Karnataka High Court
State Of Karnataka vs K M Sreenarayana S/O Late Unnikrishnan on 5 September, 2013
Bench: N.K.Patil, H.S.Kempanna
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IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 5TH DAY OF SEPTEMBER, 2013
: PRESENT :
THE HON'BLE MR. JUSTICE N.K. PATIL
AND
THE HON'BLE MR. JUSTICE H.S. KEMPANNA
CRIMINAL APPEAL NO. 1624 OF 2007
BETWEEN:
State of Karnataka by
Kuvempunagar P.S.
... Appellant
(By Sri. N.S.Sampangi Ramaiah, Government Pleader)
AND:
1. K.M.Sreenarayana,
S/o. Late Unnikrishnan,
Aged about 41 years,
D.No.81, 6th Main, 7th Cross,
'C' Block, J.P.Nagar,
Mysore.
2. S. Rajendraswamy,
S/o. Narayanaswamy,
Aged about 28 years,
D.No.1:123, Janatha Site,
Nachanahallipalya,
J.P.Nagar, Mysore.
3. Sreenivas,
S/o. Venkatesh,
2
Aged about 28 years,
D.No.1565, Ashokapuram,
4th Cross, Mysore.
4. Sunil,
S/o. C.S.Raju,
Aged about 28 years,
D.No.Ch-69, 1500,
K.R.Vanam,
6th Cross, Ashokpuram,
Mysore.
5. Shivaraja,
S/o. Gangadraswamy,
Aged about 28 years,
D.No.2350, 13th Cross,
Ashokpuram, Mysore.
6. Puttaraju,
S/o. Rangaiah,
Aged about 37 years,
D.No.10, 16th Cross, 2nd Main,
Vidyaranyapuram,
Mysore.
... Respondents
(By Sri. Shankarappa, for Sri. M.T.Nanaiah, Advocate
for R1 to R6)
This Criminal Appeal is filed U/s. 378 (1) & (3)
Cr.P.C by the State against the judgment dated
25/04/2007 in S.C.No.60/1999 on the file of the
Presiding Officer, Fast Track Court-V, Mysore (holding
Concurrent Charge of FTC-II) - acquitting the
respondents/accused for the offences punishable under
Sections 364, 302, 201 R/w. 34 of IPC.
This Criminal Appeal coming on for Hearing, this
day, H.S.Kempanna J., delivered the following:
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JUDGMENT
State has preferred this appeal challenging the judgment and order of the acquittal of respondents/accused.
2. Respondents/accused came to be tried on the charges for the offences under Sections 364, 302, 201 read with 34 of IPC. It is alleged that on 30.11.1998 at about 5.30 p.m., the accused in furtherance of their common intention (which ought to be common object of their unlawful assembly), abducted deceased H.N.Mahadeva from Vivekananda Circle to a scheduled place near J.P.Nagar at Mysore and at the said place under a tamarind tree, they in furtherance of their common object of unlawful assembly, did commit the murder intentionally of the deceased Mahadeva and thereafter, in order to cause disappearance of the said evidence of murder to screen themselves from legal punishment, they transported the dead body with the help of accused No.6 in the autorickshaw bearing 4 KA.09.3470 near southern side of Dalavayee Tank situated at Mysore and there they threw the trunk portion of the body into the tank and nearby by the said place, they burnt the head portion by pouring petrol along with the clothes of the deceased and thereby they committed afore mentioned offences.
3. It is the case of the prosecution, deceased H.N.Mahadeva was working as Police Constable at Kuvempunagara Police Station. PW-11, Shakunthala is his wife. They were residing in their house situated opposite to the Deaf and Dumb School, Mysore.
4. PW-3 is Police Constable and colleague of the deceased Mahadeva, who was also working in Kuvempunagara Police Station.
