Ratna W/O Fakirgouda Patil vs The State Of Karnataka
2022 Latest Caselaw 4851 Kant

            IN THE HIGH COURT OF KARNATAKA,
                     DHARWAD BENCH

          DATED THIS THE 16TH DAY OF MARCH, 2022

                         PRESENT

      THE HON'BLE Dr. JUSTICE H.B.PRABHAKARA SASTRY

                           AND

           THE HON'BLE MR. JUSTICE S.RACHAIAH

          CRIMINAL APPEAL NO.100437 OF 2019

BETWEEN

   RATNA W/O FAKIRGOUDA PATIL
   AGE: 31 YEARS,
   OCC: HOUSEHOLD WORK,
   R/O: CHIKKANANDIHALLI,
   TQ: BAILHONGAL,
   DIST: BELAGAVI.
                                            ... APPELLANT

(BY SRI. VYAS DESAI, ADV. FOR
SMT. JAGADISH PATIL, ADV.)

AND

1 . THE STATE OF KARNATAKA
    REPRESENTED BY ITS SPP,
    THROUGH KITTUR POLICE STATION,
    KITTUR,
    DIST: BELAGAVI.

2 . NAGANGOUDA SHIVANGOUDA PATIL
    AGE: 37 YEARS,
                                2      Crl.A.No.100437 of 2019




   OCC: REAL ESTATE BUSINESS,
   R/O: GADDIKARAVINAKOPPA,
   NOW R/O: VADGAON,
   KULKARNI GALLI,
   TQ and DIST: BELAGAVI.

                                               ...RESPONDENTS

(BY SRI.V.M. BANAKAR, ADV. ADDL. SPP FOR R1
SRI. I.Y. PATIL, ADV. FOR R2)

     THIS CRIMINAL APPEAL IS FILED U/S 372 OF CR.P.C.
SEEKING   TO   CALL   FOR   RECORDS   AND   SET   ASIDE     THE
JUDGMENT AND ORDER DATED 05/09/2019 PASSED BY THE X
ADDL.   SESSIONS      JUDGE,   BELAGAVI   AT    BELAGAVI        IN
S.C.NO.175/2015 FOR OFFENCES U/S 120(B), 302, 201, 506
R/W 34 OF IPC BY CONVICTING THE RESPONDENT NO.2 AND
IMPOSING SENTENCE IN ACCORDANCE WITH LAW.



     THIS CRIMINAL APPEAL HAVING BEEN HEARD THROUGH
PHYSICAL HEARING / VIDEO CONFERENCING HEARING AND
RESERVED ON 10.02.2022 AT DHARWAD BENCH, COMING ON
FOR PRONOUNCEMENT OF JUDGMENT, BEFORE THE PRINCIPAL
BENCH AT BENGALURU, THROUGH VIDEO CONFERENCING, THIS
DAY, S.RACHAIAH J., DELIVERED THE FOLLOWING:
                                   3        Crl.A.No.100437 of 2019




                         JUDGMENT

The Appellant has preferred this appeal against the

judgment and order dated 05.09.2019 passed by the learned X

Additional Sessions Judge, Belagavi, in S.C.No.175/2015 for the

offences punishable under Sections 120(B), 302, 201, 506 read

with section 34 of Indian Penal Code (hereinafter for brevity

referred to as 'IPC').

2. For the purpose of convenience, the ranking of the

parties is considered as that of the Trial Court.

3. Brief facts of the case:

PW1 has lodged a complaint and stated that, the deceased

Fakirgouda was a permanent resident of Chikkanandihalli village

of Bailhongal Taluk. He had wife and children and he was

residing in a rented house at Channapur village, Bailhongal

Taluk. The complainant is the wife of deceased Fakirgouda. The

accused No.1 was the friend of the deceased and they were

doing real estate business on partnership basis under the name

and style as "Diamond Earth Land and Developers" at Kittur

town. The said office was situated in a shop premises belonging

to PW8 - Shankar Basappa Parappanavar. On 02.04.2015 at

about 4.00 pm, accused No.1 had gone to the house of

complainant in Indica car bearing registration No.KA.22/Z-3545

and called deceased to accompany him. The deceased

Fakirgouda told him that, he would come after little while and

asked accused No.1 to go ahead. Soon thereafter, the deceased

Fakirgouda changed his dress and went on his motorcycle stating

that he would go and meet accused No.1. Thereafter, the said

deceased Fakirgouda made a phone call to his wife and informed

her that, he was in Dharwad and going to Sirsi as he had some

work there along with Accused Nos.1 and 2. He further told her

that, he would come back if the work was over on the same day,

otherwise, on the next morning. Again, at about 10.00 pm on

the same night, deceased Fakirgouda had called his wife i.e.

