Karabasappa S/O Ramesh ... vs Ramesh S/O Mahadevappa Betageri
2022 Latest Caselaw 5321 Kant

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            IN THE HIGH COURT OF KARNATAKA
                    DHARWAD BENCH

         DATED THIS THE 24TH DAY OF MARCH 2022

                       PRESENT

      THE HON'BLE MR. JUSTICE H.T.NARENDRA PRASAD

                         AND

      THE HON'BLE MR. JUSTICE RAJENDRA BADAMIKAR


               CRL.A.No.100086/2016 C/W
                 CRL.A.No.100016/2016

IN CRL.A NO 100086 OF 2016

BETWEEN

STATE OF KARNATAKA,
REPRESENTED BY THE
POLICE INSPECTOR,
KALAGHATAGI POLICE STATION,
DHARWAD.
THROUGH THE ADDL. STATE PUBLIC PROSECUTOR,
ADVOCATE GENERAL OFFICE,
HIGH COURT OF KARNATAKA,
DHARWAD BENCH.
                                        .....APPELLANT
(BY SRI V.M. BANAKAR, ADDL. SPP)

AND

1.    RAMESH S/O MAHADEVAPPA BETAGERI,
      AGE: 36 YEARS, OCC: AGRICULTURE,
      R/O: HINDASAGERI.

2.    MANJUNATH S/O CHINNABASAPPA TIPPANNAVAR,
      AGE: 33 YEARS, OCC: AGRICULTURE,
      R/O: HINDASAGERI.

3.    MUDAKAPPA @ SHETTEPPA,
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      S/O HANAMANTAPPA ADARGUNCHI,
      AGE: 32 YEARS, OCC: AGRICULTURE WORK,
      R/O: UGNIKERI.

4.    MANJUNATH S/O BASAPPA GANJIGATTI,
      AGE: 35 YEARS, OCC: AGRICULTURE,
      R/O: HINDASAGERI.
                                              .....RESPONDENTS

(by sri K.L. PATIL, ADV. FOR R-1, R-3 & R-4
APPEAL AGAINST R-2 STANDS ABATED)

      THIS CRIMINAL APPEAL IS FILED U/S 378 (1) & (3) OF
CR.P.C. SEEKING TO GRANT LEAVE TO APPEAL AGAINST THE
JUDGMENT AND ORDER OF ACQUITTAL DATED 20.11.2015 IN
S.C.NO.20/2012 ON THE FILE OF II ADDL. DISTRICT AND
SESSION AND SPECIAL COURT, DHARWAD AND TO SET ASIDE
THE JUDGMENT AND ORDER DATED 20.11.2015 PASSED BY II
ADDL DISTRICT AND SESSION AND SPECIAL COURT, DHARWAD
IN S.C.NO. 20/2012.

IN CRL.A NO 100016 OF 2016

BETWEEN

KARABASAPPA S/O RAMESH KARABASANNANAVAR,
AGED ABOUT 40 YEARS, OCC:AGRICULTURE,
R/O:HINDASGIRI, TQ:KALAGHATAGI,
DIST:DHARWAD.
                                       .....APPELLANT
(BY SRI MAHESH WODEYAR, ADV.)

AND

1.    RAMESH S/O MAHADEVAPPA BETAGERI,
      AGED ABOUT 35 YEARS, OCC:AGRICULTURE,
      R/O:HINDASGIRI, TQ:KALAGHATAGI,
      DIST:DHARWAD.

2.    MANJUNATH S/O CHANNABASAPPA TIPPANNANAVAR,
      AGED ABOUT 33 YEARS, OCC:AGRICULTURE,
      R/O:UGNIKERI, TQ:KALAGHATAGI,
      DIST:DHARWAD.
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3.   MUDUKAPPA @ SHETTEPPA
     S/O HANUMANTAPPA ADARGUNCHI,
     AGED ABOUT 33 YEARS, OCC:AGRICULTURE,
     R/O:MAVANUR, TQ:KALAGHATAGI,
     DIST:DHARWAD.

4.   MANJUNATH S/O BASAPPA GANJIGATTI,
     AGED ABOUT 33 YEARS, OCC:AGRICULTURE,
     R/O:HINDASGIRI, TQ:KALAGHATAGI,
     DIST:DHARWAD.

5.   STATE OF KARNATAKA
     REP BY ADDL. STATE PUBLIC PROSECUTOR,
     HIGH COURT OF KARNATAKA, DHARWAD BENCH,
     DHARWAD.

                                              .....RESPONDENTS
(BY SRI K.L. PATIL, ADV. FOR R-1, R-3 & R-4
SRI V.M. BANAKAR, ADDL. SPP FOR R-5)

     THIS CRIMINAL APPEAL IS FILED U/S 372 OF CR.P.C.
SEEKING TO CALL FOR RECORDS AND TO SET ASIDE THE
JUDGMENT AND ORDER OF ACQUITTAL DATED:20.11.2015
PASSED BY THE II ADDL. DISTRICT SESSIONS AND SPECIAL
JUDGE, DHARWAD IN S.C. NO. 20/2012 AND CONSEQUENTLY
CONVICT THE RESPONDENTS NO. 1 TO 4 FOR THE OFFENCES
PUNISHABLE U/SEC 120-B, 364, 302, 201 R/W SECTION 34 OF
IPC.

