Karnataka High Court
The State Of Karnataka vs Saritha on 28 November, 2023
Author: H.B.Prabhakara Sastry
Bench: H.B.Prabhakara Sastry
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CRL.A.No.425 OF 2017
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 28TH DAY OF NOVEMBER, 2023
PRESENT
THE HON'BLE DR. JUSTICE H.B.PRABHAKARA SASTRY
AND
THE HON'BLE MR. JUSTICE ANIL B KATTI
CRL.A No.425 OF 2017 (A)
BETWEEN:
THE STATE OF KARNATAKA
BY THALAGHATTAPURA POLICE STATION
BENGALURU
REPRESENTED BY
STATE PUBLIC PROSECUTOR,
HIGH COURT OF KARNATAKA,
BENGALURU. ... APPELLANT
(BY SRI B.N. JAGADEESHA, ADDL. SPP)
AND:
1. SARITHA
W/O. NAGARAJU
AGED ABOUT 29 YEARS,
R/AT RENTED HOUSE OF MARIYAPPA,
NARAYANAPPA LAYOUT,
MATRIMONIAL HOUSE AT
KALLAREPURA VILLAGE,
MALAVALLI TALUK,
MANDYA DISTRICT-571 430.
2. SHIVU
S/O. MARIYAPPA,
AGED ABOUT 30 YEARS,
R/AT NARAYANAPPA LAYOUT,
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CRL.A.No.425 OF 2017
THALAGHATTAPURA,
PERMANENT R/AT MALLENAHALLI VILLAGE
MARALAVADI HOBLI,
KANAKAPURA TALUK-562 117. ... RESPONDENTS
(BY SRI. MOHAMMED PASHA C., ADVOCATE FOR R-1;
SRI. JAVEED S., ADVOCATE FOR R-2;
[APPOINTED AS AMICUS CURIAE V/O. DATED 22.08.2023])
-------
THIS CRIMINAL APPEAL IS FILED UNDER SECTION 378
(1) & (3) OF CR.P.C., PRAYING TO GRANT LEAVE TO APPEAL
AGAINST THE JUDGMENT AND ORDER OF ACQUITTAL DATED
26.10.2016 PASSED BY THE VII ADDITIONAL DISTRICT AND
SESSIONS JUDGE, BENGALURU RURAL DISTRICT, BENGALURU
IN S.C.NO.106/2011, THEREBY, ACQUITTING THE ACCUSED/
RESPONDENT FOR THE OFFENCE P/U/S 302 AND 201 OF IPC
AND ETC.
THIS CRIMINAL APPEAL HAVING BEEN HEARD THROUGH
PHYSICAL HEARING/VIDEO CONFERENCING FOR FURTHER
ARGUMENTS AND RESERVED ON 24.08.2023, COMING ON FOR
PRONOUNCEMENT OF JUDGMENT,THIS DAY ANIL B.KATTI, J.,
DELIVERED THE FOLLOWING:
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CRL.A.No.425 OF 2017
JUDGMENT
Appellant/State feeling aggrieved by judgment of
Trial Court on the file of VII Additional District and
Sessions Judge, Bengaluru in S.C.No.106/2011 dated
26.10.2016 preferred this appeal.
2. Parties to the appeal are referred with their ranks as
assigned in the Trial Court for the sake of convenience.
3. The factual matrix leading to the case of prosecution
can be stated in nutshell to the effect that on 21.11.2010
Nagaraju s/o Huchaiah filed complaint stating that on
18.11.2010 when he returned from work, his daughter
Tanushree was found missing from the house. As she was
not traceable in spite of diligent search made by him,
hence, filed missing complaint on 21.11.2010 and case
was registered in Thalaghattapura Police Station in Crime
No.587/2010.
On 28.11.2010, one Ravi s/o Mariyappa, brother of
accused No.2, filed complaint stating that on 22.11.2010
at about 8.00 A.M., his brother Shivu working as driver in
CRL.A.No.425 OF 2017
J P Nagar went out of the house on pretext of going to
work and he did not return back to the house. In spite of
due search and enquiry with neighbours and relatives,
whereabouts of his brother Shivu was not traced. On the
basis of said complaint dated 28.11.2010, the PSI
registered a case in Thalagattapura police station in Crime
No.600/2010.
During investigation of missing complaint registered
in Crime No.600/2010 of Thalagattapura Police Station,
accused Nos.1 and 2 were arrested and produced before
the PSI of Thalagattapura police by one Durgegowda
H.C.30 from Hargi Village of Shivamogga on 17.12.2010.
During the course of investigation, after arresting accused
Nos.1 and 2, the PSI of Thalagattapura police station filed
requisition before the CJM, Bengaluru dated 18.12.2010
for treating him as the complainant in the case registered
in Crime No.600/2010. On the basis of said requisition,
another FIR was drawn in the same Crime No.600/2010 of
Thalagattapura police station for the offences punishable
under Sections 302 and 201 of IPC. The Investigating
CRL.A.No.425 OF 2017
Officer after completing the investigation filed charge
sheet for the offences punishable under Sections 302, 201
of IPC.
appeared through their counsel. The Trial Court on being
prima facie satisfied of charge sheet materials framed
charges against accused for the offences alleged against
them. Accused Nos.1 and 2 pleaded not guilty and claimed
to be tried. Prosecution in order to prove the allegations
made against the accused relied on the oral testimony of
PWs.1 to 15 and documents Exs.P.1 to P.19, so also got
identified MOs.1 to 5.
5. On closure of the prosecution evidence, the statement
of accused under Section 313 of Cr.P.C. came to be
recorded. Accused Nos.1 and 2 have denied all the
incriminating material evidence appearing against them
and claimed that false case is filed. The Trial Court after
appreciating the evidence on record acquitted both the
accused for the offences alleged against them.
CRL.A.No.425 OF 2017
6. Appellant/State challenging judgment of acquittal of
accused Nos.1 and 2 contended that Trial Court has not
properly appreciated the evidence of PW.3-Nagaraju,
father of the deceased-Tanushree and PW.6-Chandramma,
mother of PW.3, who are the material witnesses to speak
on the allegation of missing of accused No.1 and
Tanushree from the house. PW.3-Nagaraju has filed
missing complaint on 21.11.2010 Ex.P.3 and he has also
identified the dead body of his daughter and the
photographs taken Exs.P4 to P6. The case of prosecution
rests on circumstantial evidence. There is strong motive
for accused Nos.1 and 2 to commit murder of Tanushree,
since she was an obstacle for their illicit relationship and
the same is substantiated by the oral testimony of PW.3-
Nagaraju and PW.6-Chandramma. PW.10-Mallesh, Gate
Operator is witness on the last seen theory who has seen
accused Nos.1 and 2 with deceased Tanushree on the dam
site. Accused No.1 has pledged her gold Mangalya Chain
and Ring and the same has been recovered as per MOs.4
CRL.A.No.425 OF 2017
and 5 at the instance of accused No.1 which has been
substantiated by the oral testimony of PW.8-P Kumar who
is working in Nandi Bankers Jewellery shop and PW.9-
Ladhuram owner of the said shop. The evidence of these
two witnesses is further corroborated by the oral
testimony of Investigating Officer PW.15- T. Mahadev.
PW.3-Nagaraju identified MOs.4 and 5. The dead body of
Tanushree was recovered at the instance of accused Nos.1
and 2 and the said fact is corroborated by the evidence of
PW.2-Satish, PW.4-Mahadev and PW.11-Swamy. The
prosecution out of the evidence of above referred material
witnesses has established the complete chain of
circumstances to prove that it is accused Nos.1 and 2 who
have committed murder of Tanushree. The Trial Court
was not justified in outrightly rejecting their evidence and
committed serious error in acquitting accused Nos.1 and 2
for the offences alleged against them. The observations
and findings recorded by the Trial Court are contrary to
the evidence on record. Therefore, prayed for allowing the
appeal and to set aside the judgment of Trial Court,
CRL.A.No.425 OF 2017
consequently to convict both the accused for the offences
alleged against them.
7. In response to the notice of appeal, respondent No.1
(accused No.1) appeared through counsel and vide order
dated 22.8.2023, Amicus Curiae was appointed to
represent respondent No.2. The Trial Court records have
been secured.
8. Heard the arguments of both sides.
9. After hearing both sides and on perusal of the Trial
Court records, including the impugned judgment, the
following points arise for consideration:
1)Whether the prosecution proved beyond
reasonable doubt that accused No.1 and 2 had illicit
relationship and as deceased Tanushree had seen the
same, accused having apprehended that she may
reveal the same before others, on 18.11.2010, at
about 9.00 a.m. took Kum.Tanushree from
Thalaghattapura to the bridge on H.D.Devegowda
Barrage at Iggaluru and at about 6.30 p.m. pushed
her to the dam water with an intention and
knowledge to commit her murder, thereby
CRL.A.No.425 OF 2017
committed the offence punishable u/s 302 r/w 34 of
IPC?
2) Whether the prosecution has further proved
beyond all reasonable doubt that both accused No.1
and 2 after committing the murder of deceased
Tanushree in order to screen themselves from the
legal punishment caused disappearance of evidence
and thereby committed the offence punishable u/s
201 r/w of IPC?
3) Whether the judgment of Trial Court requires any
interference by this Court ?
10. On careful perusal of oral and documentary evidence
placed on record, it would go to show that accused No.1 is
the wife of PW.3-Nagaraju and they were living with their
daughter Tanushree in Thalaghattapura. Accused No.2 is
the son of owner of the house in which PW.3-Nagaraju and
accused No.1 were residing as tenants. The father of
deceased Tanushree i.e. PW.3-Nagaraju filed missing
complaint of his daughter on 21.11.2010 vide Ex.P3.
Similarly, one Ravi, brother of accused No.2, filed missing
complaint of accused No.2 on 28.11.2010 Ex.P7 alleging
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CRL.A.No.425 OF 2017
that his brother Shivu is missing from 22.11.2010 and
accordingly, case was registered in Thalaghattapura police
station on 28.11.2010 Ex.P.8. The details of information
regarding missing of accused No.2 is recorded as per
Ex.P9 are the facts not in serious dispute and the same
also borne out from the material evidence placed on
record by the prosecution.
11. The prosecution has classified the evidence of
prosecution witnesses to prove the circumstances i.e., (1)
motive (2) last seen theory (3) recovery of dead body at
the instance of accused Nos.1 and 2 (4) recovery of
pledged gold articles belonging to accused No.1 at the
instance of accused Nos.1 and 2 and lastly, (5) conduct of
accused Nos.1 and 2 who were found together in the
house rented by them in Harige village of Shivamogga.
12. The prosecution to prove the motive of accused Nos.1
and 2 to commit murder of Tanushree, since she was an
obstacle for their illicit relationship, relies on the oral
testimony of PW.3-Nagaraju, father of deceased
Tanushree and PW.6-Chandramma, mother of PW.3. On
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CRL.A.No.425 OF 2017
the point of last seen theory, the prosecution relies on the
evidence of PW.10-Mallesh who was working as Gate
operator in the dam site of H.D.Devegowda Barrage at
Iggaluru. On the point of recovery of dead body at the
instance of accused Nos.1 and 2, the prosecution relies on
the evidence of PW.1-Mahadev, PW.2-Satisha and PW.11
Swamy. The prosecution to prove the recovery of the
pledged gold articles of accused No.1 and recovery at her
instance, relied on the oral testimony of PW8-P.Kumar
working in Nandi Bankers Jewellery Shop and PW.9-
Ladhuram who is the owner of the said shop, so also the
evidence of PW.15-T.Mahadev, the Investigating Officer.
Lastly, on the conduct of accused Nos.1 and 2, relies on
the oral testimony of PW.13-Durgegowda who found
accused Nos.1 and 2 living together in Harige village of
Shivamogga and produced before the Investigating Officer
and that of the Investigating Officer, PW.15- T Mahadev.
13. The learned Additional SPP has argued that the
prosecution out of the evidence of PW.3-Nagaraju and
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CRL.A.No.425 OF 2017
PW.6-Chandramma has proved that accused No.1 and
Tanushree were found missing from the house of
Thalaghattapura from 18.11.2010 and accordingly, he has
filed missing complaint on 21.11.2010 Ex.P.3. PW.10
Mallesh is the Gate Operator who has last seen accused
Nos.1 and 2 with deceased Tanushree on the dam site.
On arrest of accused Nos.1 and 2 dated 17.12.2010, on
the basis of their confession recovered the dead body of
Tanushree at their instance and the said fact has been
substantiated by the oral testimony of PW.1-Mahadev,
PW.2-Satisha and PW.11-Swamy.
Accused Nos.1 and 2 were living together after the
murder of Tanushree and the same is corroborated by the
evidence of PW.13-Durgegowda. Accused No.1 has
pledged her Mangalya Chain and Gold Ring and on the
basis of their voluntary statements as per Ex.P.17 and
P.18, Mangalya chain and Gold Ring -MO.4 and MO.5 were
recovered from Nandi Bankers Jewellery Shop and PW.9-
Ladhuram, owner of the said shop. Their evidence is
corroborated by the evidence of PW.15- T Mahadeva,
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CRL.A.No.425 OF 2017
Investigating Officer. There is nothing in the cross-
examination of prosecution witnesses to deny the above
referred motive deposed by PW.3-Nagaraju and PW.6-
Chandramma and the circumstances brought on record by
the prosecution unerringly point out fingers against the
accused that it is accused Nos.1 and 2 have committed
murder of Tanushree who was an obstacle for their illicit
relationship.
14. Per contra, learned counsel for respondents No.1 and
2 has argued that the missing complaint of Tanushree
itself was filed after three days of the incident on
21.11.2010 as per Ex.P3. It at all accused No.1 was
having any illicit relationship with accused No.2 then, she
would not have brought back Tanushree from the parents
house of PW.3-Nagaraju where she was pursuing her
studies. The alleged involvement of accused Nos.1 and 2
in the commission of offence is based on the voluntary
statements of accused Nos.1 and 2 and the complete chain
of circumstances to substantiate the alleged confession of
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CRL.A.No.425 OF 2017
accused Nos.1 and 2 has not been proved by the evidence
of prosecution witnesses. The last seen theory claimed by
the prosecution and the recovery of dead body at the
instance of accused Nos.1 and 2, so also the recovery of
pledged articles of accused No.1 has not been proved by
the prosecution. Accused No.1 was with her husband
PW.3, Nagaraju when he filed missing complaint Ex.P.3.
