Karnataka High Court
Shivappa Mahadevappa Naykar vs The State Of Karnataka on 23 December, 2021
Bench: Suraj Govindaraj, J.M.Khazi
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 23rd DAY OF DECEMBER, 2021
PRESENT
THE HON'BLE MR. JUSTICE SURAJ GOVINDARAJ
AND
THE HON'BLE MS. JUSTICE J.M.KHAZI
CRIMINAL APPEAL No.100336/2017
C/W.
CRIMINAL APPEAL NO.100346/2017
IN CRIMINAL APPEAL No.100336/2017
BETWEEN:
BASAPPA S/O. DEMAPPA GOTHE,
AGE 27 YEARS, OCC: AGRICULTURE AND COOLIE,
R/O. SOMAPUR, TQ. SAVADATTI,
DIST. BELAGAVI.
... APPELLANT
(BY SRI. K.L.PATIL, ADVOCATE)
AND:
THE STATE OF KARNATAKA,
BY STATE PUBLIC PROSECUTOR,
HIGH COURT OF KARNATAKA,
DHARWAD BENCH,
THROUGH SAVADATTI POLICE
... RESPONDENT
(BY SRI. V.M.BANAKAR, ADDL. SPP)
THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374(2)
OF CR.P.C., SEEKING TO CALL FOR RECORDS AND TO ALLOW
THIS CRIMINAL APPEAL, SETTING ASIDE THE JUDGMENT OF
CONVICTION AND ORDER OF SENTENCE DATED 09.10.2017
PASSED IN S.C.NO.157 OF 2013 BY II ADDL. DISTRICT AND
2
SESSIONS JUDGE, BELAGAVI, FOR THE OFENCES PUNISHABLE
UNDER SECTIONS 302, 364, 201 READ WITH SECTION 34 OF IPC
AND ACQUIT THE APPELLANT FROM THE ALLEGED CHARGE.
IN CRIMINAL APPEAL No.100346/2017
BETWEEN:
1. SHIVAPPA MAHADEVAPPA NAYKAR,
AGED ABOUT 34 YEARS, OCC: AGRICULTURE,
R/O. SOMAPUR VILLAGE,
TQ. SAUDATTI, DIST. BELAGAVI.
2. MAHADEVAPPA NINGAPPA NAYKAR,
AGED ABOUT 62 YEARS, OCC: AGRICULTURE
AND HAVING RATION SHOP,
R/O. SOMAPUR VILLAGE,
TQ. SAUDATTI, DIST. BELAGAVI.
... APPELLANTS
(BY SRI. ARAVIND D. KULKARNI, ADVOCATE)
AND:
THE STATE OF KARNATAKA,
BY SAUDATTI POLICE STATION,
REPRESENTED BY STATE PUBLIC PROSECUTOR,
ADVOCATE GENERAL'S OFFICE,
HIGH COURT PREMISES,
DHARWAD.
... RESPONDENT
(BY SRI. V.M.BANAKAR, ADDL. SPP FOR RESPONDENT-STATE)
THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374(2)
OF CR.P.C., SEEKING TO SET ASIDE THE JUDGMENT OF THE
CONVICTION AND ORDER OF SENTENCE DATED 09.10.2017
PASSED BY THE II ADDL. DISTRICT AND SESSIONS JUDGE,
BELAGAVI, IN S.C.NO.157/2013 THEREBY CONVICTING
APPELLANTS FOR THE OFFENCES PUNISHABLE UNDER SECTION
109, 364, 302, 201 READ WITH 34 OF IPC AND CONSEQUENTLY
ACQUIT THE APPELLANTS HEREIN OF ALL THE CHARGES
LEVELLED AGAINST THEM.
3
THESE APPEALS COMING ON FOR FINAL HEARING, HAVING
BEEN HEARD AND RESERVED FOR JUDGMENT, THIS DAY, SURAJ
GOVINDARAJ J., DELIVERED THE FOLLOWING:
JUDGMENT
1. The accused No.1-Shivappa and accused No.3-
Mahadevappa are before this Court, in Criminal
Appeal No.100346/2017 and accused No.2-
Basappa is before this Court in Criminal Appeal
No.100336/2017, aggrieved by the order of
conviction and sentence passed by the II Additional
District and Sessions Judge, Belagavi, dated
09.10.2017 in S.C.No.157/2013.
2. By way of the said Judgment, the accused No.1-
Shivappa and accused No.2-Basappa were
sentenced to life imprisonment for the offences
punishable under Section 302 and pay fine of
Rs.5,000/- and in default thereof, to undergo six
months rigorous imprisonment. The accused No.1-
Shivappa and accused No.2-Basappa were
sentenced to life imprisonment for the offences
punishable under Sections 364 read with Section
34 and fine of Rs.5,000/- and in default thereof, to
undergo six months rigorous imprisonment.
Accused No.1-Shivappa and accused No.2-Basappa
were sentenced to three years rigorous
imprisonment and fine of Rs.5,000/- and in default
thereof, to undergo six months rigorous
imprisonment for the offence punishable under
Section 201 read with Section 34 of IPC. Accused
No.3-Mahadevappa was convicted for life
imprisonment with fine of Rs.5,000/- and in default
thereof, to undergo six months rigorous
imprisonment for the offence under Section 302
read with Section 109 of IPC. All the sentences
were ordered to run concurrently.
3. The case of the prosecution is that, PW.8/CW.15-
Fakirappa Somappa Anigol had filed a complaint
before the Saudatti police station on 21.01.2013 at
20.00 hours alleging that on 19.01.2013 at 2.00
p.m., one Bhimappa had gone missing after having
gone to the Yaragatti Shandy market with the
appellant/ accused No.2-Basappa in Criminal
Appeal No.100336/2017 and later on he was seen
in the company of accused No.1-Shivappa
Mahadevappa Naykar, who is the appellant No.1 in
Criminal Appeal No.100346/2017, in a Dhaba near
Gondi Cross, thereafter Bhimappa did not return
home.
4. Subsequently, on 22.01.2013 at 16.00 hours,
Saudatti police have registered a Case in Crime
No.13/2013 on the basis of a complaint of one
PW.1/CW.1-Maruti Y. Gorbal, the elder brother of
Bhimappa against accused No.1-Shivappa Naykar,
accused No.2-Basappa and accused No.3-
Mahadevappa Naykar, for the offences punishable
under Sections 302, 201, 109 read with Section 34
of IPC. In the said complaint, it is alleged that
accused No.1-Shivappa and accused No.2-Basappa
and others had committed the murder of his
brother Bhimappa on the intervening night of
19.01.2013 in between 8.30 p.m. to 9.30 a.m. of
20.01.2013 and had concealed the body
somewhere. This murder having been committed
at the instigation of accused No.3-Mahadevappa,
due to the ill-will between the deceased on the one
hand and accused No.1-Shivappa & accused No.3-
Mahadevappa on the other. The dispute being as
regards the ration shop being run by the accused
No.3-Mahadevappa. It was further alleged that
accused No.2-Basappa had confessed to the said
murder before the complainant and his relatives
near the house of the complainant on 09.30 a.m.
on 20.01.2013 after confessing accused No.2-
Basappa ran away.
5. During the course of investigation, the dead body
of the deceased Bhimappa was traced by the police
near the curve bridge in the bushes by the side of
the Yaragatti-Gokak road on 25.01.2013, pursuant
thereto accused No.1-Sivappa and accused No.3-
Mahadevappa were arrested on 04.02.2013. The
accused No.2-Basappa was arrested on
23.04.2013.
6. After completion of the investigation in Crime
No.13/2013 a charge-sheet was filed against
accused No.1-Sivappa, accused No.2-Basappa and
accused No.3-Mahadevappa for the offences
punishable under Sections 302, 364, 201, 109 read
with Section 34 of IPC against accused No.1-
Shivappa, accused No.2-Basappa and accused
No.3-Mahadevappa, which came to be numbered
as S.C.No.157/2013 and has been assigned to the
learned II Additional District and Sessions Judge
Court, Belagavi.
7. After hearing the accused and the prosecution, the
trial Court framed charges which were read over to
the accused in the language known to him in
Kannada, the accused denied the same and
claimed to be tried.
8. In order to prove its case, the prosecution led
evidence of 26 witnesses (P.W.1 to P.W.26),
marked 45 documents i.e. Ex.P.1 to P.45 and 10
material objects i.e. MO.1 to MO.10. The trial Court
after conclusion of the trial convicted and
sentenced the accused as afore stated.
9. Sri. K.L.Patil, learned counsel appearing for the
accused No.2-Basappa, who is the appellant in
Criminal Appeal No.100336/2017 would submit
that:
9.1. The accused No.3-Mahadevappa is the father
of accused No.1-Shivappa. Accused No.2-
Basappa is a third party who is not a family
member and entirely unrelated to accused
No.1-Shivappa and accused No.3-
Mahadevappa.
9.2. The trial court has not taken into
consideration the evidence on record
inasmuch as the trial Court has looked at the
said evidence with colored glasses in order to
convict the accused, if the evidence had been
taken into consideration as it is, then the trial
Court ought to have acquitted the accused.
9.3. The entire case of the prosecution is on the
basis of the circumstantial evidence based on
the last seen theory which has not been
established.
9.4. There are two complaints which have been
filed which are not only contradictory, but
have been filed only with a view to harass the
accused.
9.5. The contention of the complainants is that
the date of incident is between 8.30 p.m. on
19.01.2013 to 9.30 a.m. on 20.01.2013. It is
further alleged that the complainants had
been informed of the murder of the deceased
on 21.01.2013 at around 9.30 a.m., despite
which the first complaint is filed as per Ex.P.3
on 20.01.20213 at 8.00 p.m. on the basis of
which FIR at Ex.P.17 was registered, which
was a missing complaint, wherein no
allegations have been made against the
accused.
9.6. It is only on the second complaint dated
22.01.2013, registered at 4.00 p.m., as per
Ex.P.1 on which basis FIR came to be
registered as per Ex.P.16 that the allegations
have been made against the accused
implicating them.