P.W.1 over the phone and enquired about the wellbeing of his

children. On next day morning, when the complainant tried to

contact the deceased through phone on several times and phone

was ringing but, the deceased did not pick up the calls. PW.1

was very anxious as her husband did not receive any calls.

Immediately, she called accused No.1 and enquired about her

husband. The said accused No.1 did not reply her

satisfactorily. Thereafter, PW.1 has informed the said fact to her

brother-in-law, i.e. PW.4 and both were trying to search the

deceased. As they could not get any clues about the deceased,

on 05.04.2015 at about 8.15 pm, PW.1 lodged a complaint

stating that, her husband was missing. The police have

registered the case in Crime No. 53/2015 and the same is

marked as Ex.P1.

On 06.04.2015, when PW.1 and PW.4 were searching the

deceased in Kittur town, they met PW.7 at his mobile shop and

they were told that, on 02.04.2015, deceased Fakirgouda had

gone along with accused Nos.1 and 2 in a car to Sirsi, by leaving

his motorbike at his shop and thereby the said PW.7 has handed

over the motorcycle to PW.4.

Such being the fact, on 10.04.2015, at about 3.00 pm, PW.6

informed PW.1 and PW.4 that, the accused Nos.1 and 2 had

killed deceased Fakirgouda. Further, he told them that, he had

overheard the conversation that had taken place between

accused Nos.1 and 2 at the hotel.

Based on the information received by PW.1 and PW.4, PW.1

lodged a written complaint to the police on 10.04.2015,

suspecting the act of accused Nos.1 and 2 in connection with the

missing of the deceased. The same complaint is marked as

Ex.P2 and the crime came to be registered in Crime No.56/2015.

4. On the basis of the complaint, the police have

apprehended accused Nos.1 and 2 on 01.04.2015 at about 6.30

am, near Kittur bus stand.

5. After thorough investigation, charge sheet came to

be filed. The Trial Court framed the charge against the accused.

Accused pleaded not guilty and claimed to be tried.

6. In order to prove the case of the prosecution, the

prosecution has examined 36 witnesses, i.e. PWs.1 to 36 and got

marked Exs.P1 to P115 and also got marked MOs.1 to 35.

7. The learned Additional State Public Prosecutor

submits that the Trial Court has committed an error in not

considering the evidence of PW.1 and PW.7. PW.1 who is none

other than the wife of the deceased has categorically stated that

the deceased before going to join the accused, had informed her

that he was going to meet accused No.1. PW.1 herself has

noticed that accused Nos.1 and 2 had gone to her house and

called the deceased to accompany them. Though PW.7 has

turned hostile, PW.1 and PW.4 have supported that the bike of

deceased had been handed over by PW.7.

8. The recovery - Panchanama, panchas namely, PW.3

and PW.4 have supported the case of the prosecution. The Panch

witnesses have categorically stated that, at the instance of the

accused no.1 and 2, the dead body of the deceased Fakirgouda

was discovered. The same evidence has been corroborated by

PW.12 and PW.19. PW.12 is none other than the person who

got down to the well and lifted the dead body of the deceased

and PW.19 is the crane operator who lifted the dead body with

the help of the crane. Both these witnesses have categorically

supported the case of the prosecution with respect to the

discovery of the dead body at the instance of the Accused Nos.1

and 2. The place at which the dead body was found was an

isolated place. Except the personal knowledge of the person

who dumped the dead body, nobody could identify the place.

This evidence is clinching evidence and this court can believe the

evidence as acceptable and there is no reason to disbelieve their

evidence. The prosecution has clearly established the discovery

of the dead body at the instance of the accused Nos.1 and 2.

9. Further, one more circumstance is that, the call

record details which are marked as Exs.P81 to P85 are the very

important documents, where it indicates that, as on the date of

incident, the accused Nos.1 and 2 and the deceased were

together near Murudeshwara. The Tower location clearly and

strongly affirms the same. This is one of the strong

circumstances with respect to last seen theory. The Accused

Nos.1 and 2 have not explained as to when and how they

departed the company of the accused. Non-explanation of the

incriminating materials put to them which are fatal to them. In

this case, the accused Nos.1 and 2 have not explained anything

except bare denial.

10. So far as the certificate required under section 65-B

of the Indian Evidence Act is concerned, the trial court has

failed to appreciate the certificate under section 65 - B of the

Indian Evidence Act though it is in accordance with law. These

material documents ought to have been considered by the trial

Court. Further he has submitted that the trial Court has not

gone through the evidence properly and not appreciated the

documents effectively. Hence this appeal.

