Karnataka High Court

Chandregowda @ Ramachari vs The State Of Karnataka on 6 January, 2023

Bench: K.Somashekar, C M Joshi

                                                 -1-
                                                       CRL.A No. 2144 of 2016




                   IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                       DATED THIS THE 6TH DAY OF JANUARY, 2023

                                            PRESENT
                          THE HON'BLE MR JUSTICE K.SOMASHEKAR
                                                 AND
                            THE HON'BLE MR JUSTICE C M JOSHI
                          CRIMINAL APPEAL NO. 2144 OF 2016 (C)

                   BETWEEN:

                   CHANDREGOWDA @ RAMACHARI
                   @ RAMACHANDRA, S/O. NAGARAJU,
                   AGED ABOUT 28 YEARS,
                   OCC: AUTORICKSHA DRIVER,
                   R/O. AMBLE VILLAGE AND HOBLI,
                   CHIKKAMAGALURU DISTRICT-577 101.
                                                                ... APPELLANT
                   (BY SRI. UMESH P.B. ADVOCATE FOR
                       SRI. R.B.DESHPANDE, ADVOCATE)

Digitally signed   AND:
by T S
NAGARATHNA
Location: High     THE STATE OF KARNATAKA,
Court of           RURAL POLICE STATION,
Karnataka          CHIKKAMAGALURU-577 101.
                   (REPRESENTED BY THE STATE
                   PUBLIC PROSECUTOR, HIGH COURT
                   BUILDINGS, BENGALURU 560 001)
                                                              ... RESPONDENT
                   (BY SRI. H.S.SHANKAR, HCGP)

                         THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374(2)
                   CR.P.C., PRAYING TO SET ASIDE THE JUDGMENT OF CONVICTION
                   AND ORDER OF SENTENCE DATED 05.12.2016 PASSED BY THE II
                   ADDITIONAL     SESSIONS    JUDGE,    CHIKKAMAGALURU   IN
                   S.C.NO.89/2014 CONVICTING THE APPELLANT/ACCUSED FOR THE
                   OFFENCE P/U/S 302 AND 201 OF IPC.
                                -2-
                                        CRL.A No. 2144 of 2016




      THIS CRIMINAL APPEAL HAVING BEEN HEARD AND RESERVED
FOR JUDGMENT COMING ON FOR PRONOUNCEMENT OF JUDGMENT,
THIS DAY C.M.JOSHI J., DELIVERED THE FOLLOWING:


                          JUDGMENT

The appellant- accused being aggrieved by the judgment

of conviction and order of sentence dated 05-12-2016 passed

by learned II Additional Sessions Judge, Chikkamagaluru, in

Sessions Case No.89/2014, for the offence punishable under

Sections 302 and 201 of IPC, convicting and sentencing him to

undergo imprisonment for life and pay fine of Rs.20,000/- for

the offence punishable under Section 302 of IPC and in default

of payment of fine, to undergo rigorous imprisonments for one

year and to undergo simple imprisonment for two years and

pay fine of Rs.10,000/- for the offence punishable under

Section 201 IPC, and in default of payment of fine, to under

go rigorous imprisonment for six months, has approached this

court in appeal.

2. The brief facts of the prosecution case are as below:

It is alleged in the complaint that the husband of

deceased Saroja left her about 10 years ago and she along with

CRL.A No. 2144 of 2016

her two children was staying in the house of her mother. She

was doing coolie work in Chikkamagaluru. About 3½ years

earlier, when she was travelling in auto rickshaw developed

intimacy with the appellant-accused, who was a auto rickshaw

driver and thereafter, developed illicit relationship with him. It

is alleged that thereafter, marriage of the appellant- accused

was negotiated with another lady and due to which, deceased

Saroja was quarrelling with the appellant- accused. Therefore,

the appellant- accused decided to commit murder of Saroja. On

8th June 2014, at about 5.00 PM, appellant/accused came in

the Auto rickshaw bearing No.KA.198/A-4859 to the house of

Saroja and took her in the said auto to Malaluru Temple, where

he has expressed his intention of marrying another lady. At

that time, deceased Saroja quarreled with him and the

appellant/accused assaulted her with the stone on backside of

her head, brought her and admitted to M.G. Hospital with the

assistance of his friends stating that she has consumed poison

and went away. The complainant-PW 1 who is the son of the

deceased came to know of this aspect on the next morning and

filed the complaint as per Ex.P1 alleging that the accused has

CRL.A No. 2144 of 2016

committed the offence punishable under Section 302 and 201

of IPC.

