Karnataka High Court
Basavaral Mahadevappa Ramaji vs The State Of Karnataka on 4 November, 2022
Bench: Suraj Govindaraj, G Basavaraja
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CRL.A No. 100121 of 2018
C/W CRL.A No. 100131 of 2018,
CRL.A No. 100207 of 2018,
CRL.A No. 100216 of 2018
IN THE HIGH COURT OF KARNATAKA, DHARWAD
BENCH
DATED THIS THE 4TH DAY OF NOVEMBER, 2022
PRESENT
THE HON'BLE MR JUSTICE SURAJ GOVINDARAJ
AND
THE HON'BLE MR JUSTICE G BASAVARAJA
CRIMINAL APPEAL NO. 100121 OF 2018 (C-)
C/W
CRIMINAL APPEAL NO. 100131 OF 2018
CRIMINAL APPEAL NO. 100207 OF 2018
CRIMINAL APPEAL NO. 100216 OF 2018
IN CRL.A. NO.100121/2018
BETWEEN
1. BASAVARAJ MAHADEVAPPA RAMAJI
AGE: 32 YEARS, OCC: NIL,
R/O: NARAYANPUR ONI,
KAMALAPUR, TQ AND DIST: DHARWAD.
2. DEEPAK YALLAPPA SHINDHE
AGE: 32 YEARS,OCC: NIL,
R/O: KAMALAPUR
HANAMANTDEVAR,
TQ AND DIST: DHARWAD.
...APPELLANTS
(BY SRI. RAVI B NAIK, SENIOR COUNSEL FOR
SRI.AVINASH M ANGADI, ADVOCATE)
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CRL.A No. 100121 of 2018
C/W CRL.A No. 100131 of 2018,
CRL.A No. 100207 of 2018,
CRL.A No. 100216 of 2018
AND
1. THE STATE OF KARNATAKA
BY DHARWAD RURAL SUB-DIVISION,
REPRESENTED BY
STATE PUBLIC PROSECUTOR,
HIGH COURT BUILDING, DHARWAD.
...RESPONDENT
(BY SRI. V.M.BANAKAR, ADDL. SPP)
THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374 OF
CR.P.C., PRAYING TO ALLOW THIS CRIMINAL APPEAL BY SETTING
ASIDE THE JUDGMENT AND ORDER OF CONVICTION AND SENTENCE
RECORDED BY THE 2ND ADDITIONAL DISTRICT AND SESSIONS &
SPL. JUDGE, AT DHARWAD IN SPL.SC.ST.NO.33/2014, DATED
24.03.2018 & 26.03.2018 THEREBY CONVICTING THE APPELLANTS
FOR THE OFFENCE PUNISHABLE UNDER SECTION 120(B), 201, 302,
364 R/W 34 OF IPC.
IN CRL.A. NO.100131/2018
BETWEEN
1. SHRI.KRISHNA @ KITYA
S/O RAMCHANDRA GOLE
AGE: 42 YARS, OCC: NIL,
R/O: NAYANPUR ONI,
DHARWAD.
2. SHRI.PAVAN S/O RAJU HAIBATTI
AGE: 24 YEARS, OCC: NIL,
R/O: NARAYANPURI IONI,
DHARWAD.
...APPELLANTS
(BY SRI. RAVI B NAIK, SENIOR COUNSEL FOR
SRI.AVINASH M ANGADI, ADVOCATE)
AND
1. THE STATE OF KARNATAKA
BYI DY.SP., DHARWAD RURAL
SUB-DIVISION DHARWAD,
R/BY STATE PUBLIC PROSECUTOR,
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CRL.A No. 100121 of 2018
C/W CRL.A No. 100131 of 2018,
CRL.A No. 100207 of 2018,
CRL.A No. 100216 of 2018
HIGH COURT OF KARNATAKA,
DHARWAD BENCH, AT DHARWAD.
...RESPONDENT
(BY SRI. V.M.BANAKAR, ADDL. SPP)
THIS CRIMINAL APPEAL IS FILED U/SEC.374(2) OF CR.P.C.,
PRAYED THAT THE IMPUGNED ORDER OF CONVICTION AND
SENTENCE PASSED IN SPECIAL SC. ST NO.33/2014 FOR THE
OFFENCES PUNISHABLE UNDER SECTION 364 302, 201, 120(B) R/W
34 IPC AND SECTION 3(2)(V) OF SC AND ST ACT, 1989 DATED
24.03.2018 IN CRIME NO.211/2014 ON THE FILE OF II ADDITIONAL
DISTRICT AND SESSIONS JUDGE AND SPECIAL JUDGE AT DHARWAD
AGAINST ACCUSED NO.7 AND 8 BE SET ASIDE.
IN CRL.A. NO.100207/2018
BETWEEN
1. FAKKIRAPPA S/O BAILAPPA BYALI
AGE: 59 YEARS,OCC: AGRICULTURIST,
R/O: MANGALAGATTI,
TQ AND DIST: DHARWAD.
