Karnataka High Court
The State Of Karnataka vs Sri.Veerupakshgouda S/O Melgirigouda ... on 28 November, 2023
Author: H.P.Sandesh
Bench: H.P.Sandesh
1
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 28TH DAY OF NOVEMBER, 2023
PRESENT
THE HON'BLE MR JUSTICE H.P.SANDESH
®
AND
THE HON'BLE MR JUSTICE RAMACHANDRA D. HUDDAR
CRIMINAL APPEAL NO.100190 OF 2019 C/W
CRIMINAL APPEAL NO.100284 OF 2019
IN CRL.A. NO.100190 OF 2019:
BETWEEN:
LINGANAGOUDA @ SANTOSH
S/O. MARTANDAGOUDA,
AGE: 32 YEARS,
OCC: AGRICULTURIST,
R/O: KURTAKOTE,
DIST: BELAGAVI-590001.
...APPELLANT
(BY SRI. L.S.SULLAD, ADVOCATE)
AND:
1. THE STATE OF KARNATAKA
REP. BY STATE PUBLIC PROSECUTOR,
HIGH COURT OF KARNATAKA,
DHARWAD BENCH, DHARWAD,
THROUGH GADAG RURAL POLICE STATION.
2. VEERUPAKSHAGOUDA
S/O. MELGIRIGOUDA,
AGE: 69 YEARS,
OCC: AGRICULTURIST,
R/O: KURTAKOTE,
DIST: BELAGAVI-590001.
3. TULASAREDDI @ MUDAKAPPA
S/O. KRISHNAPPA GADAREDDI,
AGE: 44 YEARS,
OCC: AGRICULTURIST,
2
R/O: KURTAKOTE,
DIST: BELAGAVI-590001.
4. NINGAPPA
S/O. MALLAPPA IRAGAR,
AGE: 52 YEARS,
OCC: AGRICULTURIST,
R/O: KURTAKOTE,
DIST: BELAGAVI-590001.
5. NEELAVVA
W/O. BASANAGOUDA PATIL,
AGE: 33 YEARS,
OCC: HOUSEWIFE,
R/O: TADASI, TQ: RAMADURGA,
NOW R/O: KURTAKOTE,
DIST: BELAGAVI-590001.
6. BASAVARAJ
S/O. MALLAPPA HIREHOLI,
AGE: 47 YEARS,
OCC: AGRICULTURIST,
R/O: BELAHAR,
TQ: NAVALAGUND,
DIST: DHARWAD-580001.
7. DANDEVVA
W/O. BASAVARAJ BULLANNAVAR,
AGE: 44 YEARS,
OCC: HOUSEWIFE,
R/O: BELAVATAGI,
TQ: NAVALAGUND,
DIST: DHARWAD-580001.
...RESPONDENTS
(BY SRI.M.B.GUNDAWADE, ADDL.STATE PUBLIC PROSECUTOR
FOR R1; SRI.SANTOSH NARAGUND, ADVOCATE FOR R2;
SRI.B.V.SOMAPUR, ADVOCATE FOR R3, R6 AND R7;
SRI.B.C.JNANAYYASWAMI, ADVOCATE FOR R4;
R5- DECEASED)
3
THIS CRIMINAL APPEAL IS FILED UNDER SECTION 372 OF
CR.P.C., SEEKING TO SET ASIDE THE JUDGMENT IN S.C.NO.37/2012
DATED 30.03.2019 PASSED BY THE ADDL. DIST. AND SESSIONS
JUDGE, GADAG, AND CONVICT RESPONDENTS NO.2 TO 7 FOR THE
OFFENCES PUNISHABLE UNDER SECTION 143, 147, 120-B, 364, 302,
201 AND 506 R/W SEC.149 OF IPC.
IN CRL.A. NO.100284 OF 2019:
BETWEEN:
STATE OF KARNATAKA
GADAG RURAL POLICE STATION,
GADAG, DIST: GADAG,
THROUGH ADDL. STATE PUBLIC PROSECUTOR,
ADVOCATE GENERAL OFFICE,
HIGH COURT OF KARNATAKA,
DHARWAD BENCH.
...APPELLANT
(BY SRI.M.B.GUNDAWADE, ADDL. STATE PUBLIC PROSECUTOR)
AND:
1. SRI. VEERUPAKSHAGOUDA
S/O. MELGIRIGOUDA PATIL,
AGE: 63 YEARS,
R/O: KURTAKOTI,
TALUK AND DISTRICT: GADAG-582205.
2. TULASAREDDI @ MUDAKAPPA
S/O. KRISHNAPPA GADAREDDI,
AGE: 38 YEARS,
R/O: KURTKOTI,
TALUK AND DISTRICT: GADAG-582205.
3. NINGAPPA
S/O. MALLAPPA IRAGAR,
AGE: 46 YEARS,
R/O: KURTKOTI,
TALUK AND DISTRICT: GADAG-582205.
4. NEELAVVA
W/O. BASANAGOUDA PATIL,
4
AGE: 27 YEARS,
R/O: TADASI, TQ: RAMADURGA,
NOW R/O: KURTKOTI,
TALUK AND DISTRICT: GADAG-582205.
5. BASAVARAJ
S/O. MALLAPPA HIREHOLI,
AGE: 41 YEARS,
R/O: BELAHAR,
TQ: NAVALAGUND,
TQ AND DIST: DHARWAD-582208.
6. DANDEVVA
W/O. BASAVARAJ BULLANNAVAR,
AGE: 38 YEARS,
R/O: BELAVATAGI,
TQ: NAVALAGUND,
TQ AND DIST: DHARWAD-582208.
...RESPONDENTS
(BY SRI.SANTOSH NARAGUND, ADVOCATE FOR R1;
SRI.B.V.SOMAPUR, ADVOCATE FOR R2, R5 AND R6;
SRI.B.C.JNANAYYASWAMI, ADVOCATE FOR R3;
R4- DISMISSED AS ABATED)
THIS CRIMINAL APPEAL IS FILED UNDER SECTION 378(1) AND
(3) OF CR.P.C., SEEKING TO GRANT LEAVE TO APPEAL AGAINST THE
JUDGMENT AND ORDER OF ACQUITTAL DATED 30.03.2019, PASSED
BY THE ADDL. DISTRICT AND SESSIONS JUDGE AT GADAG IN
S.C.NO.37/2012 AND TO SET ASIDE THE JUDGMENT AND ORDER
DATED 30.03.2019 PASSED BY THE ADDL. DISTRICT AND SESSIONS
JUDGE AT GADAG, IN S.C.NO.37/2012 AND TO CONVICT AND
SENTENCE THE RESPONDENTS/ACCUSED FOR THE OFFENCES
PUNISHABLE U/SEC.143, 147, 149, 120B, 364, 302, 201 AND 506 OF
IPC.
THESE CRIMINAL APPEALS HAVING BEEN HEARD AND
RESERVED ON 21.11.2023 COMING ON FOR PRONOUNCEMENT OF
JUDGMENT THIS DAY, H.P.SANDESH, J., DELIVERED THE FOLLOWING:
5
JUDGMENT
1. These two appeals are filed by the son of the deceased-
victim and the State challenging the judgment of acquittal passed by
the Trial Court against the accused persons for the offence punishable
under Sections 143, 147, 120-B, 364, 302, 201 and 506 read with
Section 149 of IPC and prayed the Court to set aside the judgment
passed in Sessions Case No.37/2012 dated 30.03.2019 and convict the
accused persons and sentence them for the charges levelled against
them.
2. The factual matrix of the case of the prosecution is that
one Martandagouda was missing from 11.12.2011, the same was
communicated to his son, who was studying Engineering at
Laxmeshwar by his mother that the deceased Martandagouda not
returned to home from 11.12.2011 onwards. The son of the deceased
Linganagouda came to Kurtakoti and made searches and could not
trace him. Hence, he lodged the complaint in terms of Ex.P2 with the
jurisdictional police on 16.12.2011 at 15.45 hours which was
registered as Crime No.277/2011. While lodging the complaint, the
description of clothes lost worn by him and mobile IME number of the
handset of said Martandagouda was given in the complaint and he was
not traced. That on 03.01.2012, the complainant gave further
statement vide Ex.P1 at 19.45 hours to the police, he has stated his
uncle Virupakshagouda i.e., accused No.1 was trying to sell lands for
the purpose of satisfying his bad vices, his father-Martandagouda had
objected for the same and had helped one Smt. Seetabai, the sister of
Virupakshagouda-accused No.1 in filing a suit for partition against
Virupakshagouda. Further, the paternal aunt of his father namely,
Renukabai Patil was given lands bearing Sy.Nos.332 and 329, totally
measuring an extent of 15 acres. The said Renukabai got married at
an old age and she did not have any issues. He has further stated that
after the death of Renukabi, it was agreed between her brothers that
the said lands should go to the father of Virupakshagouda i.e.
Melagirigowda. After the death of Renukabai, Virupakshagoda-
accused No.1 was trying to get the said lands transferred to his name
and was negotiating to sell the same. Hence, the said Martandagouda
had also filed suit for partition in respect of land bearing Sy.Nos.332
and 329 and had obtained an order of stay on 07.12.2011. The
complainant suspected the role of accused No.1 and the accused No.1
was angry with this development of assisting his sister to file a suit
and obtaining an order of stay. Hence, he conspired with accused
Nos.2 to 6 and earlier, the accused No.3 was tenant in the lands of the
family of Martandagouda and he was having enmity against
Martandagouda in removing him from the cultivation and accused
No.2, friend of accused No.1, and all of them have joined their hands
and within 2 to 3 days of stay obtained by Martandagouda, he went
missing and stated about the ill-will. It is also an allegation that said
Virupakshagouda within a short span of deceased went missing, has
sold the very said land. It is also a motive for committing the murder
that Neelavva i.e., accused No.4 was having illicit relationship with the
complainant's father and she was also absconding from the village and
heard the rumours that accused No.4 was also missing after the said
Martandagouda was missing. Hence, suspected that accused Nos.1, 2,
4 and said Ningappa, in order to eliminate the Martandagouda,
conspired each other and on 11.12.2011, abducted him from Kurtakoti
and murdered him and disposed off the body. The said accused
persons were apprehended and investigation is conducted. It is also
an allegation that accused No.5 was having illicit relationship with
accused No.6 and deceased also instructed accused No.4 to bring the
accused No.6 for his lust and all of them were also having grudge
against the deceased. Hence, it is the case of the prosecution that all
the accused persons joined their hands and conspired with each other
and eliminated the deceased. The police after the investigation have
filed the charge-sheet and accused persons were secured and they
have not pleaded guilty and claimed for trial.
3. The prosecution, in order to prove the case has examined
the witnesses P.Ws.1 to 22 and got marked the documents as Exs.P1
to P41 and M.Os. 1 to 14 was also marked. On behalf of the defence,
Exs.D1 to D9 was marked. The 313 statement of the accused was also
recorded and they have denied the entire incriminating evidence and
not led any defence evidence.
4. The Trial Court, having considered both oral and
documentary evidence placed on record, acquitted all the accused
persons in coming to the conclusion that charges levelled against the
accused persons have not been proved. The Trial Court, while
acquitting the accused persons, has come to the conclusion that the
evidence of the material witnesses, who have been examined before
the Trial Court does not inspire the confidence of the Court. The main
witness of the prosecution is P.W.5 and according to P.W.5, an event
has occurred on 11.12.2011 and till the accused persons were
apprehended, he has not revealed about the same with anyone. The
reason assigned by him is that due to threat by accused Nos.2 to 4, he
did not inform the same to anybody else and the same is not believed
by the Trial Court. The Trial Court also comes to the conclusion that
his 164 statement was recorded by the learned Magistrate and he has
given different answers and different admission and he also
categorically says that the learned Magistrate, who recorded his
statement, not read the same and took his signature. The Trial Court
comes to the conclusion that conduct of P.W.5 during the alleged
course of event has to be looked into and the same does not inspire
the confidence of the Court.
5. It is also observed by the Trial Court that though the
witness P.W.20 has been examined before the learned Magistrate, he
says that P.W.5 has signed the statement, after accepting the same as
correct and also taken note of the fact that signature found in Ex.P18
and signature made in the deposition is not at all similar and
signatures found in the affidavit accompanying the vehicle release
application not tallies with each other. The entire material evidence
available on record, particularly seizure of the clothes found on the
dead body and seizure of material at the instance of the accused
persons not inspires the confidence of the Court to accept the case of
the prosecution against the accused persons and acquitted the accused
persons.
6. The State and the appellant-victim in their respective
appeals have contended that the Trial Court committed an error in not
believing the evidence of P.W.5, who is a witness and though he had
been cross-examined in length, nothing is elicited to disbelieve the
case of the prosecution regarding threat meted out to him. The
learned Additional SPP appearing for the State in his argument would
vehemently contend that P.W.1 has identified the dead body of his
father by identifying the apparels and also the sacred thread worn by
the deceased, wherein Hanuman locket was inserted and also other
belongings of the deceased. The said evidence of P.W.1 was
corroborated by examining the witness P.W.3 and eye witness P.W.5.
