Karnataka High Court
The State vs Benakesha on 9 February, 2024
Author: H.B.Prabhakara Sastry
Bench: H.B.Prabhakara Sastry
1 Crl.A.No.242/2018 C/W
Crl.A.No.1904/2017
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 9TH DAY OF FEBRUARY 2024
PRESENT
THE HON'BLE DR. JUSTICE H.B.PRABHAKARA SASTRY
AND
THE HON'BLE MR JUSTICE UMESH M ADIGA
CRIMINAL APPEAL No.242 OF 2018 (A)
CONNECTED WITH
CRIMINAL APPEAL No.1904 OF 2017 (A)
IN CRIMINAL APPEAL No.242 OF 2018:
BETWEEN:
The State by
Rural Police Station
Harihara
Represented by
State Public Prosecutor
High Court building
Bengaluru - 560 001 ... Appellant
(By Shri. P.Thejesh, HCGP)
AND:
1. Benakesha
S/o Siddappa
Aged about 53 years,
Labour
R/o Echagatta village,
Davanagere taluk - 577 001
2. Shobha
W/o Benakesha
Aged about 47 years,
Labour
2 Crl.A.No.242/2018 C/W
Crl.A.No.1904/2017
r/o Echagatta village
Davanagere taluk - 577 001
... Respondents
(By Shri. D.P. Mahesh, Advocate)
This Criminal Appeal is filed under Sections 378(1) and (3)
of Cr.P.C. praying to grant leave to appeal against the Judgment
and Order dated 16.08.2017 passed by the I Additional District
and Sessions Judge, Davanagere in S.C.No.152/2015 acquitting
the respondent /accused for sections 302, 201 read with Section
34 of IPC.
IN CRIMINAL APPEAL No.1904 OF 2017:
BETWEEN:
Smt. Anjanabai S.
Aged about 62 years
W/o. Basappa Hullumani,
R/at 548/19 Matrushree Nilaya,
Near Dhurgambika School
Davanagere - 577 002 ... Appellant
(By Shri. Sanath Kumar A., Advocate)
AND:
1. The State of Karnataka
through Rural Police Station
Harihara, Davanagere,
represented by
State Public Prosecutor,
High Court of Karnataka,
Bengaluru - 560 001
2. Benakaesha
S/o Siddappa,
Aged about 52 years
r/o Echagatta village,
Davanagere taluk.
3. Shobha
Aged about 47 years
3 Crl.A.No.242/2018 C/W
Crl.A.No.1904/2017
W/o Benakesha,
R/o Echagatta Village,
Davanagere Taluk.
... Respondents
(By Shri. P.Thejesh, HCGP for R1
Shri. D.P.Mahesh, Advocate for R2 and R3)
This criminal appeal filed under section 372 of Cr.P.C.
praying to set aside the order dated 16.08.2017 passed by the I
Additional District and Sessions Judge, Davanagere in
S.C.No.152/2015 acquitting the respondent/accused for the
offences punishable under Sections 302 and 201 read with
Section 34 of IPC.
These Criminal Appeals coming on for Further Arguments
having been heard through physical hearing/video conference
and reserved for judgment on 23.11.2023, coming on for
pronouncement, this day, Umesh M Adiga J., delivered the
following:
JUDGMENT
Both these appeals arises out of judgment passed in
Sessions Case No.152 of 2015 dated 16.08.2017 on the file
of I Additional Sessions Judge, Davanagere (for short 'Trial
Court'). State has filed Criminal Appeal No.242 of 2018
and foster mother of deceased (victim) has filed Criminal
Appeal No.1904 of 2017 challenging the above said
judgment acquitting accused for the offence punishable
under Section 302 and 201 of IPC.
2. We refer to the parties as per their rank before
the Trial Court.
