Karnataka High Court
Devappa S/O Mudakappa Pujar vs The State Of Karnataka on 3 July, 2020
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 3rd DAY OF JULY 2020
PRESENT
THE HON'BLE MR.JUSTICE B.A.PATIL
AND
THE HON'BLE MRS.JUSTICE M.G.UMA
CRIMINAL APPEAL NO.100225/2018
BETWEEN
DEVAPPA S/O MUDAKAPPA PUJAR
AGE: 36 YEARS,
OCC: NOW NIL,
R/O: MULGUND,
TQ & DIST: GADAG.
... APPELLANT
(BY SRI. PRUTHVI K.S.. ADV.)
AND
THE STATE OF KARNATAKA
REP. BY MULGUND POLICE STATION,
R/BY THE SPP,
HIGH CURT OF KARNATAKA,
DHARWAD BENCH DHARWAD.
... RESPONDENT
(BY SRI.V.M.BANAKAR, ADDL. SPP )
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THIS CRIMINAL APPEAL FILED U/S 374(2)OF
CR.P.C. SEEKING TO A) SET ASIDE THE JUDGMENT
OF CONVICTION AND ORDER OF SENTENCE PASSED
;BY THE ADDL. DIST. & SESSIONS JUDGE, GADAG IN
S.C.NO.41/2015, DATED 09.11.2017. B) ACQUIT THE
APPELLANT FOR THE CHARGES LEVELED AND
ORDER OF CONVICTION PASSED FOR THE
OFFENCES P/U/S 302 & 506 OF IPC.
THIS CRIMINAL APPEAL COMING ON FOR FINAL
HEARING THIS DAY, B.A.PATIL J., DELIVERED THE
FOLLOWING:
JUDGMENT
This Criminal Appeal is directed against the judgment of conviction and order of sentence passed by the learned Additional District and Sessions Judge, Gadag, (herein after referred to as the 'trial Court'), in Sessions Case No.41/2015 dated 9.11.2017, wherein the appellant-accused has been convicted for the offences punishable under Sections 302 and 506 of IPC.
2. We have heard the learned counsel Sri. Pruthvi K.S., for the appellant and the learned Additional S.P.P. Sri V.M. Banakar for the respondent- State.
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3. The genesis of the case of the prosecution in brief is that the accused was having illicit relationship with one Mahantavva (CW-8). Accused used to suspect that she has also having illicit relationship with deceased Govindappa. With that animosity with an intention to cause the death of Govindappa on 30/7/2015 at about 10.00p.m., in the land bearing Survey No.192/2002, he committed the murder of Govindappa strangulating with a rope. It is the further case of the prosecution that PW-1- complainant-the father of the deceased Govindappa, noticed that his son who has gone to the field on the previous night has not returned. He called his son over his mobile phone but he did not respond. He went in search of the deceased. At about 9.30 a.m near the water storage place, he saw the dead body of his son in supine position and people have also gathered there. There he noticed that around the neck, there was black mark and his clothes were muddy and under the impression that some miscreants :4: have committed the murder of his son, he filed a complaint as per Ex.P5.
4. On the basis of the complaint, a case has been registered in Crime No.81/2015. Thereafter, after the investigation, the charge sheet came to be filed.
5. The learned Magistrate after following the procedure, committed the case to the Sessions Court. Sessions Court took cognizance and secured the presence of the accused and thereafter, after hearing the parties to the proceedings, the charge was framed. Accused pleaded not guilty. He claims to be tried and as such, the trial was fixed.
6. The prosecution in order to prove the case, got examined 20 witnesses, got marked 19 documents and 6 material objects. Thereafter, the statement of the accused was recorded under Section 313 of Cr.P.C. by putting incriminating materials as against him. He denied the said incriminating materials, but he has not led any evidence. After hearing both the sides, the trial :5: Court passed the impugned order of conviction and sentence. Challenging the legality and correctness of the said judgment, the appellant-accused is before this Court.
7. The main grounds urged by the learned counsel for the appellant-accused are that the impugned judgment of the Trial Court is not in accordance with law. It is only on presumption and assumption, the trial Court has wrongly convicted the accused. It is his further submission that there are no eye-witnesses to the alleged incident and the entire case rests on circumstantial evidence. So there are so many contractions with reference to the evidence of Dog squad and investigating officer. The trial Court ignoring the said fact, has passed the impugned order. It is his further submission that the motive which is alleged, itself is doubtful. Even PW-7 with whom the deceased is said to having illicit relationship, has also not stated that she was having such illicit relationship with him. :6: Under such circumstances, the motive has also not been proved by the prosecution.
