Karnataka High Court
Vijaya @ Jayashetty S/O Booba Shetty vs State Of Karnataka Rep By Spp on 31 August, 2010
Bench: V.G.Sabhahit, S.N.Satyanarayana
IN THE HIGH coum or= KARNATAKA, BAN§5.A}..,dRE
DATED THIS THE 31 5' DAY OF AuGu$f'2a;jg1#
PRESENTW
THE HON'Bi..E MR. JUSTICE
THE HON'BLE MR.JUSTI' C'.'-.=;,::S_,N. SAISMNARAYANA
CRIMINAL HA}-'PE-}AL;V-- A1194/2905
BETWEEN: _
1. VIJAYA; 3.AY+'xS_HETf¥7Y""-- " _
S/O Bo0B.a A.
A<3vEDvA_BouT" YEARS,
R/AT SANaZ1:ESV_H4.NI'VAS.,._ .'
PAl'nJ_THYA' VILLAS
KODANGALLU, E
BELTHA.NGADI'__TA.LUK"
. BBAIAH SHETEW
"SON OF 'AITHAPPA SHETTY,
* AGHED~EA8QLIET 39 YEARS,
. VA.E-'KAEDAQVE HOUSE,
I ':'JARA\'fI'j_\/.I'LLAGE
"'~BEL.THANGADI TALUK,
3. SCMANNA HEGDE
'SON OF BORGA HEGDE
" 'AGED ABOUT 45 YEARS,
RESIDING AT PANALU HOUSE
NARVI VILLAGE,
BELTHANGADI TALUK.
APPELLANTS
(By Sri: S. VISWAJITH SHETTY, ADV.,)
AND :
STATE OF KARNATAKA
REPRESENTED BY
STATE PUBLIC PROSECUTOR,
HIGH COURT BUILDINGS,
BANGALORE.
(By Sri :S.B. PAWIN, SPP)
"
THIS APPEAL IS FILEDVU/4_S. 3'3;?4(2) CR_.R.C," TOBY'; THEFV
ADVOCATE FOR THE APPELLANTS~ACCUSED'gAGAINSTI
THE JUDGEMENT .DT.27"VQ-l';U'5 "PASS'E'D---_B'(r§ THE III
ADDL. SESSIONS "«-.IUDGE,;_' vv|3";3.I_(';.vvTDA:"'b/IANGALORE, IN
S.C.NO.35/015CONVIVCT"INGv"_THE--"Af5PELLANTS--ACCUSED
FORTHEHFOFFENCES'Flu/S'._"'3'O'2 & 201 R/W 34 OF IPC
AND:_SE{\£'FEN'CViVi\l:C3='fHE:M To UNDERGO IMPRISONMENT
FOR LIFEITANIVS.T'O'PA'1f.IFINE OF RS. 1000/~ EACH, I.D.
TO»u_ND'4ERr;OFT"R.i'R FOR 3 MONTHS EACH FOR THE
'-OAT-'FE-NCEA. P/U/'S"""3'O2 R/W 34 OF IPC AND FURTHER
X A ;V"SE_NTENCIT\'I'G_ THEM To UNDERGO R.I. FOR 1 YEAR AND
[TO PAAY}F1NE'G.OF Rs.5oO/~ EACH, I.D. TO UNDERGO R.I.
A'r'«=.OR,___v1'!\/]TOiA\ETH FOR THE OFFENCE P/u/S201 R/w 34 OF
IPC.,VV'_ATHE SUBSTANTIVE SENTENCES ON BOTH THE
A ' COUNTS SHALL RUN CONCURRENTLY.
THIS APPEAL HAVING BEEN HEARD AND RESERVED
I FOR ORDERS AND COMING ON FOR PRONOUNCEMENT
OF JUDGEMENT THIS DAY SABHAHIT 3, DELIVERED
THE FOLLOWING:
JUDGMENT
This appeal is filed by the accused. and_d6--« being aggrieved by the judgementSoft'.co'n'vi,cti0n__:Via.nd sentence passed by the Court of._the Se»ssiVo,ns. Dakshina Kannada, Mangu'al«i.3,'gte.».VV 'Sessions Case No.35/2001 dated ;27m,zoagli0,,,,a 29.01.2005 respectively, have been convicted theisiiiogffeinceis Sections 302 and 201 and they have been sente=,:nced'_'l' for life and to pay a fine Thousand oniy) each and in defaultluofppaiyirneintof fine, to suffer further rigorous . gigmipérisionrnent forwthree months each for the offence Sections 302 read with Section 34 IPC and toi~und~eArgo rigorous imprisonment for one year and to paysia fine of Rs.500/- (Rupees Five Hundred only) and in default, to suffer further rigorous V. ._._imprisonment for one month for the offence punishable under Section 201 read with Section 34 IPC. Further, the Eearned Sessions Judge has ordered that the substantive We sentences on both the counts shall run concurrently,4:'7j'he period of detention already undergone by _ 3 and 6 was given set off against the ter_m~-o.Af':seVrit:en.ce .. imprisonment imposed on them.I__
2. It is the case pros2ecuVtio'n that there was enmity between'th'e-- a.ri:ujiA't«he merntiers of the family of Prabhakara of Naravi Village in B'Ve_'lvt4hé:afi*:i.gVad;yTalijil<,'.:_'in:Vrespect of Sy. Nos.25/7, 215/1 and years, the accused had ill and his family in connection It is the further case of theiprogsecution"that.'VPrabhakara Shetty was looking after
- ythecases other litigations on behalf of the :fa.mVi'l'yv..\f:.s,,_fl"hAe.1'-accused Nos.6 and 7 had ill will with Pir'a.bha__kara3'Shetty since he had cut and sold the trees in Sy. i\.io..f216/2 in respect of which accused Nos.6 and 7 claiming their right. Since Prabhakara Shetty was ..,..the main person who was looking after the family disputes against the accused persons, all the accused W24 conspired to commit murder of Prabhakara S,het_ty._V_as there was no other way to get rid of him.
3. It is the further case'. pr_os_ecut'ionuthat' the complainant ---- Balakrishn_a Sh"e_tty' is Prabhakara Shetty and he village, Belthangadi Taluk, 'along i1.is».i,,i'i*'n_othe'r Gulabi; brother -- Praiaphakaraw "F Sushanti;
brother--in«l\a%_w'¥}ri?ura;ndara"A:S'hettvV.'f'wife ~ Mamatha and two children' all doing agricultural married. He was doing agriculyltural V the complainant and members of 'famii'y.T On 13.09.2000, at about 10:30 . Et'he"c.o_mp|aViHna'nt went to Naravi town in his Jeep and Prabhakara Shetty was in the house at't.hfat time. At about :2 noon, when he had gone for attending the marriage lunch of his relative to
-._vF>e.ra.nje, he saw Prabhakara Shetty in the house serving .._food to the relatives and at about 3:00 p.m., he proceeded to return to Naravi. When the complainant asked his brother - Prabhakara Shetty as to whether he U33 would accompany him, his brother told him that he»._wo_uld come home after sometime. The complai_riant.'..'_v.i_a_s:.,i__ng_ Naravi town till 8 p.m. and thereafter, he to h_isv house. However, Pra b ha ka ra S hetty. ..haj»d to A house and he waited till late n_.ighté'ho'p"ing would return to the house. sometime, they had their meals.4_"'a«--s' was in the habit of cominglate andlat, to take meals in the house_':o'i":,:tl.i'e day morning, while house, at about 7:30 Pooiavry came in a Jeep and informyedi him Shetty was lying dead by the side ofuixiaravil' --~."Marodi Road and a motor cycle had a¢ls'o{'fa.['ii'en"l'near They went to the spot. The co_rnp'lai'niantV,"fo:':.;nd that his brother - Prabhakara Shetty was lyi_ng_Liniconscious with severe injuries on his head 'clothes, which he was wearing had blood stains l."'--,.an.dtmotor cycle bearing l\io.KA.19.E.7944 was lying at spot, where his brother was lying dead and he did not find any damage to the motor cycle. Since accused Nos.1 to 6 were inimical towards Prabhakara Shetty, W' complainant and other members of his fam.ii"'y_,:"'r.the complainant suspected that they must _ murder of Prabhakara Shetty and shifted~vhi..s'::rb0ch:/.-Aitjew complainant saw that there were trai.l.sn_of"--b|o.0d~- the southern side of the forest__ kacl'iav_r'oad, that his brother might have murdereudwhiife he was returning to the 7_2A!iccord'i-.n'g,l.yi,~ithe complainant went and lodged conjpJVa_intivenueQEg\i'ice Station on 14.09.2000 it Krishna Nayak, who was working' as into writing the oral complaint giver: by Balakrishna Shetty through P.C. N0.1785 E";»<,&P1 the same was signed by the co_mpila§i'n.avritjasj.-per Ex.P1(a) and he registered the said com_Vpla»_i.n~tinCrime No.63/2000 and prepared F.I.R., as per E$<,.l§5S6 and sent the same to the jurisdictional Court V"'_V'_AAandffc'0py of the F,I.R., to his superiors. On the same day 'R"*-'.fi_'V_a§ternoon at about 1:40 pm. since C.P.I., came, he handed over further investigation to the C.P.I. --- Prakash Hardi (PW.29). 3:
5. PW.29 --~ Prakash Hardi took overxfurther investigation in the matter after ver_i'fyi'n.gV..'.,:_:':t:h:e«_ investigation already conducted by PW.2_8~.~-Viflfirnerdiatelyl; 2 he secured the panchas and went tothee-s.oo.t"*a'n'd':~fou~~nd' that the dead body of Prabhakhara 'Shvetty side of Naravi -- Marodi roac'i§*..._'fVrlze»re injuries in the dead body of theflmflotor cycle bearing He prepared inquest and also seized the motori.cycil4_e;;M!l't' recorded the statement of Ra-gghurernf..gyr;ettye,._the elder brother of Prabhakara ShettyA,K__t'he spot was shown by the complvalgnant andhe oreioared the mahazar of the scene of ' 0VfVfence"i:as:'i'p.er There were marks of dragging the rnoiuzoi spot, where he found the dead body of Prarbhavkar.a.3Shetty and clothes found near the dead body hacl stains and they seized the same as per M.O. and 3. P.C. No.919 had taken the dead body of ..,.F5rabhakara Shetty for post mortem examination and produced the clothes and articles found on the body of the deceased and he seized the same under Ex.P5S as \ ui;;5.§ per M.O. No.5 - shirt, M.O. No.6 -- black pant antd:%:ir4_,o.