3. Based on the said complaint filed by the son of

deceased Saroja on 09-06-2014, criminal law was set into

motion. The Investigating Officer registered the case in Crime

No.262/14 and visited the mortuary of the Government

Hospital, conducted inquest mahazar as per Ex.P2, took the

photographs of the body of the deceased as per Ex.P3 to 5,

visited the spot and prepared spot panchanama as per Ex.P9,

recorded statements of the witnesses and sent requisition to

conduct the post-mortem of the dead body of Saroja. The

Medical Officer has conducted the postmortem as per Ex.P21,

viscera of Saroja was collected by the Medical Officer and it

was sent for examination to FSL. In the meanwhile, the

accused was arrested and his voluntary statement was

recorded by the investigating officer as per Ex.P26. The mobile

phone of the accused- MO.1, was seized by the IO under a

panchanama as per Ex.P9, the place of enticing away of

deceased was shown by him and a panchanama was drawn as

per Ex.P10. Then the stone used for commission of the offence,

CRL.A No. 2144 of 2016

MO.2, was also seized at his instance as per Ex.P11 from the

spot of the offence. The auto rickshaw used for commission of

the offence, a mobile phone of deceased, MO.3 found in the

said auto rickshaw and a blood stained mat, MO.4 were also

seized under panchanama as per Ex.P12 at the instance of the

accused. Thereafter, investigating officer sent the blood stained

articles to the FSL. After securing the documents and

completion of the investigation, he filed the chargesheet

against the accused.

4. The committal court has taken cognizance of the

offence, furnished chargesheet copies to the accused and

committed the case to Sessions Court. Thereafter, the Sessions

Court framed charges, read over and explained to the accused

who pleaded not guilty and claimed to be tried.

5. The prosecution in order to prove the guilt of the

accused, has examined 19 witnesses as PWs-1 to 19 and got

exhibited 28 documents as per Exs. P1 to P28, during the

cross-examination one document was marked as exhibited D1

and material objects at MOs 1 to 5 were also marked.

Thereafter, the accused has been examined by the Trial Court

CRL.A No. 2144 of 2016

under Section 313 of Cr.P.C. by explaining incriminating

evidence adduced by the prosecution witnesses. The accused

has denied the entire prosecution evidence and has not

adduced any evidence.

6. After hearing the arguments by the prosecution and

the defence, the Trial Court framed following points for its

consideration.

(1) Whether the prosecution proves beyond reasonable doubt that the accused had an illicit relationship with the deceased Smt. Saroja and subsequently his marriage was negotiated, she quarreled with the accused, accused under apprehension that Smt. Saroja would prevent his marriage on 08.06.2014 at about 5.00 p.m., took her in a Autorickshaw bearing Reg. No. KA 18/A-4859 near Malaluru temple plantation with an intention to kill her assaulted with the stone on her backside of the head caused grievous injuries and squeezed her neck and committed culpable homicide amounting to murder and brought her to M.G. hospital admitted her by falsely informing that she has consumed poison and committed an offence punishable under section 302 of I.P.C.?

(2) Whether the prosecution further proves that the accused after committing murder of Smt. Saroja in order to screen the offence from legal punishment had admitted her to M.G. hospital, Chikkamagaluru by falsely informing that she has consumed poison and committed an offence punishable under Section 201 of IPC?

CRL.A No. 2144 of 2016

(3) What Order?

7. Answering point Nos.1 and 2 in the affirmative, the

learned Sessions Judge convicted the accused and sentenced

him to undergo life imprisonment for the offence under Section

302 of IPC and also sentenced him to undergo rigorous

imprisonment for two years for the offence under Section 201

of IPC and imposed fine with default sentences. It is this

judgment of conviction and order of sentence which is called in

question in the present appeal by the accused.

8. The prosecution seeks to prove the guilt of the

accused on the basis of the circumstantial evidence. The

prosecution case as it unfolds from the charge sheet papers is

that, the accused had developed acquaintance with the

deceased while she was going for work in his auto rickshaw, he

had developed illicit relationship with her and said illicit

relationship was within the knowledge of the family members

of the deceased, including her sons. It is the case of the

prosecution that about a month prior to the incident, the

accused had planned for his marriage and had requested his

CRL.A No. 2144 of 2016

parents to search for bride and they had seen one Anitha d/o

Dharmanna of Nettagakerehalli and about 15 days prior to the

incident, the marriage talks had taken place. When this aspect

was informed to deceased Saroja, she had picked up quarrel

with the accused and had scolded him saying that if he marries

said Anitha she would come to his house and consume poison.

It is also the case of the prosecution that the accused has

visited the house of the deceased three times after the said

quarrel and on each occasion, there used to be quarrels.

