Karnataka High Court
Veerareddy vs State Of Karnataka on 22 November, 2024
Author: S.Sunil Dutt Yadav
Bench: S.Sunil Dutt Yadav
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NC: 2024:KHC-K:8740-DB
CRL.A No. 200071 of 2020
IN THE HIGH COURT OF KARNATAKA,
KALABURAGI BENCH
DATED THIS THE 22ND DAY OF NOVEMBER, 2024
PRESENT
THE HON'BLE MR. JUSTICE S.SUNIL DUTT YADAV
AND
THE HON'BLE MR. JUSTICE RAMACHANDRA D. HUDDAR
CRIMINAL APPEAL NO. 200071 OF 2020
(374(Cr.PC)/415(BNSS))
BETWEEN:
VEERAREDDY
S/O SHIVAREDDY CHIRAKE
AGED ABOUT 46 YEARS
OCC:COOLIE WORK
R/AT GHATBORAL
TQ:HUMNABAD
DIST:BIDAR-585 330
...APPELLANT
Digitally signed (BY SRI. SHAMBULING S. SALIMATH, ADVOCATE)
by SHAKAMBARI
Location: HIGH AND:
COURT OF
KARNATAKA
STATE OF KARNATAKA
THROUGH HUMNABAD
POLICE STATION-585 330
NEW REPRESENTED BY ADDL.SPP
HIGH COURT OF KARNATAKA
KALABURAGI BENCH
...RESPONDENT
(BY SRI. SIDDALING P. PATIL, ADDL. SPP)
THIS CRL.A. IS FILED U/S.374 (2) OF CR.P.C PRAYING
TO SET ASIDE THE ORDER OF CONVICTION DATED 21.10.2017
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NC: 2024:KHC-K:8740-DB
CRL.A No. 200071 of 2020
AND SENTENCE DATED 28.10.2017 PASSED BY THE II ADDL.
DIST. AND SESSIONS COURT, BIDAR, SITTING AT HUMNABAD
IN S.C.NO.89/2016 CONVICTING THE APPELLANT/ACCUSED
FOR THE OFFENCES P/U/S 364, 302 R/W 34 OF IPC.
THIS CRIMINAL APPEAL HAVING BEEN RESERVED FOR
JUDGMENT COMING ON FOR PRONOUNCEMENT OF THIS DAY,
RAMACHANDRA D. HUDDAR J., DELIVERED/PRONOUNCED
THE FOLLOWING:
CORAM: HON'BLE MR. JUSTICE S.SUNIL DUTT YADAV
AND
HON'BLE MR. JUSTICE RAMACHANDRA D. HUDDAR
CAV JUDGMENT
(PER: HON'BLE MR JUSTICE RAMACHANDRA D. HUDDAR) This appeal assails the correctness of the judgment of conviction dated 21.10.2017 and order of sentence dated 28.10.2017 passed by the II Additional District and Sessions Court, Bidar sitting at Humnabad in Sessions case No.89/2016, whereby accused No.1 was convicted for the offence under Section 302 of IPC and sentenced him to undergo life imprisonment and also pay a fine of Rs.10,000/- and in default of payment of fine, he shall further undergo three months simple imprisonment. -3-
NC: 2024:KHC-K:8740-DB CRL.A No. 200071 of 2020 Case of the Prosecution:
2. It is the case of the prosecution, that on 23.12.2015 at 6 p.m., a person by name Naganath, the complainant, along with his son, the Balbheem, after closing their cycle shop, went to their house at 6.30 p.m. Thereafter, his son Balbheem went out of the house for the purpose of playing. It is alleged that the said Balbheem (now deceased) did not return to the house during night hours. Therefore, the complainant, along with his other two sons by name Krishna and Sudhakar, went in search of Balbheem. But they could not trace him.
Thereafter, on the next day, the complainant Naganath went to the Humnabad police station and submitted a complaint stating that his son Balbheem was missing and somebody must have kidnapped him.
3. It is the further case of the prosecution that, thereafter, the complainant, after lodging the complaint, returned to the house that is on 24.12.2015. From the people of the village, he came to know that the accused- -4-
NC: 2024:KHC-K:8740-DB CRL.A No. 200071 of 2020 Veerareddy was telling the villagers of his village that, if anybody teases his daughter, would not leave them, and such person would reach the fate of Balbheem as he has been killed by him and dead body thrown in the well. On coming to know the said information, immediately the complainant once again went to Humnabad- police station, on 25.12.2015 gave a further statement alleging that accused Veerareddy and the juvenile offender Siddhappa had killed his son Balbheem. He also requested the police to take necessary action against them.
4. On receipt of the complaint, a crime was registered against the accused persons and criminal law was set in motion. The investigation officer on getting the complaint arrested accused No.1. On interrogation, accused No.1 confessed about the crime and he himself took the police to the well where the dead body of deceased Balbheem was thrown by him. It is also confessed that the accused No.1 has killed deceased along with the juvenile offender Siddhappa. After recovering the -5- NC: 2024:KHC-K:8740-DB CRL.A No. 200071 of 2020 dead body from the well, it was identified by the complainant. The police officer prepared the inquest Panchanama and sent the dead body for post-mortem examination. On getting the P.M.Report and also on recording the statements of the witnesses, the IO has filed the charge sheet against the accused No.1 for the offence under Section 363 and 302 read with Section 34 of the IPC. Sofar as the juvenile offender is concerned, a separate charge sheet is filed against him before the Juvenile Justice Board, Bidar.