8. It is his further submission that the recovery of the rope at the instance of the accused itself is not proved by the prosecution. It is his further submission that extra judicial confession made to PW-7 itself is created and concocted. Though there is no connecting link, the trial Court has relied upon the same and has wrongly convicted the accused. It is his further submission that though there is no complete chain of events so as to point out the guilt of the accused, even then the trial Court has wrongly convicted the accused. On these grounds, he prayed to allow this appeal and set aside the judgement of conviction and order of sentence and to acquit the appellant.
9. Per contra, the learned Additional SPP vehemently argued and submitted that the entire case rests on circumstantial evidence. It is his submission that PW-7 was having illicit relationship with deceased Govindappa and by suspecting that the deceased also :7: had illicit relationship with PW-7, the accused by taking an opportunity, has strangulated his neck in the field by rope. It is his further submission that the evidence of PW-6 clearly goes to show that the accused immediately after the incident has come to the house of PW-7 and made a confession. It is his further submission that even the rope MO-6 has been recovered at the instance of the accused. PW6 is the recovery Mahazar pancha to Ex.P9 has also supported the case of the prosecution and in that light, if all the chain of events, if they are looked into, they point out towards the guilt of the accused and accused alone. There are no ambiguity or contradiction in the case of the prosecution. On these grounds, he prayed to dismiss the appeal.
10. We have carefully and cautiously gone through the submissions made by the learned counsel appearing for the parties and perused the records including the Trial Court records.
11. On perusal of the records it is clear that the entire case rests on circumstantial evidence. There are :8: no eye witnesses. It is trite of law that if a case rests on circumstantial evidence, the prosecution has to establish the circumstances to lead to one and only conclusion towards the guilt of the accused. The evidence must be completed and incapable of explanation of any other hypothesis other than the guilt of the accused. This proposition of law is laid down in Rukia Begum Vs. State of Karnataka reported in AIR 2011 SC 1585. Para 10 of the said judgment reads as under:
"10. No doubt it is true that for bringing home the guilt on the basis of the circumstantial evidence the prosecution has to establish that the circumstances proves lead to one and the only conclusion towards the guilt of the accused. In a case based on circumstantial evidence the circumstances from which an inference of guilt is sought to be drawn are to be cogently and firmly established. The circumstances so proved must unerringly point towards the guilt of the accused. It should form a chain so complete that there is no escape from the conclusion that the crime was committed by :9: the accused and none else. It has to be considered within all human probability and not in fanciful manner. In order to sustain conviction circumstantial evidence must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused. Such evidence should not only be consistent with the guilt of the accused but inconsistent with his innocence. No hard and fast rule can be laid to say that particular circumstances are conclusive to establish guilt. It is basically a question of appreciation of evidence which exercise is to be done in the facts and circumstances of each case. Here in the present case the motive, the recoveries and abscondence of these appellants immediately after the occurrence point out towards their guilt. In our opinion, the trial Court as also the High Court on the basis of the circumstantial evidence rightly came to the conclusion that the prosecution has been able to prove its case beyond all reasonable doubt so far as these appellants are concerned."
12. The ratio laid down in the above decision has been reiterated by the Hon'ble Apex Court in many : 10 : more decisions, which have been decided subsequently and the said proposition of law still holds good. Keeping in view the said ratio, let us consider the evidence which has been produced by the prosecution.
13. In the case on hand, the prosecution got examined as many as 20 witnesses. PW-1 is none other than the father of deceased Govindappa. In his evidence he has deposed with regard to the deceased, himself, his daughter-in-law and grand son staying together and that his family is having 7.5 acres of the land at Laxmeshwar and the deceased and himself used to cultivate the said land and his son used to go to the field during night hours for watering the land and he used to sleep there itself. He used to come by next day morning at about 7 or 8 a.m. He was also having a mobile phone. It is his further deposition that on 30/7/2011 at about 9.00 p.m. the deceased had been to the field and next day morning at about 7.30 a.m. he called him over the phone about 3 to 4 times but his son did not responded and at about 8.00 or 9.00 a.m., : 11 : he went to the field and already the people have gathered there and he saw his son was lying in supine position and also noticed a mark on his neck. On the basis of the said suspicion, he has filed the complaint as per Ex.P1. During the course of cross-examination, he has admitted that the body of his son was lying in his own land. He has admitted the fact that on Laxmeshwar road, there is busy moment of the vehicles and the said land is at about half a kilometer away from the village and if any person calls from his land, the same could be heard by any person standing on the road. He has further deposed that he was not suspecting that his son was having illicit relationship with Mahantavva.
