State Of Karnataka vs Vijaykumar Hanumantappa Rati
2022 Latest Caselaw 5511 Kant

                                1




            IN THE HIGH COURT OF KARNATAKA
                    DHARWAD BENCH

          DATED THIS THE 28TH 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.100282/2017 c/w
                  CRL.A.No.100270/2017

IN CRL.A NO 100282 OF 2017

BETWEEN

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


AND

KOTRESH VEERABHADRAPPA METI,
AGE: 23 YEARS, OCC: DRIVER,
R/O KALAKERI, TQ: MUNDARAGI.
                                            .....RESPONDENT
(BY SRI H.N. GULARADDI, ADV.)
                              2




      THIS CRIMINAL APPEAL IS FILED UNDER SECTION 378 (1)
AND (3) OF CR.P.C., SEEKING TO GRANT LEAVE TO APPEAL AND
TO SET ASIDE THE JUDGMENT AND ORDER OF ACQUITTAL DATED
06.05.2017 PASSED BY THE PRL. DISTRICT AND SESSIONS JUDGE,
GADAG IN SESSIONS CASE NO. 23 OF 2014 AND TO CONVICT THE
RESPONDENT/ACCUSED NO. 2 FOR THE OFFENCES PUNISHABLE
UNDER SECTIONS 302, 201 READ WITH SECTION 34 OF IPC.


IN CRL.A.No.100270/2017

BETWEEN

STATE OF KARNATAKA
REPRESENTED BY THE
POLICE SUB-INSPECTOR,
MUNDARAGI POLICE STATION,
GADAG,
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.    VIJAYKUMAR HANUMANTAPPA RATI,
      AGE: 20 YEARS, OCC: STUDENT,
      R/O: BYALAWADAGI,
      NOW AT KALAKERI,
      TQ: MUNDARAGI.

2.    SANTOSH DHARMAPPA LAMANI,
      AGE: 18 YEARS, OCC: STUDENT,
      R/O: BEEDNAL TANDA,
      NOW AT BYALAWADAGI,
      TQ: MUNDARAGI.
                                          .....RESPONDENTS
(BY SRI. J S SHETTY, ADV.)
                                  3




      THIS CRIMINAL APPEAL IS FILED UNDER SECTION 378 (1)
AND (3) OF CR.P.C., SEEKING TO GRANT LEAVE TO APPEAL AND
TO SET ASIDE THE JUDGMENT AND ORDER OF ACQUITTAL DATED
06.05.2017 PASSED BY THE PRL. DISTRICT AND SESSIONS JUDGE,
GADAG IN SESSIONS CASE NO. 38 OF 2017 AND TO CONVICT THE
RESPONDENT / ACCUSED FOR THE OFFENCES PUNISHABLE UNDER
SECTIONS 302, 201 READ WITH SECTION 34 OF IPC.


      THESE        APPEALS HAVING          BEEN     HEARD       AND
RESERVED       FOR    JUDGMENT       ON    14.03.2022,   THIS   DAY,
RAJENDRA BADAMIKAR, J. PRONOUNCED THE FOLLOWING:


                           JUDGMENT

These two appeals are filed by the State challenging the

judgments of acquittal passed in S.C.No.38/2012 and

S.C.No.23/2014 dated 06.05.2017, whereby the learned

Principal District and Sessions Judge, Gadag, has acquitted

the accused/respondents herein for the offences punishable

under Sections 302 and 201 read with Section 34 of Indian

Penal Code, 1860 (hereinafter referred to as 'IPC' for short).

2. For the sake of convenience, the parties herein

are referred to with their original ranks occupied by them

before the trial Court.

3. Originally all the accused have been prosecuted in

S.C.No.38/2012 and since the accused No.2 who was

respondent in Crl.A.No.100282/2017 was absconding, the

case against him was split up and registered in

S.C.No.23/2014 and the evidence in both the cases was

recorded independently. However, the same witnesses were

examined in both the cases on the same charge but the order

of examination varies. Further, both the cases were disposed

of independently, but on the same day i.e., on 06.05.2017.