5. On filing the charge sheet, the learned jurisdiction Magistrate took cognizance of the offence. As the offences so alleged against the accused were exclusively triable by the Sessions Court, the said criminal case came to be committed to the Sessions Court as per the orders dated 7.4.2016.
6. Before the Sessions Court, the accused No.1 is represented by an Advocate appointed by the District Legal Services Authority, Bidar district. On hearing both -6- NC: 2024:KHC-K:8740-DB CRL.A No. 200071 of 2020 sides, the learned Sessions Court framed the charges against the accused for the offences under Section 363 and 302 r/w Section 34 of IPC and accused No.1 pleaded not guilty. Before the Sessions Court to prove the guilt of the accused, the prosecution in all examined 10 witnesses from PWs.1 to 10 and got marked Ex.P1 to P16 and closed prosecution evidence. Thereafter, the accused was questioned under Section 313 of the CRPC so as to enable him to answer the incriminating circumstances appearing in the evidence of the prosecution. He denied his complicity in the crime and has produced two documents with his written submission offering his explanation to the prosecution case. He did not choose to lead any defence evidence on his behalf.
7. The learned Sessions Court, on hearing the arguments and on evaluation of the evidence, found the accused guilty of committing the offence under Section 363 and 302 of the IPC and ultimately convicted and sentenced the accused as noted above. This is how the -7- NC: 2024:KHC-K:8740-DB CRL.A No. 200071 of 2020 accused is now before this Court challenging the said judgment of a conviction and sentence passed against him by the trial Court.
8. We have heard the arguments of learned counsel for the appellant Shri.Shambuling S Salimath and learned SPP Shri.Siddaling P Patil for the State and perused the records.
9. During the course of the arguments, the learned counsel for the appellant accused Shri.Shambuling S Salimath, would submit that the prosecution has utterly failed to prove its case beyond all reasonable doubt. The theory as set out by the prosecution is not at all spoken to by any of the witnesses, much less the complainant. He further submits that initially a missing complaint was filed by the complainant Naganath. Thereafter, with a delay of two to three days of filing a missing complaint, a further complaint was filed by the complainant stating that he has suspected the fowl act of the accused No.1 and juvenile offender in committing the crime against the deceased. He -8- NC: 2024:KHC-K:8740-DB CRL.A No. 200071 of 2020 submits that there is a delay in filing the complaint. He would further submit that evidence of a PW4 Ram and evidence of PW6 Adarsh if looked into; both are opposite and destructive to the case of the prosecution. Their evidence creates doubt in the case of the prosecution. He further submits that the time and date of death are also not properly explained by the doctor. There is no evidence based on record through the evidence of PW6 Adarsh that after the incident of assault on the person of a deceased Balbheem, i.e. on 23.12.2015, he was thrown into the well. But, such evidence is not at all coming forth from the mouth of any of the witnesses, much, less from the evidence of the doctor PW.7 who was examined by the prosecution. He would further submit that the cause of death given by the doctor is not due to drowning but, for some other reason. It also creates doubt in the case of the prosecution. He further submits that the admission of the doctor in the cross-examination and also with regard to the cause of death is also not properly explained. Therefore, the evidence of the doctor cannot be accepted. -9-
NC: 2024:KHC-K:8740-DB CRL.A No. 200071 of 2020 He would further submit that statement recorded is not admissible under Section 65B of the Indian Evidence Act. Therefore, the learned counsel for the appellant- accused relying upon the grounds urged in the appeal memo with all vehemence submits that the trial Court has committed illegality in coming to the conclusion that the accused is guilty of committing such offence. He further submits that in view of contradiction in the evidence of PW.4 and 6, the version of the prosecution cannot be accepted. He submits to allow the appeal and to set aside the impugned judgment.
10. As against this submission, the learned counsel for the State Shri. Siddaling P. Patil submits that the initial complaint was for the missing Balbheem. When the villagers were telling that it was accused No.1 who was proclaiming in the village that nobody should tease his daughter Pallavi and if anybody teases his daughter, the said person would face the same consequence as Balbheem had faced, he will kill them. By saying so, he
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NC: 2024:KHC-K:8740-DB CRL.A No. 200071 of 2020 was also telling that himself and juvenile offender Siddhappa had killed this diseased and thrown him in a well. On getting such information from the public, the complainant went to the police station and gave a further statement alleging that accused No.1 is proclaiming in the village about the causing of the crime against his son. Based upon that information so furnished by the complainant, when accused no.1 and juvenile offender were arrested, it was revealed from their mouth by way of a confession that it is they who have killed the deceased Balbheem and thrown him in the well. He would also submit that in view of the confession statement of accused, the dead body was recovered at the instance of the accused persons. Witnesses examined by the prosecution have stated in their evidence about proclaiming the words used by the accused No.1 that he has killed the deceased by throwing him in a well, that corroborates with each other. Therefore, he submits that the learned trial Court, on evaluation of the evidence in proper perspective, has come to the conclusion that the
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NC: 2024:KHC-K:8740-DB CRL.A No. 200071 of 2020 accused is really guilty of the offence so alleged against him. According to him, the well-reasoned judgment of the learned trial Court does not require interference. In support of his submission, he relied upon various evidence placed on record by the prosecution and also, especially, the findings of the learned trial Court in coming to such a conclusion. He prays to dismiss the appeal.