14. PW-2 is a panch witness to the dog squad visit mahazar Ex.P.5 and he is a panch witness to inquest mahazar Ex.P.6. He has not supported the case of the prosecution and he has been treated as hostile. PWs-3 and 4 are the panch witnesses to the recovery mahazar of clothes of the deceased as per Ex.P.8, : 12 : whereunder M.Os.1 to 5 have been recovered. Both these witnesses have not supported the case of the prosecution and they have been treated as hostile.
15. PWs-5 and 6 are the panchas to the recovery mahazar of the rope under the mahazar which is as per Ex.P.9. PW-7 is the star witness with whom the accused and the deceased both are said to have illicit relationship and before whom the accused made an extra judicial confession immediately after the alleged incident.
16. PW-8 is the wife of the deceased. She speaks with regard to the motive. PW-9 is the police constable who brought the dog squad. PW-10 is the brother of PW-7 who has spoken with regard to the motive. PW-11 is the doctor who has conducted autopsy over the body of the deceased and has issued the post mortem report as per Ex.P.12. PW-12 is the Assistant Engineer who has drawn the sketch of the scene of offence as per Ex.P.14. PW-13 is the brother of PW-1 and he is the scribe of Ex.P.1. PWs-14 and 15 are : 13 : the hear-say witnesses. PW-16 is the head constable who carried the body of the deceased for conducting the post mortem.
17. PW-17 is the police constable who carried the FIR- Ex.P.17 to the jurisdictional Court. PW-18 is the PSI who registered the case on the basis of the complaint Ex.P.1. PW-19 is a panch witness to the dog squad visit mahazar as per Ex.P.5. He has not supported the case of the prosecution and he has been treated as hostile. PW-20 is the Investigating Officer who investigated the case and filed the charge-sheet as against the accused.
18. To establish the case of the prosecution, the prosecution has relied upon five circumstances. The first one is the motive. As per the case of the prosecution, the accused was having illicit relationship with one Mahantavva and subsequently, he suspected that the deceased Govindappa was also having illicit relationship with her and on suspicion, the accused has committed the alleged offence. In this behalf, the : 14 : prosecution has relied upon the evidence of PW-7, who is none other than the woman with whom the deceased and the accused, both are said to have had illicit relationship. In her evidence, she has deposed that since 7 to 8 years she is having illicit relationship with the accused and she used to visit the land of deceased Govindappa for coolie work and the accused used to suspect that she is having illicit relationship with the deceased Govindappa and he used to object her by saying not to go to Govindappa's land for work. She has further deposed that in order to eke out her livelihood, she used to go to the land of Govindappa for work. During the course of cross-examination, she has denied the suggestion that the accused was not suspecting the deceased having illicit relationship with her. But, during the course of cross-examination of PW-1, who is none other than the father of the deceased, has deposed that he did not have suspicion regarding the fact that the deceased had any illicit relationship with PW-7/Mahantavva and that they never used to behave : 15 : in the manner so as to give rise to such suspicion. When the father of the deceased himself is very firm with regard to the fact that there was no suspicion, under such circumstances, the motive is said to be very thin and very weak. Even, PW-7 herself has not stated that she was having any illicit relationship with the deceased. Merely on suspicion, such a drastic step would not have been taken by any person. The evidence of PW-7 also goes to show that her brother and herself have been called to the police station and on that night, they were there in the police station. That itself creates doubt in the case of the prosecution as to why her brother was also taken to the police station. In that light, the motive creates a doubt.
19. Be that as it may. The prosecution is also relying upon the second circumstance i.e., recovery of the rope, which is said to have been used for the purpose of commission of the offence. In order to substantiate the said fact, the prosecution has relied upon the evidence of PWs-5, 6 and 20. PW-20, the : 16 : Investigation Officer, in his evidence has deposed that on 01.08.2015 accused was produced before him at about 9.15 a.m. and he has recorded the voluntary statement of the accused as per Ex.P.18. In the said statement, the accused had volunteered to show the place where he had committed the murder of deceased Govindappa and would also produce the rope which he has used to cause death of Govindappa.
20. Ex.P.18 is the voluntary statement of the accused. What is required under Section 27 of the Indian Evidence Act is the discovery of the fact which was within the knowledge of the accused and which was not within the knowledge of other persons and the voluntary statement with regard to such incriminating material, which was used for the purpose of commission of the offence, is going to be produced, is the only relevant material which has to be marked for the purpose of admissibility of the said evidence under Section 27 of the Act.