No.7 -- undergarment. He has recorded the _ the witnesses. He directed Balakrishna...".Shetty,..Athe». complainant to produce documents regavrdi.ng._.c'ivil'wdi-spate between the members of the.famil\;..of' Prab.l»'a'a!+;a:r_aV and the accused. He recorded of the witnesses on l l 3 5.1 _.:.4VF%:'.lVI\V'/":;w..">."9~«~'wV'ireceived credible informatiojnVtfiééitithle ':were-Vllhiding in Shirla forest and said forest and arrested Somanina! Harish Hegde (accused No.T?), Subbaiahhsthetty lfaccused No.3) and brought them t§)v-....Ehé"'ff6rest house and interrogated them hV.A'.s'l?if\l.29 recorded the voluntary statement of
-- Somanna Hegde as per Ex.P6O and accuse'd.:No.6 took them and showed the place where he
--..had..zconcea|ed his blood stained clothes. Accused No.3 -- ..._S§ubbaiah Shetty also gave voluntary statement: before him as per Ex.P61 stating that he had concealed wooden reaper and the blood stained clothes, which were worn 10 by him at the time of the incident in the forestvai5il_;'l"cthat he would take PW.29 to the place where-«'.,'lji~e..:_:h;a'd«_ concealed them and produce the same.
(Harish Hegde) volunteered to s_how,,4,the"'-pla.ce-. had concealed the blood stai_'nedé'cl_ot*hes, wearing at the time of accordingly, PW.29 recorded asxper E><.P62.
Thereafter, accused panchas and the investigs_atio:n:l:."Vofficer, Hegde (accused No.6) led.' the panchas and produced' colntained one blood stained shirt "at and the said articles were seized by in llthevlpresence of the panchas as per N.oAs.9..;ind léllltjinder E><.P32. Accused No.6, before le,ad'i::§;V,i"».t,h'eV%V'panchas and the investigation officer to the spot, wliere' he had concealed the weapon and the shirt, he hadealso led them to the place where the incident had V."V'-.,o'c.ci'j.rred. Thereafter, Subbaiah Shetty (accused No.3) the panchas and the investigation officer and took out a bundle, which he had concealed in the bush and it contained shirt and one wooden reaper and the shirt had we 11 blood stains. PW.29 seized the same under Ex.P33ra:sn.per M.O. Nos.1O and 12. Thereafter, .
(accused No.7) led the panchas to the fogresttja~nd"l~shoAwe:d 'v the place where he had concealed his,svhii=1:."QM-,{);'::§\io;V:1v{$i and the same was seized ucrrd-er ma'iia.i:ar - E){;l?a3,-5}, 5.2 PW.29 hi,VsA,l"s'ta'ff"'to search for the other accused and = _2s2V.:d.§.2Ofj'$:,';_~"i;alitha Shetty (accused PW.29 received information'.thiatllaccu'sed~':,'i;'foV{'¢l'°was'hiding in the forest in forest along with a woman"co'nstabl_.§»':.lj,§.Vlv'a_n'aj'a and searched for accused No.4~.and 'arrested 'her: at about 1:30 pm. PW.29 . recorded thevolunltairy statement of accused No.4 as per she volunteered to produce the Torch light, had been used by the accused for comn*lis.siion of the offence and to show the place where she had concealed the same. Thereafter, accused No.4, the investigation officer and panchas to the spot, V' where Torch light had been concealed and the same was seized as per M.O. No.18 under the mahazar -- E><.PSO 14 147, 148, 341, 302, 4o4, 201 read with SectioVnV'r'J,E¥£9V_ of IPC. The case was committed to the Sessions"Cio,uv--rt__V5a:n:d« _ numbered as Sessions Case No.35/2001,.~»---i..A'_:"::~.V
7. The Eearned Ses.sions7J_udge Ea»~ahjsed_ ch]arge_7 against the accused of havin'g*co'r'n_rnitted offences for which the charge~she.et all accused pieaded not guifty and However, during tgriaifaccuseZdV'ii!'o;'1"'died. in _'in'order to bring home the guilt PWs.1 to 30 and got marked docunjents -9' 525.91 to P73. Exs.D1 to D6 were . V. got rna'rri:e'dA..for deteinéce in the evidence of PWs.3, 4, 8, 12 postaf acknowfedgement served to PS1, VAe--n_oorv~Poiii'ce Station was got marked for the defence in the evidence of PW.28. M.O. Nos.1 to 18(b) were got
-.,rn--ar.i<'ed. The accused did not iead any oraf evidence. defence of the accused is one of deniai.
he 15
9. The learned Sessions Judge, after consri..deri_ng the contentions of the learned Public Prosecu't'oi€;fgjr__V5th:e«_ State and the learned counsel for the accl.;s--e..d'::Nos:;:1«to v by judgement dated 27.01;_2OQ.54_.Lfjv h.el.d._' prosecution has proved beyond Vreasonaisie accused Nos.2, 3 and 6 offences punishable under Sections Section 34 IPC., and sentenced.ti':ieni._esg r'e'ferAreid--"V'to above. The learned Nos.4, 5 and 7 of the cofnrnitted the offences 148, 341, 302, 201, 109 re?ad_:"'iPc. The period of detention already und'e.rgone accused Nos.2, 3 and 6 was given set"«off'*ag"ainst thlefléterm of sentence of imprisonment Being aggrieved by the said jud-genfiventfalccused l\los.2, 3 and 6 have preferred this appeE§Lg"':.
10. We have heard the learned counsel appearing for the appellants and the learned State Public Prosecutor appearing for the State.
tgre 16
11. Having regard to the contentions the learned counsel appearing for the partie_sp.theV--'po.ih't5T'~- that arise for determination in thismappeal_--'are ftolloiws:-.--_ t"
1. Whether the fin'r;i_ii*:.g. of theatrical the appellants herein - 6 have committed the 2.pu.nisVh:a:'b'ieunder Sections 302 and 2.01 IPC., and the sentence justified or calls for :._interfe'r"ence'€.n this~.a_ppe'al ? w --2._ What 'order'?
V"._'We..Va--nvswerfi"'t.he above points for determination as fol lei/'vs : -4 j i~'or§sn_t No.1 : The finding of the trial Court and the sentence passed thereon are not justified and are liable to be set aside and the appellants herein -- accused Nos.2, 3 and 6 are entitled to be acquitted of the charge of having 17 committed the offences punishable Sections 302 and 201 read with 34 of IPC.
Point No.2 : as per the final order fo'rit~liiVe roiioiiijng;it ij7"
eeasl
12. points are considered 4.te..geiih_e'r since- they are interconnected and to avoid repeti~tiVo'n.1'«:.;:__ _ ., S
13."~-__"The""le'arried_.»s."counsel appearing for the appeéllaiats subrnittedyithat the finding of the trial Court thaxt thv'e:Apro:se,cution has proved beyond reasonable doubt l'"that_«the7a~p_pe;'|'l'a.nts herein have committed the offences pun"i'sha.bi.e'u'nder Sections 302 and 201 read with Section V. ,.::34.rs_.of VI'F'C., is erroneous as it is not based upon the "mlateeriai on record. The evidence adduced by the it "prosecution has not been properly appreciated by the trial Court. In the absence of any person, who has witnessed ,3) M I' 18 the incident, the prosecution is relying up,.on_:'t.t_Vhe circumstantial evidence to bring home the appellants ~ accused Nos.2, 3 and 6 in the ..p':resenti--cas:e " = and the circumstances have not beencdnt:lu'sively'"provevdi and the circumstances do not-i__consfiitute a compiitete cfhain to prove the guilt of the appe'l4I'ants.u--. acc'us_ed':NoV;:2, 3 and 6 beyond reasonabletcloubith. counsel has taken us through by the prosecution" the trial; oral evidence of PWs.1 documents - Exs.P1 to submitted that the learned trial Judge appreciated the evidence adduced by.VthVeVVprose'cution. When accused Nos.4, S and . 7' h'aVve7beenacquitted of the same charges on the basis tlfieofsarne..-circumstances, which according to the leAa--rned__v'tria7i' fiiudge, has been proved, the judgement of rgognviction and sentence passed against the appellants A -.(accu5sed No.2, 3 and 6) is also liable to be set aside. learned counsel submitted that the circumstances relied upon by the prosecution to bring home the guilt of the accused -- appellants are not different from the L 19 circumstances relied upon in respect of accused ,I$lo-std, 5 and 7 and wherefore, the appellants shouldIilhavei--.cbVeen"'_ acquitted by the trial Court along with acc--use:d:l\los;4i, '*~ and 7. The iearned cousnel submitted ulthiatl "whei~i,,__tviVorA views are possible to be arrived at._o"n circumstantial evidence theprosfecuftion, the view that is favourablefto be followed so as to give benefit In support of his contengtildlifiiiit.hebasi, decision of the Hon' ble ':PoH}§;L§'A MOTYA VALVI Vs. sTATE_ioViV=i_i (Aid 1979 SUPREME COURT 1949),viwherein preme Court has laid down the jlburdenléilo.f_p'roof.'V'reguired to be discharged by the . it ""'pro'seciition for the offence of murder based upon ,...tl1we evidence in para 5 of the judgement as fo llows ;_ ~' ' ,' it It is common ground that there is no it "direct evidence implicating the appeiiant. Prosecution case rests on circumstantial evidence. As the case depends on circumstantial evidence, at the outset the well« established principles governing the \}'i6'* 20 appreciation of evidence In a case dependently. upon circumstantial evidence may be b9.!f_Fi'€VV"in:"~;. mind. Briefly, the principles are that circumstance relied upon by the :pro'::e'cu'tion'.V must be established by icogenbty;
reliabie evidence; that the :'ci__rc'Limstanc_eb"r.el'ield:.4."-~ it upon must be such as._V:ca.nnot"be_ expi'ain':e'd"'oi1"j any hypothesis except oflth-elpaccufsed. In other words,':"th_e must be of an incrlminatlnd 'ic_hara.,cite'r. proved circumstances must :provit:1.eV' I c..omplete chain no imié tfillstljcihellllifilissiino and they mustujnedu'ivo.cé'll'ycylbpoiiritu"';o" the guilt of the anlymhypothesis consistent witl'1 this inn'O!;en,cee'...TfV"" __ He has also reliecl uponthe observations made by the Ho':n5"*~b§_'e: Supreme"""Court in the said judgement, which reads as f'o4l'li'ovv"s: --
bi -7(5) Evidence Act (1872), 5.3 --» _ '.Ci.r:cumstantial evidence -- Murder case -- V Deceased last seen in company of two accused A ~--- Whether incriminating circumstance against only one accused Cr. A. No. 1329 of 1971 (Born), Reversed. (Penal Code (1860), S. 302). xigfi 21 Ordinarily, when a person is accused.VV_e.f_:'i~.tg committing murder of another, the fac«t---.téha_ti'l'.j' the accused and the deceased were last alive in company of each o__the.r_and of the accused to satisfactori|y_-A-accofunzt-..fo-r't'h:e..__ disappearance of the gdeceasedlis consiltlered a 3 circumstance of an incrimingating 'ch'a'ra_"cjtea'ri.,g4'Vl3ut where two accused wgeref.iast,gAseen=with,i§the deceased and tln_ot';gh*A_V_bcgthl" 'siijauidiggexpiain the disappearance on-e'.'of them is acquitt_ed«::,:U~f_ the and no appeal! 'iagalilnst --.l1is;vvacq'u'iVttal, the very circuinst.ancetdecelased was last seen :with"th'em °i;:4éas4es.i'_'to bewof an incriminating cha'i'acter'a~ri'd.%th.e:'ether accused cannot also be convictevd Vsolely"ori}~that basis. Cr. A. No. 1329 ;' of..l9711'-»(E}Vom), VReversed."