9.7. The allegations made in the complaint are
contradictory to the evidence on record which
has not been taken into consideration by the
trial Court.
9.8. The prosecution has been unable to prove the
last seen theory inasmuch as there is
contradiction in the evidence of
CW.17/P.W.4-Ramappa Naykar and
CW.18/P.W.5-Anand Uppin who are stated to
have last seen the deceased in the company
of the accused No.1 -Shivappa and accused
No.2-Basappa.
9.9. The entire case being based on circumstantial
evidence, it was required for the prosecution
to prove each and every link in the chain of
events, the same not having been established
by the prosecution, the trial Court ought to
have acquitted the accused.
9.10. The trial court could not have applied the
principles of extra-judicial confession
inasmuch as even as regards the extra-
judicial confession, there are numerous
contradictions that would go to the root of
the matter, thus requiring the same to be
disregarded.
9.11. Apart from the above, he submits that there
are several contradictions as regards the age
of the body found, the time at which the body
was found, which would mean that the
prosecution has not established its case.
9.12. There is no evidence which has been placed
on record to establish any ingredients of
Section 34 of IPC between accused No.1-
Shivappa, accused No.2-Basappa and
accused No.3-Mahadevappa. Section 106 of
the Indian Evidence Act would not be
applicable to the present case, more so, when
the last seen theory is not applicable.
9.13. The alleged motive which has been attributed
to accused No.1 -Shivappa and accused No.3-
Mahadevappa is of the year 2011 and the
incident has occurred in the year 2013 cannot
be said to have persisted till then.
9.14. He, therefore, submits that the appeal has be
allowed and the accused acquitted.
10. Sri. Aravind D. Kulkarni, learned counsel for the
Appellants in Criminal Appeal No.100336/2017,
while adopting the arguments of Sri. K.L.Patil in
Criminal Appeal No.100346/2017, would submit
that,
10.1. There is a gross delay in filing of the
complaint in as much as the allegation is that
the deceased went missing between
19.01.2013 and 20.01.2013, the first
complaint was filed on 21.01.2013 at 8.00
p.m., the second complaint was filed on
22.01.2013 at 4.00 p.m.
10.2. All the evidence on record is that of
interested witnesses, who are the relatives of
the deceased.
10.3. The seizure of stones allegedly used for
causing the death of the deceased were
seized on 04.02.2013 when in fact, the body
was recovered on 25.01.2013.
10.4. The extra-judicial confession cannot be
looked into. In this regard, he relies upon
the decision of the Apex Court in Criminal
Appeal No.333-334/2017, [Shailendra
Rajdev Pasvan and others, Vs. State of
Gujarat, etc.,] more particularly
paragraph Nos.12, 13, 14, 18, 19 and 20
which are reproduced hereunder for easy
reference.
12. Thus the entire case of the prosecution is
based on circumstantial evidence. It is well settled
that in a case which rests on circumstantial
evidence, law postulates two fold requirements:-
(i) Every link in the chain of the
circumstances necessary to establish the guilt of
the accused must be established by the prosecution
beyond reasonable doubt.
(ii) All the circumstances must be consistent
pointing only towards the guilt of the accused.
13. This court in the case of Sharad
Birdichand Sharda v/s State of Maharashtra1 has
enunciated the aforesaid principle as under:-
"The normal principle in a case based on
circumstantial evidence is that the
circumstances from which an inference of guilt
is sought to be drawn must be cogently and
firmly established; that those circumstances
should be of a definite tendency unerringly
pointing towards the guilt of the Accused; that
the circumstances taken cumulatively should
form a chain so complete that there is no
escape from the conclusion that within all
human probability the crime was committed by
the Accused and they should be incapable of
explanation on any hypothesis other than that
of the guilt of the Accused and inconsistent with
his innocence".
14. Another important aspect to be
considered in a case resting on circumstantial
evidence is the lapse of time between the point
when the accused and deceased were seen
together and when the deceased is found dead. It
ought to be so minimal so as to exclude the
possibility of any intervening event involving the
death at the hands of some other person. In the
case of Bodh Raj Alias Bodha v/s State of Jammu
and Kashmir, Rambraksh v/s State of Chhattisgarh,
Anjan Kumar Sharma v/s State of Assam4
following principle of law, in this regard, has been
enunciated:-
"The last seen theory comes into play where
the time gap between the point of time when
the Accused and deceased were seen last alive
and when the deceased is found dead is so
small that possibility of any person other than
the Accused being the author of crime
becomes impossible. It would be difficult in
some cases to positively establish that the
deceased was last seen with the Accused
when there is a long gap and possibility of
other persons coming in between exists. In
the absence of any other positive evidence to
conclude that Accused and deceased were last
seen together, it would be hazardous to come
to a conclusion of guilt in those cases".
18. Lastly, the extra-judicial confession is
questionable. In the complaint filed by Paramhansh
(PW-1) he had alleged that the appellants had
acted upon the behest of Ramkeval but did not
allude, as admitted in his cross-examination, to any
confession being made by Appellant No. 1 about
abducting Arjun and handing him over to Appellant
Nos. 2 and 3. That such a confession was allegedly
made emerged during the examination of the
Paramhansh (PW-1), Sadhusharan (PW-9) and
Hiralal Yadav (PW-22). Notwithstanding the fact
that Sadhusharan (PW-9), as mentioned earlier, is
the brother-in-law of the complainant -
Paramhansh (PW-1) and Hiralal (PW-22) a
neighbour, there are noticeable contradictions
about the circumstances in which the confession
was made, viz., the number of people in whose
presence it was made, degree of
coercion/fear/intimidation that elicited the alleged
confession, among others.
19. In Sahadevan v. State of T.N.
referring to the aspect of evidentiary value of
extra-judicial confession, it was observed:
"14. It is a settled principle of criminal
jurisprudence that extra-judicial confession is a
weak piece of evidence. Wherever the court,
upon due appreciation of the entire prosecution
evidence, intends to base a conviction on an
extra-judicial confession, it must ensure that
the same inspires confidence and is
corroborated by other prosecution evidence. If,
however, the extra-judicial confession suffers
from material discrepancies or inherent
improbabilities and does not appear to be
cogent as per the prosecution version, it may be
difficult for the court to base a conviction on
such a confession. In such circumstances, the
court would be fully justified in ruling such
evidence out of consideration."
Elaborating on the jurisprudence that has evolved
with regard to extra-judicial confessions, this Court in
Sahadevan (supra) had stipulated the principles that
are required to be kept in mind while relying on extra-
judicial confession as evidence. These principles have
been succinctly mentioned in Jagroop Singh v. State of
Punjab as:
"30. Recently, in Sahadevan v. State of T.N.,
after referring to the rulings in Sk. Yusuf v.
State of W.B. and Pancho v. State of Haryana, a
two-Judge Bench has laid down that the extra-
judicial confession is a weak evidence by itself
and it has to be State of Haryana, a two-Judge
Bench has laid down that the extra-judicial
confession is a weak evidence by itself and it
has to be examined by the court with greater
care and caution; that it should be made
voluntarily and should be truthful; that it should
inspire confidence; that an extra-judicial
confession attains greater credibility and
evidentiary value if it is supported by a chain of
cogent circumstances and is further
corroborated by other prosecution evidence;
that for an extra-judicial confession to be the
basis of conviction, it should not suffer from any
material discrepancies and inherent
improbabilities; and that such statement
essentially has to be proved like any other fact
and in accordance with law."
20. In the present case, there are no eye
witnesses to affirm and corroborate the fact that
the Appellant No. 1, as allegedly confessed, had
taken Arjun on a bicycle and handed over the child
to Appellant Nos. 2 and 3. Further, the unfounded
last seen theory, contradicting medical evidence,
and facts of the case, particularly concerning the
recovery of the body, belie the material details of
the alleged extra-judicial confession. Ergo, in the
absence of any credible corroboration of both: the
actual occurrence of such a confession and the
incriminating facts alleged to have been disclosed
in the confession, this Court cannot accept that the
conviction of the appellants can be sustained on
the basis of such a confession."
10.5. He also relies upon the decision of the Apex
Court in the case of Anjan Kumar Sarma
and others Vs. State of Assam,
reported in AIR 2017 SC 2617 more
particularly paragraph Nos.13, 15, 18 and
21, which are reproduced hereunder for
easy reference:
"13. Admittedly, this is a case of circumstantial
evidence. Factors to be taken into account in
adjudication of cases of circumstantial evidence laid
down by this Court are:
(1) The circumstances from which the conclusion
of guilt is to be drawn should be fully established.
The circumstances concerned 'must' or 'should' and
not 'may be' established;
(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
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.
15. It is no more res integra that suspicion
cannot take the place of legal proof for sometimes,
unconsciously it may happen to be a short step
between moral certainty and the legal proof. At
times it can be a case of "may be true." But there
is a long mental distance between "may be true"
and "must be true" and the same divides
conjunctures from sure conclusions.
18. The circumstance of last seen together
cannot by itself form the basis of holding the
accused guilty of the offence. In Kanhaiya Lal v.
State of Rajasthan (2014) 4 SCC 715 : (AIR 2014
SC (Supp) 788, Paras 12 & 14) this court held that:
"12. The circumstance of last seen together
does not by itself and necessarily lead to the
inference that it was the accused who committed
the crime.
There must be something more establishing
connectivity between the accused and the crime.
Mere non-explanation on the part of the appellant,
in our considered opinion, by itself cannot lead to
proof of guilt against the appellant.
15. The theory of last seen-the appellant
having gone with the deceased in the manner
noticed hereinbefore, is the singular piece of
circumstantial evidence available against him. The
conviction of the appellant cannot be maintained
merely on suspicion, however strong it may be, or
on his conduct. These facts assume further
importance on account of absence of proof of
motive particularly when it is proved that there was
cordial relationship between the accused and the
deceased for a long time. The fact situation bears
great similarity to that in Madho Singh v. State of
Rajasthan [(2010) 15 SCC 588]."
