Karnataka High Court
State Of Karnataka vs Vaddara Gangaraju on 23 June, 2023
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CRL.A No. 100157 of 2016
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 23RD DAY OF JUNE, 2023
PRESENT
THE HON'BLE MR JUSTICE ASHOK S. KINAGI
AND
THE HON'BLE MR JUSTICE VENKATESH NAIK T
CRIMINAL APPEAL NO.100157 OF 2016 (A)
BETWEEN:
STATE OF KARNATAKA
REPRESENTED BY
THE DEPUTY SUPERINTENDENT OF POLICE,
BALLARI RURAL SUB-DIVISION, BALLARI,
THROUGH THE ADDL. STATE PUBLIC PROSECUTOR,
ADVOCATE GENERAL OFFICE,
HIGH COURT OF KARNATAKA,
DHARWAD BENCH.
...APPELLANT
(BY SRI.V.M.BANAKAR, ADDL. SPP)
AND:
BHARATHI 1. VADDARA GANGARAJU,
HM
S/O. NETTAKALLAPPA,
Digitally signed by
BHARATHI H M
AGE: 28 YEARS, MAISON,
Location: HIGHCOURT
OF KARNATAKA-
DHARWAD BENCH
R/O: 2ND GATE, NAGALAKERRE,
Date: 2023.07.27
15:18:53 +0530 BALLARI.
2. ANANDAKUMAR @ ANANDA,
S/O. DAKUMARI APPARAO,
AGE: 23 YEARS, COOLIE,
R/O: NEAR ANJINEYASWAMY TEMPLE,
NAGALAKERE, BALLARI.
3. ANJINEYALU @ ANJI,
S/O. LATE THIPPESWAMY,
AGE: 22 YEARS, R/O: BEHIND TCH SCHOOL,
RADIO PARK, COWL BAZAAR, BALLARI.
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CRL.A No. 100157 of 2016
4. V. RAMESH,
S/O. V. THIMMAPPA,
AGE: 41 YEARS, AGRICULTURIST,
R/O: BANDIHATTI COWL BAZAAR, BALLARI.
5. MYLARI,
S/O. HANUMANTHAPPA,
AGE: 38 YEARS, RMP DOCTOR,
R/O: ASPARI, KURNOOR DIST.
ANDRAPRADESHA.
6. ADIVEPPA,
S/O. PARASANNA,
AGE: 25 YEARS, CONTRACTOR,
R/O: NEAR HULIGEMMA TEMPLE,
BANDIHATTI, BALLARI.
7. SMT. KAVITHA,
W/O. DOCTOR MYLARI,
AGE: 35 YEARS, J.E. IN BSNL,
R/O: NETAJI NAGAR,
OPP. TO VASAVI SCHOOL, BALLARI.
...RESPONDENTS
(BY SRI. Y. LAKSHMIKANT REDDY, ADV. FOR R1,
SRI. MAQBOOL PATIL, AMICUS CURIAE, FOR R2,
SMT. SUNITA P. KALASOOR, ADV. FOR R3,
SRI.K.L.PATIL, ADV. FOR R4 AND R6,
SRI.V.M.SHEELVANT, ADV. FOR R5 AND R7)
THIS CRIMINAL APPEAL IS FILED UNDER SECTION 378 (1)
& (3) OF CR.P.C., SEEKING TO GRANT SPECIAL LEAVE TO APPEAL
AGAINST THE JUDGMENT AND ORDER OF ACQUITTAL DATED
01.01.2015 PASSED BY THE LEARNED I ADDL. DISTRICT AND
SPECIAL JUDGE, BALLARY IN SPECIAL CASE NO. 5 OF 2011 AND
TO SET ASIDE THE JUDGEMENT AND ORDER OF ACQUITTAL
DATED 01.01.2015 PASSED BY THE LEARNED I ADDL. DISTRICT
AND SPECIAL JUDGE, BALLARI IN SPECIAL CASE NO. 5 OF 2011
AND CONVICT THE RESPONDENTS/ACCUSED FOR THE OFFENCES
PUNISHABLE UNDER SECTION 302, 201 AND 120-B READ WITH
SECTION 34 OF IPC AND SECTION 3(2)(V) OF SCHEDULED CASTE
AND SCHEDULED TRIBES (PREVENTION OF ATROCITIES) ACT.
THIS APPEAL, COMING ON FOR FINAL HEARING, THIS DAY,
ASHOK S. KINAGI, J., DELIVERED THE FOLLOWING:
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CRL.A No. 100157 of 2016
JUDGMENT
This appeal is filed by the State, under Section 378(1) and (3) of the Code of Criminal Procedure challenging the judgment and order of acquittal dated 01.01.2015 passed in Spl.S.C No.5/2011 by the First Additional District and Special Judge, Ballari, acquitting the respondent for the offence punishable under Sections 302, 201, 120(B) R/w. 34 of IPC and Section 3(2)(v) of SC and ST (Prevention of Atrocities Act, 1989).
2. For the sake of convenience parties are referred to as per their rankings before the trial Court.
3. The case of the prosecution is that the deceased Sathyavantha had entered into an agreement of sale with the accused No.6 in respect of land bearing land Sy.No.691 A/1, A-1/8 measuring 3.92 acres situated in the middle of Ballari - Belagal Road. During the year 2006 and he had agreed to sell the suit property for a sum of Rs.1,50,000/-. It is stated that when deceased asked the -4- NC: 2023:KHC-D:6352-DB CRL.A No. 100157 of 2016 seller mainly accused No.6 to execute the registered sale deed in favour of the deceased the accused went on postponing the land was valuable land deceased, the accused went on postponing the matter and since the land involved was a valuable land so, with an intention of retaining the said property, the seller had postponed the handing over of the possession of the said land. It is alleged that in respect of the said matter, the deceased Sathyavantha had filed a suit. Apprehending that the said suit land will be disposed by the Sathyavantha, so the accused No.6 had informed this fact to the accused No.4 and they contacted accused Nos.5 and 7 and all of them unlawfully assembled and conspired together and got themselves introduced accused No.1 through accused No.7 and gave a supari to the accused No.1 and assured accused No.1 that he would get Rs.5,00,000/- from the accused No.6 in case of committing the murder of Sathyavantha and they had given advance of Rs.50,000/-. -5-
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4. It is alleged that on 12.01.2010 the accused No.1 contacted the deceased Sathyavantha and asked to purchase the gold since it was available at a lesser price and informed him that he will bring some more person and for that purpose Sathyavantha agreed to it and asked to bring it in the evening and it is stated that the accused Nos.1 and 2 had discussed this fact with each other and accused No.1 dropped accused No.2 on Ballari - Bengaluru Road near HLC canal and then accused No.1 asked the deceased Sathyavantha to come near Mothi Circle at Ballari and at 7.00 p.m. Sathyavantha came there and then accused No. 1 took him near HLC canal at about 7.30 p.m. and the accused No.2 was waiting for them and it is stated that as per his previous plan, the accused No.2 handed over some gold piece sample and at that time, Sathyavantha informed him not to worry and that he would look into the matter if anything comes in future and asked them to bring all the gold there only and handed over Rs.500/- to them and also motor cycle and accused Nos.1 and 2 contacted accused No.3 and accused went to -6- NC: 2023:KHC-D:6352-DB CRL.A No. 100157 of 2016 the house of CW.28 and brought one chopper and they purchased 100g chilly powder in the shop of CW.22 and went to Bandihatti village and gave Rs.300/- to him and purchased 6 brandy bottles and all the 3 accused drunk the same and went near the house of accused No.4 and they informed accused No.6 that they are going to kill Sathyavantha and at that time, accused No.6 was with accused No.4. It is stated that, at 9:30pm, the accused went near HLC canal and accused No.3 threw dry chilly powder to the eyes of Sathyavantha, who was waiting there, and accused No.2 assaulted on the head of Sathyavantha with chopper and caused bleeding injuries. When Sathyavanta fell down, at that time, accused No.1 assaulted him with a granite piece due to which Sathyavantha died on the spot. It is alleged that, the accused also took away two gold chains, Rs.8,000/- cash, one mobile, one ring and one watch from the body of Sathyavantha and the accused with an intention to screen the real offence, threw the dead body of Sathyavantha in a ditch by the side of the road and went away on the motorcycle along with amount, gold and other -7- NC: 2023:KHC-D:6352-DB CRL.A No. 100157 of 2016 articles and distributed them among themselves. It is alleged that the deceased was belonging to SC/ST and it is stated that the accused, knowing fully well that the deceased belongs to SC, have committed murder of Sathyavantha. On 13.11.2010, the complainant went to the police station at 09:00 am and lodged the complaint. On the strength of the said complaint, Ballari Rural Police have registered a case against the accused in Crime No.247/2010 and took up the investigation of the case and thereafter, after investigating the case, filed charge sheet against the accused for the offences punishable under Sections 302, 201 and 120B read with Section 34 of IPC (hereinafter referred to as 'IPC', for short) and Section 3(2)(v) of the Scheduled Case and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (hereinafter referred to as the 'SC & ST Act', for short). The accused were produced before the court. Accused Nos.3 to 7 were enlarged on bail and accused Nos.1 and 2 were in judicial custody. The trial Court has framed charges and accused have denied the charges and claimed to be tried. -8-
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5. The prosecution in support of its case, examined 28 witnesses as PWs.1 to 28 and got marked documents at Exs.P-1 to 26 and got marked 23 properties at M.Os.1 to 23. Ex.D-1 is marked on behalf of the accused. The statement of the accused was recorded under Section 313 of Cr.P.C. The accused denied the truthness of the prosecution story. After hearing the parties, the trial Court framed the following points for consideration:
a. Whether the prosecution proves beyond all reasonable doubt that on 12.11.2010 at about 9.30 p.m., when Sathyavantha was standing on the way to HLC canal on Ballari-Bengaluru road, Ballari, accused Nos.4 to 7 with common object to commit murder of Sathyavantha who belongs to scheduled caste were conspired and gave supari of Rs.5,00,000/- to accused No.1 and accused No.1 agreed to do illegal act by taking supari of Rs.5,00,000/- by illegal means and that some act was done in pursuance of the agreement and thereby the accused have committed offence punishable u/S.120-B R/w Sec.149 of IPC?