11. Per contra, the learned counsel for the respondent

No.2 submits that PW.s1 though has stated that the deceased

accompanied accused Nos.1 and 2, but, the same cannot be

considered as gospel truth. Moreover, PW.1 is not an eyewitness

to the incident. There was a long gap between alleged arrival of

accused Nos.1 and 2 to her house and also the deceased left the

house of complainant. The prosecution has cited PW.7 as

witness to the Last - seen theory. However, the said PW.7 has

not supported the case and he has turned hostile. Hence, their

evidence to the last seen theory cannot be considered.

12. Though, the alleged recovery has been proved by the

witnesses namely PW.3 and PW.4, PW.3 is a stock witness and

PW.4 is the brother of deceased Fakirgouda. Hence, Ex.P22 Spot

-Panchanama cannot be considered.

13. The prosecution has cited PW.2 as eyewitness to the

incident. However, she has not supported the case of the

prosecution. The prosecution has failed to prove the motive for

alleged commission of murder. As the prosecution has failed to

prove the case of the prosecution beyond all reasonable doubt,

the trial Court has rightly appreciated the oral and documentary

evidence and rightly acquitted the accused.

14. Heard learned counsel for both parties and perused

the oral and documentary evidence on record.

15. The points which arise for our consideration are:

a. Whether the trial Court is justified to arrive at a conclusion that the prosecution has failed to

prove that the accused Nos.1 and 2 have committed the offence punishable under Section 120(B) read with section 34 of Indian Penal Code?

b. Whether the trial Court is justified to arrive at a conclusion that the prosecution has failed to prove that the accused Nos.1 and 2 have committed the offence punishable under Section 302 read with section 34 of Indian Penal Code?

c. Whether the trial Court is justified to arrive at a conclusion that the prosecution has failed to prove that the accused Nos.1 and 2 have committed the offence punishable under Section 506 read with section 34 of Indian Penal Code?

d. Whether the trial Court is justified to arrive at a conclusion that the prosecution has failed to prove that the accused Nos.1 and 2 have committed the offence punishable under Section 201 read with section 34 of Indian Penal Code?

e. Whether the appellant has made out ground to interfere in the impugned judgment of acquittal passed by the trial Court?

All the above points which arise for our consideration are

interconnected. In order to avoid repetition, we have taken up

them together for consideration.

16. In order to arrive at a definite conclusion, it is

necessary to have a cursory reading of the evidence of the

witnesses which is required for better understanding of the case.

a) PW.1, is the wife of the deceased and she has lodged

the complaints, which are marked as Exhibits P1 and P2. She

has supported the case of the prosecution with respect to last

seen theory and discovery of the dead body at the instance of

the Accused Nos.1 and 2.

b) PW2-Gouramma Irappa Turmuri, she is an

eyewitness to the incident. She has supported the case of the

prosecution in examination-in-chief and she has turned hostile in

cross-examination.

c) PW3 is the witness to panchanamas and he has

supported the case of the prosecution.

d) PW4-brother of the deceased has supported the case

of the prosecution.

e) PW5 -owner of the land bearing Survey No.31/2,

where the alleged incident has taken place. He has turned

hostile.

f) PW6 is the witness to the alleged confession. He has

turned hostile.

g) PW7 is the witness to the last seen theory. He was

supposed to depose about the last seen theory of accused and

deceased together. He has turned hostile.

h) PW8 is the owner of the shop where the accused and

deceased alleged to have been running the real estate business.

He has turned hostile with respect to running the business in

partnership.

i) PW9 is witness to the partnership of accused No.1

and deceased who were running real estate business. He has

turned hostile and also witness to the alleged confession. He

has not supported.

j) PW10-she was working as accountant in the real

estate office where accused Nos.1 and 2 were running business.

She has not supported the case about the partnership.

k) PW11- He was working as M.D. in the real estate

office where accused and deceased alleged to have been running

the business. He has not supported about the partnership.

l)PW12-she is the Tele-caller in the real estate office where

the accused and deceased were said to have been running the

business. She has turned hostile.

m) PW13-he was witness to the discovery, at the

instance of accused he has got down to the well and he has lifted

the dead body from the well where the accused Nos.1 and 2

have shown place in presence of the police. He has supported

the case of the prosecution.

n) PW14 is the owner of the water servicing shop where

the accused Nos.1 and 2 had been to wash their car. He has

turned hostile not supported the case.

o) PW15 is the owner of the shop where he is running a

business of scrap materials. He has stated that three years ago,

the accused had purchased one iron rod and he has identified

the said rod as Ex.P32 and supported the case.

p) PW16 is working in water servicing centre under

PW14. He has seen and identified the car and also he has

identified the blood stains found in the car mat. Thereafter, he

was not supported about the incident alleged to have been

informed by him by accused Nos.1 and 2.

q) PW17-father of PW2, he is supposed to depose

about PW2 going along with accused Nos.1 and 2 at the request

of accused No.1. He has turned hostile.

r) PW18-is the owner of land bearing Survey No.628.