Vle_airneTd:.V'counsel has also relied upon the observation mglahdgel ble Supreme Court in the said the circumstance of blood stains found on tihe..;.ihoti. worn by the accused is not by itself sufficient to fpiave the offence of murder alleged against the accused. it has also relied upon the decision of the Hon'ble Supreme Court in the case of NARENDRA SINGH AND 22 ANOTHER VS. STATE OF MADHYA PRADESH ((2004 SAR - (CRIMINAL) 597), wherein the Hon'b|e Supremegcourt has laid down as f0Ei0ws:--
"29. It is now wei|--settEed that be'nefitjVr9.o"f""'h doubt beionged to the acc.use.d.
trite that suspicion, howe:v_er,.:-Mgraviegimay"bV(g.,,__"=::;_s cannot take piece of a::}_roof.i"1".t"i's equVai'-iyliyvveii-5'; settled that there is a"'-v.I:o"n§i distante..'tietiAi'ee'n'V 'may be' and 'must be'..-------
30. It is also weiE'4i<no'wri»V:tha'tsav.eve'n.Vin a case where a plea of-alvibijis=raiseol. the burden of proof ggo'n_:"'p.r_osecution. Presumption of ini'i9CeVnce.V_.iAsA:-i.a'-ht:-snari" right. Such presumption V_ gets"str'ongerAiw»h'e--n a judgment of acquittai is passed."'"Fhi,s____Court in a number of decisions setvout the legai principie for reversing the of acquittai by a higher Court. (See ohaiigm' vs. State of M.P. (1996) 10 sec 79, xliifalvhabir Singh vs. State of Haryana, (.2001) 7 148 and Shailendra Pratap 8: Am. vs. State of u..9. (2003) 1 sec 751), which had not been adhered to by the High Court.
31. The entire case is based on circumstantial evidence. Pieces of circumstances, however, C22;
23 strong may be, it is well--known that all the chain must be proved. In this case:.~a«.vi,ta_ii' link in the chain, viz., possibility"-«(ofsrthvelti appellant No. 1 committing_,the__offe'nce,"c.!'psir'ig4_:;_ the door and then sneaking out3of"--.th-e from one of the two places "had ,Vr;¢.t,.Vl:ieen:'3 3 proved by the prosecution..f' The learned counsel also theldecision of the Her,' pie Supremeflfiourt DASARI SIVA PRASAD m:gDs;tt,,;,,g.,'Wlsmucismosscuroa, HIGH courrr of' SAR (Criminal)801), in that existence of strong suspicior:__ cannot be the basis of conviction going""by"standard of proof required in a . lAl"CrirniVnalfcajse,,. He also relied upon the decision of the Court in the case of HARENDRA NARAIl\§_v'SIlKli3H Vs. STATE or BIHAR (AIR 1991 SUPREME wherein it is observed as follows:
' °''(s) Penal Code (1860), s.3oo - Charge of murder - Case resting on circumstantial evidence -- Appreciation of evidence ~-- Two views possible, one pointing to guilt and try?
24 another to innocence of accused ---~ Court should adopt latter view.
Evidence Act (1872),_s..3__ There is a basic V4".rul'e of:t.".c.rAinii"na"ljA."
jurisprudence that if Vtvx:_:5g*~~.,_!;yews. are' p{3:3siVblV»e"'onV' the evidence adduceucl'iv.__i'n_» a'"~c,aAse.:§ of circumstantial 'evi%den-ce,§v..Ao'ne_=,bo.inting to the guilt of the accuse_d't'V'anfd ,.t.rtjQn.',j"_other to his innocence!' should the latter vi ew_ tfavo the a_ccused.i w'V'V The liearnediiivigoulnfslelf'fu:rther'._Ws'ubmitted that the extra- judicial,c'o4nfess:ionf~,by«._:the'.--accused before PW.5 is not reliable as"-th_e .prosevcut'i'on has failed to prove that the pe-ii_sion»_A--.cto ~v.whorn'c'onf'ession made was not shown to be onerwho"coua:l:d':..protect the accused against harassment and wherefore, the said confession is not of any evidentiary value as laid down by the Hon' ble Supreme in MAKHAN SINGH Vs. STATE OF PUNJAB (AIR 12988 sc 1705).
viii :
V 27 accused as there is no evidence of any witness,_<<"w_ho witnessed the incident:
1. Motive, which is sought to:-bed} the evidence of PWs.J:a4nd
2. Last seen 'a"cc.usedi'i\i'osr;'3, 6 and 4 quarreiiintj vfith' (the deceased)';
3. €AVcciiiSed xidead body of motor cycie of the deC,_eased,V.V_vvhiAch:'"i«s':L"so.ught to be proved from 3 ~ We eviidswicei' of."PVV's.2 , 3 and 12.
it"'~<i:fj.iS>ttVra:}judiciai confession made by accused and 7 before PW.4 and extra judiciai co.ri'fession made by accused Nos.1, 2 and 5 it Fibefore PW.5.
5. Recovery of MD. No.9 --- biood stained sickie and MD. No.13 --- blood stained shirt vi» 28 under the mahazar - Ex.P32 on the basis"
the voluntary statement given by accused"*?loV;~o__!:
before PW.29 as per Ex.P6O and it M.O. No.12 -- blood stained No.10 -- blood staVi.ne_d reapler underri mahazar - Ex.P33 voluntary stategfignt Vl\lo.3 before PVll.'29 asggpet and the the vvlerelabsconding and the and serology report to bring the The question as to whether th'e..:V'said circumstances relied upon by the prosecu"tion..phave been conclusively proved to follow the the chain to bring home the guilt of the accused l\l:ojs.A2, 3 and 6 has to be considered in the light ofgthe' principles laid down by the Hon' ble Supreme Court A' -,.as..réFerred to above.
17. The first circumstance upon which the prosecution is relying upon to bring home the guilt of the be 29 accused is motive. It is the case of the prosecuti.oan_4""that there was dispute between the compl_a'i'n'an;__'._j:an_;fl~~.M Prabhakara Shetty and members of accused and Prabhakara Shetty j;reupre,se.nt*i»ng,_'_Vthis,' family members, includVi.r.g_ thVe_v"'comp»Eaina'nt _:;and wherefore, the accused w"a'n.ted_V with Prabhakara Shetty.
