Vinod Majukar vs The State Of Karnataka
2022 Latest Caselaw 5633 Kant

                            1




             IN THE HIGH COURT OF KARNATAKA
                     DHARWAD BENCH

          DATED THIS THE 29TH 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.100342/2016
BETWEEN:

VINOD MAJUKAR S/O VITHAL MAJUKAR,
AGE: 25 YEARS, OCC: TURNER (TECHNICAL),
R/O 124, LAXMI GALLI, MAJAGAON, BELAGAVI.
                                              .. APPELLANT
(BY SRI.GIRISH A.YADWAD, AMICUS CURIAE)

AND:

THE STATE OF KARNATAKA,
RAILWAY POLICE, BELAGAVI,
REP.BY STATE PUBLIC PROSECUTOR,
DHARWAD.
                                            .. RESPONDENT
(BY SRI.V.M.BANAKAR, ADDL.SPP)

      THIS APPEAL IS FILED UNDER SECTION 374(2) OF CR.P.C.
PRAYING THAT JUDGMENT OF CONVICTION AND ORDER OF
SENTENCE PASSED BY THE II ADDL. SESSIONS JUDGE, BELAGAVI
IN   S.C.NO.147/2014   DATED   29.08.2016  AND   THEREBY
CONVICTING THE APPELALNT TO UNDERGO LIFE IMPRISONMENT
AND TO PAY FINE OF RS.50,000/- IN DEFAULT OF PAYMENT OF
FINE SHALL UNDERGO IMPRISONMENT FOR A PERIOD OF ONE
YEAR FOR THE OFFNCE U/SEC.302 OF IPC, AND FURTHER
CONVICTION OF THE APPELLANT AND SENTENCING HIM TO
UNDERGO RIGOROUS IMPRISONMENT FOR A PERIOD OF 5 YEARS
AND TO PAY FINE OF RS.5,000/- AND IN DEFAULT TO UNDERGO
IMPRISONMENT OF 3 MONTHS FOR THE OFFENCE U/SE.201 OF IPC
BE SET ASIDE AND THE APPELLANT BE ACQUITTED.
                             2




     THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR
JUDGMENT ON 16.03.2022 COMING ON FOR PRONOUNCEMENT OF
JUDGMENT   THIS   DAY,   RAJENDRA     BADAMIKAR,   J.
DELIVERED THE FOLLOWING:

                       JUDGMENT

The appellant/accused has filed this appeal under

Section 374(2) of Cr.P.C. challenging the judgment of

conviction and order of sentence dated 29.08.2016

passed by the II Additional District and Sessions Judge,

Belagavi in S.C.No.147/2014 for the offences punishable

under Sections 302 and 201 r/w Section 34 of IPC.

2. For the sake of convenience, parties shall be

referred with the original ranks occupied by them before

the trial court.

3. The brief factual matrix leading to the case

are as under:

That the complainant has lodged a complaint on

18.10.2013 alleging that deceased Devendra was his

brother. Complainant was working as supervisor in Big

Bazar, Belagavi and his elder brother deceased Devendra

was operating lathe machine. It is further alleged that on

17.10.2013, deceased Devendra dropped the

complainant and informed him that he would come in the

evening to pick up him near Sai Mandir. The complainant

waited there in evening, but Devendra did not come

there and as such, he returned to the house and learnt

that Devendra did not return to the house also. Then

family members searched Devendra in and around their

house and also enquired with the friends of Devendra,

but could not get any information. On the next day

morning also they searched and at 7.00 a.m., they

received information that dead body of the Devendra was

lying on the railway track near Yallur road. Immediately,

they went to the spot and found that dead body of

Devendra was cut into pieces on the railway track.

Further, the bloodstains were found nearby paddy grown

land and they also found a rod M.O.1 at the spot. Hence,

they suspected that somebody has caused his death and

then thrown the dead body on the railway track in order

to screen themselves and as such, a complaint came to

be lodged against unknown persons.

