Karnataka High Court

Sri Subbanna S/O Govindappa ... vs Sri Mudukappa S/O Mallappa Naikar ... on 16 March, 2023

Bench: S.Sunil Dutt Yadav, Ramachandra D. Huddar

                          1




           IN THE HIGH COURT OF KARNATAKA
                  KALABURAGI BENCH

        DATED THIS THE 16TH DAY OF MARCH, 2023

                       PRESENT

     THE HON'BLE MR. JUSTICE S.SUNIL DUTT YADAV

                        AND

THE HON'BLE MR. JUSTICE RAMACHANDRA D.HUDDAR

          CRIMINAL APPEAL NO.200067/2014

BETWEEN

SRI SUBBANNA S/O GOVINDAPPA KARJOL,
Aged about 68 years, OCC:PENSIONER,
R/O MUTTAGI, TQ: B.BAGEWADI,
DIST : BIJAPUR.
                                       ...APPELLANT

(BY SRI S.S.MAMADAPUR, ADVOCATE)

AND
1.    SRI MUDUKAPPA S/O MALLAPPA NAIKAR,
      AGE : 47 YEARS, OCC : AGRICULTURE,
      (ACCUSED-1),

2.    SRI MUDUKAPPA S/O MALLAPPA NAIKAR,
      AGE : 38 YEARS, OCC : AGRICULTURE,
      (ACCUSED-2),

3.    SRI GANGANDHAR S/O SHIVAPPA NAIKAR,
      AGE : 23 YEARS, OCC : AGRICULTURE,
      (ACCUSED-3),
                             2




4.   SRI SHIVAPPPA S/O MALLAPPA NAIKAR,
     AGE : 54 YEARS, OCC : AGRICULTURE,
     (ACCUSED-4)

     ALL ARE R/O MUTTAGI,
     TQ: B.BAGEWADI, DIST : BIJAPUR.

5.   THE STATE OF KARNATAKA,
     REP. BY ITS STATE PUBLIC PROSECUTOR,
     OFFICE OF THE ADVOCATE GENERAL,
     HIGH COURT BUILDING, GULBARGA.
                                         RESPONDENTS

(BY SRI ANIL KUMAR NAVADAGI, ADVOCATE FOR R1
TO R4;
SRI PRAKASH YELI, ADDL. SPP., FOR R5)

     THIS CRIMINAL APPEAL FILED U/S.372 OF CR.P.C
PRAYING TO SET ASIDE THE JUDGMENT OF ACQUITTAL
DATED 25.02.2014 PASSED BY THE I ADDL. DIST. AND
SESSIONS JUDGE AT BIJAPUR IN S.C.NO.40/2012 AND
CONSEQUENTLY CONVICT THE RESPONDENTS NO.1 TO 4
FOR OFFENCES CHARGED AGAINST THEM, IN THE
INTEREST OF JUSTICE AND EQUITY.

     THIS APPEAL HAVING BEEN HEARD AND RESERVED
ON 02.03.2023 COMING ON FOR PRONOUNCEMENT OF
JUDGMENT, THIS DAY, RAMACHANDRA D.HUDDAR J.,
DELIVERED THE FOLLOWING:

                       JUDGMENT

The appellant being the complainant has filed this

appeal under Section 372 of Code of Criminal Procedure

(for short 'Cr.P.C') being aggrieved and dissatisfied with

the judgment of acquittal passed by the I Additional

District and Sessions Judge, Vijayapur in Sessions Case

No.40/2012 dated 25.02.2014.

2. The brief relevant facts leading up to this

appeal are as under :

That appellant/complainant has submitted a

complaint as per Ex.P.1 before Basavanabagewadi Police

Station, alleging that his son by name Shantappa is

missing since from 01.06.2011 and his whereabouts are

not known. Based upon that, a missing complaint was

registered by the police in Crime No.151/2011.