5. It is also the case of the prosecution, accused No.1 is the Managing Director of Multi Purpose Co- operative Society situated at Sharadadevinagar in Mysore. PW-17 is a resident of Mysore and was running a Factory under the name and style "Shankee 5 Enterprises" situated at Parasaiahna Hundi at Mysore. She was undertaking manufacturing of stationery articles in her factory. She was supplying note books to MSIL and also to accused No.1 who was the Managing Director of the Society. In due course of time, they became intimate friends and accused No1 also intended to start a factory similar to the one run by PW-17. In that connection, somewhere in the year 1998, they had gone in the car belonging to PW-17 in search of a site for putting up a factory near Lingambudi tank. While they were near the said tank, the deceased came on his two wheeler from opposite direction and he noticed PW- 17 and accused No.1 in the car. It is further the case of the prosecution, seeing PW-17 and accused No.1 in the car at the said place, deceased requested PW-17 to furnish him telephone number and also pager number of PW17 and also that of accused No.1. Accordingly, she gave the same to the deceased. Thereafter, it is the case of the prosecution, deceased wanted to fall in love with PW-17 and in that connection, he was trying to make 6 contacts with her both personally and also through phone. PW-17 had not responded to the deceased. In that connection, the deceased had become dejected and started threatening PW17 saying that he would publisize the affair between accused No.1 and PW-17 if she were not to oblige him. PW-17 was requesting the deceased not to indulge in such acts as she is a married lady having her husband and two children. But as PW- 17 had continued her relationship with accused No.1. Deceased was persuading her to fall in love with him. PW-17 brought this to the notice of accused No.1. Thereafter, as the deceased did not give up his acts of blackmailing PW-17, accused No.1 hatched a plan to get rid of the deceased.
6. It is further the case of the prosecution, accused No.1 in furtherance of his plan availed the services of accused Nos.2 to 5. Accordingly, on 30.11.1998, he called upon the deceased on his phone and requested him to come near Vivekananda Circle at Mysore, to thrash out the differences they had with each 7 other, viz., deceased, accused No.1 and PW-17. In response to the call given by accused No.1, the deceased came near Vivekananda Circle at about 5.30 p.m. on 30.11.1998 after telling PW-3 that he is going to the said place on the call given by accused No.1. After the deceased came near Vivekananda Circle in his Scooter, according to the prosecution, he was abducted by accused Nos.1 to 5 from the said Circle to a scheduled place near J.P.Nagar, Mysore. At the scheduled place in J.P.Nagar, accused No.1 along with accused Nos. 2 to 5 committed the murder of the deceased by beheading with the chopper MO-8. After committing the murder, they secured the auto bearing No.KA.09.3470 through accused No.6 thereafter, they transported the body from the said place in the said Autorickshaw near the southern side of Dalavayee Tank at Mysore. Near the said tank, they threw the body into the tank and also burnt the head portion and the clothes of the deceased by pouring petrol which they had bought from the PW5 from the Petrol Pump situated 8 near Prabha Theatre at Mysore. Thereafter, they sped away from the said place.
7. In the meantime, it is the prosecution case, since the deceased who had gone to his work on 30.11.1998 did not return to the house, his wife PW11 searched for him. As she could not trace him, on 3.12.1998, she proceeded to Mandi Police Station and filed her complaint Ex.P39 before PW-20 A.S.I., reporting the missing of her husband. PW-20, on the basis of Ex.P29 registered case in Crime No.185/1998 and also intimated all the Police Stations coming within Commissionerate of Mysore and also Mysore District about the missing of the deceased. He also gave publicity in the print media. Thereafter, as it was the missing of a police constable, the investigation of Crime No.185/1998 was taken over by PW-38, Police Inspector, CCB on the orders of the Commissioner of Police, Mysore.
