Karnataka High Court
State Of Karnataka vs N M Abdul Azeez on 1 February, 2024
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CRL.A No. 441 of 2018
C/W CRL.A No. 1098 of 2017
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 1ST DAY OF FEBRUARY, 2024
PRESENT
THE HON'BLE MR JUSTICE SREENIVAS HARISH KUMAR
AND
THE HON'BLE MR JUSTICE VIJAYKUMAR A. PATIL
CRIMINAL APPEAL NO.441 OF 2018
C/W
CRIMINAL APPEAL NO.1098 OF 2017
In Crl.A.No.441/2018:
BETWEEN:
State of Karnataka
By Asst. Superintendent of Police,
Puttur, D.K., (Kadaba P.S.)
Represented by
State Public Prosecutor,
Digitally High Court Building,
signed by C K Bengaluru-560 001.
LATHA ...Appellant
Location:
HIGH COURT (By Smt. K.P.Yashodha, HCGP)
OF
KARNATAKA
AND:
1. N. M. Abdul Azeez
Aged 30 Years,
S/O Mohammad Kunhi,
R/O Gulumbu House,
Ajjavara Village,
Sullia Taluk-574 239.
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CRL.A No. 441 of 2018
C/W CRL.A No. 1098 of 2017
2. Smt. Ayishath Azeeda @ Aseeda,
Aged 26 Years,
W/o Haneef,
R/o Karikkala House,
Kalmadka Village,
Sullia Taluk-574 239.
3. Smt. Aspana @ Fathimath Aspana
Aged 25 Years,
W/o Issak,
R/o K.M.F.Compound,
Mottethadka House,
Kemminje Village,
Puttur Taluk-574 201.
...Respondents
(By Sri. P.B.Umesh, Adv. for
Sri R.B.Deshpande, Adv. for R1 to R3)
This Criminal Appeal filed under Section 378(1) and (3)
Cr.P.C, praying to grant leave to appeal against the Judgment
and Order of acquittal dated 27.04.2017 passed in
S.C.No.127/2012 on the file of the V Additional District and
Sessions Judge, D.K., Mangalore sitting at Puttur, D.K., thereby
acquitting the accused/respondents of the offences P/U/S 302,
392, 201 r/w 34 of IPC and etc.
In Crl.A.No.1098/2017:
BETWEEN:
Abbas
S/o Haboobaker
Aged about 46 years
Daily Wage Worker
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CRL.A No. 441 of 2018
C/W CRL.A No. 1098 of 2017
Residing at Alekemane,
Thannir Pantha Village,
Belthangadi Taluk,
Dakshina Kannada - 574 214.
...Appellant
(By Smt. K.M.Archana, Adv. appointed as amicus curiae)
AND:
1. State of Karnataka
By Asst. Superintendent of Police,
Puttur, D.K., (Kadaba P.S.)
Represented by
State Public Prosecutor,
High Court Buildings,
Bengaluru-560 001.
2. M. M. Abdul Azeez
Aged 29 Years,
S/O Mohammad Kunhi,
R/O Gulumbu House,
Ajjavara Village,
Sullia Taluk,
D.K.District - 574 239.
3. Smt. Ayishath Azeeda @ Aseeda,
Aged 25 Years,
W/o Haneef,
R/o Karikkala House,
Kalmadka Village,
Sullia Taluk-574 239.
4. Smt. Aspana @ Fathimath Aspana
Aged 24 Years,
W/o Issak,
R/o K.M.F.Compound,
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CRL.A No. 441 of 2018
C/W CRL.A No. 1098 of 2017
Mottethadka House,
Kemminje Village,
Puttur Taluk-574 201.
...Respondents
(By Smt. K.P.Yashodha, HCGP for R1;
Sri P.B.Umesh, Adv. for
Sri R.B.Deshpande, Adv. for R2 to R4)
This Criminal Appeal filed under Section 372 Cr.P.C,
praying to set aside the order of acquittal dated 27.04.2017
passed by the V Additional District and Sessions Judge, D.K.,
Mangaluru sitting at Puttur, D.K., in S.C.No.127/2012 for the
offence P/U/S 302, 392 and 201 r/w 34 of IPC and convict
respondents 2 to 4 and etc.