He is the witness to the discovery where the dead body was

removed from the well which belongs to him. But, he has

turned hostile.

s) PW19 was working as crane operator and used to

clear the road by removing the vehicles if accident occurred in

the highway. He has deposed that on 11.04.2015, on request,

he had been to the land belonging to PW18 to lift the dead body

through the crane. He has supported that accused Nos.1 and 2

have shown the place where the deceased dead body was

thrown. But he has turned hostile to the alleged confession.

t) PW20 is the owner of the land bearing Survey No.4.

He is supposed to depose about the sale of land to the extent of

2 acres 17 guntas on 16.7.2014 to accused No.1. He has

supported to that extent. But, he has turned hostile to the

alleged acquaintance with the deceased through accused No.1.

u) PW21 is the photographer. He has taken

photographs and then video with respect to the place where the

accused Nos.1 and 2 have shown the place and discovered the

dead body. He has supported the case of the prosecution.

v) PW22 is Scientist in FSL. She has stated that she

examined the items which the investigation officer had sent and

the same has been identified in the Court and got marked as

Ex.P63 and also identified the articles MOs.34 and 35.

w) PW23 is the police constable at Kittur police station

and he has stated that he had taken items and papers pertaining

to the said items and handed over to the FSL Bangalore on

instruction of CPI, supported the case of the prosecution.

x) PW24 is the wife of accused No.2, she has turned

hostile not supported the case of the prosecution.

y) PW25 is the Doctor who has conducted postmortem

of the dead body and issued a certificate as per Ex.P.65 and

further he has opined that he has given his opinion on the iron

road which he has examined and submitted his report and

marked as Ex.P68 and he has identified it as MO.32.

z) PW26-Assistant Director of RFS Belagavi, she has

examined certain items and submitted a report and the same is

marked as Ex.P69 supported the case of the prosecution.

aa) PW27-Senior Civil Judge, who was working in Kittur

JMFC, he has stated that on request made by the I.O., he has

recorded the statement of the witness, i.e. PW2 under Section

164 of Cr.P.C. He has supported the case.

ab) PW28 she is the wife of accused No.1. She has not

supported the case of the prosecution.

ac) PW29 is owner of the Indica Car bearing No.KA01/M-

9448. He is supposed to depose about that he has taken

accused persons in his car to identify the place and discover the

dead body etc., but he has turned hostile, not supported the

case.

ad) PW30 is the writer of office of C.P.I. Kittur. He has

stated that he has written Exs.P21 and P22 and also one more

panchanama Ex.P28, he has supported the case of the

prosecution.

ae) PW31 police constable of Kittur police station, he has

carried FIR and reached to the Magistrate, supported the case.

af) PW32-Head Constable of Kittur police station. He is

the person who carried certain papers and also some material

objects and reached RFSL Belagavi. He has supported the case.

ag) PW33 is working as Police Inspector D.C.I.B. Unit,

Belagavi, is the person who secured the call details on request

made by the Inspector of Kittur police station and issued

certificate as per Ex.P81 to P84, supported the case.

ah) PW34 is the person who was working as police

constable of Kittur police station. He has stated that he carried

the dead body for postmortem. After postmortem, he received

clothes of the deceased and handed over the same to the C.P.I.,

he has supported the case.

ai) PW35 is P.S.I. of Kittur police station. He has stated

that he has received complaint and the same has already been

marked as Ex.P1 and also registered the case and conducted

partial investigation and handed over the investigation to the

Police Inspector.

aj) PW36 who is the C.P.I. of Kittur circle. He has

conducted investigation and submitted charge sheet.

17. Now, Let us analise the evidence of PW2 who is the

star witness to the incident as an alleged eyewitness to the

incident. Even though she has supported the case of the

prosecution in examination-in-chief, but turned hostile in cross-

examination. The cross-examination of P.W.2 was conducted

after she was recalled in pursuance of the application made

under section 311 of Code of Criminal Procedure ("for short

Cr.P.C.). She has resiled her earlier version. Further, she has

stated that, the Police have threatened her that, they would file

a case against her, if she could not support the case of the

prosecution. The long gap between examination-in-chief and

cross-examination has certainly must have been benefited to the

accused to won over. However, Investigation officer should have

made PW.2 as an accomplice. Because, as per the prosecution,

she had accompanied the Accused Nos.1 and 2 and deceased. All

the four persons had gone to Murudeswar. When the murder

took place, she was in the car. After that, the accused Nos.1

and 2 had put the dead body in the car dickey and travelled to

Belagavi side. P.W.2 though she was present, she has neither

informed the Police nor the relatives of the deceased until the

Police have arraigned her as witness to the incident.