The body of deceased Tanushree was decomposed and the
identity of dead body being that of Tanushree has also not
been established by the prosecution. The Trial Court has
rightly appreciated the evidence on record and the findings
recorded in acquitting accused Nos.1 and 2 are based on
material evidence on record and the same does not call for
any interference by this Court.
15. Before proceeding further in analysing the evidence
laid in the matter, it is to be borne in mind that it is an
appeal against the judgment of acquittal of accused from
the alleged offence punishable under Sections 302, 201 of
IPC. Therefore, accused have primarily the double benefit.
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CRL.A.No.425 OF 2017
Firstly, the presumption under law that, unless their guilt
is proved, the accused have to be treated as innocent in
the alleged crime. Secondly, the accused are already
enjoying the benefit of judgment of acquittal passed under
the impugned judgment. As such, bearing the same in
mind, the evidence placed by the prosecution in the
matter is required to be analysed. The Hon'ble Apex Court
in catena of judgments has laid down the general
principles regarding powers of the Appellate Court while
dealing in an appeal against an order of an acquittal. It
would be appropriate to refer to the latest two judgments
of Hon'ble Apex Court in Jafarudheen Vs. State of
Kerala reported in (2022) 8 SCC 440 at para 25 of the
judgment, the Hon'ble Apex Court was pleased to observe
as below:
"25. While dealing with an appeal against
acquittal by invoking Section 378 Cr.P.C, the
appellate Court has to consider whether the trial
court's view can be termed as a possible one,
particularly when evidence on record has been
analysed. The reason is that an order of acquittal
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CRL.A.No.425 OF 2017
adds up to the presumption of innocence in
favour of the accused. Thus, the appellate Court
has to be relatively slow in reversing the order of
the trial court rendering acquittal. Therefore, the
presumption in favour of the accused does not
get weakened but only strengthened. Such a
double presumption that enures in favour of the
accused has to be disturbed only by thorough
scrutiny on the accepted legal parameters."
The Hon'ble Apex Court in another latest judgment in
Roopwanti vs. State of Haryana and Others reported
in 2023 SCC Online 179 wherein it has been observed
and held in paragraph No.7 that :
"In cases where a reversal of acquittal is
sought, the Courts must keep in mind the
presumption of innocence in favour of the
accused, on grounds of it surviving to rigorous of
a full trial is strengthened and stands fortified.
The prosecution then while still working under
the same burden of proof, is required to
discharge a more onerous responsibility to
annual and reverse the fortified presumption of
innocence. This fortification of the presumption
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CRL.A.No.425 OF 2017
of innocence has been held in catena of
judgments by this Court."
It is keeping in mind the above principles laid down by the
Hon'ble Apex Court, we proceed to analyse the evidence
placed on record by the prosecution.
16. On careful perusal of the oral and documentary
evidence placed on record by the prosecution, it would go
to show that PW.3-Nagaraju filed missing complaint Ex.P.3
before Thalaghattapura Police Station stating that on
18.11.2010 on return to house after work, found his
daughter Tanushree aged about 8 years was missing from
the house. The daughter of complainant Tanushree, in
spite of due search was not traced and filed missing
complaint on 21.11.2010 Ex.P.3, which came to be
registered in Thalaghattapura Police Station Crime
No.587/10 Ex.P.10. The brother of accused No.2, one
Ravi, also filed missing complaint of accused No.2 Ex.P.7
stating that his brother left the house on 22.11.2010 for
going to his work, but did not return to the home. In spite
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CRL.A.No.425 OF 2017
of due search and enquiry with the relatives, he was not
traced out. Hence, filed missing complaint of his brother-
accused No.2 on 28.11.2010 which was registered in
Thalaghattapura Police Station in Crime No.600/2010
Ex.P.8.
17. The prosecution alleges that the Investigating Officer
PW.7-A.P.Kumar while investigating the case registered in
Crime No.600/2010 Ex.P.8 of Thalaghattapura police
station, deputed PW.13 Durgegowda CW.18 Venkategowda
for tracing Shivu. On the basis of information received
from informers, they went to Haragi village in Shivamogga
and produced accused Nos.1 and 2 before him on
17.12.2010 at 11.30 a.m. During the course of enquiry,
accused Nos.1 and 2 gave voluntary statement
Exs.P.18 and P.17 respectively, wherein they have
disclosed that for the last two years, they have been in
illicit relationship. The daughter of complainant,
Tanushree used to accompany accused No.1 and this has
caused obstacle for continuing their illicit relationship.
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Therefore, they decided to eliminate eight year old
Tanushree and to stay away from Thalaghattapura.
In pursuance of confession of accused Nos.1 and 2 by
way of voluntary statement Exs.P.18 and P.17
respectively, the Investigating Officer, PW.7-A.P.Kumar
filed requisition in Crime No.600/2010 of Thalaghattapura
Police Station Ex.P.12 seeking permission to treat him as
complainant in this case. On the basis of such requisition,
FIR was drawn in the same crime number for the offences
punishable under Sections 302, 201 of IPC Ex.P.13.
The prosecution further alleges that accused Nos.1
and 2, pursuant to their voluntary statement Exs.P.18 and
P.17 respectively, shown the place of incident from where
they threw Tanushree from the dam site and the spot
panchanama was prepared in the presence of PW.1-
Mahadeva, PW.5-Siddaraju Ex.P.1. The search for the
dead body in river Shimsha was conducted and the dead
body was found stuck in between the stones and it was
decomposed. On the basis of school uniform, complainant
PW.3-Nagaraju and accused No.1 have identified the dead
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CRL.A.No.425 OF 2017
body as that of Tanushree. Inquest panchanama-Ex.P.2
was conducted in the presence of PW.2-Satisha and PW.4
Mahadeva.
Accused Nos.1 and 2, pursuant to their voluntary
statement Exs.P.18 and P.17 respectively, lead the police
officials and panchas to Nandi Bankers Jewellery shop
belongs to PW.9-Ladhuram and at the instance of accused
Nos.1 and 2, PW.9-Lathuram has produced Mangalya
chain and Gold Ring which came to be recovered under the
recovery panchanama Ex.P.14 and the relevant register is
Ex.P.15 in the presence of Investigating Officer PW.15-
T.Mahadeva.
18. The case of the prosecution rests on circumstantial
evidence and the law is well settled in this regard that
where the case is based on circumstantial evidence, the
prosecution is required to prove all the circumstances to
complete the chain of circumstances to conclusively hold
that it is none else than accused Nos.1 and 2 alone have
committed the murder of Tanushree. The prosecution
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mainly relies on five circumstances i.e., 1) motive 2) last
seen theory 3) recovery of the dead boy of Tanushree at
the instance of accused Nos.1 and 2 4) recovery of gold
articles of accused No.1 and lastly 5) conduct of accused
Nos.1 and 2 who were found together in Haragi village of
Shivamogga.
The well known rule governing circumstantial evidence
is that each and every incriminating circumstances must
be clearly established by reliable evidence and the
circumstances proved must form a chain of events from
which the only irresistible conclusion about the guilt of the
accused can be safely drawn and no other hypothesis
except the guilt of the accused. It is profitable to refer the
landmark judgment of Hon'ble Apex Court in SHARAD
BIRDHICHAND SARDA Vs. STATE OF MAHARASHTRA
reported in (1984) 4 SCC 116, wherein five golden
rules set out must be fulfilled before a case against an
accused can be said to be fully established on
circumstantial evidence as under :
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1. the circumstances from which the conclusion of
guilt is to be drawn must or should be and not
merely 'may be' fully established.