     THESE APPEALS     HAVING   BEEN    HEARD AND
RESERVED FOR JUDGMENT ON 05.03.2022, THIS DAY,
RAJENDRA BADAMIKAR, J. PRONOUNCED THE FOLLOWING:


                        JUDGMENT

These two appeals are filed by the complainant and the

State challenging the judgment of acquittal passed by the II

Additional District and Sessions Judge & Special Judge,

Dharwad, in S.C.No.20/2012, dated 20.11.2015 whereby the

learned Sessions Judge has acquitted the

accused/respondents herein for the offence punishable under

Sections 120-B, 364, 302 and 201 read with Section 34 of

Indian Penal Code, 1860 (hereinafter referred as 'IPC', for

short).

2. For the sake of convenience, the parties herein

are referred with the original ranks occupied by them before

the trial Court.

3. Brief factual matrix leading to the case are that

the accused No.1 was possessing a TATA ACE vehicle bearing

No.KA-25/C-2957 and he used to carry labourers from

Hindasageri village to Budnal pickle factory in his vehicle

earlier. It is alleged that thereafter the deceased

Mahadevappa also began to carry labourers in his TATA goods

vehicle bearing No.KA-27/A-2923 and started to compete with

the accused No.1. Hence, it is alleged that accused No.1 has

developed grudge and animosity against the deceased and he

along with accused No.2 to 4 conspired to get rid of deceased.

It is the case of the prosecution that on 08.08.2011 accused

No.1 with the assistance of accused Nos.2 to 4, secured the

deceased Mahadevappa to Aishwarya Hotel at Kalaghatagi by

calling him through a mobile and there, the accused and

deceased had food. Thereafter the accused asked

Mahadevappa to go to Yellapur with his vehicle on hire but

Mahadevappa refused. It is alleged that then the accused

Nos.1 to 4 kidnapped him from the above hotel in the vehicle

of the deceased at about 9.30 p.m. and took him near Magod

cross after Yellapur and at about 12.00 in the midnight, the

accused stopped the vehicle and deceased was made to get

down from the vehicle. It is the further case of the

prosecution that accused No.1 has throttled the neck of the

deceased with hands while accused No.2 kicked him on his

testicles while accused Nos.3 and 3 caught hold the hands and

legs of the deceased. Later on after committing the death of

the deceased at about 12.30 in the midnight, the accused

with an intention to cause disappearance of the evidence of

commission of the murder and in order to destroy the

evidence, threw the chappals of the deceased in a bush and

took the dead body in TATA ACE vehicle near 26 km. stone of

Ankola near Mastakatta forest area and thrown the dead

body. It is also urged that the pant and shirt of the deceased

were removed and torn and accused No.1 smashed the head

and chest with stone and accused No.2 took the Nokia mobile

of the deceased and removed the SIM and broken it into

pieces and then kept it in a carry bag and threw the same in

nearby bush and accused No.4 kept pant and shirt in the bed-

sheet and thrown it in the Mastakatta Range Hotel in the

forest area by the side of the drainage and accused No.2

threw gripper cover of the steering of TATA ACE vehicle of the

deceased at some distance.

4. Later on 08.08.2011 when the deceased did not

go to factory to bring the labourers, one of the labourers

contacted the complainant and complainant called the

deceased on his mobile but his mobile was found switched off.

Then they learnt that the vehicle was parked near Mishrikoti

cross and complainant went there and they found TATA ACE

vehicle parked there belonging to the deceased but deceased

was not traced there. By using the duplicate key, the vehicle

was brought back and they searched the deceased for two

days and later on a missing complaint was filed.

It is the further case of the prosecution that the police

were not able to break the dead lock in the missing complaint

and meanwhile the complainant came to know from one

Channappa that the accused Nos.1 and 4 while passing near

his land were talking regarding they finishing the deceased

and police are unable to search his dead body and after over

hearing this information, he reported the same to the

complainant. Thus, the complainant has lodged a complaint

in this regard against the accused which was registered in

Crime No.177/2011. Initially accused Nos.1 to 4 were

arrested and the Investigating Officer recorded their

confessional statements. It is alleged that at their instance,

the skeleton of the deceased was traced and certain clothes,

mobile SIM etc. were recovered and he has also recorded the

statements of the witnesses and last seen theory was put

forward and as such, the charge sheet came to be submitted

against the accused Nos.1 to 4.

5. The accused Nos.1 to 4 were arrested and initially

remanded to judicial custody. Subsequently, they were

enlarged on bail. After submission of the charge sheet, the

learned Magistrate took cognizance and he also furnished the

copies of the prosecution papers to the defence counsel. Since

the offence under Section 302 of IPC is exclusively triable by

the Court of sessions, he has committed the matter to the

Sessions Court. Then the matter was placed before the II

Additional District and Sessions Judge and he secured the

presence of the accused and charges framed were read over

and explained the accused and they pleaded not guilty.

6. To prove the guilt of the accused, prosecution has

examined in all 28 witnesses as PW-1 to PW-28 and 88

documents were marked as Exs.P-1 to P-88(a). Further

material objects were marked as M.O. 1 to 13. After the

conclusion of the evidence of the prosecution, the statement

of the accused under Section 313 of Code of Criminal

Procedure, 1973 (hereinafter referred to 'Cr.P.C.', for short) is

recorded to enable the accused to explain the incriminating

evidence appearing against them in the case of the

prosecution. The case of the accused is of total denial and

they did not chose to lead any defence evidence in support of

their contention.