Since both the appeals are arising out of the same crime, they

are heard together and the common order is being passed.

The accused Nos.1 and 3 were prosecuted in S.C.No.38/2012

while accused No.2 was prosecuted in S.C.No.23/2014.

4. Brief factual matrix leading to the case is as

under:

It is the case of the prosecution that on 28.09.2011, a

complaint was lodged by CW-1 Ninganagouda Bhimanagouda

Patil before Mundaragi Police Station in Crime No.141/2011

for the offences punishable under Sections 279 and 304-A of

IPC and under Section 134 read with Section 187 of Motor

Vehicles Act. It is alleged by the complainant that on

28.09.2011 at about 7.00 a.m., he received information that

his son Bhimanagouda has died in a road traffic accident near

Chigihalla. Immediately, he along with his relatives rushed to

the spot and found the dead body of his son lying on the road.

He has also noticed that from the chest upto knees, the entire

body was crushed and wild animals have eaten certain parts.

When the complainant enquired with his sister's husband CW-

14 Ningappa Baraker, he reported that on 27.09.2011, at

6.00 p.m. Bhimanagouda along with CW-13, Kashimsab Nadf

had left to Byalawadagi to Mudaragi to watch movie and did

not return back home. As such, the complaint was registered

against unknown lorry driver regarding road traffic accident.

Subsequently, on enquiry, CW-13 Kashimsab informed that at

9.30 p.m., the said Bhimanagouda was seen in the company

of accused and had requested CW-13 to inform his family

members that he will not be coming for food and he was

proceeding for food along with the accused. According to the

prosecution, this Kashimsab while returning along with the

deceased at 9.00 p.m., infront of Bhavani Bar and Restaurant

in Mundaragi, they met accused Nos.1 to 3 and

Bhimanagouda went along with them. Subsequently, next

day, the death of Bhimanagouda in a road traffic accident was

brought to his notice. Lateron CW-15 Anandappa revealed

that on new moon day, he had gone to Bhimambika Temple

and at night at 8.30 or 9.00 p.m., when he was standing near

Mundaragi bus stand, he had seen the deceased and accused

together going inside Bhavani Bar. Further, CW-22 the

manager of Bhavani Bar also discloses that Bhimanagouda

and accused had come to Bhavani Bar and he had talked to

Bhimanagouda and they left at 11.00 p.m. in the lorry and

next day morning, he got knowledge regarding the death of

Bhimanagouda. Hence, on the basis of this information,

police apprehended the accused Nos.1 and 3, interrogated

them by recording their voluntary statements and found that

the accused have caused the death of Bhimanagouda and in

order to destroy the evidence, they had ran over the lorry on

the body of Bhimanagouda as he used to tease the sister of

accused No.1, Vidya, CW-16 and quarreled with her. For this

reason, there was a criminal conspiracy and on the basis of

this information, the Investigating Officer recorded the

statements of other witnesses and secured the postmortem

report and other documents and later on submitted the

charge sheet under Section 302 and 201 read with Section 34

of IPC.

5. To prove the guilt of the accused, the prosecution

has examined 23 witnesses as PW-1 to PW-23 in both the

cases and got marked Exs.P-1 to P-16 in S.C.No.38/2012 and

Exs.P-1 to P-15(a) in S.C.No.23/2014. Further, in both the

cases, M.O.1 and 2 were marked and Exs.D-1 and D-2 were

also marked.

6. After conclusion of the evidence of the

prosecution, the statements of accused under Section 313 of

Code of Criminal Procedure, 1973 (hereinafter referred to as

'Cr.P.C.' for short) was recorded to enable the accused to

explain the incriminating materials appearing against them in

the case of the prosecution. The case of the accused is of

total denial and they did not choose to lead any defence

evidence, however, they got marked Exs.D-1 and D-2. After

having heard the arguments and perusing the records, the

learned Sessions Judge has come to the conclusion that the

prosecution has failed to bring home the guilt of the accused

beyond all reasonable doubt and as such, by exercising

powers under Section 235(1) of Cr.P.C., she has acquitted the

accused/respondents herein for the offences punishable under

Sections 302 and 201 read with Section 34 of IPC.