P.W.6 is an advocate, who has obtained the stay in the Court on behalf
of the deceased, who has spoken with regard to the civil case and civil
disputes between the deceased and the accused persons and also
deposed regarding ill-will between both the parties. Learned
Additional SPP for the State also would vehemently contend that P.W.5
is the sole eye witness, who has categorically stated regarding the
commission of the offence and also overt act of each of the accused,
especially accused Nos.2 to 4 from the stage of boarding the vehicle
and committing the murder of the deceased Martandagouda in the
vehicle itself which belongs to P.W.5. P.W.5 has also spoken with
regard to the fact that accused Nos.2 to 4 wrapped the dead body in
the chaddar and bed sheet and finally immersed the dead body in the
water by tying the stone on the body.
7. It is also submitted that P.W.20 has recorded the
statement of P.W.5 under 164 of Cr.P.C. as per Ex.P18 and the Trial
Court has not given any proper and acceptable reason for discarding
the truthful version of the evidence of P.Ws.5, 20 and Ex.P18 which
are the material evidence to arrive at a conclusion that a homicidal
death has occurred. He would also submit that P.W.14-Doctor had
conducted the post-mortem examination of the deceased and opined
that there is a fracture of hyoid bone and opined that death was due to
asphyxia by strangulation. That the evidence of P.W.5 is fully
corroborated with the evidence of medical evidence and the same has
not been considered by the Trial Court in its proper perspective. He
would further contend that it is not the question of quantity of the
evidence and the Court has to look into the quality of evidence
available on record and the evidence of P.W.5 is voluntary and
consistent and there are no contradictions in his evidence. Hence, the
Trial Court ought to have considered the evidence of P.Ws.4, 5, 6, 14,
20 and other official witnesses, but failed to consider the same.
8. Learned counsel appearing for the appellant in
Crl.A.No.100190/2019 would vehemently contend that the accused
No.1 is the cousin brother of the deceased. The appellant, who is the
son of the deceased has filed this appeal on behalf of the victim.
Learned counsel also would vehemently contend that accused No.2 is
the friend of accused No.1 and he is the signatory to sale deed
executed in respect of property of mother of the accused No.1 which
was sold immediately after missing of the deceased. The accused
No.3 is having ill-will against the deceased, since he was working in
the lands of the deceased and looking after one Naganagouda and he
had promised to give property to him and subsequently not given the
same and hence, he was having grudge against the victim. It is also
the case of the prosecution that accused No.4 was having affair with
the deceased and there was affair between accused Nos.5 and 6 and
when the deceased demanded the accused No.4 to get accused No.5
for his lust, they were also having grudge against the deceased.
Learned counsel would vehemently contend that accused Nos.1 to 4
were arrested on 04.01.2011 immediately after the complaint was
given by the son of the deceased on 03.01.2011 suspecting the role of
accused Nos.1 to 4. The counsel would further contend that the
accused Nos.2 to 4 gave voluntary statement with regard to the
manner in which they abducted and committed murder and disposed
of the dead body.
9. The prosecution is also relying upon the evidence of
P.Ws.1, 2 and 4, since they were called to the police station and at the
instance of the accused persons, dead body was traced. Learned
counsel would vehemently contend that, in order to prove the motive
for committing murder, learned counsel would contend that stay was
granted on 07.12.2011 and he was missing from 11.12.2011 within
four days of the stay granted in favour of the victim. The prosecution
mainly relies upon the evidence of P.Ws.1 to 22 and the Trial Court
committed an error in coming to the conclusion that conspiracy is not
proved and the evidence of the eye witness cannot be believed. It is
also contended that the body was decomposed and evidence of P.W.14
is very clear that photograph was taken. The prosecution also relies
upon the evidence of P.Ws.4, 5, 14 and 20 and the Trial Court mainly
relied upon the evidence of P.Ws.14 and 15. Inspite of Exs.P16 and
P17 are produced with regard to the stay order obtained on behalf of
the deceased and also sister of accused No.1 and also documents at
Exs.P11 and P12-mutation being produced, these documentary
evidence have not been considered by the Trial Court and also the sale
deeds which are already marked as Exs.P.13 to P.15.
10. The counsel would vehemently contend that the witness
P.W.2 has also given the description of place where body was
recovered and so also the evidence of P.W.5, the material witness has
not been considered by the Trial Court and the advocate, who obtained
stay is examined as P.W.6. P.W.7 also speaks with regard to Ex.P22-
OMR sheet for obtaining the sim card and given for portal. Though the
witnesses P.Ws.8 and 9 have turned hostile, the Court has to look into
the motive i.e., the evidence of P.W.10 i.e., the brother of P.W.1, who
has spoken about the ill-will. P.W.11 is the husband of P.W.10, who
also supported the case of the prosecution. The Trial Court failed to
take note of evidence of these witnesses, particularly the evidence of
P.Ws.4, 5, 10, 11, 14 and 20 and committed an error in acquitting the
accused.
11. Learned counsel for the appellant-victim, in support of his
argument, relied upon the judgment of the Apex Court in Criminal
Appeal No.1181 of 2019 dated 07.10.2021 in Goutam Joardar Vs.
State of West Bengal and brought to notice of this Court the
observation made by the Apex Court that, it is true that there was
some delay in recording the statements of the concerned eye-
witnesses but mere factum of delay by itself cannot result in rejection
of their testimonies. The material on record definitely establishes the
fear created by the accused. If the witnesses felt terrorised and
frightened and did not come forward for some time, the delay in
recording their statements stood adequately explained. Nothing has
been brought on record to suggest that during the interregnum, the
witnesses were carrying on their ordinary pursuits. The counsel
relying upon this judgment would contend that mere delay in recording
the evidence of P.Ws.4 and 5 would not go to the very root of the case
of the prosecution, when other material is available on record and
contend that this judgment is aptly applicable to the case on hand with
regard to the evidence of P.Ws.4 and 5 and their evidence cannot be
discarded in toto.
12. Learned counsel also relied upon the judgment of the Apex
Court in A.N. VENKATESH AND ANR. VS. STATE OF KARNATAKA
reported in 2005 (3) CRIMES 231 (SC) and brought to notice of this
Court Para No.9 of the judgment, wherein the Apex Court has
observed that by virtue of Section 8 of the Evidence Act, the conduct
of the accused person is relevant, if such conduct influences or is
influenced by any fact in issue or relevant fact. The evidence of the
circumstance, simplicitor that the accused pointed out to the police
officer, the place where the dead body of the kidnapped boy was found
and on their pointing out the body was exhumed, would be admissible
as conduct under Section 8 irrespective of the fact whether the
statement made by the accused contemporaneously with or
antecedent to such conduct falls within the purview of Section 27 or
not as held by this Court in PRAKASH CHAND VS. STATE (AIR
1979 SC 400). Even if we hold that the disclosure statement made
by the accused appellants is not admissible under Section 27 of the
Evidence Act, still it is relevant under Section 8. The evidence of the
investigating officer and P.Ws.1, 2, 7 and P.W.4, the spot mahazar
witness that the accused had taken them to the spot and pointed out
the place where the dead body was buried, is an admissible piece of
evidence under Section 8 as the conduct of the accused. The counsel
referring this judgment would vehemently contend that, after arresting
the accused persons, they took the police and witnesses to the spot
and had shown the place where dead body was thrown and the body
was found at the distance of 2 kms. from the place of throwing the
body and the same was found at the instance of the accused persons.
13. Learned counsel also relied upon the judgment of the Apex
Court in RAMJEE RAI & ORS. VS. STATE OF BIHAR reported in
2006 (4) CRIMES 225 and brought to notice of this Court the
observation made by the Apex Court that medical evidence regarding
time of death may vary and medical evidence has not achieved such
perfection, so as to enable a medical practitioner to categorically state
in regard to the exact time of death and the murder took place on a
boat and dead body was thrown in water and it remained under water
for more than five days and it is the opinion of the autopsy surgeon
that death must have taken place 10 days prior to the post mortem
examination, the prosecution case cannot be disbelieved on that
ground. The counsel referring this judgment would contend that even
if the evidence of P.W.14-Doctor not points out the time of death, the
same is given on a guess work and having taken note of the condition
of the dead body which was found after 21 days of committing murder,
the evidence of P.W.14 cannot be thrown out.
14. Learned counsel also brought to notice of this Court Para
No.30 of the judgment, wherein the Apex Court has discussed the
judgment of the Apex Court in STATE OF U.P. VS. ANIL SINGH
[1988 SUPP SCC 686], wherein it is observed that of late this Court
has been receiving a large number of appeals against acquittals and in
the great majority of cases, the prosecution version is rejected either
for want of corroboration by independent witnesses, or for some
falsehood stated or embroidery added by witnesses. In some cases,
the entire prosecution case is doubted for not examining all witnesses
to the occurrence. We have recently pointed out the indifferent
attitude of the public in the investigation of crimes. The public are
generally reluctant to come forward to depose before the Court. It is,
therefore, not correct to reject the prosecution version only on the
ground that all witnesses to the occurrence have not been examined.
Nor it is proper to reject the case for want of corroboration by
independent witnesses if the case made out is otherwise true and
acceptable.
15. Learned counsel also relied upon the judgment of the Apex
Court passed in CRIMINAL APPEAL NO.593 OF 2010 dated
01.07.2014 and brought to notice of this Court Para Nos.16, 17, 18,
20 and 23. The Apex Court in Para No.16, taking note of the principles
laid down in the judgment in STATE OF W.B. VS. MIR MOHAMMAD
OMAR AND OTHERS [(2000) 8 SCC 382], extracted Para No.34 of
the said judgment, wherein it is observed that when it is proved to the
satisfaction of the Court that Mahesh was abducted by the accused
and they took him out of that area, the accused alone knew what
happened to him until he was with them. If he was found murdered
within a short time after the abduction, the permitted reasoning
process would enable the Court to draw the presumption that the
accused have murdered him. Such inference can be disrupted if the
accused would tell the Court what else happened to Mahesh at least
until he was in their custody.
16. In Para No.17 of the judgment, the Apex Court also
discussed with regard to drawing of inference and in Para No.18
observed that the accused Nos.1 to 3 alone knew what happened to
him as the deceased was found murdered within a short time after
abduction and also discussed Section 27 of the Evidence Act in Para
No.20 and in Para No.23, the Apex Court observed that the
information disclosed by the evidences leading to the discovery of a
fact which is based on mental state of affair of the accused is, thus,
admissible in evidence. The counsel referring this judgment would
vehemently contend that the Court has to look into the conduct of the
accused persons and invoke Section 27 of the evidence Act.
17. The learned counsel also relied upon the judgment of the
Apex Court in MD. MANNAN @ ABDUL MANNAN VS. STATE OF
BIHAR in CRIMINAL APPEAL NO.379 OF 2009 dated 14.02.2019
and brought to notice of this Court relevant portion of Para Nos.5 and
6, wherein the Apex Court has observed that the petitioner is alleged
to have disclosed the place where he had raped and killed the victim.
It is the case of the prosecution that on the basis of information given
by the prosecution, the Investigating Officer went to the village Izaar
Haat Bandh, where the dead body of the victim was recovered from
the spot shown by the prosecution, amidst wheat and 'arahar' fields.
In Para No.6, it is observed that the dead body was identified as that
of the victim. The Doctor who conducted the post mortem opined that
death was due to asphyxia and haemorrhage as a result of
strangulation. Hence, the very judgment is aptly applicable to the
facts of the case on hand.
18. Learned counsel also relied upon the judgment of the Apex
Court in VIJAY @ CHINEE VS. STATE OF MADHYA PRADESH
reported in 2010 (3) CRIMES 212 (SC) and brought to notice of this
Court relevant portion i.e., facts of the case and important points,
wherein it is held that while appreciating the evidence of a witness,
minor discrepancies on trivial matters, which do not affect the core of
the prosecution case, should not be taken into consideration as they
cannot form grounds to reject the evidence as a whole. The evidence
of the witnesses must be read as a whole and the cases are to be
considered in totality of the circumstances and while appreciating the
evidence of a witness, minor discrepancies on trivial matters, which do
not affect the core of the prosecution case, should not be taken into
consideration as they cannot form grounds to reject the evidence as a
whole.
19. Per contra, learned counsel for the respondent No.2-
accused No.1 in Crl.A.No.100190/2019 would vehemently contend that
there is no allegation against this accused and though he had sold the
property, he cannot be connected in the case of murder and there is
no overt act allegation against this accused and in the missing
complaint also, there is no allegation against this accused. The
counsel would contend that the fact that P.W.1, the son of the
deceased identified the body cannot be believed and though the
prosecution relies upon the evidence of eye witness i.e. P.W.5, his
evidence does not inspire the confidence of the Court. Hence, the Trial
Court rightly rejected the evidence of prosecution witnesses. The
counsel would further contend that conspiracy is not proved and in
order to prove conspiracy, the circumstance must speak, even though
direct evidence is not possible. The counsel also would submit that the
Trial Court in Para No.48 of the judgment till end, discussed in detail
and rightly comes to the conclusion that conspiracy and motive has
not been proved. Though suit against accused No.1 is filed, mere
filing of suit itself is not a material to accept the case of the
prosecution. The counsel would further contend that it is also the case
of the prosecution that deceased was having an illicit relationship with
accused No.4 and in order to conspire with other accused, including
accused No.4, there must be meeting of mind and no such evidence
before the Court with regard to the conspiracy.