2. HANAMANTHSINGH
S/O RATANSHINGH CHAWAHAN,
AGE: 44 YEARS, OCC: COOLIE,
R/O: YETTINAGUDD,
TQ AND DIST: DHARWAD.
3. MAHAMMAD SAB S/O BABUSAB BIJAPUR,
AGE: 39 YEARS, OCC: COOLIE,
R/O: MANGALAGATTI,
TQ AND DIST: DHARWAD.
4. REHAMAN S/O ALISAB NADAF
AGE: 27 YEARS,
OCC: AGRICULTURAL COOLIE,
R/O: MANGALAGATTI,
TQ AND DIST: DHARWAD.
...APPELLANTS
(BY SRI. RAVI B NAIK, SENIOR COUNSEL FOR
SRI.J.BASAVARAJ, ADVOCATE)
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CRL.A No. 100121 of 2018
C/W CRL.A No. 100131 of 2018,
CRL.A No. 100207 of 2018,
CRL.A No. 100216 of 2018
AND
1. THE STATE OF KARNATAKA
REPRESENTED BY DY.SP. DHARWAD RURAL
SUB-DIVISION, DHARWAD
STATE PUBLIC PROSECUTOR,
HIGH COURT BUILDING,
HIGH COURT OF KARNATAKA,
BENCH AT DHARWAD.
...RESPONDENT
(BY SRI. V.M.BANAKAR, ADDL SPP )
THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374(2) OF
CR.P.C., SEEKING TO ALLOW THIS APPEAL, SET ASIDE THE
JUDGEMENT AND ORDER OF CONVICTION DATED 24.03.2018 AND
SENTENCE DATED 26.03.2018 U/S.120(B), 201 AND 302 OF IPC
FURTHER APPELLANT NO'S 4 & 10 CONVICTED FOR THE OFFENCES
U/S.364 R/W 34 OF IPC IN SPL.SC.ST.NO.33/2014, ACQUIT THE
APPELLANTS AND SET THE APPELLANTS AT LIBERTY.
IN CRL.A. NO.100216/2018
BETWEEN
1. SRI.MANJUNATH S/O MARUTIRAO CHAWHAN
AGE: 26 YEARS, OCC: NIL,
R/O: HOSAYALLAPUR,
NAVALUR AGASI,
WALMIKI ONI,
DHARWAD.
...APPELLANT
(BY SRI. SRINAND A PACHHAPURE, ADVOCATE)
AND
1. THE STATE OF KARNATAKA
BY DY.S.P., DHARWAD RURAL SUB DIVISION,
DHARWAD, NOW REP. BY
STATE PUBLIC PROSECUTOR,
HIGH COURT OF KARNATAKA,
DHARWAD BENCH AT DHARAWD.
...RESPONDENT
(BY SRI. V.M.BANAKAR, ADDL SPP)
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CRL.A No. 100121 of 2018
C/W CRL.A No. 100131 of 2018,
CRL.A No. 100207 of 2018,
CRL.A No. 100216 of 2018
THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374(2) OF
CR.P.C., SEEKING TO SET ASIDE THE JUDGMENT OF CONVICTION
DATED 24.03.2018 AND ORDER OF SENTENCE DATED 26.03.2018
PASSED BY COURT OF II ADDL. DISTRICT & SESSIONS & SPL.
JUDGE, DHARWAD IN SPL.SC.ST.NO. 33/2014 FOR THE OFFENCE
PUNISHABLE U/S. 120(B), 201, 302 AND SECTION 364 R/W
SECTION 34 OF IPC AND SECTION 3(2)(V) OF SC/ST (PREVENTION
OF ATROCITIES) ACT, 1989 AND ALLOW THE PRESENT APPEAL BY
ACQUITTING THE APPELLANT/ACCUSED NO. 9.
THESE CRIMINAL APPEALS HAVING BEEN HEARD AND
RESERVED FOR JUDGMENT, COMING ON FOR 'PRONOUNCEMENT OF
JUDGMENT', THIS DAY, SURAJ GOVINDARAJ J., DELIVERED THE
FOLLOWING:
JUDGMENT
1. The above appeals are filed by the accused, who
have been convicted in Spl.SC.ST.No.33/2014 by the
II Additional District and Sessions and Special Judge,
Dharwad (for short, 'trial Court') vide judgement
dated 24.03.2018.
2. Criminal Appeal No.100121/2018 has been filed by
accused Nos.5 and 6, Criminal Appeal
No.100131/2018 has been filed by accused Nos.7
and 8, Criminal Appeal No.100207/2018 has been
filed by accused Nos.1, 3, 4 and 10 and Criminal
CRL.A No. 100121 of 2018
C/W CRL.A No. 100131 of 2018,
CRL.A No. 100207 of 2018,
CRL.A No. 100216 of 2018
Appeal No.100216/2018 has been filed by accused
No.9.