3. Brief facts of the case are that accused Nos.1
and 2 are husband and wife. They have two daughters by
name, Kumari Chaithra and Kumari Vanitha. Accused were
residing at Eechaghatta Village. Kumari Vanitha was
studying in first year Pre-University course during 2015 at
Davanagere. PW-8/Smt. Shilpa.H.B. is sister of deceased
Akash Kumar. She has been serving as Teacher in Higher
Primary School situated at Eechaghatta Village, which was
next to the house of the accused. Kumari Vanitha
completed her primary school education in the said school
and she was student of PW-8 - Smt.Shilpa; She used to
take PW-8 to her house and PW-8 was familiar with both
the accused. It appears accused were not intending to
continue education of Kumari Vanitha after she passed 10th
Standard. PW-8 advised the accused No.1 to continue her
education and also told that she would bear the expenses
of her college education and accordingly, got admitted
Kumari Vanitha in a college at Davanagere, for studying
Pre-University course and she has paid college fees.
4. PW-6/Indrakumar.H.B. and PW-8/Shilpa and
PW-11/Smt.Rupavani are the children of PW-9/Smt.
Anjanabai. Deceased Akash Kumar was the son of younger
sister of PW-9. Both the parents of Akash Kumar
abandoned him when he was child. Thereafter, PW-9
brought him up. He was considered as one of sons of PW-
9. PWs-8, 9 and 11 were residing along with deceased
Akash Kumar, at Davanagere and PW-6 was residing
separately at Davanagere.
5. Deceased Akash Kumar was often visiting
Eechaghatta to meet his sister/PW-8. He was also often
used to meet accused and Kumari Vanitha in their house at
Eechaghatta. It appears both Kumari Vanitha and deceased
Akash Kumar fell in love. PW-8 noticed deceased and
Kumari Vanitha together in the Parks, two to three time.
On her enquiry, Akash Kumar told her that he had been
loving Kumari Vanitha. PW-8 advised Akash Kumar that
"both were still very young to have love affairs and after
completion of their education, he would think of the same."
It appears inspite of advise of PWs-8, 9 and 11, deceased
Akash Kumar and Kumari Vanitha used to meet in the
Parks and loving each other.
6. It is further the case of the prosecution that the
fact of love affair between deceased Akash Kumar and
Kumari Vanitha came to the knowledge of accused. They
requested PWs-8, 9 and 11 to advise deceased Akash
Kumar "not to contact their daughter Kumari Vanitha. Both
of them are belonging to different caste and even it would
not be possible to arrange their marriage, therefore, told
them, if he continue contacting Kumari Vanitha, then he
has to face serious consequences".
7. It appears, inspite of advise of accused as well
as PWs-6, 8, 9 and 11, Akash Kumar continued to contact
Kumari Vanitha, because of the same, both the accused
were very angry against said Akash Kumar.
8. It is the case of the prosecution that on
10.03.2015 around 5.30 p.m., accused No.1 had gone to
the house of PW-11, told Akash Kumar that he had some
work with him and taken Akash Kumar along with him. It
is alleged against accused that thereafter, both the accused
took him on a motorcycle towards Harihara, on National
Highway from Davanagere to Harihara and thereafter, took
deviation, to service road at Hanagawadi Cross and in the
land of PW-1/ Thippanna and Mohammed Ghouse assaulted
him. Deceased fell down; thereafter accused threw a big-
size stone on his head and killed him. Both the accused
while returning removed blood stained clothes worn by
them and threw the clothes in the river.
9. Akash Kumar did not return home on
10.03.2015 till 9.30 p.m. PW-11 informed to PWs-8 and 6
that Akash Kumar did not return home till night.
Thereafter, all of them searched him with known person of
Akash Kumar but they could not get any information of
Akash Kumar. It appears that within two to three days
from that day, he had to attend exam, therefore, they
thought that deceased Akash Kumar might be gone to the
house of one of his friends, to study and also thought that
he might come on the next day. However, on the next day
also, deceased Akash Kumar did not return.