3. It is the further case of the appellant/

complainant that, at the evening hours of 28.08.2011, he

learnt that a human body is lying within the limits of

N.R.Village. Therefore, on 29.08.2011, he went to the said

spot in the morning hours along with his elder brother

Laxman and another person by name Kallappa. He noticed

the presence of human bones scattered on the spot with

green colour shirt and striped blue lungi. He identified the

said clothes as belong to his son Shantappa as he was

wearing the said shirt and lungi, when Shantappa left the

house. Thereafter, appellant/complainant went to

Basavanabagewadi Police Station lodged a complaint

alleging that deceased Shantappa had illicit

relations/intimacy with accused No.1. He also alleged that

accused No.1 to 4 have committed the murder of his son.

The said complaint is registered as per Ex.P.1 and thus,

criminal law was set into motion by registering the case for

the offences punishable under Sections 302, 201 read with

Section 34 of Indian Penal Code (for short 'IPC').

Accordingly, first information report came to be registered

as per Ex.P.10.

4. The records of this case reveal that during

investigation, the Investigating Officer arrested accused

No.1 and 2 on 30.08.2011 and accused No.3 was arrested

on 02.09.2011. Accused No.4 had obtained anticipatory

bail from the Sessions Court as per the order dated

02.11.2011, who appeared before the Investigating Officer

on 14.11.2011 and obtained bail.

5. The record of this case further reveal that,

during the course of investigation, the Investigating Officer

produced PW.6, wife of accused No.1 before the learned

JMFC, Basavanabagewadi wherein she has given her

statement under Section 164 of Cr.P.C.

6. After completion of the investigation, the

Investigating Officer has filed the charge-sheet against the

accused persons for the offences punishable under

Sections 302, 201, 202 read with Section 34 of IPC and

Section 3 read with Section 181 of Motor Vehicles Act (for

short 'M.V.Act') before JMFC Court, Basavanabagewadi.

The said jurisdictional Magistrate after filing the charge-

sheet, took the cognizance of the offences, registered the

case in C.C.No.195/2011. As the offences were exclusively

triable by the Sessions Court, the jurisdictional Magistrate

committed the said case to the Sessions Court. After

committal, the Sessions Court registered the same, in

Sessions Case No.40/2012 and made over the same to the

court of I Additional District and Sessions Judge, Vijayapur

(hereinafter referred to learned Sessions Judge).

7. The learned Magistrate at the time of

committal itself supplied the copies of the charge-sheet

under Section 207 of Cr.P.C to the accused persons.

8. The learned Sessions Judge secured the

presence of the accused persons and they were enlarged

on bail. After hearing both side, the learned Sessions

Judge, framed the charges against the accused persons for

the offences under Sections 302, 201, 202 read with

Section 34 of IPC and Section 3 read with Section 181 of

M.V.Act. Read over and explained the same to accused

No.1 to 4, they pleaded not guilty and claimed to be tried.

9. To prove the guilt of the accused persons,

prosecution in all examined 19 witnesses as PW.1 to 19

and got marked Exs.P.1 to P.30 along with MOs.1 to 8.

Closed the prosecution evidence. Thereafter, the accused

were questioned under Section 313 of Cr.P.C so as to

enable them to answer the incriminating circumstances

appearing in the evidence of the prosecution, they denied

their complicity in the crime and did not choose to lead any

defence evidence.

10. The learned Sessions Judge having heard the

arguments of both sides, vide judgment dated 25.02.2014

acquitted accused No.1 to 4 of the charges levelled against

them.

11. Now the complainant is before this Court

challenging the said acquittal of accused persons of the

charges levelled against them, by filing this appeal on the

following grounds :

That the impugned judgment is against the law, facts

and circumstances of the case and as against the evidence

placed on record. There is no proper assessment of

appreciation of the evidence which has resulted in

miscarriage of justice. The trial Court has committed an

error in disbelieving the evidence of the witnesses.