Therefore, accused feared that if the deceased creates any

scene and obstructs the marriage, it would create problems in

his future life and therefore, he had planned to kill her and

waiting for an appropriate occasion. On 8-6-2014, in the

morning, the accused informed the deceased that in the

evening they should go out and accordingly, at about 5.00

p.m. he went to the house of deceased and took her to

Malaluru Temple Chikkamagaluru and there when the issue of

marriage was raised, she again had picked up quarrel with the

accused threatening that she will consume poison. It was at

about 7.30 p.m., it was dark and it was deserted place and

CRL.A No. 2144 of 2016

therefore, accused picked up stone and hit on the back side of

the head of the deceased, as a result, she fell down. The

deceased was taken in the auto rickshaw and he took her to

the house of PW12 Vanitha and she on seeing that the

deceased was sitting on the floor of auto rickshaw, advised the

accused to take the deceased to the hospital and on the way to

the hospital deceased Saroja died and accused called the PWs-

5,6,7 and 11 i.e., Kiran Lokesh, Puttaswamy and Harish, to

help him to take the deceased to the hospital. Thereafter, the

accused took the deceased to the Government hospital at

Chikkamagaluru and met PW5,6 7 and 11 there. Then he went

inside the hospital and obtained OPD chit saying that the

deceased has consumed poison and when the hospital

authorities took the deceased on a wheelchair to the

emergency, the accused and PWs 5,6,7 and 11 escaped from

the spot. When the accused was preparing to escape from his

village, the police caught hold of the accused and thereafter, he

gave voluntary statement as per Ex.P26 and showed the place

where the deceased was taken and the place where she was

assaulted and produced the stone used by him and also shown

- 10 -

CRL.A No. 2144 of 2016

the auto rickshaw where the mobile phone of the deceased was

found.

9. In order to establish these aspects, prosecution

heavily relies upon the evidence of PW1-Abhishek, who is the

complainant and happens to be the son of the deceased. It also

relies on the evidence of PW10 Kamalamma, who is the mother

of the deceased and knew about the fact that the accused and

the deceased had gone together at 5.00 p.m. on the date of the

incident. It also relies on the evidence of PW4-Lohit, who is the

second son of the deceased who also knew about the

relationship between the accused and the deceased. The pivotal

witness of the prosecution happens to be the PW12-Vanitha @

Honnamma, the sister of the deceased who had seen the

accused and the deceased together when the accused has

brought the deceased in auto rickshaw after the assault and the

deceased was not in a position to speak.

10. In addition to the above witnesses, the other

circumstantial witnesses relied by the prosecution are: PW14-

Dr. L.V. Chandrakanth, who happens to be the Medical Officer

of the hospital and who prepared the OPD chit as per Ex.P18

- 11 -

CRL.A No. 2144 of 2016

and recorded the entries in the hospital register which is at

Ex.P19. It also relies on the evidence of the Medical Officer,

PW16-Dr.Shivadatha, who conducted the autopsy of the

deceased and gave a report as per Ex.P27. In addition to this,

one another witness who is of importance is, PW9-

Sheshegowda, who was the pancha at the time of seizure

mahazars which are at Exs.P9,10,11 and 12. PW2-Honnegowda

and PW8- Annegowda, are the panchas of inquest mahazar.

The four friends of the accused who had allegedly helped the

accused in admitting the deceased in the hospital are

examined as PW5-Kiran, PW6-Lokesh, PW7-Puttaswamy and

PW11-Harish. But unfortunately they have turned hostile to the

prosecution case and therefore, their evidence is not of any

relevance. Further, the PW3-Eregowda, happens to be the

brother of the deceased, who also speaks about the relationship

of the accused with the deceased.

11. Thus, the prosecution in order to prove the

circumstances to show that the accused had the illicit

relationship with the deceased, relies on the evidence of PW1-

Abhishek, PW3-Eregowda, PW4-Lohith, PW10- Kamalamma and

- 12 -

CRL.A No. 2144 of 2016

PW12-Vanitha @ Honnamma. These witnesses speak about the

fact that the accused and the deceased had developed illicit

relationship and despite advise by her mother, deceased had

continued such illicit relationship with the accused. The

prosecution also relies upon the recovery of the MO2- stone

which was allegedly used by the accused in assaulting the

deceased. It also relies on MO3 which is the Mobile phone of

the deceased and the mat in the auto rickshaw which is blood

stained and marked at MO4.

12. It is relevant to note that these recoveries coupled

with the evidence of PW12 who speaks about the last seen

theory, is relied heavily by the prosecution.

The Arguments:

13. Learned counsel appearing for the appellant/

accused has contended that the motive of illegal relationship

between the accused and the deceased and the deceased

threatening to commit the suicide if the accused marries

another lady is a weak motive. Moreover, the prosecution has

not established this aspect in proper way except from the

relatives of the deceased. He contends that the girl with whom

- 13 -

CRL.A No. 2144 of 2016

the accused proposed to marry has not been examined and

none of the independent witnesses speak about the fact that

the accused had prepared to marry another lady. Therefore,

the accused and the deceased were quarrelling on account of

accused preparing to marry another lady is not established and

moreover, this aspect cannot be called as sufficient motive.

The quarrels between deceased and accused are not proved

and therefore, the motive is not established by the prosecution.

14. The second prong of the argument by the learned

counsel for the accused is that, the recovery of the mobile

phone, auto rickshaw, blood stained mats etc., are not

established. He contends that though the mobile phone of the

deceased was found in the auto rickshaw, the call details

between the accused and the deceased are not established and

the best evidence to show the illicit relationship between the

accused and the deceased is not established by the

prosecution. The calls on the date of incident would have

thrown much light on the circumstantial evidence against the

accused and despite the mobile phone of the accused at MO1

and mobile phone of the deceased at MO3 have been recovered

- 14 -

CRL.A No. 2144 of 2016

by the Investigating officer, the call details were never

obtained.