7. Being aggrieved by the judgments of acquittal,

the State has filed these two appeals.

8. We have heard the learned Additional State Public

Prosecutor and learned counsel appearing for respondents.

We have also meticulously perused the records of the trial

Court and given our careful consideration to the arguments

advanced by both the counsels.

9. Leaned Additional State Public Prosecutor argued

that the judgment of acquittal is contrary to law, facts of the

case and evidence on record. He would contend that the

complainant has supported the case of the prosecution and

father-in-law of the deceased has also supported the case of

the prosecution in respect of deceased being proceeding to

film along with one CW-13 Kashimsab and thereafter the

deceased proceeded along with accused near Bhavani Bar and

Restaurant. He would also contend that the evidence of CW-

22 also clearly establishes that the accused and deceased

were last seen together in Bhavani Bar and this material

evidence is ignored. He would also contend that statement

under Section 313 of Cr.P.C. of the accused is silent and the

prosecution is able to prove the chain of links. Though the

case is based on circumstantial evidence, chain of links are

established and motive regarding deceased teasing the sister

of the accused No.1 is also proved from the evidence. As

such, he would contend that there is sufficient material

evidence as against the accused and the trial Court has

erroneously acquitted the accused without properly

appreciating the evidence on record. Hence, he would

contend that the judgments of acquittal are perverse,

capricious and erroneous which has led to miscarriage of

justice and as such, sought for setting aside the impugned

judgments of acquittal by convicting the accused.

      10.     Per      contra,          learned         counsel        for

respondents/accused      would         support    the   judgments       of

acquittal.    He would also contend that all the grounds now

urged were argued before the trial Court and they were

properly answered by the trial Court in the judgment in total.

They would also contend that the postmortem report is also

not clear regarding the time of death so as to consider the

gap between the alleged last seen theory and as the entire

case is based on circumstantial evidence, high standard of

proof is required and motive is required to be established

without therebeing any scope for suspicion. He would also

contend that circumstances relied by the prosecution does not

implicate the accused in respect of involvement in commission

of the offence and as such, he has prayed for dismissal of

both the appeals by confirming the judgments of acquittal.

11. Having heard the arguments and after careful

consideration of rival contentions, the following point would

arise for our consideration:

"Whether the judgments of acquittal passed by the Principal Sessions Judge, Gadag in S.C.No.38/2012 and S.C.No.23/2014 are perverse, capricious, erroneous and suffers from any infirmity so as to call for any interference?"

12. Admittedly, the case is entirely based on

circumstantial evidence. The prosecution has completely

relying on the last seen theory as well as the alleged motive.

According to the prosecution, the accused No.1 and deceased

are related and deceased used to tease the sister of accused

No.1 and had quarreled with her. Hence, according to the

prosecution, with this vengeance, all the accused conspired to

eliminate the deceased and on the fateful day, when the

deceased met them in Mundaragi infront of Bhavani Bar and

Restaurant, while he was returning along with CW-13

Kashimsab after watching a cinema, the accused took him

under the guise of having food and made him to consume

liquor. It is also alleged by the prosecution that then the

accused took him in the lorry and by assaulting him with iron

rod and kicking him, caused his death and thereafter in order

to screen themselves from the consequences of law, they ran

over the lorry on the body of the deceased in order to show

that the death is an accidental death. Hence, the prosecution

is completely relying on the evidence of Kashimasab CW-13

and another witness i.e., CW-22, the Manager of Bhavani Bar,

who are said to have seen the deceased on 27.09.2011 at

9.00 p.m. in Bhavani Bar and Restaurant. On the basis of this

last seen theory, the Investigating Officer has submitted the

charge sheet. At the same time, it is also important to note

here that no material object was recovered at the instance of

the accused. Since the prosecution is relying on circumstantial

evidence, motive plays a vital role and the prosecution is

required to prove the motive without therebeing any

suspicion. Further, the prosecution is also required to prove

the chain of links between the events in order to point out the

finger as against the accused to show that it is the accused

and none other who have committed this offence. In the light

of these principles, we will have to assess the evidence of the

prosecution.

