Karnataka High Court
Sangamma Patil vs State Of Karnataka on 26 February, 2020
Bench: K.N.Phaneendra, Pradeep Singh Yerur
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 26 T H DAY OF FEBRUARY 2020
PRESENT
THE HON'BLE MR. JUSTICE K.N. PHANEENDRA
AND
THE HON'BLE MR.JUSTICE PRADEEP SINGH YERUR
CRL.A.NO.100212/2014
C/W
CRL.A.NO.100070/2017
IN CRL.A.NO.100212/2014
BETWEEN :
SIDDANAGOUDA,
S/O DYANAGOUDA PATIL @ PAGAD,
AGED ABOUT 28 YEARS, OCC: AGRICULTURIST,
R/O ASUTI, TALUK : RON,
DIST: GADAG-582 209.
... APPELLANT
(BY SRI GANAPATI M.BHAT, ADVOCATE)
AND :
THE STATE OF KARNATAKA
BY ITS NARGUND POLICE STATION,
GADAG DISTRICT-582 207.
... RESPONDENT
(BY SRI V.M.BANAKAR, ADDL. S.P.P.)
THIS APPEAL IS FILED UNDER SECTION 374(2)
OF THE CODE OF CRIMINAL PROCEDURE PRAYING
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THIS HON'BLE COURT TO SET ASIDE THE
CONVICTION AND SENTENCE DATED 30.09.2014 AND
07.10.2014 PASSED BY THE ADDL.DISTRICT AND
SESSIONS JUDGE, GADAG IN S.C.NO.10/2013 AND
ACQUIT THE APPELLANT OF THE CHARGES LEVELED
AGAINST HIM IN THE INTEREST OF JUSTICE.
IN CRL.A.NO.100070/2017
BETWEEN :
SANGAMMA PATIL,
W/O NAGANAGOUDA @ SIDDANAGOUDA,
PATIL @ DODAMANI,
AGED ABOUT 28 YEARS,
R/O ASUTI, RON TALUK,
GADAG DISTRICT.
... APPELLANT
(BY SRI VIDYASHANKAR G.DALWAI, AMICUS CURIAE)
AND :
STATE OF KARNATAKA
BY NARGUND POLICE,
NARGUND.
... RESPONDENT
(BY SRI V.M.BANAKAR, ADDL. S.P.P.)
THIS APPEAL IS FILED UNDER SECTION 374 (2)
OF THE CODE OF CRIMINAL PROCEDURE PRAYING
THIS HON'BLE COURT TO SET ASIDE THE JUDGMENT
AND ORDER OF CONVICTION AND SENTENCE DATED
30.09.2014 PASSED BY HE ADDL.DISTRICT AND
SESSIONS JUDGE, GADAG IN S.C.NO.10/2013 FOR
THE OFFENCES PUNISHABLE UNDER SECTIONS 120B,
302 & 201 READ WITH SECTION 34 OF IPC AND
CONSEQUENTLY ACQUIT THE APPELLANT FROM THE
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ALLEGED CHARGES AND SHE MAY BE SET AT
LIBERTY IN THE ENDS OF JUSTICE.
THESE APPEALS COMING ON FOR FINAL
HEARING THIS DAY, K.N.PHANEENDRA, J.,
DELIVERED THE FOLLOWING:
JUDGMENT
The present appeals are preferred respectively by accused Nos.1 and 2 challenging the judgment of conviction and sentence passed by the Additional District and Sessions Judge, Gadag in S.C.No.10/2013 vide judgment dated 30.09.2014.
2. Learned Sessions Judge has convicted accused Nos.1 and 2 (appellants herein) for the offences punishable under Sections 120B, 302 and 201 read with Section 34 of the Indian Penal Code ("IPC" for short) and they were sentenced to undergo imprisonment for life and to pay fine of Rs.5,000/- each with default sentence to undergo simple imprisonment for the period of 6 months for :4: the offence punishable under section 302 of IPC. Accused Nos.1 and 2 were also sentenced to undergo simple imprisonment for 7 years for the offence punishable under Section 201 of IPC and to pay a fine of Rs.2,000/- each with default sentence to undergo simple imprisonment for 3 months. Further the appellants accused Nos.1 and 2 were also sentenced to undergo rigorous imprisonment for two years under Section 120B of IPC.
3. We have heard lengthy arguments addressed by the learned counsel Sri Ganapathi M.Bhat and also by Sri Vidyashankar G.Dalwai for the appellants in the above said cases respectively and also we have heard the arguments of learned Addl. State Public Prosecutor for State. We have carefully examined the oral and documentary evidence available on record.
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4. Before adverting to the material evidence, we would like to have the brief facts of the case and as well a cursory look at the evidence of the prosecution witnesses.
5. The case of the prosecution is that, accused No.2 is the wife of deceased Naganagouda. After the marriage between them, accused No.2 started living with the deceased Naganagouda at Asuti Village in Ron Taluk in Gadag District. It is the case that the deceased Naganaouda was suffering from some ailment, due to which accused Nos.1 and 2 developed some illicit relationship between themselves. In this context, they found that the deceased Naganagouda was an obstacle to their relationship. Therefore, they decided to do away with the life of the deceased Naganagouda. In this context, it is alleged that accused No.1 gave two mobile phones to accused No.2 and they were talking with each :6: other in order to conspire themselves to plan as to how Naganagouda should be eliminated.