4. Later on, the investigating officer undertook

the investigation and during the course of investigation,

accused No.1 was apprehended and on interrogation, he

confessed and at his instance bloodstained clothes and

cash of Rs.2,00,000/- was recovered from his house

which were belonging to the deceased Devendra. Then

P.W.3-Maharudra B.Badiger who was maternal uncle of

the deceased has also given statement before the police

that, on the said evening/night, he was traveling with the

deceased along with cash and the accused took the

deceased with him and thereafter the deceased was

found missing. The said statement was again supported

by P.W.2 who has seen P.W.3 and accused together and

hence, the investigating officer found that there is

sufficient material as against the accused and accused

having caused the death of the deceased by stabbing him

and assaulting him by rod, in order to have unlawful

gain pertaining to Rs.2,00,000/- and then thrown the

dead body on the railway track to screen themselves

from the legal consequences. As such, charge sheet

came to be submitted.

5. The appellant/accused was arrested on

18.10.2013 and it is alleged that absconding accused

Sardarji has also actively participated in commission of

the offence. Since he was found absconding, the case

against him was spilt up and case against the

appellant/accused alone was prosecuted.

6. After submission of the charge sheet, as there

are sufficient grounds to proceed against the accused,

the cognizance was taken. The accused was produced

before the learned Magistrate and was remanded to

judicial custody. The learned Magistrate has also

furnished copies of prosecution papers to the defence

counsel and later on, he has committed the matter to the

sessions court, as the offences alleged are exclusively

triable by the court of sessions. Later on, the matter was

placed before the II Additional District and Sessions

Judge, Belagavi.

7. The learned sessions Judge after hearing both

the parties has framed charge under Sections 302 and

201 r/w Section 34 of IPC and the same was read over

and explained to the accused. The accused pleaded not

guilty and claimed to be tried.

8. To prove the guilt of the accused, the

prosecution has examined in all 25 witnesses and has

also placed reliance on 31 documents and 12 material

objects.

9. After conclusion of the evidence of the

prosecution, statement of the accused under Section 313

of Cr.P.C. was recorded to enable the accused to explain

the incriminating evidence appearing against him in the

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

denial. He did not led any oral or documentary evidence

in support of his defence.

10. After having heard the arguments advanced

by the public prosecutor and the defence counsel,

learned sessions Judge found that prosecution has

proved the guilt of the accused for the offence punishable

under Sections 302 and 201 r/w Section 34 of IPC

beyond all reasonable doubt and thereby convicted the

accused to undergo rigorous imprisonment for life and

fine of Rs.50,000/-, in default of payment of fine, he shall

undergo imprisonment for a period of one year for the

offence punishable under Section 302 of IPC and also

imposed rigorous imprisonment for a period of five years

with fine of Rs.10,000/-, in default of payment of fine,

he shall further undergo imprisonment for a period of

three years for the offence punishable under Section 201

of IPC.

11. Being aggrieved by this judgment of

conviction and order of sentence, the appellant/accused

has preferred this appeal.

12. Initially this appeal was prosecuted by counsel

engaged by the accused. But as the counsel has expired,

the learned Amicus Curiae is being appointed, as accused

was in judicial custody and was unable to engage any

independent advocate by his choice.

13. We have heard the learned Amicus Curiae for

the appellant/accused and learned Additional SPP for the

respondent/state and perused the records.

14. Learned Amicus Curiae would contend that

there are lot of contradictions in the evidence of P.Ws.1

and 3 and P.W.3 is posed to be a star witness, but his

conduct creates suspicion regarding his involvement. He

would also contend that evidence of P.Ws.6 and 16 do

not assist the prosecution in any way and further, the

recovery witnesses have turned hostile and their

evidence disclose that clothes were planted by the police

and recovery is not established. He would also

contend that no motive was established and the fact

that deceased was carrying Rs.2,00,000/- was only

within the knowledge of P.W.3 and it was not within the

knowledge of the accused. Hence, he would contend

that the motive put forward that the accused

caused the death of the deceased for the purpose of

Rs.2,00,000/- cannot be accepted. He would further

contend that prosecution is also unable to explain the

injuries found on the body of the deceased and sharp

edged weapon alleged to have been used for commission

of the offence is not recovered and the iron rod M.O.1,

admittedly cannot cause stab or incised wound as

admitted by the Medical Officer. He would also contend

that there is also delay in recording the statement of the

witnesses in such serious offence of homicidal death and

no explanation was given by the investigating officer and

hence, it has prejudiced the accused. He would also

contend that Ex.P1 does not disclose the name of any of

the assailants and even suspicion was not disclosed

against accused, but the evidence of P.Ws.1 and 3

disclose that they have directly implicated the accused

from the first day and this story of the prosecution

creates suspicion regarding genuineness of the case of

the prosecution. Hence, he would contend that

prosecution is required to prove the case beyond all

reasonable doubt, which was not done and as such, he

would contend that the trial court has erred in convicting

the accused. Hence, he prayed for allowing the appeal by

setting aside the impugned judgment of conviction by

acquitting the accused.