13. It is the undisputed fact that the complainant's

son Bhimanagouda died on the intervening night of

27.09.2011 and 28.09.2011. The evidence led by the

prosecution also reveals that the deceased was residing with

complainant's sister CW-10 Laxmavva at Byalawadagi village

and he used to visit Tippapur occasionally wherein his father

i.e., the complainant resides. The evidence also discloses that

one Hanumavva is the elder sister of Laxmavva and also the

complainant who resides in Kalkeri. She was married to one

Ningappa Desai which is an inter-caste marriage and accused

No.1 is the grandson of this Hanumavva. As such, it is

evident that accused No.1 is closely related to CW-10 as well

as complainant including the deceased. The other undisputed

fact is that accused No.1 and his mother Neelavva are

residing in Kalkeri.

14. PW-15 Laxman Gaji (PW-10 in S.C.No.23/2014)

and PW-17 Mallikarjun (PW-12 in S.C.No.23/2014) are two

material witnesses in the instant case. Similarly, PW-11 (PW-

6 in S.C.No.23/2014) Kashimsab is other material witness.

The entire case of the prosecution is based on the evidence of

these three material witnesses. Along with the evidence of

PW-13 Anandappa Mudalapur (PW-8 in S.C.No.23/2014).

PW-15 Laxman Gaji claimed that about two years back he and

one Hanumantappa were returning to Mudaragi on their bike

and at night 10.30 p.m., near Chikkahalla, a lorry was parked

and there, accused and deceased were quarreling with each

other. It is important to note here that this witness claims to

be the nearest relative of the deceased. Though he has seen

the deceased and accused quarreling with each other, he did

not stop there and went to petrol bunk and after filling petrol

in the petrol tank of the bike, they have returned and at that

time, they found a dead body on the said spot. His further

evidence discloses that they did not stop there and returned

to Singatalur and next day morning, he again along with

Hanumantappa went to Chigihalli as people of Byalawadagi

were proceeding towards Chigihalli wherein he and

Hanumantappa saw the dead body of his relative

Bhimanagouda. It is further interesting to note here that 8 to

10 days later, he got information that it was a murder. In the

cross-examination, he admits that from Bannikoppa to

Mundaragi, there is no need to travel from Kalkeri but this

witness claimed that in order to avoid risk, they were

traveling, which cannot be accepted. He further admitted that

when he found his relative Bhimanagouda was in verbal

dispute with the accused, he did not stop there and did not

enquire them. This is a strange attitude on the part of this

witness. His further evidence discloses that while returning

on the same root after having seen the dead body, he did not

feel to report it to police and he did not try to ascertain whose

dead body it was. This evidence of witness is completely

against the human conduct and as such it is not trustworthy.

15. PW-17 Mallikarjun is the Manager of Bhavani Bar

and Restaurant. According to the prosecution, this witness

had seen accused with Bhimanagouda in restaurant on the

said night. He claims that since Bhimanagouda used to visit

his bar regularly, he knew him and he further deposed that

three years back deceased and accused came to the bar at

about 9.30 p.m. or 10 o'clock and they consumed liquor upto

11 o'clock and left in a lorry and he has also identified the

lorry as M.O.1. At the outset, his cross-examination discloses

that he has not seen the lorry from front side and he also

admits that number of lorries are being parked near the Bar

and Restaurant. He did not disclose the registration number

of the lorry and as such on what basis he identified the lorry is

not at all forthcoming. Further, he admits that there is no

entry in the register in respect of he working as a Manager in

Bhavani Bar. He further admitted that a Manager keeps a

chart on his table in respect of supply of liquor and food to

each table. Interestingly, this witness has admitted that he

has not handed over the said chart to the Investigating

Officer. He has also admitted that 3 to 4 months after a

person visits their bar it becomes difficult to identify him. He

also admits that during night hours all the lorries look alike.