These Criminal Appeals, coming on for final hearing,
this day, Sreenivas Harish Kumar J., delivered the following:
JUDGMENT
These two appeals since arise from
S.C.No.127/2012, are disposed of by a common
judgment. Crl.A.No.441/2018 is filed by the State
and Crl.A.No.1098/2017 is filed by PW2,
challenging the judgment of acquittal dated
27.04.2017 by the V Additional District and
Sessions Judge, Dakshina Kannada-Mangaluru
sitting at Puttur.
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2. The facts in brief are as below:
PW1-Anandagowda, who was the Vice
President of Kombaru Gram Panchayat, received a
telephone call on 31.01.2012 by a villager and
came to know that a dead body was found in the
drainage situated near Amaythadka of Kombaru
village. Immediately PW1 went to that place and
saw a dead body having been pushed into a
drainage pipe. The dead body was in a highly
decomposed state and emitting bad smell.
Immediately he gave a report of this to the police
as per Ex.P1. Later on the body was identified to
be that of a woman by name Khathijamma, the
wife of PW2. Investigation revealed that accused
No.1 to 3 had gone to the house of Khathijamma
on 09.01.2012. They robbed the jewelleries that
Khathijamma was wearing and then caused her
death. They shifted the dead body in a Maruti
Omni van and then accused No.1 thrusted the dead
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body into the drainage pipe. Thus accused No.1 to
3 came to be charge sheeted for the offences
punishable under Sections 302 and 201 read with
Section 34 of IPC.
3. The prosecution examined 27 witnesses,
got marked 41 documents and 19 material objects
in order to establish its case. The trial court
acquitted the accused of all the offences and hence
these appeals by the State as well as PW2, the
husband of the deceased.
4. We have heard the arguments of Smt.
K.P.Yashodha, learned High Court Government
Pleader who argued on behalf of the State in
Crl.A.No.441/2018, Smt. K.M.Archana, learned
Advocate appointed as Amicus Curiae, who argued
on behalf of the appellant/complainant in
Crl.A.No.1098/2017 and Sri P.B.Umesh, learned
Advocate, who argued on behalf of Sri
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R.B.Deshpande, Advocate for respondents/accused
No.1 to 3 in both the appeals.
5. During trial it was sought to be proved
through the witnesses that accused No.1 was in
need of money and he requested his sister i.e.,
accused No.3 to give her gold as he could pledge
the same and get money. She said that she had
no gold, and at that time she told him that the
deceased Khathijamma was having 65 pavans of
gold. For this reasons accused No.1 wanted to
meet the deceased. On 09.01.2012 accused No.1
took his two sisters i.e., accused No.2 and 3 to the
house of Khathijamma. They were all served with
tea and biscuits. Accused No.1 saw an almirah in
the room of the house of Khathijamma and
thinking that she might have kept the jewelleries
inside the almirah, he gained entry into the room
and started searching for jewellery. Noticing this,
Khathijamma took serious objection and in that
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course accused No.1 closed the nose and mouth of
Khathijamma which resulted in her death.
Thereafter with the help of other two accused,
accused No.1 shifted the body in his Maruti Omni
van and threw the same at the place where it was
found.
6. It was the argument of Smt.
K.P.Yashodha and Smt. K.M.Archana that the
prosecution has been able to prove all the
circumstances. PWs.1 to 7, 10, 12, 14 and 15 are
the main witnesses. The main circumstances are
identification of the dead body, PW4 and PW5
seeing two women and a man along with a child
visiting the house of the deceased around 11.00am
on 09.01.2012 in a Maruti Omni car, recovery of
imitation gold from the house of accused No.1,
changing of seat of the car by accused No.1 at
Susha Decors and the mahazars. The witnesses
have clearly established all these circumstances.
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From the evidence of PW4 and PW5 it becomes
clear that they saw three persons alighting from
Maruti Omni car with a child on 09.01.2012. Out of
three people one was a man and two were women.
Though they were not able to see the faces of
those persons, the identity of the accused would
get established from the evidence of PW2, PW3
and PW15. The fact that accused No.1 himself led
the police to his house and produced the imitation
jewelleries of Khathijamma would get established
by the independent panch witnesses. They have
not been discredited in any manner. The police
knew the place where the dead body had been
thrown. Accused No.1 also showed the very same
place. By that time the dead body was identified
to be that of Khathijamma and if first accused
showed the very same place, it would fortify the
fact that deceased was Khathijamma and thereby
the involvement of all the three accused could be
inferred. There is another circumstance, i.e.,
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accused No.1 met PW10, a goldsmith to ascertain
whether the jewelleries were real gold or not.