7. After having heard the arguments by the Public

Prosecutor and defence counsel, the learned Sessions Judge

by the impugned judgment found that the prosecution has

failed to prove the guilt of the accused beyond all reasonable

doubt and as such acquitted them by exercising powers under

Section 235(1) of Cr.P.C. for the offence punishable under

Section 120-B, 364, 302, 201 read with Section 34 of IPC.

Being aggrieved by this judgment of acquittal, the

complainant has filed the appeal under Section 372 of Cr.P.C.

with the leave of this Court. Simultaneously, the State has

also filed the appeal under section 378(1) and (3) of Cr.P.C.

challenging the judgment of acquittal passed by the trial

Court.

8. Since both these appeals are arising out of the

same judgment of acquittal, they are heard together and

common order is being passed.

9. We have heard the arguments advanced by the

learned counsel for appellants and the learned Additional

State Public Prosecutor and the learned counsel for

respondent at length. Perused the records.

10. Learned counsel for the complainant/appellant

and learned Additional State Public Prosecutor would contend

that though the case is based on circumstantial evidence, the

evidence clearly disclose that there was a strong motive for

accused to commit the murder of the deceased as there is a

professional rivalry. He would further contend that Ex.P-37 is

a missing complaint and the evidence of PW-2 and other

witnesses clearly disclose that recovery and tracing of the

skeletal of the deceased was at the instance of the accused.

He would also contend that PW-10 overheard the talk while

PW-8 is a last seen witness and PW-14 is a star witness, who

has also identified the accused for having last seen them

along with the deceased. He would further contend that DNA

report at Ex.P-87 clearly establish that the skeletal is of the

deceased Mahadevappa as the blood samples of his parents is

matching with DNA profile and the certificate is admissible

under Section 293 and 294 of Cr.P.C. as while marking these

documents, there was no objection by the defence. He would

also contend that at the instance of the accused the skeleton

of the deceased was recovered and it is material piece of the

evidence and phone call details disclose that accused had

called the deceased prior to alleged incident. They would also

contend that recovering panchas have also supported and last

seen theory is also corroborated with the evidence and there

is chain of links and other circumstances including the motive

supports the case of the prosecution. Hence, he would

contend that the trial Court has erred in properly appreciating

the oral and documentary evidence and has given undue

importance to the irrelevant factors which has resulted in

miscarriage of justice. They would also contend that though

in paragraph 20 of the judgment, the trial Court has held that

recovery is proved but the trial Court failed to consider that

the recovery which was within the knowledge of the accused

and hence, they sought for allowing the appeals by setting

aside the impugned judgment of acquittal and prayed for

convicting the accused.

11. Per contra, learned counsel for

accused/respondents No.1, 3 and 4 would support the

judgment of acquittal passed by the trial Court. He would

contend that the entire case is based on the circumstantial

evidence and as such, heavy burden is casted on the

prosecution to establish the link between the chain of

circumstances. He would contend that though the alleged

incident of missing has taken place on 08.08.2011, missing

complaint was lodged on 10.08.2011, after two days and the

complaint against accused was lodged on 01.09.2011. He

would also contend that PWs-1, 2, 8, 9, 13 and 18 are all

relatives and interested witnesses. He would further contend

that since the entire case is based on the circumstantial

evidence, motive plays important role and except PW-1, none

of the other witnesses have deposed regarding the motive.

Further he has also invited the attention that the recovery

pancha is from a village which is situated at a distance of 60

km from Kalaghatagi and scene of offence itself is at a

distance of 88 km from Kalaghatagi and why the Investigating

Officer has preferred a witness from such a long place is not

at all explained as PW-2, who claims to be the star witness,

was resident of Naregal. He would also contend that the

evidence of mahazar witness regarding seizure of mobile is

also inconsistent. He further contended that PW-14 was

posed to be the star witness, he identified the accused as per

the say of the owner of the Hotel and no identification parade

is held. He also invited attention that through the call details

and considering the evidence of PW-17 who has answered

recklessly and the location of the tower was not at all

disclosed to ascertain the place from where the calls have

been made or received. He would further argues that there is

no link of chain and there is no time of death forthcoming and

location was also not traced out in the call details and as

regards last scene theory, no material evidence is

forthcoming. He would also contend that the motive is not at

all established and the chain of circumstances is not linking

with each other and hence, he would contend that the trial

Court is justified in acquitting the accused. He would further

submit that there is always presumption of innocence in

favour of the accused during the course of the trial and when

the accused are acquitted by the trial Court this presumption

becomes more stronger and prosecution is required to

establish the case on high standard to set aside the judgment

of the trial Court. He would contend that the circumstantial

evidence does not establish any link and as such he would

seek for dismissal of the appeals by confirming the judgment

of acquittal passed by the trial Court.

12. Having heard the arguments advanced by the

learned counsel for both the parties and after perusing the

records of the trial Court, the following point would arise for

our consideration:

"Whether the trial Court has committed an error in acquitting the accused and whether the

judgment of the trial Court suffers from perversity, infirmity or arbitrariness so as to calls for any interference by this Court?"

13. The accused have been prosecuted for the offence

punishable under Sections 120B, 364, 302, 201 read with

Section 34 of IPC. Admittedly, the dead body was not traced

and only the skeleton was traced. The defence counsel has

also disputed the identity of the deceased as claimed by the

prosecution. There is no material evidence or eyewitness in

the instant case and the entire case rests on circumstantial

evidence. The prosecution is relying on i) motive, ii) last

seen theory, iii) recovery of the incriminating materials and

iv) tracing the skeleton at the instance of the accused so as

to prove the link. When the prosecution is basing its entire

claim on circumstantial evidence, the prosecution is

required to prove the continuation of chain of links and high

standard of proof is required. With these cardinal principles

of law in mind, we will have to assess the evidence led by

the prosecution.