18. PfW.hi.,,l.i"as.v:tlei§9sed.:ifl:flhi's-e>tamination--in~chief that Bora land in Sy. No.25 as a Seetha Bai. When he was unable to said land and pay the gem' (rent), Seetha:v"Ba~i.v"galiethe land to his father on chalgeni b_asis:'. The" said laflndéin Sy. No.25 totally measured 30 hirnslelf and his father were cultivating the said land asV_,chaE'geni tenants. Thereafter, Booba Shetty came tothe 'said land for work and after coming into force of if :l.l'{arnatai<a Land Reforms Act, 1974, Booba Shetty __f._iled a declaration seeking occupancy right in respect of 10 Acres of land before the Land Tribunal. PW.1 has further deposed that the Land Tribunal passed an order in we 30 favour of his mother as at that time, his father_ih_ad expired. Booba Shetty was conferred OCCtJpE'i_!;'l'(':')'i'«'.."iffi.'.._',I'._}:'lVt: M respect of 1 Acre 65 Cents by the Land _Tr.ébAu':naVl';A--l..: Being"
aggrieved by the same, Boobaigshetgtby. lfiilged.' before this Court and the order of'thve"Land5fr§iibunal'_T;w'als stayed and final order was pas's.eo' syetting :as'iVde':the order of the Land Tribunal rentiittied to the land Tribunal for freS»l'1....<.Z.<§_l"-'SidjéfaVtio"i'ii..'Eri5..';--¢'84. PW.1 has further deposed':A:rthat.vin Tribunal passed the same filed an appeal before the time, name of his motherfhgas the record of rights. He has further deposed that iheénriade an application to the Forest ' DVepa'rt3r%ienlt...seeking")for permission to cut the trees and aVc.co'r'ding..l.y,'permission was granted and he cut the trees. However'; Sloimanna Hegde (accused No.6) and Harish ljiegde'v.(accused No.7) objected to the said permission if gracontlending that they had right in the said property and _,,_permission could not be granted. Booba Shetty is the 6' father of accused Nos}. and 2. It is further averred that the sister of Somanna Hegde (accused No.6) had Lfiai 31 obtained stay of the order obtained by the compiiaiinawnt for cutting the trees. The said stay order""'wa;f.'._'__ia'te:r»~.M vacated and therefore, enmity had dev_e.!oo_eidVVbetween' the accused and members complainant including Prabhaakaraé"S_hetty. got marked the order passed Land' Ex.P2 and the order passediby dated 05.04.1999 subject toprofor, it
19. téfleiitcited in the cross-
exami,natVio_n his evidence that there was envtmigty and the members of the famiiy of t'he~.:Vc0'mp|aina'nt incfuding Prabhakara Shetty. ' it Ail""th'e*fitig'Vaitions évvere fooked after by Prabhakara Shetty, In the cross-examination of PW.1, he has,devniedfllthe suggestion that Prabhakara Shetty was u"""«._V"'*doing"iliegal timber business by cutting and removing
-..tre.es5in the Government fand. PW.1 has afso denied the ..._suggestion that his brother - Prabhakara Shetty, with an intention to cheat Somanna Hegde (accused No.6) and Borga Shetty had obtained an order by coliuding with the 32 members of the Land Tribunal. Further, the facts el..i_cited in the cross--examination of PW.1 that Prabha__k'a'ra«.'.S«b:eti:y _ was himself looking after all the litigations-Voh.,b'eha4lf the members of his family agaiAnst:.._the clearly reiterate the enmityand motixv/e"for co'mmi_ssio:n of the offence as alleged by the '
20. The_prosecu_tivon.VisV._Vre:lyi"n§i' the evidence of PW.-4 -- stated that the relationshibyyybeétwlehen and his brother -- PrabhaVlta'ra_' in view of the land dispute} Jain has also spoken about the enmity llbetweein accused and Prabhakara Shetty. He {dé'p:os'ed_ that llll l3rabhakara Shetty had borrowed Finance Institution. But, he has flatly deln-Zed _vabou'tl the alleged ill--will and enmity between 1"'"--__V"'hAimsel'f-alhd Prabhakara Shetty. It is elicited in the cross- i:.l'exa.m:ination of PW.9 --~ Kittanna Achari that there was ...enmity between Prabhakara Shetty, the deceased and it Somanna Hegde (accused No.6). PW.1O --- Lawrence D' souza has deposed in his examination-in--chief that the W 33 deceased Prabhakara Shetty and SomannaVV.*r9ie'gde (accused No.6) were not in talking terms due _t;o"la.'r._cl'.__e;,ri;_4;l' water disputes between them. PW.12 - E3ho;ia':%i,eg.de._has"
deposed in his e><amination-in-chief 't°he':4.r'e--!:at'ion,sh.ipi' between the accused an.o'.,_'Prafb'haE<ara deceased was not cordial due
21. Therefore,AAhavirigi.v'V.,rgefga*'rdV,.'to.'j,_ti'1e above said evidence, has been able to prove there was enmity
--ia'nxci___the_"'vmembers of the family of the land and cutting of trees.
However, me.re*proo'f of motive by itself would not . fA""C0nicllusivelyii.prove""the guilt of the accused as it is well t~--.sVettlefd~.lti1atmotive is always a double edged weapon. It isa~l__so tvhecase of the accused that due to enmity, a false .u""--._VVV"'::gase hasbeen foisted against them on suspicion and they
-.hVa--veu5not committed any offence.
22. The next circumstance relied upon by the prosecution to bring home the guilt of the accused is the 34 circumstance that accused Nos.3, 6 and 4 were last seen quarrelling with Prabhakara Shetty, the deceasedggonithe date of the incident at about 8 pm., and the same, the prosecution has examined V
23. PW.16 ---- Rajavarma Jalin"ha_s'.,de;,eos'ed w:in--7his*; examination--in--chief on 13V.09.2»AO'Q(3:}-_V_Ahe Naravi town for getting his andhlbyg he i' had his hair cut, itgwas 'Vite is'«aV"re'sident of Arasikatti and the last from:'Na.ravli_'.«vtVo'_~Arasikatte was at 8 ln%issed'_'Vthe last Bus. PW.16 has further deposed.__t"'nat he met Vijaya Kumar (not exa_m.'nged)"" and-Vijaykumar offered to take him to his ho'use3:,,,"iQnV'l'inQtor When they were proceeding on :thieVAmvo:tovrcycle at about 9:45 p.rn., near Kammode (2th-adayi; motor cycle belonging to Prabhakara Shetty was Aglyigngxracross the road and accused No.6 --~ Somanna " --..V_l*i--egude, Lalitha Shetty - accused No.4, Subbaiah Shetty - = ...accused No.3 were talking with Prabhakara Shetty in loud voice. PW.16 has deposed that himself and Vijaya Kumar saw the accused persons in the head light of the \,€3-,5 35 motor cycle and the torch light. However, since they were often quarrelling among themselves, he went,,tro_:thVe house of Vijaya Kumar and stayed in the _ Kumar and on the next day, he went «an:l_:"
from there, he went to Belthangacly. .' returned to his house and at -that time, hes.ri'e'a,rn,t_V.Vaolout the death of Prabhakara 'p'e.rso:ns:vi:eferred to by him as Somanna..'_.'Hegtl:e eiubbaiah Shetty (accused,No.3),..a.n:d:i_a'lvi.tii.a' No.4) are among int V' ._ -the cross~examination of PW.16 he 'Baddi Raja' in his home town, " It is nottrue to say that the road leading to the house _o'fg\.'-ija--ya Kumar from Naravi is a tar road and to "'g_o"to« i\l'a«ra_v,_i f,r"o"rn the house of Vijaya Kumar, one has to go throuighi 'l5anaru road. He has admitted that the house ,::o.'«\_/_ijay"a Kumar can be reached by going on Naravi "I-larodi road and the house of Vijaya Kumar is at a "distance of 4 Kilometers from the tar road. It is further elicited in his cross--~examination that when the Police 36 enquired him, he does not remember as to whether he had stated before the Police that he had gone to i\tf'a'ravi town for getting his hair cut. He had his Jaikar Bhandari Hair Cutting Salon run by_th'e'~-bgrotheér or PW.4 -Sudhal<ar Bhandari. He dtoesitntot; whether he had stated before thet'Police that. wa'st.i'ntVcV Naravi town on 13.09.2000 btetwjeen 7 'p;.n*i;-tt) §1p.ii1. It is further elicited that:'tthere'At.lts:_tteleoihone favcilitwy in the house of Vijaya l<umarVanl'd._Vwl.hen:l .ir7i the house of Vijaya Kumar; ttieclithclid hotifeel 'jithforifning in the house of the quarrel that took place between Vl?rabh'al<_.aita'--E§V_h'et'ty"'and the accused persons and aboiit~~fall of motor' cfclevon the road. He has denied the su"g'ges't'ion" that hlemhtas stated before the Police as per ufiewhad been to Belthangadi as there was urgentV__'vwor!9<.Al It is further elicited that on 15.09.2000, Balakrisoina Shetty (PW.1) took him to the Police, who
-..wa.s...tA'in the Inspection Bungalow at Naravi. Balakrishna ..._Shetty, the complainant did not call him to lodge the complaint. He has denied the suggestion that he has not at all gone to the house of Vijaya Kumar and has not 37 seen accused Nos.3, 6 and 4 quarreiiing with Prai3xh'a'i'"<a_Vra Shetty. He has denied the suggestion Prabhakara Shetty, Vijaya Kumar and Ba|_a.!<rish.na'A--f.Sh.ett\[" «. were good friends.
25. It is clear from that according to him, and 4 quarreiiing withV'Prabhai_<:a_ra on the motor has not been examinedf in the cross-
exami._:natio_'n cfffvefavriy show that though he had " 6 and 4 quarreiiing with Prah.hakara""S.hAett'y and "the motor cycie of Prabhakara . .,._,ghuettyi'-'wasaiying across the road, he did not feel iike to the reiatives of Prabhakara Shetty when h'e.Vf'stayed in the house of Vijaya Kumar on f.u""--__V:"*13T,O9:2.G:0O. Even on the next day, when he went to his A at Arasikatte and thereafter, to Beithangady, he not disciose about the fact of accused Nos.3, 6 and 4 quarreliing with Prabhakara Shetty and oniy after he returned to his house at Arasikatte on 15.09.2000, he 38 learnt about the death of Prabhakara Shetty. He hasjalgso denied that he has given statement as per that due to urgent work, he went to Beltha.ng:ady:'A-0.and had not informed the Police before seeing accused Nos.3, 6 quaVrr*eVlli.':r1€J. jwiltiz Prabhakara Shetty during The evidence of PW.16 cannot atiallgl betruthful and reliable so as t0'instill'AVv_{;cji'lfiCi.'i.i3Vl$|0€ to accept his evidence': of Vljaya Kumar, the best person to corrolaldorate _o._i"VVVVV'PVW.16 as according to PW.16;'wh'ile "inotor cycle of Vijaya Kumar, he {saw i\.loslv3, 6 and 4 quarrelling with A PVra'bA:ha'-kiaraShettvlmand motor cycle of Prabhakar Shetty the road. The trial Court has proiceed'edif~oAn the basis that the evidence of PW.16 proves-...0beyond reasonable doubt that he had seen u"--..a'ccused Nos.3, 6 and 4 quarrelling with Prabhakara Vb ....S-Béhetty during the night of 13.09.2000 and while arriving at the said finding, the above said facts elicited in the cross--examination of PW.16 and non-examination of \,%/w 39 Vijaya Kumar has not been considered by the triau|Vi'.C_,4':'oLJ_Vrt and therefore, the prosecution has failed circumstance that accused Nos.3, 6 and 4.we_re.,lVast seen"
by PW.16 quarrelling with Prabhlakara'ASh'ett'y_d--uringfltheit night of 13.09.2000 at about 3:45
26. The the prosecution is relying guilt of the accused is the to have been made by and before PW.4 and the extra toiilhave been made before PW. 5 a_c'cusedV_'l\io's--. "ar'id 5.