2. the facts so established should be consistent
only with the hypothesis of the guilt of the accused,
that is to say, they should not be explainable on any
other hypothesis except that the accused is guilty.
3. the circumstances should be of a conclusive
nature and tendency.
4. they should exclude every possible hypothesis
except the one to be proved, and
5. there must be a chain of evidence so complete
as not to leave any reasonable ground for the
conclusion consistent with the innocence of the
accused and must show that in all human probability
the act must have been done by the accused.
In another latest judgment of the Hon'ble Apex Court in
Dinesh Kumar V. State of Haryana reported in AIR
2023 SC 2795 has reiterated the same principle in
SHARAD BIRDHICHAND SARDA Vs. STATE OF
MAHARASHTRA (supra) regarding the conditions to be
fulfilled before a case against an accused can be said to be
fully established on circumstantial evidence.
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19. The material witness of prosecution is, complainant
PW.3-Nagaraju who has deposed to the effect that
accused No.1 is his wife and their marriage was performed
about 10 years back. Further, Tanushree is their daughter
and they are residing as tenant in the house of one
Gowramma and accused No.2 is her son. The deceased
Tanushree was studying in 4th standard and she has told
him about accused No.2 visiting to the house and talking
with accused No.1. On 18.11.2010 at 7.30 P.M. when he
came back to the house after work, found the door of the
house was locked and made enquiry with the neighbours.
His wife, accused No.1 and daughter Tanushree did not
return to the house and he filed the missing complaint in
the Police Station.
After three days of missing of Tanushree from the
house, accused No.1 called PW.3-Nagaraju over phone and
informed that she is in Kollegal. PW.3-Nagaraju went to
Kollegal and brought accused No.1 back to home and on
enquiry with her about daughter Tanushree, she disclosed
that she beat Tanushree and she has gone somewhere.
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CRL.A.No.425 OF 2017
On receiving such information, filed missing complaint of
his daughter Tanushree Ex.P.3.
Thereafter his wife, accused No.1 without informing
him went away from the house. On 17.12.2010 he was
called by the police to Thalaghattapura Police Station,
accused were carried by the police to Iggaluru dam and
were in search of his child. At the place as shown by
accused Nos.1 and 2, the dead body was found in a
decomposed state and he identified the dead body on the
basis of school uniform that it is the dead body of his
daughter Tanushree. The photographs were taken at that
time Exs.P.4 to P.6 and he identifies the school uniform of
his daughter Tanushree as MOs.1 and 2 and the beads
chain-MO.3. He has further deposed that accused Nos.1
and 2 were having illicit relationship and they have an
apprehension that Tanushree may inform of such
relationship to him is the cause of they committing murder
of his daughter Tanushree.
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20. Another material witness relied by the prosecution is
PW.6-Chandramma, mother of complainant PW.3-
Nagaraju. She has deposed to the effect that PW.3-
Nagaraju is her son and accused No.1 her daughter-in-
law. Accused No.2 is the son of owner of the house in
which PW.3-Nagaraju was a tenant. The marriage of
PW.3-Nagaraju and accused No.1 was performed about 10
years back and they have two children by name Madesha
and Tanushree, the son-Madesha is studying and stays
with his grand parents. About six months prior to the
murder of Tanushree, she was brought by accused No.1 to
Thalaghattapura, since then she was residing with accused
No.1 and PW.3-Nagaraju at Thalaghattapura.
PW.6-Chandramma further deposed to the effect that
Tanushree informed her that accused No.2 used to come
to the house and further accused No.1 and PW.3-Nagaraju
used to quarrel. On receiving such information from
Tanushree, she has advised her son PW.3-Nagaraju and
accused No.1 and went to Kallarepura where she was
residing.
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CRL.A.No.425 OF 2017
About one-and-half years back, her son PW.3-
Nagaraju over phone enquired that his daughter
Tanushree and wife accused No.1 are not in the house and
whether they have come to her and she replied that they
have not come to Kallarepura. On the next day, her son
PW.3-Nagaraju informed over phone that accused No.1
called him over phone and told that she is in Kollegal and
asked PW.6-Chandramma to come to Malavalli.
Thereafter, accused No.1 was brought to Thalaghattapura
to the house of PW.3-Nagaraju and on enquiry, accused
No.1 revealed that she had gone in search of her missing
daughter. On the next day, accused No.1 left the house of
PW.3-Nagaraju. She further deposed to the effect that
after 20 days, accused Nos.1 and 2 were arrested by the
police and she was called to the police station, further
police informed her that they have committed murder of
Tanushree by pushing her in Iggaluru dam site.
21. The evidence of these material witnesses PW.3-
Nagaraju and PW.6-Chandramma regarding the missing of
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Tanushree from the house of complainant PW.3-Nagaraju,
till accused Nos.1 and 2 were apprehended and the alleged
confession made by them before the police that they have
committed murder of Tanushree will have to be
appreciated with the aforementioned circumstances relied
by the prosecution in deciding as to whether the
prosecution could able to prove the motive of accused
Nos.1 and 2 in committing the murder of Tanushree.
22. The entire case of prosecution in involving accused
Nos.1 and 2 in this case on the charge of they committing
murder of Tanushree is based on their alleged confession
i.e. the voluntary statement Exs.P.18 and P.17
respectively on their arrest on 17.12.2010 at 4.00 A.M. by
PW.13-Durgegowda from Haragi village of Shivamogga.
Their alleged confession by way voluntary statement
Exs.P.18 and P.17 respectively before the Investigating
Officer PW.7-A.P.Kumar during their police custody is
inadmissible in law. Therefore, the prosecution has to
prove independently the above referred circumstances to
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conclusively prove that it is accused Nos.1 and 2 who have
committed murder of Tanushree.
23. The first circumstance relied by the prosecution is the
motive of accused Nos.1 and 2 in committing the murder
of Tanushree is that accused Nos.1 and 2 were having
illicit relationship and Tanushree who was to be with
accused No.1 was an obstacle for their such relationship
and therefore, accused Nos.1 and 2 thought of eliminating
Tanushree and to settle somewhere by leaving
Thalaghattapura. The allegation of accused Nos.1 and 2
having illicit relationship has cropped for the first time in
their voluntary statement Exs.P.18 and P.17 respectively.
The prosecution to prove the said motive, relied on
the oral testimony of complainant PW.3-Nagaraju and that
of his mother PW.6-Chandramma. PW.3-Nagaraju in his
examination-in-chief deposed to the effect that his
daughter Tanushree informed him that accused No.2 Shivu
used to come to the house and on such information, he
enquired with accused No.1-Saritha who told that nobody
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is coming to the house. The evidence of PW.6-
Chandramma would go to show that deceased Tanushree
has informed her that accused No.2 used to come to the
house and her parents are quarrelling, she further
deposed that she has advised her son PW.3-Nagaraju and
accused No.1-Saritha. On careful reading of entire
evidence of PW.3-Nagaraju and PW.6-Chandramma, it
would go to show that they have admitted about marriage
of PW.3-Nagaraju with accused No.1-Saritha was
performed about 10 years back and they have two
children by name Madesha and Tanushree. There were no
any quarrels between complainant PW.3-Nagaraju and
accused No.1-Saritha on the pretext of she having illicit
relationship with accused No.2. It is not in dispute that
accused No.2 is the son of Gowramma who is the owner of
the house in which complainant PW.3-Nagaraju and
accused No.1-Saritha with their daughter Tanushree were
residing as tenants. PW.6-Chandramma admitted in her
cross-examination that there were no any quarrels
between PW.3-Nagaraju and accused No.1-Saritha in the
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past 10 years of their marriage. PW.6-Chandramma
further admitted that her son PW.3-Nagaraju and accused
No.1-Saritha were residing at two places in
Thalaghattapura and that she was not visiting her son.