6. It is further alleged that after due conspiracy between themselves particularly during intervening night of 30.11.2012 and 01.12.2012, accused No.1 at the instigation and instance of accused No.2 took deceased Naganagouda on his motorcycle from Asuti Village to nearby land bearing Sy.No.301 of Naragund town belonging to one Basappa Goveshwar of Naragund and there, accused No.1 dropped a big stone on the face and head of the deceased and committed his murder.
7. It is alleged that accused No.1 has totally disfigured the face and head of the deceased in order to screen the offence and the evidence that may be detected by the police later. Therefore on the aforesaid allegations, the police have investigated the matter on the complaint :7: being lodged by PW.1 and laid the charge sheet for the above said offences.
8. After filing of the charge sheet both the accused persons were arrested. Accused No.1 was arrested on 04.12.2012 and accused No.2 was arrested on 27.12.2012. It appears that since then they have been in judicial custody. The committal Court after securing the presence of the accused, after completing the statutory procedure, committed the case to the Court of Sessions. The Sessions Court after securing the presence of the accused persons, framed charges against them for the above said offences. As the accused persons pleaded not guilty, they were put on trial.
9. The prosecution in order to bring home the guilt of the accused examined as many as 22 witnesses and got marked Exs.P.1 to Exs.P.33 and also material objects MOs.1 to 20. The accused :8: persons were also examined under Section 313 of the Code of Criminal Procedure. As the accused did not choose to lead any defense evidence on their side, after hearing both the sides, the impugned judgment has been delivered by the Trial court.
10. As rightly contended by the learned counsel and as accepted by the learned Additional State Public Prosecutor, the entire case revolves around circumstantial evidence in this case. Therefore, the Court has to examine each and every circumstance in order to ascertain whether the trial Court has committed any illegal or factual error in convicting and sentencing the accused persons as noted supra.
11. The record discloses that, PW.1 is the complainant who is a formal witness, in fact, who has seen the dead body on the next date of the incident in his land and he could not able to :9: identify the dead body. However, he found the dead body in his land sustaining injuries that he has stated that the head of the dead body was completely crushed and brain portion was come out from the head. On the basis of the complaint lodged by him, the police have registered a case against unknown person and started the investigation. The police have also seized MOs.1 to 8 from the spot. There is no dispute so far as this particular aspect is concerned, in the course of cross-examination, because there is no incriminating evidence available against the accused from the mouth of this witness.
12. PW.2 is the person who was present at the time of seizure of MOs.1 to 7 under Ex.P.2 i.e., cloths of the deceased and he was also a panch witness to Ex.P.3, under which the police have seized MOs.9 and 10 which are the shirt and lungi of the accused No.1 stained with some blood. He is : 10 : also a witness with reference to seizure of a bike MO.15 and also two whisky bottles MO.11 and water pockets MO.12 from the place where the alleged murder has been committed. He was also a witness to Ex.P.4 under which the police have seized MOs.13 and 14 from accused No.2.
13. PW.3 is also another pancha witness to the spot and the inquest. There is no dispute with regard to the death of the deceased by the accused but he pleaded that he was not responsible for the death of the deceased. Therefore, the conducting of the inquest and the spot panchanama by police with the help of PW.3 will not in any manner come to the aid of the accused unless it is shown that any procedural irregularities committed by the Investigating Officer, which amounts to illegality which cause any prejudice to the accused.
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14. PW.4 is the maternal uncle of the deceased who spoke about the motive, likewise PWs.8 and 10 are the other witnesses who spoke about the motive factor.
15. PWs.5 to 7 and PWs.11 and 12 are the witnesses to the last scene of the accused and deceased together, which is the strong circumstances relied upon by the prosecution, we would discuss the evidence of these witnesses little later.
16. PW.4 is the maternal uncle of the deceased who spoke about the motive, likewise PWs.8 and 10 are the other witnesses who spoke about the motive factor.
17. PW5 to 7 and PW11 and 12 are the witnesses of the last scene of the accused No.1 and deceased together, is a strong circumstance, : 12 : which revealed by the prosecution and will discuss little later.
18. PW9-Sunil Kumar Basavaraj Goveshewar, is the son of the Owner of the land, where the dead body was found. He deposed that he has received information from PW1 and gone to his land and found a dead body. Except that, he has not stated anything about the accused, though he was cross examined. There is no need for this Court to go in detail about the said witness as there is no incriminating material available.
19. PW13 - Channappa Gundappa Karmudi, who has been examined before the Court to establish the fact that the accused No.1 has disclosed about the commission of the offence by himself and accused No.2 before this witness, but this witness has not supported the case of the prosecution. Therefore, the circumstance of extra : 13 : judicial confession as projected by the prosecution is not fully established.