In Arjun Marik v. State of Bihar, 1994 Supp (2)
SCC 372 this court held that:
"31. Thus the evidence that the appellant
had gone to Sitaram in the evening of 19-71985
and had stayed in the night at the house of
deceased Sitaram is very shaky and inconclusive.
Even if it is accepted that they were there it would
at best amount to be the evidence of the appellants
having been seen last together with the deceased.
But it is settled law that the only circumstance of
last seen will not complete the chain of
circumstances to record the finding that it is
consistent only with the hypothesis of the guilt of
the accused and, therefore, no conviction on that
basis alone can be founded."
21. It is clear from the above that in a where
the other links have been satis made out and the
circumstances to the guilt of the accused, the
circumstance of last seen together and absence of
explanation would provide an additional link which
completes the chain. In the absence of proof of
other circumstances, the only circumstance of last
seen together and absence of satisfactory
explanation cannot be made the basis of
conviction. The other judgments on this point that
are cited by Mr.Venkataramani do not take a
different view and, thus, need not be adverted to.
He also relied upon the judgment of this Court in
State of Goa v. Sanjay Thakran, (2007) 3 SCC 755
: (AIR 2007 SC (Supp) 61 Para 29) in support of
his submission that the circumstance of last seen
together would be a relevant circumstance in a
case where there was no possibility of any other
persons meeting or approaching the deceased at
the place of incident or before the commission of
crime in the intervening period. It was held in the
judgment as under:-
"34. From the principle laid down by
this Court, the circumstance of last seen would
normally be taken into consideration for finding the
accused guilty of the offence charged with when it
is established by the prosecution that the time gap
between the point of time when the accused and
the deceased were found together alive and when
the deceased was found dead is so small that
possibility of any other person being with the
deceased could completely be ruled out. The time
gap between the accused persons seen in the
company of the deceased and the detection of the
crime would be a material consideration for
appreciation of the evidence and placing reliance
on it as a circumstance against the accused. But, in
all cases, it cannot be said that the evidence of last
seen together is to be rejected merely because the
time gap between the accused persons and the
deceased last seen together and the crime coming
to light is after (sic of) a considerable long
duration. There can be no fixed or straitjacket
formula for the duration of time gap in this regard
and it would depend upon the evidence led by the
prosecution to remove the possibility of any other
person meet move the possibility of any other
person meeting the deceased in the intervening
period, that is to say, if the prosecution is able to
lead such an evidence that likelihood of any person
other than the accused, being the author of the
crime, becomes impossible, then the evidence of
circumstance of last seen together, although there
is long duration of time, can be considered as one
of the circumstances in the chain of circumstances
to prove the guilt against such accused persons.
Hence, if the prosecution proves that in the light of
the facts and circumstances of the case, there was
no possibility of any other person meeting or
approaching the deceased at the place of incident
or before the commission of the crime, in the
intervening period, the proof of last seen together
would be relevant evidence. For instance, if it can
be demonstrated by showing that the accused
persons were in exclusive possession of the place
where the incident occurred or where they were
last seen together with the deceased, and there
was no possibility of any intrusion to that place by
any third party, then a relatively wider time gap
would not affect the prosecution case."
As we have held that the other
circumstances relied upon by the prosecution are
not proved and that the circumstances of last seen
together along with the absence of satisfactory
explanation are not sufficient for convicting the
accused. Therefore the findings recorded in the
above judgment are not applicable to the facts of
this case."
10.6. Based on the above, he submits that, this
Court ought to intercede in the matter and
the order of conviction overturned,
resulting in acquittal of the accused.
11. Sri. V.M.Banakar, learned Addl. SPP would submit
that:
11.1. CW.1/P.W.1-Maruthi Yallappa, CW.13/P.W.2-
Saroja, CW.14/P.W.3-Hanmant,
CW.19/P.W.6-Demappa and CW.15/P.W.8-
Fakeerappa have consistently stated about
the motive for causing the death of the
deceased, namely the opposition from the
deceased against the ration shop being run
by the accused No.3-Mahadevappa, Deceased
and his friends setting up a society to obtain
authorization to run a ration shop and in this
regard, he refers to Ex.P.13 being the
representation given by various villagers
against the accused No.3-Mahadevappa's
ration shop, at the behest of the deceased,
whose signature is found at Sl.No.52 thereof.
11.2. As regards extra-judicial confession he
submit that CW.1/P.W.1-Maruthi Yallappa,
CW.13/P.W.2-Saroja, CW.19/P.W.6-
Demappa, CW.20/PW.7-Ashok Modalabhavi
and CW.15/P.W.8-Fakeerappa have
categorically deposed about the accused
No.2-Basappa having confessed before them
as regards accused No.1-Shivappa and
accused No.2-Basappa having caused the
death of the deceased on the instruction of
accused No.3-Mahadevappa. This confession
having been made in front of general public,
it is admissible in evidence.
11.3. As regards the identification of the body he
submits that CW.1/P.W.1-Maruthi Yallappa
and CW.13/P.W.2-Saroja being the brother
and wife of the deceased have identified the
body on the basis of the clothes which were
seized by CW.40/P.W.14-Police Constable,
Murgod Police Station as per Ex.P.15 for
which CW.6/P.W.20-Ramanna was the panch
witness. Therefore, he submits that the body
is that of the deceased which is not in doubt
nor has it been questioned during the course
of the trial.
11.4. As regards last seen theory he submits that,
CW.17/P.W.4-Ramappa Naykar and
CW.18/P.W.5-Anand Uppin have categorically
deposed having seen the deceased in the
company of accused No.1-Shivappa and
accused No.2-Basappa at 8.30 pm. Prior to
that CW.20/PW.7-Ashok Modalabhavi has
spoken of the deceased and accused No.2-
Basappa leaving together and thereafter
CW.13/P.W.2-Saroja has spoken of the
deceased and accused No.2-Basappa leaving
to carry out some work. Therefore, the chain
of events indicate that accused No.2-Basappa
was present with the deceased throughout
the day and even up to 8.30 p.m. as per the
evidence of CW.17/P.W.4-Ramappa Naykar
and CW.18/P.W.5-Anand Uppin. It is only
thereafter that the deceased went missing
and his body was found and as such, the last
seen theory would apply.
11.5. He submits that the order of conviction
therefore has to be confirmed.
12. In reply, Sri. K.L.Patil, learned counsel for the
accused No.2-Basappa would submit that, there is
no recovery which has been made through the
accused inasmuch as the body was recovered on
25.01.2013, when the accused were not present,
panchanama was conducted on 26.01.2013. The
accused have not taken the police to the spot on
25.01.2013, it is the police who took the accused
No.1-Shivappa and accused No.3-Mahadevappa to
the spot on 04.02.2013 and seized the stones.
Hence, Section 27 of the Indian Evidence Act is not
applicable. He submits that, one of the most
important witness, CW.16-Siddappa, has not been
examined and hence, adverse inference is required
to be drawn. On the above basis, he submits that
the order of conviction is required to be reversed.
13. It is in the above background, that we are required
to examine and re-appreciate the evidence on
record to ascertain whether the order of conviction
and the consequent order of sentence is proper
and correct.
14. P.W.1/C.W.1 Maruti Yallappa Garabala, who is the
complainant has deposed that-
14.1. The deceased Bhimappa was his brother and
he knows accused No.1-Shivappa, accused
No.2-Basappa and accused No.3-
Mahadevappa. He has stated that the
deceased Bhimappa had studied up to B.A.,
B.Ed. Accused No.3-Mahadevappa had a
ration shop with 530 ration cards attached to
it, but he was only providing material for 400
ration cardholders. Hence, the deceased
Bhimappa had formed a society and a
representation came to be made about the
malpractices of accused No.3-Mahadevappa,
to the Deputy Commissioner and the
Tahashildar, who had in turn ordered accused
No.3-Mahadevappa to close the shop pending
an enquiry. In view thereof, the shop was
closed for 5 months and all the cards were
shifted to Basaveshwar Society.
14.2. His brother had formed a group/gang of
labourers who would go to different
sugarcane fields to cut the sugarcane crop.
He had been designated as the gangman i.e.
the leader of the said group of workers.
14.3. His brother on 19.01.2013 at 9.00 a.m. went
to work in the sugarcane field of
CW.17/P.W.4-Ramappa Naykar and
CW.1/P.W.1-Maruthi Yallappa went to his
field in the morning. When he came back
home at 6.00 p.m., in the evening, the
deceased Bhimappa had not come back. Even
when at 7.00 p.m., Bhimappa had not come
back, his uncle Siddappa (not examined) had
told him that Bhimappa was with accused
No.2 Basappa during the day. Siddappa went
and spoke to the father of accused No.2
Basappa who informed him that accused No.2
Basappa had also not came home and they
may come back in the morning.
14.4. In the morning when the tractor driver
CW.18/P.W.5-Anand Uppin came to pickup
Bhimappa and his other labourers, at that
time all the people in the house of Bhimappa
and relatives had gathered, CW.18/P.W.5-
Anand Uppin informed the persons gathered
that after cutting the crop in the
CW.17/P.W.4-Ramappa Naykar field the
deceased and accused No.2 Basappa had
gone to Yaragatti and when CW.17/P.W.4-
Ramappa Naykar and CW.18/P.W.5-Anand
Uppin were returning back after unloading
the sugarcane they saw the deceased along
with accused No.2-Basappa and another
person in a Dhaba, near gondi cross, at
around 8.30 p.m.
14.5. Hence, at 9.30 a.m., CW.1/P.W.1-Maruthi
Yallappa went to the house of accused No.2-
Basappa, found accused No.2-Basappa there
and took him to his house for enquiry. At that
time, Ishwarappa Gorabal (C.W.26),
Shivaputrappa Gorabal (C.W.27), Fakirappa
(CW.15/P.W.8), Yamanappa Naikar
(CW.9/P.W.22), Babu Badiger (C.W.31),
Paramesh Naikar (C.W.29), Saroja
(CW.13/P.W.2), the mother of Bhimavva (not
examined) were present at the spot.