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8. It is further the case of the prosecution, after PW-38 took over the investigation, he secured PW-3, Police Constable, who is the colleague of the deceased and recorded his statement as per Ex.P1 on 5.12.1998. He forwarded the said statement Ex.P1 of PW-3 to Kuvempunagar Police with a direction to register the case on the basis of Ex.P1 and to send a copy of the FIR for taking up further investigation. In response to the same, PW-21 Head Constable, registered a case in Crime No.157/1998 on the basis of Ex.P1 and issued FIR as per Ex.P20 to the Jurisdictional Magistrate. He also forwarded a copy of FIR to PW-38. PW-38, thereafter, since Ex.P1 revealed accused No. 1 as the suspect, deputed his staff to trace and apprehend the accused. Accordingly, PW-29 and PW-37 apprehended accused No.1 at about 5.00 a.m. on 6.12.1998 and produced him before PW-38, IO. PW-38 arrested accused No.1, interrogated him and recorded his voluntary statement as per Ex.P40. It is also the case of the prosecution on that very day on 6.12.1998, PW-25 10 apprehended accused Nos. 2,3,4 and 6 and produced them before PW-38, who in turn, arrested them. PW-25 gave a report to that effect as per Ex.P24. PW-38 on production of accused Nos. 2,3,4 and 6, arrested them and on their interrogation, he recorded the voluntary statement of A2 and A6 only as per Exs.P41 and P43.
9. Thereafter, it is the case of the prosecution, PW- 38 secured the panchas, including PW-7 and thereafter. accused No.1 in pursuance of his statement, Ex.P40 led PW-38 and panchas near Dalavayee tank. At the said place, first, he pointed out the place where they had burnt clothes of the deceased and also the head portion of the body. PW-38 seized the burnt clothes of the deceased which are at MOs.2 to 9 under Ex.P5 and the skull under Ex.P6. This was in the early hours, i.e., at about 6.45 a.m. to 7.45 a.m. and 7.50 .a.m to 8.50 a.m. respectively. After completing Exs.P5 and P6, he also recovered the trunk portion of the body which was thrown into Dalavayee tank at the instance of accused No.1 under the Mahazar, Ex.P7 in between 9.00 a.m. to 11 10.00 a.m. After completing Ex.P7, PW-38, continuing the investigation, secured PW-24, another panch and thereafter, accused No.1 led PW-24 and the Police Officials to the place where the murder of the deceased had been committed and there, after A1 pointed out the place where they had committed the murder of the deceased, PW-38 drew up spot panchanama as per Ex.P22. Under the same, he seized MO-9, sample mud MO.19, tree bark pieces and MO.20, gunny thread. After completing Ex.P22, accused No.1 led them near a bush and from the said bush, he produced chopper MO-18. The same came to be seized under panchanama Ex.P23. After completing Ex.P23, it is also the case of the prosecution, on the very day, at the instance of accused No.6, pursuant to his information Ex.P42, the auto rickshaw bearing No.KA.09.3470 which had been used in transporting the dead body came to be seized under panchanama Ex.P21. Thereafter, he kept the arrested accused viz., accused Nos.1, 2,3, 4 and 6 in safe custody on 6.12.1998. Continuing the 12 investigation, on 7.12.1998, PW-38 seized MO-1, MO-16 and MO-17 under the panchanama Ex.P11 in pursuance of the information Ex.P41 of accused No.2 in the presence of panch, PW-16. Thereafter, on completion of the arrest formalities of the arrested accused viz., A1, A2,A3, A4 and A6, got them remanded to judicial custody. It is also the case of the prosecution on the very day on 7.4.1998, PW-38 seized cassette MO- 15 under the panchanama Ex.P10, in the presence of the panch, PW-15, which cassette, according to the prosecution, had contained the discussion of accused No1., deceased and PW-17. The said cassette, MO-15, according to the prosecution had been produced on 7.12.1998 by PW-14, who according to the persecution had come in possession of the said cassette on removing the same from the cassette player which had been brought to his shop by the deceased.
10. It is the further case of the prosecution on 14.12.1998, PW-38 seized the rear seat under the panchanama Ex.P12 from the Autorickshaw which had 13 been seized earlier on 6.12.1998 under Ex.P21 in the presence of PW-16.