11. We have given our anxious consideration to the arguments of both sides and meticulously perused the records.
12. In view of the rival submissions of both sides, the point that would arise for our consideration is:
"Whether the learned trial Court is
justified in convicting and sentencing the
accused as alleged by the prosecution?."
13. It is a case of the prosecution that deceased Balbheem, being the son of the complainant on the date of incident, that is, 23.12.2015, returned to the house at 6.30 p.m. along with his father, who is a complainant.
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NC: 2024:KHC-K:8740-DB CRL.A No. 200071 of 2020 Thereafter, the said deceased went away from the house saying that he would return. Since he did not return, the complainant and his two other sons, by name Krishna and Sudhakar, went in search of Balbheem. But, they could not trace him. Even one Dhulappa and another relative of the complainant also searched. Therefore, he suspected that between 6.30 p.m. and 9.30 p.m. on 23.12.2015, his son Balbheem must have been kidnapped. He went to the Humnabad police station and lodged a complaint as per Ex.P1 on 24.12.2015 at 7 p.m. The same was registered and criminal law was set in motion. It is the further assertion of the prosecution that, on 25.12.2015, when the complainant got the information that it was accused No.1, a juvenile offender was proclaiming in the village that if anybody teases the daughter of the accused No.1, they would face the same fate as that of Balbheem. They were telling that they had killed Balbheem by throwing him in a well. On getting such information through the public of his village, he went to the police station again and gave a further statement on 25.12.2015 at 10 a.m.
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NC: 2024:KHC-K:8740-DB CRL.A No. 200071 of 2020 The same was reduced to writing in the said crime itself and a crime was registered against the accused for the offence under Section 363 and 302 r/w Section 34 of the IPC. They said further statements are marked in evidence as per Ex.P2. It is further case of the prosecution that on getting such a complaint, the I.O. arrested accused No.1 and so also juvenile offender. On interrogation, it was revealed by accused No.1 that both accused No.1 and the juvenile offender had killed deceased Balbheem and had thrown the dead body into the well situated in their village. It was accused No.1 and the juvenile offender went with the police and showed the well where they had thrown the deceased. The I.O. noticed that the said dead body was fallen in the well in a flat position. With the help of lifters, the said dead body was removed from the well. It was identified by the complainant as that of his son. I.O. prepared the inquest Panchanama as per Ex.P3 in the presence of Panchas, recorded the statements of the complainant again as well as the mother of the deceased and other witnesses, subjected the said dead body to the
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NC: 2024:KHC-K:8740-DB CRL.A No. 200071 of 2020 post-mortem. Thereafter, handed over the dead body to the complainant.
14. It is the case of the prosecution that the deceased had suffered the homicidal death. To prove the same, the prosecution relied upon the post-mortem report, Ex.P11. On reading the post-mortem report, it shows that the deceased had suffered injury to his genital region. The relevant extract of the post-mortem report is reproduced as under:
"It is stated that, penetrating wound present over right posterior distal 1/3rd shaft of pennis, extending up to urethra measuring 5.m.m in dia meter, depth 6.m.m".
15. When the post-mortem was conducted, the doctor was of the opinion that cause of death is withheld for want of a chemical examiner's report from a Forensic Science Laboratory. PW.7-Dr.Ravishankar Khandre was examined before the trial Court has deposed in his examination-in-chief and makes it clear that, he conducted the post-mortem on the dead body of the
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NC: 2024:KHC-K:8740-DB CRL.A No. 200071 of 2020 deceased on 25.12.2015 between 5.10 p.m. and 6.15 p.m., wherein he noticed the aforesaid injury on the person of the deceased. Time since death was within 24 hours of a conducting post-mortem. According to his evidence, the cause of death was a "vasovagal attack due to injury to a genital organ." He further opines that when a person is thrown from a considerable height and while entering the water, if that person comes in contact with the sharp object, the injuries to genital organs like the one mentioned in the report would cause resulting in a vasovagal attack, causing death. He deposed that, the death of the deceased has occurred because of the injury so noted in the post-mortem report. There is no effective cross-examination directed to this PW.7 in the cross- examination directed by the defense. Except the denial, nothing is elicited from the mouth of this witness. Thus even the doctor has opined in his examination-in-chief itself that the dead body was found in the well and he conducted the post-mortem and the cause of death was due to vasovagal attack, due to injury to genital organ.
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16. Coupled with this, prosecution also relies upon the report issued by the Forensic Science Laboratory, Kalaburgi, wherein, he is of the opinion that residues of volatile poisons, pesticides, drugs, acolytes, and toxic metal ions were not detected in all the above-sealed articles that were sent for chemical examination. This document is substantiated by the evidence of a scientific examiner. So also the Bidar Institute of Medical Science, Bidar, has issued Ex.P8 stating that "the gross and radiological examination of the higher board does not reveal any evidence of fracture or cartilaginous injury on the person of the deceased." That means, as noted by the doctor in the final opinion, this deceased had suffered injuries as noted in the PM report as stated above. This document, as well as the evidence of PW.7 and other evidence, do establish that a deceased has suffered the homicidal death. It is argued by the learned counsel for the State Shri. Siddaling P. Patil that the deceased had sustained such injuries and they were ante-mortem.