14.6. CW.1/P.W.1-Maruthi Yallappa enquired with
accused No.2-Basappa as to the whereabouts
of his brother and why he had not come back
home, at that time accused No.2-Basappa
confessed that since Bhimappa had closed
the shop of accused No.3-Mahadevappa,
accused No.3 ordered him and accused No.1-
Shivappa to murder Bhimappa, having said
this accused No.2-Basappa ran away.
14.7. On 21.10.2013 CW.1/P.W.1-Maruthi Yallappa
searched for Bhimappa, but in vain. He went
to the Murugodu police station at night and
gave complaint, but the police did not
register it. On 21.01.2013 his father-in-law
Fakirappa (CW.15/P.W.8) filed a missing
complaint before the Savadatti Police Station.
He has stated that on 22.01.2013 he went to
the Savadatti Police Station at 4.00 p.m. and
informed them that the accused had
murdered his brother. He has identified the
complaint at Ex.P.1 and his signature at
Ex.P.1A.
14.8. On 25.01.2013 the Savadatti Police called
him near the curved bridge of Yaragatti town
and had shown him a dead body. The dead
body's face was burnt to a crisp. He identified
the body as that belonging to his brother on
the basis of the clothes worn by him i.e. shirt
and pant. He has identified the blood stained
shirt and pant of the deceased which were
marked as MOs.1 and 2. He has identified his
knicker as MO.3.
14.9. He has stated that, he had gone to the
Munuvalli police station at 10.00 a.m on
20.01.2013 after accused No.2-Basappa
confessed of the murder of the brother, but
the PSI there directed him to file a complaint
in Murugodu police station. At 6.00 p.m. on
the same day when he went to the Murugodu
police station, PSI refused to take complaint.
On 21.01.2013 he along with others had
gone to the Belagavi and gave representation
to the Inspector General of Police who in turn
gave a letter to them and directed them to
deliver it to Savadatti CPI. He has stated that
accordingly he met CPI and gave the letter of
the IGP, it is only then that the CPI started to
search for the deceased. The complaint came
to be registered on 22.01.2013 at 4.00 p.m.
by the Savadatti CPI. The delay in filing the
complaint is on account of the aforesaid
reason.
14.10. During the course of cross-examination, he
has admitted that he had two siblings, and
both were dead, his father had also expired.
He is a farmer having 3 acres of farm land.
His brother had been married to Meenakshi,
but they had divorced as Meenakshi had an
affair with one Malleshi. He denied that the
deceased Bhimappa was having any quarrel
with Malleshi.
14.11. His cousin Dyavappa was married to
Bhimavva, he denied that Bhimavva was
having an affair with one Pundalik and that
the deceased had a quarrel with the said
Pundalik. He however, stated that there is a
complaint which has been filed in this regard.
14.12. He admitted that the deceased Bhimappa had
contested the panchayat elections, the
accused had supported Pundalik's uncle
Chidananda who won the election.
14.13. He denies that his brother had any quarrel
with the Hanumanth Kenchannavar as
regards the public well near his house that
the deceased used to irrigate the fields.
14.14. He has denied that his brother had a quarrel
with the Gote family for loosing the bid to
them at Ramasaheb place and in that regard
a complaint had been filed in the Murugodu
police station.
14.15. He denied that the deceased Bhimappa had
quarreled with the brothers of his father. He
denied the suggestions that the deceased had
compromised the accident that had happened
between a Tom-Tom vehicle and his tractor
since the vehicle drivers did not have valid
license and two persons had been injured. He
further contended that the deceased took
Rupees one lakh each from the tractor and
Tom-Tom driver for payment of compromise,
however, since the compromise did not get
effected, they started asking for their money.
14.16. He admitted that when the Sugar Factory
pays the workers, the deceased took an
additional sum of Rs.2,000/- from the
sugarcane field owner. He denied that there
was any quarrel between himself and any
gang members for not distributing the money
properly.
14.17. He has stated about his sister-in-law Saroja
(CW.13/P.W.2) having told him that the
deceased Bhimappa and accused No.2
Basappa had gone to Munuvalli at 6.00 p.m.
But however, till 8.00 a.m. next day, until he
met the tractor driver he did not search for
his brother. After accused No.2 Basappa
confessed about the crime and ran away
when he admits that there were 5 to 6
people.
14.18. He states that thereafter he tried searching
for his brother. He stated that, he did not go
to accused No.3-Mahadevappa's house, but
started searching for the deceased Bhimappa.
14.19. On 25.01.2013, the CPI had called him at
5.00 p.m. and informed that they had found
a body on the Gokak road. Eight of them
went to see the body, and the police were
there. He admits that, the face was smashed
and maggots had eaten it, but the rest of the
body was intact. He denied that animals had
eaten the body. He denied that the body did
not belong to the deceased Bhimappa and
that the clothes were not of Bhimappa. He
denied that, there was no enmity between
the deceased Bhimappa and accused No.3 -
Mahadevappa. Apart from that, he has denied
various other suggestions put forward and
has supported the case of the prosecution.
15. P.W.3/C.W.13 is Saroja Gorabal, the wife of the
deceased. She deposed that-
15.1. The complainant is her brother-in-law, the
deceased was her husband. The witnesses
are known to her. She knows the accused
who were before the Court and identified
them. She has also reiterated the work being
done by the deceased Bhimappa, the dispute
as regards the ration card with accused No.3
-Mahadevappa.
15.2. She has stated that about 9.00 a.m., on
19.01.2013 her husband Bhimappa gone to
CW.17/P.W.4-Ramappa Naykar farm to cut
the sugarcane and thereafter her husband
went to Yaragatti to distribute the pay to the
other workers. She met her husband at
Yaragatti Santhe, purchased various items,
when they were returning back to the home
accused No.2 Basappa came and informed
that he had some work with the deceased,
hence, her husband asked her to proceed to
the house saying that he will come back later.
In view thereof, she got into the jeep which
ferried the people and got back home.
15.3. She has stated that her husband did not
come home even by 8.00 p.m. that day.
When she informed her mother-in-law and
father-in-law. Her mother-in-law informed
CW.13/P.W.2-Saroja's brother-in-law
Siddappa (C.W.16) who has not been
examined. C.W.16 went to the accused No.2
-Basappa's house at 1.00 a.m. to enquire
about whereabouts of her husband Bhimappa
when the father of the accused No.2 told him
that his son had also not came back and they
may come back in the morning.
15.4. In the morning of 20.01.2013, when Anand
Uppin (CW.18/P.W.5) came to the village in
his tractor to take the workers to the
sugarcane field he told her and the others
that he has seen her husband Bhimappa in a
Dhaba at Gondi Cross along with accused
No.1 -Shivappa and accused No.2 -Basappa.
15.5. On being so informed CW.1/P.W.1-Maruthi
Yallappa went to the accused No.2 -Basappa's
house at 9.00 a.m. and brought accused No.2
-Basappa who confessed before everybody
that accused No.3 -Mahadevappa had told
him and accused No.1 -Shivappa to murder
Bhimappa. Therefore, accused No.1-Shivappa
and accused No.2-Basappa murdered
Bhimappa near the curved bridge of Yaragatti
village. After saying so, accused No.2 -
Basappa ran away.
15.6. On 25.01.2013, the police called her and
others to curved bridge near Yaragatti, where
they were shown a body. She identified the
said body to be that of her husband on the
basis of the clothes on the dead body and the
characteristics of the body. The said clothes
were identified as MOs.1 to 3. She has stated
that, accused Nos.1 to 3 have murdered her
husband Bhimappa because of the grudge
that accused No.3 -Mahadevappa had with
her husband regarding the ration shop.
15.7. During her cross-examination she had
admitted that her husband Bhimappa had
been married to another woman before
marrying her, but they were divorced. She
stated that, she does not know if her husband
had any quarrel with the neighbour
Fakirappa. She denied that she had tried to
commit suicide because of her husband
torturing her. But she admits that she tried to
commit suicide on account of the harassment
from her children.
15.8. She admitted that her husband had filed a
complaint against accused No.3-
Mahadevappa's ration ship and he had
formed a society, but she denied that the
authorities did not give the deceased
permission to run ration shop on account of
he having filed a false complaint.
15.9. She states that, she met her husband
Bhimappa at Yaragatti Shandy market, when
she and her daughter had gone there and
they were there till 7.30 p.m. She reiterated
the various complaints which were sought to
be filed, visit to the IGP's office, letter given
by the IGP and thereafter the complaint being
registered.
15.10. She has denied all suggestions put to
her during the course of cross-examination.
She has withstood the test of cross-
examination and supported the case of the
prosecution.
16. CW.14/P.W.3 Hanamanth Kareppa Ramapur has
stated that, he knows the deceased and the
accused. He has stated about the deceased having
given a complaint about the ration shop run by the
accused No.3-Mahadevappa to the Deputy
Commissioner which led to revocation of license of
accused No.3-Mahadevappa. He denied that he had
given any statement to the police. The Public
Prosecutor therefore sought permission to treat
CW.14/P.W.3-Hanmant as hostile and cross-
examined him. Though he admitted that, he had
gone to the house of accused No.3-Mahadevappa
in the evening of 18.01.2013, he has denied all
other suggestions put to him. Nothing much was
elicited from him during the course of cross-
examination. During the course of cross-
examination by the counsel for the accused he has
spoken of his residence, location of ration shop of
accused No.3-Mahadevappa, the deceased having
petitioned the Deputy Commissioner's office
alleging that accused No.3-Mahadevappa did not
properly distribute the ration to 130 people, he
denied that the deceased was trying to some how
acquire the ration shop of accused No.3-
Mahadevappa, he denied that the deceased was
always drinking alcohol. He also denied that the
deceased wife (CW.13/P.W.2) had taken poison.