11. In the meantime, it is the case of the prosecution, PW.36 during the course of investigation had held inquest over the body of the deceased and had drawn up inquest panchanama as per Ex.P.8 in the presence of panchas PWs.9 and 10. Thereafter, PW.38 had got the body subjected to postmortem examination by issuing a requisition, in response of which, PW.19 had conducted autopsy and issued postmortem report as per Ex.P.19. PW.38 during the course of investigation forwarded seized skull, which had been seized under Ex.P.6 for subjecting to super imposition test along with passport size photograph of the deceased. In response to the same, he received the super imposition report from the concerned expert as per Ex.P.51 and also the photographs taken at the time of examination as per Exs.P.52 to P.54. PW.38 during the course of investigation had also got finger prints of the dead body taken before getting the body subjected 14 to postmortem examination through PW.27, one of the finger print expert working in the police department. PW.27 compared the finger prints of the dead body with that of the finger prints of the deceased which were in the department when he joined the police department. On comparison, he found the finger prints tallying with each other and accordingly, gave his report as per Ex.P.29 to establish that the body that was found in Dalwai tank was that of the deceased.
12. PW.38 thereafter continuing the investigation got the sketch of scene of the occurrence prepared through PW.18 by issuing a proper requisition. The said sketch is at Ex.P.18. PW.38 continuing the investigation on 29.1.1999 arrested accused No.5 and on his interrogation recorded his voluntary statement as per Ex.P.45. In pursuance of the same, on the very day he seized MO.24 - a wrist watch belonging to the deceased under the panchanama Ex.P.9 in the presence of panch PW.13. PW.38 thereafter on completion of recording of the statements of the witnesses examined 15 by the prosecution and also cited in the charge sheet and after securing the relevant documents from the concerned authorities, on completion of the investigation submitted final report against the accused before the Jurisdictional Magistrate, who in turn committed the case of the accused to the Court of Sessions, which on receipt of the records, secured the presence of the accused, framed charges against them as aforesaid, to which they pleaded not guilty but claimed to be tried.
13. The prosecution in support of its case in all examined PWs.1 to 40 and got marked Exs.P.1 to P.54 and MOs.1 to 25. The accused during the course of examination of the prosecution witnesses got marked Exs.D.1 to D.18. Exs.C.1 to C.6 also came to be marked on behalf of the Court.
14. After closure of the prosecution evidence the accused denied all the incriminating circumstances in their statements under Section 313 of Cr.P.C. 16 Thereafter, accused No.1 in support of his case got himself examined as DW.1. Apart from him, two witnesses came to be examined as CWs.1 and 2 as Court witnesses. Total denial of the prosecution case is defence of the accused.
15. The learned Session Judge on consideration of the oral and documentary evidence on record came to the conclusion that the prosecution has failed to establish the charges levelled against the accused and accordingly, by the impugned judgment and order acquitted the accused of the charges levelled against them.
The State being aggrieved by the said judgment and order of acquittal is in appeal before this Court.
16. Learned High Court Government Pleader assailing the impugned judgment and order contended, homicidal death of the deceased H.N.Mahadeva is not disputed to in the case. He submitted that the prosecution in order to connect the accused with the 17 homicidal death of the deceased has relied upon circumstantial evidence. The circumstances that have been pressed into service are: (1) Motive; (2) Last scene evidence; (3) recovery at the instance of the accused and (4) also accused No.1 leading to the scene of the occurrence where the murder had been committed.
17. In this connection he submitted, insofar as motive is concerned, the prosecution has relied upon the testimony of PWs.3, 11 and 17. Drawing our attention to these evidences he submitted that the evidence of PW.3 and his complaint -Ex.P.1 clearly reveals that all was not well between the deceased on the one hand and accused No.1 on the other hand, as the deceased was pestering PW.17 to oblige him. He further submitted that the evidence of PW.17 reveals that the deceased was pestering her to fall in love with him, but she had refused and therefore, the deceased was threatening them that he would divulge their affairs which would mar their reputation. In the cross- 18 examination of these witnesses, nothing has been elicited to discard their testimonies.