15. The third aspect contended by the learned counsel

appearing for the appellant/accused is that, though the blood

stained mat was recovered by the investigating officer, the

blood group of the blood found on the auto rickshaw mat and

that of the accused are not matched. Therefore, it cannot be

said that the blood stains found on the stone at MO2 and auto

rickshaw mat at MO4 do not establish that the blood belonged

to the deceased.

16. The fourth aspect contended by the learned counsel

for the accused is that, PW4-Lohith and PW10-Kamalamma,

who are relied by the prosecution to say that they had seen the

accused and the deceased lastly are interested witnesses and

their evidence cannot be conclusive. He contends that the

evidence of PW-12-Vanitha @ Honnamma is suspicious and do

not inspire the confidence of the Court in view of the fact that,

she, despite finding that the deceased was not able to talk,

does not accompany her to the hospital. She also do not say

- 15 -

CRL.A No. 2144 of 2016

that, she had advised the PW1-Abhishek to go to the hospital

immediately. Moreover, the PW1-Abhishek, despite came to

know the fact that the deceased was taken to the hospital by

the accused in the night, does not go to the hospital, but only

visits on the next morning.

17. Fifthly, he contends that the cause of death as

mentioned in the PM report shows strangulation, but nowhere

any of the material used for strangulation is forthcoming. He

contends that the prosecution theory heavily relies on the

circumstantial evidence and the exact manner in which the

deceased had sustained injury is nowhere established by the

prosecution. He has also pointed out many discrepancies in the

evidence of the prosecution witnesses to show that their

evidence is not believable and it is full of contradictions. Thus,

he contends that the chain of circumstances is not fully

established by the prosecution and there are many loopholes

and such chain of circumstances do not conclusively establish

the involvement of the accused. He contends that the motive

has not been properly established by the prosecution and it is

only the presumptions and surmises which indicate to the

- 16 -

CRL.A No. 2144 of 2016

motive. It is not known how PWs- 1,4, 10 had come to know

about the fact that the accused was intending to marry another

lady and there used to be quarrels with the deceased.

According to the prosecution, the investigating officer came to

know about such quarrels only on the basis of the voluntary

statement of the accused. However, the complaint itself

mentions that there used to be quarrels between the accused

and the deceased and therefore, the evidence of PWs 1,4, 10

and 12 is not believable and all such quarrels and the accused

preparing to marry another lady was well known to them much

earlier. Therefore, it is contended that the discovery through

the accused is doubtful and the motive become unreliable.

18. Per contra, learned HCGP appearing for the State

contends that the PWs-1, 4, 10 and 12 knew about the nature

of the relationship between the accused and the deceased and

they also knew about the fact that the accused was preparing

to marry another lady and no fault can be found with such

knowledge. He contends that the deceased and PWs-1, 4, 10

and 12 had good relationship and PW10-Kamalamma was

advising the deceased not to have illicit relationship with the

- 17 -

CRL.A No. 2144 of 2016

accused and therefore, no fault can be found with the fact that

they knew about the marriage preparations made by the

accused. He contends that the evidence of PWs- 1,4 and 10

speaks about the fact that the accused had picked up deceased

at 5.00 p.m. in his auto rickshaw. He also points out that

PW12-Vanitha @ Honnamma had seen the deceased and the

accused together in auto while he brought the deceased to her

house before taking the deceased to the hospital. He contends

that the accused and the deceased were having illicit

relationship and friendship, which fact was known to the PW12

and therefore, her conduct in not accompanying the deceased

to the hospital cannot be found fault with. Similarly, he also

contend that the PW1-Abhishek knew about the fact that the

accused and the deceased had gone together and therefore, no

fault can be found with him for not visiting the hospital in the

night itself.

19. According to learned HCGP appearing for the State,

the prosecution has proved all the circumstances which

undoubtedly implicate the accused in the offence. He contends

that though the investigating officer had not matched the blood

- 18 -

CRL.A No. 2144 of 2016

stains on the stone and the auto rickshaw mat with that of

viscera collected from the body of the deceased, that does not

become fatal to the prosecution case in view of the other

evidence available on record. Therefore, he contends that the

prosecution had proved the guilt of the accused beyond

reasonable doubt and the Trial Court had rightly convicted the

accused for the offences charged against him.

Analysis and conclusions:

20. In the light of the above submissions made by the

learned counsel for the appellant/accused and the learned

HCGP appearing for the State, let us examine the findings

given by the Trial Court.

21. A perusal of the impugned judgment shows that the

Trial Court has come to the conclusion that the last seen theory

has been established by the prosecution. It has considered the

evidence led by the prosecution and ultimately, it holds in para

33 that the evidence of PW12 specifically shows that the

deceased was with the accused and the deceased was not in

talking condition and her head was down while she sat on the

floor of the auto rickshaw. Therefore, it comes to the conclusion

- 19 -

CRL.A No. 2144 of 2016

on the basis of the last seen theory that the accused has not

explained this and therefore, the prosecution has proved the

guilt. The specific findings regarding the motive and the specific

findings about the accused taking the deceased to the hospital

to admit her to the hospital under the guise of deceased

consuming poison are not found to be the necessary

circumstances by the Trial Court. It has not given any finding

as to whether there was a sufficient motive or not. It simply

refers to the evidence of the PWs 1,4 10 and 12 about the

motive and does not form any opinion in respect of their

credibility.