3. By way of aforesaid judgement, the trial Court found
accused No.1 and 3 to 10 guilty of offence under
Sections 120-B, 201 and 302 read with 34 of IPC,
accused Nos.4 and 10 were found guilty of offence
under Section 364 read with 34 of IPC. All the
accused were acquitted of offences under Sections
3(2)(v) of Scheduled Castes and Scheduled Tribes
(Prevention of Atrocities) Act, 1989 (for short, 'POA
Act').
4. By order of sentence dated 24.03.2018, accused
Nos.1 and 3 to 10 were sentenced to undergo life
imprisonment and to pay fine of Rs.5,000/- each for
offences under Section 302 read with 34 of IPC, in
default to undergo simple imprisonment for one year.
Accused Nos.3 to 10 were sentenced to undergo
rigorous imprisonment for six years and to pay fine
CRL.A No. 100121 of 2018
C/W CRL.A No. 100131 of 2018,
CRL.A No. 100207 of 2018,
CRL.A No. 100216 of 2018
of Rs.5,000/- each for offences under Section 201
read with 34 of IPC and in default to undergo simple
imprisonment for six months. Accused Nos.1 and 3
to 10 were sentenced to undergo rigorous
imprisonment for five years and to pay fine of
Rs.5,000/- each for offences under Section 120-B
read with 34 of IPC and in default to undergo simple
imprisonment for one year. Accused Nos.4 and 10
were sentenced to undergo rigorous imprisonment
for five years and to pay fine of Rs.5,000/- each for
offence under Section 364 read with 34 of IPC and in
default to undergo simple imprisonment for six
months. All the sentences were directed to run
concurrently. Accused Nos.1 and 3 to 10 were
entitled to set off under Section 428 of Cr.P.C.
5. It is aggrieved by the aforesaid judgement of
conviction and order of sentence that the aforesaid
accused are before this Court.
CRL.A No. 100121 of 2018
C/W CRL.A No. 100131 of 2018,
CRL.A No. 100207 of 2018,
CRL.A No. 100216 of 2018
6. A complaint came to be filed by PW.1-Veeranagouda
Patil alleging that on 27.08.2018 at 6.00 a.m., he
found someone fallen on east face of the service road
on NH-4 near the agricultural land of Basappa
Aralikatti. He along with certain others had gone to
see the person who had fallen on the road, when
they found the person dead and stained with blood.
It is in that background that a complaint came to be
filed with PSI, Kittur Police Station to take action
against unknown persons.
7. Investigation was completed and charge sheet was
laid by the Deputy Superintendent of Police, Dharwad
Rural Police Station for offences under Sections 120-
B, 201, 302 and 364 read with 34 of IPC and 3(2)(v)
of Scheduled Caste and Schedule Tribes (Prevention
of Atrocities) Act 1989 (for short POA Act). Charges
were framed for the said offences.
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C/W CRL.A No. 100131 of 2018,
CRL.A No. 100207 of 2018,
CRL.A No. 100216 of 2018
8. In order to prove its case the prosecution, in all, led
evidence of 28 witnesses and marked more than 76
exhibits. 25 material objects were also marked.
9. When the incriminating evidence was put across to
the Accused the same was denied, which was
recorded in the Section 313 statement.
10. Defence led evidence of one witness.
11. The trial Court proceeded for arguments and passed
the above order of conviction and sentence.
12. Sri.Ravi B Naik, learned Senior counsel for
Sri.Avinash M Angadi and Sri.J.Basavaraj appearing
for the appellants, would submit that:
12.1. The entire case of the prosecution is based on
circumstantial evidence. There are no
eyewitnesses to the alleged crime. The said
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C/W CRL.A No. 100131 of 2018,
CRL.A No. 100207 of 2018,
CRL.A No. 100216 of 2018
circumstantial evidence is not corroborated by
any cogent evidence on record.
12.2. The investigation has been done in absurd
manner and does not support the charges laid
against the accused.
12.3. Of the 28 witnesses who were examined in the
matter, except the official witness, everybody
has turned hostile, none of them have
supported the case of the prosecution.
12.4. There is nothing on record to establish the
involvement of the accused in the offence.
12.5. The complainant and other witnesses have
turned hostile, the trial Court ought not to have
convicted the accused.
12.6. The only evidence which is on record is of
PW.22, father of the deceased who has stated
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C/W CRL.A No. 100131 of 2018,
CRL.A No. 100207 of 2018,
CRL.A No. 100216 of 2018
that there is a possibility of his daughter-in-law
wanting to kill the deceased and the said PW.22
has not categorically stated that it is the
accused who have murdered the deceased.