2327; PM/.4 eméudhakar Bhandari has deposed in his
-..eVxa.rriinati..onv§i'.n£é:hief that he knows the accused in this cahseg. v_'.-i~ief.~'i<Anew Prabhakara Shetty and his brother 30"""'.__V"Balakrish'ha Shetty (PW.1). There was enmity between accused and the family members of Prabhakara _,VS_hetty including Balakrishna Shetty. He learnt about the 0' death of Prabhakara Shetty on 14.09.2000 at about 8:30 a.m. and he went to the spot and he saw the motor cycle is 40 of Prabhakara Shetty, which had fallen and he also saw the dead body of Prabhakara Shetty and he went to Naravi town. About two days after he saw the deadihfbody of Prabhakara Shetty, he had gone to Shirla and ' 9:30 p.m., when he was returningarwfrom .VVi\la:raV'i, town, at a distance of 1 furlong flrovmttthe saw accused No.6 - Soman,n'a.,_%Heo.é£e_, 'accu:se..d""'i\lo';:7 - " 6 Harish Hegde and the,son~in,«--l--aw-of"-Eafoobtal"Shetty. PW.4 has deposed that he to:'reco|'lect the name of the son-in--law:"o_f ifioovbaw, Sh«etty,7 however, he has identified Court as Accused No.3 -
Subbaiflah 'Shetty, Hegde -- accused No.6 told himvthat "na"d committed a mistake and when he . asked toryywhatvtttwlas the mistake committed by them, there was enmity between himself and ¥5ra_bha_}<arai'~~'$hetty and they had caused the murder of ,Prabhakara Shetty. When PW.-4 enquired accused No.6 the details, he told him that they were hiding near V. .._.l<emmadeda Chedavi and while Prabhakara Shetty was going in a motor cycle, they intervened and stopped him and assaulted him with rods and murdered him and ya 41 thereafter, they took the motor cycle and the deaddiody of Prabhakara Shetty into the forest and M PW.4 has deposed that when the accused_.hio..'6:'wsought, his help, he informed him that!"they§3h'ou'ld' before the Police and on the day wVh.en"accu,sed'. him, he had beard.
28. It isgeliciteidfl of PW.-ti that it is ::th'at»--.sromanna Hegde u accused No.7 and {\iou.é'Vhave never met him at any " has never made any confessionlubeforefhirri having committed the murder . V. and heis depvosing falsely. Police had camped at his ,g}ri,:age[jauntf,7.lo9.2ooo after the death of Prabhakara Shetty-.,_*' 'H..ei'.v'runs a hair cutting salon in Naravi town and his house is at a distance of I K.M. from the said shop. brother - 3aikara Bhahdari also owns a hair cutting ..,_saion shop Jaikara Bhandari's wife is the daughter of aunt of Prabhakara Shetty. He has denied the suggestion that he knew about the enmity between .compiaiitnan.:.
42 Prabhakara Shetty and the accused. It is further elicited that at the time of death of Prabhakara Shetty. his relationship with Prabhakara Shetty, the decease~tff"--~a'i'1.d Balakrishna Shetty - PW.1 was cordsai;iandifwii-.§'i~...'it Balakrishna Shetty had come to his' shop.'_on'vt'hre.,'ne'xt.:jdai,n in i.e., on 15.04.2010 at 9:00 a.m.*,. hétdid to who could have murdere§"'~s!.3_rabh'algarau it is " it further elicited that on the psa-id"jda'y..,_ Balakrishtnia Shetty had come to the diesel' tos2.Vhisishop to get filled diesel to hisvJeep_an::i'VV'at'tha_t"time,VV-"rnet Balakrishna Shetty. verify as to whether the said Jeep biefonged' Shetty. He has denied the suggestionld'thaat'.°he" deposing falsely to help the «.2.49~..:4..yV'P%.'\1'.5 -- Jayachandra Rai has deposed in his it 'e.V$<aVmivnationéihnechief that on 27.09.2000 at about 7 p.m., Q when he was returning to his house after finishing coolie 2 iwio-2:1; at Sulekeri, on the pathway in the forest, he met Aiffiunbdar Shetty - accused No.1, Vijaya Shetty -- accused V mHNo.2 and Babu Shetty - accused No.5. They called him Wag 43 by the side of the road and told him that he wvasttheir well--wisher and they wanted to confess before"h--ii_n'._:a7rid_ needed his help. PW.5 has further deposed--tthatvaccused"
Nos.1, 2 and 5 told him that troubling them with respectto the"d.i's'putes.»i'n' of the land and that they had Shetty by assaulting him Vlwooxden_reao'erAfland that they had thrown theA__dea.d cycle of Prabhakara at Police were in search of a way to them and in Tulu language. He informed '"2 and 5 that they had committed a vwrotng they should go and surrender . gt_heVVP'Q'|iCe' .....
A 30;' .vl'.}'tAlis elicited in the cross~examination of PW.5 hie-gtoes for coolie work, wherever it is available. He A had not gone to the Police Station at any time along with .._t.he accused. He had not gone to the Police Station it along with Prabhakara Shetty, the deceased at any time. He had not gone to the Poiice Station on behalf of any \,%3 44 person in connection with any criminal caseWas_i*._Va mediator. It is true that Vijaya @ Jaya Shetty"(«ac~c'us'e_d_ _ No.2) is having a shop in Moodabidre since» He did not see the dead body ofliérahhgakaéra 27.09.2000, he had goneg.to.4__the"hov_use of.V»t'iie.':priest of Temple at Sulekeri for cooiVileV.:._'_wo_rk does not remember the name;..gof. further elicited in his Across-exaimiwnatigcicn met Sundar Shetty of two furlongs from the He did not feel like goinggjanld the same to the Venur at a distance of 13 Kms.
from pisg housed." "vi-iellhas denied the suggestion that he is
- v,...,r,gi'a'ted*-"etc"i'i?il\/.1 --%iE§a|akrishna Shetty, the complainant also denied the suggestion that he has stated _l:iei°.o.Ir'el the Police as per Ex.D3 and that he is 30°"f"*dAeposing«:'falsely against the accused at the instance of A the. complainant.
31. It is clear on appreciation of the evidence of PW.4 that according to the prosecution, PW.4 is examined 4 to prove that accused N033, 6 and 7 have made confession before him about the commission of the offence of the murder of Prabhakara Shetty"'*--->and concealing of the dead body to screen offence. It is clear on appreciation of K "
PW.4 that even according to the:V'evid'en.ce._as' him in his examination-in~chief, he. met Sor:rtonria" Het_:j'de"--, (accused No.6), Harish Hegd"e.V:VV'('accused._¢_N'o.f?)fgnd son- in--|aw of Booba She'tty_, wholses-rinavme helis unable to remember and he has (Subbaiah Shetty) person_ in the Court and confession was ma'dee"befo::_eVhiAm:_'b~y':'S6manna 3-legde (accused No.6) thathlmself~.,Vand.°th'e other accused had committed a mi'stal€e" and narrated the incident. Therefore, even Vito'-the evidence of PW.4 as stated in his e§<'a_minvati.o.n§in--chief, it is clear that he did not know the name accused No.3 and he met accused i\ios.6 and 7 W.an.d.*it was accused No.6 alone, who narrated the incident =...--stating that they had committed the murder of Prabhakara Shetty and concealed his body to screen away from the offence and that they should be saved and F \j;d>i %%x 46 he has identified the other person who was presen't..:with accused Nos.6 and 7 as accused No.3 in this ca'se,..'w.hj:c.1' described as the son--in-law of Booba Shett\,t._:':vw.,V'R.Q:rt.her,"
from the facts elicited in the crossje§§a.m'i_nati'on"*of..__th.is, witness, it is clear that though acc'use'd confession before him about offence by himself and accused notvlnarrate the same to the Police Naravi and had camped It is also elicited in the at the time when he met who had come to the shop nearhyto' filled diesel for his Jeep and was p'rocVeed.i"ng."' to". lodge complaint, he did not ."'q,ue'stio5ni't him about' the suspect, who could have 'th"e.,:'offence. It is well settled that the extra judicial V_conffession is a weak piece of evidence and the lR"""--__V""same be considered only with the other circumstance A and cannot be the sole basis for conviction. On the basis l ..._o.f the same material evidence of PW.4, which is common it to accused Nos.3, 6 and 7 according to the trial Court, accused No.7 has been acquitted and accused i\ios.3 and "$5 47 6 have been convicted even though the confessviVon:"'"was made by accused No.6 aione. The evidence_;of oniy in respect of accused Nos.3, committed the offence. The triai:.»ACou.rt'Ai.ia°-5;iiroceededflonii the basis that nothing has been«V'eiic'ited .§n"--i. examination of PW.»-'1 to disbe'iv'i'e\:./je his ei/iden'c5e about the confession made and 7, which is cieariyA erroneou:sA.as'V__it:TwasTo'n.'iyaiaccused No.6, who made and another Derson, i:'t:iie"V"{jourt as accused No.3 was hthevother accused were not present.' "
332; is cieiar on appreciation of the evidence of been examined by the prosecution to prove t_.iiai:;C'on 27.09.2000 at about 7 p.m., accused land 5 made extrajudicial confession before him and fit is clear from the facts eiicited in the examination~ .,vin§--chief itseif that he met accused No.1 - Sundara Shetty, 0' accused No.2 -- Vijaya Shetty and accused No.5 -- Babu Shetty, whiie he was returning on the road in the forest j, 3* 5 48 and the accused Nos.1, 2 and 5 confessed before:.::'hin1. He does not state as to whether the accuse;j"N.ojs..§._,1,7 and 5 made joint confession or any_..Vone:".,,of.:::thenfi' confessed that he has committed thes,offe'nc'e,.'al.o'ngv..uwith the other accused. Accused 130.5 i's__'a'cquitte'd',,s'tribal Court has proceeded to rely theV'evi'de'nceff,of PW.5 only on the ground elicited in his cross--examinatio_n to i'i'isV,.'Ve'y;id'ence. On the basis of the PW.5, which is common toS"according to the trial .,r:j;'s___pbeelnmacquitted while accused No.2 has.__b"een'con:¥§i,ict'ed.,:"""Since accused No.1 has died during' the upe.n'dency."'ofTthe proceeding, the proceeding _ .,,_,ha'_'c,'*AabatedAagainystmaccused No.1. Therefore, if the ,P,\»",l.'..'~'5 is believed, it would be confession only of a.ccused.,fAf*ios.2 and 5. Further, the facts elicited in the uh""'--..V:"'crossaexamination of PW.S would clearly show that his ~.pVre--s.-ence at the spot, wherein accused Nos.1, 2 and 5 had ....met him itself is not probable as he has deposed in his examination--in-chief that confession was made by accused Nos.1, 2 and 5 while he was returning home in we 49 the forest at about 7 pm. on 27.09.2000 and it is elicited in his cross--examination that he started at 5 p.m.Vii-frosjn the house of the priest and Sundar Shetty (acCused~w'_i§l--o_.f.1i.}_j__'_ met him about two furlongs away from th~e"ho.us:e"Vof'-the:if '* .C said priest. He did not feel like7.__teIi_iin'g3the.'sai'd"'fa:ctAby confession by the accused Nos-.._1, 2Vand" 5Vtoj:thevi?,olViVc.é at the Venur Police Station, lladiistzancfe of 3.3 Kms. from his house. 0 J~.T..f"V:the'é.l3gol.Vigcie called him, he would not have stated.:'_befo.f§f.,g?'theilVgiiioiice about the confession 5 before him.