PW10 has given clear evidence that accused No.1
had brought some jewelleries which were found to
be of artificial gold. From the evidence of PW10
also it gets established that accused No.1 was very
much involved in the commission of crime. The
car decorator-PW12 has given evidence that
accused No.1 had taken his car for changing the
seat. It was the very same car which was used by
the accused for going to the house of deceased
and transporting the dead body. Therefore all
these circumstances have stood established. If the
trial court had assessed the evidence in proper
perspective, it would have been possible for the
trial court to record conviction against the
accused. Acquitting the accused giving some
technical reasons cannot be sustained and hence
this court has to interfere and reverse the
judgment of acquittal convicting all the accused for
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the offences punishable under Sections 302 and
201 read with Section 34 of IPC.
7. Smt. K.M.Archana in support of her
arguments has placed reliance on two judgments
of the Supreme Court, namely, SABITRI
SAMANTARAY V. STATE OF ODISHA AND
BIDYADHAR PRAHARAJ V. STATE OF ODISHA
[AIR 2022 SC 2591] & SANJAY RAJAK V. THE
STATE OF BIHAR [AIR 2019 SC 3524].
8. Sri P.B.Umesh argued that the trial court
has rightly come to conclusion to acquit the
accused noticing that the evidence was not
sufficient enough to hold that all the links in the
chain of circumstances would get established.
There is no evidence with regard to identification
of the dead body. When the dead body was seen
inside the drainage pipe, it was found in a highly
decomposed state. The DNA report is inconclusive.
It does not help in any way to identify the dead
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body. The evidence of PWs.2, 3 and 15 cannot be
believed to hold that the dead body was that of
Khathijamma. The evidence of PW4 and PW5 is
very clear that they did not see the faces of the
persons who alighted from the car in front of the
house of Khathijamma and thereby their evidence
is of no use. The panchanama said to have been
drawn at the instance of accused No.1 in
connection with recovery of imitation jewellery and
the Maruti Omni car does not establish the
involvement of accused No.1 to 3. Merely because
PW10 gave a report that the jewelleries that he
tested were made of imitation gold would not
result in establishing the involvement of accused
No.1 in the commission of crime. The cause of
death is not spoken by the doctor who conducted
post mortem examination. This being the case, it
is not safe to upset the well reasoned judgment of
the trial court. He argued for dismissing the
appeals.
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9. After hearing the arguments, it is found
that this case rests on the following circumstances
to be established.
i. Identification of dead body,
ii. Accused persons visiting the house of the
deceased,
iii. Recovery of imitation jewellery from the
house of accused No.1,
iv. Accused No.1 himself showing the place
where the dead b ody was thrown.
10. The evidence of PW1 is just relevant to
the extent of lodging FIR with the police after
getting information about the dead body being
seen in the drainage pipe. His evidence is
believable to this extent. He also participated at
the time of drawing the spot panchanama as per
Ex.P.2 and seizing a cloth bundle in which there
was a blood stained cloth. This evidence can also
be believed.
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11. To establish the circumstance of
identification of the dead body the evidence given
by PWs.2, 3, 15, 22 and 24 requires to be
examined.
11.1 PW2 is the husband of the deceased
Khathijamma. His evidence shows that on
09.01.2012 itself he went to police station and
reported about missing of his wife. In this regard
his evidence is that his children returned home in
the evening from the school and informed him that
mother was not being seen. Learning this from the
children, PW2 returned home immediately and
found the front door being locked from inside.