18. He further contended, insofar as recovery is concerned, the evidence of PWs.7, 13, 15, 16, 23 and 24 coupled with the evidence of PW.38 would clinchingly establish the recovery made at the instance of A.1, A.2, A.6 and A.5 respectively. In the evidence of these witnesses also nothing has been brought on record to discard their testimonies. The evidence of PW.7 and PW.24, who are the panchas for the recovery of burnt clothes and burnt head of the deceased, trunk portion of the body from the tank coupled with A.1 pointing to the place where the murder had been committed and recovery of chopper at his instance, would clinchingly establish that it is the accused, who have committed the murder of the deceased and as nothing has been brought out in the cross-examination of the panch witnesses to discard their testimonies, there is no reason to discard their evidence. He also further contended, the evidence of the Investigating Officer 19 further fortifies the case of the prosecution in respect of circumstantial evidence that has been pressed into service. Since the circumstances that has been pressed into service by the prosecution has been established by the prosecution by placing cogent and reliable evidence on record, as the same does not suffer from any infirmity to discard the testimony of the witnesses, the trial Judge without appreciating the same in its right perspective has committed an error in coming to the conclusion that the prosecution has failed to establish the charges, which finding is contrary to the evidence on record and therefore, a case for interference is made out.
19. Per contra, learned counsel appearing for the respondents/accused supported the impugned judgment and order of the trial Court.
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20. In view of the aforementioned facts, evidence and documents on record the point that arises for our consideration is:
'Whether the impugned judgment and order of acquittal of accused/respondents calls for interference?'
21. The deceased H.N.Mahadeva having died an homicidal death is not disputed to before us. The body that has been recovered from Dalavayi tank by PW38 and also the skull which was burnt is that of the deceased-H.N.Mahadeva is amply established from Super Imposition Test Report Ex.P51 coupled with the finger print expert report Ex.P29. Further the body that has been recovered has been identified as that of the deceased by PW11 who is none other than the wife of the deceased. PW19 is the medical officer who has conducted the autopsy over the body of the deceased. He has issued post mortem report as per Ex.P19. A perusal of Ex.P19 coupled with the evidence of PW19 would go to show that the deceased H.N.Mahadeva whose body was recovered from Dalavayi tank has met 21 with an homicidal death and the prosecution has established the same.
22. The prosecution in order to connect the accused with the homicidal death of the deceased has relied upon circumstantial evidence. It is settled law that when a case rests upon circumstantial evidence, the prosecution is required to establish all the circumstances relied upon by placing cogent and reliable evidence. In other words, all the links in the chain of circumstance have to be established by the prosecution by placing cogent and reliable evidence. The prosecution has relied upon the following circumstances :
1) motive,
2) last seen alive and
3) recovery.22
23. We deal with each of the circumstances with reference to the evidence independently as under :-
1) motive :
The prosecution in order to establish the motive has relied upon the evidence of PWs 3, 11 and 17. According to the prosecution PW17 was running a factory under the name and style Shanky Enterprises. She was manufacturing stationery articles which comprised of note books. She was supplying the goods manufactured viz. the stationery to MSIL initially and later on coming into contact with A1, she was supplying goods manufactured in her factory to him also. In due course of time they became very close to each other. Seeing PW17 flourishing well in her business, A1 also wanted to start a factory similar to the one run by PW17. In this connection in the year 1998 they were in search of a site near Lingabudi Tank at Mysore. When they were on the search of a site, on one day, deceased while coming near Lingabudi Kere on his scooter saw A1 and PW17 in the car. Seeing them at the said place he 23 asked PW17 to give her telephone and pager number and also that of A1 which PW17 obliged. Thereafter, deceased started contacting PW17 and A1 on phone and also through pager number and was also visiting them. PW17 according to the prosecution was also visiting the house of the deceased. The deceased in due course of time wanted PW17 also to fall in love with him and also wanted to oblige him as she was obliging A1, but PW17 had not acceded to the same. Thereafter the deceased started threatening PW17 saying that he would reveal the relationship of A1 and PW17 and also reveal what he had seen near Lingabudikere. PW17 requested not to indulge in such act as it would result in marring her reputation, but the deceased continued his act of persuading PW17 to oblige him. She brought this to the notice of A1. Thereafter according to the prosecution A1 hatched a plan to get rid of the deceased and accordingly he secured him on 30.11.1998 near Vivekananda Circle by calling him on phone to settle the matter amicably and from there he took him to a 24 schedule place at J.P.Nagar, committed his murder, took the body in an Auto near Dalavayi tank, threw the trunk portion into the tank and burnt the head and also his clothes.