18. It is doubtful that, how the police have arraigned

PW.2 as witness instead of making her as accomplice. Let us see

the definition under Section 133 of the Indian Evidence Act which

defines an "Accomplice" that, "An accomplice shall be

competent witness against an accused person and conviction is

not illegal merely because it proceeds upon the uncorroborated

testimony of accomplice." In a similar circumstance, the Hon'ble

Supreme Court in the case of State of Rajasthan Vs. Balveer @

Balli and Another reported in (2013) 16 SCC 321, where the

Hon'ble Supreme Court observed, in para Nos.22 and 23, which

reads as under:-

"22. The first question that we have to decide is whether the High Court is right in coming to the conclusion that for being an approver within the meaning of Section 306, Cr.P.C., a person has to inculpate himself in the offence and has to be privy to the crime, otherwise

he removes himself from the category of an accomplice and places himself as an eyewitness. Section 306, Cr.P.C. provides that with a view to obtaining the evidence of any person supposed to have been directly or indirectly concerned in or privy to an offence, the Magistrate may tender a pardon to such person on condition of his making a full and true disclosure of the whole circumstances within his knowledge relative to the offence and to every other person concerned, whether as principal or abettor, in the commission thereof.

The object of Section 306 therefore is to allow pardon in cases where heinous offence is alleged to have been committed by several persons so that with the aid of the evidence of the person granted pardon the offence may be brought home to the rest. The basis of the tender of pardon is not the extent of the culpability of the person to whom pardon is granted, but the principle is to prevent the escape of the offenders from punishment in heinous offences for lack of evidence. There can therefore be no objection against tender of pardon to an accomplice simply because in his confession, he does not implicate himself to the same extent as the other accused because all that Section 306 requires is that pardon may be tendered to any person believed to be involved directly or indirectly in or privy to an offence."

19. Thus, from the reading of the above judgment it is

clear that the extent of culpability of an accomplice in an offence

is not material so long as the Magistrate tendering pardon

believes that the accomplice was involved directly or indirectly in

or was privy to the offence. Section 133 of the Evidence Act

provides that an accomplice shall be a competent witness

against an accused person and when the pardon is tendered to

accomplice under Section 306 of CR.P.C., the accomplice is

removed from the category of co- accused and put into the

category of witness and the evidence of such witness as an

accomplice can be the basis of conviction.

20. In the case, though PW2 has been cited as witness

to the prosecution, as the Investigating officer failed to array her

as accused of the crime and as he has failed to file necessary

application for pardon, neither she is an accomplice nor

prosecution witness. Hence, the evidentiary value of PW2 is of

no consequence.

21. This type of lacuna on the part of the Investigating

Officer rendering the honorable acquittal to the accused though

they are liable to be convicted. This is a strong prima facie case

to take appropriate measures or steps against Investigation

Officer in an appropriate forum to deal with him suitably.

22. As regards, last seen theory is concerned, PW1 and

PW7 are the witnesses, and they were supposed to support the

prosecution case. However, except PW1, PW7 has turned hostile

and not supported the case of the prosecution. The evidence of

PW1 as regards last seen theory is concerned, she has seen the

accused Nos.1 and 2 in front of her house when they had gone

there to call the deceased and also on the same day, till evening

10.30 pm, the deceased has called her several times and the

same CDR has also been produced by the Investigating Officer.

After producing the proper document under Section 65 -(B) of

Indian Evidence Act, the same CDR and SDR are marked as

Ex.P81 to P85. Nothing is there to disbelieve the documentary

evidence. The call details of the accused Nos.1 and 2 and the

deceased would clearly indicate that on the alleged date of

incident, all the three persons were together in and around

Murudeshwar. Hence, this clinching evidence should have been

considered by the trial Court as regards the last seen theory.

The trial Court has committed an error in analising the oral and

documentary evidence erroneously which is required to be

interfered with and re-appreciating the same.

23. The learned counsel for the respondent No.2 has

submitted that section 65-B of the Indian Evidence Act has not

been obtained properly by the competent authority. It is

needless to say that the accused/respondent has not raised such

a question at the time of admission of the said document. On

this point, a reliance is also placed on the judgment of the

Hon'ble Supreme Court in the case of Rajender @ Rajesh @

Raju Vs. State (NCT of Delhi), reported in (2019) 10 SCC 623.

