are no
warranting circumstances that arise for intervention
and re-appreciation of the evidence as sought for.
Consequently, both appeals deserve to be rejected as
devoid of merits by confirming the acquittal judgment
rendered by the trial Court in S.C.No.04/2014 dated
11.05.2017.
80. It is in this context of the contention made by
the learned counsel Sri.Vishnumurthy in
Crl.A.No.1436/2017 whereby this appeal is preferred by
Smt.Shrungeshwari Adiga who is arraigned as
complainant in S.C.No.04/2014. Learned counsel
Sri.M.J.Alwa in Crl.A.No.1699/2017 clubbed with Crl.A.
No.1436/2017 and he being counsel for respondent
No.2 / accused No.2. Learned counsel Sri.B.Anand in
respect of respondent Nos.1, 3 to 8 who are arraigned as
76
accused. This appeal is preferred by the State
challenging the acquittal judgment rendered by the trial
Court in S.C.No.04/2014 dated 11.05.2017. The
contention made by the learned HCGP for the State in
Crl.A.No.1699/2017 and so also contention made by
the learned counsel Sri.Vishnumurthy in
Crl.A.No.1436/2017 and even the similar grounds have
been urged in both these appeals challenging the
acquittal judgment rendered by the trial Court for the
offences punishable under Sections 143, 144, 147, 148,
341, 302, 201 read with Section 149 of IPC, 1860. The
trial Court in S.C.No.04/2014 rendered acquittal
judgment by answering negatively in respect of point
Nos.1 to 9 and final order has been rendered in point
No.10 for the reasons assigned therein in each points
for consideration relating to each one of the
offences leveled against the accused. PW.10 -
Smt.Shrungeshwari Adiga who is appellant in
Crl.A.No.1436/2017 and also complainant and based
77
upon her complaint criminal law was set into motion by
recording FIR at Ex.P24. Subsequent to registration of
crime by Shankarnarayana Police Station the
investigating officer took up the case for investigation
and laid the charge sheet against the accused Nos.1 to
8. But accused No.2 along with co-accused Nos.3 to 8
hatched criminal conspiracy to eliminate the deceased -
Vasudeva Adiga. In pursuance of the conspiracy
hatched among accused dated 13.07.2012 and also on
04.01.2013 at Wilson garden, Bengaluru in the house of
accused No.2 - Subramanya Udupa for executing the
deceased - Vasudeva Adiga as according to the criminal
conspiracy hatched among themselves, accordingly
accused Nos.3 to 8 on 07.01.2013 at around 8.30 p.m.
and according to the criminal conspiracy hatched that
accused Nos.1 and 2 being members of unlawful
assembly and in prosecution of common object armed
with deadly weapons with an intention to commit rioting
wrongfully restrained the deceased on road in which he
78
was proceeding in Hero Honda Motor cycle bearing
Registration No.KA-05-EF-596 to his house by pulling
him down with help of Nylon rope which encircled
around his neck. As a result of that he fell down from
the motor cycle and then accused committed murder by
assaulting him with means of deadly weapons such as
iron jack lever on his head part and each one of the
accused have a role to act upon as according to the
criminal conspiracy hatched among them to eliminate
him. Subsequent to committing murder of deceased -
Vasudeva Adiga, his dead body was carried by accused
in Scorpio vehicle bearing Registration No.KA-05-MD-
7934 in the limit of Chikkamagalur District, Kadur
Taluk near Madagadha water tank area and dropped
down the dead body tied with nylon rope and barbed
wire to his neck and also stone weighing 20 Kgs to his
waist part and dropped the dead body of Vasudeva
Adiga to destroy the evidence in order to screening from
the article arrangement. This is the theory that has
79
been put forth in the charge sheet laid down by the
investigating officer against the accused and whereby
accused in S.C.No.04/2014 having been facing trial and
whereby the prosecution is required to prove the guilt of
accused and also role of each one of the accused to the
incident that had taken place on 07.01.2013 till
12.01.2013 the dead body of Vasudeva Adiga was not
found. But the domain vested with the prosecution to
establish cardinal principles of law relating to criminal
conspiracy hatched among themselves and so also, it
requires to establish the guilt of the prosecution with
beyond all reasonable doubt to secure conviction. But
after considering the entire evidence let in by the
prosecution which has been stated in chronological
order and keeping in view the contention made by
learned Counsel Sri.M.J Alva in respect of respondent
No.2 / accused No.2 and so also learned counsel
Sri.B.Anand for accused Nos.1, 3 to 8 and so also, the
contention made by learned counsel Sri.Vishnumurthy
80
in respect of appellant - Smt.Shrungeshwari Adiga who
is examined as PW.10 and learned HCGP for the State
namely Smt.K.P Yashoda who has preferred this appeal.