PW3 is none other than the co-employee of the deceased working in Kuvempunagar police station and a close friend of the deceased. His evidence reveals that on 30.11.1998, he found the deceased in a dejected mood and on questioning him, the deceased revealed to him that he is in love with PW17, but she is not obliging. In response to the same he advised him that as PW17 is a married lady having children, he should not indulge in the line in which he is thinking. Thereafter according to him on 30.11.1998 deceased told him that A1 has called him over phone to meet near Vivekananda circle at about 5.30 p.m. in the evening to settle the differences that they have among themselves i.e. between the deceased, A1 and PW17. PW3 though claims that he came to know through the deceased on 30.11.1998 that he was dejected on account of PW17 25 not obliging to his love, he has not come out with the said version till 5.12.1998. He has come out with the said version after PW11, the wife of the deceased, has filed a missing complaint before Mandi police station which was given vide publicity both in print and other medias. He claims in his evidence that he has given a complaint to the police on 5.12.1998, but what is on record as per the evidence of PW38, his statement has been recorded by him on 5.12.1998 after securing him to CCB - police station. If according to PW3 he is a co-
worker of the deceased and he has not seen the deceased after he saw him for the last occasion on 30.11.1998, why he has not come out with this version immediately before the police the very next day is not explained. Further, he has admitted in the cross examination that he has given a written complaint to the police. That complaint has been suppressed in the case. In that view of the matter his claim now that he had come to know from the deceased about he having 26 been dejected as PW17 has not obliged to him goes a long way to place reliance on his testimony.
Apart from this PW17 who has been examined by the prosecution herself does not claim in her evidence that the deceased had made any request to her to oblige him or he had threatened her. She has turned hostile. Her evidence goes to show that she was visiting the house of the deceased and deceased and A1 were also visiting her factory and it was only in connection with the business and nothing more. Therefore, the case of the prosecution that on account of PW17 not obliging the deceased to fall in love with him and as the deceased was threatening her saying that he would divulge her affairs with A1 and therefore, A1 had decided to get rid of the deceased goes a long way to place reliance on the motive aspect projected by the prosecution.
Insofar as PW11 is concerned, she is none other than the wife of the deceased, we find nothing from her 27 evidence on this aspect with regard to A1 and PW17 having thought off for getting rid of the deceased.
A close scrutiny of the evidence of these witnesses would not in any way go to show that A1 had any motive to finish off the deceased as projected by the prosecution. Therefore, the circumstance of motive pressed into service is not established by the prosecution.
2) Last seen alive :-
The next circumstance pressed into service is the deceased having been seen on the last occasion on 30.11.1998 by PW3 near Kuvempunagar police station.
PW3 in his evidence claims on 30.11.1998 the deceased told him near Kuvempunagar police station that in the evening at about 5.30 p.m. he has been called by A1 to come near Vivekananda circle to settle the issues that were there between him, deceased and PW17. His evidence discloses that the deceased after telling him about the phone call made to him, left in the scooter bearing CAZ 913. Again this evidence of PW3 cannot be 28 believed because though he claims that he has given a written complaint to Kuvempunagar police station, what we find in Ex.P1 is his oral statement recorded by PW38 and what happened to the complaint that he had filed before the Kuvempunagar police station is not forthcoming in the case. Apart from the same though he claims that he saw the deceased on 30.11.1998 he has come out with this version of having seen the deceased on 30.11.1998 only on 5.12.1998 that too after going through the paper publication dated 3.12.1998. As already pointed out the earliest written complaint which he had filed according to him before Kuvempunagar police station has been suppressed and in view of he having come out with this version of having seen the deceased on 30.11.1998 about 5 days after the occurrence that too being a co-worker working in the very same police station where the deceased was working goes a long way to place reliance on his testimony, more particularly in a case of this nature. Therefore, we find it difficult to accept the testimony of 29 PW3 on this aspect of circumstance pressed into service.