15. Per contra, learned Additional SPP would

support the judgment of conviction contending that

recovery of Rs.2,00,000/- was from the custody of the

accused and bloodstained clothes of accused and

deceased disclose the same blood group. He would

further contend that there is no explanation offered by

the accused in the statement under Section 313 of

Cr.P.C. regarding recovery of incriminating materials

from his custody. The evidence of P.W.3 discloses that

he has seen the deceased traveling with the accused on

that night and thereafter, deceased was not at all seen

and P.W.3 was introduced to P.W.2 by the accused when

the deceased went along with the accused and this

corroborates the case of the prosecution and the

evidence of P.W.3 clearly establishes the motive. He

would further contend that the motorcycle of the

deceased was found in the custody of the accused and

the accused has failed to explain this aspect. Hence, he

would contend that there is sufficient material on record

and minor variations does not go to the root of the case.

He would further submit that trial court has considered

all these aspects in detail and has rightly convicted the

accused by imposing reasonable sentence. As such, he

would seek for dismissal of the appeal by confirming the

judgment of conviction and order of sentence passed by

the trial court.

16. Having heard the arguments and perusing the

records, now the following points would arise for our

consideration:

      i)        Whether        the        prosecution    has    proved

                beyond all reasonable doubt that on the

                intervening      night        on     17.10.2013      and

18.10.2013, the accused have caused the

death of the deceased Devendra and in

order to screen themselves thrown the

dead body on the railway track and take

away cash of Rs.2,00,000/- carried by the

deceased?

ii) Whether the judgment of conviction and

order of sentence passed by the trial court

suffers from any perversity and illegality so

as to call for any interference by this court?

17. It is to be noted here that the alleged incident

has taken place in the intervening night of 17.10.2013

and 18.10.2013. It is also not under serious dispute that

death of the deceased Devendra is a homicidal one. It is

further an admitted fact that, dead body was found on

the railway track and due to running of the train, dead

body was cut into pieces. However, at the same time, it

is also evident that there are other number of injuries

including incised and stabbing injuries on the body of the

deceased.

18. The complainant is the brother of the

deceased and P.W.3 is the maternal uncle of the

deceased. In the instant case, admittedly there are no

eye-witnesses and the prosecution is mainly relying on

the evidence of P.Ws.2 and 3 and the recovery

witnesses. The case of the prosecution is based on

circumstantial evidence. The motive alleged by the

prosecution is in respect of robbery of cash of

Rs.2,00,000/- which was being carried by the deceased

which he intended to give to P.W.3, as he was in need of

money and deceased was said to have taken loan in

order to financially assist P.W.3.

19. The complainant has lodged a complaint under

Ex.P1 and he traced the dead body on 18.10.2013 at

7.00 a.m. on the railway track. He is examined as P.W.1

and he has reiterated the contents of Ex.P1 in his

examination-in-chief. He has also deposed regarding

drawing mahazar and seizure of M.Os.1 to 6 from the

spot and drawing of inquest. He has also identified the

clothes of his brother as per M.Os.7 to 9. He further

deposed that he has purchased a two wheeler 'Centuro'

of Mahindra company and his brother took the said

vehicle on 17.10.2013 and the said vehicle was found in

front of the house of accused No.1.

20. P.W.1 was cross-examined and in his cross-

examination certain factual aspects have been elicited

which were not part of his examination-in-chief or

complaint. It is elicited in the cross-examination that

during the search P.W.3 has intimated him that on that

night he went along with the deceased and later on, the

deceased went along with accused Nos.1 and 2 and he

was asked to wait by accused No.1, but they did not

return. His evidence further discloses that they went to

the house of the accused and enquired, but could not get

proper answer etc. It is elicited that P.W.3 was also in

custody for interrogation by the police for 2-3 days. He

has specifically deposed that deceased borrowed

Rs.2,00,000/- in order to give to P.W.3 and the said

amount was recovered and he received it and returned to

one Mohan from whom the amount was taken as loan.