20. It is also his contention that P.W.1 in his chief evidence
has not spoken anything about the conspiracy. The dead body found
is not the dead body of the deceased which was found after 21 days
and the same was not identifiable. No doubt, a missing complaint was
given, in the said complaint, nothing is stated about the respondent
No.2-accused No.1 and it is only a suspicion in the statement dated
03.01.2012 and from the said date, nothing is found with regard to
committing of murder. The counsel also would vehemently contend
that though the evidence of the Doctor may be that the same belongs
to the victim but, femur bone was taken and sent along with blood
which was drawn from P.W.1 and the same will not substantiate the
case of the prosecution and the very recovery of body itself is
doubtful. The evidence of P.Ws.2 and 3 i.e., panch witnesses do not
inspire the confidence of the Court and the Trial Court has also taken
note of the evidence of P.Ws.14 and 15 and comes to the conclusion
that it is only a story created by the prosecution and DNA report is
also very clear that same is not sufficient and entire circumstance is
not proved and the respondent No.2-accused No.1 was not having any
motive to take away the life of the deceased. The learned counsel
would submit that the evidence of eye witness i.e., P.W.5 cannot be
relied upon and the persons, who lifted the body i.e., C.Ws.21 and 23
were not examined before the Court. The mother of P.W.1 is also not
examined and in order to prove the fact that accused Nos.2, 5 and 6
were having motive to commit murder, no material is placed before
the Court and recovery is also not proved and with regard to arresting
the accused persons and recovery also, there are contradictions in the
timings.
21. Learned counsel appearing for the accused No.3 would
vehemently contend that intimation was given to the son i.e., P.W.1
on 11.12.2011 itself but, missing complaint was given on 16.12.2011
and accused Nos.2, 3 and 5 were arrested on 03.01.2012 and
statement of witnesses were recorded on 05.01.2012 after the arrest
of the accused and 164 statement of P.W.5 was recorded on
21.12.2012 after a long gap. Learned counsel would submit that,
except the testimony of P.W.4, no clinching evidence before the Court
and the evidence of P.W.4 is clear that only after the dead body was
found, he took them to the spot and the evidence of P.W.5 not
corroborates the case of the prosecution.
22. Learned for the accused No.3 in support of his argument,
relied upon the judgment in MAHENDRA SINGH AND ORS. VS.
STATE OF M.P. reported in 2022 SUPP. SAR (CRI) 600 and counsel
referring this judgment would vehemently contend that the Apex Court
in Para No.13 of the judgment discussed with regard to the reliable
evidence is concerned, whether the same is reliable or wholly reliable
or wholly unreliable. In Para No.16 of the judgment, the Apex Court
also discussed with regard to the testimony of similar lines and in Para
No.22, it is held that the case would fall in the category of wholly
unreliable witness. Under the circumstances, the accused No.3 cannot
be convicted.
23. The counsel also relied upon the judgment of the Apex
Court in RAJU @ RAJENDRA PRASAD VS. STATE OF RAJASTHAN
reported in 2022 SUPP. SAR (CRI) 1074 and brought to notice of
this Court Para No.7.1, wherein it is observed that when there is no
direct evidence by which it can be said that the appellants killed or
committed the murder of the deceased and in the absence of direct
evidence, the Court has to scrutinize the material and in a case of
circumstantial evidence, the circumstances, taken cumulatively, should
form a chain so complete that there is no escape from the conclusion
that within all human probability the crime was committed by the
accused and none else and the circumstantial evidence, in order to
sustain conviction must be completed and incapable of explanation by
any other hypothesis than that of the guilt of the accused and such
evidence should not only be consistent with the guilt of the accused
but should be inconsistent with his innocence.
24. The counsel also relied upon the judgment in RAJIV
SINGH VS. STATE OF BIHAR & ANOTHER reported in 2016 SAR
(CRIMINAL) 474 and brought to notice of this Court Para No.22,
wherein the Apex Court has discussed with regard to admissibility of
evidence of prosecution witnesses.
25. The counsel also relied upon the judgment in SMT.
KUNDU & ANR. VS. STATE OF JHARKHAND reported in 2013 SAR
(CRIMINAL) 549 and brought to notice of this Court the principles
laid down in the judgment that in a case of appreciation of evidence of
eye witnesses vis-a-vis medical evidence, when there is cogent eye
witness account, the medical evidence recedes in the background.
However, when eye witness account is totally inconsistent with the
medical evidence and there is reason to believe that improvements are
made in Court to bring the prosecution case in conformity with post-
mortem notes, it is cause for concern. In such a situation, it is difficult
to say that one must believe the tainted eye witness account and keep
the medical evidence aside. Learned counsel also brought to notice of
this Court discussion made with regard to the appreciation of evidence.
When prosecution is not able to prove its case beyond reasonable
doubt, it cannot take advantage of the fact that accused have not been
able to probabalize their defence. It is well settled that the prosecution
must stand or fall on its own feet.
26. Learned counsel also relied upon the judgment of the Apex
Court in JOSE @ PAPPACHAN VS. THE SUB-INSPECTOR OF
POLICE, KOYILANDY & ANOTHER in CRIMINAL APPEAL NO.919
OF 2013 dated 03.10.2016, wherein it is held that in a criminal trial
where the case rests upon circumstantial evidence, the conduct of
appellant prior to the incident though suspicious, not proving his
culpability, medial opinion not decisively establishing the case to be of
homicidal hanging, presence of appellant on the scene of occurrence at
the time of occurrence not established by any persuasive evidence,
presumption under Section 106 of Evidence Act, 1872 is not attracted
and considering all evidence, it would be wholly unsafe to hold the
appellant guilty of the charge of murder of his wife. Under such
circumstances, the Court cannot rely upon the same.
27. Learned counsel also relied upon the judgment of the Apex
Court in CHUNTHURAM VS. STATE OF CHHATTISGARH in
CRIMINAL APPEAL NO.1392 OF 2011 dated 29.10.2020 with
regard to conviction under Section 302 read with Section 34 of IPC.
28. Learned counsel appearing for other respondent in his
argument would vehemently contend that respondent No.3 was
accused No.3 and to convict the present accused, no material is placed
before the Trial Court and hence, the Trial Court rightly comes to the
conclusion that the prosecution failed to prove the charges levelled
against him. The counsel also would contend that when the Trial Court
extended the benefit of doubt in favour of the accused, the question of
arriving at other conclusion does not arise, unless perversity is found
in the findings of the Trial Court. It is contended that the prosecution
failed to prove the ingredients of the offences which have been
invoked against the respondent No.3 and failed to prove the chain of
circumstances and incriminating circumstances against this accused.
29. The counsel, in support of his argument relied upon the
judgment of the Apex Court in BOBY VS. STATE OF KERALA
reported in 2023 AIAR (CRIMINAL) 251. The counsel referring this
judgment would vehemently contend that the prosecution has failed to
prove the circumstance that dead body of the deceased was recovered
at the instance of the accused and though recovery of dead body is
alleged at the instance of the accused persons, material placed before
the Court does not inspire the confidence of the Court and the
evidence of the witnesses, who have spoken with regard to the
recovery of dead body also does not inspire the confidence of the
Court. Hence, Section 27 of the Evidence Act cannot be invoked.
30. The counsel also relied upon the judgment of the judgment
of the Apex Court in RAVI SHARMA VS. STATE (GOVERNMENT OF
N.C.T. OF DELHI) & ANR. reported in 2022 AIAR (CRIMINAL)
898. The counsel referring this judgment would vehemently contend
that, if a case rests upon circumstantial evidence, it is settled position
of law that such evidence must satisfy the circumstances from which
an inference of guilt is sought to be drawn, must be cogently and
firmly established and those circumstances should be of a definite
tendency unerringly pointing towards guilt of the accused. The
circumstances, taken cumulatively should form a chain so complete
that there is no escape from the conclusion that within all human
probability the crime was committed by the accused and none else and
in order to sustain circumstantial evidence, conviction must be
complete and incapable of explanation of any other hypothesis than
that of the guilt of the accused and such evidence should not only be
consistent with the guilt of the accused, but should be inconsistent
with his innocence. The counsel referring this judgment would contend
that, if a case rests upon circumstantial evidence, the chain of
circumstances has to be proved and there must be link between each
of the chain of circumstances and the same has not been established
by the prosecution and hence, the question of reversing the findings of
the Trial Court does not arise.
31. In reply to the arguments of the learned counsel for the
respondent No.2/3, learned counsel for the appellant-victim would
vehemently contend that Ex.P13 is the sale deed dated 16.12.2011
which is executed by the mother of the accused No.1 in favour of some
other person in respect of the disputed property and there was an
order of injunction and the same has been signed by accused No.2.
Hence, it is clear that accused Nos.1 and 2 have indulged in
committing crime and consequent upon the crime committed on
11.12.2011, within a span of three days, a sale deed was executed.
The material also discloses that, inspite of stay, the said sale deed was
executed and both of them were having knowledge of committing the
murder and therefore, immediately executed the said sale deed. The
accused Nos.2 to 4 were present, while committing the murder and
they themselves took him in a vehicle belonging to P.W.5 and
committed the murder. It is contended that the accused No.2
purchased the sim without furnishing any documents which have been
furnished by the P.W.7, who applied for portal of the sim and the
evidence of P.W.13 is very clear that documents which have been
produced by P.W.7 are made use by accused No.2. It is also
contended that the mother of P.W.7 lodged the complaint against
P.W.3 and a separate case has been registered against him.
32. The counsel also would vehemently contend that CDR was
also marked in other case and though P.W.13 become hostile, a case
has also been registered against him for having used the documents of
P.W.7 for obtaining the sim in favour of accused No.2. The accused
Nos.2 to 4 have spoken together to P.W.5 and P.W.5 categorically
states that these accused persons have committed murder by causing
threat to him. It is also the evidence of P.W.5 that all the materials
were in the vehicle itself. The counsel would further contend that
other contention that body was identified also cannot be accepted,
since the same was identified by P.Ws.1, 2 and 4 and the evidence of
P.W.5 is clear regarding threat and witnessing the incident of
committing the murder and his 164 statement was recorded by P.W.20
in terms of Ex.P18 which is spoken to by P.W.20.
33. Learned counsel appearing for the appellant-victim would
contend that citations which have been placed before the Court by the
respondents are not applicable to the facts of the case on hand and
law was set in motion by P.W.1 suspecting the role of each of the
accused persons. Learned counsel appearing for the respondents-
accused also would vehemently contend that the citations which have
been given by the learned counsel for the appellant-victim and the
facts of the case on hand are totally different and the same are not
applicable to the facts of the case on hand. The judgment relied upon
by the learned counsel for the appellant-victim in A.N. VENKATESH
AND ANR. VS. STATE OF KARNATAKA reported in 2005 (3)
CRIMES 231 (SC) is in respect of contradictions in the evidence
regarding recovery of dead body and in the case on hand, there are no
such contradictions in the evidence of the prosecution witnesses and
when the case is based on different circumstances, the principles laid
down in the judgment cannot be a ratio to consider the same.
34. Learned counsel also would submit that no panchanama
regarding throwing the dead body, except the mahazar conducted
regarding recovery of dead body and the panchanama was drawn only
at the place where the dead body was recovered and the statement of
witnesses was also contra regarding timings of the mahazar. The
counsel also would submit that there is only one eye witness evidence
in this case and the same cannot be believable and last seen theory is
not applicable, since there is no link between each of the
circumstances alleged by the prosecution.
35. Having heard the learned counsel for the appellant and
learned counsel for the respondents-accused, the points that would
arise for consideration of this Court are:
(1) Whether the Trial Court has committed an error
in coming to the conclusion that the prosecution
has failed to prove the case against the
respondents-accused beyond reasonable doubt
and whether it requires interference of this Court
to reverse the finding of the Trial Court?
(2) What order?
Point No.(1)
36. Having determined the points for consideration, in view of
the appeal filed by the State as well as the victim i.e., P.W.1, this
Court has to re-analyze the material available on record whether the
prosecution has proved its case beyond reasonable doubt and the
evidence available on record is sufficient to bring home the accused
persons within the ambit of charges levelled against them.
37. The charges levelled against the accused persons is that
on 11.12.2011, in furtherance of their conspiracy, the accused
persons, who were have having ill-will against the deceased, took him
in a vehicle, boarding the same in different places and strangulated
him in the vehicle itself and thereafter, thrown the dead body
wrapping the same in a bed sheet into a canal tying the cement
particle stone on the body. Hence, they have committed an offence
punishable under Sections 143, 147, 120-B, 364, 302, 201 and 506
read with Section 149 of IPC.