20. PW14 - Yallappagouda @ Basanagouda, who is no other than the close relative of the accused No.1. He has not fully supported the case of the prosecution. Prosecution examined this witness to say that mobile was purchased in the name of this witness by accused No.1 and the same was handed over to accused No.2 for conversation between the accused No.1 and 2. This witness also turned hostile to the prosecution case. Even in the course of cross examination, nothing has been elicited in order to show that accused No.1 has actually gave this mobile to the accused No.2.
21. PW15-Dyamappa Mallappa Shishuvinhalli, is a Police Constable, who after the inquest proceedings, shifted the dead body to Government : 14 : Hospital, Nargund and from there he collected MOs 2 to 7 along with the report and he handed over the same to the Investigating Officer. Further, he says that after the PM examination, he handed over the dead body to accused No.2 for the purpose of cremation. In our opinion, he is also a formal witness.
22. PW16 - Gangamma Dyavangouda Patil, is the another witness, who is close relative of accused No.1. She deposed that she is the mother of accused No.1. She was examined to say that accused No.1 has purchased mobile in the name of this witness and that mobile is given to accused No.2 with sim card and accused No.1 was conversing with the accused No.2 from this mobile. This witness also did not support the case of the prosecution.
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23. PW17-Dr. Sujata Veerayya Hasavinmath, is the doctor who conducted PM examination on the dead body of Naganagouda and she gave opinion as per Ex.P17 and also Ex.P18 certificate issued by her.
24. PW18 - Ashok Hulgappa Kademani, is the Police Constable, who has carried eight articles to the FSL and he submitted report as per Ex.P19. In the cross examination of this witness also nothing worth has been elicited, except suggesting that he has given false report to the Investigating Officer.
25. PW19-Yallappa Shankarappa Madiwalar, who was working as an Asst. Engineer in PWD has deposed that, at the instance of the Police he visited the scene of offence and prepared a sketch as per Ex.P20. A formal suggestion is made to this witness denying the evidence of this witness, except that, nothing worth has been elicited in : 16 : order to disbelieve his version. Even otherwise, as we have observed, there is no dispute with regard to the death of the deceased by the accused No.1, but he pleads that he is not responsible for the death of the deceased.
26. PW20-Prakash Ramappa Rathod, Police Constable, he is a formal witness. He stated that after registration of the case in Cr. No.124/2012, he was deputed to handover the FIR to the jurisdictional Magistrate. Accordingly, he handed over the FIR to the jurisdictional Court as per Ex.P21. He has given his report as per Ex.P22. Though an attempt was made to establish that there was some delay in submitting the FIR to the jurisdictional Magistrate, but, there is no suggestion to any of the witnesses that FIR was registered in a delayed manner in order to concoct a story against the accused.
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27. PW21-Dr.M.D.Goutam, who is a Scientific Officer at RPSL, who has examined the articles which were seized in this case and which are sent to chemical examination. After examination he gave a report as per Ex.P23.
28. PW23-Prashanth Fakirgouda Siddanagoudar, is the Investigating Officer who has conducted inquest and filed the charge sheet in this case.
29. On the above said evidence the prosecution has divided its case into several major circumstances, which could be conveniently narrated as below:
"(1) The motive factor;
(2) The accused No.1 and the deceased last seen together;: 18 :
(3) The dead body of the deceased found on the next day of the incident and which is a homicidal death;
(4) Extra judicial confession of the accused No.1;
(5) Recovery of the incriminating articles at the instance of the accused No.1 and its connectivity with the crime."
30. Now we will have to take up the above said circumstances one by one.
(1) The motive factor;
31. So far as the motive factor is concerned, the prosecution has relied upon the evidence of PW4, 8 and 10.
32. PW4 - Mallanagouda yallappagoudar, is no other than the maternal uncle of the deceased Naganagouda. He stated that he knew about the family back ground of deceased Naganagouda and : 19 : his wife-accused No.2. It is further stated by him that he has seen the dead body of Naganagouda on the next day of the alleged incident. He came to know that deceased was done to death by means of assault by stone. Immediately, he contacted accused No.2 from his mobile phone and enquired about the deceased. She replied that deceased left the house on the previous day at about 9.00 p.m. and he did not return home. He further adduced, particularly, with regard to the motive that the deceased was telling before him that the accused No.2 was not ready to live with the deceased as the deceased had some health problems. Then this witness advised deceased and accused No.2 in this regard. He further deposed that the deceased was also telling that accused No.1 was frequently coming to their house for the sake of accused No.2 and he suspected the development of some illicit relationship between : 20 : accused No.1 and 2. On this basis, he also doubted the conduct of the accused No.1 and 2 and stated before the Police that he suspect the hands of accused No.1 and 2 in the death of the deceased.