10. On 12.03.2015, someone informed PW-1/
Thippanna that a dead body was found in between the land
of himself and Mohammed Ghouse. He went to the said
place and found a dead body of a man aged between 25 to
30 years, sustaining severe head injuries and the body was
decomposed. PW-1 suspected that someone might have
murdered him and kept the dead body in the agricultural
land. He gave this information in writing to Harihara Rural
Police Station as per Ex.P1. PW-20 Sunil Kumar.H., Police
Sub-Inspector of the said Police Station; On the basis of
Ex.P1, registered First Information Report in Crime No.57
of 2015 for the offences punishable under Sections 302 and
201 of IPC.
11. PW-2/Jagadisha on 12.03.2015 intimated PW-6
over phone that a dead body was found in the land of PW-1
at Hanagawadi Cross and the said body appears to be of
Akash Kumar, therefore, asked PW-6 to see the body and
identify the same. PW-6 informed this fact to PWs-8, 9 and
11. All of them went to the said place and identified the
body as of Akash Kumar.
12. PW-22/Pampanagouda, C.P.I., Harihara Rural
Police Station and PW-18, Jayappa took further
investigation; They recorded the statement of the
witnesses and arrested the accused and on their
confession, drawn mahazar of relevant places, seized MO-
4, which was used to murder Akash Kumar and also seized
the motorcycle in which, both the accused and deceased
had travelled prior to the incident. After conclusion of the
investigation, PW-18 submitted charge-sheet to the Court
of J.M.F.C., Harihara for the offences punishable under
Sections 302 and 201 read with Section 34 of IPC.
13. The learned Magistrate took cognizance of the
offence; registered case as C.C.No.658 of 2015; secured
presence of the accused; and released them on bail. Copy
of the charge-sheet and enclosures were supplied to the
accused. The offence punishable under Section 302 of IPC
is triable by Court of Sessions. Hence, the learned
Magistrate committed the case to the Sessions Court.
14. After receipt of the file, the learned Sessions
Court, registered the case as S.C.No.152 of 2015 and it
was tried by I Additional District and Sessions Judge Court
at Davanagere. The learned Sessions Judge after hearing
both the parties, framed the charges punishable under
Section 302 and 201 read with Section 34 of IPC and the
accused pleaded not guilty and claimed to be tried.
15. The prosecution to prove its case examined
PWs-1 to 22 and got marked Exs.P1 to P31 and MOs-1 to
8. Thereafter, the learned Sessions Judge examined the
accused under Section 313 of Cr.P.C. and their answers
were recorded. The accused did not lead the defence
evidence when called upon, however two documents were
marked during the cross-examination of prosecution
witnesses as DWs-1 and 2.
16. The learned Sessions Judge formed two points
for determination. The learned Sessions Judge appreciating
materials and evidence on record, answered both the
points in the 'negative' and by impugned judgment dated
16.08.2017 acquitted both the accused of the alleged
charges levelled against them. The same is challenged both
by the State as well as mother of the deceased, in these
appeals.
17. We have heard the arguments of the learned
High Court Government Pleader, Shri.Tejesh.P. for
Complainant/State and Shri.Sanath Kumar, learned
advocate for the appellant and Shri.D.P.Mahesh, learned
advocate for accused Nos.1 and 2/Respondents Nos.2 and
3.
18. The learned advocate for appellant/victim would
submit that PWs-6 to 11 in their evidence have narrated
facts of the case and they had also stated that accused was
very much upset when he came to know that deceased
Akash Kumar had fell in love with his daughter. Caste of
Akashkumar as well as themselves were different and
hence, both Akashkumar and Kumari Vanitha could not
marry. They did not want to spoil the career of their
daughter. Therefore, they warned Akash Kumar as well as
told PWs-6, 8, 9 and 11 to advise Akash Kumar properly
and directed deceased not to contact their daughter,
Kumari Vanitha, failing which, Akash Kumar had to face
serious consequences. That was motive for the accused to
kill him.