He that he has made statement as by the Poiice to the effect -that on since he had urgent work, he .""c.ou"i'd' not Qo__to theml1>o|ice Station and inform about the it is elicited that if Police had not inte4rrog__ateVd7 him, he would not have gone and stated the Police about the confession made before him. isfurther elicited that when the Police asked him as to ....why he did not report about the confession made by V accused Nos.1, 2 and 5 as soon as he came to know of the same, he replied stating that since he had urgent we 50 work, he could not inform the Police. Therefore, it is clear that the evidence of PW.5 is not truthful and reliable so as to bring home the confession said to have--,,'_b«ee--n'4 made by accused No.2 ~-- appellant accused No.5, who has been ac<;guti»tte,d. Therefore," on a._ if combined reading of the evidence, o:f.'_'l'?'Ns:4 clear that the accused, whollhave made__confe.ss'i~o'n~i3e'fore " ' them are different and,_.accord,i.nfj,"to the eviden,ce,..of PW.4, accused Nos.3, 6 and""'7'con--fe§sed'Before.Vhim that they had committed_:mu_rde'rVV'and';con.¢e_aie'd~,the dead body of PrabhakarafAS'h.ettyn9a%ndeécucording to PW.5, accused Nos.1, 2 and con,fessed'--l:.',i3e:fo«re"him that they had committed murlderyyyof4.Pi<ahbh'a"ka.r'a fshetty and concealed the dead lzaolclyf. h'ia~s,_.nevermcome in the evidence of PWs.4 and 5 Ithe--._othier:"accused, namely, accused No.6 did not state a_bou.t7' the presence of accused Nos.1, 2, 4 and 5 :"while making confession and he only made confession if =tVh'attA*'«himself and accused A3053, 6 and 7 had committed
-»-the offence. Similarly, the evidence of PW.S also shows that he has not stated that any confession was made about the presence of other accused i.e., accused Nos.2, \_§3/§ 51 3, 4, 5 , 6 and 7. Therefore, it is clear that the finding of the trial Court that the evidence of PWs.4 and that the accused have confessed before them?_:a'bo{.it~--:tjiife____"_ commission of the offence cannotmbe sus'ta*inedg'and'--gwe' '* V hold that the prosecution has :faile_Vd~.t--7o Ap_roAve' 'be:y..prida_i' reasonable doubt the extrajtidiciwal confesswioii'V:sa.i:d...toHhave been made by accused N033;-..:6-..and."7«.._aVnd'accused Nos.1,é 2 and 5 before'«--.l5'Ns.'é4 and""Sjvvvre'spectively for the above said reasons. V :fTifie .next-.cii~=cvums_tance relied upon by the prosecution is 'recolv'ery'~«..of"incriminating material on the basis' ofthelv-ogiuntary statement given by the appellants fi"heV'r"ein :acc_usedV""l§ios.2, 3 and 6. According to the VA.}"V:sc--'::used No.2 - Vijaya Shetty was arrested on"'4«29.09..-2000 and he gave voluntary statement as per Ex.P6.9"w--Lbefore PW.29 --~ Investigation officer and ifthereafter, led the panchas and produced the blood
-«stained shirt as per M.O. No.16 and blood stained reaper as per iVi.O. No.11. Accused No.3 --- Subbaiah Shetty was arrested on 16.09.2000 by PW.29 and he gave voluntary W 52 statement as per Ex.P61 and he led the investigation officer - PW.29 and PW.2O --~ pancha and produced the blood stained shirt -- M.O. No.12 and blood stained.,Vre:ep.Ver
--- M.O. No.10. Accused No.6 - Somanna arrested on 16.09.2000 by He_gai've]'..vo*luntVarv"
statement before PW.29 as Ey.,.P60...:a.nd4'leq..,,__tir¢oé investigation officer - PW.2i9-..._andV"pancha iand produced the blood stained and blood stained shirt --- M.O.V arid.'t-h'¢.v":'s~ame were seized under mahazarye Ex.Pv3w2V...'_ ' 3f4.__ " PW.2:9.-l..'t.}§,¢-~._g;jr1'\,'e'stigation officer has deposed in his--.evide'n<~:.e that .ond6.09.2000, he arrested accused NVos.a3g,,,"l:6V'i'and accused No.6 gave voluntary him as per E><.P60 volunteering to show the.__pla___r:e where he had concealed the blood stained shirt and tzhefbiood stained sickle. He has further deposed xi'-.,th~at'..'i"accused No.3 --- Subbaiah Shetty gave voluntary ....statement as per Ex.P61 stating that he had concealed the shirt, which was blood stained and the reaper piece in the forest and that he would show the same. PW.29 has 2 \ 53 further deposed that on 29.09.2000, he arrested accused No.2, who gave voluntary statement as per E>_§_.P69 stating that he would show the place where concealed the blood stained shirt and reaper. He has further deposed that._after" in voluntary statements of the ac:cusefcfi,'~"Vhe=.s'e:fitii'ed:V'l_i"*thAel--.g panchas and introduced them:'to the accuVs'e,d,"§._w"ho "had " it given the voluntary st;atemen.tsu:and"«toldhthem act as panchas and thereafter; Somarifna (accused No.6) led him and the"p_anch'as"inltovdtrhlie..VfoVres.t""a'nd took out a bundle, wh'_ic"hT_ha,dVVA:'been"'~con.cea|ed in a bush and it was found tihatthel said.','bt.i'n«d:,l'e"contained one blood stained sickle -glfld blood:'stainedvshirt and the same were seized perMM.O. Nos.9 and 13. PW.29 has also '---d:ep__osAed':'t«h'at.A'p.e:fore accused No.6 showing the said place, acAc'u.sed_v'No.iA.«:'6Ahad also shown them the spot at which the ;"'d.ead was moved and the said statement is marked to admissibility. PW.29 has further deposed that
-accused No.3 -- Subbaiah Shetty led him and the panchas V in the Jeep and asked them to stop the Jeep at a distance of 200 feet from the forest and took them into the forest U238 54 and took out one bundle, which contained bioodvVs't.a:ii'I.ed shirt and biood stained reaper and the same _ under the mahazar --~ Ex.P33 as per M.O._.N.oss;j1.V2"A--a:ndA respectively. PW.29 has further'. de.posed_tha't.'accused No.2 --- Vijaya Shetty, on,*th__e béa's_i_s' of we-:+yyA.v9'iunii:a'Ey f statement made by him as led him and the bioowd stained shirt as per M.Q. No.1_6_.a'nAwd reaper as per M.O. No.iy1i1f;.~;nayhomey Under the mahazarw.-E.XJ§.Sé.;.,_.__fi » .. .. . ".Acc'oVr_d'.ln'g.>ifid...fhe"'prosecution, I n respect of the recoy-e.ry ofuM..Q;"l§los.'11v and 16 under Ex.P52 made on . .°-thVe'i*basis ofaflthe vloiuéntary statement given by accused PWs.2O and 26 are the panchas. In res'pectV__vo'f.Vi't'he recovery of M.O. Nos.12 and 10 under 3u"'"'--__V"§Ax.P33urnade on the basis of the voluntary statement A giveniby accused No.3 as per Ex.P61, PWs.19 and 20 are panchas. In respect of the recovery of M.O. Nos.9 it and 13 under Ex.P32 made on the basis of the voluntary statement given by accused No.6 as per Ex.P60, the '],!'s'?'s we SS prosecution is relying upon the evidence of PWs.ui'9:4"'and 20 as panchas to corroborate the evidence of
36. PW.i9 has not supp:orte:d'Ajj.th'ep prosecution and he was treated as_hostile»'and_not_lJin'g has been elicited in his cross'§"ex_a'm_inati'o-nto"support the case of the prosecution4_'a.nd evidence is not reliable and the trial yVc¢u.;t'haTcs tightiyry 'held that the evidence of P:fW.'1;9-"is not reiiabl'e.._iVn*.pr'oof of recovery. 5337. H i'tiiaf,,20v:V€.rylhasRtsuppolrted the case of the prosecution' on'lw,:V_.6inf're_spye'c«t'"of recovery of MO. Nos.10 and 01-2 undei'..:Ex.vi§33."ma'de on the basis of the voluntary
-"~..r.,sta'teén1e'i:t given ifiymaccused No.3 as per Ex.P61 and has
-..n'o.i;.usupp-o%rted~.the case of the prosecution in respect of acci:.i_sed.-~3\io.s.A4, 6 and 7. PW.20 has deposed in his 3""'~.__V'examin»a_tion~in--chief that police had called him to Forest 3' y:."V'D'e--pat.i"tment's guest house at Naravi on 16.09.2000 at waiiout 1:30 pm. and at that time, accused No.6 ~ 3' Somanna Hegde, accused No.3 --~ Subbaiah Shetty and accused No.7 -- Harish Hegde were present and accused W39 56 No.3 led them to a distance of 2 Kms., on the Naravi:."r0ad and thereafter, he asked them to stop Kemmodu and all of them went by walk._.V__AEc:cused led them near a bush and coloured shirt and one wooden reapernas per".l.M..O.' N':C)..'3..V2 "d' and MD. No.10 respective|y'V""a:n"d the 'saVn'jie--"V-were seized under panchanama -- stated that the other place nor produced any he was treated hostile in It is elicited in his cross~.:eVr<ah'_Atirl:p.tiQm§V counsel that the place to whiv'ci1,_ "Subbaiah Shetty had taken therngwasut)y.Vth'e"'sid'e of Naravi -~ Panalu -- Marodi mud . road. iselicitedllllttzat the said road, which led to the vvo'f«V..I§3;'oof'Da--:~'Shetty, the uncle of Subbaiah Shetty and Pra-bhai_:'ara.3SAhetty was used by hundreds of persons. It iyspyfurther averred that the Pofice had taken his signature A' -..on».t.tiree to four documents and by the time, inquest was ....conducted, it was 4 p.m. ».