33. In the cross examination, though some questions have been put about the relationship of accused, the deceased and also this witness, has not been denied. He has also reiterated in the course of the cross examination that accused No.1 and 2 were responsible for the ill-health of the deceased. Of course, he has deposed that he has not taken the deceased Naganagouda to the hospital with regard to his ill-health. Against that, almost all the questions have been put in the way of suggestions, denying whatever stated by this witness in the examination in chief but the witness has stoutly denied those suggestions reaffirming his evidence in the examination in chief. : 21 :
34. Likewise, PW8 - Mahadevi Parvatgouda Chodannavar, is no other then the close relative of the deceased - Naganagouda. She deposed that the deceased is her Uncle's son, i.e., her cousin brother. She also deposed in the similar fashion that accused No.2 and deceased were quarreling with each other due to the ill-health of the deceased Naganagouda and the deceased in turn pleading to this witness that accused No.2 was not co-operating with him and she never allowed him to touch her. She also deposed that, the deceased was pleading that accused No.1 was visiting the house of the deceased often in spite of protest by the deceased. The said Naganagouda also disclosed with her that he is suspecting that there is some illicit intimacy between the accused No.1 and 2. She has also stated that, once accused No.1 and 2 were found together and on that day, accused No.1 has threatened Naganagouda. So far : 22 : as the other factors are concerned that she has seen the dead body on the next day of the accident and conduct of the inquest over the dead body, are not at all disputed. She has also stated that M.Os.13 and 14 were mobile phones, which were seized in this particular case, but she never stated anything about receiving the mobile by the accused No.2.
35. Again, in the course of cross examination, almost suggestions have been made denying the fact that what she has stated in the examination in chief. Apart from that, it is suggested that this witness and PW4 have performed marriage of the father of the accused No.1 with one Sumithra and made the father of accused No.1 to register 22 Acres of land in the name of Sumithra. Therefore, accused No.1 had some grievance against this witness and for that reason this witness has deposed falsely against the : 23 : accused No.1. Even all those suggestions have been denied, in our opinion, the other materials have been produced before the Court to show such grievance was there against the accused No.1. Except that nothing more worth has been elicited from the mouth of this witness. It is only suggested that because she is a close relative to the deceased, she joined hands with the police to concoct a story against the accused No.1 and 2.
36. The last witness to the motive is PW10. PW10- Eshwaragouda Shivanagouda Patil, is not only the relative of deceased Naganagouda, but also relative of the accused No.1. Accused No.1 is no other than the cousin brother of this witness. He has stated that accused No.2 and Naganagouda were quarreling often with each other. Naganagouda was not having good health. Accused No.2 was not taking care of said Naganagouda. The deceased always complaining : 24 : about accused No.2 that she was not ready to lead life with the deceased and he has also told this witness that he suspects the accused No.1 and 2 might have developed illicit intimacy with each other. He has also stated that he has seen the dead body of the deceased and after arrest of the accused No.1, accused No.1 has admitted his guilt before this witness in the presence of the Police.
37. This Court cannot accept such type of extra judicial confession in the presence of the Police, but being the fact as stated by this witness cannot be discarded. But, in the course of cross examination it is stated that nothing has been elicited, except the suggestions have been made to deny the evidence of this witness. But the fact remain that, this witness is not only relative of the accused No.1, but also to the deceased Naganagouda. It has to be elicited during the course of cross examination that he is telling lie : 25 : before the Court in order to falsely implicate the accused.
38. The above evidence of these three witnesses clearly establishes that there was some motive behind the act of the accused No.1. In fact, accused No.2 has not participated in committing the offence. The allegation is made against the accused No.1, who took the deceased along with him on his motor cycle and committed murder of the deceased. Except stating that Naganagouda was telling before these witnesses that he suspect accused No.1 and 2 might have developed illegal intimacy with each other, but these three witnesses have no personal knowledge about the relationship between the accused No.1 and 2. Therefore, with regard to the motive factor circumstance, accused No.2 is concerned, in our opinion, might be there, but it cannot be conclusively stated that because of the motive the : 26 : accused No.2 has instigated the accused No.1 to commit the murder of the deceased. In the absence of any such material available on record to implicate the accused No.2 that she has only instigated accused No.1 to commit crime, merely some motive is in existence, is not sufficient to draw conclusive inference that only due to the abatement by the accused No.2 the accused No.1 has committed such an offence, but the existence of motive in so far as accused No.1 and 2 is concerned, which cannot be completely brushed aside. Therefore, Court has to see the other incriminating circumstance as to whether the motive is the root cause to commit murder of the deceased. It is evident from the evidence of these witnesses that accused No.1 was often visiting the house of the deceased and talking to the deceased also. But there is no concrete evidence to show that the accused No.1 and 2 have developed illicit : 27 : intimacy between each other. In the above said back drop the other circumstance have to be examined by this Court.
(2) The accused No.1 and the deceased last seen together;
39. The next important circumstance is that the accused No.1 and the deceased last seen together. The prosecution has relied upon the evidence of PW5 to 7 and 11 & 12. Out of these witnesses, except PW12, the other witnesses have supported the case of the prosecution. However, PW12 - Chandrashekara Basappa Gadekara, as we have narrated he has not supported the case of the prosecution. This witness was examined to establish that this witness was working in Brandy shop belonging to one Saleem situated in the bus stand at Nargund. It is stated that on 15.12.2002 the Police had brought accused No.1 to this witness and he identified the accused No.1 as he : 28 : has taken some water packets and whisky bottles on that day. But this witness pleaded his ignorance so far as this aspect is concerned. It is stated that Police themselves have told before this witness that accused No.1 had committed murder of the deceased. This witness was treated hostile but even in the course of cross examination he has not supported the case of the prosecution.