21. Much arguments have been advanced

regarding discrepancies in examination-in-chief and in

cross-examination, but it is to be noted here that new

facts which were elicited in the cross-examination and

they cannot be termed as improvements. These facts

were not deposed by the complainant, but they were

elicited in detail by way of cross-examination. However,

it is undisputed fact that he has simply set the law into

motion.

22. P.W.3 is a material witness in this case.

According to the prosecution, he has last seen the

accused in the company of the deceased. According to

him, accused and deceased went on the motorcycle along

with cash of Rs.2,00,000/-, which was in the custody of

the deceased when he last seen. Further, the evidence

discloses that, thereafter the accused alone came on the

motorcycle without proper explanation and later on, he

introduced him to P.W.2 and along with P.W.2 they

traveled to some other places wherein he was left and

accused went away asking him to wait assuring that

deceased would come and join him. P.W.3 in his evidence

has stated that deceased Devendra was his nephew and

he had requested the deceased to provide him financial

assistance of Rs.2,00,000/- by way of loan and

accordingly, deceased told him that he had collected the

amount. He further deposed that on 17.10.2013, when

he had been to the house of the deceased Devendra, he

reported that amount is with him and he assured that he

would drop him at his place at Sulebhavi and the amount

of Rs.2,00,000/- was kept in a bag and it is attached to

the handle bar of the motorcycle. His evidence further

discloses that, when they were proceeding towards

Sulebhavi on the way, accused No.1 was found near the

temple of Lord Brahma and he spoke to the deceased

Devendra. Thereafter, Devendra asked P.W.3 to get

down from the motorcycle so that he will attend the work

of accused No.1 and return very soon. When P.W.3 got

down and requested the deceased to hand over the bag

containing money, but Devendra assured him that he will

take it and return immediately. His further evidence

disclose that he was waiting near the temple up to 8.30

p.m. and at that time, accused No.1 along with Sardarji

i.e., absconding accused No.2 came on the motorcycle of

the deceased and when he enquired about the deceased,

accused No.1 told that he will come very soon. It is also

elicited in the evidence of P.W.3 that, at the same time,

P.W.2 came there and he was introduced to him by the

accused and accused asked P.W.2 to bring P.W.3 near

Kakatikar General Store and when they followed the

motorcycle of the deceased which was driven by the

accused, it is noticed that accused were not present near

Kakatikar General Store. In the meanwhile, P.W.2

received a call from the accused and asked them to come

to Nandini Dairy situated near Mahantesh Nagar. Both of

them went towards Nandini Dairy wherein both the

accused were present. Accused No.1 asked P.W.2 to go

to home and then they took P.W.3 on the motorcycle

towards Rukmini Nagar grave yard and asked him to wait

for few minutes assuring that Devendra will come there

and both of them went on the motorcycle, but deceased

did not return. P.W.3 further stated that he had waited

for long time and as Devendra did not return, he went to

Majaganvi and informed the facts to P.W.1, his parents

as well as his wife, who is sister of deceased Devendra.

He further deposed regarding searching of Devendra and

went to the house of the accused etc. and later on

getting information regarding dead body found near

railway track.

23. P.W.3 was cross-examined at length and the

case of the prosecution came to be denied. However, his

evidence discloses that spot mahazar was drawn in his

presence and he had denied that he was interrogated by

the police for two days in his cross-examination. There

are certain variations regarding date of recording

statement of this witness, but as rightly observed by the

trial court they are not material contradictions, as the

evidence was recorded after 2½ years and remembering

specific date of recording statement is not possible. No

doubt there are certain minor contradictions in his

statement, but it does not go to the root and no other

contradictions or improvements were elicited in the

cross-examination so as to put it to P.W.24-investigating

officer and that was also not forthcoming.