b. Whether the prosecution proves beyond all reasonable doubt that on the above said date, time and place, accused in prosecution of common object to commit murder of Sathyavantha who belongs to scheduled caste, did commit murder intentionally or knowingly causing death of said Sathyavantha by throwing chilly powder on Sathyavantha by accused No.3 by assaulting Sathyavantha with chopper on -9- NC: 2023:KHC-D:6352-DB CRL.A No. 100157 of 2016 his head by accused No.2 and by assaulting him with granite stone by accused No.3 and thereby, the accused Nos.1 and 2 have committed offence punishable u/S/302 of IPC and u/S.3 (2)(v) of Scheduled Caste and Scheduled Tribe(Prevention of Atrocities) Act, 1989 and accused Nos.3, 4 to 7 committed offence punishable u/S.302 R/w Sec. 149 of IPC?
c. Whether the prosecution proves beyond all reasonable doubt that on the above said date, time and place, accused in prosecution of common object to commit murder of Sathyavantha, accused left the place by putting the dead body of Sathyavantha into the ditch with an intention to conceal or to screen the evidence of murder of Sathyavantha and thereby accused Nos.1 to 3 committed offence punishable u/S.201 of IPC and accused Nos.4 to 7 committed offence punishable u/S.201 R/w Sec.149 of IPC? d. What order?
Accordingly answered Point Nos.1 to 3 in the negative and consequently passed the judgment of acquittal.
6. The State aggrieved by the judgment and order of acquittal has filed this appeal.
7. Heard the learned Additional State Public Prosecutor. He submits that the judgment and order of acquittal passed by the trial Court is not consistent either in
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NC: 2023:KHC-D:6352-DB CRL.A No. 100157 of 2016 law or on the facts. It is stated that the trial Court has acquitted the accused on the ground that, none of the eyewitness have seen the incident and no sufficient evidence have been produced by the prosecution to prove the accused have committed the offence. He submits that the prosecution has produced ample evidence to prove the case of the prosecution and same has not been properly read and appreciated by the trial Court. He further submits that, PWs.3 and 5 are the material witnesses who have seen the deceased in the company of the accused on the relevant date of the incident and earlier to the said incident, two witnesses have deposed before the trial Court that, the deceased and the accused were moving towards Bengaluru road on the date of the incident at evening hours. This aspect of the evidence has not been properly read and appreciated by the trial Court. Further, he submits that PWs.2, 4, 8, 10 and 14 are panchas to the different panchanamas. All these witnesses have supported regarding spot mahazar and recovery of ornaments belonging to the deceased and on the basis of the voluntary statement of the accused, the trial
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NC: 2023:KHC-D:6352-DB CRL.A No. 100157 of 2016 Court has discarded the evidence of these witnesses by giving much importance to the minor contradictions found in their evidence and same is not sustainable in the eye of law. He also submitted that PW-17 is the doctor who conducted autopsy over the dead body of the deceased and PWs-19 and 26 are the independent witnesses, who are gold smith by professions, who have supported the case of the prosecution and have identified the accused persons and PWs.20, 21, 22, 23 and 25 are the police officials who have deposed before the trial Court regarding their role in the investigation. Considering all these facts, the trial Court ought to have convicted the accused by accepting the evidence of the prosecution but on the contrary, passed an order of acquittal. Hence, on these grounds he submits that, the judgment of acquittal passed by the trial Court is arbitrary and erroneous and is liable to be set aside. Hence, on these grounds he prays to allow the appeal.
8. Per contra, learned counsel for the respondents submits that, PW.5 is hearsay witness, PWs.6, 11 and 16 have turned hostile, PW-12 has partly supported the case of
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NC: 2023:KHC-D:6352-DB CRL.A No. 100157 of 2016 the prosecution, PW-13 has not supported the case of the prosecution and PW-24 also partly supported the case of the prosecution. He submits that, the trial Court after considering the entire evidence and material on record, was justified in passing the impugned judgment. Hence, on these grounds, he prays to dismiss the appeal.
9. Heard the learned counsel or the parties.
10. The points that arise for our consideration are:
(i) Whether the judgment of acquittal passed in Sessions Case No.5/2011 for the offence punishable under Sections 302, 201 and 120B read with Section 34 of IPC and Section 3(2)(v) of SC & ST (POA) Act, is based on appreciation of the evidence and as such it is liable to be sustained?
(ii) What order?
11. The trial Court on the basis of the material placed before it and the decisions relied on by the learned counsel for the accused was of the opinion that, when there was no proper corroboration in the prosecution story, various inconsistencies, contradictions, omissions and improvement
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NC: 2023:KHC-D:6352-DB CRL.A No. 100157 of 2016 in the prosecution story, it was constrained to hold that the prosecution cannot be held to have proved its case beyond all reasonable doubt. Hence, held that the accused is entitled for benefit of doubt.
12. Point No.(i): As observed by us above, the learned Sessions Judge has charged the accused for the offences punishable under Sections 302, 120B and 201 read with Section 34 of IPC. It is based upon the charge sheet, the learned Sessions Judge has framed the charge on 04.07.2012. A plain reading of the charge framed against accused are that, accused Nos.4 to 7 with common object to commit murder of Sathyavantha, who belongs to scheduled caste, conspired and gave supari of Rs.5,00,000/- to accused No.1 and he agreed to do illegal act by taking supari of Rs.5,00,000/- by illegal means and in pursuance of the agreement, accused committed the offence punishable under Section 120B read with Section 149 of IPC; that the accused with an common object to commit murder of Sathyavantha who belongs to SC did commit murder intentionally or knowingly by throwing chilly power by accused No.3 and
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NC: 2023:KHC-D:6352-DB CRL.A No. 100157 of 2016 accused 2 had assaulted Sathyavantha by chopper on his head and accused No.1 assaulted Sathyavantha with a granite stone and thereby accused Nos.1 and 2 committed offences punishable under Section 302 of IPC and Section 3(2)(v) of SC & ST Act and accused Nos.3 and 4 to 7 committed offence punishable under Section 302 read with Section 149 of IPC and accused have left the place by putting the dead body of Sathyavantha into the ditch with an intention to conceal or to screen the evidence of murder of Sathyavantha and thereby accused Nos.1 to 3 committed an offence punishable under Section 201 of IPC and accused Nos.4 to 7 committed an offence punishable under Section 201 read with Section 149 of IPC. On the basis of the complaint, a case came to be registered in Crime No.274/2010 for the offences punishable under Sections 302, 201 and 120B read with Section 149 of IPC and Section 3(2)(v) of SC & ST Act.