Her evidence further goes to show that she has gone to
the house of her son only for two days in Thalaghattapura
and she further admits that she did not enquire with her
son, PW.3-Nagaraju as to why he has quarreled with his
wife accused No.1-Saritha. It is the evidence of PW.3-
Nagaraju and PW.6-Chandramma that Tanushree has
informed about accused No.2 visiting the house to PW.6-
Chandramma during her two days stay in the house to her
son PW.3-Nagaraju. Their one line statement that
Tanushree informed them about accused No.2 visiting the
house itself cannot be said as sufficient evidence to hold
that they were having illicit relationship and the same has
been seen by deceased Tanushree. PW.3-Nagaraju
admitted in his cross-examination that his marriage with
accused No.1 was performed about 10 to 12 years back
and they were having cordial relation with each other and
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he has good opinion about accused No.1. PW.3-Nagaraju
admitted in his cross-examination that he has not
informed about the illicit relationship to the neighbours or
to his mother PW.6-Chandramma. PW.6-Chandramma has
also admitted in her cross-examination that after she
coming to know from Tanushree about accused No.2
visiting the house, she did not enquire accused No.1 to
ascertain the truthfulness of the said fact revealed by
Tanushree. Investigating Officer PW.7-A.P.Kumar has
admitted in his cross-examination that he did not enquire
with anybody regarding the alleged illicit relationship
between accused Nos.1 and 2 as stated by them in their
voluntary statement Exs.P.18 and P.17 respectively.
PW.15-T.Mahadeva, the second Investigating Officer
has stated in the cross-examination that he has enquired
with the neighbours about the illicit relationship of accused
Nos.1 and 2. However, he admits that he has not cited
them as witness nor recorded any of their statement.
Looking to the above referred evidence of PW.3- Nagaraju,
PW.6-Chandramma, PW.7-A.P.Kumar and that of
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PW.15-T Mahadev, it would go to show that other than the
alleged confession of accused Nos.1 and 2 by way of
voluntary statement Exs.P.18 and P.17 respectively, there
is virtually no evidence on record to prove the alleged illicit
relationship between accused Nos.1 and 2. It appears
from the evidence of the Investigating Officer
PW.15- T.Mahadeva, the alleged disclosure of accused
Nos.1 and 2 of they having illicit relationship is accepted
as gospel truth and without making any efforts to
ascertain the truthfulness of such statement has projected
as a strong motive for accused to commit the murder of
Tanushree.
Undisputedly, Tanushree was pursuing her education
by living with her grand parents and deceased Tanushree
studied upto 4th standard by staying with her grand
parents and she was brought by accused No.1 and
complainant PW.3-Nagaraju for providing good education
in Thalaghattapura and got admitted her to 5th standard.
If at all accused No.1 was having any illicit relationship
with accused No.2, then she would not have brought back
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her daughter from the house of her in-laws and to get her
admitted in the school at Thalaghattapura. The said fact
would nullify the case of the prosecution that accused
Nos.1 and 2 were having any illicit relationship between
them. Therefore, prosecution has failed to substantiate by
evidence on record regarding the first circumstance of
motive of accused Nos.1 and 2 having illicit relationship
and as Tanushree being an obstacle for their such relation
they thought of eliminating Tanushree, has not been
established by the prosecution beyond all reasonable
doubt.
24. The accused have also denied the identity of the
decomposed dead body being found which was stuck in
between the stones of Shimsha river as that of Tanushree.
Therefore, the prosecution is also required to prove the
identity of decomposed body found in the Shimsha river is
that of deceased Tanushree. PW.12-Dr.Pradeep Kumar on
18.12.2010 on requisition of CPI conducted post mortem
examination and issued post mortem report Ex.P.16. The
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evidence of PW.12-Dr.Pradeep Kumar and post mortem
report-Ex.P.16 would go to show that the decomposed foul
smelling dead body was produced for post mortem
examination and as per the opinion of the doctor, PW.12-
Dr.Pradeep Kumar, the cause of death is undetermined.
PW.12-Dr.Pradeep Kumar admitted in his examination-in-
chief itself that on the basis of the requisition filed by the
police, he has stated in the post mortem report that the
dead body is of female child. Further stated that if the
child is below 12 years, on examination of bones, the
gender cannot be ascertained and because of that reason
only he has not mentioned the gender in the post mortem
report Ex.P.16. PW.12-Dr.Pradeep Kumar has admitted in
his cross-examination that the face of the dead body was
unidentifiable. PW.3- Nagaraju, father of the deceased
Tanushree and mother-accused No.1, Saritha were alleged
to have identified the decomposed dead body of the child
as that of Tanushree on the basis of school uniform. It is
the evidence of PW.3 -Nagaraju that Tanushree had gone
to the school on 18.11.2010 and when he came back to
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the house, found the house was locked. PW.3-Nagaraju
though claims in his cross-examination that he went to the
school and enquired about his daughter Tanushree,
wherein they have informed that accused No.1-Saritha
picked up Tanushree in the afternoon. However, he admits
that he has not stated so in the missing complaint filed by
him at Ex.P.3. The school bag of Tanushree has not been
traced and according to the evidence of PW.3-Nagaraju he
searched in the house, it was not found. It means that
Tanushree had gone to school with school bag and if at all
Tanushree was picked up in the afternoon from the school
itself then, naturally the school bag would have been
found in possession of Tanushree. If at all the school bag
was left in the house after accused No.1-Saritha picking up
her daughter Tanushree then, it should have been found
at least in the house or where the dead body of Tanushree
was found. According to the evidence of PW.3-Nagaraju,
he searched for the school bag in the house but it was not
there.
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It is pertinent to note that Tanushree was missing
from 18.11.2010 and the missing complaint came to be
filed on 21.11.2010 Ex.P.3. It has not been stated in the
missing complaint Ex.P.3 that accused No.1-Saritha and
Tanushree were missing from the house. The prosecution
has not placed any evidence on record to prove that it is
accused No.1-Saritha has picked up her daughter from the
school in the afternoon as claimed by complainant PW.3 -
Nagaraju.
PW.3-Nagaraju claims in his evidence that after
three days of missing of Tanushree, accused No.1 called
him over the phone and told that she is in Kollegal.
Thereafter he went to Kollegal and brought back his wife
accused No.1-Saritha to the house. It is thereafter
missing complaint at Ex.P.3 was filed. It means that while
PW.3-Nagaraju filed the missing complaint Ex.P.3, accused
No.1-Saritha was very much available in the house of
complainant PW.3-Nagaraju. PW.3-Nagaraju claims in his
examination-in-chief that he enquired with his wife about
Tanushree and she told that she has beat her and she has
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gone somewhere. If that was to be the fact then, the
same would have been mentioned in the missing
complaint Ex.P.3 filed by complainant PW.3-Nagaraju. The
evidence of his mother PW.6-Chandramma is also silent on
this aspect. There is also no evidence on record to show
that PW.3-Nagaraju received phone call from his wife
Saritha (A1) who told him that she is in Kollegal and PW.3-
Nagaraju went to Kollegal and brought back his wife
accused No.1, Saritha to the house. Other than the
uncorroborated evidence of PW.3-Nagaraju in this regard,
there is absolutely no any other evidence on record to
prove the said fact.
PW.3-Nagaraju admits in his cross-examination that
he has not stated in the missing complaint Ex.P.3 that his
daughter had gone to the school by wearing beads chain.
PW.3-Nagaraju further admits in his cross-examination
that while filing the missing complaint Ex.P3 or before the
police he has not stated that his daughter Tanushree had
gone along with accused No.1-Saritha. PW.3-Nagaraju
further admits that he has not stated in the missing
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complaint Ex.P.3 that Tanushree has gone to the school by
wearing uniform and he do not know the clothes worn by
Tanushree when she left the house for going to school.
The evidence of PW.6-Chandramma is silent regarding the
identification of the decomposed body as that of
Tanushree. The evidence of Investigating Officer PW.15
T. Mahadev is to the effect that pursuant to the disclosure
made by accused Nos.1 and 2 in the voluntary statement
Exs.P.18 and P.17 respectively, on 17.12.2010 lead the
police officials and the panch witnesses to the dam site
and shown the place from where they threw Tanushree
into Shimsha river. The prosecution has relied on the
evidence of PW.1-Mahadeva and PW.5-Siddaraju to prove
the spot panchanama Ex.P.1. PW.1-Mahadeva is the
barrage operator and his evidence is based on the
information given by the Investigating Officer, PW.15-
T Mahadev when they had come at dam site with accused
Nos.1 and 2. PW.1-Mahadeva admitted in his cross
examination that while leaving the work place in the
barrage, entry will be made in the ledger maintained in the
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office. He has further admitted that on the barrage public
will be moving.
PW.5-Siddaraju has admitted in his cross-examination
that 3 to 4 workers will be in the pump house and there is
a pump house attached to the dam. Further, there will be
movement of people and the vehicle on the dam so also
security personnel will be deputed to guard the barrage.
If the evidence of PWs.1 and 5 is appreciated with the spot
features recorded in the spot panchanama Ex.P.1, it would
go to show that there is cement parapet wall and the
water flows from north to south under the bridge. There is
fencing of 8 ft. height and the fencing gate will always be
closed. If the above referred evidence of PW.1- Mahadeva
and PW.5-Siddaraju is appreciated then, it is difficult to
accept the case of the prosecution that accused Nos.1 and
2 were swinging Tanushree at gate No.4 and threw her in
the Shimsha river.
25. The prosecution claims that accused Nos.1 and 2
thereafter accompanied the police officials in search of the
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dead body of Tanushree and on tracing the decomposed
dead body, the same was brought to the river bank and
post mortem examination was conducted. It is recorded in
Ex.P.2 that one blue langa and green colour shirt with
beads in the neck were there. In view of the above
referred evidence on record in the form of complainant
PW.3-Nagaraju, there is reasonable doubt of Tanushree
having left the house with school uniform. However, there
is subsequent insertion of school uniform/light blue colour
in missing complaint Ex.P.3.
PW.7-A.P.Kumar, the first Investigating Officer has
admitted in his cross-examination that he does
not know as to who has written and when it was
written the last word in the missing complaint Ex.P.3 and he
does not know while filing the requisition Ex.P.12, there
was mentioning of school uniform in Ex.P.3.
Investigating Officer PW.7-A.P.Kumar has further admitted
that he did not enquire PW.3-Nagaraju as to whether he
has written the last words of 'school uniform'.
Investigating Officer PW.7-A.P.Kumar though claims
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in his cross-examination that he has visited the school and
enquired about Tanushree attending school on the date of
missing, but admits that he has not recorded the
statement of either complainant, PW.3-Nagaraju or the
school staff. The identity card and the school bag of
Tanushree was not found with the dead body, nor the
same has been recovered from any other place by the
Investigating Officer. Therefore, looking to the above
referred evidence, it is difficult to believe the evidence of
complainant PW.3-Nagaraju in identifying the decomposed
body of the child as that of Tanushree. It is profitable to
refer to the judgment of the Hon'ble Apex Court in
SHIVAJI CHINTAPPA PATIL v. STATE OF
MAHARASHTRA reported in AIR 2021 SUPREME
COURT 1249 regarding absence of motive in a case of
circumstantial evidence. It has been held that absence of
motive in a case depending on circumstantial evidence is a
factor that weighs in favour of the accused. Therefore, the
prosecution has failed to establish the motive and identity
of decomposed dead body of the child as Tanushree on the
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basis of identification given by PW.3-Nagaraju on the basis
of the school uniform.
26. The prosecution to prove the second circumstance of
last seen theory, relied on the evidence of PW.10-Mallesh
who was working as Gate Operator in Iggalur dam.
PW.10-Mallesh has deposed to the effect that on
18.11.2010 he was on duty in the second shift from 2.00
P.M. to 10.00 P.M. At about 5.00 P.M., both the accused
were found watching the dam site with a child and
thereafter in the evening after putting the light, went to
the house. On the next date, another watchman, PW.5-
Siddaraju told him that the chappals of the child were
found near the dam site.
On 17.12.2010 police had brought accused Nos.1 and
2 and the police enquired with him of having seen accused
earlier to it. He told the police that accused had come to
dam site. The police accompanying accused Nos.1 and 2
told him that accused have pushed the child in the dam
water and the dead body was found in between the stones
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near Sargoor and he identifies the child on seeing the
photograph Ex.P.6.
PW.10-Mallesh refers the name of PW.5-Siddaraju
having told the chappals of the child was found near the
dam site. However, the evidence of PW.5-Siddaraju does
not speak anything that he having told PW.10-Mallesh that
the chappals of the child were found lying near the dam
site. The evidence of PW.5-Siddaraju is also silent that he
having seen accused Nos.1 and 2 with the child.
Therefore, on what basis PW.5-Siddaraju told PW.10-
Mallesh about the chappals of the child found lying near
the dam site has not been clarified by the prosecution out
of the evidence placed on record. PW.10-Mallesh during
the course of cross-examination admits that he has not
produced any documents to the police that he was on duty
at dam site, further admits that there is movement of
vehicles and the public on the dam site and he cannot
identify any such public. PW.10-Mallesh further admits he
cannot tell the dresses worn by accused Nos.1 and 2 and
also the child. If at all PW.10-Mallesh had an occasion to
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see the child accompanying accused Nos.1 and 2 on the
dam site, then at least the said child wearing school
uniform could not have gone unnoticed by him. The
photograph Ex.P.6, which was shown to PW.10-Mallesh by
the police, was taken after tracing the dead body having
school uniform. When according to case of prosecution
PW.10-Mallesh could able to identify the child in the
photograph Ex.P.6 with the school uniform, then there was
absolutely no any difficulty for him to disclose the said fact
before the Investigating Officer that he has seen the child
with accused Nos.1 and 2 who was in the school uniform.