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21. But, in the instant case on hand, for the reasons best known to the Presiding Officer of the trial Court as well as the prosecution, the entire statement of the accused was got marked as Ex.P.18. Under such circumstances, the evidence of PWs-5, 6 and 20 do not prove the recovery of the rope M.O.9 in accordance with law.
22. Be that as it may. On perusal of the evidence of PWs-5 and 6, it is seen that they have deposed before the Court that the accused has shown the place where he had committed the murder of the deceased and then thereafter he had lead them to his house and there he took out a plastic rope measuring 45 inches, which was hidden behind 3 to 4 photos in the hall and the same was seized by drawing a mahazar. But, PW-5 in his cross-examination, has clearly admitted that the said panchanama was written in the police station and he has signed the same in the police station. He has further deposed that the complainant had given the information to write the panchanama and : 18 : he does not know the contents of the same. Other suggestions have been denied by this witness. Though, nothing has been elicited during the course of cross- examination of PW-6, when PWs-5 and 6 are the witnesses to the mahazar Ex.P.9 and when PW-5 has deposed during the course of cross examination that the said mahazar has been signed in the police station and it is the complainant who had given instructions to write the mahazar, under such circumstance, no credence can be given to the evidence of PW-6. In that light, the recovery of the rope M.O.9 at the instance of the accused also falls to the ground.
23. Even as could be seen from the records, a dog squad has been called for the purpose of investigation. PW-9 in his evidence has deposed before the Court that when they were searching for the material to be sniffed by the dog, they found a battery and the same was shown to the said dog and after sniffing the said battery, the dog went to the house of one Mahantavva and thereafter to the house of : 19 : Yamanappa Poojar. During the cross-examination, nothing has been elicited from the mouth of this witness. But, however, the Investigation Officer/PW-20 during his cross-examination has deposed that by the side of the dead body, no battery or mobile or rope were found and nothing has been seized from the spot. Taking into consideration the evidence of PW-20, if battery has not been recovered and has not been produced before the Court, then, under such circumstances, the dog sniffing the battery and then thereafter proceeding to the house of PW-7 and thereafter to the house of father of the accused, where he used to reside, itself is going to be falsified. Hence, in that regard also, the evidence which has been produced before the Court is not cogent and acceptable.
24. The next circumstance relied on by the prosecution is about the extra judicial confession said to have been made by the accused with PW-7 in this regard. A stray sentence has been spoken during the course of evidence by PW-7 in this regard. She has : 20 : deposed that about 1½ years prior to her giving evidence before the Court, one night at about 11.30 p.m. accused came to her house and informed that he has murdered Govindappa in the field wherein she used to go for work. On close reading of the said evidence, it does not constitute an extra judicial confession. To constitute an extra judicial confession, the accused must have repentance for having committed the said offence and in order to have solace, he should have confessed that he has committed the said act and the accused must repose confidence before whom he is making confession. The said witness has also not specifically stated the exact day on which the accused has confessed and simply saying that one day the accused came and confessed about the commission of the offence is not going to create any evidence in that behalf. This witness not even say about such confession with reference to the date of incident.
25. Be that as it may. It is well settled proposition of law that extra judicial confession has to : 21 : be considered as a very weak type of evidence. No conclusion can be entered solely on the basis of the extra judicial confession without corroboration. Taking into consideration the above said facts and circumstances of the case, the prosecution has utterly failed to prove the motive and the recovery of the rope at the instance of the accused. Under such circumstances, much importance cannot be given to the extra judicial confession which is said to have been made by the accused.
26. We have gone through the evidence of PW-11/Dr.Rajashekhar Myageri. In his evidence, he has clearly deposed that he has conducted autopsy over the body of the deceased and he has also noticed the ligature mark on the neck of the deceased and even he has deposed that the right side of hyod bone is fractured and has opined that the death is due to asphyxia as a result of compression of neck by strangulation. During the course of cross-examination also, nothing has been elicited so as to discard his : 22 : evidence. Even, PW-10 also noticed the ligature mark and the inquest mahazar panchas have noticed the said ligature mark. Taking into consideration the above said facts and circumstances, though the prosecution has proved the fact that the deceased Govindappa died a homicidal death but it has failed to bring home the guilt of the accused beyond all reasonable doubt. Only because of the suspicion that PW-7 had illicit relationship with the deceased Govindappa, the accused committing the alleged offence, cannot be accepted.