It is the accused No.1 to 4 who have committed the

murder of his son and evidence of PWs.1, 4 and 5 proves

the illicit intimacy with the wife of accused No.1. The

motive for crime is illicit intimacy and accused No.1 by

using the cart-peg MO-4 have committed the murder of his

son. The footwear MO-3 and cart-peg MO-4 were

recovered at the instance of accused No.1 and 2, in the

house of accused No.1.

PW.2 being the independent witness has spoken

about recovery which is not properly appreciated by the

trial court. During 164 statement, PW.6 has stated about

the incident, being an eye witness. She has stated that

when she was in a compromising position with deceased

Shantappa, it is accused No.1 who saw the same and

committed murder of Shantappa. This evidence is brushed

aside by the Trial Court.

Ex.P.9 is fully corroborative in nature as it was

recorded by JMFC Court. The injuries sustained lead to the

death of Shantappa. Therefore, it is stated that from the

evidence of prosecution witnesses though it is proved

about the guilt of the accused, but wrongly the trial court

has acquitted the accused persons. Hence, amongst other

grounds, it is prayed to allow the appeal and to set aside

the impugned judgment of acquittal of accused persons.

12. After filing this appeal, notice of the same is

issued to the respondents. Accused No.1 to 4 appeared

through their counsel and learned Additional Special Public

Prosecutor appeared on behalf of State. Evidently the

State has not preferred any appeal on the acquittal of

accused No.1 to 4.

13. Trial Court records are secured.

14. Heard the arguments of both sides.

15. It is argued by the counsel for appellant/

complainant that, the accused who have committed the

offence of murder of Shantappa and he narrates the

calendar of events from 01.06.2011 till 29.11.2011,

wherein filing of a missing complaint, recovery of the dead

body of human being etc. He submits that from the

evidence of prosecution witnesses, it is duly proved that, it

is accused and accused alone are responsible for the

commission of the crime as alleged in the complaint. He

further submits that there is no reason for disbelieving the

evidence of the prosecution witnesses.

16. As against this submission, the learned counsel

for accused persons supported the reasons being assigned

by the Trial Court and submits that none of the witnesses

have supported the case of the prosecution and whatever

the evidence so adduced cannot establish the link in the

commission of the crime by the accused persons. He

submits that almost two months there was no suspicion on

the accused persons and all of a sudden a complaint came

to be filed alleging illicit intimacy in between PW.6 and

deceased.

17. It is further submitted that it is brought on

record in the evidence that accused No.1, PW.6 and his

wife were in visiting terms to the house of complainant.

Thus, a false complaint is registered. The so called bicycle

on which the deceased Shantappa went from the house on

01.06.2011 is not seized. There is no proper recovery of

any of the incriminating articles at the instance of the

accused persons. Recovery is also not proved in

accordance with law. Hence, it is prayed that the appeal be

dismissed.

18. Perused the records.

19. So far as homicidal death of Shantappa is

concerned, the learned Trial Court relied upon complaint

Ex.P.1, Ex.P.4 spot panchanama, Ex.Ps.16, 17 DNA

identification forms of parents of deceased and E.xP.20

report, Ex.P.23 DNA report. These facts are not disputed

by the defence. The earliest complaint that was filled of a

missing complaint stating missing of deceased Shantappa.

Ex.P.14 is the FIR. All these documents coupled with the

oral evidence of PW.1 and other witnesses do establish

about homicidal death of deceased Shantappa. The learned

Trial Court by relying upon all these documents has come

to the conclusion that deceased Shantappa has suffered

homicidal death. We do not find any factual or legal error

in such finding.

20. Merely because prosecution is able to prove

the homicidal death of deceased Shantappa, that does not

mean that it is accused No.1 to 4 have committed the

murder of deceased. It is for the prosecution to prove the

guilt of the accused beyond all reasonable doubt. So to say

clear connecting links in establishing the guilt of the

accused have to be proved. The criminal jurisprudence

says that even a slightest doubt arises in the case of the

prosecution that benefit has to be given to the accused

persons.