But each one of the circumstances relating to
elimination of deceased requires to be proved and also
considered by the trial Court. It is the domain vested
with the trial Court to prove the facts and also
circumstance alleged by facilitating the satisfactory
evidence and it must be in conclusive nature and it
must be tendency so as to be totally consistent but the
evidence which is facilitated by the prosecution and
even on close scrutiny of the evidence of PW.10 -
Smt.Shrungeshwari Adiga, PW.18 - Krishnamoorthy
Adiga and so also, PW.12 - Bhaskar Shetty who are the
vital witnesses on the part of prosecution and inclusive
of evidence of PW.19 - Arun B Naik, PW.94 - Manjunath
Kharvi, 95 - Praveen H Naik who is the investigating
officer in part and also PW.96 - Yashoda S Ontagodi
who laid the charge sheet against the accused inclusive
81
of evidence of PW.86 Abhijin, Tahsildar of Udupi. But
in totality of the said evidence on the part of the
prosecution it founds inconsistent whatever the
suggestion made by the prosecution even for subjecting
to examination of those witnesses and even
examination-in-chief and even for any hypotheses it
must be reasonable and even imaginary relevant only or
ordinary relevant..
81. In the instant case the entire case is revolving
around the evidence of these witnesses and also entire
case is relied upon circumstances and it should be in
missing links in the case and even some of the links in
the chain of circumstances have to be inferred from the
proved facts and even in the various links in the chain
was completed. But circumstances should be
strengthening the chain of circumstances and also it is
the domain vested with the prosecution to establish
strong circumstances.
82
82. Whereas the circumstances in the case arise
or susceptible the two possibility inference then Court
should accept the inference which favour the accused
rendered in the inference which come to the cardinal
principles of criminal justice delivery system. The
motive factor is important factor that it is indisputable
even failure to prove the motive factor it is not fatal by
itself and even in the absence of motive factor and more
so the Court have to be more careful in screening the
evidence with care and caution to ensure that suspicion
while finding the guilt of the accused.
83. In the absence of motive factor is wherein in
favour of the accused, the Court needs to remember
that motive factor is primary evidence to accused which
prosecution at time finds difficulty to extend and
subject to substantiate the evidence. It is often
difficulty to fathom rule of motive beyond the
commission of crime. These are all the important
83
process that should be kept in the mind of the trial
Court to appreciate evidence on the part of prosecution
and even going through several authorities which were
placed by the prosecution even though the case is based
on circumstantial evidence is the chain of
circumstances must be completed.
84. Several circumstances has been captioned in
the synoptic note made by learned counsel Sri.M.J Alva
for respondent No.2 / accused No.2 and each one of
the circumstances in the chronological has been stated
super. But recovery as contemplated under Section 27
of Indian Evidence Act, 1872 even in exception of 25
and 26 of the said Act which contemplates with regard
to the discovery of the fact on the basis of the
information given by the accused who is required to face
trial and also accused were in the custody relating to
the crime. Whereas in the instant case, claim of the
prosecution is that after accused Nos.2 to 7 were taken
84
into custody and as at their instance in relating to their
voluntary statements made by the accused recovery of
so many incriminating articles and even on the basis of
the information given by the accused relating to MOs1
to 13 vehicles and MO.29 jack lever which was not sent
to Forensic Science Unit in Madivala, Bengaluru. But
after the incident bringing MO.1 and 13 to
Shankarnarayana, Kundapura and ultimately collecting
relating to blood stains of deceased on 13.01.2013 by
making delay of almost 20days. Therefore, the trial
Court was constrained with circumstances even proved
the doubtful from articles such as foot mat, seat cover
from MO.1 and contents of liver, intestine and kidney of
the deceased in DNA profile formed to have been
matching. Even for prosecution proves matching of the
contents of the blood stains collected from the foot mat,
seat cover from MO.1 vehicle. But out of 28 articles 2
or 3 test conducted by the FSL Lab by chemical expert
and queries put by the investigating officer are not
85
answered affirmatively. Therefore, in view of these
developments the trial Court has constrained expert
and queries put by the investigating officer are not
answered affirmatively. Vasudeva Adiga was murdered
on 07.01.2013 and his body was not found till
12.01.2013 in between this period on the basis of
previous enmity accused No.1 has been interrogated
and local witnesses have disclosed to the investigating
officer that the deceased was also sharing enmity with
some others because he was RTI activist.