Therefore with the help of the neighbors the
backside door of the house was broken open and
when he went inside, he did not see his wife,
however noticed three tea cups and some snacks
items in the plates being kept on the table. He
also saw the clothes kept in the almirah being
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scattered and the gold jewellery belonging to his
wife being intact. He thought that some guests
might have visited the house. Till 31.01.2012 he
did not come to know about the whereabouts of his
wife. When he received a call from the police
station on 31.01.2012 that a dead body of a woman
had been traced, he went to police station on
01.02.2012 along with his daughter. In the police
station he was shown a chudidar top, chudidar vale
and a panche (Dothi) by the police. He identified
the panche to be his and the vale and top to be of
his daughter. Thereafter they went to Wenlock
government hospital and identified the dead body
seeing the cloths of his wife on the body and also
seeing the filling in the tooth. Thereafter he came
to know from the police that the dead body had
been thrown at some place after killing her. On the
same day he came to know from his neighbors that
on 09.01.2012 some persons had come to his house
in a white colour Maruti Omni car.
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11.2 PW3 is the elder brother of the
deceased. His evidence shows that PW2 informed
him around 6.00pm on 09.01.2012 that his wife
had gone missing and in that regard he had been to
police station to make a complaint. He too
searched for his sister but she was not traced.
Again on 31.01.2012 he received a telephone call
from PW2 and came to know that a dead body had
been found and he too was asked by PW2 to come
over to police station. Therefore on 01.02.2012
himself, PW2 and Shainaz i.e., the daughter of PW2
went to Kadaba police station where they were told
that the dead body was kept in the mortuary of the
Wenlock Hospital. He too states that before going
to the hospital, they were shown a chudidar top, a
vale and a panche. They were all identified by PW2
and his daughter Shainaz. After going to the
hospital he saw the dead body which was fully
decomposed. Seeing the clothes on the dead body,
he too identified it as that of his sister
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Khathijamma. He also saw a tooth of Khathijamma
being filled by a dentist and this was another
reason for identification of the dead body.
11.3 PW15 is the younger brother of the
deceased. He too has given the evidence in the
same manner.
11.4 In addition to the evidence given by
PWs.2, 3 and 15 with regard to identification of the
dead body, reference should be made to the
evidence of PW22 and PW24.
11.5 PW22 was the doctor who conducted
post mortem examination. He could not give the
cause of death because the dead body was fully
decomposed, however he formulated 6 opinions out
of which opinion Nos.1, 2 and 6 are relevant here.
The first opinion is that the bones of the dead body
belonged to that of a female and he arrived at this
conclusion based on morphological and
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morphometric features. The estimated age of the
deceased was in between 20 and 40 years. The 6 t h
opinion is that the time of death was approximately
2 weeks to 3 months prior to the post mortem
examination. PW22 collected right lateral incisor
from maxilla, a piece of right clavicle bone and a
piece of femur bone at the time of conducting post
mortem examination for the purpose of sending
them to DNA profiling.
11.6 The investigating officer collected the
blood samples of the parents of the deceased and
sent them to FSL. PW24 extracted the DNA profile
from the incisor of the maxilla and other items and
compared the same with DNA profile extracted from
the blood samples of the parents of the deceased.
But his examination shows that sufficient DNA
profiles could not be obtained from the samples
collected from the deceased and he could only give
a report that DNA matching was not possible. For
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this reason the evidence of PW24 is not helpful at
all. However if we scrutinize the evidence given by
PWs.2, 3 and 15 in the juxta position with PW22 a
clear inference can be drawn that the dead body
was that of a woman as deposed by PW22. The
time of death also clearly corresponds to the
opinion given by PW22 because it was on
09.01.2012 that Khathijamma went missing. The
post mortem was conducted on 01.02.2012.
Therefore the approximate time of death falls
within the period estimated by PW22. With these
materials if we consider the testimonies of PWs.2, 3
and 15 which have not been discredited in the cross
examination, a clear inference can be drawn that
they were able to identify the dead body to be that
of Khathijamma only. Though they identified the
deceased after seeing the clothes, we have to say
that such kind of identification cannot be
disbelieved more particularly when PW2 being the
husband used to see the clothes being worn by the
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deceased everyday. He also saw a tooth filling and
in this regard he stated that a few days before the
incident, he had taken his wife to a dental clinic,
namely, Padmapriya Dental Clinic. Though Sri
P.B.Umesh argued that because DNA matching was
not possible identification would become doubtful,
it is difficult to accept his argument and we may
safely conclude that there was identification of the
dead body by these three witnesses. Added to this
recovery of imitation gold jewelleries belonging to
the deceased from accused No.1 further fortifies
the evidence with regard to identification of the
dead body. At the place where the dead body was
found there was a cloth bundle containing a piece
of cloth belonging to the daughter of the deceased
which was also identified by her in the police
station. This is an another piece of evidence which
helps to establish the identity of the deceased.