14. It is the case of the prosecution that there was

animosity between the deceased Mahadevappa and accused

No.1 in respect of carrying the labourers from Hanchatageri

to Budnal pickle factory in the respective goods vehicles

and there was professional rivalry. Hence, the prosecution

is attributing the motive in this regard. According to the

prosecution, with this motive, the accused No.1 developed

grudge against deceased and he conspired along with

accused Nos.2 to 4 and on 08.08.2011, secured the

deceased near Aishwarya Hotel, Kalaghatagi and later on

kidnapped him in his goods vehicle at 9.30 p.m. and

thereafter committed his murder. It is the specific case of

the prosecution that the accused have kidnapped the

deceased in his own vehicle but absolutely no piece of

evidence is forthcoming regarding kidnapping of the

deceased. This material evidence and material link itself is

missing and none of the witnesses are able to disclose the

act of kidnapping.

15. PW-1 is the complainant and brother of the

deceased. Except this witness, none of the witnesses have

deposed regarding the motive as alleged. Though he has

deposed regarding the motive for commission of offence by

the accused No.1, it is hard to accept that this motive has

prompted the accused No.1 to cause the death of the

deceased on the ground that there was animosity between

them. Very interestingly, the witness further deposes that

the accused No.1 and deceased used to have food regularly

in the restaurant and in that event, question of they

developing animosity does not arise at all. Further, except

the evidence of PW-1, none of the other witnesses have

supported the case of the prosecution regarding alleged

motive.

16. The entire case of the prosecution rests on

evidence of PW-8 and PW-14, who claim that they have

witnessed the deceased along with accused near Aishwarya

Hotel in Kalaghatagi at about 8.00 p.m. to around 9.30

p.m. Very interestingly, it is to be noted here that PW-8 is

the relative of the complainant as the wife of his brother

i.e., PW-9, Sangappa and wife of PW-8 are sisters. Further,

his evidence discloses that two years back, he has seen the

deceased standing near Aishwarya Hotel along with 4 to 5

persons and he did not identify any of them. According to

him, he was summoned by the police near the Hotel 8 days

after the missing incident of Mahadevappa and he has

shown the spot. But as per the case of the prosecution,

after three weeks, the spot was shown. Further, PW-8

identified accused No.1 in the photograph but his evidence

discloses that he did not initially identify the accused No.1

before the Court. Very interestingly, Investigating Officer

has not conducted test of identification to enable PW-8 to

identify the accused No.1. Further, this witness was

treated as hostile and he denied that he has given

statement as per Exs.P-35 and P-36. Hence, the evidence

of PW-8 does not assist the prosecution in any way.

17. The other witness is PW-14, regarding last seen

theory. He claims to be an employee of Aishwarya Hotel

and deposed that one and half years back, at 9.30 p.m.,

five persons came to hotel and took meals and went away.

He identified the accused Nos.1 to 4 and photograph of the

deceased. His cross-examination reveals that there are no

documents to show that he was working as waiter in

Aishwarya Hotel and he was on the duty at the relevant

point of time and he was getting monthly salary of

Rs.8,000/-. Very interestingly, the Investigating Officer

has not collected any documents in this regard nor

recorded the statement of the owner. Apart from that, PW-

14 specifically deposes that number of customers used to

visit the hotel and there was no such special occasion to

memorize the visit of deceased and accused.

18. It is important to note here that since this case

is based on circumstantial evidence and on last seen

theory, the prosecution is required to prove that on a

particular date in the night, the deceased was seen in the

company of the accused. But the evidence discloses that

PW-14 has not at all stated the exact date or week of the

visit of the accused to the Hotel. But very interestingly, he

also deposed that all the accused and deceased used to

frequently visit the Hotel for meals and therefore, he

cannot specify the specific date. If this version is taken

into consideration, then accused and deceased were in

good terms and as such, the theory of the prosecution

regarding motive is destroyed.

19. However, his further cross-examination

discloses that as per the say of the owner that in all five

persons had come to the hotel for meals and since the

definite information is given by the owner, he is giving the

evidence in this regard. This admission in the evidence of

PW-14 clearly established that he has no personal

knowledge regarding visit of accused and deceased. Even

otherwise, if the evidence is taken into consideration, then

deceased and accused are frequent visitors and in that

event, the base i.e., motive itself is destroyed. Further, no

identification parade was conducted in this regard. The

prosecution is required to prove that the deceased was

seen in the company of the accused which is prior to his

disappearance and prior to this death. But this material

evidence is missing.

20. Apart from that, it is also important to note here

that prosecution has also not able to fix the time of the

death. When the time of the death is not fixed, there is no

proximity between last seen theory as asserted by the

prosecution. The prosecution is relying on voluntary

statement of the accused but to fix the time of the death,

the voluntary statement of the accused in this regard is

inadmissible. Considering this material lapse, the evidence

of PW-14 regarding last seen theory itself becomes

doubtful. Apart from that, it is only a weak type of

evidence and that itself cannot be a ground for conviction.