12.7. PW.24, brother of the deceased has only stated
that accused Nos.4 and 10 took the deceased in
the car, which he had not told anyone at any
time, including at the time of filing of the
complaint. Therefore, learned Senior counsel
submit that the said evidence cannot be relied
upon.
12.8. The recovery of the amounts from the various
accused has also not been established nor there
are the recoveries made proper. Be that as it
may, he submits that the amount which has
been recovered being small amounts belonging
to the accused, mere recovery would not
implicate the accused in the crime. It was for
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C/W CRL.A No. 100131 of 2018,
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CRL.A No. 100216 of 2018
the prosecution to establish that the said
amounts had been allegedly paid by accused
No.1 to the other accused as supari for causing
the death of the deceased. The same not
having been established, recovery of money
would not enure to be benefit of the
prosecution.
12.9. There is no evidence which is on record to
implicate the accused inasmuch as the claim is
that a chance fingerprint is found on the left
side door of the car of the deceased. The said
fingerprint belonging to accused No.5. There is
only one fingerprint which is stated to match
the index finger of accused No.5. There are no
other fingerprints which are matching the
fingerprints of accused No.5. Merely because a
chance fingerprint matches the index
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C/W CRL.A No. 100131 of 2018,
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CRL.A No. 100216 of 2018
fingerprint of accused No.5, the same cannot
implicate accused No.5.
12.10. During the pendency of the above appeal,
accused No.1 expired on 05.10.2021 and
accused No.3 expired on 15.05.2020 and as
such the proceedings insofar as they are
concerned, has stood abated.
12.11. In the above background, he submits that when
all the material witnesses have turned hostile
and there is no evidence on record to implicate
the accused, the trial Court ought not to have
convicted the accused, but ought to have
acquitted the accused for the offences alleged
against them.
12.12. He has relied upon the decision reported in
2022 LiveLaw (SC) 812 in the case of
Munikrishna @ Krishna Etc. vs. State by
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C/W CRL.A No. 100131 of 2018,
CRL.A No. 100207 of 2018,
CRL.A No. 100216 of 2018
Ulsoor PS and submits that the
confession/voluntary statement made by the
accused before the police and the recovery of
alleged weapon cannot be admitted in
evidence. Para Nos.13 and 16 are reproduced
hereunder for easy reference:
"13. In the case at hand the entire case
of the prosecution is built upon the
confessional/voluntary statements made by
the accused persons before the police and the
recovery of the alleged weapon of murder
recovered at the pointing out of the accused
and the recovery of alleged stolen gold
material from a jewelry shop, again, on
pointing out of the accused. Let us deal with
the first evidence. As per the police, all the
accused were arrested from a school building
on 31.01.2001 and formally arrested on
01.02.2001. They confessed to as many as 24
crimes committed by them. Their confessions
of how they planned and executed the
murders has been captured on a video, which
was also exhibited before the court. The Court
has taken this evidence of voluntary
statements made by the accused and hence
admitted it as evidence. This was done both
by the Sessions Court as well as the High
Court. The learned Sessions Judge records in
his judgment dated 19.03.2003 records as
under: -
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C/W CRL.A No. 100131 of 2018,
CRL.A No. 100207 of 2018,
CRL.A No. 100216 of 2018
"... The prosecution has played the
audio in the open Court Hall in the presence of
the accused persons and jam-packed Court
Hall and on a mere perusal and hearing the
video, it will be evident that the accused
persons themselves had explained the entire
incident the manner in which they have
committed the offence alleged by the
prosecution against them. The video
statement of accused no. 5 makes it clear as
to how the deceased was made to open the
iron grill and as to how they had planned to
murder the aged innocent Ramakrishnan who
was residing alone. The video statement of
the accused personal reveals the intension of
the accused person and also the manner in
which they have made deceased
Ramakrishnan to open the iron grill and also
the manner in which the accused persons
have committed the offence in murdering the
aged man."
The Sessions Court then refers to a
decision of Supreme Court, (Shri N. Sri Rama
Reddy, Etc. v. Shri V.V. Giri6) and states that
in view of this decision video tapes can also be
used as corroborative evidence. This is what
has been said: -
"When such being the case, it goes without
saying that the video recorded statement of
the accused persons can also be made use as
corroborative piece of evidence. If really, the
accused persons after witnessing and hearing
the video cassettes suspected the bonafide or
genuineness of the video recorded statement
of the accused persons, instead of taking
contention that their statements obtained by
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C/W CRL.A No. 100131 of 2018,
CRL.A No. 100207 of 2018,
CRL.A No. 100216 of 2018
making them to consume alcohol, they would
have requested the Court for subjecting the
video tape records for scientific scrutiny. In
view of the rulings of the Honourable Supreme
Court, even video tapes of the voluntary
statement of the accused persons can be used
as the corroborative piece of evidence. Thus,
on perusal of the materials on record, it will
be quite manifest that the circumstances
relied upon by the prosecution will bring home
the guilt of the accused beyond all reasonable
doubt"
Later the High Court while hearing the
appeal of the accused gives a similar finding
as follows : -
"It is not the case of the accused that they
have not given voluntary statements before
PW 15 as per Ext P 8,9,10, 11 & 12. However,
it is their contention that they were made to
drink liquor and under the influence of liquor,
the statements have been taken as per Exs.