22. In the light of the above facts and circumstances of

the case, this Court has to examine and re-appreciate the

evidence on record.

23. The circumstances which are relied by the

prosecution in order to prove the guilt of the accused are to be

examined by this Court.

24. The first circumstance as contended by the

prosecution is that, the accused was trying to marry another

- 20 -

CRL.A No. 2144 of 2016

lady and therefore, there was a motive for the accused to kill

the deceased Saroja. In this regard, the prosecution relied on

the evidence of PWs 1,4,10 and 12 and their evidence disclose

that the accused might have killed the deceased Saroja by

assaulting her with a stone and strangulating her thinking that

the deceased Saroja may come in the way of the accused

marrying another lady. It is pertinent to note that, the

investigation do not show that except PWs 1, 4, 10 and 12,

none others had any knowledge of the fact that the accused is

trying to marry another lady. Therefore, this circumstance is

not supported by any fact which shows that there were efforts

for the marriage of the accused. Under these circumstances,

the contention that there was a motive for the accused to kill

the deceased is spoken by only the interested witnesses and

none else. It is also relevant to note that the investigating

officer could have ascertained this fact from examining the

parents of the accused or any other person who was

instrumental in settling the marriage of the accused with

another lady. Under these circumstances, the story of the

prosecution that the accused thinking that the deceased may

- 21 -

CRL.A No. 2144 of 2016

come in the way of his marriage and therefore, had a motive

to kill her appears to be remote and not established beyond

reasonable doubt.

25. The second circumstance that is put forth by the

prosecution is that, the accused had taken the deceased in his

auto rickshaw at about 5.00 p.m. and this was seen by the PW4

and PW10. The perusal of the evidence of PW1 discloses that,

he only returned to his house at about 7.30 p.m. and on

enquiry, he came to know that his mother had gone with the

accused. Therefore, he is a hearsay witness so far as the fact

that the accused had taken the deceased with him.

26. The perusal of the evidence of PW3-Eregowda,

discloses that he is the brother of the deceased and he also

came later to the house and he came to know by somebody

that the accused had taken the deceased with him in his auto

rickshaw.

27. The PW4-Lohith, happens to be the younger son of

the deceased and brother of PW1-Abhishek. He says that at

about 5.00 p.m. the deceased was putting on clothes and

- 22 -

CRL.A No. 2144 of 2016

therefore, on enquiring her, she replied that she is going for the

market and at that time, accused came there and they went

together in the auto rickshaw. Thereafter, the deceased did not

return even till about 8.30 p.m. and thereafter, the PW12

Vanitha @ Honnamma called over the phone and informed that

the accused brought the deceased to her house and the

deceased was not in a talking condition and she had advised

the accused to take her to the hospital. It is pertinent to note

that PWs-1, 3 and 4 had come to know that the deceased was

admitted to the hospital only in the morning. It is very

surprising to note that PWs-1,3 4 and 10 despite had come to

know of the fact that the deceased was ill, they did not bother

to go to the hospital during the night. Even the evidence of

PW1 in this regard is little intriguing and do not fit well.

28. The another aspect which is of importance is,

PW10-Kamalamma happens to be the mother of deceased

Saroja and she states that she is a resident of Halmidi which is

about of 4-5 kilometers away from Undadihalli, where the

deceased was staying and at about 8.30 p.m., the accused

came in the auto rickshaw and told that the deceased was not

- 23 -

CRL.A No. 2144 of 2016

well and asked the PW12 to admit the deceased to the hospital.

PW12-Vanitha @ Honnamma deposes that the deceased was

sitting at the place where floor mat was kept and her face was

looking down. She states that she advised the accused to take

the deceased to the hospital. Accordingly, accused took away

the deceased and thereafter, she informed the PW3-Eregowda

and the PW1-Abhishek. Later, on the next day morning, she

came to know that the accused had left the deceased in the

hospital saying that she had consumed the poison.

29. In the cross-examination, it is elicited that she was

in the shock when the accused had come to her house at about

8.00 p.m. She also states that one Sheshegowda was present

in the shop and he did not come near the auto rickshaw.

Learned counsel for the accused has tried to elicit as to with

whom the accused had talks for the marriage and she replied

that she do not know the same. This fact also goes to show

that the marriage proposal of the accused with another lady

appears to be only a prosecution story.

- 24 -

CRL.A No. 2144 of 2016

30. Under these circumstances, the evidence of PW4-

Lohith and PW10-Kamalamma alone show that the accused and

the deceased went away in the auto rickshaw of the accused at

about 5.00 p.m. However, the evidence of PW12 shows that at

about 8.00 p.m. the accused had come with the deceased and

the deceased was not in a position to talk and therefore, she

advised him to take the deceased to the hospital.