21. The prosecution is harping on the fact that the

dead body is discovered and incriminating articles were

recovered at the instance of the accused and recovery is a

strong circumstance to prove the guilt of the accused. In

this regard, prosecution is placing reliance on the evidence

of PW-2, a pancha witness for inquest and spot mahazar at

Ex.P-5. This witness, no doubt, has supported the case of

the prosecution and he deposed regarding the accused

leading them to the skeleton of the dead body, production

of chappals of the deceased, broken mobile, stone, clothes

of the deceased etc. At the same time, the evidence of

PW-2 is silent as to which of the accused has laid for which

recovery. This is also important to note here that this

witness is native of Naregal in Hanagal Taluk and it is at a

distance of 65 km from Kalaghatagi. In that event, it is for

the Investigating Officer to explain as to why he has not

preferred a local witness but he preferred a witness of far

distance. It is also important to note here that wife of the

deceased is from Naregal village and he had visited along

with father-in-law of the deceased to the village of the

deceased after getting the information of missing of

Mahadevappa.

22. The further evidence of PW-2 discloses that 15-

16 days after missing of Mahadevappa, Kalaghatagi police

have called him as a pancha by reporting that dead body is

traced. This statement of the witness indicates that the

dead body/skeletal was not shown by the accused by

leading the pancha for the first time but the police were

having the knowledge of this aspect. There is no material

evidence as to on what basis they collected the information

prior to mahazar which is alleged to have been led by the

accused. Further the evidence of PW-2 discloses that police

have obtained his signatures in police station two days prior

to the mahazar and two days later on he was taken to

Ankola. His further evidence discloses that police have

called him from Naregal village through father-in-law of the

deceased by sending a telephone message. What is the

interest of the investigating agency or the complainant in

calling the pancha from long distance is not at all

forthcoming. His evidence clearly establishes that it is not

trustworthy and the police knew the existence of dead body

well in advance before the accused alleged to have led to

the spot. Considering these lapses, the prosecution ought

to have examined other co-panchas but the prosecution has

not examined them.

23. The other interesting aspect is that the area

wherein the skeleton, clothes and other incriminating

materials were recovered is a forest area and it was heavy

raining area in this locality. The evidence also discloses

that when they had been for recovery, it was again raining.

It is hard to accept that when for almost three weeks, when

the properties were exposed to heavy rain, they were found

intact, without therebeing any damage to the properties

including the broken mobile piece. The intactness of these

properties itself raise a serious doubt regarding mahazar

being conducted by the prosecution. It is hard to accept

that chappals were lying there itself when they were

exposed to rain including the clothes, mobile pieces as well

as pant, shirt and blanket and naturally they would have

been scattered all along but the evidence led by the

prosecution discloses that they were intact which create

suspicion regarding genuineness of the mahazar itself.

Very interestingly, the allegation of the prosecution is

regarding the accused showing the stone from the nala

which alleged to have been used for commission of the

offence. In such monsoon season and that too in such a

raining area, is it possible for tracing a particular stone

without therebeing any special identification marks is a

doubtful aspect. Similarly, the allegation regarding the

recovery of steering gripper is also doubtful as when the

rubber is continuously exposed to air or rain, it is bound to

be damaged but no such things have been observed in this

regard. As such considering these aspects, the evidence of

PW-2 does not support the recovery and conduct of the

investigation also fall short of proving the recovery. As

such, this ground of recovery cannot assist the prosecution

in any way.

24. The prosecution has placed reliance on the

evidence of PW-4 and PW-5 regarding recovery of mobile

from the custody of accused Nos.1 and 4 but the evidence

of PW-1 and PW-4 is inconsistent regarding seizure of one

mobile or two mobiles, particular company and as such that

is also not trustworthy as observed in the recovery of

vehicle steering cover and clothes of the deceased. It is a

doubtful aspect and hence, the evidence of PW-4 also does

not have any much relevance.

25. Evidence of PW-6 has no much relevance as well

evidence of PW-7 and regarding seizure of vehicle does not

have any relevancy as admittedly it was being used by the

complainant and his brother thereafter it was traced near

Mishrikoti cross but three weeks before tracing skeleton.

26. The prosecution is giving much importance for

recovery, last seen theory and motive. As observed above,

the last seen theory is not trustworthy and recovery is also

not proved by the prosecution and the recovery is doubtful.

Further, proof of motive will be important corroborative

piece of evidence and in case, it is proved, it only

strengthens the case of the prosecution. Further, the

motive assumes great importance where conviction is

sought on the basis of the circumstantial evidence.

27. As observed above, except PW-1, none of the

witnesses have deposed regarding alleged motive. Further

the evidence of PW-14 itself discloses that the accused and

deceased together used to visit the Hotel frequently and in

that event, the allegations of grudge or animosity is ruled

out. Further, there is no evidence to prove that there was

any incident of quarrel between the deceased and accused

No.1 prior to the incident.

28. PW-19 did not speak regarding enmity between

accused and deceased. As per the case of the prosecution,

one Channappa i.e., PW-10, overheard the conversation

between accused Nos.1 and 4 who were talking slowly

while this witness was working in his field that they have

made the plan that Mahadevappa cannot be traced any

time and police could not trace him and as such, he

informed this factor to PW-1. His cross-examination reveals

that the deceased was closely related to him being brother-

in-law of the deceased. It is interesting to note that

according to him, while he was working in his land, accused

Nos.1 and 4 were talking in low voice. Admittedly this

witness was not following accused Nos.1 and 4 nor standing

near them so as to hear the low voice conversation. Very

interestingly, when he heard the conversation, on the same

day he did not take any steps in this regard. On the next

day, he claims that he reported the matter to the

complainant. This conduct of this witness is against a

natural human conduct and as such, it is evident that he is

a planted witness by the Investigating Officer.