21. Now, we have to ascertain that whether the

learned Sessions Judge is justified in passing the judgment

of acquittal of accused persons or otherwise ?

22. On perusal of the entire records of this case, it

is bought on record that one year prior to the so called

incident, accused No.1 used to reside in a rented house

which is being situated by the side of the house of

deceased Shantappa S/o Subbanna Karjol. It is the case of

the prosecution that the deceased Shantappa developed

illegal intimacy with the wife of accused No.1 i.e.,

Mudkawwa, who is examined in this case as PW.6. Accused

No.1 having got the said knowledge through his villagers,

he shifted his house from the said rented house. It is

further case of the prosecution that even then deceased

Shantappa did not stop the illicit relationship, he used to

visit PW.6 in the garden land in the absence of accused

No.1. Accused No.1 got such information of visiting of

Shantappa in his absence to his house. Therefore, he

informed accused No.2-Siddappa who expressed to finish

off Shantappa. It was alleged by the prosecution that

these accused No.1 and 2 advised PW.6 not to continue

her relations with Shantappa.

23. It is further case of the prosecution that when

deceased went to the house of accused No.1 at garden

land on 01.06.2011 at 2.00 p.m., having got the said

information, accused No.1 also went to the garden land

where his house is situated and noticed the closing of the

door of the farm house. On opening the door, accused

No.1 noticed that deceased Shantappa was found with

PW.6 in indecent manner and on seeing accused No.1,

PW.6 ran away for the spot. Accused No.1 picked a cart-

peg with intention to cause the murder, assaulted

Shantappa on his head and near the ear with said cart-

peg. Because of said assault, Shantappa sustained injuries

and fell down, blood started oozing. Accused No.1 noticed

that Shantappa died. Therefore, he concealed the cart-peg

being used for assaulting Shantappa in the tins put on the

roof on the farm house. Accused No.2 came there at 4.00

p.m. Accused No.1 informed about death of Shantappa.

Thereafter, accused No.2 also came to know about the

death of Shantappa. At about 9.30 p.m. accused No.2 to 4

brought a tractor-trailer bearing Reg.No.KA-28/TA-6290

and Trailer KA-28/TA-6291 along with pesticide bag. They

all put the dead body in the said cover and proceeded to

throw the same in a bush at the land of one Shashikala

W/o Shivashankar Harijan.

24. It is further case of the prosecution that when

they were so proceeding on the way, they met Sharanappa

Reshmi and CW.5- Ramesh Kataraki. When they enquired

that where they were going, they told that they are going

to bring the wood. Thereafter, accused No.1 to 3 threw the

dead body in a big bush with pesticide bag cover situated

in the land of said Shahakila Harijan.

25. As stated supra, initial complaint was filed on

28.06.2011 alleging that the said Shantappa was missing,

by present appellant/complainant. On the said day itself,

he came to know that some human body has fallen in

bushes in the jurisdiction of Yernal Village. On that day,

the complainant did not visit the said place. On the

following day i.e., on 29.06.2011 along with his brother

Laxman and another person by name Kallappa have

identified the clothes of his son Shantappa. Thereafter, he

lodged a complaint alleging that accused No.1 to 4 have

committed the murder of his son.

26. PW.1 - appellant/complainant has corroborated

the contents of a complaint in his evidence on oath. He

says that his son Shantappa was spendthrift and whenever

he was advised by the complainant/PW.1 his son

Shantappa used to enrage himself and stop speaking to

PW.1. It is stated in the examination-in-chief itself, that

sometimes his son used to go to his wife's parents house

and return after 8-9 days. He states that on 01.06.2011

his son quarrelled with him went away from the house

towards the garden land of accused on a bicycle and

thereafter did not return. He states that on 28.06.2011, he

lodged a missing complaint of his son. PWs.6 and 7

informed about falling of a bones in a scattered way in the

thorny bush near the landed property of Muttagi

Shankareppa. Thereafter, complainant, his brother Laxman

and Chandsab went to the said place at 12.00 noon and

noticed the presence of said bones and clothes, which he

identified. He further states about filing of a complaint and

identified MOs.1 and 2 - lungi and shirt as belongs to his

son.