40. PW5 to 7 and 11, have stated that on the day of the incident at about 8.15 p.m. when PW5 was in his Brandy shop at Asuti Village accused No.1 and the deceased Naganagouda went together and accused No.1 had purchased some beetle nuts and beetle leaves and thereafter both of them went together on the motor cycle of the accused No.1. About four or five days later, the Police have brought accused No.1 and asked about the deceased and accused. Then he gave a statement that accused No.1 and deceased went : 29 : together on that particular day, i.e., on the previous day of the incident. In the course of the cross examination, it is suggested that lot number of people visit the shop and he cannot identify all those persons. It is also suggested that he has not stated about the fact that the accused No.1 and the deceased came together to the shop. But he denied those suggestions, except making suggestions again, nothing is elicited as to why this witness has to give false evidence and there is no doubtful circumstance elicited that, this witness was not at all seen the accused and the deceased together on that particular day. It is only suggested that, Nagagagouda and accused No.1 and this witness are all belonged to same village. It is also quite natural that in a small village, where population is very less, the people in the said village will know to each other. Therefore, there is no reason to disbelieve this witness : 30 : totally. He has also spoken about the presence of the PW6 in his shop at that particular point of time.
41. PW6 - Srikanthegouda Basavanagouda Patil, who also spoke in the similar fashion as of PW5, has stated that on the previous day of the incident, he has gone to the shop of PW5. He was also there in the said shop when accused No.1 and deceased went together after purchase of beetle nuts etc., and he came to know about the death of the deceased on the very next day. In fact, he identified the accused No.1 as the same person, who came to the shop of PW5 along with the deceased. He also identified the motor cycle of accused No.1. Of course, in the cross examination he has pleaded his ignorance with regard to the registration number of the motor cycle or even as to how many persons were present at that particular point of time. He says that he has not : 31 : disclosed the said fact before anybody with regard to himself, PW5, accused No.1 and deceased going together. It is quite natural unless they come to know that some unpleasant circumstance has taken place, then only they may inform anybody that some persons going together and they have seen them. Therefore, it is natural conduct of the witness, who stated that they have treated the particular incident in a casual manner that accused No.1 and the deceased going together. Merely because these two witnesses have not disclosed the said fact before anybody it will not in any manner discredit the evidence of these two witnesses.
42. PW7 - Gaddigappagouda Siddanagouda Patil, is also a witness to the last seen theory. He has stated that on 30.11.2012, CW19 had visited his village and called this witness along with him. Both of them on the motor cycle of CW19 went to : 32 : Nargund. They returned to Hirekoppa Village at 9.30 PM. They went to Janata Dhaba situated near Ron Cross. In the said Dhaba they saw deceased Naganagouda and accused No.1, who after having their dinner were coming out of the said Dhaba. These two witnesses have talked to deceased Naganagouda. They found that those two persons, ie., accused No.1 and the deceased had consumed alcohol. Thereafter, accused No.1 and the deceased went back on motor cycle. On the next day at about 4 PM they came to know about the death of the deceased Naganagouda. Thereafter, he came to the Police Station on 05.12.2012 and accused was also there in the Police Station and he identified him. He has also suspected that accused might have committed the murder of the deceased.
43. Of course, in the course of cross examination, it is elicited that he is close relative of the deceased Naganagouda. Except suggesting : 33 : that this witness has not given any statement before the Police, as deposed by him before the Court. Here and there some suggestions have been made in order to elicit his ignorance with regard to the relationship between the deceased and other witnesses as well as accused No.1. It is suggested to him that PW4 and accused No.1 were hatching plan to snatch the property of the deceased. Therefore, this witness being relative of PW4, falsely implicated the accused to talk that he has not seen the accused and the deceased together. Even it is suggested to this witness that father of the accused No.1 had filed a suit against this witness and others and he has taken an injunction order in the said case. But he denied the said suggestion and pleaded his ignorance. Except this nothing worth has been elicited from the evidence of this witness.
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44. Another witness PW11 - Jeevan Ratnaji Kalal, has also stated about the same circumstance. He has stated that he has been running a hotel by name Janata hotel in Nargund. It is stated that on 30.12.2012 in the morning at about 11.00 AM, he has seen the accused No.1 in the hotel. Accused No.1 was accompanied by another person and after having dinner both of them went on motorcycle. But very peculiarly, the Police have not made any efforts to show photograph of the deceased in order to convincingly establish that the deceased Naganagouda was with accused No.1 on that particular day. In our opinion, the said lapse on the part of the Investigating Officer itself is not sufficient to discard the evidence of this witness because the other evidence clearly establish that the accused No.1 and the deceased were seen together prior to incident.