29. PW-13 is the father-in-law of the deceased and

father of PW-10 as admitted by him in cross-examination.

According to him, on 08.08.2011, the deceased left his

house in Naregal at 3.30 p.m. and when he called the

deceased, it is disclosed that the deceased was taking

meals with accused No.1 and other friends. Very next day,

the deceased found missing and interestingly PW-13 did not

report this matter either to the complainant or to police for

the best reasons known to him. Why he waited for long

days is not all forthcoming. Further his conduct is doubtful,

as he claims that he called his son-in-law from the mobile

of one Malleshappa and the Investigating Officer did not

attempt to collect the mobile call details of said

Malleshappa. Further, he is the father of PW-10. PW-10

earlier deposed regarding he hearing low voice

conversation between accused Nos.1 and 4 and both PW-10

and PW-13, son and father did not bother to take any

initiation in this regard which disclose that their evidence is

unnatural and cannot be trusted.

30. The other last seen witness, PW-12 has turned

hostile.

31. PW-17 is the photographer who claims that he

accompanied the Investigating Officer and others during

the recovery and snapped the photographs regarding

recovery of the articles. He claims in his cross-examination

that he has taken these photographs from digital camera

wherein the date and time is available but none of these

photographs disclose the date and time of taking these

photographs. Further photographs were marked subject to

objection regarding production of negative or memory card.

But the same is not produced by the investigating agency

and as such no much importance can be given to the

evidence of this witness also.

32. The prosecution is further placed reliance on call

details marked at Exs.P-47 and P-57. PW-21 is the Dy.S.P.

who has acted as a Nodal Officer. According to him, the

call details were sought in respect of ten mobile numbers

and he has furnished them as per Ex.P-47. He claims that

on 03.11.2011 the said information was provided and prior

to 03.11.2011 the said information was transferred to

Kalaghatagi police station but he pleads ignorance whether

Ex.P-47 contains all the call details of all mobiles and this

discloses his reckless attitude.

33. Apart from that, the evidence of PW-24, who is

a Nodal Officer of Bharati Airtel Ltd. discloses that the call

details were furnished on 21.11.2011 as per the request of

Kalaghatagi police dated 19.11.2011. But the evidence of

PW-21 discloses that they were produced on 03.11.2011

itself i.e., prior to the demand. Hence, the evidence

regarding call details is not trustworthy.

34. Apart from that, the mobile number is not

standing in the name of the deceased and the Investigating

Officer did not bother to ascertain the person in whose

name it is standing. Further the call details pertaining to

accused No.4 disclose that it is not standing in the name of

accused but no attempt has been made by the

Investigating Officer in this regard to ascertain in whose

name it was standing and no statement of the said witness

was recorded. Further, Ex.P-57 is another call details

which does not bear the signature of the authority but

Ex.P-47 bears the signature and no explanation is offered in

this regard. The other material lapses in this regard is that

in call details, the location is not disclosed and the Nodal

Officer, who collected the call details did not give

explanation as to why the location is not disclosed. The

location of call details can be easily made available to trace

the tower and this material link was found missing in the

instant case.

35. The prosecution has placed reliance on DNA test

report to prove the identity of the deceased. However, it is

to be noted here that dead body was found in skeletonized

position. The evidence of PW-23 discloses that cause of

death cannot be determined in view of skeletisation of the

body. Even the evidence of PW-15, a forensic expert

discloses that he cannot give any clear opinion regarding

the cause of death as there are no antemortem injuries on

the bone and he further deposed that if doctor conducting

the postmortem had sent skull bones, he could have

ascertained the factor. According to the prosecution, the

skull bones were available and it is the specific case of the

prosecution that skull was smashed and bones were

available but they were not sent for chemical examination.

36. The DNA report is marked as per Ex.P-87 and as

per the said report, the femur bone of the deceased is off

spring of Ramappa and Sangavva, the parents of the

deceased. According to the Scientific Officer's report, he

has received one sealed with EDTA coated vacutainer said

to contain blood sample. But the doctor who has collected

the blood sample has stated that he did not collect the

blood by using EDTA chemical and according to him, he has

collected the blood by using the Sodium Citrate. Hence,

these two circumstances are also inconsistent which create

more suspicion over the genuineness of the case of the

prosecution.

37. When the prosecution is resting the case on

circumstantial evidence, all the chain circumstances should

be complete and there should not be gap left in the chain of

evidence and proved circumstance must be consistent with

the allegations of the prosecution regarding the guilt of the

accused and they should be inconsistent with the innocence

of the accused.

38. The Hon'ble Apex Court has already laid down

that the suspicion, however, strong cannot substitute for

proof and burden lies on the prosecution to substantiate its

contention. Further the evidence also discloses that there

are number of forest check posts and if the vehicle of the

deceased was moved in the said area from Dharwad District

to Karwar, there should have been some entries in the

forest check. But relevant documents from the forest

department were not collected which is admitted by the

Investigating Officer. In forest check post, movement of

every vehicle will be recorded in the register which is also a

material link missing in the case of the prosecution.

39. Learned counsel for appellant has placed

reliance on a decision in the case of Harpal Singh @

Chhota Vs. State of Punjab reported in (2017) 1 SCC

734. But the facts and circumstances of the case are

entirely different. In the said case, recovery of currency

notes, iron rods, vehicle was beyond any suspicion. But in

the instant case, the evidence discloses that recovery itself

is in doubtful and it is surrounded with suspicious

circumstances and as such, the said principles do not come

to the aid of the prosecution or the complainant in any way.