The wearing of school uniform by the child could have
been noticed by anybody who is near the child. PW.10-
Mallesh further admitted in his cross-examination that after
PW.5 Siddaraju informing him about having found the
chappals at the dam site, he has not informed the same to
the police. PW.10-Mallesh further admits in his cross-
examination that the police has not taken any attendance
register to show that he was on duty at dam site on the
relevant date. Therefore, in view of the above referred
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evidence of PW.10-Mallesh, it is difficult to believe his
evidence to prove the last seen theory claimed by the
prosecution that PW.10-Mallesh has seen Tanushree in the
company of accused Nos.1 and 2 at the dam site on the
date of incident. In this context of the matter, it is
profitable to refer the latest judgment of Hon'ble Apex
Court in Dinesh Kumar V. State of Haryana reported
in AIR 2023 SC 2795 wherein it has been observed and
held that the evidence of last seen itself was on a weak
footing considering the long gap of time between last seen
by neighbour and time of death of deceased. The Hon'ble
Apex Court by referring to it's earlier judgment in
Malleshappa v. State of Karnataka reported in AIR
2008 SC 69 has held that :
"The circumstances of last seen together
does not by itself lead to irrevocable conclusion
that it is the accused who had committed the
crime. The prosecution must come out with
something more to establish this connectivity
with the accused and the crime committed.
Particularly, in the present case when there is
no close proximity between circumstances of
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last seen together and the appropriate time of
death, the evidence of last seen become weak."
In the present case also PW.10 Mallesh alleged to have
seen deceased Tanushree in the company of accused Nos.
1 and 2 on 18.11.2010 and the decomposed body which is
said to be that of Tanushree is recovered on 17.12.2010.
There is not only long gap between the last seen theory
and recovery of decomposed dead body, further it was
found that evidence of PW.10 Mallesh is unreliable, so also
the identity of decomposed dead body has not been
established by the prosecution. Therefore, prosecution has
failed to prove the second circumstance of last seen theory
through the evidence of PW.10-Mallesh.
27. The prosecution to prove the third circumstance of
recovery of dead body at the instance of accused Nos.1
and 2 seeks to rely on the evidence of PW.2-Satisha,
PW.4-Mahadeva and PW.11-Swamy. PW.2-Satisha has
deposed to the effect that about one-and-half year back,
police took him to Iggalur dam site for searching the dead
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body of daughter of complainant PW.3-Nagaraju. He
searched the dead body of daughter of complainant PW.3-
Nagaraju along with the police and the dead body was
found stuck in between the stones where the water was
flowing. The dead body was in a decomposed state. On
the basis of school uniform, PW.3-Nagaraju identified that
the decomposed dead body of the child is that of
Tanushree and accordingly, inquest panchanama is
prepared at Ex.P.2 and has signed as Ex.P.2(a), so also
identified MOs.1 and 2.
28. PW.4-Mahadeva has deposed to the effect that on
17.12.2010, the dead body of Tanushree was found which
was stuck in between the stones. It is only the bones
were found and accused have shown the said place.
Accordingly, inquest panchanama Ex.P.2 was prepared and
he has signed at Ex.P.2(b).
29. PW.11-Swamy has deposed to the effect that police
had brought accused Nos.1 and 2 near Shimsha river and
while he was fishing, found the dead body of the child
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stuck in between the stones and he has shown the place
where the dead body was found to the police. Accused
Nos.1 and 2 have seen the dead body, accused No.1
identified the dead body as that of Tanushree. PW.11
further deposed to the effect that he has carried the police
officials and the accused in a raft and he identified the
child on seeing the photograph Ex.P.5.
30. Accused have denied that the dead body of Tanushree
was recovered at their instance. It is suggested to the
PW.15-T.Mahadeva, Investigating Officer during the
course of cross-examination that fisherman who were
catching fish in the Shimsha river have given information
to the police about having seen the dead body and they
have told the said fact to the villagers and the police.
PW.2-Satisha in his entire examination-in-chief does not
vouchsafe the evidence of PW.11-Swamy that he has
taken police officials and accused Nos.1 and 2 in his raft.
PW.4-Mahadeva though states that accused have shown
the place where the dead body was found lying, but his
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examination-in-chief is totally silent about PW.11-Swamy
having carried police officials and the accused in his raft
and they shown the place where the dead body of
Tanushree was found. PW.2-Satisha admitted in his cross-
examination that he knew complainant PW.3-Nagaraju and
his wife accused No.1-Saritha, since he is in visiting terms
to the house of PW.3-Nagaraju and the witnesses
Manjunatha and Mahadeva are also known to PW.3-
Nagaraju. PW.4-Mahadeva admitted in his cross-
examination that he is the relative of PW.3-Nagaraju and
therefore, he had gone to Thalaghattapura. The presence
of PW.2-Satish and PW.4-Mahadeva at the time of
recovery of dead body of Tanushree was not corroborated
by the evidence of PW.11-Swamy. Therefore, the presence
of PW.2-Satisha and PW.4-Mahadeva in spite of PW.2
knowing PW.3-Nagaraju very well and PW.4 being the
relative, their presence at the time of recovery of dead
body of Tanushree is very much doubtful. Further PW.11-
Swamy also has not spoken about the presence of PW.2-
Sathish and PW.4-Mahadeva at the time of recovery of
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dead body. If the above referred evidence of PW.2-
Swamy, PW.4-Mahadeva and PW.11-Swamy is appreciated
and read together then, it would go to show that it is
difficult to believe their evidence that decomposed dead
body which was alleged to have identified by complainant
PW.3-Nagaraju on the basis of school uniform has been
recovered at the instance of accused Nos.1 and 2.
31. The prosecution relies on the fourth circumstance
regarding recovery of pledged gold articles of accused
No.1 in Nandi Bankers Jewellery shop. The prosecution to
prove the same relies on the oral testimony of PW.8-
P.Kumar, PW.9-Ladhuram and that of the Investigating
Officer, PW.15-T.Mahadeva. The recovered gold articles
have been identified by complainant PW.3-Nagaraju.
PW.8-P Kumar is working in Nandi Bankers Jewellery shop
belongs to PW.9-Ladhuram and has deposed to the effect
that accused No.1 was brought to their shop on the
pretext that she has pledged the ornaments of the child
and enquired about the same with his owner. The owner of
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the shop produced one Mangalya chain and gold ring
which came to be recovered under the panchanama
Ex.P.14 and identifies his signature Ex.P.14(a). Further,
he identified the said articles MOs.4 and 5.
32. PW.9-Ladhuram who is the owner of Nandi Bankers
Jewellery shop in Malavalli has deposed to the effect that
PW.8-P.Kumar is working in his shop for the last 5 years
and about three years back, accused No.1 came to his
shop as a customer and pledged the chain and ring and
has issued the receipt accordingly.
Thereafter, police had brought accused No.1 and
another person to his shop and the ornaments with
receipts came to be seized under panchanama Ex.P.14 and
he could identify the receipt if shown to him.