38. The prosecution, in order to prove its case, relied upon the
evidence of P.Ws.1 to 22 and the documents at Exs.P1 to P41 and the
defence relied upon the documents at Exs.D1 to D9. Now, let us
consider the oral and documentary evidence available on record. The
prosecution examined P.W.1, who is the son of the deceased. He says
that he is having acquaintance with accused persons and the deceased
is his father and accused No.1 is cousin brother of his father. The
accused No.3 was cultivating the land of their family and accused No.4
was also working in the said land. It is his case that on 11.12.2011,
his father left the house stating that he is going to Hulakoti, but he did
not turn up and these accused persons have committed murder. That
on 11.12.2011, he was in Laxmeshwar and pursuing his Engineering
and his mother informed him that his father did not return. Hence, all
of them searched for him and he was not found and he came and
lodged the complaint with the police in terms of Ex.P2 on 16.12.2011.
39. It is his evidence that the sister of the accused No.1 had
filed a suit for partition against the accused No.1 and the said suit was
filed by the sister and his father helped her in filing the suit, since the
accused No.1 was a drunkard and in order to protect the property, the
said suit was filed. It is also his evidence that his maternal aunt
Renukabai was given 15 acres of land by her grand-parents and she
was not having any issues and he came to know that the said 15 acres
of land would go to accused No.1 and accused No.1 made all efforts to
transfer the property to his name and intended to sell the same.
Hence, his father had also filed a suit against accused No.1 and
obtained a stay order. The accused Nos.1 and 2 are friends and both
of them were helping each other. The accused persons committed
murder on the pretext that his father will not allow them to sell the
property. Hence, he suspected the role of accused Nos.1 to 4 in view
of the above reason and he had lodged the complaint on 03.01.2012 in
terms of Ex.P1. It is also his evidence that his grand-parents had
assured that they will give portion of the land to accused No.3 but he
was removed from the cultivation by his father and he was having
ill-will against his father, inspite of his father had paid the amount of
Rs.50,000/- to him.
40. It is also his evidence that on 04.01.2012, the police called
him to police station. He found accused Nos.2, 3 and 4 and on enquiry,
they revealed about conspiracy and committed murder taking him in
Trax car. Their statements are recorded with regard to committing of
the murder by way of strangulation. The accused persons took them to
the spot where they had committed murder and disposed of the body
and in the said place, they did not found the dead body. They went in
search to the extent of 2 kms. and the body was found at the distance
of 2 kms. which was near the bush and accused themselves have
showed the dead body. It was in the Malaprabha Canal near Chikka
Naragunda Village. The police removed the body and he himself and
his relatives identified the dead body. The police have drawn the
inquest mahazar same and also seized the clothes as well as the
cement particle stone which were tied on the body and so also towel
and rope. He also says that he found pant, shirt, banian, nicker, black
rope and also a genivara thread. He identifies M.Os.1 to 12 and also
his signature available in Exs.P1 and P2.
41. This witness was subjected to cross-examination. In the
cross-examination, he says that for the first time, he came to know
about missing of his father on 15.12.2011 and he gave complaint on
16.12.2011 and gave the details of the clothes which he was wearing.
It is also elicited that, when they saw the body, he found genivara
thread and some portion of the same had damaged. He also admits
that he is having knowledge of filing of civil suits. The accused No.2 is
the resident of Kurtahoti Village but, he volunteers to state that he
used to do gundaism and he also did the same against his father but,
he does not remember the date of incident. The accused No.3 was
cultivating the land from last 8 to 10 years and from last 3 to 4 years,
he was removed from cultivating the land. He also says that he was
having personal information about agreeing to give the land in favour
of the accused No.3 and he was not having document for having paid
Rs.50,000/- to him by his father. But, the same was given in the
presence of G.N. Patil and others. Except cultivation of land by
accused No.3, no other transaction has taken place between his father
and the accused No.3. He admits that while giving further complaint
on 03.01.2012, he had mentioned the name of accused Nos.1 to 4.
He himself, G.N. Patil and B.B. Patil went to police station and lodged
the complaint. The police called him to police station at 9.00'O clock
in the morning and he was there in the police station till 9.30 a.m. and
thereafter the accused led him, panchas and police and found the dead
body in the bush near a canal, after the search. It is suggested that
body was not in a identifiable condition and the same was denied. It is
suggested that he is falsely deposing and falsely suspecting the role of
the accused persons and the same was denied. The suggestion was
made that he gave false complaint against the accused persons only in
order to harass the accused persons, the same was denied.
42. The P.W.2 is a witness for discovery of the dead body. He
says that on 04.01.2012 at 9.00 a.m., when he went to Taluka Office,
he was called to police station and C.W.3 is also a panch who was
along with him. He found accused Nos.2 to 4 in the police station and
he identifies them and all of them told that they will show the place
where they committed the murder and all of them went along with
accused Nos.2 to 4 and left the police station at 9.30 a.m. and reached
the spot at around 11.00 to 11.30 a.m. First they went to Malaprabha
canal and accused Nos.2 to 4 showed the place where they thrown the
dead body. However, in that place, the body was not found and they
went in search of the same. The body was found at the distance of
1½ k.m. from the canal and the body was wrapped with bed sheet
and the same was tied with a stone and the same was decomposed. It
is also his evidence that they found one shirt, banian, nicker, genivara
thread, spectacle and also a black colour rope which was tied in the
hand. The police conducted mahazar in terms of Ex.P3 and he
identifies his signature as Ex.P3(a) and at that time, photos were
taken in terms of Ex.P4. In the said photo, the witness identifies
accused Nos.3 and 4, who was along with him in the said photo. He
also identifies M.Os.1 to 13 and mahazar was drawn till 2.30 p.m. The
accused No.4 also took them to the spot where the deceased was
abducted i.e., near Hulakoti Bus stand and photo was also taken which
is marked as Ex.P5. The witness also speaks with regard to where
they had spoken to the deceased and also as to where they have
thrown the mobile but, the mobile was not found when they were
taken to the spot. The place of committing the murder was near
Vishal Industries. The police have conducted the spot mahazar in
terms of Ex.P6.
43. This witness was subjected to cross-examination. In the
cross-examination, he admits that prior to panchanama, he was not
having acquaintance with accused persons but, having acquaintance
with deceased and he is the resident of Kurtakoti Village and his village
is at the distance of 15 kms. from the village of the deceased. When
the accused persons i.e., 2 to 4 were brought to police station, people
were also gathered and he was there for about half an hour and he has
not signed any document in the office of CPI. The accused themselves
stated that they have to visit Chikkanaragunda and they went to canal
in Chikkanaragunda which is between Soudatti road and
Chikkanaragunda. There were bushes near the place where the body
was found and there was also a shed of Irrigation Department near the
bridge and he cannot tell the depth of the canal but, water was there.
He cannot tell who brought the Doctor to the spot for post mortem. It
is suggested that if stone is tied to the dead body, the body will not
float but, witness replies that body will float and when he saw the
body, he found stone particles. The neighbours of other land owners
were there at the time of mahazar. The panchanama was made at
2.00 O' clock and left the said place at 3.00 O' clock. They went to
spot via Hulakoti, Annigeri, Navalagunda and Naragunda and
panchanama was drawn at the spot and police took his signature in
the police station. In the panchanama, the dead body which was
shown was mentioned.
44. P.W.3 is also a witness for seizure of the vehicle crusher
which was seized on 05.01.2012 at 2.00 p.m. and the vehicle was
produced by C.W.30, who is an ASI and mahazar was drawn between
2.00 to 3.00 p.m. He also identifies his signature in Ex.P7 and other
panchas were also there along with him i.e., Mallappa. It is suggested
that he is falsely deposing that he had been to police station and the
vehicle was seized and the said suggestion was denied.
45. P.W.4 is a resident of Kurtakoti and he deposes that he is
having acquaintance with deceased and so also his family members
and the deceased was having two children. The deceased is the
villager of Kurtakoti and having properties at Kurtakoti and he is also
having acquaintance with accused No.1, who is also having properties
at Kurtakoti and accused No.1 is the cousin brother of the deceased.
The deceased was missing from 11.12.2011 and they searched him
and could not find him and hence, complaint was given on 16.12.2011.
He himself, C.Ws.1 and 8 went to Gadag Rural Police Station and
lodged the complaint. He is the scribe of the complaint as per the
instructions of P.W.1 and he also identifies the signature in Ex.P2. The
land of Annapoorna i.e., Sy.No.787 to the extent of 28 acres was in
Kurtakoti and he came to know that accused No.1 kept the said
property for sale and he was having bad wises and in order to protect
the properties at the instance of the deceased Martandagouda, a suit
was filed by his sister and obtained an order of injunction and also in
respect of the property of Renukabai, maternal aunt of the deceased, a
suit was filed by the deceased Martandagouda and there was an entry
that property should go to Melagirigouda and accused No.1 got it
transferred the same to his name. The accused No.1 also intended to
sell the same and hence, suit is filed by the deceased and interim
order was obtained on 07.12.2011 and he was aware of the same.
The accused No.3 also belongs to the same village and he was
cultivating the land of Naganagouda and deceased Martandagouda and
when Naganagouda was suffering from ill-health, accused No.3 served
him and he had promised to give some property to him. The deceased
Martandagouda made the payment of Rs.50,000/- to him and removed
him from cultivation. Hence, accused No.3 was having ill-will against
the deceased. The accused No.4 was also working in the land of
deceased and there was an illicit relationship between her and the
deceased and people in the village were also talking about the same.
Hence, complaint was lodged on 03.01.2012 by P.W.1 suspecting the
role of these accused persons.
46. It is also the evidence of P.W.4 that on 04.01.2012, the
police called him to bring the C.Ws.1 and 8 and accordingly, he went
along with him and found accused Nos.2 to 4 in the police station.
When he enquired about the deceased with accused No.3, he revealed
the manner in which murder was committed by taking him in a traxs
vehicle and they have strangulated him. They also revealed that body
was thrown in the canal and enquiry was made with accused No.3 and
at that time, the police were not there and thereafter, all of them went
to the spot where the body was thrown and the body was not found
and at 1½ kms., they found the body which was there near the bush
and photos were taken and mahazar was drawn and he identified the
dead body and to certain extent, the body had been eaten by spices in
the water. He also says that clothes were found and he identifies the
M.Os.1 to 13 and also Exs.P8 and P9 in respect of Sy.Nos.329 and 332
and so also Ex.P10 which was standing in the name of Annapoorna and
also produced mutation extracts in terms of Exs.P11 and P12. This
witness was further examined and Exs.P13 to P15 were produced
which are the sale deeds executed by accused No.1 and he identifies
the signature of accused No.1. The copy of the injunction order is also
marked as Ex.P16 and so also in respect of P.W.10, injunction order
was obtained and the same is marked as Ex.P17. The P.W.4 says that
the accused No.1 being aggrieved by stay order obtained, committed
the murder of the deceased.
47. This witness was subjected to cross-examination. In the
cross-examination, he admits that he wrote the complaint as per the
say of P.W.1 and P.W.1 is his brother son. He admits that there was a
partition between his father and brothers of the deceased. He also
admits that a share was given to Renukabai and the same was given
for cultivation. He also admits that on the death of Renukabai, the
property should go to the Melagirigouda and suggestion was made that
in respect of 15 acres, deceased Martandagouda was not having any
right, but the said suggestion was denied saying that the father of the
deceased and his brothers joined together in giving 15 acres of land.
Hence, he also has a right. He admits that after the death of
Renukabai, property was transferred in favour of the father of accused
No.1. He admits that after the death of Renukabai, property was
transferred in favour of father of accused No.1. He admits that 28
acres of land was standing in the name of Annapoorna, wife of
Melagirigouda. He also admits that accused No.1 is not the sole owner
in respect of 28 acres. He also admits that he followed the police jeep
in other vehicle and went to the spot at around 2.00 O' clock and was
there till 6.00 O' clock and photos were also taken. It is suggested
that he is falsely deposing before the Court and the accused took them
to spot and dead body was recovered at their instance and
panchanama was drawn and the said suggestion was denied. When
learned counsel for the accused No.2 cross-examined him, he says
that he cannot tell how long accused No.3 was cultivating the land of
the deceased family. But, he admits that there are no documents with
regard to the said cultivation. He says that deceased gave Rs.50,000/-
to accused No.3 through him, but, no document to that effect. He
admits that accused No.3 is having knowledge of agriculture and other
people in the village also take his assistance. He says that police took
his signature in Chikkanaragunda area to mahazar and police have
written the mahazar as per his say and he had signed the same. He
also says that he went along with the police at the same time and the
body was identifiable and he had seen the face and also the clothes of
the deceased. He admits that in the genivara thread, he did not find
the locket of Hanumantha and the same was torn.