*3:
U?
57
38. PW.21 has supported the case of the prosecution only in respect of the voluntary statement given by accused No.4 -- Smt. Lalitha Shetty. However, he has stated that the other accused have V. any material and they were not present No.4 was present in the guest hoiisefi Hy_e"--,was.Atreated'as"'.
hostile and nothing has been elicited * examination by the learned Prvos-ecu~t0i: toisuwplport the case of the prose"cution..=""it...is 'elicited in his cross» examination by the signatures were =:_:Vaken" zagdovcuments - Exs.F>46 to 49 at a time. HeV_does' n_or--l:.'l<no'w:':Las" to who had written the said doctaments and does not know as to how much time was lltaken For plreparationliof the said panchanamas.
39.' evidence of PW.19 is also not helpful in R""'~..V:"'proyvinlgatihe recovery made on the basis of the voluntary 'statement of accused Nos.2, 3 and 6.
40. PW.26, according to the prosecution is a pancha for the recovery of MD. Nos.11 and 16 under the Leg;
58 mahazar - Ex.P52 on the basis of the vo.iu..n:ta_ry statement given by accused No.2 as per _ deposed that on 22.09.2000 at about 2:§3G».--Ap;m.';~:::PoAlice"
called him at Naravi Inspection Elpung-alofw'.'--.._}iit'th4at:ti_me,~é Accused No.1~ Sundara Shetty, Accused I':lo'.2_:.fV_V.VVij§a3ra Shetty and Accused No.5 ~ and the Police requested to the writing that had been done. to about the recoveryiv the voluntary 'L sundar Shetty and since _a_gainst accused No.1, it is unnecessaryto same. So far as accused No.2.» Jaya.' :'3.hetty concerned, he has deposed in his . .A""ex'a"min3'atio:nei_n~chie't'that 3aya Shetty led them to Naravi ..__p;us_Vsta.n:d_'anA'dasked them to go to the left side of the road to,.__a'distance of 2 Kms., and asked them to stop the ll"-..VVV"'JeeLp he showed the vacant place. Thereafter, accused No.2 - Jaya Shetty led them further on a mud pathway and he produced one shirt and wooden reaper as V per M.O. Nos.16 and 11 and the same were seized under the panchanama -~ Ex.PS2. It is elicited in the cross 'N/Q23 59 examination of PW.26 by the defence counsel tVhVatl'rt_he place where 3aya Shetty - accused No.2 took__t'hemf_*Visi _ same place to which Sundar Shetty --~ Babu Shetty - accused No.5 had iced ca4nnot.Vf9i!.i the distance between the place whe~r_e"accuse"dj_i\E:Qs.ijiand 5 took up the incriminating"material:'produced before them and the place led them. It is further elicited in his his signature was taken "a;rti_'cies'i'V.and":no mahazar was written at? tiigrtlher stated that his signatures packets containing the seizeda'n;j"i':.§;yadde:n'"reaper and document was written gAatlu"abVou't.c" p.m. He has denied the 'lV'"V--.5u§iGesti'ion"'that helmhlas signed all the documents at the asa me i'p.la"ce'; V . V V ~9§i1._.i' It is clear on appreciation of the evidence of it and aiso the evidence of PWs.19, 20 and 21 that .,,o_ri|y PW.26 has supported the case of the prosecution it regarding the recovery made on the basis of the statement given by accused No.2. He has stated that the 60 mahazar - Ex.P52 was not prepared at the spot, but, it was written Eater at a different place and PWs.l9, have not supported the recovery made on the__ba's'is.'_'0f _ voluntary statements of accused i\i0s.3 a_nd».6}:~.t:h'e.:other' appellants herein. Further, igb'...g'glve'a--r.'A.th*a't'ft.he~rf$AA inconsistency in the evidence ofl"PW.26b'fi;regarding recovery of lVl.O. Nos.11 to} PW.26, accused No.2 produce.d":"the3_V:shirt:'~a_n.d:=reaperl separately and according to PW.y2V9.,:._tho"V._§;Aa,rhi§"'weVre'*"contained in a bundle. it icrossmexamination of on the basis of the voluntary accused No.2 -- Jaya Shetty in para' 20. that-.aVll"'the'V' mzahazars were prepared between 2,_:b3r0' p".rh.:"toy_._6 p.m.i¢n 29.09.2000 and panchanama was I Vwrit'teghV.at.--:the place from where accused No.2 ~ .. Jaya S.h'etty'pr0duced the incriminating material, namely, l\io.'16. There is also contradiction between PWs.29 it '--and-=26 about the place at which panchanama was written PW.26 has stated that the panchanama was not written at the spot at which accused No.2 produced M.O. l\ios.11 and 16 and according to PW.29, panchanama was r' U2?
E 61 prepared at the spot. It is further elicited in the 1c_ro.ss-- examination of PW.26 that he knows Kannaoiayi«'but_,:'Vth:e~~.A voluntary statements of accused ._ handwriting and the same were which fact is endorsed by himin thie.vo"!unta.Vry'%- of the accused and the said serving in the department. However,""t.he wrote the voluntary statements ofgtiiieg and 3 as per Exs.P69, P612: "i's---not examined and PW.26 is vvoliuyntlary statements of the accusednl rt having regard to the evidence of that the recovery made on the ggbaslisithe ilvoiiuntary statements given by the 2,«V3'."'Zi, 6 and 7 has been proved. Though s--..ti:.e. not support the recovery made on the basis of voluntary statements given as referred to 3""f"-above.' arid has proceeded on the basis that there was V."'«.n'ot.hirig elicited in the cross-examination of PW.29 to _,,_clisbelieve his evidence that the recoveries were made on it the basis of the voluntary statements given by the accused. Though the finding of the iearned trial Judge is U335 62 that the recovery made on the basis of the: vo.lu..nta_ry statements of all the accused are prove_d';"'4h.e«...:ha.s'=A acquitted only accused Nos.4, 5 and 7.
42. The next circumstance.relied prosecution to bring home th'e°g_u'i§t_uof is the circumstance that accused' shifting the dead body of PraDhaka.radiiv_0h:ettyvvv.'o'n.'jthe motor cycle and PWs.2, 013v;3hay.e"'0been:Vvelramined in support of the same. 4. it 0 A :_4'n..ogt""supported the case of the prosecution"an.d was treated as hostile as he has stated in . 00'"his'ieyid'ence~.that day about three years next before vhV'irs,:'eXamination (08.10.2003) at 11 p.m., he heard d_ogs0'fbarking behind his house and when he went 010'-the house, in the torchlight, he saw 8 to 10 A pgersotins standing by the side of his house and since he frightened, he came back to his house. Since it was 0' dark, he could not identify the said persons. Though in the cross--examination of PW.2 by the Public Prosecutor, W53 5} 63 he has stated that he couid see accused Nos.1, 3 and 4 in the torch light, in the cross--examination by the le'arned counsel for the accused, he has admitted was frightened by seeing a group of perso_n's-..:behj.i«nd house, he returned to his house coul.vd"nno-t persons in the dark. Therefore, tfilEf;'€Viden('2E(.0f not at all helpful to prove the'i'c.a:sle of th'e.prosecutioh that he saw accused Nos.1':'to_7 ti'he,.deadVVbo'dy on the motor cycie.