17. CW17/P.W.4 Ramappa Dyamappa Naikar has
stated that his land is situated 2 kilometers from
the hometown. He grows sugarcane in the said
land. He knows the deceased and the accused. He
has stated that on the fateful day, the deceased
came with his other workers to get the sugarcane
in his farm, the sugarcane was loaded on the
tractor of Anand (CW.18/P.W.5) and at 11'o clock
CW.17/P.W.4-Ramappa Naykar and CW.18/P.W.5-
Anand Uppin went to the factory in the tractor
loaded with the sugarcane. He was informed that
the deceased and the other workers went the
Yaragatti Shandy market. He has stated that in the
evening at 8.30 p.m., near Gondi Cross, when they
were returning after delivering the sugarcane at
the factory, the deceased was sitting with the
accused No.1 -Shivappa and Accused No.2-
Basappa in a Dhaba. When CW.17/P.W.4-Ramappa
Naykar enquired with him if he would be coming
with him in the tractor to the village, the deceased
has informed him that he will come on the
motorcycle. Hence, CW.17/P.W.4-Ramappa Naykar
left to his hometown. He has further deposed that
when CW.1/P.W.1-Maruthi Yallappa came to his
house at 9'O clock on the next day morning and
enquired about the deceased he has told him about
he having seen the deceased in the company of
accused No.1 -Shivappa and Accused No.2-
Basappa at the Dhaba. He later on came to know
about the murder of the deceased by accused
No.1-Shivappa and accused No.2-Basappa on the
instructions of accused No.3-Mahadevappa. During
the course of cross-examination, he has stated
that he had 04 acres of farm in Somapur, it would
take one day to load and unload the cane. He
came to know about the deceased death after 8
days, but he did not go to see the body and that
the police did not enquire with him about the
matter.
18. C.W.18/P.W.5 Anand Uppin has stated that he is a
tractor driver who would transport the sugarcane
as also the laborers. He knows CW.17/P.W.4-
Ramappa Naykar who has a sugarcane farm which
was cut by the deceased and his gang of laborers.
On 19.01.2013, the deceased Bhimappa and his
gang went to Talur at 2.00 p.m. and thereafter to
Yaragatti Shandy market. He further stated that
when he and CW.17/P.W.4-Ramappa Naykar were
coming back from the factory, he saw the
deceased in the company of accused No.2-Basappa
at a Dhaba near the Gondi cross. Hence, he asked
him whether he wanted a lift in the tractor for that,
the deceased replied that he will come on the
motorcycle. In the cross-examination, he has
admitted that the deceased Bhimappa has taken
additional amount of Rs.1500/- from
CW.17/P.W.4-Ramappa Naykar. He has stated that
there were constant quarrels between the
deceased Bhimappa and the other laborers as
regards the additional amounts being taken by the
deceased. He has stated that it takes about 2-3
days to unload the sugarcane at the factory. Gondi
cross is a major junction with lot of people
traveling there. He denied that he went there to
eat and stated that he was there only for five
minutes. He denied that he saw anything at the
Dhaba. He has stated that the police had not
enquired with him, that he has not seen the body
of the deceased Bhimappa. He denied all other
suggestions. He has denied that he has gone inside
the Dhaba. He has also stated that he has not seen
anything inside the Dhaba. CW.18/P.W.5-Anand
Uppin has not completely supported the case of the
prosecution.
19. C.W.19/P.W.6 Dyavappa Jamanal has stated that
he knows CW.1/P.W.1-Maruthi Yallappa, deceased
as also the accused. He has spoken of the
deceased having formed a society and complained
against the accused No.3 Mahadevappa's shop
which was closed down by the authorities for
nearly five months after which the licence of
accused No.3 Mahadevappa was reinstated. He
was part of the gang of laborers of 10 of which the
deceased was the leader, who made payment. On
19.09.2013, they received payment at Yaragatti
Shandy market.
20. CW.17/P.W.4-Ramappa Naykar and CW.18/P.W.5-
Anand Uppin went to the Factory. On the next day
even though CW.18/P.W.5-Anand Uppin called him
to cut the sugarcane, he refused to go without the
deceased. When CW.18/P.W.5-Anand Uppin
informed him about meeting the deceased near the
gondi cross. He has also stated about how
CW.1/P.W.1-Maruthi Yallappa went and got
accused No.2 Basappa who confessed to the
murder of the deceased and ran away. During the
course of cross-examination, he has stated about
how the deceased had constituted a society called
'Yuvaka Mandali'. He denied that accused No.3
Mahadevappa has contested the panchayat
election. He stated that accused No.3
Mahadevappa had supported one Chidananda
against the deceased. He states that, all the
laborers went to Yaragatti at 2.00 p.m. and he
went to Somapur along with his wife at 5.00 p.m.
He did not see accused No.2 Basappa and the
deceased at the Shandy market. He has stated
that when accused No.2-Basappa came and
confessed about the crime there were 20 people at
the place after confessing, accused No.2-Basappa
ran away, they did not try to catch him. He has
stated that, he accompanied others for two days to
search for the deceased. The police took his
statement on 20.01.2013, but he did not tell the
police about accused No.2- Basappa confessing. He
denied that the deceased was drunkard or that he
had many enemies. He denied all other
suggestions.
21. C.W.20/P.W.7 Ashok Basavanneppa Madalabhavi
has reiterated what has been stated by
CW.19/P.W.6-Demappa. During the course of
cross-examination, he has answered as regards
the quantum of sugarcane cut. He stated that he
does not know the amount paid by the factory, but
he was paid Rs.200/-per day. He received his
payment at Yaragatti Shandy market at 3.00 p.m.,
where he stayed for another half and hour and left
for home. He had met accused No.2-Basappa and
the deceased at the Shandy market, but does not
know that, on the next day morning CW.1/P.W.1-
Maruthi Yallappa who brought accused No.2-
Basappa. He has denied that accused No.3-
Mahadevappa had participated in the panchayat
election, but has stated that accused No.3-
Mahadevappa has supported Chidananda who was
contesting against the deceased.
22. Again, he stated that, when he was at deceased's
house at 8.00 a.m., at 9.00 a.m. CW.1/P.W.1-
Maruthi Yallappa brought accused No.2- Basappa
when accused No.2- Basappa confessed about
murdering the deceased and ran away. He states
that he did not chase after him, but others did, he
does not know if they caught him. He stated that,
thereafter he searched for the deceased for two
days and gave a statement to the police, but has
stated that he did not inform the parents about the
CW.1/P.W.1-Maruthi Yallappa bringing accused
No.2-Basappa and or accused No.2-Basappa
confessing about the killing of the deceased. He
denied that the deceased had many enemies.
23. C.W.15/P.W.8 Fakirappa Somappa Anigol has
stated that CW.1/P.W.1-Maruthi Yallappa is his
cousin, who has married his sister. He knows the
accused, he has stated about the disputes relating
to the ration shop between the deceased and the
accused No.3-Mahadevappa, formation of society
by the deceased, closure of accused No.3-
Mahadevappa's ration shop by the authorities and
reopening thereof, after a period of 5 months. He
has stated about accused No.1-Shivappa being
accused No.3-Mahadevappa's son and accused
No.2-Basappa being accused No.1-Shivappa's
friend. He has stated that all accused held grudge
against the deceased for the ration shop incident.
When the deceased did not come back home, the
deceased's mother enquired with him and C.W.16-
Sidappa who went to accused No.2-Basappa's
house and enquired with the accused No.2-
Basappa's father who had informed that his son
accused No.2-Basappa had also not come and may
come in the morning.
24. Next day morning when CW.18/P.W.5-Anand Uppin
came near the house of the deceased, he had
informed about him seeing accused No.1-Shivappa
and accused No.2-Basappa in the company of the
deceased at the Dhaba.
25. He has stated about how CW.1/P.W.1-Maruthi
Yallappa caught accused No.2-Basappa the next
day and brought him to the house of the deceased,
where accused No.2- Basappa confessed about
killing the deceased at the instructions of accused
No.3-Mahadevappa, and accused No.2-Basappa
running away after the confession.
26. On coming to know of the same, he has stated that
he along with the others had searched for the
deceased, but could not find him. Hence, he went
to Savadatti police station and filed a complaint.
He has further stated that, how the police had told
him that it can only be a missing complaint and not
a complaint of murder till the body is found. He
has identified his complaint as Ex.P.3. He has
stated about how he had gone along with
CW.1/P.W.1-Maruthi Yallappa and others to I.G.P
office in Belagavi. He has stated about how on
25.01.2013 the deceased body was found near the
curved bridge of Yaragatti town on Yaragatti-Gokak
Road and he having gone there and seen the body.
During the course of cross-examination, he has
stated about his ration card being attached to the
shop of accused No.3-Mahadevappa who has given
him ration without any problem. He has stated that
the deceased was married to CW.13/P.W.2-Saroja,
but denied any knowledge of any disputes in the
Court between the deceased and his first wife. He
stated that he does not know that the deceased
wanted to establish his own ration shop. Though
he was with the deceased and his gang on
19.01.2013 for loading of the sugarcane crop, he
did not go to the Yaragatti Shandy market. On
being informed about Bhimappa having not come
back, he along with his uncle Siddappa (C.W.16)
(not examined) had searched for the deceased.
27. He has also spoken about how on the next date
when CW.18/P.W.5-Anand Uppin came to the
house of the deceased, CW.1/P.W.1-Maruthi
Yallappa had gone and caught accused No.2-
Basappa to the said place, accused No.2-Basappa
having confessed and ran away. He has stated
about how on 25.01.2013, the Inspector called
CW.1/P.W.1-Maruthi Yallappa at 2.30 p.m., to
identify the body found near the curved bridge of
Yaragatti town and he having accompanied
CW.1/P.W.1-Maruthi Yallappa. He denied all other
suggestions made to him.