24. Further, the cross-examination of P.W.3

discloses that nothing was elicited regarding animosity

between accused and this witness or any grudge between

the deceased and the accused. There is no reason for

P.W.3 to falsely implicate the accused. Much arguments

have been advanced regarding motive and accused not

knowing the fact of deceased carrying the amount. But

the evidence itself discloses that in the presence of the

accused itself, P.W.3 asked the deceased to handover the

bag containing the amount, but the deceased took it

along within him. Hence, the said argument advanced by

the learned Amicus Curiae has no relevance.

25. Further, the other material witness P.W.2 who

has deposed regarding he being summoned by the

accused and the accused introducing P.W.3 to him and

he taking P.W.3 to Kakatikar General Store and from

there to Nandini Dairy in Mahantesh Nagar. Though this

witness was cross-examined, nothing was elicited so as

to impeach his evidence. His evidence completely

supports the evidence of P.W.3 regarding P.W.3 in

contact with the accused and the evidence of P.W.3 is

consolidated by the evidence of P.W.2.

26. Much arguments have been advanced

regarding delay in recording the statement of P.W.3 by

the police, but that itself cannot be a ground to give a

clean chit to the accused for the lapses on the part of

investigating agency.

27. P.W.4 is the mother of the deceased and

hearsay witness. P.Ws.5 and 6 are the parents of

accused No.1 and they have turned hostile. The evidence

of P.Ws.7 to 9 has no relevancy.

28. P.Ws.14 and 15 are the spot mahazar

witnesses and they deposed regarding drawing spot

mahazar in their presence and taking photographs. They

have partially turned hostile. However, the fact that dead

body was found on the railway track is not under serious

dispute. Further, P.W.15 has completely supported the

case of the prosecution.

29. P.W.16 is a witness for seizure of M.Os.7 to 9

i.e., clothes of the deceased in the police station under

Ex.P20.

30. P.Ws.17 and 18 are the two material

witnesses who are recovery panchas for Ex.P21. The

evidence of P.Ws.17 and 18 disclose that in 2013, railway

police taken them to the police station and accused No.1

was in the police station and along with the accused and

police, they went to the police jeep to the house of the

accused and seized all clothes and mobile phone from the

custody of the accused. However, P.W.17 has turned

hostile for seizure of Rs.2,00,000/-, but his evidence

disclose that he did accompanied the police. In the cross-

examination, he has given goby to the case of the

prosecution and it is suggested that while proceeding to

the house of the accused, they have taken T-shirt and

jarkin along with them and this suggestion establish that

they admits visit to the house of the accused by the

witness and the police.

31. P.W.18 has also deposed regarding drawing

Ex.P21 and he has also not supported the case of the

prosecution to some extent. However, the cross-

examination reveals that he accompanied the police to

the house of the accused. No doubt both these witnesses

have not fully supported the case of the prosecution, but

P.W.24-investigating officer who seized the property has

deposed regarding recovery of bloodstained clothes of

the deceased, amount along with mobile phone etc.

along with the motorcycle. There is no reason for

discarding the evidence of P.W.24 and no evidence is

placed to show that he has interest in the complainant

party or had any animosity against the accused. Merely

because P.Ws.17 and 18 have not fully supported the

case of the prosecution, the evidence of P.W.24 cannot

be ignored.

32. Apart from that, it is to be noted here that

amount of Rs.2,00,000/- was recovered from the house

of the accused under Ex.P21 and the same was returned

to the complainant and admittedly, accused has not

made any claim. There is no reason or motive is

forthcoming to falsely implicate the accused and in the

absence of any such motive, question of police or

complainant investing Rs.2,00,000/- to show recovery of

Rs.2,00,000/- as claimed by the amicus curiae appears

to be hypothetical. No explanation is coming from the

accused as to why the complainant or police invested

Rs.2,00,000/- for falsely implicating him. Further, in the

statement under Section 313 Cr.P.C., he did not give any

explanation in this regard. No doubt, there are certain

inconsistencies and discrepancies, but on perusal of the

cross-examination of P.W.24-investigating officer, it is

evident that no material aspects have been put to P.W.24

so as to prove contradictions, improvements and D-series

were not got marked.