31. The Trial Court, based on the evidence of PWs 4,

10 and 12, came to the conclusion that the last seen theory

comes into play and the accused should have explained as to

how the deceased Saroja had died and what happened to her

after he had taken her to the market at about 5.30 p.m. The

Trial Court observes in para 33 as below:

"33. The mother and son of deceased Smt.Saroja, P.W.10 and 4 were present. They are last seen the deceased Smt.Saroja with accused who take her in the Autorickshaw, near Malaluru temple, after committing murder, accused took her near the house of P.W. 12, who is the sister of deceased asked to admit her to hospital. When P.W 12 saw the deceased, deceased was not in a speaking condition, she was sitting in the backseat of the Autorickshaw her head was down to

- 25 -

CRL.A No. 2144 of 2016

the leg. P.Ws.4, 10 and 12 specifically stated about the deceased was with the accused. He has committed murder of deceased Smt.Saroja on the ground that she might have obstructed to his marriage."

32. From the perusal of the evidence of PWs 4, 10 and

12, it is clear that PW12 had not seen the accused and the

deceased going together at about 5.00 p.m. It is also relevant

to note that PW4 and PW10 had not seen the accused taking

the deceased near Malaluru temple. It is also to be noted that

PW12 never stated that the accused had committed the murder

prior to the accused had brought the deceased to her house.

Therefore, it appears that the Trial Court has casually observed

and considered the evidence of PWs-1, 4, 10 and 12 and in

fact, PW10 had never seen the deceased and the accused at

5.00 p.m. Therefore, the observations of the Trial Court to

come to the conclusion that PWs-4, 10 and 12 had seen the

deceased at 5.00 p.m. is factually incorrect.

33. Another aspect about the deficiencies in the last

seen theory of the prosecution is that, PWs-1, 4, 10 and 12 had

come to know on the next morning that the accused had left

- 26 -

CRL.A No. 2144 of 2016

the deceased in the hospital by saying that she had consumed

poison. Curiously, none of these witnesses say as to from

whom they came to know about this fact. No-doubt, PW1 could

have known the said fact only when he went to the hospital but

not earlier to it. Nowhere these witnesses say from whom they

came to know that the deceased was in the Government

hospital Chikkamagaluru. They never disclose the names from

whom they came to know this fact. Thus, the evidence of PWs-

4,10 and 12 disclose that they had only seen the deceased at

5.00 p.m. and about 10.00 p.m. PWs 1 and 3 are the hearsay

witnesses about the said fact and therefore their evidence has

no relevance in this regard.

34. The third circumstance contended by the

prosecution is that, the accused has led the investigation officer

to discover the mobile phone of the deceased from the auto

rickshaw, which also had a blood stained mat in it. The

prosecution also contends that the accused had led to the place

where he had assaulted the deceased near Malaluramma

temple and showed the blood stained stone, which was

recovered and marked at MO2. It is to be noted that PW9-

- 27 -

CRL.A No. 2144 of 2016

Sheshegowda is the pancha of the said panchanama.

According to prosecution, the accused had given the voluntary

statement and had led the investigating officer to the places

and the investigating officer could discover these materials

objects.

35. It is pertinent to note at this juncture that,

according to the prosecution, the accused gave a voluntary

statement and then led the investigating officer to the place

from where she picked up the deceased i.e. in front of the

house of the deceased and the PWs.1, 3, 4 and 10. Since this

fact was already known to the IO, it cannot be said to be a

discovery of a new fact. Thereafter, the accused led the

investigating officer and the PW9 and other panchas to the

place where he had committed the assault on the deceased

with stone. Even this place of the incident though not known to

the investigating officer, a stone was recovered from the said

spot which is stated to be blood stained. Except the fact that it

contains blood stains as per the FSL report, it is not known

whether it belonged to the blood of the deceased Saroja. The

matching of the blood of the deceased Saroja and the blood on

- 28 -

CRL.A No. 2144 of 2016

the stone has not been established. It is also relevant to note

that the assault was not witnessed by any of the witnesses and

therefore, the link between the stone at MO2 and the blood of

the deceased Saroja has to be matched conclusively and then

only the recovery of MO2 can be said to be at the instance of

the accused and it relates to the death of the deceased Saroja.

36. The prosecution contends that thereafter, the

accused led the IO and the panchas to the house of one

Ganganna, where he showed the auto rickshaw which

contained the mobile phone of the deceased as well as blood

stained mat.

37. Sofar as the blood stained mat is concerned, the

blood on the said mat is not matched with the blood of the

deceased. It is not known why the IO had collected the blood

of the deceased at the time of the post mortem. When the

blood was available, it could have been easily matched and

established that they belong to the same person. It is also

pertinent to note that allegedly the mobile phone of the

deceased was found in the auto rickshaw which was used by

- 29 -

CRL.A No. 2144 of 2016

the accused. None of the prosecution witnesses have identified

that the said mobile phone belongs to the deceased. Though

the prosecution has examined the PWs-1, 3 4 10 and 12, who

were acquainted with the deceased, none of these witnesses

were shown the MO3 and got it identified by them. In addition

to it, the investigating officer had also not shown this MO3 to

any of the witnesses for identification. Further, in order to

establish that there were phone calls between the accused and

the deceased, the call details would have played a vital role.