19. The learned counsel for the appellant would
further submit that both the accused with an intention to
take revenge against the deceased on 10.03.2015, taken
him when he was in the house and thereafter, deceased
had been missing. PWs-6, 8, 9 and 11 searched Akash
Kumar but did not find him. On 12.03.2015, dead body of
Akash Kumar found in the land of PW-1/C.Thippanna. It
was identified by PWs-6, 8, 9 and 11. After arrest of the
accused, they confessed before the Police and PWs-6, 8, 9
and 11. On the confession of the accused, Investigating
Officer had seized MO-4 and motorcycle, which was
involved in the offence. Accused took police as well as the
witnesses to the over-bridge of National Highway from
where they had thrown their blood-stained clothes in the
river. Due to the flow of water, the said clothes were not
available in the river. However, prosecution was able to
prove that in the said place, accused have thrown their
blood-stained clothes.
20. The prosecution witnesses have fully supported
the case and nothing was brought out in the cross-
examination of the said witnesses to disbelieve their
evidence. The evidence of PW-13/ Dr.Raju.G.M., who had
conducted the post-mortem to prove that death of Akash
Kumar was homicidal and it was not seriously disputed.
PW-2 in his evidence has stated that on 10.03.2015, he
had seen accused and deceased going together on the
motorcycle. PW-11 in her evidence has stated that on
10.03.2015 accused No.1 came to their house and took
deceased along with him, informing that he had some work
with the deceased and thereafter, Akashkumar did not
return home. PWs-6, 8, 9 11, 16, 17 and 21 have stated
about love affair of deceased Akashkumar with Kumari
Vanitha. PWs-18 and 22 have stated about investigation
done by them. All the witnesses have supported the case of
the prosecution and in their cross-examination, nothing
was brought out to discard their evidence. The learned
Sessions Judge did not appreciate the evidence properly.
The learned Sessions Judge, on the basis of presumptions
and assumptions, rejected the evidence of the prosecution
and acquitted the accused. The said judgment is arbitrary
and perverse. With these grounds, the learned advocate for
the appellant and the learned HCGP prayed to allow the
appeal by convicting both the accused for the offences
punishable under Section 302, 201 read with Section 34 of
IPC.
21. The learned HCGP submitted the argument on
line of advocate for victim. No need to repeat. The learned
advocate for respondents-accused has submitted that the
date of missing of deceased Akash Kumar was said to be on
10.03.2015 from 5.30 p.m. As per the statement of PWs-6,
8, 9 and 11, they searched deceased Akash Kumar in
several places, including his friends and relatives houses.
However, they could not trace him out. Inspite of that,
none of them had filed any complaint of missing of Akash
Kumar till 12.03.2015. The complaint was filed for the first
time on 12.03.2015 by unknown person, who had seen the
dead body nearby his land. Normally, when any person
goes missing, members of the family would normally file a
complaint to trace him out. But in this case, no such
complaint was filed and no explanation is offered by the
PWs-6, 8, 9 and 11 in their previous statement or before
the Court. Therefore, there is a delay of two days in lodging
the complaint, which indicates that there were lot of
discussion and deliberations, thereafter, complaint was
lodged.
22. The learned counsel for respondents/accused
further submits that during the inquest, statement of PWs-
6, 8 and 9 were recorded and in the said statement, none
of them have stated that on 10.03.2015 at about 5.30
p.m., accused No.1 came home and had taken deceased
along with him. While recording the statement of the said
persons, it was stated by them that "they did not know
where the deceased had gone and from 10.03.2015 during
the evening, he left the house and they did not know who
had taken him." It appears on 14.03.2015, the accused
were said to be arrested and on the basis of alleged
confession, a story was fabricated to falsely implicate
accused in this case.
23. The learned advocate for respondents further
submitted that on the basis of the so-called confession of
the accused, the concerned police informed the same to the
PWs-6, 8, 9 and 11 and others. Thereafter, they had
introduced the story that on 10.03.2015, accused No.1
came to house of PW-11 and took deceased along with
him. Therefore, the said case made out by the prosecution
is not reliable. If really he had taken deceased along with
him, then nothing prevented PWs-6, 8, 9 and 11 to inform
to police the said facts, while recording their statement,
while conducting inquest on the dead body.