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45. PW12-Chandrashekar Basappa Gadekara, in fact, was examined before the Court to establish that on that particular day the accused No.1 and the deceased went to Brandy shop and the accused No.1 had purchased two bottles of whisky and two water packets. But he pleaded his ignorance in so far as this shop is concerned. But he stated that on 05.12.2012 the Police have brought accused No.1 to the shop of this witness and Police themselves have told that accused No.1 has committed murder of the deceased. Police have not actually shown photograph of the deceased in order to elicit from the mouth of this witness that he has seen both the accused No.1 and the deceased on that particular day. Even during the course of cross-examination, the same has been emphatically denied by this witness.
46. Though this witness has not fully supported the case of the prosecution, but all : 36 : other witnesses, who have examined to prove this circumstance, that is PW5 to 7 and 11 have fully supported the case of the prosecution. Again the doubt would arise as to why this witness falsely implicated the accused. There is no suggestion made during the course of cross examination to show that what may be the reason for this witness to say lie before the Court. In the absence of elucidation of this fact, that has simple reason to disbelieve the evidence of this witness. It is the presumption under law that when the case before the Court that the witness would depose truth before the Court. The court should presume that witness have deposed truth before the Court unless it is established during the course of the cross examination or by any means of evidence on record. Therefore, we are of the opinion that there is no such material available on record to disbelieve this witness. Hence, we are of the : 37 : opinion that prosecution has proved the last seen circumstance theory beyond all reasonable doubt. (3) The dead body of the deceased found on the next day of the incident and which is a homicidal death;
47. The next circumstance is that immediately after the accused No.1 and deceased were last seen together, the dead body of the deceased found on the land of PW9, which was intimated by PW11 to PW9. Though we have already referred to these two witnesses that they are formal in nature but in fact they have also specifically stated that, they saw the dead body in the land of PW9. PW11 was only cultivating the said land as he has seen the dead body and informed to PW11 and complaint came to be lodged before the Police. The Police in turn registered a case against some unknown person. The Police have also conducted inquest : 38 : proceedings on the dead body. PW3 has categorically stated about inquest proceedings as per Ex.P5. The inquest report also discloses that the dead body had some serious injuries on the head and this witness has also stated that head was completely broken and brain matter have come out of the head of the deceased and stone was laying on the side of the dead body and they have also seen the blood stained clothes of the deceased at MO1 to 7.
48. Compared with the evidence of PW3 with the evidence of the doctor, who was examined before the Court as PW17, has deposed before Court that she has conducted PM examination and found following injuries:
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1) Crush injury involving right side of head and face, brain matter exposed, clotts present;
2) Clotted blood present in right ear;
3) Abrasion over dorsem of right fore head measuring 1'X1';
4) Crush injury involving right side of the head with communited fracture of skull involving right frontal parital, temporal and oxipital bone. Membronses torn, clotts present. Crush injury of right side brain.
She has further stated that all the injuries are anti-mortem in nature. She has also given PM report as per Ex.P17. Of course, an attempt was made in the course of cross examination of the Doctor that these injuries could be caused if a person falls down facing to the ground forcibly, there are chances of causing extreme injuries as shown in the PM report.
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49. Though it is elicited from the mouth of the doctor that time of the death has not been narrated in the PM report as argued by the learned counsel for the appellants, it goes without saying that time of death even can be calculated by the Court by sequence of the circumstance that have been proved by the prosecution. The prosecution has shown to the Court that on the previous day of the incident, that was on the intervening night of 30.11.2012 and 01.12.2012, the accused No.1 and the deceased were seen together and they were last seen at 11.00PM and early morning of 01.12.2012 the PW1 noticed a dead body in his land. Thus, it is clear that in between 11.00PM on 30.11.2012 and early morning on 01.12.2012 the incident must have happened. Therefore, non mentioning of the time of the death may not be in any manner helpful to the accused. There is no other evidence available on record to show that : 41 : the incident had happened in some other manner. There is no explanation by the accused or any suggestion to any of the witnesses that the accused fell down on a stone forcibly and because of that reason he sustained those injuries. But the evidence of the doctor, if it is meticulously seen, that the doctor has deposed that grievous injuries are found on the dead body would be caused by throwing a stone on the head of the dead body. The nature of the injuries are crush injuries, which are multiple in nature, particularly, communited fracture of skull and brain matter come out from the head, which probabalise the extent of the presumption that the stone might have been dropped on the head forcibly, in that manner the incident must have happened. On the basis of the last seen witness theory the court can draw an inference that the prosecution has established that, there was nexus between the last seen of the : 42 : accused No.1 and the deceased and the death of the deceased and it is a homicidal death.
50. When the above said two circumstance have been strongly been established, it shifts the onus on the accused under Section 106 of the Indian Evidence Act to give some explanation as to what happened on that particular day of the incident.
(4) Extra judicial confession of the accused No.1;
51. Be that as it may, the next circumstance is extra judicial confession. Simply one could say that this circumstance has not been proved by the prosecution, because the only witness examined by the prosecution is PW13, who turned totally hostile to the case of the prosecution.
(5) Recovery of the incriminating articles at the instance of the accused No.1 and its connectivity with the crime.