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NC: 2024:KHC-K:8740-DB CRL.A No. 200071 of 2020
17. A cumulative reading of the medical record along with the deposition of PWs.1 to 7 creates a chain of circumstances establishing that the death of the deceased is homicidal. The injuries noted in the PM report are a cause for death of the deceased. When this is the medical evidence brought on record by the prosecution, it was incumbent upon the appellant/accused to prove as to how the death occurred in view of the burden contemplated under Section 106 of the Indian Evidence Act, 1872 (the Evidence Act). In this case, it is the prosecution case that the appellant has not only failed to offer any alternative explanation so as to the cause the death of the deceased but also failed to tend to the prosecution's version. We saw his role at the scene of the alleged offence, thereby being unable to negate the contention that no one else could have inflicted the said injuries on the body of the deceased when he was thrown in the well by the accused No.1 and juvenile offender. It is submitted that it is the case of the prosecution that on the date of incident, which is on 23.12.2015, when the deceased went away from the
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NC: 2024:KHC-K:8740-DB CRL.A No. 200071 of 2020 house, he had talk with the daughter of the accused Pallavi under a mango tree. At that time, the juvenile offender and another person were moving. The juvenile offender had asked the said Pallavi whether she was loving him or loving Balbheem. When he asked her, she hides herself. Immediately the said juvenile offender Siddhappa went to accused No.1 and informed. Thereafter, this accused along with juvenile offender Siddhappa, brought deceased Balbheem to their house and assaulted him. He gave a warning to him. It is the case of the prosecution that thereafter this juvenile offender as well as accused No.1 took this Balbheem towards the said well where the dead body was found and threw him in the well. Thus he died. Thus it is the case of the prosecution that, it was accused No.1 and a juvenile offender, both have committed the offence in the manner alleged by the prosecution. Here in this case, there is no eyewitness arrayed by the prosecution. The factum evidence of a prosecution witness is purely based upon medical evidence as well as the deposition of the doctor. As per the
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NC: 2024:KHC-K:8740-DB CRL.A No. 200071 of 2020 argument of the counsel for the State, the medical evidence as well as the deposition of the doctor substantiates the culpability of the accused person to murder the deceased Balbheem. It is urged by the prosecution that the prosecution does not rest upon circumstantial evidence alone and also corresponds to circumcision that they pointed towards the guilt of the accused person, i.e., the appellant.
Findings of the trial court:
18. The trial Court has concluded that the case of the prosecution is proved beyond all reasonable doubt and hence the accused/appellant is liable for conviction and sentence. It is also observed by the learned trial Court that the motive for the crime was that the deceased Balbheem was in love with daughter of the accused No.1 Pallavi. Even juvenile offender Siddhappa was also loving her. When both Balbheem and Pallavi were talking together on the date of the missing Balbheem, it was informed by the juvenile offender that Pallavi was loving
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NC: 2024:KHC-K:8740-DB CRL.A No. 200071 of 2020 him or deceased. By hearing such words, the said Pallavi hid herself beneath the tree. The fact of talking of Balbheem with Pallavi was informed by the juvenile offender to accused No.1. Thereafter, both took this Balbheem to the house of the accused No.1 and assaulted him. This fact of assault was also seen by the witnesses who examined in this case. Thus, the learned trial Court has come to the conclusion that, it was accused No.1 and the juvenile offender have committed the offence. Thus it is concluded by the learned trial Court that the chain of circumstances that have been brought on record by the prosecution prove the guilt of the accused beyond all reasonable doubt. Thus convicted and sentenced him.
19. The aforenoted conclusion was substantiated on the basis of evidence of PWs.1 to 7 as per the case of the prosecution. Though it is argued by the learned counsel for the appellant that the prosecution has failed to prove the guilt of the accused beyond all reasonable doubt as submitted, now we have to ascertain whether really the
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NC: 2024:KHC-K:8740-DB CRL.A No. 200071 of 2020 prosecution is able to establish the guilt of the accused beyond reasonable doubt or otherwise. To ascertain the same, we have to read both oral and documentary evidence adduced by the prosecution.
Analysis and conclusion
20. The case of the prosecution rests on circumstantial evidence, the testimonies of PWs.1 to 7, read with the report of medical examination Ex.P7, post- mortem report, and other evidences and evidence of the doctor. Admittedly, there are no direct eyewitnesses to the said incident. In such cases, an inference of guilt must be sought to be drawn from a cogently and firmly established chain of circumstances. The PW1 complainant corroborates his evidence with that of his missing complaint filed on 24.12.2015 and 25.12.2015. He has been cross-examined at length by the defence. It is his evidence in the cross- examination that he did not inquire with Adarsh and others about whereabouts of his son. He further states that he has the mobile number of his son. According to him,
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NC: 2024:KHC-K:8740-DB CRL.A No. 200071 of 2020 immediately on hearing the say of the accused, he did not go to the police station to pass on this information about the killing of his son by accused No.1 along with a juvenile offender. He has not observed any froth coming from the mouth of his son after removing the body from the well, as per his evidence. As he is not an eyewitness and filed a complaint about the missing of his son as well as getting information about the death of his son in the hands of this accused, he just informed the police and lodged a complaint as well as further statements as per Ex.P1 and P2, respectively. He has denied all the suggestions so directed to him. The evidence of PW1 is to be accepted to the extent that he has filed a missing complaint initially, as well as on getting information he lodged a further statement as per Ex.P2 before the police and thereafter the criminal law was set in motion against the accused persons.