Therefore there is clinching evidence with regard to
identification of the dead body.
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12. With regard to accused persons visiting
the house of the deceased, PWs.4, 5 and 15 are
the main witnesses to establish this circumstance
and incidentally the evidence given by PWs.2, 3, 7,
10 and 12 may be referred to. PWs.4 and 5 are
spouses whose house was situated at some
distance from the house of the deceased. Both of
them have consistently given evidence that around
11.00am on 09.01.2012 they saw a white colour
Maruti Omni car going towards the house of PW2.
Since PW4 was waiting for the arrival of a person
by name Bhatta, he went outside thinking that Mr.
Bhatta might have come in that car. When he and
his wife went outside, both of them saw one man,
two women and a child alighting from the car and
going inside the house of PW2. The car was seen
parked in front of the house till 1.00pm. Around
5.00 or 5.30pm on 09.01.2012 both of them heard
a loud cry from the house of PW2. They went
there and saw PW2 and his children and came to
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know from them that front door as well as back
door of their house had been locked and
Khathijamma was not seen inside the house. By
that time some people gathered there and
thereafter all of them broke open the backside
door and went inside the house. PW4 and PW5
saw three tea cups being kept in the washbasin,
and some biscuits, mixture and other snacks items
in the plates being kept on the table. They also
noticed scattering of clothes inside the room. PW2
checked inside the steel almirah and found the
gold jewellery of Khathijamma being there. But
PW4 and PW5 do not say that they were able to
see the faces of the persons who alighted from the
car. Therefore the evidence of these two
witnesses is helpful only to the extent of they
seeing three adults and a child coming in a car and
going inside the house of PW2.
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12.1 The evidence given by PW15 is to the
effect that accused No.1 who is the brother of his
wife i.e., accused No.3, had returned from a
foreign country. The mother of accused No.1 was
unwell and therefore accused No.3 used to go to
the house of accused No.1 to see her mother. On
07.01.2012, accused No.1 had come to his house
to take his sister i.e., accused No.3 with him to
consult a fortune teller to enquire about the health
condition of his mother and also his future
prospects. At that time accused No.1 had come in
his white colour Omni car. PW15 has stated that
accused No.1 took accused No.3 and the child with
him and returned in the evening. Again on
09.01.2012 accused No.1 came to his house with
accused No.2 in the same car and took his wife
i.e., accused No.3 with him to Thanneer Pantha
where the fortune teller was living. That means
accused No.1 to 3 left his house to go to Thanner
Pantha and all the three returned on next day. He
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saw his wife being dull. He asked his wife the
reason for her dullness and she simply said that
she had slight headache. On the same day i.e., on
09.01.2012 his brother-in-law i.e., PW2 made a
phone call to him and said that his wife i.e.,
Khathijamma was missing and therefore he had
given a complaint in the police station.
12.2 We have already referred to the
evidence of PW2 who has stated that his wife was
found missing on 09.01.2012. PW3 has given
evidence in the same manner.
12.3 PW7 is a witness in whose presence a
mahazar as per Ex.P15 was drawn in connection
with seizure of imitation jewellery. His evidence
shows that on 09.02.2012 around 07.45am, he
went to police station. By that time another panch
witness, namely, Ibrahim had also come to police
station. There he was shown accused No.1 and
told that he was the person who had killed
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Khathijamma. It was also brought to his notice
that accused No.1 was about to produce certain
items which were to be seized and therefore he
was requested to act as pancha. At about
08.15am the police took him, Ibrahim and the first
accused in a jeep. The first accused led the police
to his house situated at a place called Kolambu at
Ajjavara. First accused took the police and
panchas inside his house. There was a steel
almirah inside a room. Opening that almirah the
first accused removed a cloth bundle and gave it to
the police. At that time he said that the bundle
contained jewelleries which were removed from the
body of Khathijamma. When the bundle was
opened it was found that there were four keys in a
key chain, 2 bangles and a pair of ear studs. They
looked like gold. The police wrote a mahazar as
per Ex.P15 seizing all these items marked as per
MOs.8 to 10.