The Hon'ble Supreme Court observed in paragraph Nos.12.3.1

and 12.3.2 which reads thus:-

"12.3.1. This is also supported by the mobile records of Sharda Jain, which show that she visited Ghaziabad on 24.08.2002. Though the High Court has held that these records have not been proved, as no certificate was issued in terms of Section 65-B(4) of the Indian Evidence Act, 1872, we find that these records can be relied upon. This is because an objection relating to the non-production of a certificate under Section 65-

B(4) relates to the mode and method of proof and cannot be raised at the appellate stage as has been held by this Court in Sonu v. State of Haryana, (2017) 8 SCC

570. In that case, an objection regarding the mode/method of proof of call detail records (CDRs) of mobile phones recovered from the accused was raised for the first time before the Supreme Court. Drawing a distinction between objections relating to admissibility or relevance of facts and objections as to the mode or method of proof of facts, the Court observed as follows (SCC pp. 584-85 para 32):

"32. It is nobody's case that CDRs which are a form of electronic record are not inherently admissible in evidence. The objection is that they were marked before the trial court without a certificate as required by Section 65- B(4). It is clear from the judgments referred to supra that an objection relating to the mode or method of proof has to be raised at the time of marking of the document as an exhibit and not later. The crucial test, as affirmed by this Court, is whether the defect could have been cured at the stage of marking the document. Applying this test to the present case, if an objection was taken to the CDRs being marked without a certificate, the Court could have given the prosecution an opportunity to rectify the deficiency. It is also clear from the above

judgments that objections regarding admissibility of documents which are per se inadmissible can be taken even at the appellate stage. Admissibility of a document which is inherently inadmissible is an issue which can be taken up at the appellate stage because it is a fundamental issue. The mode or method of proof is procedural and objections, if not taken at the trial, cannot be permitted at the appellate stage. If the objections to the mode of proof are permitted to be taken at the appellate stage by a party, the other side does not have an opportunity of rectifying the deficiencies. The learned Senior Counsel for the State referred to statements under Section 161 Cr.P.C., 1973 as an example of documents falling under the said category of inherently inadmissible evidence. CDRs do not fall in the said category of documents. We are satisfied that an objection that CDRs are unreliable due to violation of the procedure prescribed in Section 65-B(4) cannot be permitted to be raised at this stage as the objection relates to the mode or method of proof."

(emphasis supplied)

12.3.2. Applying this to the instant case, we find that the objection as to the reliability of the call records of Sharda Jain on account of non-compliance with the

procedure under Section 65-B(4) was raised for the first time before the High Court. Since no such objection was raised at the time of marking of these records before the Trial Court, we find that these records can be considered.

24. In the instant case, the Call Details Record of these

three persons namely, Accused Nos.1 and 2 and deceased have

been obtained by the Investigating officer from Superintendent

of Police, Belgaum. P.W.33 who was working as Police Inspector

of DCIB, Belgaum has issued a certificate which is marked as

Ex.P.85, which indicates that, it is a certificate which is issued in

order to comply with the mandatory requirement under section

65-B of the Indian Evidence Act. The defence has not raised

any objection at the time of marking the documents. Hence, the

above ruling squarely applicable to the case on hand.

25. In the light of the above observation, the prosecution

has proved the last seen theory effectively beyond all reasonable

doubt.

26. As regards, motive, is concerned, it is true that, in a

case relating to circumstantial evidence, motive assumes great

importance. However, in each and every case, it is not

incumbent on the prosecution to prove the motive for the crime.

Often, motive is indicated to heighten the probability of the

offence, that the accused was impelled by that motive to commit

the offence. Proof of motive only adds to the weight and value of

evidence adduced by the prosecution. If the prosecution is able

to prove its case on Motive, it will be a corroborative piece of

evidence. But, even if the prosecution has not been able to

prove its case on Motive, that will not be a ground to throw the

prosecution case nor does it corrode the credibility of

prosecution case. Absence of motive only demands careful

scrutiny of evidence adduced by the prosecution.

Though PW1 has stated that her husband was working as a

partner along with accused No.1 in a real estate business, no

piece of documents have been produced by the prosecution to

show that he was working as a partner of the real estate

business. Even though, the prosecution has further stated that,

the motive for the murder is that, the accused No.1 has got the

property registered in the name of his wife instead of including

the name of the deceased as partner in the sale - deed. The

deceased had advanced the accused No.1 a sum of `2 lakhs

towards the purchase of Property. As the accused No.1 has not

included the name of the deceased in the sale - deed there was

a rift between the accused No.1 and deceased.