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52. The last, but, another strong circumstance laid down by the prosecution is the recovery of some incriminating articles at the instance of the accused. We have already narrated that PW2 and the Investigating Officer are the witnesses for the seizure of the clothes of the deceased at MO1 to 7 and also shirt and lungi of the accused No.1 and other material objects at MO11 and 12 from the spot and two mobile phones from the accused No.2. PW2 has supported the case of the prosecution. He has stated about the seizure of the clothes of the deceased at MO1 to 7. He further stated that CW5 a co-pancha was also present at the time when the Police have seized the said articles under Ex.P2. He also identified his signature as Ex.P2(a). So far as this particular aspect is concerned, there is no much cross examination, except denying the said aspect. It is also stated by him that on 05.12.2012 Police : 44 : secured presence of this witness and CW5 and accused No.1 was also present in the Police Station. Accused No.1 took the Police and this witness to Asuti Village in Police jeep and he has produced the clothes from his house, saying that he was wearing those clothes at the time of incident. One white shirt and ash colour lungi, which were marked as MO9 and 10, were seized under Ex.P3. He also deposed that accused No.1 further took the police to his grand father's house in the village at Budihal and he produced one motor cycle from the house of his grand father, which was also seized by the Police under mahazer Ex.P3 and he identified the motor cycle as MO15. He also deposed under the same mahazar the Police have also seized MO11 and 12 at the instance of the accused No.1, who took police and witness near the Bridge at Naragund and MO11 and 12 which are whisky bottles and plastic water : 45 : packets were seized from the spot. So far as these aspects are concerned, in the course of cross examination lot number of questions have been put to establish that the deceased is relative of this witness but he denied the same but he admitted that he belonged to same caste. He never stated anything contrary in the evidence at examination in chief. But he deposed that he cannot say the registration number and chassis number of the motor cycle. The witness is only called upon to depose before Court whether in his presence those items were seized. The other materials available on record that the jurisdictional Police have subjected the said vehicle to P.F after seizure and the same motor cycle was identified by the witness during the trial.
53. We have carefully examined evidence of these witnesses. An admission was made by this witnesses that he acted as panch witness in this : 46 : case only. In the absence of any such material merely because the witness is taken by the Police unless it is shown that this witness is a regular witness to the Police and Police also have utilized his services in any other case, merely because the suggestion is made, on that count the witness cannot be dubbed as stock witness to the Police.
54. It is also not elicited during the course of cross examination as to why this witness has to say lie before the Court. The suggestions made to this witness that he is an interested witness are emphatically denied by this witness. Therefore, in our opinion the prosecution has also established the recovery of the items stated above from the accused No.1.
55. Now, the Court has to examine the material articles seized by the police marked at MO1 to 7, which are the clothes of the deceased : 47 : and MO9 and 10 are the clothes of the accused No.1. The FSL report produced before the Court at Ex.P33, which shows that the Police have sent the clothes of the deceased and one towel, stone pieces, seized at the spot and one shirt of the deceased as well as shirt and lungi of the accused No.1. The FSL report shows that these items contain human blood, particularly, B Group blood. The accused has not explained as to how his clothes were stained with 'B' group blood. Of course the Police in order to eradicate any doubt, ought to have collected the blood sample of the accused. But that lapse on the part of the Police, in our opinion, is not sufficient to totally uproot the case of the prosecution when other overwhelming evidence is available to prove the case of the prosecution.
56. Therefore, the Court has to see even if such lapse is there on the part of the investigating : 48 : agency, whether the prosecution was able to prove the case otherwise than that circumstance. Therefore, we are of the opinion that, the stains found on the clothes of the accused perfectly tallied with the blood group of the deceased. This is also one of the strong circumstances which connects the recovery of material objects to the crime.
57. MOs 11 and 12, in fact, are a whisky bottle and water sachets. The prosecution has also proved this particular circumstance by other evidence. As we have already referred to that the accused No.1 had been to the shop of PW12 and purchased these two whisky bottles as well as water pockets. Though this witness has turned hostile to the prosecution so far as this aspect is concerned, but he has narrated in the examination-in-chief that on 05.12.2012 the Police had brought accused No.2 to the shop of this : 49 : witness and he identified him and told the Police that the accused No.1 from his shop has taken two, 90 ML bottle and OT and two water pockets. This particular aspect has not been subjected to cross-examination except holding that he has not given any receipt to accused No.1 for having the accused No.1 purchased these articles. Therefore, the evidence of this witness also supports the prosecution story. Therefore, the prosecution has also proved the recovery of these articles at the instance of accused No.1 and connectivity of these articles with the crime.