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12.4 It is also forthcoming from the
evidence of PW7 that accused No.1 took the police
and the panchas to a shop called Susha Decors
situated below Durga Complex and said that he got
a seat of the car changed there. The owner of that
shop Rakshith Kumar was present and when the
police enquired him, he told that on 30.01.2012,
the first accused had brought his car and got a
seat changed. PW12 is the car decorator who has
also given evidence that accused No.1 had brought
the car to his shop for changing the seat.
12.5 From the evidence of PW7 it is found
that the jewelleries being worn by the deceased at
the time when the incident took place were seized
at the instance of accused No.1 from his house.
Therefore even though PW4 and PW5 have stated
that they were not able to see the faces of the
persons who alighted from the car, from the
evidence given by PW15 and PW17, it can be
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stated that the car belonged to accused No.1 and
accused No.1 to 3 were the persons who had
visited the house of Khathijamma on 09.01.2012.
The net effect of evidence of these witnesses who
have not been discredited in the cross examination
helps to arrive at a clear conclusion that none
other than accused No.1 to 3 visited the house of
the deceased on 09.01.2012.
13. With regard to recovery of imitation
jewellery from the house of accused No.1, we have
already referred to the evidence of PW7 who has
clearly stated that only at the instance of accused
No.1 the police were able to recover the
jewelleries made up of imitation gold. In addition
the evidence of PW10 a goldsmith may be referred
to here. It is his clear evidence that in the third
week of January 2012, a youngman had come to
his shop in a Maruti Omni car, and showing him 2
bangles, a pair of ear studs and a lolak asked to
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test whether those articles were made up of real
gold or not. Testing them, he confirmed that they
were not made up of real gold. He returned those
items to that youngman. It is his further evidence
that on 09.02.2012, the police brought that young
man who had brought the jewelleries for testing
purpose. By that time he had come to know by
reading a news paper that a woman by name
Khathijamma had gone missing and her dead body
was found near a road connecting Gundya and
Subramanya. He came to know that the young
man whom the police had brought was the relative
of the deceased. In the open court he pointed out
accused No.1 and said he was the very person who
had brought the jewellery items for testing
purpose to his shop. This witness is also not
discredited in the cross examination. PW2 and
PW3 have also identified the jewelleries and the
key bunch to be belonging to the deceased. PW10
identified the jewelleries that he had tested.
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Therefore from the evidence of PW7 and PW10, an
inference can be drawn that involvement of
accused No.1 was there in the missing of
Khathijamma. The evidence in this regard is
sufficient enough to hold that this circumstance
has stood established to connect accused No.1 with
the crime.
14. The circumstance of accused No.1 himself
showing the place where the dead body was
thrown is established by PW14. The evidence of
PW14 shows that on 08.02.2012 the police asked
him to come over to police station and accordingly
he went there around 9.00am. He saw accused
No.1 being there. The investigating officer was
also present. Accused No.1 told before the police
that he would show the place where he killed
Khathijamma and also the place where the dead
body had been thrown. Stating so, he took him
and the police to the house of Abbas i.e., PW2.
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Going inside the bed room of that house he said
that it was the place where he killed Khathijamma
along with his two sisters. PW14 noticed the
clothes being scattered on the cot. The police
wrote a mahazar as per Ex.P19. Thereafter
accused No.1 took the police and PW14 to the
Nethravathi bridge and said he threw away the
mobile phone of Khathijamma into the river. The
police wrote a mahazar as per Ex.P21 at that
place. Afterwards accused No.1 led the police and
PW14 to another place near Amaythadka on
Gundya-Subramanya road. After reaching that
place, he showed a drainage pipe and said that it
was the place where he had thrown the dead body.
There the police wrote another panchanama as per
Ex.P22. PW14 has not been discredited in the
cross examination.
14.1 Undoubtedly it was based on the
voluntary or confession statement said to have
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been given by accused No.1 and all these
panchanamas were drawn in the presence of PW14.
In the voluntary statements the portions relating
to admitting the guilt is inadmissible according to
Section 25 and 26 of the Indian Evidence Act.
However the disclosures made by him about the
place where the incident had taken place and the
dead body had been thrown falls within the scope
of Section 27 of the Evidence Act.