48. The other witness is P.W.5. According to the prosecution,
he is an eye witness and he says that he is having traxs vehicle and he
says that from the last two 2 years, he is living in Belahara and 2½
years back, he went to Kurtakoti at around 11.30 and thereafter, he
went to Hulakoti, where accused No.4 and deceased boarded his
vehicle. It is also his evidence that at a distance of 1 km., accused
Nos.2 and 3 boarded his vehicle. After 1 km., accused No.4 sat by the
side of the deceased and accused Nos.2 and 3 also came and sat and
all of them sat behind the front portion of the vehicle and forced him
to make signature in the document in the vehicle itself i.e., accused
Nos.2 and 3 and when he told that he intend to go to Gadag, he was
threatened and when he turned the vehicle towards Asundi Village, at
that time, accused Nos.2 and 3 put the towel on his neck and also put
the cloth on his mouth and when the deceased tried to scream and
refused to take the vehicle ahead, he was threatened. The accused
Nos.2 and 3 instructed him to take the vehicle towards Harthi and then
told him to take the vehicle to the land of accused No.3 and when he
was afraid of the same, they told not to be scared and he took the
vehicle to Annigeseri and when he asked the accused persons at
Navalagunda, they scolded him in filthy language and instructed him
to take the vehicle towards Soudatti and made him to park the vehicle
towards canal and all of them instructed him to watch whether
anybody is moving and he did not do anything. The accused Nos.2 to
4 removed the body from vehicle and with the bed sheet wrapped the
same and accused No.4 brought the dead body near cement stone and
used the rope which was there in the vehicle and tied the same and
thereafter, thrown the body in the canal. Thereafter, instructed him to
leave them to Kurtakoti and threatened not to inform the same to
anybody and if he reveals the same, they are going to teach the lesson
in the same manner to him and thereafter, he took them to Kurtakoti
and thereafter, he went to Belahara Village. When the accused Nos.2
to 4 boarded his vehicle at around 1.00 O' clock and when the body
was thrown, it was around 4.00 O' clock. He met the police at
Navalagunda and enquired him about what had happened and he gave
the details in the Gadag police station and he also identifies the
accused Nos.2 to 4 before the Court and also identifies M.Os.8, 9, 10,
12 and 13 and brought the said vehicle which is identified as M.O.14.
He says that accused Nos.2 and 3 committed murder by strangulation.
He also says that police took him to Magistrate and he gave the
statement before the Magistrate in terms of Ex.P18. This witness has
partly turned hostile and suggestions are made to the witness in terms
of Exs.P19 and 20 and the same was denied.
49. This witness was subjected to cross-examination by the
accused counsel. In the cross-examination by the learned counsel for
the accused No.1, he says that he gave the statement before the
police i.e., CPI and learned counsel for the accused No.2 also cross-
examined him and he admits that he gave the statement after 21 days
of the incident. He gave the statement before the Magistrate but, the
Magistrate did not read the contents of the statement. It is suggested
that for the first time, he is seeing accused No.3 and the same was
denied and volunteers to state that he saw the accused No.3 on the
date of incident and also while boarding the vehicle. It is suggested
that he gave the statement in terms of Ex.D1 and he denies the same
and so also denies Ex.D2. He admits that after the incident only, he
came to know about the names of the accused persons and says that
when the accused persons threatened him, he was not in a position to
leave the vehicle and he admits that near Asundi Cross, there is a
police chowki. The accused persons were continuously threatening
him. It is suggested that they were not threatening him and he is
falsely deposing before the Court and the same was denied. He
admits that while making the statement before the police, he has
mentioned that as patty stone and not stated as cement stone and the
weight of patting stone would be around 25 to 30 kgs. It is suggested
that he is falsely deposing that the dead body of Martandagouda was
dumped in the canal and the same was denied. He admits that vehicle
is standing in his name. He admits in the cross-examination of
learned counsel for the accused No.2 that he came first time to the
Court and thereafter, he was brought by issuing warrant. It is
suggested that he did not make any statement that accused No.4 and
deceased only boarded the vehicle at the first instance and the said
suggestion was denied and further suggestion was made that
thereafter accused Nos.2 and 3 not boarded the vehicle and the same
is not mentioned in the statement and the said suggestion was also
denied. He admits that when his vehicle was seized, on that day itself,
his statement was recorded and obtained his signature and he cannot
tell what is written in the same. But, he contends that the statement
made before the police was stated before the Magistrate as well. It is
suggested that police have tutored him and the said suggestion was
denied. The police were not there in the Court when he made the
statement.
50. The other witness is P.W.6 and P.W.6 is an advocate on
behalf of P.W.10, sister of accused No.1 and also the deceased, who
speaks about filing of two suits and obtaining the stay on behalf of
P.W.10 and deceased. This witness was subjected to cross-
examination. In the cross-examination, she admits that property in
Sy.No.787 belongs to grand-father of deceased Martandagouda and
admits that property was standing in the name of husband of
Smt. Annapoorna.
51. P.W.7 in her evidence says that in 2012, she was studying
PUC and her father is a tailor and she was having a mobile and the
same was standing in the name of her father and phone calls were
charging at One rupees 60 paise per minute. Hence, they made the
request to port the same to Vodafone and in order to change the
same, mobile was given to port from Idea company to Vodafone to
C.W.20. C.W.20 took the photo of her mother and given the address
of her mother and had promised to port the same. It is her evidence
that on 16.03.2012, police called and enquired with regard to the
identity card of the mother and OMR sheet, wherein her mother photo
was found, but the sim was not there and the same was given to
C.W.20. The sim number which is found in OMR sheet not belongs to
them and identified the photo of mother and three signatures not
belongs to her mother, since the same were in English and her mother
was not knowing English and not found the signature of the mother
and they have not purchased the sim number which is mentioned in
the OMR sheet and it is admitted by the police that in the case of
death of Martandagouda, her mother ID was used and came to know
that C.W.20 used the ID card for other purpose and the said OMR
sheet is marked as Ex.P22 and her mother ID card as Ex.P23.
52. This witness was subjected to cross-examination. In the
cross-examination, she admits that she does not know the rules of
porting and she has not received any phone call to the mobile after
changing the sim from Idea to Vodafone. P.W.7 was also subjected to
cross-examination by learned counsel for accused No.2 and in the
cross-examination, it is elicited that Idea Company sim was given for
porting the same to Vodafone company and application was given by
her father and the same was standing in the name of her father and
suggestion was made that only father had to make an application and
she replied that anyone can give an application and also cannot tell,
who made an application to port the same. She also admits that she
has filled up the application but, the police recorded her statement and
came to her house also and recorded her statement as per her say.
Except recording the statement on 16.03.2012, the police have not
recorded any other statement.
53. P.W.8, who is the panch witness has turned hostile and
P.W.9 has also turned hostile and identified the cloth seizure mahazar
as Ex.P24 and his signature as Exs.P24(a).
54. P.W.10 is the sister of accused No.1 and she says that in
Sy.No.787, in the name of her mother, 28 acres of land is standing
and she filed a case claiming share. P.W.10 also says that accused
No.1 was having ill-will against the deceased on the ground that he
only made her to file a case. This witness has also turned hostile in
part and learned Public Prosecutor has cross-examined this witness
and suggestion was made that accused No.1, who was having ill-will
against the deceased conspired with accused persons and through
accused No.4, secured the deceased and thereafter, accused Nos.2
and 3 took him in a vehicle and strangulated him and thereafter,
disposed off the dead body in a canal and the said suggestion was
denied. It is suggested that she has given the statement in terms of
Ex.P25 and only in order to help her brother, she is falsely deposing
before the Court and the said suggestion was denied.
55. This witness was subjected to cross-examination by the
learned counsel for accused No.1. In the cross-examination. She
admits that property in Sy.Nos.332 and 329 measuring to the extent
of 15 acres was given to her paternal aunt and it was decided that
after her death, it should go to her father. In terms of the decision,
report was also given to the concerned Department. It is also elicited
that in terms of the same, property should devolve upon her father
and mutation was also made in the name of her father and none
objected for the same. It is suggested that in the said land, deceased
was not having any right and the said suggestion was denied. It is
also elicited that, wife of the deceased had told that accused No.1 got
murdered his husband on the ground that the deceased had helped his
sister in filing the cases. It is suggested that she is falsely deposing
before the Court that accused No.1 himself committed murder since,
the deceased himself instigated to file the case and the said
suggestion was denied.
56. P.W.11 is the husband of P.W.10. He says that his wife
had filed the suit, in order to protect the property and stay was
granted and inspite of it, he had sold the property. It is also his
evidence that deceased was murdered and accused No.1 himself
committed murder on the ground that deceased himself instigated to
file the case. He also says that he cannot tell, who committed the
murder of the deceased. But, he claims that accused No.1 himself got
murdered the deceased through their persons. It is also his evidence
that when the body was found, all the accused persons were there at
the spot. This witness was cross-examined in part by the learned
Public Prosecutor treating him as hostile with regard to the suggestion
that accused persons took him in a crusher vehicle and strangulated
him and he gave the statement in terms of Ex.P26 and the same was
denied.
57. This witness was subjected to cross-examination. In the
cross-examination, he admits that when he went near the canal, he
found 10 to 20 persons and out of them, 4 to 5 persons were police.
But, he claims that dead body was not decomposed but, it had
swollen. He admits that right of selling the property had vested with
Annapoorna Bai. It is suggested that dead body was decomposed and
the same could not be identified and a false case is given and he is
falsely deposing that panchanama was done at the spot and the said
suggestion was denied. It is also elicited from the mouth of accused
No.1 that he is having a daughter and a son. He admits that they
gave an offer to accused No.1 to perform his daughter's marriage to
his son and he did not agree for the same and the said suggestion is
accepted. It is suggested that hence, they were having enmity against
him and the said suggestion was denied.
58. P.W.12 says that he found the deceased at 12.00 O' clock
near Hulakoti bus stand cross and then he found in the news that he
was murdered. This witness was treated as hostile and cross-examined
by learned Public Prosecutor and it is suggested that he gave the
statement in terms of Ex.P28 and the same was denied.
59. The other witness is P.W.13, who also turned hostile with
regard to securing the sim. He admits that he was having mobile
service centre and was doing sim and currency business and denies
that he has no acquaintance with Vijayalakshmi Nidagundi and Nirmala
Nidagundi. He also says that they have not given any sim, photo and
identify card for porting. This witness was treated as hostile and it is
suggested to the witness that P.W.7 had approached him and he had
collected the photo and ID card. However, he admits that police have
registered the case against him but, says that the same is a false case.
This witness was subjected to cross-examination by learned counsel
for the accused No.2. He admits that he is having a shop by name
Raghavendra Mobile Service and the name and seal is found in the
application. He admits that Ex.P22 is an application and admits the
seal and sign in the said application. He also admits that in terms of
Ex.P22, Sree Marutheshwara Enterprises, Chikkahandigolla had given
the sim in respect of mobile No.9535732015 and in terms of Ex.P22,
Sree Lakshmi Venkateshwara Enterprises Distributor has given the
said sim number for sale and he is not having any connection with
Sree Marutheshwara Enterprises.
60. P.W.14 is the Medical Officer, who conducted post mortem
and he says that body was decomposed and found the mark of skin
eaten by species in the water and there was a swelling on the neck,
face, near eyes and found that all vital organs were congested and
tongue was protruded. On examination, he found that hyoid bone was
fractured and the same would be caused, if any object is used to press
the neck and he also gave the right femur bone to the Investigating
Officer and given the post mortem report in terms of Ex.P30 and he
also identifies his signature. He also says that if M.O.11 is used, there
are chances of death, if the same is tied on the neck. This witness
was subjected to cross-examination.
61. In the cross-examination, he says that, if a person is
thrown in the water, body requires three days to decompose. He also
admits that, if the body is immersed in the water, normally, the face,
neck and abdomen will start to decompose at the first instance and
thereafter, the remaining parts of the body will start to decompose. If
a person dies and body floats in the water, it takes 12 hours for
wrinkling and even after six hours also, the same may happen and the
skin starts smoothening within 18 hours i.e., it stars swelling and
admits that swelling starts only when the skin smoothens. He admits
that, if body is not in the water, it takes 3 to 4 days to decompose, but
if the same is immersed in the water, it takes 4 to 5 days to
decompose and it depends on the temperature of the water. He
admits that if the body is immersed in the water, nails and hair would
get affected within 3 to 4 days. If the same is continued for 6 to 7
days, skin also starts to torn. It is suggested that if the body is not in
the water, it will swollen in 4 days and if the body is immersed in the
water, the swelling will not happen since, the same is eaten by the
species in the water. He says that dead body in this case would have
been in the water for 3 to 7 days and also for about 10 days. He
admits that if swelling starts, clothes which are there on the dead body
gets tighten. He admits that he did not see the dead body in the canal
but, the same was on the canal bund and stone particle was weighing
about 25 to 35 kgs. He admits that if M.Os.12 and 13 are tied to the
dead body, the dead body will be deep inside the water. He says that
he might have died 10 days ago. He admits that he has not put the
date while putting his signature in Ex.P30 and the report was obtained
on 28.01.2012. He was also further cross-examined and he says that
he gave the opinion in terms of Ex.P33. He also identifies the towel
i.e., M.O.11. This witness was further subjected to cross-examination.
He admits that he has not given the opinion that only M.O.11 would
cause fracture of hyoid bone. He admits that, if cloth is put to his
mouth and neck is pressed, there are no chances of tongue getting
protruded.
62. P.W.15 is the Police Constable and he says that CPI
instructed him to subject the dead body for post mortem. Hence, he
brought the Doctor near the canal and clothes, genivara thread, black
rope, spectacle were there and he had cleaned the same in the water
and produced the same before the CPI on 05.01.2012 and he gave the
statement before the Investigating Officer. This witness was subjected
to cross-examination. In the cross-examination, he admits that when
he went near the canal, no other staffs were there with him and he
reached the spot at around 8.00 O' clock in the morning and no other
persons were there near Chikkanaragunda canal, when he went there.