58. It is also the case of the prosecution that the prosecution have recovered two mobiles, MOs 13 and 14 at the instance of accused No.2. the Investigating Officer has also made efforts to secure call details of the SIM cards which are fixed with these two mobiles, which is marked at Ex.P.28. Though the learned counsel submitted : 50 : that the certificate u/S 65-B of the Indian Evidence Act has not been produced by the Investigating Officer but during the course of examination of the Investigating Officer, no such plea has been taken and there was no objection raised by the accused for marking of these documents before the Court. Therefore, when there was no cross-examination or there was no objections raised at the time of marking these documents the same question cannot be raised before the appellate court as there was no opportunity to the prosecution to correct the said lapses or mistakes committed by the Investigating Officer. This has been very well enunciated in the decision of the apex Court in Sonu v/s State of Haryana reported in 2017 (8) SCC 570. Therefore, such mere procedural lapses in no way helpful to the accused.
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59. Nevertheless the above facts, in order to prove the connectivity of accused No.2. With these two mobiles the prosecution has examined two witnesses PWs 14 and 16 both of them have turned hostile to the prosecution. Of course, it is the case of the prosecution that MO 14 belonged to PW14 and MO13 belonged to PW16. Though they have identified these mobiles belonged to themselves but PW14 has stated that the said mobile has been purchased by himself and he lost the mobile long back but he has not filed any complaint. Even the SIM card was also not got identified as belonged to this witness. In the cross-examination also it is stated that, accused No.1 has actually purchased the mobile and a SIM card bearing No. 8748988592 and the said accused No.1 had identified the said mobile to the accused No.2 but the said suggestions have been denied. Likewise, PW16 also not supported the case of the : 52 : prosecution though admitted that the said mobile belonged to her who is no other than the mother of the accused No.1. She has not even identified the said mobile. She has stated that, she has not given that mobile to anybody. Therefore, there is no help to the case of the prosecution so far as these mobiles are concerned. Of course, the learned SPP strenuously argued before the court that the Police have collected Ex.P.28 call details pertaining to the SIM cards fitted with these two mobiles and as well as the mobile of the accused, of course there is lot of conversation that has been taken place between the mobile of the accused No.1 and MOs 13 and 14-mobiles. But, who have conversed with the accused No.1 and what was that conversation between them is not forthcoming in the evidence. Except the voluntary statement of accused Nos.1 and 2, there is no other evidence, hence it cannot be relied upon by : 53 : the Court for any reason for the purpose of implicating accused No.2 to the crime. The statement made by the accused Nos.1 and 2 before the Police is of no use, as the same is hit by Section 25 of the Indian Evidence Act except they fall u/S 27 of the Indian Evidence Act.
60. Apart from the alleged conversation between the accused Nos.1 and 2 which is an important aspect that play a dominant role, but the prosecution has not placed any material nor any of the witnesses examined before the Court spoken about that particular aspect. At the most, it may create a serious doubt or suspicion with regard to the conduct of accused Nos.1 and 2. But it is well settled principle of criminal jurisprudence. That suspicion however strong it may be, it will not take the place of proof. The proof should be otherwise given by the prosecution, how the prosecution would give such : 54 : evidence, it is left to the prosecution itself. However, the fact remains that, except this alleged conversation between accused Nos.1 and 2, even accepted, to ascertained what conversation taken place, there is absolutely no material to show that there was any illicit relationship between accused Nos.1 and 2 and the accused No.2 has actually instigated and abetted accused No.1 to commit such crime. Therefore, we are of the firm opinion that the evidence placed before the Court is so inadequate in order to bring home the guilt of accused No.2. Hence, accused No.2 is entitled to be acquitted. On the other hand, the above said circumstances, as we have elaborately discussed shows that the accused No.1 is the perpetrator of the crime. Hence, the judgment of conviction and sentence passed by the learned trial Court so far as accused No.1 is concerned, is absolutely right. There is absolutely no room to interfere with the : 55 : said judgment of conviction and sentence against accused No.1.
61. We place it on record the valuable assistance given by the learned counsel Sri Ganapati M. Bhat and as well as Sri Vidyashankar G. Dalawai, learned counsels. Sri Vidyashankar G. Dalawai, learned counsel is entitled for legal remuneration from the High Court Legal Services Committee, High Court of Karnataka, Dharwad Bench, in accordance with law.
With the above said reasons we proceed to pass the following order.
ORDER The appeal filed by the appellant/ accused No.1 in Criminal Appeal No. 100212/2014 is hereby dismissed.
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The appeal filed by the appellant/ accused No.2 in Criminal Appeal No. 100070/2017 is hereby allowed. Consequently, the judgment of conviction and sentence passed by the learned Addl. District and Sessions Judge at Gadag in S.C. No. 10/2013 against accused No.2- Smt.Sangamma, is hereby set aside and she is acquitted of the charges leveled against her for the offences punishable u/s 120B, 302, 201 r/w Sec. 34 of IPC.
The appellant- accused No.2 in Criminal Appeal No. 100070/2017, if in custody, she is ordered to be released forthwith, if she is not required in any other case.
Fine amount, if any, deposited by the accused No.2 shall be ordered to be refunded to accused No.2 on proper identification and acknowledgement.
: 57 :Registry is hereby directed to send intimation to the concerned jail authorities for release of accused No.2-appellant in Criminal Appeal No. 100070/2017, forthwith, if she is not required in any other case.
Sd/-
JUDGE Sd/-
JUDGE EM/VK/Bvv