33. P.W.23 is the medical officer who has

conducted postmortem and deposed regarding

conducting postmortem and further, specifically stated

that death is within 18-36 hours prior to conducting

postmortem and it tallies with the case of the

prosecution. Nothing was elicited in her cross-

examination and her cross-examination establishes that

it is a homicidal death. Further, it is evident from Ex.P27

and evidence of P.W.23 that there were as many as 27

injuries on the dead body of the deceased.

34. Much arguments have been advanced

regarding non-seizure of sharp edged weapon alleged to

have been used for commission of the offence from the

custody of the accused. But admittedly accused No.2 is

absconding and as such, merely non-seizure of sharp

edged weapon does not affect the merits of the case of

the prosecution. Apart from that, M.O.1 is produced and

the evidence of doctor discloses that injuries at Sl.Nos.15

and 17 can be caused by M.O.1. Apart from that,

bloodstained clothes of the accused and deceased were

shown human 'A' blood group. It is not the case of the

accused that his blood group is 'A'. No attempt has been

made by the accused to explain any of these aspects.

35. The contradictions highlighted by the defence

counsel cannot be treated as contradictions, as certain

aspects were elicited in the cross-examination in the

form of explanation. Further, the contradictions and

improvements were not got marked and similarly they

were not placed before the investigating agency. No

doubt, there are certain variations in the evidence, but

that itself does not discard the case of the prosecution

and evidence of P.W.2 and especially P.W.3 clearly

establish that he has seen the accused proceeding along

with the deceased and later they alone came on the

motorcycle of the deceased and introduced P.W.3 to

P.W.2, which is supported by P.W.2. P.W.2 is admittedly

friend of the accused and he has no reason to give false

evidence against the accused. Though there are certain

inconsistencies in the evidence pertaining to bloodstains

etc. on the motorcycle, that itself does not discard the

entire case of the prosecution and the witnesses may

have exaggerated the facts, but that does not mean that

entire case of the prosecution is shrouded with suspicion.

The accused has not explained as to when he departed

from the company of the deceased and his statement

under Section 313 of Cr.P.C. is also silent in this regard.

36. The trial court has considered these aspects

and has come to the conclusion that accused has

committed the offence under following circumstances.

           i)    The    accused    had    the    knowledge

                 regarding        deceased       possessing

                 Rs.2,00,000/-.





           ii)    Accused No.1 was last seen in the

                  company of the deceased and P.W.3 is

                  an eye-witness in this regard.


           iii)   Seizure       of      Rs.2,00,000/-   with

bloodstained clothes at the instance of

the accused from his house along with

motorcycle.

iv) Bloodstains found on the clothes of the

deceased and accused No.1 were of the

same group.

Hence, the trial court has drawn an inference that

chain of events is completed and it is not broken.

37. Learned Amicus Curiae has placed reliance on

the decision of the Hon'ble Apex Court in the case of

Nizam and Another Vs. State of Rajasthan in

Crl.A.No.413/2007 dated 04.09.2015, wherein the

Hon'ble Apex Court had an occasion to deal with last

seen theory. In the said decision, it is observed that,

where time gap is long it would be unsafe to rely same

and to look for corroboration from other circumstances

and evidence adduced by the prosecution. In the said

case, deceased was last seen alive with appellants on

23.01.2001 and the body of the deceased was recovered

on 26.01.2001. Hence, there was a gap of almost 3-4

days and hence, it is held that time gap should be

minimum. In the instant case, the deceased was last

seen when he was proceeding along with the accused on

the night of 17.10.2013 and thereafter he was not seen

and on the next day morning his dead body was found on

the railway track. The time gap was very minimum in the

instant case and last seen theory of P.W.3 is again

supported by recovery of cash and other incriminating

articles. Hence, the principles enunciated in the above

cited decision cannot be made applicable to the facts and

circumstances of the present case in hand.

38. Learned Amicus Curiae has further placed

reliance on the decision of the Hon'ble Apex Court in the

case of Rambraksh @ Jain Vs. State of Chhattisgarh

in Crl.A.No.462/2016 (arising out of

SLP(Crl.)No.1962 of 2015), wherein the Hon'ble Apex

Court has again an occasion to consider last seen theory

and further observed that, last seen theory comes into

play where the time gap between the point of time when

the accused and the deceased were last alive and when

the deceased is found dead, is so small that possibility of

any person other than the accused being the perpetrator

of the crime becomes impossible. In fact, the said

principles are more helpful to the prosecution rather than

the defence, as in the instant case, time gap is so small

as the deceased was last seen in the company of the

accused lastly and on the next day morning his dead

body was found and again it is supported by recovery of

amount and bloodstained clothes etc. from the house of

the accused. Hence, the said decision would not assist

the Amicus Curiae in any way.