He is unable to say what was the bill of the food consumed by

the deceased and accused. He simply claims that on new

moon day in 2011, the accused and deceased came to his bar

but he did not specify the date. Since the entire case is based

on last seen theory, the time gap should be very minimum

between last seen theory and the death caused. But in the

instant case, the specific date is not at all forthcoming. He

has also not produced any material document to show that he

was working in Bhavani bar nor he has produced the chart in

respect of supply of liquor and food to the accused. Further,

he never asserted that he is conversant with the accused. His

evidence discloses that he knew that deceased is the brother

of PW-5 Somanagouda who was working as a supplier in the

Bar but he never claimed that he also knew accused all along

and in such event, considering his cross-examination, it is

hard for him to identify the customers who rarely visit his bar.

In that event, the Investigating Officer ought to have

conducted test of identification parade but that was not done

in the instant case. Hence, the evidence of PW-17 also does

not assist the prosecution in any way.

16. The other witness who had seen the accused and

deceased together is PW-11 Kashimsab Nadaf. According to

him, he accompanied the deceased to Mundaragi and while

returning at 9 o'clock, accused met Bhimanagouda on the way

and then he returned and Bhimanagouda proceeded along

with accused asking this witness to report the same in his

house. His evidence discloses that he has only identified the

accused Nos.1 and 3 but he did not identify the accused No.2.

Further, his evidence is that, on the next day, he heard the

death of the deceased in a road traffic accident. But

interestingly, he did not bother to report to family members

regarding he seeing the deceased in the company of the

accused on the earlier night. In the same way, PW-17 has

also not reported to complainant immediately in this regard.

This conduct discloses that he is only chance witness.

17. PW-13 (PW-8 in S.C.No.23/2014) is Anandappa

Mudlapur deposes that two years back in the night at 8.30 or

9.00 p.m., he was standing near Mundaragi bus stand and

near Bhavani Bar, he has seen the deceased going inside

Bhavani Bar in the company of the accused and others. He

claimed that 8 days later, he got information regarding the

death of Bhimanagouda but his evidence discloses that he did

not specify the specific date, on which date he claims that he

has seen them. Further, he admitted that accused are not

residents of his village and he do not know their names and

addresses. As such, it is evident that he is not acquainted

with these accused and in that event, his evidence regarding

he seeing the accused becomes doubtful unless there is any

specific reason for identifying them on the night of

27.09.2011. When the witness is not acquainted with the

accused, the Investigating Officer should have conducted test

of identification parade but that was not held. Hence, it is

evident that all the witnesses i.e., PW-11, PW-13, PW-15 and

PW-17 are chance witnesses and they did not report the

matter either to the complainant or to the Investigating

Officer immediately.

18. PW-1 and PW-2 are inquest and spot mahazar

witnesses to Exs.P-1 to P-4 who have examined as PW-17 and

PW-21 in split up case in S.C.No.23/2014. Their evidence

does not assist the prosecution in any way.

19. PW-3 Adavi Hanamappa Kattimani (PW-18 in

S.C.No.23/2014) and PW-4 Yallappa Hombalagatti (PW-19 in

S.C.No.23/2014) are seizure mahazar witnesses to lorry and

bloodstained mud collected from the lorry. Though these

witnesses have deposed regarding seizure of lorry and

bloodstained mud, it is hard to accept that bloodstains were

found in the lorry even after ten days which appears to be

unnatural. Even otherwise, their evidence does not establish

the link as claimed by the prosecution.