13. The prosecution in order to prove its case examined 28 witnesses. They are:
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(a) PW.1 Shankar Rao is the inquest pancha and he has stated that, the police called him near HLC canal and a body was lying there of Sathyavantha and there was injury to his head and the brain had come out and the police conducted the mahazar as per Ex.P.1 and they obtained his signature. He says that granite stone was lying by the side of the dead body. In the cross-examination, he says that it is written in Ex.P.1 that the granite stone has fallen and he further says that the granite stone had fallen at the distance of 8 - 10 feet from the dead body. He has further stated that when the police had come near HLC canal he was going to Halakundi on Bengaluru road on his two wheeler and on seeing the people who had gathered there, he went to the spot and the people were by the side of the road. He says that the spot is at a distance of ½ km from the road. He has further stated that the police had not issued him any notice to come for the panchanama and he says that when he saw the dead body there were clothes and two rings in the fingers of the dead body. He has denied that the panchanama as per Ex.P.1 was not conducted in his
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NC: 2023:KHC-D:6352-DB CRL.A No. 100157 of 2016 presence and he is giving false evidence. He has denied that he has put his signature on Ex.P.1 in the police station. In the cross-examination by the learned counsel for the accused No.3 he has stated that the spot was visible from Bengaluru road. He says that since Sathyavantha was leader of Ambedkar Sangha, so, he had seen him. He further says that two other persons were asked by the police to put their signatures on the panchanama, but they did not agree. In the cross-examination by learned counsel for the accused Nos.4 to 6 he has denied that, Lokesha who is the younger brother of the deceased Sathyavantha is his friend and he has also denied that Lokesha himself has brought him to the Court and he has also denied that he is giving false evidence at the instance of Lokesha.
Ex.P.1 which is the inquest panchanama. It is mentioned in Col.No.3 that the dead body was first seen by the complainant Gadilingappa and Sathyavantha was last seen by Yashodamma on 12.11.2010 at 7.00 p.m. and on careful perusal of Ex.P.1, there is no mention of the granite stone falling at a distance of dead body and in Col.No.12 it is
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NC: 2023:KHC-D:6352-DB CRL.A No. 100157 of 2016 mentioned that ''AiÀiÁgÉÆà zÀĵÀÌ«ÄðUÀ¼ÄÀ PÉÆ¯É ¸ÀªÄÀ AiÀÄzÀ°è ºÀjvÀªÁzÀ ¯ÁAUÀÄUÀ¼ÀAvÀºÀ DAiÀÄÄzsÀUÀ¼À£ÀÄß §¼À¹ ºÉÆqÉzÄÀ PÉÆ¯É ªÀiÁr ºÉÆÃzÀAvÉ PÀAqÀÄ §gÀÄvÀÛzÉ''. It is clear from Col.No.13 that the deceased was also financier and was also doing other business and land business and some enemies of Sathyavantha might have killed him. So, if at all any granite stone was seized in the presence of the PW.1 at the time of Ex.P.1, then the same would have been mentioned in Ex.P.1 and this goes to show that PW.1 is making improvement in this regard. Further, PW.1 does not say anything about the assault by some long or sharp weapon on Sathyavantha whereas in Ex.P.1, it has been mentioned in column No.12 that, some sharp weapon has been used in the commission of the offence. So, to this extent, there is omission on the part of the PW.1.
PW.1 says that there were two rings in the fingers of the deceased and it is written in Ex.P.1. But on careful perusal of Ex.P.1 there is no mention of two rings in the fingers and, on the other hand it is mentioned that, rings and chain were taken away by some one in column No.17 of Ex.P.1. So, this becomes contrary. According to him about
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NC: 2023:KHC-D:6352-DB CRL.A No. 100157 of 2016 50 - 70 persons had gathered at the spot where the dead body was lying and was visible from Bengaluru Road.
(b) PW.2 Shivashankara is the spot pancha, and he has stated that the spot panchanama as per Ex.P.2 was conducted in his presence and at the time of mahazar, one Saibaba locket, chain piece, one locket, one mobile pouch, one lead pen and an amount of Rs.22,500/- and 3 key bunches were seized from Sathyavantha and the police had taken them and he has also further stated that the police have also seized the blood- stained mud and non-blood- stained mud. He has stated that himself and Gadilingappa i.e. the brother of the deceased are staying in the same lane. He has identified the properties. In the cross-examination he says that no written notice was given to him by the police to come for the panchanama and he says that there were about 10 - 15 persons at the spot and he says that he does not know the boundaries of the spot and according to him, the spot is at the distance of two furlong from Bengaluru Road and he says that the police had not called the Gold-smith at the spot and they have not got the said properties weighed.
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NC: 2023:KHC-D:6352-DB CRL.A No. 100157 of 2016 He has denied that, his signature was obtained in the police station and he has put his signature on Ex.P.2 at the instance of Gadilingappa. In the further cross-examination by the learned counsel for the accused Nos.4 and 6, he has stated that, there is distance of 5 kms from HLC canal and Shivalinga Nagar. He has denied that, he was not present at the spot at the time of conducting the mahazar and he had been on duty at that time.
(c) If we look to the evidence of PW.3 Gadilingappa, he has stated that, deceased Sathyavantha is his elder brother and he says that, on 12.11.2010 at about 7.00 p.m., his brother Sathyavantha had went out stating that he is going out to make payment of the cement and he did not return. Thereafter, his wife informed PW.3 that Sathyavantha did not return and he says that he contacted all his relatives but he could not be found and the mobile of Sathyavantha was switched off. Thereafter, he says that on the next day he went towards Bengaluru road and he found that some people had gathered near HLC canal and he went and saw, that the dead body of his brother was lying in a ditch by the side of
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NC: 2023:KHC-D:6352-DB CRL.A No. 100157 of 2016 the canal and thereafter, he informed this fact to his another brother Lokesha and he says that the gold chain was not in his neck. Thereafter, he says that he went and informed the police and gave complaint as per Ex.P.3. He has stated that there was dispute between his brother and accused No.6 Adiveppa in respect of an agreement to sell the land and a case was disposed of in favour of his brother. He says that after he filed the complaint, the police have conducted the mahazar as per Ex.P.2 and he has identified the properties at M.Os.1 to 11 and he says that he has informed the police that the persons who had sold the land to his brother Sathyavantha might have killed him and he says that his brother had informed him that there was a threat call given to him by the land owner. So, it is clear from the evidence of this PW.3 that only on suspicion he has filed the complaint.
In the cross-examination, he has stated that himself and his brother are staying separately since 10 years and he says that he does not know to whom his brother Sathyavantha was advancing loans and he has denied that many people had grudge against him. He further says that
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NC: 2023:KHC-D:6352-DB CRL.A No. 100157 of 2016 he does not know to which mobile company was the SIM belonging to Sathyavantha and he says that when he saw the dead body for the first time, he did not notice anything and thereafter when he came along with the police he found mobile pouch, key bunch and the gold chain pieces and he admits that he has not got this fact mentioned in his complaint which is at Ex.P.3. He has stated that he does not know accused No.1 - Gangaraju. But he says that when the temple was being built he had seen accused No.1. He says that he does not know the month and year when he had seen accused - Gangaraju. In the further cross-examination by the learned counsel for accused Nos.4 and 6, he says that his house is situated at Shivalinga Nagar. He says that there was no transaction between his brother Sathyavantha and Mahesha and he says that Mahesha was not visiting his house and he was not visiting the house of Mahesha and he admits that he does not know personally Mahesha. He has denied that he has not got it mentioned in the complaint that there was a land transaction between Sathyavantha and sons of Parasappa.