PW.3 is not helpful to the prosecutiori asit his evidence that according to he'ih.as"o'nly"se.en accused Nos.1 and 6 at the
- 5po't,~ {i=.ii:ere.,'.the body of Prabhakara Shetty was not seen accused Nos.1 to 7 carrying the dead bo'dy,o'fAfPrabhakara Shetty on the motor cycle. The prosecution is left with the evidence of A alone. PW.12 has deposed in his examination-in- chief that on 13.09.2000 at about 3:10 p.m., in the night, he was returning from Moodabidri to Naravi. While he was '~'%i@ 64 going on his motor cycle on Kemmade road, which is about 10 feet wide, he saw all the seven accused persons in this case and they were carrying the Prabhakara Shetty towards a motor cycle, at a short distance. He only saw the,accu'sed'--peVrs'oVns7 Eifting the dead body of Prabhakaral"Shetty',.'a,nd 'ciio=.4.'r'i'oVt"-..g see the way in which they carry'inVg"'tth-ie said" dead body and he saw the'::same"Vi'n_'Vthe light emanating from the head light of the motorVcy'cl|'e'V_ he went to Naravi. He;did'«g:.gVgriot t{eri:fy:.7as"VtoN--1wVh.d_t.T'had happened to Prabh.aka_r:a1 --Si'nce_h_'is relative was not well, he had to"g_04'to 'S.ri«ntjeri_4"o_n"'fhe next day morning and he retL§vr'ne_d two-.vda'y's thereafter and he told his wife and p_o'l'ic.e thevflfact which he had seen and he has .ViVd«e»nti'fi:e'd._Mu.C..'§No.4 as the motor cycie on which the dead body of Prabhakara Shetty was placed. It is elicited in his .ctoss..~e;»<:'amination that he had only told his wife about if '~_t'he...accused shifting the dead body of Prabhakara Shetty. u has not stated before the Police that he had not stated the witnessing of the said fact before anybody as per Ex.D5. He did not feel like telling the said fact before any txvgifig 65 person and since Police had called him, he narratedjthe said fact to the Police. It is elicited that business in timber. PW.12 has denied _the":fs!JvQ'§lEsticn"
that Prabhakara Shetty was shiifting...4tim'b«er'.yonly'~~i:n__:h:isf Lorry. He has denied the surgg_estion_V_t'hat hseiiisys falsely against the accused inVstaVnCe:_uot"V':theg brother of Prabhakara Shetty.' ' Q l 3
46. the evidence of PW.12 that accused Nos.1 to 7 carryingPrabhakara Shetty towards a motor cyc_le, at a short distance from Kernmade road: "He saw the accused persons lifting . bjody of Praibhakara Shetty and did not see the were carrying the said dead body and he "'5.aw__vtl-:e§Vsame in the head light of the motor cycle. R"4"--..VV"":?egspitevi.the said fact, he did not see properly as to what wereitthe injuries on the body of Prabhakara Shetty and ...on the next day, since one of his relatives was not well, V he went to Sringeri urgently and returned only after two days. He had not narrated the incident before anybody 66 and he has also denied the suggestion that he has sta't.e_d before the Police that he had not informed about' _ of seeing the accused taking the dead on the motor cycle before ai?1_ybodvi a--s..:4.pe--r4"Exu,"l§51,i Further, it is clear that the rev-i.dencéi.g'iven suffers from inherent improbriety as accoirdingijto him, even after seeing Przibiiakara1-".iS"h'ett,y**..b§ing'shifted on motor cycie, he did out whether Prabhakara He did not inform pvejrson in the house of Prabhaflca'ra'_' disclose the said fact beforebefore his wife, he had disclosved the said 'fact on returning from Sringeri and he iif"h.a&s'i"d.enied:"E>g_.D5 --Hmstatement given before the Police and i'--tgherefoite,-«'riffs«evidence cannot be made the basis to con'-c.lus.i__'ve!.y§V'prove the circumstance in the absence of ii."4"i--.V:g"'corrob.o'ration by other witnesses -- PWs.2 and 3 about the accused carrying the dead body of Prabhakara Shetty on ..it-he motor cycle. The evidence of PW.3 would also show V that he has seen only accused i\ios.1 and 6 at the spot where the dead body of Prabhakara Shetty was lying and :3 , \*'ti"g 67 PWs.2 and 3 have not supported the case of the prosecution that all the accused were carrying the dead body of Prabhakara Shetty on the motor cycle____and wherefore, that circumstance has not been _.jpr:'o«ve'd' conclusively by the prosecution beyond reasonabley:d*ocubt'§'----.g.« i- However, the learned trial Judge_;haS_<procee'de.d» basis that having regard to the evidencer~ of 'pltmls.j.:'-'anVd::V-'fi'!$:@"-:. the evidence of PW.3, who h'as"'s.een 6 at the spot where the__.deadVAybocly._o'f__Prabhakara§ Shetty was lying, the prose'cutionb__h--a:s'zpVroved_Vthat accused Nos.1 body of Prabhakara Shetty on the motor__c'ycle :_fp"igfl¢e"'where it was found to screen themselves léfrom' the conrtmission of the offence. The said .i""fi.ndli'n.g of theatrial cannot at all be sustained. .vlA:?"=urther, it is clear from the material on record :'"that prosecution has not been able to prove all the cylcircunwstances relied upon by it conclusively as already ...held by us above. The prosecution has been only able to V prove that there was enmity between the accused and the members of the family of the complainant - 68 Balakrishna Shetty, including Prabhakara Shetty,:jt'h.e deceased. The circumstance that accused Nos~;~3«,.'_y'C~ 4 were last seen by PW.16 and were found,'V_A'_quar.re!l4infi.j with Prabhakara Shetty, the d€:>t'i€a$if3d,jj. proved and the fact of PWs.2,= 3 and"'1_Z-seeingl. of V the body of Prabhakara Shetty'Vl'i'b:y'the accus:e'd and extra judicial confession and 7 before PW.4 andaccused._E$l_os.li.iA'iVg 'A$Z_'blé.fore PW.5 has also not Nos.1O and 12 under of the statement given _V supported by the panchasanédtol "it could be believed. It is no doubt true thatthe seized articles were sent for chemical if"exa'fnin'atiojn;.g_.The serologist' s report as also the Forensic I*$Vci.enyce:V'gaxboratory report as per Exs.P39 and P40 would show t_hat.lA§~the blood stains found on the clothes of :x"'l?rabha'i<~--ara Shetty, the deceased and on the weapons 'se'ize'd were of human blood determined as 'A' group. view of our finding that the recovery made on the basis of the voluntary statements of the appellants herein ~-- accused Nos.2, 3 and 6 has not been proved, it is clear 69 that the only circumstance, which the prosecution has proved is the homicidal death of Prabhakara Shetty.._an_ci the fact that there was enmity between the _ the family members of the complainant.~~»,.'Sal,al€~ris«hnaV,:"
Shetty, including Prabhakara Shetty,-..t'hfe'4'dec,ea-sedf-ialndv.* that was the motive for causing the.V_h'omicid'ai,_Adeath; of Prabhakara Shetty. Further, well' that the motive is always a itisalso the case of the accused that. a faise case has been against them.
Accord:.i:ng'V_v Sessions Judge, the first circums'ta.nc'e-relie§1Ai.i,,,;i§ni:_:b'y"the prosecution, namely, the motives has been"proveciwagainst all the accused and the ""5-ec'o'ndE*circiu~njstance of the accused last seen together by the evidence of PW.16 in respect of accused,.__~'Nos';3, 4 and 6. However, accused No.4 has acquitted and accused Nos.3 and 6 are convicted by the-trial Court. It is clear from the evidence of PW.I6 as ...referred to above that his evidence is not truthful and V reliable as he has stated that the accused and Prabhakara Shetty were often quarrelling and in view of the facts 70 elicited in his cross--examination, which have been considered at the time of appreciation of the evidence of PW.16. It is also the finding of the trial Court that ..ail»l_:_tl1_e accused were seen shifting the dead body of _l.>:'rab%é.aV:l<laV'r'aV_:_ _ Shetty. However, the trial Court, "having;'he~ld:~..th'at ~tVhe_:"
said circumstance has been prov=ed,i.-has cionv'icted':'o_nly_iat the appellants -- accused«'N-os.2,h73"'and has acquitted accused Nos.4, 5 case has abated against accused«._fi'lo.i_. Eu.rt'hegr,Tth_ge finding of the trial Court regarding the.:.ciVrcu.rnsta.n'ce;"of"extra judicial confession slaildytovu'Ahav'et:be_en made by accused Nos.3, 6 and 7 before P\ftl.'4:an:_d'*«-accused Nos.1, 2 and 5 before 'is liable tolbel set aside as on the basis of the same hprtolved accused No.7 has been acquitted I 3 and 6 have been convicted. Though the"'~.tria._l"Court has held that recovery of incriminating :3"mat_eri'a'l~s"on the basis of the voluntary statements given bythe accused is proved, the benefit of doubt has been
-igiven only to accused N0s.4, 5 and 7. Therefore, having regard to the circumstances that have been proved by the prosecution against the appeliants herein -- accused ire 71 Nos.2, 3 and 6, it is clear that the same would not constitute a complete chain so as to point out only to the guilt of the accused. In view of the principles |a_id,V_do_dw.n by the Hon' ble Supreme Court and the deci_s:§'§.ns"»~~reli_e€l.._iJ". upon by the learned counsel appearing for.t'h'e'~--a,ppe'lVla'nts,.,_:4 "
it is clear that the prosecution is bou:n'd..--to 'prove eati'l~1..,oi.t_' the circumstances relied upO:n'<--..lgy it'colnclusiiivelysoyy that --. * the said circumstanceswould _c_:o"ri.stitu_te a.'com_plei:e chain so as to bring home "t.he_g--uili;'of"=the'iaccused beyond reasonable doubt, . '
48. _ _lTAhe:ref_o:re,'«.fo'r.,.__the' above said reasons, we hold tha"L~.._the 'finding trial Court convicting the appejlants hderei/'hf. accused Nos.2, 3 and 6 of having flthne offences punishable under Sections 302 Section 34 of IPC., and consequently, the""*--sen__t'ence imposed thereon are liable to be set J'a.si,d_e and the appellants herein - accused Nos.2, 3 and '6_V'in~$.C, No.35/2001 are entitled to be acquitted of
-tile charge of having committed the said offences kél'/3£