28. C.W.37/P.W.9 Uday Manohar Angadi, the Doctor
who conducted the postmortem on the body of the
deceased, has opined that the cause of death of
the deceased was due to a heavy blow on the
head. He has spoken about the skull bone had
been sent to the FSL for examination and FSL has
opined that the head injury on the skull was ante-
mortem i.e. prior to the death. He received three
large stones from the Investigating Officer and has
opined that the injuries could have been caused by
the said stones. During the course of cross-
examination, he has admitted that, it was not
possible to recognize the face of the deceased,
several bones were not present on the deceased
face, maggots were present on the body, nothing
much was elicited from him, during the course of
cross-examination.
29. C.W.39/P.W.10 is the Constable who delivered the
FIR in Crime No.13/2013 to the JMFC Court,
Savadatti, who received the same at 5.30 a.m. on
22.01.2013.
30. C.W.22/P.W.11 is stated to be the Manager of
Shilpa Bar namely the Dhaba at the Gondi gate. He
stated that he does not know anything about the
incident. The prosecutor sought permission to treat
him as hostile and cross examine him. During the
course of cross-examination, nothing much was
elicited from him. He has not supported the case of
the prosecution.
31. C.W.33/P.W.12 Manjunath Ramachandra Iligeri, is
the supplier in the Shilpa Bar. He was also treated
as hostile. During the course of cross-examination,
nothing much was elicited from him. He has not
supported the case of the prosecution.
32. C.W.34/P.W.13 Manjunath Shivappa Sunkad is the
Manager of another Bar namely Durga Bar. He has
denied giving any statement to the police, hence
he has been treated as hostile. During the course
of cross-examination, nothing much was elicited
from him. He has not supported the case of the
prosecution.
33. C.W.40/P.W.14 Dadasaheb Mullasaheb Dargad
took the body for postmortem. During the course
of cross-examination, he has stated that he has
not seen the body in detail. He stated that the
body was in an unrecognizable condition. He is one
who had produced the clothes of the deceased for
the investigation.
34. C.W.44/P.W.15 Ninganagouda Anneshgouda Patil
was the PSI at the Savadatti police station at the
relevant point of time. He had received a complaint
on 22.01.2013 at 4.00 p.m. from CW.1/P.W.1-
Maruthi Yallappa, based on which Crime
No.13/2013 was registered. He had sent the FIR
and the complaint to the Magistrate through
C.W.39/P.W.10-Police Constable Ramesh
Chikkannavar. He has identified the First
Information Report as Ex.P.16 and his signature on
it at Ex.P.16A. During the course of cross-
examination, he states that he is unable to say as
to how many persons had come to the police
station when Crime No.12/2013 was filed nor has
he enquired who had written the complaint. He has
denied that, he has filed a false complaint at the
instance of his superiors.
35. C.W.41/P.W.16 Parashuram Narayan Ranjekar was
the Head Constable at Savadatti Police Station at
the relevant point of time. He delivered the MOs to
RFSL, Belagavi and he gave report to CPI on
16.03.2013. He has taken the skull of the
deceased to BHIMS Hospital. This witness has not
been cross-examined.
36. C.W.2/P.W.17 Maruti Chandrappa Naikar, the KEB
Lineman, acted as a panch witness to the inquest.
He identifies the panchanama as Ex.P.19 and his
signature at Ex.P.19A. He identifies Ex.P.20 as a
spot panchanama of the place where the body was
found and that he had signed the sketch of the
spot as per Ex.P.21 and photographs at Ex.P.22
and Ex.P.23, which were taken in his presence.
During the course of cross-examination, he
submits that at the time of the mahazar there were
8-10 people present. On the panchanama being
prepared he has signed the same near the curved
bridge of Yaragatti town between 5.00 p.m. to
5.30 p.m. He admits that he has signed all the
panchanamas.
37. C.W.4/P.W.18 Basha Kashimsab Makandar has
stated that on 24.02.2013 the police had called
him to Shilpa Bar and Restaurant Dhaba, near the
Factory Cross and Dondi Cross. When he was at
the Dhaba, he saw a stout person on a motorbike,
he did not know him, he was with two other
persons. Later on, the police had called him to the
Dhaba and a panchanama was prepared and he
signed it. In the cross-examination he states that
they were having lunch at Dhaba between 1'O
clock to 2'O clock in the afternoon, the deceased
and others were there and left after 10-15
minutes. After the persons left, the police came
half an hour later and took his signature. He has
denied all suggestions put across to him during the
course of cross-examination.
38. C.W.5/P.W.19 Somashekhar More is the witness to
the panchanama at the Shilpa Bar and Restaurant.
He identified Ex.P.24 as the said panchanama. He
has signed it, but he does not know the contents
thereof. He was treated as hostile, but nothing
much was elicited during the course of cross-
examination to support the case of the
prosecution.
39. C.W.6/P.W.20 Ramanna Jamanal is the witness to
the Seizure Panchanama of the clothes of the
deceased which were seized on 26.01.2013. He
has identified the clothes as MO.1 to MO.3. This
witness has not been cross-examined.
40. C.W.8/P.W.21 Gurunath Mahadevappa Naikar is a
witness to the spot mahazar. He has identified
accused No.1-Shivappa in the Court.
CW.45/PW.26-CPI, Savadatti had told him that
accused No.1-Shivappa would show the spot where
the deceased had been murdered. He has stated
about how from Yaragatti Police Station accused
took them near the curved bridge of Yaragatti town
and shown 2 to 3 stones which according to him
were used to cause the murder of the deceased.
These stones were seized, and a panchanama was
prepared. He has identified the panchanama as
Ex.P.26 and the stones as MOs.4 to 6. During the
course of cross-examination, he has denied all the
suggestions put across to him. He has supported
the case of the prosecution.
41. C.W.9/P.W.22 Yamanappa Tammanna Naikar is a
witness to the spot panchanama and the seizure
panchanama of the stones i.e. MO.4 to 6 and Ash
at MO.7. he has identified the motorbike seized at
accused No.1-Shivappa's house. During the course
of cross-examination, he admits that he was
married to the deceased's sister and that it was
about 10.00 a.m. to 11.00 a.m. when they went to
Somapur to the house of accused No.1, where no
one was in there and thereafter near the curved
bridge of Yaragatti town, he did not see the place
where the MO.4 to 6 were seized. He denied the
rest of the suggestions put to him.
42. C.W.10/P.W.23 Maruti Bhimappa Basaridon has
stated that he knows C.W.11 Sahadeva and
accused No.2-Basappa. He denied that he has
signed the spot panchanama, the Public Prosecutor
sought permission to treat him as hostile, and
during the course of cross-examination, nothing
much was elicited to support the case of the
prosecution.
43. C.W.11/P.W.24 Sahadev Mudukappa Naikar has
stated that, he knows C.W.10/P.W.23. On
20.03.2013, the CPI, Savadatti had called him and
CW.10/P.W.23 to the house of accused No.2-
Basappa when the accused No.2-Basappa told the
police that he will show the spot of the crime so
committed if they were to accompany him. He took
them near the curved bridge of Yaragatti town and
showed the place where the murder was
committed. The panchanama was drawn in his
presence and he has identified the spot
panchanama as Ex.P.27 and his signature at
Ex.P.27B. After this, accused No.2- Basappa took
him to his farm, where a panchanama was
prepared as per Ex.P.28 which bears his signature
at Ex.P.28B. He stated that, he does not know
what was shown to the police at the farm land. The
Public Prosecutor sought permission to treat him as
partially hostile and cross-examined him. However,
nothing much was elicited from him during the
course of cross-examination to support the case of
the prosecution.
44. C.W.36/P.W.25 Doulath Yamanappagouda Patil is
the Tahashildar at Savadatti. When he received a
requisition from the CW.45/PW.26-CPI,Savadatti in
furtherance of which he furnished the complaint
copy given by the locals against the ration shop of
accused No.3-Mahadevappa, which he identifies as
Ex.P.30. He has also furnished an application filed
by CW.13/P.W.2-Saroja for cancelling the license
of accused No.3-Mahadevappa and to transfer the
said license to her or anyone else, which he
identifies as Ex.P.31. The order of the Tahashildar
dated 07.02.2013 and letter written by the Deputy
Commissioner, Belagavi to Tahashildar Saundatti
dated 06.02.2013 at Ex.P.33. During the course of
cross-examination, he states that he does not
know if there is any enquiry done based on the
Ex.P.30 being the complaints of the locals and that
he does not know if the complaint was dismissed
as baseless.
45. C.W.45/P.W.26 Muttappa Somalingappa Patil is the
CPI, Savadatti, who is the Investigating Officer.
45.1. He has stated that he has taken over the
investigation on 22.01.2013 from
C.W.44/P.W.15-PSI,Savadatti Police Station.
45.2. He has visited Somapur village on
22.01.2013 and recorded the statements of
CW.12-Bhimavva, CW.13/P.W.2-Saroja,
CW.15/P.W.8-Fakeerappa, CW.16-Siddappa,
CW.17/P.W.4-Ramappa Naykar,
CW.18/P.W.5-Anand Uppin and
CW.14/P.W.3-Hanmant.
45.3. He again visited Somapur village on
23.01.2013 and recorded the statement of
CW.7-Bhimappa, CW.20/PW.7-Ashok, CW.16-
Siddappa Dyamappa Gorabal, CW.22-
Nagappa Yallappa Bhusannavar, CW.23-
Hanamanth Fakirappa Badiger, CW.24-
Mahantesh, CW.25-Ishwar, CW.26-Ishwar
Dyamappa Gorabal, CW.27-Shivaputrappa
Dyamappa Gorabal, CW.28-Gangappa,
CW.29-Paramesh, CW.30-Yamanappa and
CW.31-Babu Badiger.
45.4. On 22.01.2013 the PSI, Muragod had
informed him at 5.00 p.m. that they found a
body near the curved bridge of Yaragatti
town, after which he went to the spot
conducted inquest panchanama in the
presence of CW.2/P.W.17 and C.W.3 as per
Ex.P.23. He has sent the body for
postmortem to CW.40/P.W.14-Police
Constable, Murgod Police Station, as also
requisition in terms of Ex.P.34.