27. He has been directed with sever cross-

examination. It is elicited that there exists a landed

property situated towards the western side of the Yernal

road, his daughter-in-law and son were used to reside

there. He further states that his son was addicted to bad

vices and when there was an advice he was not in talking

terms with the complainant.

28. Further it is elicited that whenever there was a

quarrel in between himself and his son, it is accused No.1

used to intervene and resolve. Further it is elicited that his

son was in cordial terms with accused No.1 and both used

to consume alcohol together. Accused No.1 had respect to

the family of complainant.

29. It is further stated that whenever his son used

to do galata with him, his son used to go away from the

house for 10-15 days and again come back. His friends

used to bring him back and advise him. It is further elicited

that after going away of his from the house, accused No.1

and his wife used to go whether Shantappa has come or

not.

30. According to his evidence, on the day of

getting knowledge about falling of human bones, he did

not visit the spot. The only motive he states that as his

son was having illicit relations with PW.6, wife of accused

No.1, therefore these accused persons have committed the

murder of his son. Thus, according to his evidence on

suspicion he lodged a complaint.

31. PW.2-Mallikarjun Venkatesh Chirakdinni is

pancha to Exs.P.3 to P.6. According to him, in his presence

MOs.1 to 7 have been seized. Though, it is the case of the

prosecution that at the instance of accused, articles i.e.,

MOs.1 to 7 are seized, but a recovery as contemplated

under Section 27 of the Indian Evidence Act is not brought

on record. It is stated by PW.2 that, it is police who took

them to the places so mentioned in Exs.P.3 to P.6, accused

had not taken them. So as per the provision of Section 27

of the Indian Evidence Act, it is the obligation of the

prosecution to prove that the recovery of the incriminating

articles is done at the instance of accused persons i.e.,

information leading to discovery. Thus, evidence of PW.2

can be accepted to the extent of he signing Exs.P.3 to P.6

at the instance of the police. But, his evidence is quite

against the provision of Section 27 of Indian Evidence Act.

Therefore, we disbelieve the evidence of PW.2.

32. Section 27 of the Indian Evidence Act, requires

certain essentials. They are,

i) The fact of which evidence is sought to be given must be relevant to the issue.

ii) The relevancy of the fact discovered must be established according to the prescriptions relating to relevancy of other evidence connecting with the crime in order to make the fact discovered, admissible.

iii) The fact must have been discovered.

iv) The discovery must have been in consequence of some information received from the accused and not by the accused's own act.

v) The person giving information must be accused of any offence.

vi) He must be in the custody of the police officers.

vii) The discovery of fact in consequence of information received for an accused in custody must be deposed too.

viii) Thereupon only that portion of the information which relates distinctly or strictly to the fact discovered can be proved. The rest is inadmissible.

33. If the above essentials are applied to the

recovery so alleged by the prosecution, such a recovery is

not duly proved as contemplated under Section 27 of the

Indian Evidence Act. If the said articles were found and

discovered from an open place, then it cannot be held to

be discovered in consequence of information received from

the accused. Mere recovery of the said MO-1 the cart-peg

would not be sufficient to connect accused no.2 with the

said article. The recovery made must be found to have

been made as a consequence to the statement made by

him in custody. In other words, if the nexus in between is

not established, the said statement made out would be

inadmissible in evidence.

34. PW.3-Sharanappa Basappa Reshmi is arrayed

as witness to state that he has seen accused No.1 to 3 in a

tractor on 01.06.2011 at 10.00 p.m. But, this PW.3 has

denied that he has seen the accused No.1 to 3 at

10.00 p.m on 01.06.2011. He was declared as hostile

witness by the prosecution witness, but nothing worth is

elicited in the cross-examination so as to disbelieve his

version given in his cross-examination. Therefore, we

disbelieve the evidence of PW.3.