He has placed reliance on the decision in the case of

Sonu @ Amar Vs. State of Haryana reported in (2017)

8 SCC 570. But again as observed above, the facts and

circumstances are entirely different and in the said case,

the disclosure statements of accused have lead to recovery

of dead body from a premise of temple. But here in the

instant case, the identity of the deceased itself is under

doubtful. Further, in the said case, CDRs of mobile clearly

disclose interaction of the accused and deceased and

hence, the principles enunciated in the above cited case

cannot be made applicable to the facts circumstance of the

case in hand.

Learned counsel for the appellant further placed

reliance on the decision in the case of Yogesh Singh Vs.

Mahabeer Singh and others reported in (2017) 11 SCC

195. In the said case also the recovery was established but

in the instant case, recovery itself is doubtful. Hence, the

said principles do not have any assistance to the

prosecution in any way. He has placed reliance on the

decision in the case of Dilip Mallick Vs. State of West

Bengal reported in (2017) 12 SCC 727 but in the said

case, PWs-3, 4 & 5 have consistent regarding last seen

theory which is supported by recovery at the instance of

the accused which is proved beyond all reasonable doubt

but in the instant case, recovery itself is not proved beyond

all reasonable doubt. The last seen theory as put forward

by the prosecution is not at all trustworthy and in the

cross-examination, the defence counsel has exposed the

same. Hence, the said principles do not assist the

prosecution in any way.

40. Learned counsel for appellant further placed

reliance on the decision in the case of Surendra Singh &

another Vs. State of Uttarakhand reported in AIR 2019

SC 99 and invited the attention of the Court to paragraphs

34 to 50. But in the said case, the motive was proved

along with last seen theory. Further, the recovery of

clothes containing bloodstains, identification of the stolen

articles along with the discovery of weapons was

established but none of these principles are applicable to

the case in hand and as such the principles enunciated in

the said decision will not assist the prosecution in any way.

41. Learned counsel for appellant has further relied

on the decision in the case of Sandeep Vs. State of Uttar

Pradesh reported in (2012) 6 SCC 107 but the facts in

the said case are entirely different as in the said case, there

was no FIR regarding theft of car which was put forward as

a defence and the defence taken by the accused that he

was not present at the time of occurrence of incident and

indirectly put forward the plea of alibi which he has failed to

establish. The Hon'ble Apex Court has also held that when

the accused has failed to prove the plea of alibi, the

presumption is required to drawn against him under

Section 106 of the Indian Evidence Act. As such, the

principles enunciated in the said decision will not come to

the aid of the defence in any way.

42. Learned counsel for appellant lastly placed

reliance on the decision in the case of A.N. Venkatesh &

another vs. State of Karnataka reported in 2005 (7)

SCC 714. It was a case for kidnapping for ransom,

committing the murder and dead body was identified and

found at the instance of the accused and recovery was

clearly established. But in the instant case the said

material aspect itself are not established and identity of the

deceased itself is under dispute. Under such circumstance,

the principles enunciated in the above said decision will not

come to the aid of the prosecution in any way.

43. Learned counsel for respondent/accused has

placed reliance on decision in the case of Mohd. Younus

Ali tarfdar Vs. State of West Bengal reported in 2020

(3) SCC 747 wherein the Hon'ble Apex Court has held that

when the circumstance relied upon by the prosecution to

prove the guilt of the accused are not complete and not

leading to conclusion with all human probability of murder

must have been committed by the accused, the conviction

cannot follow. On this point only he has further relied on a

decision in the case of Anwar Ali and another vs. State

of Himachal Pradesh reported in AIR 2020 SC 4519.

The principles enunciated in the above referred citations

are applicable to the facts and circumstances of the case in

hand.

44. He has also relied on a decision in the case of

Digamber Vaishnav and another Vs. State of

Chhattisgarh reported in 2019 AIAR (Criminal) 463

wherein the larger Bench of the Hon'ble Apex Court has

dealt with the fundamental principles of criminal

jurisprudence in the said decision. The Hon'ble Apex Court

has observed as under:

A. Fundamental principles of criminal jurisprudence--One such principle is undeniably that the burden of proof squarely rests on the prosecution and that the general burden never shifts--There can be no conviction on the basis of surmises and conjectures or suspicion howsoever grave it may be--Strong suspicion, strong coincidences and grave doubt cannot take the place of legal proof--The onus of the prosecution cannot be discharged by referring to very cused nor falsity of defence could take the place of proof which the prosecution has to establish in order to succeed--Though a false plea by the defence at best, be considered as an additional circumstance, if other circumstances unfailingly point to the guilt.

B. Circumstantial evidence--Sustaining conviction on --The Court must satisfy itself that various circumstances in the chain of evidence should be established clearly and that the completed chain must be such as to rule out a reasonable likelihood of the innocence of the

accused--In order to sustain the conviction on the basis of circumstantial evidence, the following three conditions must be satisfied--

(i) the circumstances from which an inference of guilt is sought to be drawn must be cogently and firmly established;

(ii) those circumstances should be of a definite tendency unerringly pointing towards the guilt of the accused;

(iii) 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 none else, and it should also be incapable of explanation on any other hypothesis than that of the guilt of the accused

--It is also well settled principle that in criminal cases, if two views are possible on evidence adduced in the case, one binding to the guilt of the accused and the other is to his innocence--The view which is favourable to the accused should be adopted--This principle has a special relevance in cases wherein the guilt of the accused is sought to be established by circumstantial evidence.