21. PW.2 Ashok Chandrappa Todsalle is the witness who was seizure Pancha in whose presence the police have
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NC: 2024:KHC-K:8740-DB CRL.A No. 200071 of 2020 recovered M.O.'s No.4 and 5 under Ex.P9. According to him, these seizure Panchanama was conducted in his presence and in the presence of other Naganath and police have seized M.O.'s No.4 and 5. The fact of seizure of these M.O.'s No.4 and 5 in his presence is not specifically denied by the defence. Therefore, the evidence of PW2 has to be accepted to the extent that in his presence, M.O.'s No.4 and 5 were seized by the police under Ex. P9. The credibility of this evidence is further supported by the consistent testimonies from other witnesses present during the seizure. Additionally, the prosecution has provided documentation that corroborates the legitimacy of the procedure followed by the police, reinforcing the integrity of the evidence presented.
22. PW.3 Rajkumar Vithalrao Patil is a villager of a Ghatboral village and he has deposed before the Court that on 23.12.2015, Naganath came to him at 9 p.m. and informed him about the missing of his son Balbheem. He is a person who has heard the words of the accused on
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NC: 2024:KHC-K:8740-DB CRL.A No. 200071 of 2020 24.12.2015 stating that this accused was roaming in the village saying that he had killed Balbheem by throwing into the well. He further has stated that it was the accused who took the police to the said well and showed the place of throwing the said deceased Balbheem. He states that on 25.12.2015 at 2 p.m., the C.P.I. brought the accused to their village and took them to Satyakala well. It was accused who showed the well and thereafter the dead body was removed from the well in his presence. P.W1 Naganath identified the dead body as that of his son. It is his further evidence in the cross-examination that, he has personally heard, accused Veerareddy telling that he, along with juvenile offender Siddhappa, have thrown Balbheem into the well. He has stated so in his statement before the police. Further, it is suggested that he has stated in his statement to that effect that the next night Veerareddy, son of Shivareddy Chirake, was roaming in the village, saying that he would not leave any person if anybody caused trouble to his daughter and that person would be killed, the way he has killed Balbheem. Thus the
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NC: 2024:KHC-K:8740-DB CRL.A No. 200071 of 2020 evidence of this P.W3 shows that he has heard about the words being used by the accused stating that he has killed Balbheem. He came to know about the said fact. Though this PW3 was cross-examined at length but he has withstood the test of cross-examination.
23. PW.4 Ram Ganpathrao Mule is a person who is an important witness examined by the prosecution. According to his evidence, on 23.12.2015 at 7 p.m., when he was returning home from his land, he noticed the Galata in front of the house of the accused. He went there and saw that this accused Veerareddy and juvenile offender Siddhappa had wrongfully restrained Balbheem and were quarreling with him. It was he who intervened in the quarrel and asked the accused as to why he is quarrelling with Balbheem. At that time, the accused told that this Balbheem was eve teasing his daughter Balbheem while going to school and for that reason he has brought Balbheem and confined him. He pacified their quarrel and made Balbheem to leave that place. When
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NC: 2024:KHC-K:8740-DB CRL.A No. 200071 of 2020 Balbheem was proceeding towards the house, accused Veerareddy and Siddhappa and CW.21 Adarsh followed Balbheem and they all proceeded towards Bhavani temple. Thus this evidence of this witness PW4 shows that on the date of the disappearance of the deceased at 7 p.m., he noticed the presence of Balbheem in front of the house of the accused, and there was a quarrel going on and it was the accused who had confined the deceased. It was he who pacified the quarrel and sent the deceased from that place, but, this accused as well as the juvenile offender Siddhappa and CW.21 followed Balbheem and they proceeded towards Bhavani temple. This evidence of PW4 is not denied in the cross-examination directed to him. It is further evidence that, on the next day when Naganath and his son were searching for Balbheem, he told that Balbheem was restrained by Veerareddy and juvenile offender Siddhappa and got him released. On 25.12.15 at about 2 p.m., police brought the accused, and all villagers followed them to Satyakala well. He too followed them. On going over there, they saw the dead body of deceased
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NC: 2024:KHC-K:8740-DB CRL.A No. 200071 of 2020 Balbheem floating in the well. On removal of the dead body, Naganath identified it as that of his son Balbheem.
24. In the cross-examination directed to this PW 4, it shows that the house of Veerareddy consists of only one small room. There is no electricity supplied to his house. It is suggested that he has not pacified the quarrel, etc., but this PW4 has denied the same. Except this denial, nothing is brought on record in the cross-examination so as to disbelieve his version, it was he who pacified the said quarrel and sent a deceased from that place, but accused as well as juvenile offender Siddappa followed him. It is one of the important circumstances to show that, it was PW4 who pacified the quarrel, in between accused and Balbheem and has last seen the deceased with the company of accused.
25. PW5-M.A.Samad is a businessman in Humnabad. When the accused was in custody, he accompanied the police with this Samad, PW 5, and in his presence, at the instance of the accused, Ex.P10
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NC: 2024:KHC-K:8740-DB CRL.A No. 200071 of 2020 Panchanama was prepared with regard to the scene of offence. Though it is suggested that, this PW5 is a stock witness, he withstood the test of cross-examination. Preparation of Ex.P.10 in the presence of the Pancha is not denied by the defense in a proper manner. Thus, from the evidence of PW5, Ex.P.10 is duly proved in accordance with law.