63. P.W.16 is also a Police Constable, who took the FIR and
gave the same to the learned Trial Judge at 9.30 p.m. on 03.01.2012.
64. P.W.17 is a another Police Constable, who took the femur
bone and blood sample and handed over the same to DNA Centre on
28.03.2012 and obtained the acknowledgement and CPI recorded his
statement.
65. P.W.18 is a retired Police Constable, who has received the
missing complaint on 16.12.2011 in terms of Ex.P2.
66. P.W.19 is the ASI, who submits that on 05.01.2012, CPI
instructed him to produce the accused and also the vehicle which was
used for committing the murder and accordingly, he went to Belahara
Village and brought the accused Basavaraja and Dundavva and
produced them before the CPI on 12.45 hours and he gave the report
in terms of Ex.P32. This witness was subjected to cross-examination.
In the cross-examination, suggestion was made that he was instructed
to produce accused Nos.5 and 6 and also the vehicle and he is falsely
deposing before the Court and the same was denied.
67. P.W.20 is the Senior Civil Judge, who recorded 164
statement and P.W.5 says that in terms of Ex.P18 she has recorded
the statement and his signature is also identified as Ex.P18(a). This
witness was subjected to cross-examination by the learned counsel for
the accused No.3. She admits that she has not received any letter, in
order to record the 164 statement and she did not prepare any note
with regard to the same. She says that when the witness gives a
statement, she need not read, accept and sign the same and she says
that on the same day, she has sent the said statement. It is
suggested that she has not followed the procedure while recording the
164 statement and the said suggestion was denied.
68. P.W.21 is the Deputy Superintendent of Police. In his
evidence, he says that he had collected the case file through C.W.31
and verified the same and in order to apprehend the suspected
accused, he appointed C.W.30 and C.W.31 and constituted a separate
team, who made the rounds at Kurtakoti and Hulakoti. That on
04.01.2012, C.W.30 and his team produced accused Nos.1 to 4 and he
arrested them and recorded their voluntary statement. The accused
persons have led him and his team and panch witnesses to the spot
and found the dead body at the distance of 200 mtrs. and the relatives
have identified the dead body and in the presence of C.Ws.2 and 3,
inquest was conducted in terms of Ex.P3 and seized the articles which
were found along with the dead body and deputed a P.C. to subject
the dead body for post mortem. The accused persons also showed the
place where they abducted the deceased and panchanama was drawn
in terms of Ex.P6 and sketch was prepared in terms of Ex.P35. The
mahazar was also conducted and instructed to apprehend the accused
Nos.5 and 6 and to produce the vehicle which was used in committing
the offence and mahazar was drawn in terms of Ex.P24 and the vehicle
was seized by drawing mahazar in terms of Ex.P7. They also recorded
the statement of witnesses and also secured the sale deeds Exs.P13 to
P15 and also pahani i.e., Exs.P8 to P10. They also obtained Exs.P11
and P12 through the Village Accountant. The C.W.11 was also
produced before the Magistrate at Rona and he obtained Ex.P30. He
also signed the panchanama to take the femur bone and also blood
sample for test and collected the details of the phone calls of the
deceased and verified the call made to him and requested the call
details. He also collected OMR sheet in terms of Ex.P22 and Ex.P36.
This witness was further cross-examined and produced the document
of Exs.P25 to P29.
69. This witness was subjected to cross-examination. In the
cross-examination, suggestions are made that C.Ws.13, 14, 20 and 21
have not given any statement in terms of Exs.P25 to P29 and also he
did not conduct any panchanama. P.W.4 also not given any statement
in terms of Exs.D4 and D5. It is suggested that he has not recorded
the voluntary statement of accused Nos.2 to 4 and the said suggestion
was denied. It is suggested that he is falsely deposing that accused
persons have led and showed the place and the dead body was
recovered at their instance and the same was identified by his
relatives and the same was denied. It is also suggested that he had
not seized M.Os.8 to 13 in terms of Ex.P3 and he has not prepared any
sketch and drawn any mahazar in terms of Ex.P6 and the same was
denied. It is suggested that he did not go along with the accused and
panch witness and also not given any instructions to get the Doctor
and he is falsely deposing and the said suggestion was denied. He
admits that accused Nos.1 to 4, after arrest were in his custody till
their production before the Court and at that time, the staff and
advocate were not allowed to meet him. It is suggested that M.Os.4
to 8 were collected from the house of the deceased and the same were
not connected to the case and the said suggestion was denied. In the
further cross-examination, he admits that accused No.1 is having four
sisters and he had recorded the statement of Seethabai and she has
obtained stay in the Court and he did not record the statement of
other sisters. It is his evidence that on 04.01.2021, the accused
persons were arrested at 5.30 a.m. at Annigeri Cross and suggestion
was made that they were not produced before him and the same was
denied.
70. P.W.22, in his evidence says that on 16.12.2011, he took
up the investigation of the case and he had collected the details of the
mobile number and EMI number and requested the police to give
details of his call records. It is also his evidence that they searched
the deceased and he also recorded the statement of wife of the
deceased on 25.12.2011. It is also his evidence that on 03.01.2012,
P.W.1 came and complained in terms of Ex.P1 and he identifies his
signature as Ex.P1(b). He admits that investigation was entrusted to
CPI on 03.01.2012 and till giving of complaint dated 03.01.2012, no
one was arrested in the case.
71. We have given anxious consideration to both oral and
documentary evidence available on record. Having reanalyzed the
same, this Court has to find out whether the Trial Court has committed
an error in acquitting the accused persons or whether the Trial Court
has rightly acquitted the accused persons. Having considering both
oral and documentary evidence available on record, firstly, this Court
has to examine whether it is a case of homicidal death or not. Having
perused the evidence of the prosecution witnesses, it discloses that
dead body was recovered and the same was subjected to post mortem
examination by securing the Doctor at the spot since, the body was
highly decomposed. The same is also spoken to by the witnesses and
the Investigating Officer instructed to get the Doctor and accordingly,
the Doctor came and conducted the post mortem examination and has
given the report in terms of Ex.P30.
72. Having perused the documentary evidence, i.e., post
mortem report, it is clear that post mortem was conducted on
04.01.2012 and found whole face, nose, eyes and lips were swollen
and whole body had decomposed and generalized swelling were found
all over the body and hyoid bone was fractured. The Doctor also
opined that cause of death is due to asphyxia by strangulation. It is
important to note that right femur is preserved for identification.
Having considered the documentary and oral evidence of the Doctor,
who has been examined as P.W.14, his evidence is very clear that he
conducted the post mortem examination from 2.30 to 3.30 p.m. It is
also his evidence that body was decomposed and tongue was
protruded and hyoid bone was also fractured and his opinion is that, if
any object is used to strangulate, he could be murdered by
strangulation and gave the opinion that if, M.O.11 type of towel is
used for strangulation, death would be caused. No doubt, in the
cross-examination, it is elicited that he is working as a Doctor from the
last 19 years and also questions are put to him with regard to how
many days or hours will take for decomposition of body if the same is
thrown into a canal. In the cross-examination, with regard to
strangulation and fracture of hyoid bone is concerned, nothing is
elicited from the mouth of P.W.14 and answers are elicited only with
regard to tightening of the clothes if the dead body is swollen. No
doubt, he says that death might have been occurred 10 days ago, the
fact that body was found after 22 days after the incident is not in
dispute. In order to disbelieve the case of P.W.14 that death was on
account of strangulation and fracture of hyoid bone, nothing is elicited
and no specific defence is taken that, it is not a case of homicidal
death.
73. Having perused the evidence of witnesses and conducting
of post mortem examination at the spot since, body wad decomposed
and no doubt, femur bone was preserved and the same was sent for
examination, no positive report is received. But, the evidence of the
Doctor regarding homicidal death is concerned has not been
discredited by the defence. Hence, we conclude that it is a case of
homicidal death.
74. Now let us examine the material on record with regard to
the guilt of the accused persons. It is not in dispute that accused No.1
had not participated in committing the murder. But, he has been
implicated as accused No.1 on the ground that he is the architect of
the crime, since he was having motive to commit the murder and he
conspired with other accused persons to eliminate the deceased. With
regard to the very role of the accused No.1 is concerned, this Court
has to meticulously evaluate the material on record. It is the case of
the prosecution that he was having motive to commit murder since,
the deceased had filed a suit against this accused and he was the
cause for filing the suit by the sister of the accused No.1-Seethabai,
who has been examined as P.W.10. P.W.10 also speaks about enmity
between the deceased and the accused No.1 and the evidence of
P.W.4 is also clear with regard to the fact that both the accused No.1
and the deceased were relatives and accused No.1 is the cousin
brother of the deceased and he also speaks with regard to the fact
that land to the extent of 15 acres was given to one Renukabai,
maternal aunt of the deceased and P.W.1 also speaks about filing of
case by the sister of accused No.1 and also the deceased.
75. It is also important to note that, no doubt the witness
P.W.5, has not stated anything about the accused No.1, but the
evidence of P.W.10, the sister is very clear that she had filed the suit
against the accused No.1 and the accused No.1 is her own brother. It
is her specific evidence that the accused No.1 had committed murder
of the victim, since he was having motive that she has filed the case
against him at the instance of the deceased and she also categorically
says that this accused had sold 28 acres of land to others. No doubt,
this witness was treated hostile in part i.e., with regard to conspiracy
and taking the deceased in a vehicle and committing the murder, but
in the cross-examination, she says that the land which was given to
Renukabai should go to his father-Melagirigouda after her death. She
also says that mutation was also entered in the name of her father and
the fact that she has also filed a suit for partition against accused No.1
and obtained a stay is also not in dispute. It is her specific case that
accused No.1 was having ill-will against the deceased that at the
instance of the deceased only, case has been filed. It is also important
to note that P.W.11, who is the husband of P.W.10 reiterates that his
wife obtained the stay against the accused No.1 and it is also the
specific case that, even inspite of an injunction order, accused No.1
had sold the property. He also reiterates that accused was having ill-
will against the deceased that he is behind his wife in filing the suit.
But, he says that he does not know who had killed him but, claims that
his supporters would have killed the deceased and both of them speak
about ill-will and motive.
76. It is important to note that with regard to enmity between
the accused and the deceased is concerned, the evidence of P.Ws.1, 4,
10 and 11 corroborates with each other. It is relevant to note that
that the advocate, who filed the case against the sister of the accused
No.1 and the deceased has been examined as P.W.6. She also in her
evidence reiterates that she had filed the suit against accused No.1
and obtained an order of stay on behalf of P.W.10 and also the
deceased and she is an advocate of P.W.10 and the deceased. It is
also her evidence that, inspite of there being an injunction order, the
property was sold. In the cross-examination of P.W.6 also, nothing is
elicited by the defence counsel regarding filing of case and granting of
injunction and in spite of the same property was sold.
77. Having perused the oral evidence and also the
documentary evidence which have been placed before the Court, the
document of Ex.P16 substantiates the fact that stay order was granted
in O.S.No.127/2011 and copy of the order sheet in O.S.No.115/2011 is
also marked as Ex.P17 and there was also an order of stay. It is also
important to note that stay was granted in the suit filed by the
deceased on 07.12.2011 and within a span of four days, the deceased
was missing. It is important to note that the other documents which
have been produced before the Court i.e., Exs.P13 to 15-sale deeds
came into existence within five days of missing of the deceased and
the deceased was missing from 11.12.2011 and the sale deeds were
executed on 16.12.2011 and inspite of there being an order of stay in
O.S.No.127/2011 and O.S.No.115/2011, sale deeds are executed and
these documents substantiate the case of the prosecution that accused
No.1 was having motive to eliminate the deceased. The evidence of
prosecution witnesses i.e., both oral and documentary evidence clearly
discloses the link between each of the incident and missing of the
deceased and execution of sale deeds within a span of five days of
missing of the deceased and also obtaining the stay order by the sister
of the accused No.1 and also the deceased which is evident from the
documents of Exs.P16 and P17. Hence, it is clear that all the
circumstance goes against the accused No.1 pointing out the fact that
he conspired with other accused persons.
78. It is also the evidence of the prosecution witnesses that
accused No.2 is the friend of accused No.1 and both of them were
helping each other and the fact that accused No.2 is the friend of
accused No.1 is not in dispute. The case of the prosecution that both
of them were helping each other is also not in dispute. It is important
to note that in respect of the sale deeds which were executed in terms
of Exs.P13 to P15 in respect of the property for which a stay was
granted, the accused No.2 is the signatory to all the sale deeds and
the same is also not disputed by accused No.2 in the evidence which
had been led by the prosecution and the same also connects the fact
that accused Nos.1 and 2 are friends and they were helping each other
in their act of committing the murder of the deceased. In the cross-
examination of the witnesses, the witnesses have spoken about their
relationship and participation in the crime and the sale deeds which
have been produced as Exs.P13 to P15 bears the signature of accused
Nos.2 and this fact also establishes the conspiracy between the
accused Nos.1 and 2 and accused No.2 actively participated in selling
the property which was subject matter of the suit and there were stay
in both the suits.