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NC: 2023:KHC-D:6352-DB CRL.A No. 100157 of 2016 In the complaint Ex.P.3 he has not mentioned any where that there was a land transaction between his brother Sathyavantha and Parasappa and his sons. In Ex.P.3 also he has stated that some persons have killed his brother and he has stated that his brother was advancing loans. He has denied that he has mentioned in his complaint that since his brother Sathyavantha was doing money lending transaction so, some persons have killed him. But on looking to Ex.P.3, complaint, he has clearly mentioned as ''£À£Àß CtÚ ºÀtPÁ¸ÀÄ ªÀåªÀºÁgÀ ªÀiÁqÀÄwÛzÀÝ£ÀÄß ¸À»¸ÀzÀ AiÀiÁgÉÆà zÀĵÀÌ«ÄðUÀ¼ÄÀ AiÀiÁªÀÅzÉÆà zÀÄgÀÄzÉÝñÀ¢AzÀ C°èUÉ PÀgÉzÀÄPÉÆAqÀÄ ºÉÆÃV AiÀiÁªÀÅzÉÆà ºÀjvÀªÁzÀ DAiÀÄÄzsÀ¢AzÀ vÀ¯ÉUÉ ºÉÆqÉzÄÀ PÉÆ¯É ªÀiÁr ±ÀªÀªÀ£ÀÄß PÁtzÀAvÉ gÀ¸ÉÛAiÀÄ ªÉÄðAzÀ gÀ¸ÛÉ ¥ÀPÌÀ zÀ°ègÄÀ ªÀ vÀVΣÀ°è ºÁQ ºÉÆÃVgÀÄvÁÛgÉ''. He further admits that he has not got mentioned in his complaint that his brother Sathyavantha and Gangaraju met at Mothi Circle and went. Further he says that he does not know the date, month and year when his brother Sathyavantha was given threat by accused Mahesha. He says that he has not filed any complaint before the police in respect of giving threat by Mahesha to Sathyavantha and also he did not ask for police protection. He admits that for
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NC: 2023:KHC-D:6352-DB CRL.A No. 100157 of 2016 the first time he has informed before the police in his complaint that there was a life threat by Mahesha. He has denied that he has not got mentioned in his complaint the ornaments which his brother had wore at the time of his death.
(d) PW.4 Kumara is the pancha for seizure mahazar and he has stated that after the inquest was conducted, the pant, under-wear, ududara, banian and two rings were seized by the police in the police station and the police informed him that they belonged to deceased Sathyavantha. He has stated that the police have conducted the mahazar as per Ex.P.4 and he has identified the properties. In the cross- examination he says that the Ballari Rural police had not given any notice to him to come for the panchanama but he says that the police had informed him to come to police station through his mobile. In the cross-examination by the learned counsel for the accused Nos.3, 5 and 7, he admits that the deceased Sathyavantha is his paternal uncle. He has denied that he does not know anything and he is giving false evidence. In the cross- examination by the learned counsel
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NC: 2023:KHC-D:6352-DB CRL.A No. 100157 of 2016 for the accused Nos.4 and 6, he has stated that his mobile number was in the police station before they called him for the panchanama but he has denied that he was called for the panchanama in many cases. If at all this witness was not called for panchanama in other cases and he was not known to the police earlier, then, it is not clear as to why his mobile number was with the police and why the police called him in particular. So, this aspect also castes doubt in the prosecution story.
(e) PW.5-Ashoka is the son of the deceased and he has stated that on 12.11.2010 his father left the house at 7.00 p.m. on the motor bike stating that he wanted to give cement amount to Mestri Aralaiah and he says that he did not return and on the next day his uncle informed that the dead body of his father was lying near HLC canal and thereafter, he says that he went to the hospital and saw the dead body of his father and he found that the brain had come out. He says that some persons have killed his father and he came to know that his father had told his mother that some persons who had sold the land, had given torture to his
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NC: 2023:KHC-D:6352-DB CRL.A No. 100157 of 2016 father and he has identified the properties belonging Sathyavantha and he says that in the police station, the police had shown him that, as to these are the persons who had killed Sathyavantha and he clearly says that they have taken back the motor cycle which was taken away by Sathyavantha on that day. In the cross-examination he says that, he had not enquired his father before he left the house. He has admitted that he was studying in his room when his father left the house. He has denied that the motor cycle which was seized in this case was belonging to one Mallikarjuna of Sanganakal. He has admitted that his father was doing money lending business. He also admits that his father was in the habit of giving loans on keeping the lands and gold ornaments of the public. He has denied that those persons were quarreling with Sathyavantha when his father was not returning the ornaments.
(f) PW.6 Raju has stated that he does not know the accused Gangaraju and he has denied that he has given statement before the police stating that on 12.11.2010 at 7.00 p.m. he was standing at Mothi Circle and he saw
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NC: 2023:KHC-D:6352-DB CRL.A No. 100157 of 2016 Sathyavantha and Gangaraju going together on the motor cycle belonging to Sathyavantha towards Bandimot. He has been treated as hostile to the prosecution story and even in the cross-examination, he has denied that he had seen the accused Gangaraju and Sathyavantha going on the motor cycle and he has given statement before the police as per Ex.P.5. So, the first evidence for the prosecution in order to prove the last seen theory has not supported the prosecution story.
(g) PW.7 Hemaraju Reddy has stated that he knows accused No.4- Mahesh and accused No.7-Kavitha and Kavitha is his elder sister and accused No.5 Mylari is his sister's husband and he says that there was dispute between him and Kavitha in respect of 8.00 acres of land at Kolagal village and he says that Kavitha is the daughter of his father's first wife and he is the son through second wife. In the cross- examination he clearly says that he does not know accused Gangaraju. He says that he did not inform before the Court that there was life threat to him from Kavitha. He admits that there is no dispute between him and Kavitha in
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NC: 2023:KHC-D:6352-DB CRL.A No. 100157 of 2016 respect of 8.00 acres of land out of Sy.No.133 and 423 and there is no dispute in respect of 5.00 acres of the said land. So, even though elaborate cross-examination has been made to this witness, but in respect of the incident, he does not speak much and his evidence will not help the prosecution in any manner. On the other hand, he admits that after the death of his father in the year 1990 he is in the habit of coming to court and he also admits that the Civil Suit was disposed off in favour of Kavitha and he has denied that since Mahesha was released on bail in a case filed by him so he has again included him in this case.
(h) PW.8 Samuel has stated that accused No.3 Anjineyulu @ Anji had taken him and CW.19 Venkatesh to Tumkur along with police and there he took them near the Well stating that he had thrown the mobile belonging to Sathyavantha and he says that it was an abandoned Well and on search, no mobile was found there and thereafter, he says that mahazar as per Ex.P.6 was conducted there and he has put his signature. He says that thereafter at 12.50 p.m. accused Anjineyulu took them to his house and handed over
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NC: 2023:KHC-D:6352-DB CRL.A No. 100157 of 2016 the election identity card and Rs.1,000/- stating that they belong to Sathyavantha and thereafter, the police conducted the mahazar as per Ex.P.7 and then took his signature. In the cross-examination he admits that himself and the deceased are relatives and he says that the police had not given any written notice to him to come for the, mahazar. He says that, he does not know after how many days after the death of Sathyavantha, he was taken by the police to Tumkur and he also says that, he does not know how many members were there in the said jeep and he says that he cannot say the time when they left to Tumkur and he says that, they did not have any meals on the way. He admits that the people were walking near the said Well at about 6.30 a.m. He says that he has not seen the police going out for having tiffin. He says that, he cannot say that, Tumkur is at a distance of 240 km from Ballari. He has denied that no mahazar was conducted in his presence and the police have not seized any amount of Rs.1,000/- and the election identity card of Sathyavantha. He says that he has not observed of which year was the election identity card of
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NC: 2023:KHC-D:6352-DB CRL.A No. 100157 of 2016 Sathyavantha. So the evidence of this witness also will not So help much to the prosecution because he says that the mobile was not traced.
(i) PW.9-Jagadeesh has stated that he knows accused Gangaraju and he says that about 2 years back Gangaraju came to him along with two gold chains and asked him to melt them and prepare one chain and he says that he melted them into 5 gold balls and he told Gangaraju that no chain can be done and he gave 5 gold balls to him. He says that when Gangaraju told him to sell them and to give him the money, he told that he would not do that and he says that Gangaraju gave Rs.500/- and went away. He says that after 15 days the police came along with Gangaraju and told that the said chains were belonging to Sathyavantha and asked him to return and so, he has returned them. He says that he is not holding any licence from the concerned department for preparing gold articles and he has not maintained any registers and there is nothing in writing to show that accused Gangaraju had given two chains to him. He admits that normally if any people give gold articles to him for preparing
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NC: 2023:KHC-D:6352-DB CRL.A No. 100157 of 2016 gold ornaments then he would issue receipt. In the cross- examination he says that the gold piece that was shown to him was resembling the piece that was shown to him. He has denied that no mahazar was conducted and no property was shown to him previously. So, when this witness was giving receipts to other persons for receiving the gold for preparing ornaments, then it is not clear as to why in this particular case he did not issue any receipt to the accused to show that he had given two gold chains to him for preparing another chain. Further this witness has not kept any registers and he is also not possessing any licence to run the said business. So, under such circumstances, it appears that this witness is doing illegal business and so his evidence cannot be believed.