39. Learned Amicus Curiae further placed reliance

on the decision of the Hon'ble Apex Court in the case of

Anwar Ali and Another Vs. The State of Himachal

Pradesh in Crl.A.No.1121/2016 dated 25.09.2020 and

argued that, when the motive is not established, it is not

safe to rely the theory of last seen and accused cannot

be convicted on the basis of circumstantial evidence.

However, in the said decision itself, the Hon'ble Apex

Court has clearly observed that absence of proving the

motive cannot be a ground to reject the prosecution case

and absence of motive in a case depending on

circumstantial evidence is a factor that weighs in favour

of the accused. But admittedly in the instant case, by the

evidence and recovery of Rs.2,00,000/-, the prosecution

has proved the motive. Further, the last seen theory is

not dislodged by the accused in any way. Under these

circumstances, the said principles relied on by the

Amicus Curiae will not come to the aid of the accused in

any way.

40. On similar point, learned Amicus Curiae has

further placed reliance on the decision of the Hon'ble

Apex Court in the case of Nandu Singh Vs State of

Madhya Pradesh (Now Chhattisgarh) in

Crl.A.No.285/2022 (SLP (Crl.)No.7998 of 2021

dated 25.02.2022, wherein the Hon'ble Apex Court held

that in a case based on substantial evidence, motive

assumes great significance. It is further observed that, it

is not as if motive alone becomes the crucial link in the

case to be established by the prosecution and in its

absence the case of prosecution must be discarded.

However, Hon'ble Apex Court has held that complete

absence of motive assumes a different complexion and

such absence definitely weighs in favour of the accused.

But in the instant case, motive is established along with

last seen theory as well as recovery. Hence, principles

enunciated in the above cited decision will not assist the

amicus curiae in any way.

41. Learned Additional SPP has placed reliance on

a decision of the Hon'ble Apex Court in the case of Shri

Bhagwan Vs State of Rajasthan reported in 2001

SCC (Cri) 1095 and argued that, when the accused

went along with the deceased what has transpired after

deceased accompanied him is required to be explained by

the accused and he has failed to do so. But on the

contrary, recovery of incriminating articles on the basis

of the statement of the accused establishes the guilt of

the accused. In the instant case also the evidence of

P.W.3 clearly establishes that deceased went along with

the accused with cash and later he did not return and on

the next day morning his dead body was found and

recovery of bloodstained clothes of the accused and

amount was recovered at his instance from his house,

which is not explained by the accused. As such, the chain

of circumstance have been established.

42. Hence, the evidence on record clearly

discloses that except accused there is possibility of

involvement of any other person in committing the

offence is ruled out and accused is not prepared to give

any explanation in this regard.

43. The learned sessions Judge has considered all

these aspects in proper perspective and has analyzed

oral and documentary evidence in detail. He has

discussed all the points now raised by the Amicus Curiae

in detail and properly answered them. Hence, the

judgment of conviction and order of sentence passed by

the trial court cannot be said to be perverse, illegal and

capricious so as to call for any interference by this court.

The chain of circumstances does establish that accused

committed the offence of murder of the deceased

Devendra and tried to destroy the evidence and thereby

committed offence under Section 302, 201 r/w Section

34 of IPC. Under these circumstances, we constrained to

answer point No.1 in the affirmative and point No.2 in

the negative and accordingly, the appeal being devoid of

any merits needs to be dismissed. Accordingly, we

proceed to pass the following:

ORDER

The criminal appeal is dismissed by confirming the

judgment of conviction and order of sentence dated

29.08.2016 passed by the II Additional District and

Sessions Judge, Belagavi in S.C.No.147/2014.

We place our appreciation for the service rendered

by the learned amicus curiae in disposal of the matter by

assisting the court.

The fees of learned amicus curiae is fixed at

Rs.5,000/-.

Sd/-

JUDGE

Sd/-

JUDGE MBS/-