85. Some doubtful circumstances on the part of
prosecution that there is no collection of evidence made
in between 07.01.2013 to 12.01.2013 until the dead
body of the deceased was found and the investigating
officer not visited Madagadha kere situated in the limits
of Yemmedoddi Village, Kadur Taluk where the dead
body was found. But the dead body was found on
12.01.2013 when information was received but visiting
86
place where the dead body was found in Madagadha
kere after lapse of 9 days being in the knowledge of act
that body being found and creates doubt relating to the
recovery of knife at the place. But PW.96 being
investigating officer who has not colleted or made any
effort to collect such evidence to show that how accused
left Vandaru Village, Kadur Taluk, Chikkmagaluru
District by which route to dispose of dead body in the
Madagadha kere reservoir and while returning after
committing offence narrated in the theory relating to the
filing of charge sheet by the investigating officer. But
this vehicle is not inspected and entry is not made in
the book maintained by the same police. Secondly,
investigating officer has not collected any evidence of
vehicle belonging to accused No.1 passing through same
route of Agumbe Kalmane cross and number not being
mentioned in the police check post of Agumbe. Relating
to the enmity and anxiety is not entertained by PW.10
complainant against other accused that impliedly sends
87
signal that either by any way they wanted to take
revenge against accused No.1 who is their immediate
neighbour and was known Astrologer, Exorcist and
Palmist.
86. Whereas in the trial Court accused are facing
trial and whereby prosecution has let in the evidence by
examination of PW.1 to 96 and marking several
documents at Ex.P1 to 240 and so also marking of
MO.1 to 67 and also Ex.D1 to 11. But even
circumstances on the part of prosecution and plethora
of evidence let in are taken into consideration and finds
that the trial Court held that the prosecution has not
been satisfactorily proved the guilt of the accused by
facilitating the worthwhile evidence.
87. Chapter VIII of Indian Penal Code, 1860
offences against the public tranquility.
Section 141 reads as under:
88
An assembly of five or more persons is
designated an "unlawful assembly", if the
common object of the persons composing that
assembly is--
First.--To overawe by criminal force, or show
of criminal force, the Central or any State
Government or Parliament or the Legislature
of any State, or any public servant in the
exercise of the lawful power of such public
servant; or
Second.--To resist the execution of any law,
or of any legal process; or
Third.--To commit any mischief or criminal
trespass, or other offence; or
Fourth.--By means of criminal force, or show
of criminal force, to any person, to take or
obtain possession of any property, or to
deprive any person of the enjoyment of a right
of way, or of the use of water or other
incorporeal right of which he is in possession
or enjoyment, or to enforce any right or
supposed right; or
Fifth.--By means of criminal force, or show of
criminal force, to compel any person to do
89
what he is not legally bound to do, or to omit
to do what he is legally entitled to do.
Explanation.--An assembly which was not
unlawful when it assembled, may
subsequently become an unlawful assembly.
88. Insofar as the determination of existence of
common object the Court is required to see the
circumstances in which the incident had taken place
and conduct of members of unlawful assembly
including the weapon of offence they carried or used on
the spot. Even common object may form on spur of the
moment. Prior concert in the sense of meeting of
unlawful assembly members, not necessary. But the
Court is required to see the circumstances in which the
incident had taken place.
89. Section 144 of IPC : Joining unlawful
assembly armed with deadly weapon- Whoever, being
armed with any deadly weapon, or with anything which,
used as a weapon of offence, is likely to cause death.
90
90. Whereas Section 147 relating to Punishment
for rioting and Section 148 - Rioting, armed with deadly
weapon. Definition of Rioting under Section 146 -
Whenever force or violence is used by an unlawful
assembly, or by any member thereof, in prosecution of
the common object of such assembly, every member of
such assembly is guilty of the offence of rioting.
91. However, the domain vested with the
prosecution to establish the guilt of the accused by
facilitating the worthwhile evidence relating to the prove
of nexus of the said offences.
92. Whereas the nexus between the common
object and offence - There must be a nexus between the
common object and the offence committed and if it is
found that the same was committed to accomplish the
common object every member of the assembly will
become liable for the same. Similar issue has been
91
addressed by the Hon'ble Supreme Court of India
reported in AIR (1989) SC 1456 of Allauddin Mian Sharif
Mian Vs. Bhagwan Singh.
93. In order to attract Section 149 of the Code it
must be shown that the incriminating act was done to
accomplish the common object of unlawful assembly. It
must be within the knowledge of the other members as
one likely to be committed in prosecution of common
object. If members of assembly knew or were aware of
the likelihood of a particular offence being committed in
prosecution of a common object, they would be liable for
the same under Section 149 relating to the applicability
it was also reported in the case of Waman Vs. State of
Maharashtra, AIR (2011) SC 3327.
94. Insofar as common object has to be drawn
from various factors such as the weapons with which
the members were armed, their movements, the acts of
violence committed by them and the result. The nexus
92
of this offences should be established by the
prosecution by facilitating the worthwhile evidence and
even for applicability of Section 149 of IPC, 1860.
95. Insofar as Section 341 of IPC - Punishment for
wrongful restrain. The definition clause is Section 340
of IPC - Wrongful confinement.--Whoever wrongfully
restrains any person in such a manner as to prevent that
person from proceedings beyond certain circumscribing
limits, is said "wrongfully to confine" that person. It is
such wrongful confinement that person those nexus
should be established on the part of prosecution by
facilitating the worthwhile evidence relating to secure
conviction. But in the instant case the prosecution did
not facilitate the worthwhile evidence of the said offence.
96. Section 302 of IPC, 1860 relating to the
Punishment for murder. Even conviction can be based
on testimony of a single eyewitness provided his
testimony is found reliable and inspires confidence to
93
the Court as where the accused are facing trial even the
benefit of doubt of that concept also in relating to the
heinous offence of Section 302 but when ocular
evidence in murder case is unreliable benefit of doubt to
be given to all accused. Aforesaid issue has been
extensively addressed by the Hon'ble Supreme Court of
India reported in AIR (1982) SC 1022 of Chandu Bhai
Shana Bhai Parmar Vs. State of Gujarat.
97. Whereas in circumstantial evidence, important
of that evidence are that there shall be some settled
principles of law and even eyewitnesses on the part of
prosecution are held to be reliable and inspire the
confidence then the accused cannot be acquitted solely
on the ground that some superficial injuries found on
the person of the accused concerned has not been
explained by the prosecution. But in the instant case
though the case is revolving around the chain of events
relating to the elimination of the deceased - Vasudeva
94
Adiga and theory and charge sheet laid by the
investigating officer against the accused and also
several witness have been examined on the part of
prosecution and plethora of evidence also placed and
even several documents are got marked but the
prosecution has failed to establish the guilt of the
accused by facilitating the worthwhile evidence such as
cogent, consistent and positive evidence to probabalise
that the person being arraigned as accused committed
murder of the deceased to eliminate him due to some
enmity relating to some civil and criminal disputes as
narrated in the complaint. In the instant case theory
has been put forth on the part of the prosecution but it
is relevant to state Section 3 of Indian Evidence Act,
1872 the "Fact" - means and includes -- (1) anything,
state of things, or relation of things, capable of being
perceived by the senses;
(2) any mental condition of which any person is
conscious. And insofar as "Evidence". --"Evidence"
95
means and includes -- (1) all statements which the
Court permits or requires to be made before it by
witnesses, in relation to matters of fact under inquiry;
such statements are called oral evidence;
(2) all documents including electronic records produced
for the inspection of the Court.
98. But the domain is vested with the prosecution
relating to the prove the fact. The fact said to be proved
it is upon the caption and scope of the prove and
disproved and also not proved. However, in the chain of
circumstances evidence as the case of that nature the
domain is vested with the trial Court to scrutinize the
evidence and it is the duty of the Court to scrutinize the
evidence carefully and even to say acceptable evidence,
therefore Section 3 of Indian Evidence Act, 1872 there
shall be some domain vested with the prosecution to
prove the guilt of the accused with beyond all
reasonable doubt and similarly the domain vested with
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the trial Court to appreciate the evidence on record
properly.