The call details between the mobile phone of the accused

which is at MO1 and mobile phone of the deceased which is at

MO3 could have been placed before the Court to establish that

they had phone calls between them very frequently. Under

these circumstances, though it appears some recoveries were

made, those recoveries cannot be related to the deceased in a

conclusive manner. Hence, the chain of circumstances so far

as the recovery of blood stained stone, blood stained mat and

the mobile phones in the said auto rickshaw are not

conclusively linked to the deceased Saroja.

- 30 -

CRL.A No. 2144 of 2016

38. The fourth circumstance put forth by the

prosecution is that, deceased was seen by PW12-Vanitha @

Honnamma, when she was brought in the auto rickshaw of the

accused at about 8-30 p.m. Admittedly, the prosecution

contends that the deceased was injured at that time. The

evidence of PW12 shows that one Sheshegowda was also there

and he did not come near the auto rickshaw. In other words,

PW12 had gone near the auto rickshaw and found that the

deceased was sitting at the place where foot rest was there and

her face was looking down. It is surprising that she did not

notice the blood stains or the wounds on the back of the head

of the deceased. In addition to it, she advised the accused to

take the deceased to the hospital. The prosecution contention

is that accused asked the PW12 to take the deceased into her

house and treat her, but the PW12 had refused and advised

the accused to take the deceased to the hospital. This conduct

on the part of the PW12 appears to be strange and surprising.

Any prudent woman could not have refused to take her elder

sister for a treatment. According to PW12, she simply informed

the same to the PW3-Eregowda, over the mobile phone. But

- 31 -

CRL.A No. 2144 of 2016

even PWs-1, 3 and 4 did not make any search for the

deceased in the night. Though there is a feeble attempt made

by the prosecution to say that the PW1-Abhishek, had tried to

search for the accused in the night, he says that he came to

know that the deceased was in hospital and accused had left

her saying that she had consumed poison in the morning. As

noted supra, the source of such information has not been

disclosed by PWs-1, 3, 4 and 10. Therefore, the fact that the

PW12 had seen the deceased with the accused and that the

accused had brought the deceased in his auto rickshaw do not

gel well and this circumstance is not conclusive to establish the

last seen theory.

39. The fifth circumstance as contended by the

prosecution is that, accused took deceased in his auto rickshaw

to the government hospital at Chikkamagaluru and he also

called his friends i.e., PWs- 5,6,7 and 11 and with their help, by

preparing a OPD chit saying that the deceased had consumed

poison, left the deceased in the hospital and went away. As

noted above, PWs- 5,6,7 and 11 have turned hostile to the

prosecution. The PW14- Dr. L.V.Chandrakanth, was the

- 32 -

CRL.A No. 2144 of 2016

Medical Officer in the hospital who first saw the deceased in the

hospital. He says that OPD chit was prepared by a person and

deceased was left in the hospital. The copy of the said OPD chit

is produced at Ex.P18. A perusal of Ex.P18 shows that the

deceased Saroja was alleged to have consumed poison and

therefore, she was brought to the hospital. The name of the

guardian is shown as Lokesh. If we assume that, the said

Lokesh is PW6, he has not stated that he got prepared OPD

chit. On the other hand, the case of the prosecution is that,

one Harish, i.e. PW11 who had got prepared the OPD chit.

There is also inconclusive material on record to show that who

had got prepared the OPD chit which is at Ex.P18. The evidence

in this regard is not conclusive. Under these circumstances,

the circumstance that the accused had taken the deceased to

the hospital and under the guise of she had consumed poison,

he left the body of the deceased in the hospital and that he had

taken the help of PWs- 5, 6,7 and 11 is not established

conclusively.

40. The sixth circumstance as contended by the

prosecution is, the conduct of the accused after the incident.

- 33 -

CRL.A No. 2144 of 2016

It is not the case of the prosecution that accused had

absconded after the commission of offence. Accused was found

immediately on the next day of registration of the FIR and he

was arrested by the investigating officer. It is not the case of

the prosecution that accused tried to hide his mobile phone or

auto rickshaw or wipe out the blood stains on the mat of the

auto rickshaw. He had not tried to destroy the mobile phone

of the deceased also. It is very surprising that if the accused

had the intention of committing the murder of deceased Saroja,

he would not have left her mobile phone in the auto rickshaw

itself. Therefore, this circumstance that the accused had shown

the mobile phone of the deceased in his auto rickshaw is not

convincing.

41. There are few more aspects which are not

explained by the prosecution. It is pertinent to note that PW1-

Abhishek, says that the deceased was hit by some weapon and

she was killed by the accused. It is not known how the PW1

had come to know that the deceased was hit with a weapon.