P-8,9,10,11 & 12 and the statements were not
voluntary. The material on record does not
probablise the said version taken by the
accused. In the absence of proof of the said
fact, voluntary statements at Exs. P-
is proved to be voluntary as there is no
material on record which would probablise the
defence taken by the accused that they were
made to drink liquor and their statements
were recorded in the influence of drinking and
it was not voluntary".
The High Court then affirms the finding of
the Sessions Court and the admissibility of the
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C/W CRL.A No. 100131 of 2018,
CRL.A No. 100207 of 2018,
CRL.A No. 100216 of 2018
voluntary statement of the accused and the
videography placed before the Court and
states as under: -
"It is clear from the above said proved
circumstances that the accused have
committed murder of S Ramakrishnan aged
72 years by slitting his neck as he was living
alone in the house. The only defence taken by
the accused is that they have given voluntary
statements under the influence of liquor which
is not probabilised by the material on record
and in view of statements of the accused
pointing to the scene of offence wherein S
Ramakrishnan was murdered and
Ramakrishnan suffered homicidal death and
recovery of M.O.1 which according to P.W.5
would cause injury found on the body of S
Ramakrishnan and also recovery of ornaments
which they melted into ingot from the shop of
P.W.17 and the fact that accused have shown
the place where they committed the scene of
offence in furtherance of the voluntary
statements have been conclusively proved by
the prosecution and such circumstances form
a complete link which would point out only to
the guilt of the accused and is wholly
inconsistent with their innocence.
The trial Court has appreciated oral and
documentary evidence on record in the right
perspective and on re-appreciation of the
entire material on record, we hold that finding
of guilt arrived at against the accused Nos.1
to 5 - appellants herein for having committed
the offence punishable under Sections 302 &
r/w 34 of IPC is justified and sentence
imposed thereon cannot also be said to be
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C/W CRL.A No. 100131 of 2018,
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CRL.A No. 100216 of 2018
excessive so as to call for interference in this
appeal."
Both the Trial Court and the Appellate
Court went completely wrong in placing
reliance on the voluntary statements of the
accused and their videography statements.
Under Article 20(3) of the Constitution of
India, an accused cannot be compelled to be a
witness against himself. Again, under Section
258 of the Indian Evidence Act, 1872; a
confessional statement given by an accused
before a Police officer is inadmissible as
evidence.
The reference of the Supreme Court
judgment by the trial Court (Shri N. Sri Rama
Reddy v. Shri V.V. Giri) is also misplaced. That
case only refers to the admissibility of a tape-
recorded conversation in an election petition
which is tried before a Court under the Civil
Procedure Code (Section 87 of the
Representation of People Act, 1951). This
Court, in the above cited judgment was not
dealing with a criminal case and most
certainly not on the admissibility of a
statement given by an accused to the Police
under Section 161 of Code of Criminal
Procedure. Indeed, the above judgment also
ends with a note of caution:
"30. We once again emphasize that this
order relates only to the admissibility in
evidence of the conversation recorded on tape
and has not dealt with the weight to be
attached to that evidence. It must also be
pointed out that the question, whether the
pamphlets, Exhibits P-18-B and P-37- A, have
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been circulated in the manner alleged by the
petitioners and the further question whether
they amount to exercise of undue influence
are also matters which have not been
considered in this order. The above are all
aspects which will be dealt with in the
judgment, while disposing of the election
petitions."
Thus, the opinion of this Court
regarding the admissibility of a tape-recorded
conversation, was in an entirely different
context.
As far as the recovery of gold ingot is
concerned, PW-1, i.e., the son-in-law and the
complainant has said in his evidence before
the Court that he does not recognize the ingot
and it does not belong to his father-in-law.
Therefore, the gold which has been recovered
has not been identified as the one which was
stolen from the house of the deceased. The
recovery of knife is also doubtful. Firstly,
Venkatesh who had led the discovery had
mentioned about the knife and its disposal on
01.02.2001 when he was arrested. The
recovery, however was made on 15.05.2001
i.e., four and a half months later. Why such a
belated recovery was made has not been
explained. Secondly, the independent witness
to this recovery PW-10 Murugan, had also
turned hostile during cross- examination as he
said that he does not recognize Venkatesh
(accused) on whose pointing out the alleged
recovery was made. So much for the recovery
of the murder weapon.