35. PW.4-Ratnabai happens to be the wife of

deceased Shantappa. She is a hearsay witness about the

incident. She states about illicit relationship of her husband

with PW.6. But according to her cross-examination, she

has not given any statement before the police. According

to her, she has given a statement about three months

back. She says her husband went away from the house

and did not return. Her evidence has to be accepted to the

extent of her husband has gone away from the house and

did not return.

36. PW.5-Laxaman Basappa Karjol is the brother of

the complainant and states that himself, PW.1, CW.6 and

CW.7 went to the place where the human bones were

fallen in the land of Shankareppa Harijan. PW.1 identified

clothes of his son. The said Shantappa was missing from

last 3-4 months. His evidence can be accepted to the

extent that he visited the said place where the human

bones were found. To that extent, we believe his evidence.

37. PW.6 - Mudkawwa is a star witness in this case

who is an eye witness with whom it is alleged that the

deceased Shantappa was having illicit relationship, which

made the accused persons to murder the deceased

Shantappa. But, PW.6 has turned hostile, nothing worth is

elicited. So the evidence of PW.6 would not come to the

rescue of the prosecution in proving that it is the accused

No.1 who has murdered deceased Shantappa. It is elicited

from the mouth of PW.6 in the cross-examination that in

the landed property, the brothers of her husband used to

work and so also others.

38. According to her, she has not given any

statement before the Court. She further states that she

was taken to the police station and she was advised to

give a statement stating that she had illicit relationship

with deceased and her husband having seen them in a

compromising position, assaulted the deceased with cart-

peg and murdered him and thereafter, in the night hours

the dead body was transported in a tractor-trailer.

39. She further deposes that police gave threat

stating that she has to say so as stated before the

Magistrate, otherwise she will put in jail. According to her,

at the instance and as per the say of the police she has

given her statement before the Magistrate.

40. On reading of the evidence of PW.6, she has

given a clear go-bye to the case of the prosecution. Her

evidence will not come to the rescue of the prosecution.

41. PW.10 - Mohanprabhu was the Magistrate who

recorded the statement under Section 164 of Cr.P.C as per

the case of the prosecution. When PW.6 has belied her

own statement before the Magistrate, one cannot expect

that evidence of PW.10 would help the case of the

prosecution. The evidentiary value so attached to the

statement of PW.6 is not properly explained by the

complainant. Therefore, the evidence of PW.10 would not

help the case of the prosecution.

42. PW.6 has further stated that she has not given

any statement before the Magistrate. Whereas PW.10 has

stated about recording of the statement under Section 164

of Cr.P.C as stated supra. Evidence of witnesses whose

statements were recorded under Section 164 of Cr.P.C

would have to be assessed with caution. It is settled that,

statement recorded under Section 164 of Cr.P.C can never

be used as substantive evidence of truth of facts, but may

be used for contradictions and corroboration of a witness

who makes it. The statement made under Section 164 of

Cr.P.C can be used to cross-examine the maker of it and

the result may be to show that the evidence of the witness

is false. It can be used to impeach the credibility of the

prosecution witness. This attempt is not made by the

prosecution in this case. As this statement under

Section 164 of Cr.P.C is not a substantive evidence, no

undue importance be given to such statement of PW.6.

Moreso, PW.6 has retracted such statement when

examined before the Court. Thus, such evidence cannot be

treated as substantive piece of evidence.

43. PW.7 - Mallayya Eraiah Mathapathi is the Police

Constable who carried first information report to the Court.

To the extent of carrying first information report, we

believe the evidence of PW.7.

44. PW.8-The Assistant Engineer, PWD who

prepared the sketch of the scene of the offence as per

Ex.P.13. The said land belongs to Mudappa Harijan, but

not of Shashikala Harijan as asserted by the prosecution.