79. It is also important to note that, when conspiracy is
alleged, the same cannot be proved by direct evidence and the
circumstances leading to conspiracy have to be established. The
factors which have been discussed above establish the circumstances
regarding conspiracy. It is important to note that the deceased was
missing from 11.12.2011 and within a span of 4 to 5 days having the
knowledge about committing the murder of the deceased, sale deeds
are executed and execution of the sale deeds is also not disputed.
Hence, conspiracy is established and there is a chain link between
each of the circumstances granting stay in the suits filed by the
deceased as well as the sister of accused No.1. The sister of the
accused No.1 and husband of the sister have categorically deposed
against accused No.1 that he though there was person got committed
murder of the deceased. Hence, it is clear that accused No.1 is the
architect of the crime and joined his hands with accused persons.
80. Now, coming to the aspect of evidence against the other
accused persons i.e., accused Nos.2 to 4, we have already discussed
the link between accused Nos.1 and 2 and involvement of accused
No.2 in selling the property of Renukabai, maternal aunt of the
deceased and he is also a signatory to the sale deeds which have been
executed within a span of 4 to 5 days of missing of the deceased. No
doubt, the body was recovered on 04.01.2012. It is important to note
that though earlier, missing complaint was given in terms of Ex.P2,
subsequently, complaint at Ex.P1 was given suspecting the role of
accused Nos.1 to 4 and based on the said complaint at Ex.P1, accused
Nos.2 to 4 were apprehended on the very next day and to that effect,
there is a police report producing the accused Nos.1 to 4 before the
Investigating Officer.
81. It is also important to note that while investigating the
matter, the police have secured the panch witnesses and the accused
themselves have led the panch witnesses and the police and showed
the place where they had thrown the dead body but, the dead body
was not found in the said place. But, when they searched for the
same, they found the dead body at the distance of 2 kms. and one
witness says that dead body was found at the distance of 2 kms. and
another says that it was found at the distance of 1½ kms. and yet
another says that it was found at the distance of 200 mtrs. from the
place where the dead body was thrown shown to them and the same is
recovered at the instance of the accused persons i.e., accused Nos.2
to 4.
82. It is important to note that P.W.1, son of the deceased is
also a part of recovery of the dead body and P.W.2 is a panch witness
for recovery of the dead body. Both P.Ws.1 and 2 say that they went
to police station at around 9.30 a.m. and thereafter, the accused
persons led them to the spot where the dead body was disposed off.
The witnesses P.Ws.1 and 2 also categorically stays that accused
Nos.2 to 4 showed the place where they had thrown the body and all
of them identified the dead body. P.W.2 also speaks with regard to
photo taken at the spot in terms of Ex.P4. It is also relevant to note
that P.W.2 speaks with regard to the discovery of the dead body at the
instance of accused Nos.2 to 4 and he says that at the distance of 1
km., the body was found and he also reveals the fact as to how the
dead body was wrapped with bed sheet and each of the witnesses
have spoken with regard to the cement stone tied to the dead body
which had been decomposed and also with regard to seizure of black
rope tied to his hand and genivara thread which were worn by the
deceased and identified the material objects which have been seized at
the time of recovery of the dead body, based on which the dead body
was identified.
83. The other witness is P.W.4, who accompanied along with
P.W.1 while lodging the missing complaint and he also speaks about
the motive for committing the murder and enmity between the
accused Nos.1 and deceased. Further, the accusation against the
accused No.3 is that he was working in the land of the deceased and
he was removed from working in the land of the deceased. The fact
that he was working in the land of the deceased is not in dispute and
the witnesses have also spoken with regard to the fact that he was
working with the deceased from past 7 to 8 years and he was removed
from service 3 to 4 years ago and defence counsel themselves
suggested that he is an expert in agricultural work. It is also the
evidence of the witness that when he was removed from the
cultivation of the property of the deceased, the deceased gave a
money of Rs.50,000/- but, no documentary evidence to that effect.
But, he says that the said amount was given in the presence of one
G.N. Patil and others. In the cross-examination of this witness,
nothing is disputed with regard to the fact that he was not working in
the land of the deceased and accusation against him is that he was
having grudge against the deceased since, he was removed from the
work and he was also taking care of one Naganagouda and he had
promised to give some property to him but, on account of removal of
his service from the cultivation of the land of the deceased, he was
having grudge and these are the facts which are not disputed by the
prosecution though suggestion was made that he was not having any
motive and P.W.4 categorically says about his presence only an
amount of Rs.50,000/- was paid to him.
84. It is also important to note that it is the case of the
prosecution that accused No.4 and deceased had boarded the traxs
belonging to P.W.5 near the bus stand and thereafter, accused Nos.2
and 3 have also boarded the very same vehicle at a distance of 1 km.
from the place where the accused No.4 and the deceased had boarded.
It is important to note that the prosecution mainly relies upon the
evidence of P.W.5, who is the star witness of the prosecution as an
eye witness. No doubt, the P.W.5 had not lodged the complaint and
immediately after the incident, his statement was recorded only on
05.01.2012, after the recovery of the dead body at the instance of the
accused persons and vehicle belonging to him was also seized and
mahazar was drawn and P.W.3 is the witness for seizure of vehicle i.e.,
Ex.P7. Hence, it is clear that thereafter, he got released the vehicle
belonging to him and the evidence is also clear that the vehicle
belongs to P.W.5 and the same is not disputed by the accused
persons.
85. It is important to note that the accusation against the
accused Nos.2 to 6 is that all of them boarded the vehicle belonging to
P.W.5 and committed murder inside the vehicle by strangulating the
deceased. P.W.5 also reiterates against accused Nos.2 to 4, but, no
doubt, he had not informed the same to the family of the deceased
when they were searching the deceased. But, the very evidence of
P.W.5 is clear that he was threatened not to reveal the same and if he
reveals the same to anybody, he would be taught a lesson as that of
the deceased. Having perused the evidence available on record, his
evidence is very clear that at each and every stage, when he intended
to proceed to a different place, the accused persons, particularly
accused Nos.2 and 3 have threatened and directed him to proceed to a
different place as they direct.
86. It is pertinent to note that the learned counsel for the
appellant relied upon the judgment of the Apex Court in CRIMINAL
APPEAL NO.1181 OF 2019 dated 07.10.2021 and brought to notice
of this Court the observation made by the Apex Court that it is true
that there was some delay in recording the statements of the
concerned eye-witnesses but mere factum of delay by itself cannot
result in rejection of their testimonies. The material on record
definitely establishes the fear created by the accused. If the witnesses
felt terrorised and frightened and did not come forward for some time,
the delay in recording their statements stood adequately explained.
Nothing has been brought on record to suggest that during the
interregnum, the witnesses were carrying on their ordinary pursuits.
No doubt, it is the contention of the learned counsel for the
respondents-accused that evidence of P.W.5 is not credible, however,
this judgment is aptly applicable to the facts of the case on hand, since
he has categorically deposed regarding threat caused to him not to
reveal the same to anybody. Hence, the contention of the learned
counsel for the respondents-accused cannot be accepted and
regarding threat is concerned P.W.5 withstood the cross-examination.
87. Having perused the evidence of P.W.5 also, nothing is
elicited with regard to the fact that he was having any enmity against
the accused persons, who deposed against them and nothing is found
in the cross-examination of P.W.5. In the cross-examination, he only
deposes that he was not having any acquaintance with the accused
persons prior to the incident. It has to be noted that the incident has
taken place on 11.12.2011 and accused Nos.2 to 4 were arrested on
04.01.2012 i.e., within a span of 22 days. This witness was secured
before the Court and he identified them and the Trial Court has given
much importance to his evidence that prior to the incident, he was not
having any acquaintance with the accused persons and hence, his
evidence cannot be believed and the very approach of the Trial Court
is erroneous. The Trial Court has failed to take note of the fact that
complaint was given on 03.01.2012 suspecting the role of the accused
persons and thereafter, the accused Nos.2 to 4 were apprehended on
the next day and at the instance of accused persons, body was
discovered and failed to take note of Section 27 of the Evidence Act,
when there is a discovery at the instance of the accused persons.
88. It is also important to note that the witness P.W.22 speaks
with regard to collecting the call details and in the cross-examination,
the defence counsel appearing for the accused No.2 himself suggested
that till the filing of complaint dated 03.01.2012, no one was arrested.
Hence, it is clear that only on the basis of complaint at Ex.P1, the
accused persons were apprehended and thereafter, on the very same
day, body of the deceased was discovered at the instance of accused
Nos.2 to 4 and inspite of an effort made by the family members and
also the police based on the missing complaint dated 16.12.2011, they
were unable to trace the dead body. The said fact of discovery of the
dead body at the instance of accused Nos.2 to 4 has been over looked
by the Trial Court. The accused persons, who committed the murder
and disposed off the body took the police and also the panch witness
to the spot and showed the place where the dead body was thrown
and in furtherance of search, dead body was found at a distance of 2
kms. from the place where the dead body was thrown and this
evidence has not been considered by the Trial Court and committed an
error in acquitting the accused persons.
89. The Trial Court also committed an error in coming to the
conclusion that one of the police witness, who made the statement
before the Court that he went to spot at 8.00 O' clock and the same
has been exaggerated and not considered the fact that dead body was
discovered at the instance of the accused persons. The Trial Court
also failed to consider the evidence of P.Ws.1, 2 and 4 and even failed
to consider the evidence of witness, P.W.11, who categorically depose
before the Court that they left the police station at 9.30 and reached
the spot at 11.30 and inquest and post mortem was conducted till 4.00
O' clock and the same has not been looked into and only highlighted
and magnified the admission given by one of the official witness i.e.,
the Police Constable. He says that he went to spot at 8.00 O' clock
and failed to consider the other evidence available on record and the
very approach of the Trial Court is erroneous in doubting the case of
the prosecution. No doubt, the case of the prosecution against
accused No.4 is that she was having illicit relationship with the
deceased. It is the case of the prosecution that she was working in the
land of the deceased and she was also having grudge against the
deceased and the fact that she was working in the land of the
deceased is not in dispute and the same has emerged in the evidence
of the prosecution witnesses and P.W.5 evidence is clear that accused
No.4 first boarded his vehicle along with the deceased and Court can
draw an inference that the victim came at the instance of accused
No.4 and boarded the vehicle belonging to P.W.5. The document also
reveals that the vehicle belongs to P.W.5. The evidence of P.W.5 is
also clear that accused No.4 boarded his vehicle along with the victim.
Even P.W.5 identified accused No. 1 to 4 before the Court also.
90. It is also the case of the prosecution that deceased asked
the accused No.4 to get the accused No.6 for his sexual act. Hence,
she is having grudge against the deceased and accused No.6 is none
other than the sister-in-law of the accused No.4. It is the case of the
prosecution that accused No.5 was having illicit relationship with
accused No.6 and accused Nos.5 and 6 were also having grudge in
view of the conduct of the deceased. But, it is the case of the
prosecution that all of them joined together in eliminating the
deceased. But, P.W.5, who is an eye witness and driver-cum-owner of
the vehicle deposes only against the accused Nos.2 to 4 with regard to
boarding of vehicle and committing the murder and not deposes
anything against accused Nos.5 and 6. Except the accusation against
accused Nos.5 and 6, no other material is found with regard to
conclusive proof against them.
91. It is also the fact that accused Nos.5 and 6 were
apprehended on the very next day i.e., 05.01.2012, but the body was
recovered at the instance of accused Nos.2 to 4 on the previous day
on 04.01.2012. When such materials are available before the Court,
we do not find any sufficient material against the accused Nos.5 and 6
to convict them, but we find sufficient material against the accused
Nos.1 to 4, who have indulged in taking away the life of the deceased.
The material also discloses the motive of accused Nos.1 to 4 in
committing the murder of the deceased and both oral and
documentary evidence available on record is suffice to come to a
conclusion that accused Nos.1 to 4 conspired with each other and
committed murder of deceased Martandagouda and the accused No.1
availed the services of accused Nos.2 to 4 to commit the murder. The
medical evidence also supports the cause of death i.e., due to
strangulation and the Doctor has also opined that the towel which is
marked as M.O.11 could cause the murder if it is used for throttling
and as a result, hyoid bone was fractured and there are clinching
evidence before the Court to connect accused Nos.1 to 4 and there is a
chain link between each of the circumstances to take away the life of
the deceased Martandagouda.
92. This Court also would like to list out the chain link between
each of the circumstances that has occurred, in order to arrive at a
conclusion that accused Nos.1 to 4 themselves committed murder of
deceased Martandagouda which reads as hereunder:
(i) The prosecution has established the relationship
between accused No.1 and the deceased
Martandagouda and the accused No.1 is the
cousin brother of the deceased and the same is
not disputed.
(ii) The sister of the accused No.1 i.e., P.W.10 had
filed a suit and obtained an order of stay against
accused No.1 not to alienate the property and
the same is spoken by herself as P.W.10 and her
husband as P.W.11 and deposed against accused
No.1 with regard to motive.