14.2 One line of argument of Sri P.B.Umesh
was that by the time the panchanamas Exs.P19,
20, 21 and 22 were drawn, it was within the
knowledge of the police that death had occurred
inside the house of Khathijamma and that the dead
body was found having been thrusted inside the
drainage pipe and therefore this kind of recovery
does not assume any significance.
14.3 It is true that the police were aware of
the place of killing and the place where the dead
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body had been thrown. It is not the way of looking
into it. If accused No.1 led the police and showed
the very same places to them, it would only
confirm that it was the place where the incident
had taken place as has been disclosed by accused
No.1. This kind of disclosure cannot be discarded
or ignored just for the reason that the police were
aware of it.
14.4 If the evidence made available by the
prosecution in regard to the circumstances is put
to scrutiny, it is found that every link in the chain
of circumstances has been proved. There is
believable primary evidence for each circumstance,
and totality of the evidence indicates existence of
proof beyond reasonable doubt indicating
involvement of accused No.1 in the death of
Khathijamma. This is the only possible view that
can be taken; the findings of the trial court to
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acquit accused No.1 are not correct; those findings
are not possible to be arrived at.
15. Though we find all the circumstances
being proved, it is impossible to hold that accused
No.2 and 3 were also involved in commission of
crime. As the evidence discloses accused No.1
wanted money and when he asked his sister i.e.,
accused No.3 for money or gold, she told that the
deceased was having 65 pavans of gold. Therefore
accused No.1 wanted to seek the help of his sister
to obtain gold from the deceased and in this
connection he took his both sisters to the house of
the deceased. The evidence given by PWs.2, 3 and
15 shows that when accused No.1 was searching
for gold inside the steel almirah, Khathijamma saw
and questioned him. Annoyed by this he closed
her mouth and nose to silence her and at that time
the death occurred. The participation of accused
No.2 and 3 is not forthcoming in this incident. The
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prosecution has made an attempt to prove that
accused No.2 and 3 helped accused No.1 to shift
the dead body from the house of the deceased to
the place where it was found. No witness has
spoken that accused No.2 and 3 helped accused
at the time when the incident occurred, there is no
evidence indicating their participation in the
commission of crime. Therefore the circumstances
proved only point out the participation of accused
No.1 in the entire crime. For this reason we can
hold only accused No.1 guilty and not accused
No.2 and 3.
16. Now if the overt-act of accused No.1 is
examined, it can be said that he did not have
intention to kill Khathijamma. The incident
occurred at a spur of moment when the deceased
objected seeing accused No.1 searching her
almirah. Accused No.1 had the knowledge of
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consequences of closure of mouth and nose in that
in all probability it would result in death.
Intention is not forthcoming. It was not a
premeditated act. For this reason offence
punishable under Section 302 of IPC does not
constitute, instead the only offence that can be
held to have been proved is as punishable under
Part-II of Section 304 of IPC.
17. With this discussion, we arrive at a
conclusion that only accused No.1 can be held
guilty of the offence punishable under Section 304
Part-II of IPC and accordingly we modify the
judgment in the following manner.
ORDER
Both the appeals are allowed in p art.
The judgment dated 27.04.2017 passed
by the V Additional District and Sessions
Judge, D.K.Mangaluru sitting at Puttur, in
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S.C.No.127/2012 acquitting accused No.2
and 3 is confirmed.
The judgment of the trial court
acquitting accused No.1 is set-aside.
Accused No.1 is held guilty of the offence
punishable under Section 304 Part-II of IPC.
18. At this juncture Sri P.B.Umesh submits
months in the jail and the said period be set-off
for the punishment to be imposed against him. He
also submits that fine may be imposed. But we
are of the opinion that presence of accused No.1 is
to be secured before the court for determining the
punishment to be imposed. Therefore the Station
House Officer of Kadaba Police Station, Puttur,
D.K. is hereby directed to keep accused No.1
present before this court on 15.02.2024.
19. We place on record the services rendered
by Smt. K.M.Archana, Advocate who argued the
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appeal on behalf of the appellant/complainant as
Amicus Curiae in Crl.A.No.1098/2017. The High
Court Legal Services Committee, High Court of
Karnataka, Bengaluru is hereby directed to pay
remuneration of Rs.10,000/- (Ten Thousand Only)
to the Amicus Curiae.
Sd/-
JUDGE
Sd/-
JUDGE
KMV