On reading the evidence of PW.8, his evidence can be

accepted to the extent of preparing sketch as per Ex.P.13.

To that extent we believe his evidence.

45. PW.9-Erappa Siddappa was the PSI who

registered the Crime and set the criminal law into motion.

He has received the complaint as per Ex.P.1. To the extent

of receiving Exs.P.1 and P.2, his evidence is to be

accepted. To that extent, we believe his evidence.

46. PW.11-Dr.Siddaraya G.Kubasad being a

Medical Officer has collected the blood samples of parents

of deceased Shantappa, by name Subbanna and Basamma

and has issued Exs.P.16 and P.17. There is no dispute, as

such, with regard to the relationship of deceased with said

Subbanna and Basamma, as their son. So, therefore to the

extent of taking blood samples the evidence of PW.11 is to

be accepted.

47. PW.12-Dr.Govindraj who was the Medical

Officer, wherein he noticed the human bones at Mutagi

Village and collected them under the panchanama and

identified them as human bones. The said bones are

marked at M.O-6. To that effect he has done some

correspondence. So to the extent of he visiting the place

wherein human bones were fallen, where the collection of

the same by the police and he doing correspondences, to

that extent his evidence is to be believed.

48. PW.13-Dr.Anand Basayya Mugalimath was the

Assistant Professor of forensic Medicine. According to his

evidence, he received the information from CPI

Basavanabagewdi with a request to examine the skeleton

and accordingly, he has received the seized articles

containing skull, mandible with six teeth, right clavicle, left

humorous, piece of radius, two cervical vertebrae, six

vertebrae with attached three ribs, three ribs, right side

hip bone, left femur, left tibia, piece of left fibula, left talus

and hair in paper. He has scientifically examined them and

issued a report as per Ex.P.20. Though he has been

directed with cross-examination, but he has stated about

the contents of articles 1 and 2 so produced before him

and according to him, the victim was aged between 25-40

years, which is not denied by the defence.

49. PW.14-Bassangouda Biradar was the Constable

who carried bones to the hospital for examination and

submitted a report as per Ex.P.21. To that extent his

evidence is to be accepted.

50. PW.15 - Mahesh Basappa Sajjan who is also a

Constable, who noticed the presence of the skull at the

place and informed the same to the higher officer and

showed the place to the engineer. To the extent of

showing the place his evidence is to be accepted.

51. PW.16 - Anand Channabasappa Dindi is the

person who has carried four articles to the forensic

laboratory for conducting deoxyribonucleic acid (DNA).

Except the denial, nothing is elicited from the evidence of

PW.16. Therefore, his evidence is to be accepted to the

extent of four articles for the purpose of conducing DNA by

the Forensic Science Laboratory.

52. PW.17 - Mallannagouda Biradar is a Constable

who carried 11 bones in a sealed pocket and produced

them before BLDE Hospital for examination. This fact is not

denied by the defence.

53. PW.18-Dr.Vinod Janardhan who received the

articles so sent for the purpose of conducting DNA and

after conducting DNA, he has received the report as per

Ex.P.23, which is not denied by the defence. Relationship

of deceased with his parents Subbanna and Basamma is

not denied. The report of PW.18 proves the same.

54. PW.19-Sunil Yamunappa Naik was the

Investigating Officer. He has conducted investigation and

filed charge-sheet against the accused persons.

55. In all criminal cases panchas are the authors of

the panchanama and Investigating Officers are the

supervisors of the investigation. If panchas support the

case of the prosecution, then their evidence have got the

evidentiary value. In this case PW.2 being pancha though

speaks with regard preperation of panchanamas as per

Ex.P.3 to P.6 but in the cross-examination he has

specifically stated that, it is police took him to the places

and accused have not led him but says that accused were

also there. This evidence of PW.2 goes against the spirit of

Section 27 of the Indian Evidence Act. The tenor in which

he has given evidence falsifies his evidence. PW.3 -

Sharanappa though examined by the prosecution to show

that on 01.06.2011 accused No.1 to 3 were moving in a

tractor at 10.00 p.m., but he has been turned hostile.