      20.   PW-5            Somanagouda             Patil      (PW-20       in

S.C.No.23/2014)        is     the   brother    of     the    deceased      and

admittedly he is also not an eyewitness.                  Further, he claims

that he was a supplier in Bhavani Bar and Restaurant as

claimed by PW-17. However, his evidence discloses that on

the alleged date of incident i.e., on 27.09.2011, he was not

there in the bar. Apart from that, according to the

prosecution, the motive alleged is that deceased was teasing

the sister of accused No.1, Vidya but the evidence given by

this witness is completely different as he alleges that the

accused caused murder of his brother in view of illicit

relationship with his sister which is a new version made out by

this witness. Further, he claims that he got knowledge about

death of his brother on 27.09.2011 when the incident itself

has occurred on intervening night of 27.09.2011 and

28.09.2011. Hence, his evidence does not assist the

prosecution in any way.

21. PW-6 Ninganagouda Patil is the complainant (PW-

1 in S.C.No.23/2014) and Ex.P-6 is his complaint. He has

deposed regarding he getting information on 28.09.2011

regarding death of his son in road traffic accident and lodging

the complaint etc. He further deposes that subsequently he

got information regarding his son being murdered but he did

not disclose as to how he got information. He claims that he

suspects on the accused as well as Ningappa Desai who is the

grandfather of accused No.1. He claims that he got

knowledge regarding accused causing death from his sister

Laxmavva but no motive is stated. He has also denied of

having given statement under Ex.D-1. Hence, his evidence

does not establish the guilt of the accused in any way so as to

create a link in the chain of circumstances.

22. PW-7 Durgappa Kadli (PW-2 in S.C.No.23/2014) is

a spot pancha and his their evidence has no much relevancy.

23. PW-8 Laxmavva Barker (PW-3 in S.C.No.23/2014)

is the sister of complainant and according to the prosecution,

deceased was residing with this witness. She claimed that at

8.30 p.m., all the three accused passed in front of her house

and accused No.1 normally used to talk to her but on that

day, he did not talk and as such, she felt bad and they

proceeded towards bus stand. This is not the case put forward

by the prosecution and according to the prosecution, at 9

o'clock accused met the deceased in Mudaragi but this witness

says that at 8.30 p.m. accused were found in their village and

passed in front of their house. In that event, the presence of

accused near Bhavani Bar in Mundaragi becomes doubtful.

Apart from that, she claimed that two days later she received

information of murder by assaulting deceased by iron rod.

What is the basis for this information is not at all forthcoming

and the witness has exaggerated the things and as such, her

evidence does not assist the prosecution in any way.

      24.   PW-9      Basavaraj      Mudalapur       (PW-4      in

S.C.No.23/2014)    and   PW-10      Devappa   Hugar   (PW-5     in

S.C.No.23/2014)    are   two   hearsay   witnesses    and    their

evidence also does not assist the prosecution in any way.

However, PW-9 Basavaraj Mudalapur has deposed that when

he has seen the dead body marks of hitting by rod on the

head was noticed but this fact itself is not stated by the doctor

who has conducted autopsy and hence, his evidence does not

assist the prosecution in any way.

25. PW-12 Ningappa Barker (PW-7 in

S.C.No.23/2014) is the husband of PW-8 and partly turned

hostile. In his evidence he deposed that on that day, accused

and deceased together went to the theatre to watch the

movie which is not a case made out by the prosecution and

the evidence given by PW-8 is completely contrary and his

evidence is inconsistent to evidence of PW-11. Hence, his

evidence does not assist the prosecution in any way. The

prosecution is relying on motive being in respect of deceased

teasing Vidya who is the sister of accused No.1 but this

witness PW-12 has turned hostile and denied the case of the

prosecution.

26. The evidence given by other witness regarding

motive is completely different and PW-5 has deposed

regarding illicit relationship but according to the prosecution,

it was only teasing and hence, prosecution has failed to

establish the very motive as alleged.

27. PW-16 Shafiulla Abdulrazaksab (PW-11 in

S.C.No.23/2014) is the owner of the lorry but his evidence

has no relevancy. He deposes regarding seizure of lorry and

he admits that accused No.2 was working as a driver.

28. PW-18 Iranna Ramannavar (PW-13 in

S.C.No.23/2014) who was working as Motor Vehicle Inspector

while PW-19 Ravindranath Chavati (PW-14 in

S.C.No.23/2014) who was working as Senior Engineer, PWD,

Gadag and their evidence does not assist the prosecution as

they have deposed regarding examining of the vehicle and

drawing of sketch.