PW10 - Sujatha Basavennappa, she has deposed that, she

was working as Accountant in the said Real Estate office. She

denies that, the deceased was a partner of the Real Estate

Business. She further stated in her cross - examination that, she

did not know the deceased Fakirappa. At any point of time he

had not visited the office etc.,

P.W -11 - Manjunatha Ashoka Bagewadi has deposed that,

was working as a Tele - caller in the office of the Accused No.1,

where he was running Real Estate Business. P.W.11 further

denies about the Partnership between the Accused No.1 and

deceased.

P.W. 12- Roopa Basavalingappa Alnavar, was working as

Tele-caller and her evidence corroborated the other two

witnesses namely, P.W.10 and P.W.11.

The next witness is PW20 who is the vendor of the land

said to have been sold to the wife of accused No.1. He states

that, the accused No.1 introduced deceased to him. Except that,

nothing has been stated about the transaction between Accused

No.1 and deceased. All these witnesses have not at all

supported the case of the prosecution as regards the motive.

Thus, the prosecution could not able to prove motive beyond

reasonable doubt.

27. As regards, recovery and discovery of the material

objects and dead body is concerned, the submission of the

learned counsel for the Appellant is that, PW3 is the panch

witness and he has signed as many as 15 exhibits. Though, he

has supported the case by giving cogent evidence, it would be

very difficult for the court to believe the evidence of this witness.

The I.O. has summoned PW3 and CW2 by issuing notice to

them to be as panch witnesses under Ex.P12 and he has

recovered mobile phones produced by accused No.1 and also

accused No.2. The said two mobiles have been marked as

MO.23 and MO.24. It is the case of the prosecution that the

accused Nos.1 and 2, their voluntary statement which led to the

discovery of dead body of the deceased, where they have

dumped the body to the well. The voluntary statement of the

accused No.1 is marked as Ex.P-93 and similarly another

voluntary statement of accused No.2 is marked as Ex.P-94.

PW.19 crane operator, with the help of crane he lifted the dead

body from the well on assistance being made by PW.13. PW.13

and PW.19 have supported the case of the prosecution and

stated that the accused have shown the place where the dead

body was dumped. On their instruction, they have discovered

the dead body and lifted it out from the well. Hence, PW.3

cannot be considered as stock - witness.

Reliance is placed on the judgment of the Hon'ble Supreme

Court in the case of State of Rajastan Vs. Kashiram reported in

(2006) 12 SCC 254. The Hon'ble Supreme Court observed, in

Para 19, which reads thus,

"Before adverting to the decisions relied upon by the counsel for the State, we may observe that whether an inference ought to be drawn under Section 106 of evidence act is a question which must be determined by reference to prove. It is ultimately a matter of appreciation of evidence and therefore, each case rest on its own facts."

The principle is well settled that provision of Section 106 of

Evidence Act itself for unambiguous and categorical terms lays

down that when any fact is especially within the knowledge of

person, the burden of proving the fact is upon him. Thus, if a

person is last seen with the deceased, he must offer an

explanation as to how and when he parted the company. He

must offer an explanation which appears to the court to be

probable and satisfactory. If he does so, he must be held to

have discharged his burden. If he fails to offer an explanation,

on the facts within his special knowledge, he fails to discharge

the burden cast upon him by section 106 of the Evidence Act.

28. In the light of the above observation, the present

case on hand is very clear from the reading of the evidence of

PW-1, PW-3, PW-13 and PW-19 which clearly indicates that the

accused Nos.1 and 2 have shown the place where they have

dumped the dead body. The place is an isolated place; nobody

could easily identify the dead body in that well. As per the

evidence, except accused Nos.1 and 2, no other persons have

shown the place of dead body which was dumped.

29. To corroborate the above circumstances, Exs.P-81 to

P84, CDRs of deceased, accused Nos.1 and 2 when categorically

shows the place of occurrence. The signals of the mobile are

shown in and around Murudeshwar vicinity. Ex.P-34 is the spot

mahazar where the accused Nos.1 and 2 have shown the place

of occurrence. Under the said spot-cum-seizure panchanama,

the Investigating Officer collected mud samples and normal mud

for the purpose of examination. PW-22 - the Scientific Officer

i.e., office of RFSL has submitted a report after examining the

MOs No.34 and 35 and submitted their report as Ex.P-63 and

P-64 which clearly indicates that the mud contains blood is of

human origin.

30. In the light of the above observation, we are of the

opinion that, the accused should have offered explanation as to

what has happened to the deceased and how they are not

connected to the crime. In spite of opportunity having been

given to them under section 313 of Cr.P.C., the accused Nos. 1

and 2 have not explained properly as to what has happened and

when they departed the company of the deceased. Except, mere

denial nothing has been forthcoming from their side to disbelieve

the prosecution story. Hence, it is necessary to draw adverse

inference that, the accused have committed an offence and

caused disappearance of the dead body.

31. Conclusion:

(a) The accused Nos.1 and 2 on the date of incident had

been to the house of PW-1 and asked deceased to accompany

them. The deceased told them to go ahead and he would come

and join the company of accused Nos.1 and 2. The same facts

have been proved through the evidence of PW-1. Though PW-7

is the witness to the last seen theory, he has not supported the

case of the prosecution. However, the documentary evidence,

such are, call detail records which are marked as Ex.P-81 to P85

have clearly indicated that as on the date of incident, the

accused Nos.1 and 2 and deceased were together as per the

tower location near Murudeshwar.

(b) After the arrest of accused Nos.1 and 2, the police have

recorded their voluntary statement and the same has been

recorded as Ex.P-93 & P94. On their disclosure statement, the

dead body of the deceased had been discovered.

(c) It is not in dispute that, the dead body was found in the

well which was an isolated place and no other person could see

easily except those who had personal knowledge where they

dumped the dead body in the well. In this case, Accused Nos.1

and 2 have showed the place, where they have dumped the

dead body. The same has been corroborated by the evidence of

PW.13 and PW.19 who are the independent witnesses.

(d) Further, on their disclosure statements, car, mat of the

car and iron rod which is said to have been used for the

commission of offence have been recovered. PW-3 has

supported the case with respect to the said seizure mahazar.

(e) The mat containing blood, the iron rod containing blood,

the mud containing blood are all examined by the FSL officers in

different capacities and they have submitted their reports which

are marked as Ex.P-62 & P-69 respectively. The scientific

officers are consistent in their evidence, the blood stains on the

above three objects would indicate that it is of human origin.

(f) A careful scrutiny of the evidence led in the matter

though proves that the prosecution could able to prove the guilt

of the accused No.1/respondent No.2 for the offence punishable

under Sections 302 and 201 of the IPC, but hardly there is any

evidence to establish that there was a criminal conspiracy among

the accused to commit the offence. Unless there is cogent

evidence to show that there was meeting of minds among the

accused, which resulted in a criminal conspiracy, merely because

there was participation of more than one accused in the

commission of the crime, it cannot be held that there was a

criminal conspiracy behind it. As such, we have no hesitation to

hold that the prosecution has failed to prove the alleged guilt

against the accused No.1/respondent No.2 for the offence under

Section 120(B) of the IPC.

In the light of the above observation, we are of the

considered opinion that, the prosecution has proved the case

beyond reasonable doubt and that the accused Nos.1 and 2 have

jointly committed a0n offence under sections 302 and 201 read

with section 34 of IPC. Since accused No.2 has died during the

pendency of the case, the appeal is filed against respondent

No.2 / accused No.1 only. Accordingly, we pass the following:

ORDER

(i) The Appeal filed by the Appellant is allowed-in-part.

(ii) The impugned judgment and order dated

05.09.2019 passed by the learned X Additional

Sessions Judge, Belagavi, in S.C.No.175/2015,

acquitting the accused No.1 - Nagangouda

Shivangouda Patil (respondent No.2) for the

offences punishable under Sections 302 and 201 of

Indian Penal Code is hereby set-aside.

(iii) The Accused No.1 is convicted for the offence under

Sections 302 and 201 of Indian Penal Code.

(iv) The acquittal order passed by the X Additional

Sessions Judge, Belagavi, in S.C.No.175/2015

dated 05.09.2019 with respect to section 120(B),

506 r/w 34 of IPC is confirmed.

(v)     Heard both side on sentence.

(vi)    Accused No.1 - Nagangouda Shivangouda Patil is

sentenced to undergo rigorous imprisonment for

life for the offence punishable under section 302 of

IPC and to pay a fine of `50,000/- (Rupees Fifty

Thousand only), in default, the accused No.1 shall

undergo further sentence of simple imprisonment

for one year.

(vii) Further, the Accused No.1 shall undergo simple

imprisonment of 5 years for the offence punishable

under section 201 of IPC and pay a fine of `5,000/-

(Rupees Five Thousand only), in default of payment

of fine, he shall undergo six months simple

imprisonment.

(viii) All the sentences shall run concurrently.

(ix) It is directed the Registry to deliver a copy of this

judgment to the accused No.1 free of cost.

(x) Registry to transmit a copy of this judgment along

with Sessions Court records to the concerned

Sessions Court, forthwith, for doing the needful in

the matter in securing the accused for serving the

sentence and in accordance with law.

(xi) Further, it is directed the registry to forward a copy

of this order to DG and IGP forthwith to take

suitable action against the Investigation Officer.

Sd/-

JUDGE

Sd/-

JUDGE

Vmb/NAA/Bss