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16. Ordinarily, this Court does not
interfere with concurrent findings of facts as
they are in the present case. But, then in the
present case it has become necessary to
interfere with the findings for the reasons that
both the High Court as well as the Sessions
Court have ignored the well-established
principles of criminal jurisprudences and have
relied upon facts and evidences which are
clearly inadmissible in a court of law. The
crime indeed was ghastly, to say the least.
Yet, linking the crime to the present
appellants is an exercise which was to be
undertaken in the court of law under
established principles of law. This has not
been done. This Court in Sharad Birdhichand
Sarda (supra) has cautioned thus: -
"179. We can fully understand that
though the case superficially viewed bears an
ugly look so as to prima facie shock the
conscience of any court yet suspicion,
however great it may be, cannot take the
place of legal proof. A moral conviction
however strong or genuine cannot amount to
a legal conviction supportable in law.
180. It must be recalled that the well-
established rule of criminal justice is that
"fouler the crime higher the proof". In the
instant case, the life and liberty of a subject
was at stake. As the accused was given a
capital sentence, a very careful, cautious and
meticulous approach was necessary to be
made."
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12.13. The recovery made in such a situation is
contrary to Section 25 and Section 27 of the
Indian Evidence Act and as such there cannot
be any confession on that basis.
13. It is in that background, we have been called upon to
re-appreciate the evidence on record to ascertain the
guilt of the accused as regards the allegation made
against them.
14. The case of the prosecution is that the deceased had
an illicit relationship with the daughter-in-law of
accused No.1. The deceased belonging to SC/ST
community, accused No.1 belonging to Lingayat
community, the deceased having continued illicit
relationship with daughter-in-law of accused No.1,
had a grudge against the deceased and it is for that
reason that accused No.1 had engaged the services
of accused Nos.3 to 10 to commit the murder of his
daughter-in-law as well as the deceased.
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15. It is alleged that on 26.08.2014 accused No.1 and
accused Nos.3 to 10 had entered into a conspiracy to
commit the said murders, for which accused No.1
had promised to make payment of a sum of
Rs.5,00,000/- and it is in furtherance of the said
common intention that accused Nos.4 and 10 took
the deceased for dinner in the car of the deceased
and at a preplanned place requested the deceased to
stop the car so that they could attend to the nature's
call.
16. At that time, accused Nos.2, 3, 5 to 8 were waiting
and once the car stopped, all the accused dragged
the deceased out of the car, took the weapons out of
TATA Sumo belonging to accused No.3, assaulted the
deceased, stabbed him with a knife on his stomach
and left chest as also on his back. Accused No.6
assaulted the deceased with knife on stomach and
left chest. Accused No.7 assaulted the deceased in
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the back. Thereafter, accused Nos.4 to 6 and 10 took
him in scorpio while accused Nos.2, 3 and 7 got into
TATA Sumo belonging to accused No.3. Accused No.8
went in another car. The body of the deceased was
dumped near the service road underpass at
M.K.Hubballi. Noticing that the deceased was still
alive, accused No.10 once again hit him on his head
with a Talawar and committed his murder knowing
that the deceased belong to SC/ST community. The
above act is also an offence under the POA Act and it
is on that basis a charge sheet was laid against the
aforesaid accused.
17. As aforesaid, the prosecution led the evidence of 28
witnesses. PWs.1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12,
13, 14, 23, 27 and 28 have turned hostile. Though
the prosecutor has cross-examined the said
witnesses, he has not been able to obtain any
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statement from them to support the case of the
prosecution.
18. PW.1 is a stranger to the family. In the complaint at
Ex.P.29 he has stated that the deceased had an illicit
relationship with the daughter-in-law of accused
No.1. Apart from PW.1 turning hostile, it is not
understood as to how PW.1 could have spoken of the
intimate family details of the deceased and or
accused No.1.
19. PW.2 who is a witness to the spot panchanama at
Ex.P.1 has turned hostile and denied that he
witnessed the spot panchanama.
20. PW.3 who is also stated to be witness of spot
panchanama, has turned hostile and denied the spot
panchanama as also his signature.
21. PW.4 who is a witness to Ex.P.5-the vehicle seizure
panchanama has also turned hostile and denied any
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such seizure. He has also denied the photographs at
Exs.P.6 to P.8.
22. PW.5 who is signatory to Ex.P.5 (seizure
panchanama) and Ex.P.9 (another seizure
panchanama) has stated that the police had
prepared the said panchanama and he had only
signed it. Though he admits that he is seen
photographs at Exs.P.6 to P.8, he has stated that he
does not know why police took the photographs.
23. PWs.6 and 7 who are also witnesses to seizure
panchanama as regards the amounts seized from
accused Nos.2 to 10, have turned hostile and stated
that there is no such seizure.