Surprisingly, the PW12 do not say that when she saw the

deceased in the auto rickshaw, the deceased had any injuries

- 34 -

CRL.A No. 2144 of 2016

on her head. According to the PW1, the blouse and saree of

the deceased were soaked with blood. If that is so, the

evidence of the PW12 do not show that there was bleeding

injuries on the head of the deceased when she saw her. This

circumstance is also not explained by the prosecution in a

proper way.

42. Another aspect is that, PW10 says that the

deceased was wearing a white saree and green blouse when

she left the house at about 5.00 p.m. However, the inquest

mahazar produced at Ex.P2 discloses that the deceased was

wearing a yellow saree and a red blouse. Therefore, the

evidence of PW10 also suffer a jolt in this regard. It is to be

noted that PW10 do not state that she do not remember the

colour of the saree of the deceased when she left the house.

She firmly says that, the deceased was wearing a white saree

and green blouse. Therefore, the evidence of PW10 appears to

be exaggerated and it is not natural. Similarly, the conduct of

PW12 is also not natural and it do not inspire the confidence of

the Court.

- 35 -

CRL.A No. 2144 of 2016

43. The Trial Court, in its judgment, though mentions

that the prosecution is depending on the circumstantial

evidence, it do not go into the depth of the circumstances and

says anything about the chain of the circumstances which

conclusively establish the involvement of the accused.

44. From paras 10 to 23 the Trial Court narrates the

evidence adduced by the prosecution witnesses. Thereafter, the

Trial Court narrates the investigation done by the Investigating

Officer from Para 24 and 25. In para 26, the trial court

mentions about the defence taken up by the accused and

thereafter, it starts analyzing the evidence. It also considers

few of the decisions relied by the defence regarding the

circumstantial evidence and concerning the last seen theory.

It considers the decision in the case of Krishna @ @

Ramaswamy and others Vs. State of Tamil Nadu1. Then in

para 33, as reproduced supra, it comes to the conclusion that

the prosecution has proved the guilt of the accused. Thus, it is

evident that the circumstances which conclusively point out

that the accused alone could have committed the offences and

2014 SAR (Crl) 873

- 36 -

CRL.A No. 2144 of 2016

none else could have committed the murder of deceased Saroja

has not been considered by the Trial Court. Therefore, we are

unable to accept the conclusions reached by the Trial Court that

the accused alone could have committed the murder of the

deceased. The circumstances discussed supra clearly indicate

that the prosecution had failed to establish the guilt of the

accused beyond all reasonable doubt.

45. The circumstantial evidence should be conclusive

and the decision of the Apex Court in the case of Kusuma

Ankama Rao Vs. State of Andhar Pradesh2 is relevant in this

regard. In the said decision, the conditions precedent to convict an

accused on the basis of the circumstantial evidence have been culled

out. It was observed by the Apex Court as below:-

"The conditions precedent before conviction could be based on circumstantial evidence are:

(1) the circumstances from which conclusion of guilt is to be drawn should be fully established. The circumstances concerned must or should and not may be established

(2) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to

AIR 2008 SC 2819

- 37 -

CRL.A No. 2144 of 2016

say, they should not be explainable on any other hypothesis except that the accused is guilty.

(3) the circumstances should be of a conclusive nature and tendency.

(4) they should exclude every possible hypothesis except the one to be proved and

(5) there must be a chain of evidence so complete as not be leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused."

46. Further, the decision rendered in the case of Rajiv

Singh Vs. State of Bihar and Another3 also is relevant to mention

here. In the said decision, it is held as below:

"C. Evidence - Appreciation of Evidence - it is well entrenched principle of criminal jurisprudence that a charge can be said to be proved only when there is certain and explicit evidence to warrant legal conviction and that no person can be held guilt on clear moral conviction. It was held that howsoever grave the alleged offence may be, otherwise stirring the conscience of any court, suspicion alone cannot take the place of legal proof. The well established cannot of criminal justice is "fouler the crime higher the proof".

D. Evidence- Appreciation of evidence suspicion, howsoever grave cannot take the place of proof and the prosecution case to succeed has to be in the category of "must be" and not "may be" A distance to be covered by way of clear, cogent and unimpeachable evidence to rule

2016 SAR (Criminal) 474

- 38 -

CRL.A No. 2144 of 2016

out any possibility of wrongful conviction of the accused and resultant miscarriage of justice- For this, the court has to essentially undertake an exhaustive and analytical appraisal of the evidence on record and register findings as warranted by the same.

E. Evidence-Circumstantial evidence - Basing conviction thereon-Circumstantial evidence if is to form the basis of conviction must be such so as to rule out every possible hypothesis of innocence of the accused and must without any element of doubt unerringly point to such culpability".

47. In view of the discussion made above, we come to

the conclusion that the prosecution had failed to prove the guilt

of the accused by establishing the chain of the circumstances in

a conclusive manner and the accused is entitled for the benefit

of doubt and it is relevant to note that the accused is in judicial

custody for more than 08 years. Consequently, in view of the

discussion made supra and under the facts and circumstances

of the case, the appeal deserves to be allowed. Hence, we pass

the following: