Karnataka High Court

The State Of Karnataka vs Sri Poojari Nagarajappa on 11 July, 2023

Bench: Sreenivas Harish Basavaraja, Gbj

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                                                  NC: 2023:KHC:23972-DB
                                                      CRL.A No. 970 of 2017




                   IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                          DATED THIS THE 11TH DAY OF JULY, 2023

                                         PRESENT

                  THE HON'BLE MR. JUSTICE SREENIVAS HARISH KUMAR
                                           AND
                          THE HON'BLE MR. JUSTICE G. BASAVARAJA

                            CRIMINAL APPEAL NO. 970 OF 2017

                 BETWEEN:

                 THE STATE OF KARNATAKA
                 BY HADADI POLICE STATION,
                 DAVANAGERE.
                 REPRESENTED BY STATE PUBLIC PROSECUTOR,
                 HIGH COURT BUILDING,
                 BENGALURU-01.                           ...APPELLANT

                 (BY SMT. RASHMI JADHAV, HCGP)

                 AND:

                 1.     SRI POOJARI NAGARAJAPPA,
Digitally
signed by               S/O.HANUMANTHAPPA,
HARSHITHA B             AGED:44 YEARS,
Location: High          HAMALI WORK IN N.M.KADEKOPPA RICE MILL,
Court of
Karnataka               R/O:PAMENAHALLI VILLAGE,
                        DAVANAGERE TALUK-577001.

                 2.     SMT. RENUKAMMA
                        W/O.LATE THIPPESWAMY,
                        AGED ABOUT 34 YEARS,
                        COOLIE AND HOUSE HOLD WORK,
                        R/O:PAMENAHALLI VILLAGE,
                        DAVANAGERE TALUK-577001.           ...RESPONDENTS

                 (BY SRI. HAREESH BHANDARY.T., ADVOCATE FOR R1;
                     SMT. HALEEMA AMEEN, ADVOCATE FOR R2)
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                                    NC: 2023:KHC:23972-DB
                                        CRL.A No. 970 of 2017




     THIS CRIMINAL APPEAL IS FILED UNDER SECTIONS
378(1) AND (3) OF CR.P.C PRAYING TO GRANT LEAVE TO
APPEAL AGAINST THE JUDGEMENT AND ORDER OF ACQUITTAL
DATED 21.01.2016 PASSED IN S.C.NO.130/2013 BY THE
LEARNED II ADDITIONAL DISTRICT AND SESSIONS JUDGE,
DAVANAGERE FOR THE OFFENCES PUNISHABLE UNDER
SECTIONS 302, 201, 120B R/W SECTION 34 OF IPC., ETC.

     THIS CRIMINAL APPEAL HAVING BEEN HEARD AND
RESERVED    ON    22.06.2023,   COMING     ON FOR
'PRONOUNCEMENT     OF     JUDGMENT',    THIS  DAY,
G. BASAVARAJA J., DELIVERED THE FOLLOWING:


                        JUDGMENT

This appeal is filed by the State challenging the

judgment passed in S.C.No.130/2013 dated 21.01.2016

on the file of the 2nd Additional District and Sessions

Judge, Davanagere. The respondents were charge sheeted

for the offences punishable under Sections 302, 201 and

120(B) R/w Section 34 of IPC.

2. The factual summary of the prosecution case is

that the accused No.1 maintained an extramarital

relationship with accused No.2-Renukamma, the wife of

the deceased Thippeswamy, who had expressed his

objections to this illicit relationship. Consequently, accused

No.1 and accused No.2 conspired and formed a common

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intention to commit the murder of Thippeswamy. On the

4th of June 2013, around 6:30 pm, accused No.1

deliberately summoned Thippeswamy to the vicinity of Sri.

Shaila Petrol Bunk, located on Lokikere Road, by making

a telephone call. Upon Thippeswamy's arrival, accused

No.1 transported him on his motor cycle bearing the

registration number KA-05/EQ-9910 to a parcel of land

belonging to Thimmappa in Pamenahalli village,

specifically identified as Sy.No.53/1. Around 8:00 pm at

the aforementioned location, accused No.1 engaged in a

quarrel with Thippeswamy, physically assaulted him

causing him to collapse. Subsequently, accused No.1

proceeded to apply pressure on Thippeswamy's neck,

resulting in his strangulation and immediate demise. In

order to conceal the offence and eliminate any

incriminating evidence, accused Nos.1 and 2 jointly

dragged Thippeswamy's lifeless body into a nearby canal,

subsequently camouflaging it by covering it with mud. The

motive behind the murder was the conspiracy between

accused No.1 and accused No.2 with the objective of

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committing the murder of Thippeswamy. Consequently,

the investigating officer duly filed a charge sheet against

the accused individuals, charging them with the

aforementioned offences.

3. To prove the case of the prosecution 24 witnesses

were examined as PWs.1 to 24 and got 37 documents

marked as Exs.P.1 to 37 and 7 material objects were

marked as Mos.1 to 7.

4. Upon the completion of the prosecution case, the

accused persons denied the prosecution side evidence

during their statement under Section 313 of Cr.PC,

wherein the accused persons were apprised of the

incriminating circumstances put against them. In

response, the accused persons vehemently repudiated the

prosecution evidence. However, the accused opted not to

exercise their right to introduce any defence evidence in

support of their contentions.

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SUBMISSIONS ON BEHALF OF STATE:

5. Smt. Rashmi Jadhav, the learned HCGP, has

submitted her arguments challenging the legality and

soundness of the impugned judgment of acquittal

pronounced by the Sessions Judge. She contends that the

trial court's appreciation of the entire evidence is with

conjectures and speculations. In a manner inconsistent

with the best evidence rule, the trial court failed to duly

consider the evidence in conjunction with the available

material on record, as well as the contextual

circumstances and testimonies of witnesses. It was

forcefully submitted that, despite circumstances and

statements of witnesses exist in their right perspective,

the trial court has wrongly held that the prosecution failed

to bring home the guilt of the accused. The guilt of the

accused has been established satisfactorily for the offence

charged against them.

5.1 The court erred by wrongly comparing the

testimony of PW7, who provided crucial details regarding

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the last seen circumstance of the deceased riding as a

pillion on the motorcycle ridden by accused No.1 and later

identified the said motorcycle, with the testimony of

PW23, who turned hostile in this matter. The court's

disregard of the testimonies of PW3 and PW15 concerning

the illicit relationship between accused Nos.1 and 2, as

well as the recovery of the deceased's mobile phone based

on information provided by accused No.2, is noted. The

court failed to consider accused No.2's conduct in not

reporting her husband's disappearance until his body was

found. Additionally, the court overlooked the

inconsistencies in accused No.2's statement about how she

learned about her husband's death. The court's inadequate

evaluation of the evidence relating to the seizure of the

mobile phone and call detail records, and its failure to

recognize the importance of circumstantial evidence.

5.2 Further, it is submitted that the trial court has

not considered the absence of any explanation by accused

No.1 about injuries found on him when examined by PW12

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doctor. That the totality of the circumstances besides

material and evidence adduced by the prosecution has

proved the guilt of the accused beyond all reasonable

doubt. On all these grounds, she has sought for allowing

this appeal.

SUBMISSIONS ON BEHALF OF APPELLANT COUNSEL:

6. On the contrary, the learned counsel

representing the respondents/accused has presented his

argument asserting that the trial court meticulously

evaluated the evidence on record in accordance with the

applicable legal principles and factual circumstances.

Accordingly, he contends that there are no valid grounds

warranting interference with the impugned judgment of

acquittal rendered by the trial court. In light of these

submissions, the counsel seeks the dismissal of the appeal

on all aforementioned grounds.

7. On hearing the arguments on both sides and on

perusal of records the following points would arise for our

consideration:

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1) Whether the prosecution has made out grounds to interfere with impugned judgment or order of acquittal?

2) What order?

8. Our answers to the above points are as follows:

Point No.1: Negative Point No.2: As per final order

REASONS

9. One of the most relevant legal maxims in the

context of circumstantial evidence is "circumstantia testis

unus, non sufficit" (a single circumstance does not suffice

as a witness). This maxim highlights the principle that, in

cases relying on circumstantial evidence, it is insufficient

to establish guilt based on isolated or individual

circumstances. Instead, the prosecution must establish a

series of interconnected circumstances that, when

considered together, lead to a reasonable inference of

guilt. The prosecution in this case relies on circumstantial

evidence to establish its case. It is well-established that in

cases based on circumstantial evidence, the crucial

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question to be determined is whether the circumstances

presented by the prosecution are substantiated by reliable

and compelling evidence, and whether all the elements of

the chain of circumstances are sufficiently established to

exclude the possibility of the accused's innocence.

10. On 04.06.2013 accused No.1 took the

deceased, Thippeswamy, on his motorcycle bearing

Registration No. KA-05/EQ-9910 to a specific piece of land

belonging to Thimmappa of Pamenahalli, Sy.No.53/1. It

was at around 8:00 pm., on the same day that accused

No.1 allegedly committed the murder of Thippeswamy.

The prosecution seeks to establish this fact primarily

through the testimony of PW7 Mallika, who is the brother-

in-law of the deceased. During the examination-in-chief,

PW7 Mallika deposed that on 04.06.2013, around 6:45

pm, he saw accused No.1 being with Thippeswamy on a

motorcycle. Upon seeing them, PW7 inquired about

their destination, to which Thippeswamy allegedly

responded that they were heading towards the

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village. Subsequently, on 08.06.2013, it came to the

knowledge of PW7 Mallika that Thippeswamy's lifeless

body had been discovered in Thimmanna's land. However,

during cross-examination, it was explicitly mentioned by

PW7 Mallika that no missing complaint had been filed

regarding Thippeswamy's disappearance. The prosecution

places significant reliance on the testimony of PW7 Mallika

to establish the presence of accused No.1 with the

deceased and their subsequent journey to the specific land

where the murder allegedly occurred. However, it is

important to thoroughly evaluate the credibility and

consistency of this witness's statement in order to

ascertain its reliability. Furthermore, the absence of a

missing person complaint filed by PW7 Mallika raises

questions regarding his actions and the level of concern

expressed for the deceased's well-being. These aspects

warrant careful consideration during the trial proceedings.

10.1. It is noteworthy that PW16 Manjunatha and

PW23 Manjappa, who are considered as having seen the

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deceased for the last time, have failed to support the case

of the prosecution. During cross-examination conducted by

the public prosecutor, they have out rightly denied the

contents of the statements recorded by the Investigating

Officer under Section.161 of the Code of Criminal

Procedure (Cr.PC), which are marked as Exs.P9 and 34. As

a result, these witnesses have been treated as hostile by

the prosecution. Furthermore, it is noteworthy that

although PW7 claims to have witnessed the presence of

the deceased, Thippeswamy, along with accused No.1 on

04.06.2013, he did not disclose this information to anyone

until 08.06.2013. It was only on 08.06.2013 that the

police recorded his statement. The fact that the PW16 and

PW23 have denied the recorded statements and the delay

in disclosing the witnessed incident raise questions

regarding the reliability and credibility of their testimonies.

These inconsistencies and discrepancies in their

statements necessitate a thorough examination and

evaluation during the trial proceedings. The case of the

prosecution heavily relies on the testimonies of witnesses,

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and any inconsistencies or contradictions in their

statements can have a significant impact on the overall

credibility of the prosecution's case. Now it is essential for

the court to carefully scrutinize the evidence presented,

including the statements of witnesses, in order to arrive at

a just and fair determination of the guilt or innocence of

the accused.

10.2. The lack of specific information regarding the

basis on which PW22 N.R. Mahantha Reddy recorded the

statement of PW7 Mallika raises concerns. In his evidence,

PW22 has not provided any clarification or justification for

relying solely on the testimony of PW7. Moreover, the

testimonies of PWs.16 and 23, namely Manjunatha and

Manjappa, respectively, do not corroborate the evidence

presented by PW7. This absence of corroboration from

other witnesses casts doubt on the credibility and

reliability of PW7's account.

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10.3 The court must exercise caution when relying

solely on the testimony of a single witness, particularly

when that witness has a personal interest in the case. In

order to establish the claim that PW7 is the sole last seen

witness of the deceased Thippeswamy, additional

corroborating evidence and testimony from independent

witnesses are necessary. The absence of such

corroboration and the potential biases associated with the

witness's personal interest must be carefully considered.

Only through a thorough evaluation of the evidence can a

fair and just determination be made regarding the

credibility and reliability of the prosecution's case.

Therefore, it cannot be concluded that PW7 is the sole last

seen witness of the deceased Thippeswamy based solely

on their interested testimony.

11. The prosecution has put forth the argument

that accused Nos.1 and 2 were engaged in an illicit

relationship and conspired to murder Thippeswamy, with

accused No.1 carrying out the act as directed by accused

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No.2. In support of this claim, the prosecution has

presented the testimonies of PW3 Thirumalamma, the

mother of the deceased, and PW15 Rathnamma, the sister

of accused No.2. These witnesses have provided their

statements to substantiate the alleged illicit relationship

and the involvement of accused Nos.1 and 2 in the

planning and execution of the murder. Their testimonies

play a crucial role in establishing the prosecution's case

and providing evidence against the accused individuals.

11.1. PW3-Tirumalamma has stated in her cross

examination that deceased and accused No.2 were leading

happy marital life and there was no illicit relationship

between accused Nos.1 and 2.

11.2. In the cross-examination, PW15 Rathnamma,

the elder sister of accused No.2, stated that she herself

was not aware of any illicit relationship between Poojari

Nagarajappa and her sister Renukamma. However, she did

acknowledge that there were rumours circulating within

the village regarding the alleged relationship between

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accused Nos.1 and 2. Based on this testimony, it can be

argued that the evidence provided by PW3 and PW15 is

not sufficient to conclusively establish the existence of an

illicit relationship between accused Nos.1 and 2 prior to

the alleged incident. The absence of primary knowledge

from PW15 raises doubts about the veracity of the claims

made by the prosecution in this regard.

12. The prosecution contends that based on the

voluntary statements of accused Nos.1 and 2, as

evidenced by Exs.P.29, 30, and 32, the Investigating

Officer (IO) recovered several material objects (MOs)

numbered 1 to 5 and 7. The recovery of these items was

conducted mahazars in the presence of panchas and is

documented. The seizure panchanama, Ex.P.4, was

purportedly carried out on 09.06.2013 in the presence of

panchas Karibasappa and Hanumanthappa, who are

identified as PWs.5 and 6. However, it is worth noting that

another witness, Hanumanthappa, has not been examined

by the prosecution.

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13. PW5 has provided his testimony, stating that on

09.06.2013, he accompanied another witness named

Hanumantappa and accused Nagaraja to a land located

approximately 2 kilometers away from Pamenahalli.

During this visit, accused No.1 allegedly showed them the

chappal belonging to the deceased Thippeswamy, which

was subsequently seized by the police in PW5's presence,

as documented in Mahazar Ex.P.4. Additionally, the police

took a photograph, marked as Ex.P.5, to document this

event.

14. PW22 N.R.Mahantha Reddy has deposed in his

evidence that he has conducted mahazar as per Ex.P.4 in

presence of panchas and taken photo Ex.P.5 and he has

inserted the seized chappal in PF.No.46/2013.

15. Upon examination of PF No. 46/2013, it is

evident that the Investigating Officer (IO) presented the

property form along with Mahazar Ex.P.4 before the court

on 11.06.2013. The Magistrate has endorsed on both the

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property form and the Mahazar, acknowledging their

receipt on the same day. It is worth noting that although

the IO seized the chappals (MO No.4) on 09.06.2013,

there is no explanation provided by PW22 regarding the

delay in submitting the property form with seizure

Mahazar Ex.P.4 to the concerned Magistrate.

Consequently, this delay raises reasonable doubts

regarding the seizure of MO No.4 under Ex.P.4.

16. According to the case of the prosecution that on

13.06.2013, IO has seized one mobile hand set CELKON

company color hand set, Model No.C66IMEI

No.911141902496124 which was having 2 SIM cards at

the instance of the accused in presence of pancha

Hanumanthappa who is examined as PW6 and another

witness Chandra not examined before the court.

17. According to the testimony of PW6, on

13.06.2013, the police, accompanied by accused No.1 and

another witness Chandra, proceeded with accused No.1.

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During this time, accused No.1 presented a mobile phone

that belonged to the deceased Thippeswamy. The

Investigating Officer (IO) subsequently seized the mobile

phone under Mahazar Ex.P.6 and took a photograph as

documented in Ex.P.7.

18. PW22, N.R. Mahantha Reddy, has deposed

regarding the seizure of the mentioned Mahazar at the

instance of accused No.1 in the presence of the panchas,

as documented in Ex.P.6. He has also testified about the

photograph recorded as Ex.P.7. Additionally, he stated

that he obtained call details, as per Ex.P.31, which

revealed conversations between accused Nos.1 and 2. It is

worth noting that although the IO seized the mobile MO5

on 13.06.2013 and included it in PF No.49/2013, it was

submitted to the court on 14.06.2013. However, the IO

did not provide an explanation for the delay in filing this PF

to the court.

19. It is evident that the IO has not made any

effort to collect material evidence establishing that the SIM

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card and mobile phone belong to accused Nos.1 and 2. In

cases where call record details are collected, it is essential

to also gather relevant materials such as the application

form for obtaining the SIM card and other supporting

documents provided to the service providers. However,

the IO has failed to do so, and no explanation has been

provided for the non-production of these crucial pieces of

evidence. Furthermore, the call detail records presented as

Ex.P.31 lack the necessary certification under Section

65(4)(B) of the Indian Evidence Act, 1872. As a result, this

alleged call detail record, Ex.P.31, presented by the

prosecution is inadmissible as evidence. Consequently, the

prosecution has not successfully proved that the alleged

seizure of MO5 mobile belongs to the accused and that the

IO seized it at the behest of the accused under the

mahazar Ex.P.6 in the presence of the panchas.

20. The prosecution contends that the investigating

officer (IO) conducted the seizure of the motorbike under

mahazar Ex.P8 on 09.06.2013, in the presence of panchas

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P.Rajappa and P.Basavaraja, who were cited as witnesses

supporting this action. However, it is noteworthy that

PW9, one of the aforementioned witnesses, did not provide

corroborative testimony in favor of the prosecution's case.

Conversely, PW22 N.R.Mahantha Reddy, the IO, furnished

evidence in his deposition affirming the seizure of the

motorbike under mahazar Ex.P.8 and its subsequent

inclusion in PF No.47/2013. Nevertheless, a significant

concern arises as the IO failed to explicate the delay in

promptly submitting the seizure report to the court, given

that the motorbike was seized on 09.06.2013, while the

report was presented to the court only on 11.06.2013.

This procedural discrepancy raises questions about the

IO's adherence to the mandatory provisions stipulated

under Section 102 of the Code of Criminal Procedure

(Cr.P.C.) regarding the timely submission of seizure

reports.

21. the prosecution asserts that the investigating

officer (IO) seized a broken Vodafone SIM card in a

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manure pit belonging to Manjappa in Belagere village on

14.06.2013. The seizure was purportedly conducted in the

presence of panchas Anjanappa and Thimmanna under

mahazar ExP.9, with Anjanappa providing testimony as

PW10. However, it is noteworthy that Thimmanna has not

been examined in this court. During Anjanappa's

examination-in-chief, he testified regarding the seizure of

MO7 under mahazar Ex.P9 and the accompanying

photograph Ex.P.10. Yet, in the course of cross-

examination, Anjanappa admitted that he was unaware of

the reason behind the police's visit to the spot and had no

knowledge of the content of ExP.9. Moreover, he

specifically stated that the manure pit did not appear in

the photograph Ex.P.10. It is crucial to note that although

the IO seized MO7 on 14.06.2013, the seizure report,

along with PF No.50/2013, was submitted to the court on

17.06.2013, resulting in a three-day delay. This delay in

adhering to the provisions of Section 102 of the Code of

Criminal Procedure (Cr.P.C.) casts doubt on the IO's

conduct and raises questions about the seizure of MO7 at

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the instance of accused No.2 in the presence of panchas

under mahazar Ex.P.9.

22. It is the case of the prosecution that after the

arrest of the accused No.1, during the course of

investigation he has noticed that prior to the murder of

deceased Thippeswamy, quarrel took place between

accused No.1 and Thippeswamy and in that quarrel

accused No.1 has sustained injuries as shown in Ex.P.15-

wound certificate. Ex.P.15 is issued by Dr.D.N.Manjunath,

who is examined before the court as PW12. That on

09.06.2013, Poojari Nagarajappa came along with PC-105

with a history of assault on 04.06.2013 and on

examination he has found the following injuries.

• Old Black colored scab present over left knee. • No other external injuries seen.

• Age of the above said injury is between 4-7 days. • The said injury No.1 is simple in nature.

23. Accordingly, PW12 has deposed the same in his

evidence. PW12 has not deposed anything as to the name

of the assailant who has assaulted to accused No.1.

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Accused No.1 has also not disclosed the name of the

accused who has assaulted to him on 04.06.2013.

Therefore, on the basis of this evidence of PW12 and

Ex.P.15 it is difficult to come to the conclusion that the

quarrel took place between accused No.1 and the

deceased Thippeswamy on 04.06.2013, and in that

quarrel, accused No.1 has sustained injuries as shown in

Ex.P.15.

24. During the cross-examination of PW22, it was

unequivocally admitted that no documents were presented

before the court to establish the ownership of the seized

mobile phone and SIM cards belonging to either the

deceased Thippeswamy or the accused No.2. Additionally,

PW22 acknowledged the absence of any documents

demonstrating the connection between the mobile phone

and SIM card and accused No.2. The investigating officer

(IO) failed to provide any explanation regarding the

collection or submission of material evidence, such as the

SIM card and mobile phone allegedly seized at the

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instance of the accused. The lack of supporting documents

and the IO's failure to explain these crucial aspects raise

suspicion about the version of prosecution and the

reliability of the seized items.

25. In the reported judgement of the Supreme

Court in Criminal Appeal Nos. 410-411 OF 2015 between

Ravi Sharma and State (Government of NCT of Delhi)

and Anr., the supreme court has extensively discussed the

scope of powers of appellate court u/s.378 of Cr.PC. In

para No.8 of the above cited judgment is as under:

Para.No.8 :

" Before venturing into the merits of the case, we would like to reiterate the scope of Section 378 of the Code of Criminal Procedure (for short 'Cr.P.C.') while deciding an appeal by the High Court, as the position of law is rather settled. We would like to quote the relevant portion of a recent judgment of this Court in Jafarudheen and Others v. State of Kerala (2022 SCC Online SC 495) as follows:

25. While dealing with an appeal against acquittal by invoking Section 378 of the Cr.PC, the Appellate Court has to consider whether the Trial Court's view can be termed as a possible one,

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particularly when evidence on record has been analyzed. The reason is that an order of acquittal adds up to the presumption of innocence in favour of the accused. Thus, the Appellate Court has to be relatively slow in reversing the order of the Trial Court rendering acquittal. Therefore, the presumption in favour of the accused does not get weakened but only strengthened. Such a double presumption that enures in favour of the accused has to be disturbed only by thorough scrutiny on the accepted legal parameters."

26. Keeping in mind the principles laid down in the

supra judgment, after a careful examination, it is evident

that there is a lack of compelling, corroborating, credible,

and trustworthy evidence to establish the guilt of the

accused. The trial court has diligently evaluated the

evidence on record, considering all relevant factors and

perspectives. Upon re-evaluation of the evidence, no legal

flaws or deficiencies are discernible in the impugned

judgment delivered by the trial court. The appellate Court

is not required to rewrite the judgment or to give fresh

reasoning when the reasons assigned by the Court below

are found to be just and proper. As there is insufficient