(j) PW.10 Thippaiah has stated that, on 25.11.2010, PSI Devendrappa had called him and Rafiq to the police station and showed accused Ananda to him and accused- Ananda told that he would show rings belonging to Sathyavantha and the chopper used for murdering Sathyavantha and it is stated that the accused took them to
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NC: 2023:KHC-D:6352-DB CRL.A No. 100157 of 2016 Nellur village in Chennagiri taluk to the shop of one Setu and when Setu was asked to produce the gold ring, he handed it over to the police and the police conducted the mahazar as per Ex.P.8 and they took his signature. He has stated that thereafter, accused Ananda took them to Andral village near Halla where he had hidden the chopper and he handed over the said chopper to the police and the police conducted the mahazar and have taken his signature. He says that the accused also took them to the house of one Lakshmi(PW-28) and Lakshmi handed over one watch allegedly belonging to Sathyavantha and the police conducted the mahazar and then took his signature as per Ex.P.8(c). He has identified the chopper, ring and the watch. In the cross- examination, he has stated that he was in Ballari Taluka Office before he was called by the police and it was 7.00 or 7.30 p.m. and he has denied that Taluk Office will close at 5.30 p.m. and that he is giving false evidence. He admits that he is the member of DSS and he says that he does not know if the deceased Sathyavantha is also a member of DSS. But PW.1 has
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NC: 2023:KHC-D:6352-DB CRL.A No. 100157 of 2016 admitted that Sathyavantha is also the leader of Ambedkar Sangha, so, he knows him.
Hence, it becomes clear that, Sathyavantha and PW.10 are the members of DSS Sangha and he is not in a position to say the boundaries of the spots where the panchanamas were conducted. He has denied that Ex.P.8 was written in Ballari Rural police station. He is not in a position to say the jeep number in which he had gone to Nellur and he admits that Nellur is at a distance of 350 kms, from Ballari. He says that he does not know the full name and address of Setu at Nellur and he says that his name and address has been mentioned in the panchanama which is at Ex.P.8. But if we look to Ex.P.8 there also there is no entire name of Setu and his address and this fact has also been admitted by the I.O. He has denied that he had not been to Nellur at any time and no mahazar as per Ex.P.8 had been conducted at the spot. He admits that the property like M.O.11-ring is worn by everybody. He admits that the watch like M.O.10 is also available in every shop. He has denied that he has never seen the accused Ananda and he is giving false evidence.
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(k) PW.11 Gopala Krishna @ Bujji is the person from whose shop the chilly powder was alleged to be purchased by the accused Anji, Gangaraju and Ananda, but he clearly says that no chilly powder was purchased from his shop by the accused and the police had not brought the accused to his shop. He has been treated as hostile to the prosecution story and even in the cross-examination, he has denied that the accused had purchased chilly powder from his shop and they had sprinkled the chilly powder to the eyes of Sathyavantha and then they have killed him and he has denied that he has given statement before the police as per EX.P.9.
(l). PW.12 Mallikarjuna has stated that, about 2 years back at about 9.00 p.m., he had been to industrial area to see the lorry and at that time, the accused and Sathyavantha standing there on the road and when he asked Sathyavantha as to why he was standing there, he told that there was some work and thereafter he says that he returned since the lorry did not come and on the next day he came to know that Sathyavantha was murdered. This
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NC: 2023:KHC-D:6352-DB CRL.A No. 100157 of 2016 witness has been examined by the prosecution in order to prove the last seen theory. But this witness has also failed to support the prosecution story. In the cross-examination by the learned Spl.P.P. he has denied that the police had called him to the police station to identify the accused and he has denied that he had identified accused Nos.1 to 3 in the police station and has given statement before the police as per Ex.P.10. In the cross-examination by the learned counsel for the accused, he admits that he is not having his own lorry and that he is the resident of B.Belagal village. He admits that many vehicles will be passing there and he says that he knows Sathyavantha since his childhood and he admits that it was dark at the time when he had gone there. He clearly says that he does not know accused Gangaraju and he says that on seeing the spot he did not make any efforts to go to the police station and inform. In the cross- examination by the learned counsel for the accused No.2, he admits that he is seeing accused Nos.1 to 3 for the first time before the Court. He says that on seeing the dead body of Sathyavantha he did not inform this fact to anybody and he
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NC: 2023:KHC-D:6352-DB CRL.A No. 100157 of 2016 admits that CW.1 has come to the Court on the day when he is giving evidence. He has denied that he is giving false evidence.
(m) PW.13 Shekhanna is the liquor shop owner and he clearly says that accused Nos.1 to 3 had not come to his hotel to purchase liquor and he has not given any statement before the police. He has been treated as hostile to the prosecution story and even in the cross-examination, he has denied that on 12.11.2010, the accused Nos.1 to 3 had come to his hotel and they purchased 6 quarter brandy and he has denied that he has given statement before the police as per Ex.P.11. In the cross-examination by the learned Spl.P.P. he has denied that he has given statement before the police as per Exs.P.11 and 12.
(n) PW.14 Mukkanna has stated that he was called to the police station about 2 ½ years back at about 5.00 p.m. and he saw accused No.1-Gangaraju in Rural police station and he says that Gangarju informed him that accused Mahesha, Adiveppa Mylari and his wife had given him supari to kill Sathyavantha and he says that the accused Gangaraju
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NC: 2023:KHC-D:6352-DB CRL.A No. 100157 of 2016 took them to Guntakal stating that he would show the chain and he took them to one house and the said house owner handed over two golden ingots and the police seized them under mahazar as per Ex.P.13 and thereafter he says that the accused brought them to Guggarahatti and there he showed one stone and told that it was the stone which was used for committing the murder of Sathyavantha and the police seized it and conducted the mahazar as per Ex.P.13 and took his signature. He further says that the accused also took him to Railway police station at Ballari and he produced one motor cycle and the police seized the said motor cycle and conducted the mahazar and took his signature. In the cross- examination he says that the Rural police had not given any notice to him to come for the panchanama and he says that he was not knowing the accused Gangaraju previously and he says that the police have not obtained his signature on the statement given by the accused Gangaraju and no mahazar was conducted in his presence. He says that he does not remember the jeep number in which they went to Guntakal and he also does not know the name of the jeep
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NC: 2023:KHC-D:6352-DB CRL.A No. 100157 of 2016 driver and he also does not know the house number and ward number of the house where he had been at Guntakal. He says that one Adhimama was the person who had come out of the house and he says that Guntakal police had not come to that house and the police did not weigh the gold items seized from the house and no purity was tested and no seal was done. He has denied that he had not been to the house of Adhimama and no gold was given by him and they were not seized by the police and no mahazar was conducted. He further admits that many stones were lying by the side of the canal and there was no any number to the said canal from where the stone M.O.22 was seized. He admits that there was one person watching the vehicles in the railway station but he says that he does not know his name. He further says that there were about 50 - 60 vehicles which were parked there and the motor cycle which was seized by the police was not locked and it was removed. Further he admits that he does not know reading and writing Kannada and he also does not know what the police have written in the mahazar which is at Ex.p.13. He also admits
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NC: 2023:KHC-D:6352-DB CRL.A No. 100157 of 2016 that he will be often going to the police station. He has admitted that he has put his signature to Ex.P.13 in the police station. He admits that his house is at a distance of 3 kms from Ballari Rural police station. He also admits that he was kept in a jail in the murder case of Heeru Naik. He has denied that due to pressure of the police he is giving false evidence. If at all this witness had actually gone to the house of Adhimama at the instance of the accused Gangaraju then he would have been in a position to say the door number and the ward number of the house of Adhimama.
(o) PW.15 Javeed has stated that about 2 1/2 years back at about 7.00 p.m. he was near the Auto stand near Mothi Circle and Sathyavantha called him and he telephoned and cut and thereafter accused Gangaraju came there and Sathyavantha took Gangaraju on his motor cycle towards Guggarahatti and thereafter, he came to know that the murder of Sathyavantha has taken place. In the cross- examination, he says that he is running Auto belonging to different person and he says that he cannot say the auto number which was driven by him and he says that two autos
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NC: 2023:KHC-D:6352-DB CRL.A No. 100157 of 2016 were standing at Mothi Circle and he says that he does not know to whom they were belonging. He says that he does not know the house of accused Gangaraju and he was not knowing him earlier. He says that he does not know to whom Sathyavantha had talked over phone. He clearly says that he has not given any statement before the police as per Ex.D.1. He says that he does not know the motor cycle number of Sathyavantha and he says that he did not inform the family members of Sathyavantha immediately after he came to know about the death of Sathyavantha. He has denied that he does not know anything about this case and he is giving false evidence.
(p) PW.16 Shanthi Bai is the person from whom accused Anjineyulu had taken the chopper for the purpose of cutting wood and later it was used for murdering Sathyavantha but she has turned hostile to the prosecution story and even in the cross-examination she has denied that she had given the chopper to accused Anjineyulu and it was used by accused for murdering Sathyavantha. She has
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NC: 2023:KHC-D:6352-DB CRL.A No. 100157 of 2016 denied that she has given statement before the police as per Ex.P.14.
(q) PW.17 Dr.Chaithanya R. is the doctor who has conducted the post-mortem over the dead body of Sathyavantha and he has stated about the injuries which he observed over the body of Sathyavantha and he has opined that such injuries are possible if a person is assaulted with chopper, axe and stones. In the cross-examination he says that about 5-6 hours prior to the post-mortem, death of Sathyavantha had taken place. He says that he did not observe if there were blood-stains on Exs.P.19 to 22 and he has not mentioned about the same in his post-mortem report which is at Ex.P.16. He has denied that no chilly powder was there on the dead body of Sathyavantha and he has stated that he did not send any sample chilly powder to the police.
(r) PW.18 Kubera is the person from whom the bucket was taken by the accused Anjineyulu for the purpose of cleaning the motor cycle, but he has turned hostile to the prosecution story and even in the cross-examination he has denied that the accused Anjineyulu had taken the bucket for
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NC: 2023:KHC-D:6352-DB CRL.A No. 100157 of 2016 washing the motor cycle and he later came to know that the accused had killed Sathyavantha and had snatched the gold chain, finger rings, mobile, cash and motor cycle. He has denied that he has given statement before the police as per Ex.P.17.
(s) PW.19 Arif is the person who is working in the gold- smith shop and he says that the accused Gangaraju had come to him along with Adinarayana and showed him 4 - 5 gold balls and asked him to prepare ornaments about 2 1/2 years back and thereafter, he says that he took him to the shop of one Muneer and thereafter, the said gold balls were melted and Muneer was given Rs.500/- as coolie and thereafter, he says that the police had come to him and enquired him and he has informed the said fact to the police. He says that he has not seen the gold balls. In the cross- examination, he says that he is working in the jewellary shop and he says that he is not having any licence and he says that the name of the owner is Sattar Khan and the entire transaction is done by his owner and he says that he does not remember the other persons who had come to his shop
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NC: 2023:KHC-D:6352-DB CRL.A No. 100157 of 2016 on the day when the accused had come and he says that he has not given any statement before the police stating that Adinarayana had shown him the gold balls. He further says that he was not knowing the accused No.1 Gangaraju and he says that he had never been to the shop of Muneer after he had went along with Adinarayana and he says that when the police had come to his shop he had not shown him the accused No.1 Gangaraju and he has denied that the accused Gangaraju had not come to him at any time.
(t) PW.20 Babu Dyamanna Kolekar is the retired Dy.S.P. and he has stated that on 26.11.2010 he has recorded the statement of Shanthi Bai and on 28.11.2010 he gave requisition to include accused Kavitha and then he says that he has obtained the post-mortem report from the doctor, obtained the caste certificate and sent the properties to FSL and he says that since the matter was under the provisions of Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act, 1989 so, he took up further investigation of the case and arrested the accused No.2. In the cross-examination he says that, he has not produced
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NC: 2023:KHC-D:6352-DB CRL.A No. 100157 of 2016 documents to show that his S.P., had ordered him to take investigation. He has denied that he was not having any powers to investigate this case.
(u) PW.21-B. Venkateshulu is the PSI and he has stated that on 25.11.2010 at 4.00 p.m. he had been along with his CPI and arrested the accused Gangaraju, Anand Kumar and Anjineya and they took him to Tumkur on 26.11.2010 and showed the Well stating that he had thrown the mobile in that well and thereafter, the Accused Anjineya took him to his house and handed over Rs.1,000/- and the election identity card of Sathyavantha and he says that he has conducted the mahazar. In the cross-examination he has denied that Anjineya had not taken them to Tumkur and also to his house and has not handed over any amount and election identity card.
(v) PW.22-Umesha has stated that he handed over the FIR to the Magistrate on 13.11.2010 at about 12.00 noon and gave the report. In the cross-examination he says that he has formed the I.O. about the delay in handing over the
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NC: 2023:KHC-D:6352-DB CRL.A No. 100157 of 2016 FIR and he has denied that he has not handed over any FIR to the Court and he is giving false evidence.
(w) PW.23-K.S.Devendrappa, PSI has stated that on 13.11.2010 at about 9.00 a.m. the complainant came to the police station and lodged the complaint and on the strength of the said complaint, he registered the case and sent FIR to the Court. He says that on 25.11.2010 he along with CPI Hullur and PSI Venkateshulu apprehended the accused Nos.1 to 3 near Ballari Stadium and enquired them and produced them before the CPI. He says that he also seized the gold ring from the Jewellary shop owner which was shown by accused Anand Kumar and he also says about seizing of the watch from Lakshmi Bai. In the cross-examination, he has denied that he has not apprehended the accused and he is giving false evidence. He further says that he has not mentioned the name of the owner of the shop at Nellur. He has also not seized any receipt and there is no signature of the owner on Ex.P.8. He says that on the way he had stopped at Chitradurga and completed their morning activities and he has denied that he had not seized any gold
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NC: 2023:KHC-D:6352-DB CRL.A No. 100157 of 2016 ring at the instance of accused No.2. He has also denied that he has not seized any chopper which was shown by the accused No.2.
As already observed by us, the name of the owner of the shop has not been mentioned in the panchanama which is at Ex.P.8 but whereas the pancha who has been examined as PW.10 has stated that the name and details of the shop owner has been mentioned in the panchanama. Hence, the evidence of PW.10 and PW.23 runs contrary.
Further, PW.23 in the course of cross-examination has admitted that the FIR has been registered against the unknown persons. He says that he does not know if CW.25 Hemaraju Reddy was in the police station on 25.11.2010. He admits that he has not mentioned in Ex.P.8 about the apprehending of the accused Mahesha and Adiveppa. He admits that there was no problem for him to mention the full name and address of panchas in Ex.P.8. He has denied that no panchanama was conducted and he is giving false evidence.
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NC: 2023:KHC-D:6352-DB CRL.A No. 100157 of 2016
(x) PW.24-Akbar Basha has stated that he is having a cloth shop on M.G.Road, Tumkur in the name and style of Nadeem Garments and he says that the accused Nos.1 to 3 had purchased two pants, two shirts, two banians from his shop and he has identified the accused Anand before the Court. He says that he has informed this fact to the police when police asked him. In the cross-examination he admits that so many persons will come to his shop and many people will purchase articles and he says that he had given receipt to accused and the items are mentioned in it and he says that he has not kept any duplicate receipt. He says that if any person comes only one time he cannot remember the name of the said person. He has denied that he is giving false evidence at the instance of the police.
(y) PW.25- Sangappa Siddappa is the CPI and he has stated that on 13.11.2010 he took up further investigation of the case and he conducted the inquest panchanama as per Ex.P.1 and he also recorded the statement of Lokesha and he says that he sent the dead body for the post-mortem and he also seized the articles which were produced after the
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NC: 2023:KHC-D:6352-DB CRL.A No. 100157 of 2016 post- mortem and inquest panchanama was conducted and he also says regarding seizing of the blood-stained mud and about the conducting of the mahazar and seizing of the gold articles. He also says regarding recording of the statements of the witnesses and he says regarding seizing of the mobile and apprehending of the accused and the properties at the instance of the accused and regarding the recording of the voluntary statement of the accused and finally he says that he handed over the further investigation of the case to PSI since it was outside jurisdiction. In the cross-examination he has denied that the accused has not taken him to Guntakal and no mahazar was conducted in his presence. He has denied that he has not seized any properties. He clearly says that he has not conducted any test identification parade. He has denied that he has not apprehended the accused. He has denied that no chilly powder was found at the spot. He has denied that a false charge sheet has been filed.