24. PW.8 who is witness to Ex.P.19 being kidnap spot
panchanama, Ex.P.20 being cloths seizure
panchanama and photographs, Ex.P.21 being the
sketch of spot and photos, Ex.P.22 being the mobile
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C/W CRL.A No. 100131 of 2018,
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shop panchanama and photos, Ex.P.23 being seizure
panchanama of TATA Sumo and the weapons
therein, Ex.P.24 being the blank seizure panchanama
and photographs, Ex.P.25 being the cloths seizure
panchanama and photographs, has denied the said
exhibits and has stated that he has no knowledge of
the said panchanamas.
25. PW.9 who is a witness to the recovery panchanama,
has stated that when the recoveries were made,
none of the accused were present and no voluntary
statement had been made in his presence. He has
stated that he has no knowledge of the panchanamas
and or of the seizure.
26. PW.10 who is stated to be witness to the incident
spot panchanama and photographs at Ex.P.26, has
denied any knowledge of the same. Similar is the
situation as regards PW.11.
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27. PW.12 who is stated to run a barber shop in front
which the car of the deceased had been parked with
certain blood on the seat, etc., has stated that he
has signed the statement in the police station the
said statement having been prepared by the police.
28. PW.13 has also stated he has no knowledge of the
statements made and he has not seen the deceased.
Similar is the statement made by PW.14.
29. PW.15 who has issued the caste certificate has
stated that the deceased was a Valmiki and accused
Nos.1, 2 and 5 were Lingayats, accused No. 4 was
Rajaputh, accused Nos. 4 and 10 were Muslim and
accused Nos. 6, 7, 8 and 9 were Maratha.
30. PW.16 who is the fingerprint expert of the FSL has
stated that he has deputed V.M.Mathapati and
S.G.Nadaf to find and extract any fingerprints in the
TATA Indigo car belonging to the deceased. He has
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C/W CRL.A No. 100131 of 2018,
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CRL.A No. 100216 of 2018
stated that they found a chance fingerprint on the
right side window which they have obtained and the
said fingerprint was cross checked with the finger
prints of accused No.5, 6 and 10, which had been
sent by DSP, Bailhongal. They found that one of the
fingerprint matched with index finger of accused
No.5. He therefore submits that the finger print
found on the right side window of the TATA Indigo
car is that of accused No.5.
31. PW.17 has carried the FIR to the Magistrate. PW.18
is the Deputy Superintendent of Police, Bailhongal
who has investigated the offence. During his cross-
examination he has stated that he does not know the
qualification of the persons who took the finger
prints.
32. PW.19 has forwarded the FIR to the Court. PW.20
arrested accused Nos.4 and 10 on 02.09.2014 on the
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C/W CRL.A No. 100131 of 2018,
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basis of suspicion and arrested accused Nos.1, 2, 3,
7, 8, 9 on 03.09.2014.
33. PW.21 is Circle Inspector of Police who has
investigated the offence until transfer of investigation
to the Deputy Superintendent of Police. PW.21 has
recorded the voluntary statement of accused Nos.4
and 10, wherein they are alleged to have stated that
it is on the instigation of accused No.1 that all the
accused conspired together and caused the death of
the deceased and as such he has implicated the
accused on the basis of voluntary statement.
34. PW.22 father of the deceased has deposed about the
alleged illicit relationship between the deceased and
daughter-in-law of accused No.1. Further, he has
also stated that the wife of the deceased had left the
deceased within two months of marriage and the
family members of the said wife were also inimically
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disposed against the deceased and wanted to cause
his death.
35. PW.23 who is the brother of accused No.10, has
stated that he knows the deceased, accused No.2 as
also accused Nos.1 and 4. He has also turned hostile
and denied having given any statement to the police.
Nothing much has been elicited from him during the
course of cross-examination by the Public Prosecutor
after treating him hostile.
36. PW.24 who is the brother of the deceased has stated
that accused Nos.4 and 10 took the deceased in the
car but he had not informed anyone at any time
including the Investigating Officer. He has also
turned hostile. He has stated that police did not take
him to the place where the deceased was murdered.
He was not part of any panchanama conducted and
that no panchanama was conducted in his presence.
He stated that his father has given complaint about
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his brother being kidnapped. He has not given any
statement before the police that accused Nos.4 and
10 had taken his brother in their car. Thus, even the
brother of the deceased has not supported the case
of the prosecution.
37. PW.25 has stated that he along with CW.22 are doing
Real estate business, they had entered into a sale
agreement with Accused No.1 for purchase of his 60
guntas of land for Rs.12,000,00/- and paid Rs.2
lakhs as earnest money. However, Accused No.1 has
neither received the balance amount from them nor
executed the sale deed in their favour.
38. PW.27 has also turned hostile. He does not know to
whom Tata sumo bearing reg.no KA-51-2203 belongs
to, Accused No.3 never parked the said vehicle in
front of his house. He has denied that the Police
seized any weapon in the vehicle in his presence, he
has also denied giving any statement.
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39. PW.28 is a panch witness of the seizure panchanama
who has turned hostile.
40. DW.1 who is accused No.5 in his evidence has stated
that there was demand made by Circle Inspector of
Police of certain monies which was not made
payment of by him. It is in that background that he
claims that Circle Inspector of Police (PW.21) has
framed him. He had been called by Circle Inspector
of Police who took his fingerprint and it is this
fingerprint which stated to be matched and used
against him. In the cross-examination he admits his
signature at Ex.P.14. His presence in Ex.P.24 series
his signature in Ex.P.26, Ex.P.14 and Ex.P.26 being
the panchanama as regards.
41. It is from the above evidence on record that we have
to ascertain if the charges framed against the
accused have been established beyond reasonable
doubt so as to convict the accused for the offences
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alleged against them as done by the trial Court and
uphold the order of conviction and sentence passed
by the trial Court.
42. As afore observed, PWs.1 to 14, 23, 27 and 28 have
turned hostile and nothing has been elicited from
them during the course of cross-examination by the
Public Prosecutor.
43. On account of the aforesaid witnesses turning
hostile, none of the panchanamas i.e. spot
panchanama, inquest panchanama, seizure
panchanama have been proved by the prosecution.
The recovery of the car, weapons and money on the
basis of which the accused are sought to be
implicated has also not been proved. The only
evidence which is on record is that of the official
witnesses who have sought to support the case of
the prosecution.
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44. Even amongst the official witnesses, the fingerprint
has been lifted by V.M.Mathapati and S.G.Nadaf as
deposed by PW.16. The said V.M.Mathapati and
S.G.Nadaf have not been examined. PW.18 who is
the Deputy Superintendent of Police (Investigating
Officer) has stated that he does not know the
qualification of said two persons.
45. In the background of the said facts, when the only
persons who could have spoken about lifting of
fingerprint and the veracity thereof being
V.M.Mathapati and S.G.Nadaf, they not having been
examined, gives raise to a situation where the said
fingerprint examined by PW.16 cannot be said to be
that which has been lifted by TATA Indigo. There is
no evidence which has been led to establish from
where the fingerprint of Accused No.5 which was
used for comparison was obtained from and who
took it.
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46. PW.16 has spoken of the blood which has been
recovered from the car and sent for examination. In
the FSL report, apart from stating that the said blood
is human in origin and the Rh factor is 'B' positive,
there is no particular finding given by the FSL that
the said blood is that belonging to the deceased. The
FSL ought to have examined and compared the blood
found in the TATA Sumo with that of the deceased to
ascertain if the same was that of the deceased. This
not having been done, it is not established that the
blood found in TATA Sumo is that of the deceased.
47. The seizure of the monies from the accused, namely,
Rs.30,000/- from accused No.2, Rs.10,000/- from
accused No.3, Rs.20,000/- from accused No.5,
Rs.5,000/- from accused No.6, 7 and 8 respectively,
Rs.18,500/- from accused No.9 is also not
established since the witnesses to the said seizure
namely PWs.6 and 7 have turned hostile.
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48. Neither is the daughter-in-law of accused No.1
Mallavva examined and her statement recorded nor
is the statement of the son of accused No.1
recorded. This more so when the case of the
prosecution was that Acussed No.1 had engaged the
services of other accused to murder the said
Mallavva and the Deceased.
49. The allegation being that there was illicit relationship
between the deceased and daughter-in-law of
accused No.1, there is no other person of the village
and or family, who has been examined to establish
this fact. There are only vague allegations and
statements made in this regard in the charge sheet
which has not been established by cogent evidence.
50. In our criminal justice for an accused to be convicted
it is but required that the guilt of the accused is
established beyond reasonable doubt. In the present
case, as aforesaid there is no evidence on record to
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implicate the accused in the crime though there are
conjunctures drawn by the Investigating Officer as
also by the trial Court to implicate the accused. The
conviction of an accused cannot be on the basis of
moral grounds but would have to be on sound legal
principles established by the evidence on record.
51. In the above background, when there is no such
evidence on record, we are unable to agree with the
judgement of conviction and order of sentence
passed by the trial Court. Hence, we pass the
following:
ORDER
a) The appeals are allowed. Judgement of
conviction and order of sentence dated
24.03.2018 passed by the II Additional District
and Sessions and Special Judge, Dharwad in
Spl.SC.ST.No.33/2014 is set aside.
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b) Accused Nos.5 and 6 being enlarged on bail
vide order dated 13.01.2020, accused Nos.7
and 8 being enlarged on bail vide order dated
13.01.2020, accused Nos.4 and 10 being
enlarged on bail on 12.12.2019 and accused
No.9 being enlarged on bail vide order dated
06.09.2018 and accused Nos.1 and 3 having
expired, there is no order of release required to
be passed. However, the bail bonds furnished
by the said accused stand discharged.
Sd/-
JUDGE
Sd/-
JUDGE
SH