Though other witnesses speak about missing of deceased

Shantappa, his own wife who has been branded as an

eyewitness by the prosecution have been turned hostile. If

that is so, the evidence so adduced by the prosecution

suffers from material particulars. The evidence of the

prosecution is full of discrepancy, inconsistency and with

material contradictions. The learned trial Court considering

all these aspects of the case and having scanned the

evidence in proper perspective have come to the

conclusion that the prosecution has failed to prove the

guilt of the accused to the hilt.

56. It has been consistently laid down by the

Hon'ble Apex Court that where a case rests squarely on

circumstantial evidence, the inference of guilt can be

justified only when all the incriminating facts and

circumstances are found to be incompatible with the

innocence of the accused or the guilt of any other person.

Hukam Singh v. State of Rajasthan (AIR 1977 SC

1063); Eradu and Others v. State of Hyderabad (AIR

1956 SC 316); Earabhadrappa v. State of

Karnataka (AIR 1983 SC 446); State of Uttar Pradesh

v. Sukhbasi and Others (AIR 1985 SC 1224); Balwinder

Singh v. State of Punjab (AIR 1987 SC 350); Ashok

Kumar Chatterjee v. State of Madhya Pradesh (AIR

1989 SC 1890). The circumstances from which an

inference as to the guilt of the accused is drawn have to be

proved beyond reasonable doubt and have to be shown to

be closely connected with the principal fact sought to be

inferred from those circumstances. In Bhagat Ram v.

State of Punjab (AIR 1954 SC 621), it was laid down that

where the case depends upon the conclusion drawn from

circumstances the cumulative effect of the circumstances

must be such as to negative the innocence of the accused

and bring the offences home beyond any reasonable

doubt.

57. Sir Alfred Wills in his admirable book "Wills'

Circumstantial Evidence" (Chapter VI) lays down the

following rules specially to be observed in the case of

circumstantial evidence:

(1) the facts alleged as the basis of any legal

inference must be clearly proved and beyond

reasonable doubt connected with the factum

probandum;

(2) the burden of proof is always on the party

who asserts the existence of any fact, which

infers legal accountability;

(3) in all cases, whether of direct or circumstantial

evidence the best evidence must be adduced

which the nature of the case admits;

(4) in order to justify the inference of guilt, the

inculpatory facts must be incompatible with the

innocence of the accused and incapable of

explanation, upon any other reasonable

hypothesis than that of his guilt,

(5) if there be any reasonable doubt of the guilt of

the accused, he is entitled as of right to be

acquitted.

There is no doubt that conviction can be based solely

on circumstantial evidence but it should be tested by the

touch-stone of law relating to circumstantial evidence laid

down by the Hon'ble Apex Court as far back as in 1952.

58. In Hanumant Govind Nargundkar and

Another V. State of Madhya Pradesh (AIR 1952 SC

343), wherein it was observed thus:

"It is well to remember that in cases where the evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should be in the first instance be fully established and all the facts so established should be consistent only with the hypothesis of the guilt of the accused. Again, the circumstances should be of a conclusive nature and tendency and they should be such as to exclude every hypothesis but the one proposed to be proved. In other words, there must be a chain of evidence so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability the act must have been done by the accused."

In the instant case, the only circumstance which was

highlighted by the trial Court was that there was unnatural

death. The clear link of accused No.1 committing the

offence of murder of Shantappa is not established.

59. We do not find any material irregularity or

legal infirmity in the findings of the trial court. No

interference is required in the well reasoned judgment of

the trial court. Hence, appeal filed by the

appellant/complainant is liable to be dismissed.

Resultantly, we pass the following :

ORDER

Appeal filed by the appellant/complainant under