On careful perusal of the oral testimony of PW.7-
P.Kumar and PW.9-Ladhuram, it would go to show accused
No.1 alleged to have pledged gold chain and ring and the
same came to be recovered under the panchanama
Ex.P.14. PW.8-P.Kumar and PW.9-Ladhuram both have
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claimed that receipt has been issued for having pledged
the gold articles by accused No.1. However, no any such
original receipt has been produced by the prosecution and
it is recorded in the deposition of PW.8-P.Kumar that a
zerox copy is found in the records. However, the zerox
copy of the receipt has not been marked, even subject to
objection of defence counsel nor original receipt is
produced in this case by the prosecution. The evidence of
PW.15-T.Mahadeva, Investigating Officer is totally silent
for having seized original receipt from Nandi Bankers
Jewellery shop belongs to PW.9-Ladhuram. PW.15-
T Mahadeva, Investigating Officer has offered no any
explanation for not producing original receipt having
pledged the gold articles of accused No.1 with PW.9-
Ladhuram. It is only through the evidence of PW.9-
Ladhuram the register Ex.P.15 came to be produced on
the pretext that the original receipt was not found in his
shop and the said register contains the particulars of the
pledged articles, the register Ex.P.15 and the relevant
page 89 at Ex.P.15(a) came to be marked.
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It has been elicited in the cross-examination of PW.9-
Ladhuram that in Ex.P.15(a) 'Satisha' is over written as
'Saritha' and the description of ring finger or ear ring has
not been shown in Ex.P.15. It is stated by PW.9-Ladhuram
in the short form it is written in the register, but the
details regarding the description of the property pledged
will be mentioned in the receipt. The pledged articles will
be returned on verifying with the description in the receipt
and in the register after receiving back the pledged money
by obtaining the signature of the customer. PW.9-
Ladhuram has categorically admitted that he has not
obtained signature of Saritha or Shivu in Ex.P.15(a).
PW.9-Ladhuram further admits that there are no any
special identification mark of the pledged articles. PW.9-
Ladhuram has further admitted that after taking the
receipt from the customer, pledged articles will be
returned by obtaining their signature and the receipt will
be retained by him. According to the evidence of PW.9-
Ladhuram, the original receipt is with the police and he
has made endorsement in the register for having delivered
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the receipt to the police. Therefore, from the said
admissions of PW.9-Ladhuram during the course of his
cross-examination, it is difficult to believe his evidence
regarding accused No.1 having pledged MOs.4 and 5 in the
absence of production of original receipt and also taking
signature of accused No.1 when the pledged articles were
received before giving money. The mere identification of
gold articles MOs.4 and 5 by complainant PW.3-Nagaraju
during the course of his evidence itself cannot be said as
sufficient evidence to hold that the same was recovered at
the instance of accused Nos.1 and 2 from the shop of
PW.9-Ladhuram. In view of the above referred
discrepancies in the evidence of PW.8-P.Kumar and PW.9-
Ladhuram, further no explanation having been offered by
PW.15-T Mahadeva, Investigating Officer for not producing
original receipt, would create serious doubt regarding
accused No.1 having pledged MOs.4 and 5 and the same
were recovered at the instance of accused No.1 from
Nandi Bankers Jewellery shop of PW.9-Ladhuram. The
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prosecution has failed to prove this circumstance of
recovery at the instance of accused Nos.1 and 2.
33. The last circumstance relied by the prosecution is the
conduct of accused. Since accused Nos.1 and 2 were
found together living in a house at Haragi Village of
Shivamogga, the prosecution to prove the said fact relies
on the oral testimony of PW.13-Durgegowda and that of
the first Investigating Officer PW.7-A.P.Kumar.
PW.13-Durgegowda has deposed to the effect on
16.12.2010, himself and PC.1189 Venkategowda were
deputed to trace the missing person case registered in
Thalaghattapura Police Station in Crime No.600/10. While
they were in search of the missing person and collecting
information from the informants, went to Haragi village of
Shivamogga and both the accused were found in the
house of the said village. On arresting both of them at
4.00 A.M. were brought to Thalaghattapura and produced
before the Investigating Officer, PW.7-A.P.Kumar.
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Investigating Officer PW.7-A.P.Kumar has deposed to
the effect that he has deputed PW.13-Durgegowda and
PC.1189 Venkategowda for tracing the missing person in
the case registered in Thalaghattapura Police Station in
Crime No.600/10. They produced accused Nos.1 and 2
before him on 17.12.2010 at 11.30 A.M.
PW.13-Durgegowda in his cross-examination admits
that no warrant was issued for proceeding to Shivamogga,
further there is no mention in the register of the Police
Station regarding leaving to Shivamogga and he has not
signed in the register before proceeding to Shivamogga,
so also no any photographs or the description of the
missing persons or also description of the accused person
was given to them. PW.13-Durgegowda further admits
that he has not stated in his statement that in which
vehicle they had gone to Shivamogga and he do not know
the distance between Thalaghattapura to Harige village
and Shivamogga. He further admitted in his cross-
examination that he did not call the neighbours of the
house before proceeding to arrest accused Nos.1 and 2.
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PW.13-Durgegowda though states in his cross-
examination that the house where accused Nos.1 and 2
were found belongs to their relatives and he did not verify
in the said house about any articles belongs to accused
Nos.1 and 2.
Investigating Officer PW.7-A.P.Kumar has also admitted
in his cross-examination that he has not produced any
documents for having deputed PW.13-Durgegowda and PC
1189 Venkategowda for tracing the accused and they
having brought the accused from Harige village.
Investigating Officer PW.7-A.P.Kumar further admitted in
his cross-examination, he did not enquire the owner of the
house and did not send any woman police for tracing
accused No.1-Saritha. PW.15-T Mahadeva, Investigating
Officer has also admitted in his cross-examination that he
did not enquire the owner of the house or shown the
owner of the house as charge sheet witness, further
admits that he did not enquire about any advance having
given by accused for taking the house on rent and he has
not prepared any panchanama to show that accused Nos.1
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and 2 stayed in the said house. If the above referred
evidence of Investigating Officer, PW.7-A.P.Kumar and
PW.13-Durgegowda and that of PW.15-T.Mahadeva, the
second Investigating Officer is appreciated then, it is very
difficult to believe their evidence that accused Nos.1 and 2
were found together staying in the house situated in
Harige village of Shivamogga Taluk and they brought them
from the said place and then produced before
Investigating Officer PW.7-A.P.Kumar. Therefore, the
prosecution has failed to prove the said circumstance
regarding the conduct of accused has also not been proved
by the prosecution.
34. When the case of prosecution totally rests on
circumstantial evidence, the evidence of prosecution
witnesses must complete the chain of events as claimed
by the prosecution to conclusively hold that it is only
accused Nos.1 and 2 who have committed the murder of
Tanushree, daughter of complainant PW.3-Nagaraju and
accused No.1-Saritha and there is no possibility of
involvement of other person in the murder of Tanushree.
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The prosecution in view of the above recorded reasons has
failed to prove the complete chain of circumstance to unerringly
point out finger against accused that it is accused Nos.1 and 2
have committed murder of Tanushree. The Trial Court has
appreciated the material evidence placed on record and was
justified in acquitting accused Nos.1 and 2. We find no any
valid reason to interfere with the findings recorded by the Trial
Court. Consequently, proceed to pass the following :
ORDER
The appeal filed by Appellant/State is hereby dismissed as
devoid of merits.
The honorarium of the learned Amicus Curiae for
respondent No.2 is fixed as Rs.5,000/- payable by the registry.
Registry is directed to transmit the copy of this judgment
along with the records to the Trial Court.
SD/-
JUDGE
SD/-
JUDGE
rs