(z) PW.26-Amar Sivri has stated that since 2010 he has kept the Pan Broker Shop at Nellur and he has stated that the accused Anand had come to him and had kept a gold
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NC: 2023:KHC-D:6352-DB CRL.A No. 100157 of 2016 ring and he handed over the same to the police. In the cross- examination he says that he has opened the Jewellary Shop on 1.11.2010 and he has not obtained any permission from the concerned authority and he says that he has given an application and he admits that only after getting permission, the shop will be opened. He admits that he has kept a book in respect of daily transaction and he admits that whenever he receives any gold and whenever it is pledged, the name of the person who has pledged etc. will be mentioned in the receipt and the other receipt will be given to the person who pledges it. But in the case on hand no 'receipt book is produced and no documents are produced to show that the accused Anand had kept the gold ring with him. So, this also casts doubt in the prosecution story. He says that he cannot say, the name of the police who had come to him. He admits that without looking to the receipt he cannot say which person had come to his shop on which day. He has denied that he is giving false evidence stating that about 5 years back accused Anand had come and had pledged the gold ring. In the cross- examination he admits
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NC: 2023:KHC-D:6352-DB CRL.A No. 100157 of 2016 that the property like M.O.11 are easily available in the market. He has denied that he is giving false evidence.
(aa) PW.27-Adinarayana has stated that about 4 - 5 years back accused Gangaraju had come to him with 5 gold ingots stating that they were found while digging the foundation and he had asked him to get them sold and thereafter he says that he told him that he would not do so and he had asked him to go away and thereafter he says that the said ingots were given to Arif and he melted them and prepared one ingot and gave one sample piece. Thereafter, he says that after 3 days the police had come along with Gangaraju and the police asked him to give the gold and he has given it before the police. He has identified the properties at M.Os.20 and 21. In the cross- examination he has stated that the accused Gangaraju had two brothers and two sisters but he says that he does not know their names. He admits that he is staying nearby Ballari and he says that there is no transaction between him and Gangaraju and accused Gangaraju had kept any valuables before him. He admits that the gold articles found at the time of digging
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NC: 2023:KHC-D:6352-DB CRL.A No. 100157 of 2016 foundation, if they are received, if it is taken, it will be illegal. He says that he told Gangaraju that he don't want gold but Gangaraju told him that he would take it on the next day but he did not come but after 3 days police came along with Gangaraju. He says that when Gangaraju did not come he did not inform the family members of Gangaraju and he says that he did not try to give the gold in the house of Gangaraju. He says that he cannot say the weight of 5 golden ingots and he says that he did not obtain any receipt when he gave the ingots to Arif. He says that he did not obtain any receipt from the police when he handed over M.Os.20 and 21 to the police and he says that the police did not seal the said gold and he says that he did not obtain any identification marks in order to show that they were handed over to the police. He says that the police have not recorded his statement. He has denied that Gngaraju had not come to him and he had not given him 5 golden ingots and he has not given it to Arif. He has denied that he is giving false evidence at the instance of Gadilingappa.
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NC: 2023:KHC-D:6352-DB CRL.A No. 100157 of 2016 (ab) PW.28-Lakshmi is the person from whom the watch was seized at the instance of the accused Anand. But she clearly says that she does not know the accused Anand and where he is residing and she clearly says that the accused Anand had never come to her and handed over any watch to her. She has been treated as hostile to the prosecution story and even in the cross-examination, she has denied that on 25.11.2010 the police along with accused Anand had come to her and Anand asked her to give watch which was belonging to Sathyavantha and accordingly she has given the same to the police and the police seized it and conducted the mahazar. She says that she does not know the wife's name of Gangaraju and she also does not know where is the house of Gangaraju. She has denied that even though she has handed over the watch at the instance of the accused Anand, she is now giving false evidence.
14. On careful perusal of the entire oral and documentary evidence adduced by the prosecution, PW-1 in his cross-examination has deposed that, it is written in Ex.P-1 that granite stone has fallen and he further deposed
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NC: 2023:KHC-D:6352-DB CRL.A No. 100157 of 2016 that granite stone had fallen at a distance of 8-10 feet from the dead body. He has deposed that the spot is at a distance of ½ kilometer from the road and the police has not issued him any notice to come for panchanama. He denied that the panchanama was not conducted in his presence and he is giving false evidence. He has further deposed that Sathyavantha was leader of Ambedkar Sangha and he had seen him and he has stated that, two other persons were asked by the police to put their signatures on panchanama, but they did not agree.
15. On careful perusal of Ex.P-1, there is no mention of granite stone fallen at a distance of the dead body and it is clear from column No.13 that the deceased was also a financier and was doing other business and land business and some enemies of Sathyavantha might have killed him. If at all the granite stone was seized in the presence of PW-1 at that time of Ex.P-1, then the same would have been mentioned in Ex.P-1. This goes to show that PW-1 is making an improvement in this regard. Further PW-1 does not say anything about the assault by some long or sharp weapons
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NC: 2023:KHC-D:6352-DB CRL.A No. 100157 of 2016 on Sathyavantha. Further, PW-1 has stated that there were two rings in the fingers of the deceased and it is written in Ex.P-1. From the perusal of Ex.P-1, there is no mention of any finger rings and on the other hand, it is mentioned that rings and chains were taken away by someone.
16. PW-2 Shivashankara is the spot pancha. He has deposed that, the police had not called the gold smith to the spot and they have not got the said properties weighed and he has deposed that, he does not know the boundaries of the spot. When PW-2 has deposed in the cross-examination that he does not know the spot of the incident, the evidence of this witness and the contents of Ex.P-2 cannot be believed.
17. PW-3-Gadilingappa is the elder brother of Sathyavantha. From the evidence of PW-3 it is clear that, he has lodged the complaint only on suspicion but in the course of cross-examination he has deposed that, himself and his brother were staying separately since 10 years and he does not know to whom his brother was advancing loans. He has deposed that, when he saw the dead body for the first time, he did not notice anything and thereafter when he came
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NC: 2023:KHC-D:6352-DB CRL.A No. 100157 of 2016 along with the police, he found mobile pouch, key bunch and gold chain pieces and he admits that he has not got this fact mentioned in the complaint at Ex.P-3. PW-3 has not mentioned in the complaint at Ex.P-3 that there was a loan transaction between his brother Sathyavantha and Parasappa and his sons. He does not know the date, month and year when his brother Sathyavantha was given threat by Mahesha/accused. He says that he has not filed any complaint before the police in respect of giving threat by Mahesha to Sathyavantha. If at all the accused has given threat to Sathyavantha. Nobody prevented PW-3 from lodging the complaint.
18. PW-4 is the pancha for the seizure mahazar. In the course of cross-examination, he admits that deceased Sathyavantha is his paternal uncle and that his mobile number was in the police station before they called him for the panchanama and he denied that he was called for panchanama in many cases. If at all PW-4 was not called for panchanama and was not known to the police earlier, then it
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NC: 2023:KHC-D:6352-DB CRL.A No. 100157 of 2016 is not clear as to how his mobile number was there in the police station and why the police called him in particular.
19. PW-5 Ashoka is the son of the deceased. He admits that this father was in the habit of giving loans on keeping the lands and gold ornaments. He has denied that those persons were quarrelling with Sathyavantha when his father was not returning the ornaments.
20. PW-6 has turned hostile and he has been examined in order to prove the last seen theory.
21. PW-7 Hemaraju Reddy is related to accused No.7. He has deposed that, there was a dispute between him and accused No.7 in respect of land at Kolagal village. He says that Kavitha is the daughter of his father's first wife and he is the son through second wife. He admits that there was a civil dispute between him and accused No.7 and the said suit came to be disposed of in favour of Kavita i.e. accused No.7. This witness does not speak about much about the incident.
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NC: 2023:KHC-D:6352-DB CRL.A No. 100157 of 2016
22. PW-8 was examined only to prove Ex.P-6. He admits that himself and the deceased were relatives. He has stated that he does not know after how many days after the death of Sathyavantha, he was taken by the police to Tumkur and that he does not know how many members were there in the said jeep.