45. The said principles are directly applicable to the

case in hand as in the instant case the circumstances relied

by the prosecution will not draw a conclusive inference

against the accused and they does not unerringly pointed

out finger towards the accused. Further the chain of links

is not established and the burden which is on the

prosecution, never shifted on accused.

46. The learned counsel for respondent has further

placed reliance on a decision in the case of Anjan Kumar

Sarma and others Vs. State of Assam reported in AIR

2017 SC 2617 wherein the Hon'ble Apex Court has held

that the circumstance of last seen together cannot by itself

form basis of holding accused guilty of offence. It is further

observed that in the absence of proof of other

circumstances, only circumstance of last seen and absence

of explanation by the accused cannot be made basis for

conviction. In the instant case also evidence of last seen

theory is not at all trustworthy considering the conduct of

the witnesses. Apart from that, the recovery in the instant

case is also doubtful and under these circumstances, the

principles enunciated in the above cited decisions are

directly applicable to the facts and circumstance of the case

in hand.

47. The learned counsel for respondent has further

placed reliance on a decision in the case of Vijay Kumar

Vs. State of Rajasthan reported in 2014 AIAR

(Criminal) 223 wherein the Hon'ble Apex Court has

observed that the circumstances from which the conclusion

of guilt is drawn should be fully proved and such

circumstances must be conclusive in nature. It is further

observed that all the circumstances should be complete and

there should be no gap left in the chain of evidence. The

Hon'ble Apex Court further observed that the proved

circumstance must be consistence only with the hypothesis

of the guilt of the accused and totally inconsistent with his

innocence. The said principles are directly applicable to the

case in hand as in the instant case, the circumstance does

not establish the chain of links as the recovery is doubtful

and evidence of witnesses posed as last seen are not

trustworthy witnesses. Their initial silence and preferring

witness from a long distance ignoring the local witness for

recovery also fatal to the case of the prosecution without

there being any explanation. Hence, the chain of

circumstance is not completed in the instant case and as

such, the above principles are directly applicable to the

case in hand. In support of his contention the learned

counsel for respondent has also relied on a decision in the

case of Roopsena Khatun Vs. State of West Bengal

reported in 2011 Crl. L.J. 3597. Hence on considering

these aspects, it is evident that the prosecution has failed

to substantiate the contention regarding continuation of the

chain of circumstances so as to point out the guilt of the

accused.

48. Apart from that, the trial Court considering the

weak nature of the evidence after elaborately discussing

the evidence of the prosecution, has given the benefit of

doubt by acquitting them. Under such circumstance, the

innocence of the accused is more strengthened by the order

of the trial Court and under such circumstance, the powers

of the Appellate Court in interfering with the finding of the

trial Court becomes limited as observed by the Hon'ble

Apex Court in case of Mahaveer Singh Vs. State of

Madya Pradesh reported in AIR 2016 SC 5231. The

Hon'ble Apex Court in the above reported case has dealt

with the powers of the Appellate Court interfering with the

finding of the trial Court and further observed that when

two conclusions are possible based on evidence available on

record, the High Court/Appellate Court is not permitted to

interfere with the findings of the trial Court. It is further

held that innocence of the accused is reestablished by the

judgment of acquittal and the powers of interfering with the

order of the acquittal should be exercised cautiously by the

Court as observed in the case of State of Kerala Vs. C.P.

Rao reported in AIR 2012 SC 2879. It is also cardinal

principles of law that when two views are possible and one

view point out innocence of the accused, the view

favourable to the accused shall prevail. This is again

fortified by the decision of the Hon'ble Apex Court in the

case of M. R. Purushotham v. State of Karnataka

reported in 2015 SC (Criminal) 139 and in the case of

Muralidhar @ Gidda and another vs. State of

Karnataka reported in AIR 2014 SC 2200. The Hon'ble

Apex Court in all the situations clearly discussed the powers

of the Appellate Court while interfering with the judgment

of acquittal and it is held that such power should be

exercised cautiously and the view taken by the trail Court

which is possible in view of the evidence on record shall not

be disturbed normally. The said principles are directly

applicable to the facts and circumstances of the case in

hand. In the instant case, the entire case of the prosecution

is based on the circumstantial evidence and prosecution is

required to prove the chain of the links without giving any

gap so as to break the link. But in the instant case, at the

fist instance, the motive itself is not established, which is

foundation in the circumstantial cases. Further recovery as

alleged by the prosecution is also doubtful and not

trustworthy and as regards last seen theory, the evidence

of the witness is unreliable. The trial Court has appreciated

all these facts and circumstances and has arrived at a just

decision of acquitting the accused/respondents of the

charges leveled against them. Under these circumstances,

no grounds are forthcoming so as to interfere with the

judgment of acquittal passed by the trial Court. Hence,

question of interference with the said judgment of the trial

Court does not arise at all. The trial Court has neither

committed an error nor the judgment suffers from any

perversity, infirmity or arbitrariness so as to call for any

interference by this Court. Under these circumstances, the

point under consideration is answered in the negative and

accordingly, we proceed to pass the following:

ORDER

Both the appeals in Crl.A.No.100016/2016 and

Crl.A.No.100086/2016 are dismissed by confirming the

judgment of acquittal passed in S.C.No.20/2012 dated

20.11.2015 passed by the II Additional District and Sessions

Judge & Special Judge, Dharwad.

Sd/-

JUDGE

Sd/-

JUDGE

Naa