26. PW.6-Adarsh was aged 17 years and was a friend of a juvenile offender as well as deceased. According to him, on 23.12.2015, himself and juvenile offender Siddhappa were going to the landed properties of Shankar Malke on a bicycle at 7 p.m. At that time, they noticed the presence of Balbheem and Pallavi sitting under a mango tree and talking with each other. On seeing them together, this juvenile offender questioned Pallavi as to whether she is loving him or deceased Balbheem. By that time, Pallavi tried to hide herself behind the tree. Immediately, juvenile offender Siddhappa went to the house of Pallavi and brought her parents there. On seeing
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NC: 2024:KHC-K:8740-DB CRL.A No. 200071 of 2020 them, Balbheem ran away from that place. Accused brought Balbheem. He states that he was accompanied by a juvenile offender. According to him, he followed all of them at a distance of 10 feet, and they had taken Balbheem towards the well, and both caught hold of the legs of Balbheem and threw him in the well. As he frightened, he ran away from that place. No doubt this PW6 has stated so much evidence in his examination, but he accompanying the juvenile offender on 23.12.2015 at 7 p.m. is not denied by the defence in the cross-examination. Though he has been examined at length, he specifically states that, juvenile offender Siddhappa and Veerareddy, is accused/appellant in this appeal, took the deceased to the well and threw him by catching hold of him. Though lengthy cross-examination is directed to him, he has stated with regard to taking away of a deceased by both accused as well as juvenile offender. No doubt he has spoken some inconsistent evidence in the cross-examination. He being a friend of a juvenile offender, no animosity or ill-will is established by
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NC: 2024:KHC-K:8740-DB CRL.A No. 200071 of 2020 the defense that because of that ill-will, he has spoken untruth before the court. PW4 has also spoken to that effect in his evidence and there is no ill-will established between PW4 and the accused to speak falsehood against this accused. So the chain of circumstances that has been brought on record by the prosecution is proved in the cross-examination by the evidence of this PW6.
27. PW.7-Dr.Ravishankar Khandre has spoken before the Court about the conducting of the post-mortem on the dead body of the deceased, etc. PW8-Gurulingappa Gauda Patil, the PSI, received the complaint and started the criminal law in motion initially. He registered a crime in Crime No. 267/15 for the offence under Section 363 of the IPC and thereafter recorded the further statement of the complainant and inserted Section 302 of the IPC, and thus criminal law was set in motion by him. As per the memo issued by the CPI, he apprehended juvenile offenders on 26.12.2015 and produced him before the IO. The evidence of this PW8 goes to establish that he has
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NC: 2024:KHC-K:8740-DB CRL.A No. 200071 of 2020 received the complaint and set the criminal law in motion. It is elicited from the mouth of this witness that the juvenile offender told him that MO No.4 belongs to deceased Balbheem, which was recovered at the instance of the accused himself. To that effect, the report is submitted by him. Panchnama was prepared as per Ex.P9 with regard to the recovery of MO No.4 and 5 at the instance of the accused. He also says that on opening the purse, two photos of the Balbheem were found in the said purse and the photographs are marked as Ex.P16 and P17. MO No.4 and 5 were also seized under Ex.P9. The evidence of this PW8 is corroborated with the evidence of other witnesses also.
28. PW9-Shivananda was a CPI in Humnabad at the relevant time. He took up the investigation and conducted the investigation. He conducted the panchanama as per Ex.P10 when the dead body was removed from the well. He identifies it as Ex.P3, which bears his signature. Though this IO has been directed with severe
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NC: 2024:KHC-K:8740-DB CRL.A No. 200071 of 2020 cross-examination, he has withstood the test of cross- examination.
29. PW10-Dattatraya Mapanna Karnad was an IO and he has filed the charge sheet after collecting the necessary documents. The learned trial Court on evaluation of the evidence of all these witnesses, has come to a definite conclusion that the prosecution is able to establish the guilt of the accused beyond all reasonable doubt.
Re. Discussions on 'Last Seen Theory':
30. In absence of eye witnesses, the last seen theory and circumstantial evidences play a vital role. The corroboration of last seen theory and circumstantial evidence must not give any single way which shows the innocence of accused and time gap between last seen alive and the recovery of dead body must be so small that the possibility of any person other than accused being the author of the crime becomes impossible. In the instant case the Court can draw an inference that, accused had
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NC: 2024:KHC-K:8740-DB CRL.A No. 200071 of 2020 committed an offence of crime based on circumstantial evidence.
31. This last seen theory derives from Section 7 of the Indian Evidence Act which is called the "Doctrine of Inductive Logic" in which it is stated that if any fact related to the occasion, cause or effect lead to the circumstance in which that thing occurred or it provided an opportunity for the occurrence of that thing then those facts will be relevant. And the last seen theory also the person who was the last present with the victim would have a reasonable opportunity to commit the crime.
32. This case rests on circumstantial evidence for the following reasons:
1. The first circumstance is, the deceased-
Balbheem left his house at 6.30 p.m after closing of his cycle shop.
2. Pallavi and Balbheem were sitting under a mango tree and the Siddappa juvenile offender saw them and informed it to father of Pallavi about their love affair.
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3. Father of Pallavi came and took Balbheem to his house, confined him and started galata with him. PW.4 Ram Ganpathrao Mule noticed galata between Balbheem and accused in front of the house of accused. He also noticed that accused Veerareddy & juvenile wrongfully restrained Balbheem. PW.4 pacified their quarrel and made Balbheem to leave that place.
4. When Balbheem was proceeding towards the house, accused Veerareddy and Siddhappa and CW.21 Adarsh followed Balbheem and they all proceeded towards Bhavani temple.