45.5. Thereafter, he has recorded the further
statement of CW.1/P.W.1-Maruthi Yallappa,
CW.13/P.W.2-Saroja, CW.14/P.W.3-
Hanmant, CW.15/P.W.8-Fakeerappa and of
C.W.12-Bhimavva.
45.6. He has conducted the spot mahazar on
26.01.2013, when the hair on the body and
plastic bottle without cap were seized as per
Ex.P.20, the photographs of the spot were
taken as Ex.P.23 and a rough sketch
prepared as per Ex.P.21. He has stated that
on 26.01.2013 the body was given to the
family after being examined by CW.37/PW.9-
Medical Officer. The clothes panchanama for
seizure of MO.1 to MO.3 was conducted as
per Ex.P.25.
45.7. He arrested accused Nos.1-Shivappa and
accused No.3-Mahadevappa on 04.02.2013.
He has recorded the confession/voluntary
statements of accused No.1-Shivappa as per
Ex.P.36 as per the information given by
accused No.1-Shivappa along with witnesses,
he has gone to the spot conducted a
panchanama. Accused No.1-Shivappa had
shown the stones with the stains of blood,
which were recovered in terms of MO.4 to
MO.6 and MO.9 being the burnt towel. He
recorded the further statements of the
witnesses and sent accused No.1-Shivappa
and accused No.3-Mahadevappa to the
judicial custody. He received the sketch,
Postmortem report. He visited Shilpa Dhaba
on 22.04.2013, sent the seized properties to
RFSL and the skull to the BHIMS Hospital on
13.02.2013.
45.8. Arrested accused No.2-Basappa on
23.04.2013, recorded his voluntary
statement in terms of Ex.P.41. As per the
information given by the accused No.2-
Basappa, the mobile phone of the deceased
was seized from the farm land, near Daddi
road and he prepared panchanama as per
Ex.P.28. He received the opinion from the
RFSL as regards the stones. He sent a
requisition, regarding the ration shop, to the
Tahashildar and received the information
from him. On investigation being completed
the charge-sheet was filed on 26.01.2013.
45.9. Subsequently, on receipt of the final report of
the Medical Officer at Ex.P.7, the report from
BHIMS Hospital at Ex.P.6, the same were
furnished to the Court. During the course of
cross-examination, he had admitted that he
has not investigated the Crime No.12/2013
being the missing complaint. He has denied
all suggestions made to him. He has stated
that, the accused No.1-Shivappa has made
his confession statement at Savadatti police
station.
45.10. He has stated that, CW.13/P.W.2-Saroja had
not given him any statements as regards the
deceased dropping her and her daughter at
the Jeep stop and later going with accused
No.2-Basappa for some work. She had also
not informed him about the confession made
by accused No.2-Basappa to her and the
other elders of the village of murdering the
deceased along with accused No.1-Shivappa
and accused No.3-Mahadevappa and had
thrown the body near the curved bridge of
Yaragatti town.
46. The above being the deposition and the exhibits,
as also the MOs., which are marked and
examination it is in the above background that we
are required to re-appreciate the evidence on
record in order to ascertain whether the
prosecution has been able to prove the guilt of the
accused beyond reasonable doubt and as such, if
the order of conviction passed by the trial court is
proper or not.
47. In the present case, there are no eyewitnesses,
the case of the prosecution is based on
circumstantial evidence. It is required for us to
consider if the circumstantial evidence on record
establishes the offence having been committed.
48. Police Complaint and Delay: CW.1/P.W.1
Maruthi Yallappa has stated that Munuvalli police
station at 10.00 a.m. on 20.01.2013 after accused
No.2 Basappa had confessed to the murder of his
brother, Bhimappa. But the PSI directed them to
file a complaint at Murugodu police station, but
when he went there at 6.00 p.m., the Murugodu
police refused to take his complaint.
49. In the meanwhile, he has stated that since the
Murugodu police had not accepted the complaint,
he along with several others including
CW.13/P.W.2-Saroja, wife of the deceased had
gone to Belagavi and gave a representation to the
Inspector General of Police, who in turn gave a
letter to them directing them to deliver the same
to the Savadatti CPI.
50. It is only after the letter of the IGP was given to
the Savadatti CPI, they registered the complaint
and started search for the deceased. The
registration being done on 22.01.2013 at 4.00
p.m. These statements have also been deposed to
by CW.13/P.W.2-Saroja and CW.15/P.W.8-
Fakeerappa. Thus, it is seen that there was an
attempt made by CW.1/P.W.1-Maruthi Yallappa
and CW.13/P.W.2-Saroja to lodge a complaint at
the earliest. However, they have stated that, the
same has not been accepted.
51. He came to know later that on 21.01.2013 his
father-in-law C.W.15/P.W.8 Fakirappa had filed a
complaint before the Savadatti police station about
the deceased having gone missing.
52. The fact that they have also stated that they went
to the IGP, Belagavi, lends credence to the
statements made by them. In the cross-
examination of the Investigating Officers, the
counsel for the accused has not posed any
question relating to this. Thus, we are of the
considered opinion that, there is no particular
delay which has been caused in filing of the
complaint.
53. MOTIVE : The first issue that is required to
ascertained is as to whether there was a motive on
the part of the accused to cause the death of the
deceased.
54. CW.1/P.W.1-Maruthi Yallappa, the complainant has
stated that there was an issue relating to the
ration shop being run by the accused No.3-
Mahadevappa, the deceased had formed a society
and had raised a complaint as regards accused
No.3-Mahadevappa and his ration shop, contending
that though 530 ration cards have been attached
to the shop, he was providing the material only to
400 card holders and the balance of the material
was being misused by the accused No.3-
Mahadevappa.
55. On the complaint being lodged, the Deputy
Commissioner is stated to have caused an
inspection of the said ration shop and suspended
the supply of material to the ration shop.
56. He has also stated that, the deceased wanted to
obtain a license for himself through a society
formed by him, which would also have caused loss,
harm and injury to accused No.3- Mahadevappa.
57. This aspect has been reiterated by CW.13/P.W.2-
Saroja, the wife of the deceased, CW.14/P.W.3-
Hanmant, CW.19/P.W.6-Demappa, CW.20/P.W.7-
Ashok, CW.15/P.W.8-Fakeerappa. CW.20/P.W.7-
Ashok further stating that the accused No.3-
Mahadevappa had supported one Chidananda when
the deceased contested the village panchayat
elections. All these facts would establish that there
was an enmity between the accused No.3-
Mahadevappa and the deceased and the deceased
was causing several problems to accused No.3-
Mahadevappa on account of the complaints filed,
the application for grant of license for the ration
shop, as also contesting elections.
58. These factors have been connected by all the
aforesaid witnesses to be the cause of the dispute
between the deceased and accused No.3-
Mahadevappa due to which accused No.3-
Mahadevappa wanted to get rid of the deceased, in
our considered opinion all the above facts give rise
to a motive on the part of the accused No.3-
Mahadevappa to cause the death of the deceased.
59. The accused No.1 is the son of accused No.3. The
evidence also establishes that accused No.3 had
directed accused No.1 to get rid of the deceased by
causing his death. Accused No.2 is working as a
coolie and was roped in by the accused No.1 to
carry out directions of accused No.3. Thus, accused
No.1 being the son having subscribed to the
motive of accused No.3, accused No.2 was
engaged to help and assist the accused No.1 in
completing the task.
60. Last Scene Theory : CW.1/P.W.1-Maruthi
Yallappa has stated that, his brother, the
deceased, left the house on 19.01.2013 at 9.00
a.m. in the morning along with other members of
his labour gang including Accused No.2 - Basappa,
to go to the sugarcane field of CW.17/P.W.4-
Ramappa Naykar. CW.13/P.W.2-Saroja has also
deposed of the same. CW.19/P.W.6-Demappa has
deposed that, he has also accompanied the
deceased to the aforesaid farm, where he and the
other gang and laborers had loaded the sugarcane
into the tractor of CW.18/P.W.5-Anand Uppin.
Thereafter, the deceased along with other
members of the gang of laborers including the
accused No.2-Basappa went to Yaragatti Shandy
market, where he received his payment from the
deceased. He has stated in his cross-examination
that all the laborers went to Yaragatti at 2.00 p.m.
and received their payment. CW.20/P.W.7-Ashok
has also reiterated the statement of CW.19/P.W.6-
Demappa. CW.13/P.W.2-Saroja, the wife of the
deceased has stated that she had also gone to the
Shandy market with her daughter when she met
her husband in the Shandy market in the
afternoon. She along with her husband had
purchased various items and when they were going
to the Jeep Stop to board the Jeep to come back
home at 7.30 p.m., the accused No.2 Basappa had
approached her husband with a request to
accompany him for some work. In view thereof,
her husband brought her to the Jeep Stop and
asked her to go home, telling that he would come
back home later. Thereafter, CW.17/P.W.4-
Ramappa Naykar has stated that while returning
back from the sugarcane factory at about 8.30
p.m., he had seen the deceased in the accompany
of accused No.1-Shivappa and accused No.2-
Basappa, at a Dhaba near the Gondi Cross. He has
further stated that, he had also joined the
deceased and the others for dinner and on enquiry
with the deceased whether he would come in the
tractor to drop him, the deceased has informed
him that he will come along with accused No.1-
Shivappa and accused No.2-Basappa on their
motorcycle. CW.18/P.W.5-Anand Uppin, the driver
of the tractor, has not completely supported the
case of the prosecution, but he has stated that he
had accompanied CW.17/P.W.4-Ramappa Naykar
to Gondi Cross, where in a Dhaba, the deceased
was present with accused No.2-Basappa.
61. From the above, it is seen that, from 9.00 a.m., till
0830 pm in the evening the accused No.2-Basappa
has more or less been with the deceased
throughout the day. The accused No.2-Basappa,
went with the deceased to the field of
CW.17/P.W.4-Ramappa Naykar, both of them
loaded sugarcane into the tractor, thereafter left to
Munuvalli and came to Yaragatty Shandy market,
where payment to laborers was made at 2.30 p.m.
and thereafter again at 7.30 p.m. accused No.2-
Basappa, requested the deceased to come with
him for some work in the presence of
C.W.13/P.W.2 Saroja, CW.17/P.W.4-Ramappa
Naykar as also CW.18/P.W.5-Anand Uppin saw
them at 8.30 p.m. in the Dhaba near Gondi Cross.