(iii) The deceased had also filed a suit and obtained
an order of injunction against the accused No.1
not to alienate the property is not disputed and
documentary evidence is produced before the
Court.
(iv) The stay order has been granted in the suit filed
by the deceased on 07.12.2011 and the
deceased was missing from 11.12.2011 within a
span of 4 days of granting of stay.
(v) The said property was sold within a span of five
days of missing of the deceased i.e., on
16.12.2011 inspite of stay order in both suits
and inference can be drawn that accused No.1
hatched a plan to eliminate him to sell the
property.
(vi) The accused No.2 is also a signatory to the said
sale deeds i.e., Exs.P13 to P15.
(vii) The P.W.5 speaks about boarding of his vehicle
by accused Nos.2 to 4 on 11.12.2011.
(viii) The P.W.5 also speaks about each act of accused
Nos.2 to 4 and he witnessing the same and his
evidence is credible, though he gave the
statement before the police belatedly but
explained the threat.
(ix) The accused Nos.2 to 4 were arrested on
04.01.2012 and the body was recovered at their
instance and the towel which was used for
committing the murder by strangulation is also
seized and the same was sent to Doctor and he
gave the opinion that by using the said towel,
the deceased could be strangulated.
(x) The medical evidence is also very clear that it is
a case of homicidal death since, the hyoid bone
of the deceased was fractured.
(xi) The recovery witnesses have also supported the
case of the prosecution i.e., discovery of the
dead body and seizure of articles i.e., M.Os.1 to
13 i.e., P.W.1, 2, 4 and 11.
(xii) The witnesses have also identified the dead body,
even though it was decomposed on account of
recovery of black rope which was tied in the
hand of the deceased and also genivara thread
though disputed the identity of the body of the
deceased.
(xiii) The witnesses P.Ws.1, 2, 4 and 11 are the
witnesses for recovery of the dead body at the
instance of accused Nos.2 to 4.
(xiv) P.W.10, who is the sister of accused No.1 and
P.W.11, who is the husband of P.W.10 also
categorically deposed that accused No.1 was
having motive and got murdered the deceased
Martandagouda through his people and the sister
of the accused No.1 has deposed the same and
her evidence cannot be discredited regarding
motive and ill-will. P.W.6, the Advocate, who got
the injunction order against accused No.1 on
behalf of P.W.10 and victim also proved.
93. Having perused all these sequence of events and also
credible evidence of the prosecution witnesses, it is a clear case of
murder by the accused Nos.1 to 4 and there is a chain link between
each of the circumstances in committing the murder of the deceased
and recovery of the dead body at the instance of accused Nos.2 to 4
and towel which was used for committing the murder. Further, the
opinion of the Doctor also supports the case of the prosecution and
these are the factors which have not been considered by the Trial
Court and ignored the same, only taking note of some of the
discrepancies in the evidence of the prosecution and the same not
goes to the very root of the case of the prosecution and such
discrepancies bound to occur and Court cannot expect mathematical
niceties when the trial takes sufficient time. The decisions given by the
counsel for the accused are not applicable to the facts of the case
since the case is not only rest of the circumstantial evidence. The
P.W.5 is the eye-witnesses and he narrated how the murder was
committed and causing of threat has been explained in his evidence.
The Ramjee's case referred above regarding medical evidence
applicable to the case on hand. Regarding Section 27 of the Evidence
Act, Mir. Mohammed Omar case applicable to the case on hand,
information disclosed by the evidence leading to the discovery of a fact
which is based on mental state of affair of the accused, is admissible in
evidence. Md. Mannar @ Abdul Mannan's case referred supra also
applicable to the facts of the case on hand regarding discovery and
recovery for invoking Section 27 of the Evidence Act. The defence
relied upon Mahendra Singh Case regarding unreliable witness, and
the same is not applicable since evidence of prosecution witness are
reliable except minor discrepancies. Raju's case is also not applicable
since there is direct evidence of P.W.5 is available.
94. The Trial Court having assessed the evidence comes to an
erroneous conclusion in not believing the evidence of P.W.5 only on
the ground that there was a delay in making statement and only taken
note of admission of one of the official witness that he went to the spot
at 8.00 O' clock but, magnified the documents at Exs.P19 to P21 which
were marked at the instance of P.W.5 and given much importance to
the fact that P.W.5 was not having acquaintance with the accused
persons prior to the incident but, he identified the accused persons in
the police station and also before the Court that they boarded his
vehicle. But, failed to take note of the fact that vehicle belongs to
P.W.5 and he himself is the driver-cum-owner of the vehicle and he
allowed the accused persons to board the vehicle on a particular day
and narrated as to how the incident has taken place and the threat
meted out to him is not taken into consideration by the Trial Court and
only comes to the conclusion that P.W.5 is an eye witness and he has
given different version in his statements recorded under Sections 161
and 164 of Cr.P.C. and magnified that P.W.5 says that his 164
statement was not read over to him but, the fact that learned
Magistrate has been examined before the Court as P.W.20 is not in
dispute and he deposes that he has recorded the statement of P.W.5
and P.W.5 also categorically says that while making the statement, no
other persons were there and even the police were not there and only
because of threat, he did not give evidence against the accused Nos.5
and 6 and denies the very role of the accused Nos.5 and 6 on the date
of the incident while giving evidence before the Court and the same
has been magnified and disbelieved and the very approach of the Trial
Court is erroneous and failed to take note of other material on record,
particularly the discovery of the dead body at the instance of accused
Nos.2 to 4 in terms of Section 27 of the Evidence Act and nothing has
been discussed in the judgment with regard to the discovery of the
dead body and invoking Section 27 of the Evidence Act and committed
an error. The Trial Court fails to take note of documentary evidence
particularly Exs.P.8 to P.17 regarding motive and fails to take note of
conduct of accused and Section 8 of Evidence Act.
95. This Court would like to refer the judgment of the Apex
Court in STATE OF HIMACHAL PRADESH VS. RAJ KUMAR reported
in (2018) 2 SCC 69, wherein the Apex Court while appreciating the
material on record, particularly in a criminal trial, that too, in a case of
circumstantial evidence, held that an inference of guilt sought to be
drawn, must be cogently and firmly established and those
circumstances must be conclusive in nature unerringly pointing
towards guilt of accused. Moreover, all circumstances taken
cumulatively should form a complete chain and there should be no gap
left in the chain of evidence and further held that proved
circumstances must be consistent only with hypothesis of guilt of
accused and totally inconsistent with his innocence. The Apex Court
also held that while appreciating the evidence of witnesses, the
approach must be, whether evidence of witness read as a whole
appears to be truthful in the given circumstances of case. Once that
impression is formed, it is necessary for Court to scrutinise the
evidence more particularly keeping in view the drawbacks and
infirmities pointed out in evidence and evaluate them to find out
whether it is against the general tenor of prosecution case. This
judgment is aptly applicable to the case on hand.
96. We have also listed out the chain of circumstances above,
in order to arrive at a conclusion that accused Nos.1 to 4 have
committed murder and chain link is complete and the Court can draw
the inference that the accused persons themselves have committed
the murder of the deceased and the same has been cogently and
firmly established and there is a conclusive evidence unerringly
pointing towards guilt of the accused Nos.1 to 4. The material
collected by the prosecution i.e., both oral and documentary evidence
establishes that there was a conspiracy between the accused Nos.1
and other accused persons and murder was committed at the instance
of accused No.1 and both oral and documentary evidence available on
record supports the case of the prosecution i.e., particularly Exs.P13 to
P15 and Exs.P16 and P17 that he was having motive and ill-will
against the deceased and accused Nos.2 to 4 have also involved in
eliminating the deceased by strangulating him for their own grudge
and the medical evidence also supports the same. Hence, all these
circumstances are conclusive to come to a conclusion that there is a
chain link between each of the incident to form a complete chain and
there is no gap left in the chain of evidence and the circumstances
cumulatively forms a chain so complete that there is no escape from
the conclusion that within all human probability the crime was
committed by the accused Nos.1 to 4. Apart from that, the prosecution
also relied upon the direct evidence of P.W.5 and the Court has to see
the quality of evidence and not the quantity. Though P.W.5 is sole eye
witness his evidence is accurate, except the delay and the same is
explained by him each stage of threat. Hence, it requires interference
of this Court, in order to reverse the findings of the Trial Court in
respect of accused Nos.1 to 4 and no sufficient material is placed
before the Court against the accused Nos.5 and 6, particularly since,
the witness P.W.5 has not supported the case of the prosecution and
other material also not points out the participation of the accused
Nos.5 and 6 in committing the murder of the deceased
Martandagouda. Hence, the benefit of doubt goes in their favour. We
noticed no ingredients to invoke Section 143, 147, 364 of IPC. In
order to invoke Section 364 there must be ingredients of abduction but
voluntarily boarded the vehicle in an intelligent manner and accused
No.4 secured victim and first boarded thereafter others boarded the
vehicle. The material available before the Court is only to invoke the
offence under Section 302, 120B, 201 and 506 read with Section 34 of
IPC. Accordingly, we answer point No.(1) as 'affirmative'.
Point No.(2)
97. In view of the discussion made above, we pass the
following:
ORDER
(i) The appeals are allowed in part.
(ii) The judgment of acquittal passed in
S.C.No.37/2012 dated 30.03.2019 is hereby
set aside against accused Nos.1 to 4 and the
accused Nos.1 to 4 are convicted for the
offences punishable under Sections 120-B,
302, 201 and 506 read with Section 34 of
IPC.
(iii) The acquittal of accused Nos.5 and 6 is
confirmed.
(iv) The bail bond executed by accused
Nos.1 to 4 are cancelled.
(v) The accused counsel are directed to
secure the accused Nos.1 to 4 before the
Court and post the matter for hearing on
sentence on 05.12.2023.
Sd/-
JUDGE
Sd/-
JUDGE
ST
HPSJ & RDHJ:
05.12.2023
(VIDEO CONFERENCING / PHYSICAL HEARING)
ORDERS ON "HEARING ON SENTENCE"
Accused Nos.1 to 3 are secured through their respective counsel
and it is reported that accused No.4 is no more and the same is not in
dispute.
2. The learned counsel appearing for accused No.1 would
submit that he is in death bed and he was admitted to the hospital and
today he is appearing before the Court after discharge from the
hospital. The counsel further submits that he was in custody about
7½ years and the Court has to consider his condition and lenient view
has to be taken.
3. The learned counsel appearing for accused No.2 would
submit that he is having aged mother who is admitted in the hospital
and he is the only bread earning member in the family and the Court
has to take note that he is not having any motive to commit the
murder.
4. The learned counsel appearing for accused No.3 submits
that accused No.3 was in custody for 7½ years and except the motive
that he was having ill-will against the deceased, no sufficient material
is placed against him and hence, the Court has to take lenient view in
sentencing.
5. Per contra, the learned counsel appearing for the State
would submit that now the question before the Court is whether it
comes within rarest of rare case or a life imprisonment is an
appropriate sentence. The Court has to take note of the manner in
which the accused persons have committed the murder and disposed
of the body and also take note of the conduct of the accused persons
that after committing the murder, immediately they got transferred
the property by accused No.1 and accused No.2 is a signatory to the
said transaction. Hence, the question of considering lesser sentence
does not arise in a case when offences punishable under Sections 302,
120B, 201 and 504 read with Section 34 of IPC have been invoked
against accused Nos.1 to 3.
6. Having heard the respective counsel and also considering
the material on record and the manner in which the offences have
been committed, accused persons are liable to be sentenced for the
following offences:
(a) Accused Nos.1 to 3 are sentenced for an offence
punishable under Section 302 read with Section
34 of IPC for life imprisonment and to pay fine of
Rs.10,000/- each, in default, shall undergo for
further six months imprisonment.
(b) Accused Nos.1 to 3 are sentenced for an offence
punishable under Section 120B read with Section
34 of IPC for life imprisonment and to pay fine of
Rs.10,000/- each, in default, shall undergo for
further six months imprisonment.
(c) Accused Nos.1 to 3 are sentenced for an offence
punishable under Section 201 read with Section
34 of IPC for a period of two years and to pay fine
of Rs.5,000/- each, in default, shall undergo for
further three months imprisonment.
(d) Accused Nos.1 to 3 are sentenced for an offence
punishable under Section 506 read with Section
34 of IPC for a period of six months and to pay
fine of Rs.2,500/- each, in default, shall undergo
for further two months imprisonment.
7. The sentence shall run concurrently. Accused Nos.1 to 3
be committed to prison to undergo sentence.
8. Out of the fine amount, 90% shall be paid to the wife of
the deceased as compensation.
9. The Chairmen of the Legal Services Authority is also
directed to consider the case of the victim for payment of
compensation as per Section 357A of Cr.P.C.
10. Issue conviction warrant.
11. If there is any need of providing treatment to accused
No.1, the Jail Authority is directed to consider the same.
12. Registry is directed to issue free copy of this judgment of
conviction and order on sentence to accused Nos.1 to 3.
13. Registry is directed to send the records to the Trial Court
forthwith.
Sd/-
JUDGE
Sd/-
JUDGE
SN