99. Insofar as Section 134 of Indian Evidence Act,
1872 relating to number of witnesses but the merit of
the statement is important. It is well-known principle
of law that reliance can be based even on the solitary
statement of the witnesses and if the Court comes to
conclusion that the said statement is true version and
also correct version of the case of prosecution it is the
quality of the evidence and not quantity of the evidence
which is required to be judged by the Court by placing
credence on the statement. These are all the issues
which has been extensively addressed by the Hon'ble
Supreme Court of India in the case of Raja Vs. State
(1997) 2 crimes 175 Delhi and also in the case of State of
Uttar Pradesh Vs. Krishanpal reported in 2008 (8) JT
650: 2008 (11) Scale 223.
97
100. Requirement as to number of witnesses and
this aspect is concerned, the law of evidence does not
require any particular number of witnesses to be
examined in order to prove a given fact. However, faced
with the testimony of a single witness, the court may
classify the oral testimony of a single witness, the court
may classify the oral testimony into three categories,
namely -
i) wholly reliable,
ii) wholly unreliable and
iii) neither wholly reliable nor wholly unreliable.
In the first two categories, there may be no
difficulty in accepting or discarding the testimony of the
single witness. The difficulty arises in the third category
of cases. The court has to be circumspect and has to
look for corroboration in material particulars by reliable
testimony, direct or circumstantial, before acting upon
testimony of a single witness. This has been extensively
98
addressed by the Hon'ble Supreme Court of India in the
case of Lallu Manjhi Vs. State of Jharkhand, AIR 2003
SC 854.
101. In the instant case the prosecution in all
examined PWs.1 to 96 and marked several documents
at Ex.P1 to 240 and so also, got marked Mos.1 to 67
inclusive of Ex.D1 to 11 which has been stated supra in
detail. Keeping in view the stout arguments advanced
by the learned counsel for respondent / accused
respectively and so also learned HCGP and also learned
counsel Sri.Vishnumurthy for appellant in the appeal of
Smt.Shrungeshwari Adiga but the trial court scrutinized
the entire evidence of the prosecution and whereby the
investigation had been done by the investigating agency
and collected series of evidence. But the trial Court had
held that the prosecution did not prove the guilt of the
accused by facilitating the worthwhile evidence such as
consistently that the series of the accused and not able
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to prove the guilt of the accused by facilitating the
worthwhile evidence beyond reasonable doubt. But
most important case of the prosecution upon the
circumstantial evidence and even the trial Court held
that the prosecution has not prove the guilt each one of
the accused beyond all reasonable doubt according to
the criminal conspiracy hatched among themselves and
formed unlawful assembly to eliminate the deceased -
Vasudeva Adiga and disposing of the dead body by
throwing it in Madagadha kere in the limit of
Yemmedoddi Village, Kadoor Taluk, Chikkamagaluru
District. The prosecution did not prove the guilt of the
accused even plethora of evidence has been subjected to
examination of PWs.1 to 96 and several documents were
got marked but failed to establish the guilt of accused in
each offences in respect of nexus. However, the trial
Court on close scrutiny of evidence meticulously looked
into each one of the prosecution witnesses and extended
the benefit of doubt to the accused and consequently
100
rendered the acquittal judgment. Therefore, in view of
the aforesaid reasons and finding in both these appeals
we are of the opinion that the appeal preferred by the
State under Section 378 (1) and (3) of Cr.P.C in
Crl.A.No.1699/2017 and also appeal preferred by
Smt.Shrungeshwari Adiga who is complainant filed the
appeal under Section 372 Cr.P.C. that both these
appeals challenging the acquittal judgment rendered by
the trial Court are found to be justified and sound
reasons are assigned by the trial Court and more so,
there is no perversity, capricious and absurdity in the
acquittal judgment rendered by the trial Court and
under these appeals it does not arise for call for
interference and no warranting circumstances would
arise for interference by re-visiting the acquittal
judgment and so also re-appreciation of the entire
evidence sought for in both these appeals respectively.
Consequently, we are of the opinion that both appeals
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deserves to be rejected as devoid of merits. Accordingly,
we proceed to pass the following order:
ORDER
The appeal preferred by the appellant / complainant in Crl.A.No.1436/2017 under Section 372 of Cr.P.C and so also appeal preferred by the appellant / State in Crl.A.No.1699/2017 under Section 378 (1) and (3) of Cr.P.C are hereby rejected. Consequently, acquittal judgment rendered by the trial court in S.C.No.04/2014 dated 11.05.2017 is hereby confirmed.
Sd/-
JUDGE Sd/-
JUDGE RJ