29. PW-20 Prasanna Rangrej (PW-15 in

S.C.No.23/2014) who was working as Constable, Laxmeshwar

Police Station, deposed regarding carrying FIR and PW-21

Ramesh Pawar who was working as Head Constable, Gadag

Police Station (PW-16 in S.C.No.23/2014) has deposed

regarding seizure of lorry. Their evidence also does not assist

the prosecution in any way.

30. PW-22 Leelavathi is the Medical Officer who

conducted autopsy. Her evidence discloses that the body

from chest to trunk was completely crushed. However, except

small laceration on the head, no other injury was noticed on

the head. But evidence of PW-9 discloses that there was

assault by rod on head. Even the prosecution has not made

any attempt to recover rod alleged to have been used for

commission of the offence. Further, her evidence discloses

that she has not given any concrete opinion and without

collecting viscera, she has formed her own opinion which is

not acceptable. Even she was unable to say the time of death

so as to consider the gap between the last seen theory and

case of death, since the entire case is based on circumstantial

evidence of last seen theory and there is no recovery at the

instance of accused. Hence, the evidence of Medical Officer

also does not assist the prosecution in proving the guilt of the

accused.

31. PW-23 Shivanagouda Patil, is the Investigating

Officer and he has deposed regarding investigation done by

him. His evidence discloses that on 07.10.2011 he recorded

the further statement of complainant regarding cause of death

in respect of murdering the deceased. However, his cross-

examination reveals how much careless he was in conducting

the investigation as he did not know relationship between

accused No.1 and deceased whereas all the witnesses have

specifically deposed regarding relationship as the deceased

was staying with his maternal aunt PW-8 Laxmavva and

accused No.1 is grandson of Hanumavva, who is the sister of

PW-8 and they are closely related to each other. Even then

the witness was unable to understand the relationship. This

discloses the way of investigation conducted by the

Investigating Officer.

32. The circumstances relied by the prosecution does

not implicate the accused in proving the guilt of the accused.

The evidence on record is not sufficient and satisfactory so as

to bring home the guilt of the accused. Except the last seen

theory, there is no other link of chain to establish the guilt of

the accused and that last seen theory is not the conclusive

proof and it is surrounded by suspicious circumstances in view

of the absence of establishing the motive by the prosecution.

33. It is also important to note here that the trial

Court considering the weak nature of evidence, has extended

the benefit of doubt to the accused and the view taken by the

trial Court is also possible. The Hon'ble Apex Court has held

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 that if two

views are possible, the view favourable to the accused shall

prevail. Further, the Hon'ble Apex Court in the case of

Mahaveer Singh Vs. State of Madya Pradesh reported

in AIR 2016 SC 5231 observed that the High Court shall

not thrust its view on the view that was taken by the trial

Court. Further, it is also observed that when the judgment of

acquittal is passed, the innocence of accused becomes more

strengthened and some high standard of proof is required but

in the instant case, the same is missing. Under these

circumstances, the prosecution has miserably failed to bring

home the guilt of the accused beyond all reasonable doubt.

The evidence is not sufficient to substantiate the contention of

the prosecution and the learned Sessions Judge has

considered all these aspects in detail by analyzing the oral

and documentary evidence on record in detail and has arrived

at a just decision. Under these circumstances, the judgment

of trial Court does not call for any interference. Considering all

these facts and circumstances, appeals are devoid of merits

and need to be rejected. Accordingly, we are constrained to

answer the point under consideration in the negative and

proceed to pass the following:

ORDER

Both appeals in Crl.A.No.100282/2017 and

Crl.A.No.100270/2017 are dismissed by confirming the

judgments of acquittal dated 06.05.2017 passed by the

learned Principal District and Sessions Judge, Gadag in

S.C.No.38/2012 and S.C.No.23/2014.

Sd/-

JUDGE

Sd/-

JUDGE Naa