Thus, the presence of accused No.2- Basappa
throughout the day with the deceased is
established, so also the presence of accused No.1-
Shivappa with accused No.2 Basappa and the
deceased at the Gondi Cross. After this, no one
saw the deceased alive. They only saw his dead
body.
62. The accused has not led any evidence, nor stated
anything in the statement recorded under Section
313 of Cr.P.C. as regards when they left the
company of the deceased, let alone establishing
the same. Thus, before the death of the deceased
he was last seen with the accused No.1-Shivappa
and accused No.2-Basappa.
63. Search for the deceased and Extra Judicial
Confession: When the deceased did not come
back home till the evening, CW.13/P.W.2-Saroja
informed about the same, to her brother-in-law
(C.W.16) and mother-in-law (C.W.12). When
C.W.16 is stated to have gone to the house of
accused No.2-Basappa at 1.00 a.m., he in turn
informed CW.13/P.W.2-Saroja that accused No.2-
Basappa's father had informed him that even
accused No.2-Basappa had not come home and he
may come back in the morning. The deceased did
not return back home in the morning. This of
course is a hearsay evidence.
64. In the morning, C.W.18 (P.W.5) Anand Uppin, the
driver of the tractor came with a tractor to pick up
the deceased and his group of laborers. When he
called for the deceased, he was informed that the
deceased was not available and they did not know
about his whereabouts and at which point of time
CW.18/P.W.5-Anand Uppin had informed all those
who had gathered that he had seen the deceased
in the company of accused No.1-Shivappa and
accused No.2-Basappa at a Dhaba near Gondi
Cross around 8.30 p.m.
65. In this background, CW.1/P.W.1-Maruthi Yallappa
went to the house of accused No.2-Basappa, found
him there and brought him in front of the
deceased's house for enquiry, since everyone was
present there. CW.1/P.W.1-Maruthi Yallappa
enquired with the said accused No.2-Basappa as
regards the whereabouts of his brother the
deceased, accused No.2-Basappa is stated to have
confessed that on account of the various disputes
between accused No.3- Mahadevappa and the
deceased, accused No.3- Mahadevappa having
directed accused No.1-Shivappa and accused No.2-
Basappa to get rid of the deceased by causing his
death and disposed of Bhimappa's body near the
curve bridge. After this confession, the accused
No.2-Basappa is stated to have run away.
66. This statement of accused No.2 Basappa being in
nature of extra-judicial confession was heard by
Fakirappa [C.W.15/PW.8], Yamanappa Naikar
[C.W.9/P.W.22], Saroja wife of the deceased
[C.W.13/P.W.2] who have deposed to that effect.
This confession can only corroborate the other
evidence and cannot be a sole piece of evidence to
convict to the Accused.
67. It is in furtherance of this that CW.13/P.W.2-
Saroja, CW.20/P.W.7-Ashok and other villagers
had gone in search of the deceased and his body,
but were unable to find.
68. Though CW.18/P.W.5-Anand Uppin during the
course of his cross-examination has not supported
the case of the prosecution entirely, the other
witnesses i.e. CW.1/P.W.1-Maruthi Yallappa,
CW.13/P.W.2-Saroja, CW.20/P.W.7-Ashok and
CW.15/P.W.8-Fakeerappa have all stated about the
CW.18/P.W.5-Anand Uppin having come to the
village in the morning of 20.09.2013 and having
informed everybody that he had seen the deceased
in the company of accused No.2-Basappa on the
previous night at Dhaba near the Gondi cross.
69. These discrepancies in the statements of
CW.18/P.W.5-Anand Uppin and or the partial
hostility on the part of the CW.18/P.W.5-Anand
Uppin will not come in the way for us to consider
that the deceased was last seen in the company of
accused No.1-Shivappa and accused No.2-
Basappa.
70. Identity of Dead body: Shri Arvind Kulkarni has
sought to contend that the age of the body as per
the FSL report is much more than that of
Bheemappa and hence the body was not that of
Bheemapa.
71. CW.1/P.W.1-Maruthi Yallappa has stated that on
25.01.2013, the Savadatti police had called him
near the curve bridge of Yaragatti town and shown
him a dead body, the body's face was burnt to a
crisp and he identified the body as that belonging
to his brother on the basis of the clothes worn by
him i.e. shirt and pant. He has identified the MO.1,
MO.2 and MO.3 being the clothes in this regard.
72. CW.13/P.W.2-Saroja, the wife has also identified
the body to be that of her husband on the basis of
the clothes on the dead body and the characteristic
of the dead body. There is no one better than the
wife to identify the body of her husband on the
basis of the characteristic of the body. Hence, we
are of the considered opinion that the identification
of the body has been established to be that of the
deceased.
73. Cause of Death: CW.1/P.W.1-Maruthi Yallappa
has stated that, when he saw the body, the face
was burnt to a crisp. CW.37/P.W.9 the Doctor who
had conducted postmortem has opined that, the
cause of death was due to a heavy blow on the
head. He has also spoken about having sent the
skull bone for Forensic Science Laboratory for
examination and the FSL has opined that the head
injury on the skull was ante-mortem. He has
further stated that, three large stones sent by the
Investigating officer, could have caused the injury
resulting in death of the deceased. Thus, it is clear
that the death of the deceased is a homicide and
neither a suicide nor an accident.
74. In the final analysis the evidence indicates that the
events occurred as under:
75. The deceased left his house at 9.00 a.m. on
19.01.2013 along with several members of his
labor gang, including accused No.2-Basappa, after
loading the sugarcane in the field of CW.17/P.W.4-
Ramappa Naykar to the tractor of CW.18/P.W.5-
Anand Uppin , he and accused No.2-Basappa went
to Munvalli (as deposed by CW.19/P.W.6-
Demappa) from Munuvalli, they came to the
Yaragatti Shandy market, where he distributed the
amounts to the members of his labor gang at
about 2.00 p.m. to 2.30 p.m.(as deposed by
CW.19/P.W.6-Demappa and CW.20/P.W.7-Ashok).
Thereafter, he brought various items in the Shandy
market along with his wife and daughter (as
deposed by CW.13/P.W.2-Saroja) and left with
accused No.2-Basappa at around (7.30 p.m.) as
deposed by CW.13/P.W.2-Saroja. Thereafter, the
deceased was seen in the company of accused
No.1-Shivappa and accused No.2-Basappa at the
Dhaba near the Gondi Cross, at about 8.30 p.m. as
deposed by CW.17/P.W.4-Ramappa Naykar and
CW.18/P.W.5-Anand Uppin. When the deceased
did not get back home, C.W.16 had gone to the
house of accused No.2-Basappa at 1.00 a.m. when
accused No.2-Basappa was not present and the
father of the accused No.2-Basappa had informed
that he may get back in the morning.
76. On the next day morning at 8.00 a.m.,
CW.18/P.W.5-Anand Uppin came to the village of
the deceased to take the laborers to the sugarcane
field when he has stated about him having seen
the deceased in the company of accused No.2-
Basappa at 8.30 p.m.
77. CW.1/P.W.1-Maruthi Yallappa had gone to the
house of the accused No.2-Basappa and brought
him to the house of the deceased where in the
presence of CW.1/P.W.1-Maruthi Yallappa,
CW.13/P.W.2-Saroja, CW.15/P.W.8-Fakeerappa
and certain others, accused No.2-Basappa has
confessed, that he along with accused No.1-
Sivappa has caused the death of the deceased on
the instructions of accused No.3-Mahadevappa,
and ran away. He had also informed the general
location where they had disposed the body i.e.,
near the curve bridge.
78. CW.1/P.W.1-Maruthi Yallappa tried to lodge a
complaint with Munuvalli police, but they did not
register the complaint, but directed him to go to
Murgod police station. The Murgod police has also
not registered the complaint. On 21.01.2013,
CW.1/P.W.1-Maruthi Yallappa, CW.13/P.W.2-
Saroja and several others had gone to IGP's office
in Belagavi. The IGP gave a letter addressed to
CPI, Savadatti. It is when the letter has been
handed over to the CPI, Savadatti, the complaint
came to be registered on 22.01.2013 at 4.00 p.m.
and thereafter the investigation taken up. The
body of the deceased was found on 25.01.2013 by
the Savadatti Police near the curved bridge of
Yaragatti town with the body's face burnt to a
crisp, the body was identified by CW.1/P.W.1-
Maruthi Yallappa and CW.13/P.W.2-Saroja, the
cause of death as per CW.37/P.W.9-Medical officer
is a head injury caused by use of three stones,
thus establishing a homicide.
79. CW.45/P.W.26 the Investigating Officer has stated
that, the accused No.2-Basappa had shown them
the spot, where the crime was committed and
panchanama was drawn up as per Ex.P.27.
Accused No.1-Sivappa is stated to have shown the
stone with the stains of blood which have been
recovered as per MOs.4 and 6. In terms of the
information given by the accused No.2-Basappa,
the mobile phone of the deceased was recovered
from a farm on Daadi road, as per panchanama at
Ex.P.28. The recovery of the aforesaid items
through accused No.1-shivappa and accused No.2-
basappa are material, taking of the aforesaid
circumstances into account, it is clear that the
prosecution has proved its case and established
the guilt of the accused beyond reasonable doubt.
The trial Court has considered all the aspects in a
proper perspective and convicted the accused, as
also sentenced, the sentence also being proper and
correct, we find no reason to interfere with the said
Judgment and Order of sentence. Hence, we pass
the following:
ORDER
The appeals as filed stand dismissed.
The accused are on bail. The Trial
Court is directed to secure the accused
persons to serve the order of sentence.
The bail bond stands cancelled.
Sd/-
JUDGE
Sd/-
JUDGE
*Svh/-