5. Father of Balbheem lodged a missing complaint before Humnabad police station.
6. Accused Veerareddy started proclaiming in the village that, if somebody eve-teases his daughter Pallavi, they will face consequences as that of Balbheem.
7. Then on getting such news spread in the village, father of Balbheem went to the police station and gave his further statement.
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8. Based upon that, police arrested accused Veerareddy and Juvenile offender Siddappa.
9. After interrogation by police, accused Veerareddy gave confession statement.
10. After his arrest, accused lead the police to the well where he threw Balbheem, later; police noticed the dead body of Balbheem floating in the well.
11. During investigation as per the confession statement, mobile phone and purse belonging to deceased were seized at the instance of the accused.
33. With regard to 'Last Seen theory' the Hon'ble Apex Court in Ashok v. State of Maharashtra, reported in (2015) 4 SCC 393, paras 8 and 14 observed as under:
8. The "last seen together" theory has been elucidated by this Court in Trimukh Maroti Kirkan v. State of Maharashtra [(2006) 10 SCC 681 : (2007) 1 SCC (Cri) 80] , in the following words :
(SCC p. 694, para 22) "22. Where an accused is alleged to have committed the murder of his wife and the prosecution succeeds in leading evidence to show that shortly before the commission of crime they were seen together or the offence takes place in the dwelling home where the husband also normally
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NC: 2024:KHC-K:8740-DB CRL.A No. 200071 of 2020 resided, it has been consistently held that if the accused does not offer any explanation how the wife received injuries or offers an explanation which is found to be false, it is a strong circumstance which indicates that he is responsible for commission of the crime. Thus, the doctrine of last seen together shifts the burden of proof onto the accused, requiring him to explain how the incident had occurred. Failure on the part of the accused to furnish any explanation in this regard, would give rise to a very strong presumption against him.* [Ed. : See also Rohtash Kumar v. State of Haryana, (2013) 14 SCC 434 at pp. 448-49, para 34 : (2014) 4 SCC (Cri) 238.] "
14. In the present case, the Sessions Judge found following incriminating evidence against the accused:
(i) Taking half-day casual leave on 26-8-2008.
(ii) Last seen when all the deceased were in the company of the appellant-accused.
(iii) Mysterious disappearance of the three deceased persons from the said company.
(iv) Conduct of the appellant-accused:
(a) requiring the colleague to prepare the dinner;
(b) reporting to police about the missing on the next day;
(c) attitude of the appellant-accused in presence of the relatives of the deceased;
(d) leaving of two daughters and wife at HP gas agency.
(v) Falsity in defence.
(vi) Disliking towards the deceased.
(vii) Demand of amount which was kept in the name of Shubhangi by Shalinibai.
(viii) Post-mortem report.
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34. As this case is purely based upon the 'circumstantial evidence' and 'last seen theory' the Hon'ble Apex Court in Sharad Birdhichand Sarda v. State of Maharashtra, reported in (1984) 4 SCC 116, has laid down the following five golden principles, which constitute the panchasheela of proof as under:
"153. A close analysis of this decision would show that the following conditions must be fulfilled before a case against an accused can be said to be fully established:
(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established.
It may be noted here that this Court indicated that the circumstances concerned "must or should" and not "may be" established. There is not only a grammatical but a legal distinction between "may be proved" and "must be or should be proved" as was held by this Court in Shivaji Sahabrao Bobade v. State of Maharashtra [(1973) 2 SCC 793 : 1973 SCC (Cri) 1033 : 1973 Crl LJ 1783] where the observations were made: [SCC para 19, p. 807:
SCC (Cri) p. 1047] "Certainly, it is a primary principle that the accused must be and not merely may be guilty before a court can convict and the mental distance between 'may be' and 'must be' is long and divides vague conjectures from sure conclusions."
(2) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on
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NC: 2024:KHC-K:8740-DB CRL.A No. 200071 of 2020 any other hypothesis except that the accused is guilty, (3) the circumstances should be of a conclusive nature and tendency, (4) they should exclude every possible hypothesis except the one to be proved, and (5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused."
35. In this case, the prosecution has proved its case beyond all reasonable doubt. Established the complete chain of circumstances, including the motive, i.e., accused No.1 had quarrelled with the deceased, on the ground that, deceased was eve-teasing his daughter Pallavi. It was informed by juvenile offender Siddhappa that the deceased and Pallavi were talking with each other under a mango tree. Juvenile offender brought accused there. Then accused brought Balbheem to his house. He was quarrelling with him and confined him. At that time, PW6, on seeing the said Galata, went there and pacified the
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NC: 2024:KHC-K:8740-DB CRL.A No. 200071 of 2020 quarrel. He made the deceased go away from the said place, but even then, the accused as well as the juvenile offender followed the deceased. The motive for the crime was that the deceased was eve- teasing the daughter of the accused.
36. With regard to the presence of the accused at the time of the incident and the presence of the juvenile offender at the time of the quarrel, PW6 has spoken in his evidence on oath. He states that, though he pacified the quarrel, made the deceased go away from the said place. But this accused and juvenile offender followed him, and so also Adarsh followed him.
37. Though the accused has submitted his 313 statement with explanation, it is not an acceptable explanation given by him as per the evidence brought on record. Therefore, the explanation so offered by the accused is not clear as to whether he is not responsible for the death of the deceased.