27. It is trite of law that the circumstances from which the conclusion of the guilt is to be formed, is to be fully proved and such circumstances must be conclusive in nature. Moreover, all the circumstances should be forming a complete chain and there should not be any missing link in the chain of the events. This proposition of law has been laid down by the Hon'ble Apex Court in the case of NIZAM AND ANOTHER VS. STATE OF RAJASTHAN reported in (2016 (1) SCC : 23 :
550) wherein at paragraphs 8 to 10 it has been observed as under:
"8. The case of the prosecution is entirely based on the circumstantial evidence. In a case based on circumstantial evidence, settled law is that the circumstances from which the conclusion of guilt is drawn should be fully proved and such circumstances must be conclusive in nature. Moreover, all the circumstances should be complete, forming a chain and there should be no gap left in the chain of evidence. Further, the proved circumstances must be consistent only with the hypothesis of the guilt of the accused and totally inconsistent with his innocence.
9. The principle of circumstantial evidence has been reiterated by this Court in a plethora of cases. In Bodhraj @ Bodha And Ors. vs. State of Jammu & Kashmir,(2002) 8 SCC 45, wherein this court quoted number of judgments and held as under:-
"10. It has been consistently laid down by this Court that where a case rests squarely on circumstantial evidence, the : 24 : inference of guilt can be justified only when all the incriminating facts and circumstances are found to be incompatible with the innocence of the accused or the guilt of any other person.
(See Hukam Singh v. State of
Rajasthan (1977) 2 SCC 99, Eradu v.
State of Hyderabad AIR 1956 SC
316, Earabhadrappa v. State of
Karnataka (1983) 2 SCC 330, State of
U.P. v. Sukhbasi (1985) Suppl. SCC
79, Balwinder Singh v. State of
Punjab (1987) 1 SCC 1 and Ashok Kumar
Chatterjee v. State of M.P., 1989 Suppl. (1) SCC 560) The circumstances from which an inference as to the guilt of the accused is drawn have to be proved beyond reasonable doubt and have to be shown to be closely connected with the principal fact sought to be inferred from those circumstances. In Bhagat Ram v. State of Punjab AIR 1954 SC 621 it was laid down that where the case depends upon the conclusion drawn from circumstances the cumulative effect of the circumstances must be such as to negative the innocence : 25 : of the accused and bring home the offences beyond any reasonable doubt.
11. We may also make a reference to a decision of this Court in C. Chenga Reddy v. State of A.P. (1996) 10 SCC 193, wherein it has been observed thus: (SCC pp. 206-07, para 21) "21. In a case based on circumstantial evidence, the settled law is that the circumstances from which the conclusion of guilt is drawn should be fully proved and such circumstances must be conclusive in nature. Moreover, all the circumstances should be complete and there should be no gap left in the chain of evidence. Further, the proved circumstances must be consistent only with the hypothesis of the guilt of the accused and totally inconsistent with his innocence."
10. In Trimukh Maroti Kirkan vs. State of Maharashtra, (2006) 10 SCC 681, this court held as under:
"12. In the case in hand there is no eyewitness of the occurrence and the case : 26 : of the prosecution rests on circumstantial evidence. The normal principle in a case based on circumstantial evidence is that the circumstances from which an inference of guilt is sought to be drawn must be cogently and firmly established; that those circumstances should be of a definite tendency unerringly pointing towards the guilt of the accused; that the circumstances taken cumulatively should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and they should be incapable of explanation on any hypothesis other than that of the guilt of the accused and inconsistent with their innocence."
The same principles were reiterated in Sunil Clifford Daniel vs. State of Punjab, (2012) 11 SCC 205, Sampath Kumar vs. Inspector of Police, Krishnagiri (2012) 4 SCC 124 and Mohd. Arif @ Ashfaq vs. State (NCT of Delhi), (2011) 13 SCC 621 and a number of other decisions.": 27 :
28. Keeping in view the ratio laid down in the decision quoted supra and on perusal of all the materials on record, we are of the opinion that, the prosecution has failed to prove all the circumstances, especially the recovery of the rope at the instance of accused which is a material link to the said offence. Under such circumstances, the benefit of doubt should be given to the accused.
29. Taking into consideration, the above said facts and circumstances, we proceed to pass the following:
ORDER The appeal is allowed. The judgment of conviction and order of sentence passed by Addl. District and Sessions Judge, Gadag, in S.C.41/2015 dated 09.11.2017 is set aside and the appellant/accused-
Devappa is acquitted of all the charges and he is set at liberty forthwith, if he is not required in any other case. The jail authorities are hereby directed to release him forthwith.
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The registry is directed to intimate the Prl. District and Sessions Judge, Gadag, as well as the jail authorities through e-mail to release the appellant/accused-Devappa forthwith, if he is not required in any other case.
[Sd/-] JUDGE [Sd/-] JUDGE Vmb-paragraphs 1 to 13, Jm/-from paragraph 13 till end