23. PW-9 admits that he is not holding any licence from the concerned department for preparing gold articles and he has not maintained any registers. He further admits that he used to issue receipt to other persons for having received gold for preparing gold ornaments but in the instant case, he has not issued any receipt to the accused to show that he had given two gold chains to him for preparing another chain. From the perusal of the evidence of PW-9 it is clear that, PW-9 is doing illegal business. Hence, his evidence cannot be believed.
24. PW-10 admits that he is the member of DSS Sangha. He does not know if deceased Sathyavantha is also a member of DSS Sangha but PW-1 admits that
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NC: 2023:KHC-D:6352-DB CRL.A No. 100157 of 2016 Sathyavantha is also the leader of Ambedkar Sangha. He admits that M.O.11 ring is worn by everybody. He admits that the watch like M.O.10 is also available in every shop.
25. PW-12 admits in the course of cross-examination that he is not having his own lorry and he is the resident of B.Belagal village and further admits that many vehicles will be passing there and he knows Sathyavantha since childhood and admitted that it was dark at the time when he had gone there. He does not know the accused and he admits that he is seeing accused Nos.1 to 3 for the first time before the Cour. He says that on seeing the dead body of Sathyavantha, he did not inform that fact to anybody.
26. PW-13 is the liquor shop owner and he has turned hostile and on cross-examination by the Spl.PP, he denied that he has not given statement before the police as per Exs.P-11 and 12.
27. PW-17 is the doctor who has conduced post- mortem examination over the dead body of deceased Sathyavantha. He has admitted in the course of cross-
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NC: 2023:KHC-D:6352-DB CRL.A No. 100157 of 2016 examination that, he did not observe if there were any blood stains on Exs.P-19 to 22 and he has not mentioned the same in his post-mortem report.
28. From the perusal of the entire evidence of the prosecution, it can be seen that there is no direct eye- witness to the incident and the entire prosecution story is based on the last seen theory, the seizure of the properties from the accused and at the instance of the accused and voluntary statements.
29. Insofar as the last seen theory is concerned, it is relevant to refer to the following observations made by the Hon'ble Apex Court in the case of State of U.P. v. Satish reported in (2005) 3 SCC 114 wherein it is held that, last seen theory comes into play where the time-gap between the point of time when the accused and the deceased were last seen alive and when the deceased is found dead is so small that possibility of any person other than the accused being the author of the crime becomes impossible. It would be difficult in some cases to positively establish that the deceased was last seen with the accused when there is a
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NC: 2023:KHC-D:6352-DB CRL.A No. 100157 of 2016 long gap and possibility of other person coming in between exists. In the absence of any other positive evidence to conclude that the accused and the deceased were last seen together, it would be hazardous to come to a conclusion of guilt of those cases."
30. From the above observation it is clear that, the last seen theory comes into play where the time gap between point of time when the accused and the deceased were last seen alive. In the case on hand, PW-12 has stated that he had been to industrial area to see the lorry and at that time, accused and Sathyavantha were standing on the road and when he asked Sathyavantha as to why he was standing there, he told that there was some work. PW-12 has been cross-examined only to prove the last seen theory but this witness has not supported the case of the prosecution.
31. Further, the case of the prosecution is that, the dead body was recovered at the instance of the accused. However, the crucial question would be as to whether it can be held that the prosecution has established beyond
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NC: 2023:KHC-D:6352-DB CRL.A No. 100157 of 2016 reasonable doubt that, the recovery of dead body was at the instance of the accused. Only in the event of the prosecution establishes that recovery of dead body was at the instance of the accused the relevancy of gap would come.
32. Section 27 of the Evidence Act requires that the fact discovered embraces the place from which the object is produced and the knowledge of the accused as to this, and the information given must relate distinctly to the said fact. The information as to past user or the past history of the object produced is not related to its discovery. The said view has been consistently held by the Hon'ble Apex Court in catena of decision. In the case of Chandran v. The State of Tamil Nadu reported in (1978) 4 SCC 90, the Hon'ble Apex Court had an occasion to consider the evidence of recovery of incriminating articles in the absence of record of the statement of the accused No.1. In the said case also, no statement of accused No.1 was recorded under Section 27 of the Evidence Act leading to the recovery of jewels. The court found that the Sessions Judge as well as the High Court had erred in holding that the jewels were recovered at the
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NC: 2023:KHC-D:6352-DB CRL.A No. 100157 of 2016 instance of accused No.1 therein in pursuance to the confessional Statement (Ex.P-27) recorded before PW-34 therein. It will be relevant to refer to the following observations of Apex Court in the said case:
" 36 ....... Thus the fact remains that no confessional statement of A-1 causing the recovery of these jewels was proved under Section 27, Evidence Act......"
The Hon'ble Apex Court refused to rely on the recovery of jewels since no confessional statement of the accused was proved under Section 27 of the Evidence Act.
33. The Hon'ble Apex Court in the case of State of Karnataka v. David Rozario and Another reported in (2002) 7 SCC 728 held that, "it is, therefore necessary for the benefit of both the accused and the prosecution that information given should be recorded and proved and if not so recorded, the exact information must be adduced through evidence. The basis idea embedded in Section 27 of the Evidence Act is doctrine of confirmation by subsequent events. The doctrine is founded on the principle that if any fact is discovered as a search made on the strength of any
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NC: 2023:KHC-D:6352-DB CRL.A No. 100157 of 2016 information obtained from a prisoner is true. The information might be confessional or non-inculpatory in nature but if it results in recovery of a fact, it becomes a reliable information. Keeping in view the aforesaid principles, we proceed to consider whether the prosecution has been able to establish discovery in accordance with Section 27 of the Evidence Act which reads as under:
"27. How much of information received from accused may be proved.-- Provided that, when any fact is deposed to as discovered in consequence of information received from a person accused of any offence, in the custody of a police officer, so much of such information, whether it amounts to a confession or not, as relates distinctly to the fact thereby discovered, may be proved."
34. The first and basic infirmity in the evidence of the aforesaid prosecution witnesses is that, none of them have deposed exact statement said to have been made by the accused which ultimately leads to recovery of fact relevant under Section 27 of the Evidence Act. The Hon'ble Apex Court in the case of Boby v. State of Kerala reported in 2023 LiveLaw (SC) 50 has held in para 29 as under:
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NC: 2023:KHC-D:6352-DB CRL.A No. 100157 of 2016 " It is thus clear that the only circumstances that now remains is the circumstance of the accused last seen in the company of the deceased on the basis of the evidence of PW-1. In that view of the matter, we find that, solely on the basis of the last seen theory, the conviction could not have been recorded. The prosecution has utterly failed to prove that the recovery of dead body of the deceased was at the instance of Boby(accused No.3/appellant herein). The recovery of the articles form the house of Boby (accused NO.3/appellant herein), even according to the trial court, is farce and fabricated. The recovery of a spade at the instance of Shibu @ Shibu Singh (accused No.1) is from a place which, even according to the trial Court, was also known on account of the disclosure statement made by Boby (accused No.3/appellant herein)."
35. In the instant case, the entire case is based on the evidence of PW-12 who has last seen the accused and the deceased. But in the course of cross-examination he has stated that, it was dark at that time when he had gone there and he does not know the accused Gangaraju and he has stated that he is seeing accused Nos.1 to 3 for the first time before the Court.
36. In the light of the aforesaid discussion, there being no corroborative evidence, we find that the trial Court was justified in acquitting the accused which is based on the
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NC: 2023:KHC-D:6352-DB CRL.A No. 100157 of 2016 evidence and material on record and there is no merit in the appeal which calls for interference by this Court. Considering the law laid down by the Hon'ble Apex Court in the judgments referred to above, we answer point No.(i) in the affirmative and proceed to pass the following order:
The appeal preferred by the State under Section 378(1) and (3) of Cr.P.C. is dismissed. The judgment and order of acquittal dated 01.01.2015 passed by the learned I Additional District and Sessions Judge, Ballari, in S.C. No.5/2011, acquitting the accused/appellants for the offences punishable under Sections 302, 201 and 120B read with Section 34 of IPC and Section 3(2)(v) of SC & ST Act is hereby confirmed.
Sd/-
JUDGE Sd/-
JUDGE PJ para No.1-4, kmv from para 5 till end