The other evidence is of PW11 who is none other than the wife of the deceased. She claims that her husband left the house on 30.11.1998 in his scooter, but he did not return. Thereafter, after making enquiry and a search for him, she filed missing complaint on 3.12.1998. But, the material on record reveals the scooter, in which the deceased had left on 30.11.1998 was found in front of Deaf and Dumb school which is situated near the house of the deceased. The evidence of PW11 reveals that she saw the said scooter near Mandi police station while she was coming out of the police station after filing her missing complaint. But the evidence on record reveals the scooter had been brought and produced before Mandi police station by PW34 Govindaraju who is one of the party in Garuda squad. If the scooter was found abandoned near the house of the deceased itself, which has been taken and produced before Mandi police station, it is unthinkable that PW11 30 would not have seen the same and therefore, the evidence of PW11 under these circumstances, except saying that the deceased left the house on the morning of 30.11.1998 would not in any way go to show that after he left the house he has met with death at the hands of the accused. Therefore, the circumstance of last seen evidence relied upon by the prosecution is of no avail to them.
3) Recovery :
According to the prosecution the trunk portion of the body, the skull and the clothes of the deceased which had been burnt have been recovered at the instance of A1 pursuant to his statement Ex.P40 which was recorded on 6.12.1998. PW38 claims that he arrested A1 on 6.12.1998 at about 5.00 a.m. The evidence of PWs 29 and 37 reveal that they apprehended A1 at 5.00 a.m. and produced before PW38, who in turn arrested him and recorded his voluntary statement as per Ex.P40. Thereafter A1 has led PW38 along with panch - PW7 near Dalavayi park. At the said place, he pointed 31 out the place where the trunk portion of the body has been thrown at Dalavayi tank and also the place where the head and the clothes of the deceased had been burnt. PW38 recovered the burnt pieces of the clothes which are at MOs 2 to 9 under Ex.P5 and also the burnt skull under Ex.P6. He also recovered the dead body from the tank under mahazar-Ex.P7. All the three mahazars were drawn up starting from 6.45 a.m. to 10.00 a.m. The evidence of PW38 discloses after he recorded Ex.P1 of PW3, since that revealed the involvement of A1 he deputed his staff who arrested A1 on 6.12.1998 in the morning at about 5.00 a.m. His evidence discloses before proceeding with the recovery he forwarded his suo motu report as per Ex.P31 to Kuvempunagar police station with a request to register the case and issue FIR and send a copy of the FIR to him for taking up investigation. That was sent through PW30, the constable, which was received by PW31, the police inspector, who in turn again registered the case in the very same Crime No.157/98 for the offences 32 u/ss.363, 302, 201 r/w.34 and issued FIR as per Ex.P32. At this juncture we fail to understand as to how the second case came to be registered in the very same crime number as Cr.NO.157/98 had been earlier registered on the basis of Ex.P1 by PW21-head constable upon which he had issued the first information as per Ex.P20. Ex.P1 itself is doubtful because PW3 who is supposed to have given statement as per Ex.P1 has admitted in his cross examination that he has given a written complaint to the police and that has been suppressed in the case. PW3 has come out with the version on 5.12.1998 nearly about 5 days after the occurrence though he is a close friend of the deceased and working together in Kuvempunagar police station. In view of the fact that Ex.P1 itself is suspect as the written complaint filed by PW3 is suppressed, Ex.P31-the suo motu report of PW38 also consequently, as claimed by him becomes suspect. If that is so, Ex.P40 voluntary statement of A1 and the recovery that has been made in pursuance of the same also is 33 rendered suspect and become redundant. Apart from this after completion of this Exs.P5 to P7 according to PW38, A1 in pursuance of his very information Ex.P40 led him to the place where murder has been committed i.e. in secluded place at J.P.Nagar. There PW38 drew up panchanama as per Ex.P22 in the presence of the pancha-PW24. Under Ex.P22 he has seized sample mud and also the wood pieces and gunny thread.