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38. The conduct of the accused that he was proclaiming in the village that he had killed Balbheem, who was eve teasing his daughter and if anybody eve teases his daughter, the same fate would happen as that of a deceased Balbheem also contributes his culpability in committing crime. The conduct of the accused is stated by the witnesses examined of proclaiming the said information in the village. The medical evidence shows that, deceased died not because of consuming any poison. He died because of the injuries to his genital area. It is the opinion of the doctor that the deceased had sustained injuries to his genital area with a sharp weapon. Something must have been touched to the genital area when this deceased was thrown in the well, as per the case of the prosecution. This clearly shows that the deceased had sustained the said ante-mortem injury to his genital area. He was thrown in the well as per the evidence brought on record, and recovered the articles such as mobile phone and purse belonging to deceased from the possession of accused No.1 under Ex.P9 and
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NC: 2024:KHC-K:8740-DB CRL.A No. 200071 of 2020 P10, the Panchanamas. It is not explained as to how the accused came in possession of these articles belonging to the deceased. PW.8 Ashok speaks about seizure of these articles i.e., Mos. No.4 and 5, at the instance of the accused. PW.3 is a person who heard about the proclaiming of the accused in the village about causing the death of a deceased Balbheem by him. PW.4 also speaks in similar words. The evidence of PW6 clinchingly establishes that it was he who pacified the quarrel before the death of the deceased. Thus the presence of the appellant/accused at that time, at the said well, when he threw the deceased, is demonstrated from the evidence of PW.6 Adarsh.
39. In Section 313 of IPC statement, though accused has stated that, he is not involved in the crime, the other evidence if read together, do establish that, it was the accused who is involved in the commission of crime. When the presence of accused is stated by PW4, who has seen the deceased with the company of the
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NC: 2024:KHC-K:8740-DB CRL.A No. 200071 of 2020 accused, then the important conclusion, we could reach is that, it is accused who is responsible in the committing of crime from that place where the deceased had gone. In the case of Darshan Singh v. State of Punjab, reported in (2024) 3 SCC 164, the Hon'ble Apex Court has held as under:
"19. In Trimukh [Trimukh Maroti Kirkan v. State of Maharashtra, (2006) 10 SCC 681 : (2007) 1 SCC (Cri) 80], this Court has pointed out that there are two important consequences that play out when an offence is said to have taken place in the privacy of a house, where the accused is said to have been present. Firstly, the standard of proof expected to prove such a case based on circumstantial evidence is lesser than other cases of circumstantial evidence. Secondly, the appellant would be under a duty to explain as to the circumstances that led to the death of the deceased. In that sense, there is a limited shifting of the onus of proof. If he remains quiet or offers a false explanation, then such a response would become an additional link in the chain of circumstances".
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40. Here in this case, the accused has offered a false explanation. Therefore, in terms of Section 106 of the Indian Evidence Act, the appellant/accused has not discharged his burden that he is not responsible for the homicidal death of the deceased. There is also evidence of PWs.4 and PW.6, adduced by the prosecution to hold that, the appellant/accused had the clear motive to eliminate the deceased as he was eve teasing his daughter. Even the juvenile offender was also a person who informed the parents of the Pallavi. He brought them from the place where the deceased and Pallavi were talking with each other. At that time, when the juvenile offender noticed the presence of the deceased as well as Pallavi, he inquired Pallavi about whether she is loving him or Balbheem. Being enraged by the same, he must have brought the accused to the said place. Thus, we are of the considered opinion that the prosecution has been able to prove its case beyond reasonable doubt that the accused No.1, with the aid of the accused juvenile offender, must have thrown deceased Balbheem into the well. When deceased came in
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NC: 2024:KHC-K:8740-DB CRL.A No. 200071 of 2020 contact with the sharp object, he must have sustained such an injury and died before he reached the water in the well. Therefore, his dead body was found floating within 24 hours of committing crime. It is not the case of drowning. When the death had occurred before it reaches water in the well, the dead body would float as per the medical jurisprudence. In our considered opinion, the observation of the trial Court with regard to the occurrence, motive to commit a crime and the evidence being purely circumstantial nature, the medical evidence becomes of less consequence. The trial Court has considered all the consistent testimonies of the prosecution witnesses and has rightly convicted the accused. It has dealt with the charge framed against the accused and the grounds so urged by the appellant now are not dispelled in view of the acceptable evidence produced by the prosecution.
41. For the reasons herein mentioned above, the appeal filed with the appellant fails and is liable to be dismissed.
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42. Resultantly, we pass the following:
ORDER
(i) Appeal is dismissed.
(ii) The judgment of conviction and order of sentence dated 21/28.10.2017 by the II Additional District and Session Judge, Bidar sitting at Humnabad in Session Case No.89/2016, is hereby confirmed.
(iii) Since the accused is in judicial custody from the date of arrest i.e., 25.12.2015, the set off is given with regard to substantial sentence imposed on him as provided under Section 428 of Cr.P.C.
(iv) Send back the trial Court records, along with a copy of the judgment forthwith to the trial Court.
(v) Intimate the Superintendent of Jail regarding confirmation of the sentence by mail, so also to the trial Court.
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(vi) Order regarding disposal of the property remains unaltered.
Pending IA's if any do not survive for consideration.
Sd/-
(S.SUNIL DUTT YADAV) JUDGE Sd/-
(RAMACHANDRA D. HUDDAR) JUDGE Sk/-
List No.: 19 Sl No.: 3