Chemical examiner's report which is at Ex.P48 reveals that the sample mud that has been seized is not stained with blood. MO20- gunny threads have been seized is not sent for subjecting to chemical examination. Therefore, the theory of the prosecution that A1 led to the spot where the murder has been committed, cannot also be believed. Taking from any angle, the recovery that has been made at the instance of A1 in view of the material on record does not inspire confidence in us to place any reliance on the same. We are fortified with that view because there is no recovery made at the instance of either A3 or A4.
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Apart from the same it is the case of the prosecution A6 was arrested on 6.12.1998. PW38 recorded his voluntary statement as per Ex.P42. In pursuance of the same on the very day autorickshaw bearing No.KA-09-3470 came to be seized under panchanama-Ex.P21 in the presence of the pancha - PW23. According to PW38 this had been parked in the lane in the burial ground situated near the house of A6. This recovery does not inspire confidence in us because PW38 on 14.12.1998, 8 days later has seized the rear seat of the very autorickshaw under the panchanama- Ex.P12 in the presence of the pancha-PW16. At that time according to PW38 it contained blood stains and the explanation offered is, the said blood stains which they found on 14.12.1998 was not visible on the day autorickshaw was seized under Ex.P21 on 6.12.1998. We find it difficult to accept the said explanation of the investigating officer as on 6.12.1998 the autorickshaw has been seized by the investigating officer. It is needless for us to say that when any incriminating 35 material related to crime is seen, the investigating officer has to closely find out whether there are any incriminating material pointing towards the guilt of the accused. In view of the fact that the rear seat which came to seized after 8 days after the autorickshaw is seized, the blood stains would go to show that planting materials in the case cannot be ruled out and that leads to suspect the recovery that has been made in the case.
The other recovery that has been pressed into service is the wrist watch of the deceased made under Ex.P9 on 29.1.1999 in the presence of the pancha- PW13. According to PW38 he arrested A5 on 29.1.1999. On that day he recorded the voluntary statement as per Ex.P40 and on the same day, he seized the wrist watch- MO24. This also in our view having regard to the delay with regard to the recovery that has been made in the circumstances of the case becomes suspect and PW11 or PW3 have not identified MO24 as the one belonging to the deceased. Recovery of this MO24 is also rendered suspect.
36
The other recovery that has been made is that of the cassette-MO15 seized under Ex.P10 in the presence of the pancha - PW15 which has been produced by PW14. This cassette which according to PW14 had been produced on the day it was seized as claimed by PW38 in the presence of the pancha goes a long way to believe because the evidence of PW14 itself reveals that many customers come to his shop, they give the record player and cassettes and he cannot say positively who gave which cassette and therefore MO15 is the cassette that belongs to the deceased which was seized under Ex.P10 also goes a long way in accepting the theory of recovery. Further according to the prosecution, MO15 contained the discussion of two male persons and a lady among whom one of the male person's voice is that of the deceased and other male person was that of a person from outside Karnataka. The evidence of PW14 does not disclose the voice of the other two person i.e. the male and the female voice as that of PW17 and A1. Further, PW38 has not taken steps to get the voices 37 tested which were recorded in the tape recorder. Therefore, this recovery of MO15 does not in any way point towards the guilt of the accused.
24. Taking from any angle we find from the material on record there is no clinching, reliable and legal evidence to connect the accused with the charge leveled against them. The learned trial Judge on a close scrutiny of the evidence on record has come to the conclusion that the prosecution has failed to establish the guilt of the accused which finding in our view having been based on facts and evidence does not suffer from any infirmity calling for interference in this appeal. Accordingly, we do not find any merit in the appeal and it is dismissed.
Sd/-
JUDGE Sd/-
JUDGE TSN/SA/rs