24. The learned counsel for respondents has further
submitted that according to case of the prosecution, PW-2
had informed PW-6 that a dead body was found near land
of PW-1 and the said dead body appears to be of Akash
Kumar. Thereafter, PWs-6, 8, 9 and 11 went to the said
spot and identified the dead body. But during evidence,
PW-2 has made out a new case stating that "on
10.03.2015, when he was going on the motorcycle, he saw
both accused and deceased were going on motor cycle
towards Harihara side." In his cross-examination, he has
stated that police not enquired him and recorded his
statement. PW-22 has stated that PW-2 had not given such
statement before him. Therefore, the improvement made
by PW-2 during course of the evidence is at the instance of
PWs-6, 8, 9 and 11 and it is not reliable.
25. The Learned counsel for respondent has further
submitted that as per the medical evidence i.e., evidence of
PW-13, deceased had sustained head injury as a result of
blunt force impact over the head and it was resulted in his
death. In the specific question asked to the investigating
officer, PW-13 has stated that the weapon being a
moderately heavy stone with an uneven rough surface is
not capable of producing the injuries mentioned in the
post-mortem report. Therefore, the case of prosecution
that accused assaulted Akash Kumar with MO-4 and caused
his death is believed. The prosecution has miserably failed
to prove that the accused had any motive to commit the
said crime. With these reasons, the learned advocate for
respondents prayed to dismiss both the appeals.
26. The learned advocate for respondent Nos. 2 and
3 has further submitted that the learned trial Judge has
considered all the evidence properly and rightly acquitted
the accused and it does not call for any interference by this
Court. The said findings of the Trial Court is not perverse,
arbitrary or illegal. Therefore, interference by this court is
not required. With these reasons, the learned advocate for
respondents/accused prays for dismissal of the appeals.
27. Following points emerge for our determination:
i) Whether prosecution proved beyond
reasonable that on 10.03.2015 at about 5.00 p.m.,
the accused Nos.1 and 2 in furtherance of their
common intention to murder Akash Kumar, had
taken him from his house and went to Hanagawadi
village coming within the jurisdiction of Harihara
Rural Police station, assaulted him, when he fell
down, accused with an intention to murder him
threw big size stone on his head and murdered him
and thereby accused have committed an offence
punishable under section 302 read with Section 34
of IPC?
ii) Whether prosecution proved beyond
reasonable doubt that on above said place, date and
time, the accused to destroy or disappear the
evidence available against them, threw the blood
stained clothes worn by them in the river and
thereby destroyed the evidence and committed an
offence punishable under Section 201, read with
Section 34 of IPC?
iii) Whether the findings of the learned Trial
Judge is perverse and arbitrary and interference by
this court is required?
iv) What order?
Point Nos.1 and 2 are interconnected, therefore we
discuss them together.
28. Point Nos.1 and 2: There are no eye-witnesses
to the incident and the Police charge-sheeted accused
Nos.1 and 2 on the basis of circumstantial evidence. To
prove the guilt of the accused, prosecution has to prove
following circumstances:
(i) Deceased Akash Kumar fell in love with
daughter of accused Nos.1 and 2 Kumari Vanita.
(ii) That in spite of warning given by accused
Nos.1 and 2, late Akash Kumar continued his love
affair with Kumari Vanita.
(iii) On 10.03.2015 in the evening, accused
No.1 came to the house of PWs-9 and 11 and took
him stating that he had some work with Akash
Kumar and thereafter Akash Kumar did not return
home.
(iv) Accused were last seen together in the
company of deceased and thereafter, he did not
return.
(v) The death of Akash Kumar was
homicidal death.
(vi) The accused and the accused only have
committed the said crime.
29. Death of Akash Kumar is not seriously disputed.
Investigating officer had conducted inquest on the dead
body on 13.03.2015 in J.J.M. Medical College Hospital
situated within the compound of Davanagere Bapuji
Hospital, in the presence of PWs-1 and 2. The dead body of
Akash Kumar was identified by PWs-6, 8, 9 and 11. Injuries
found on the dead body are mentioned in Paragraph No.7
of Ex.P6. He had injuries on right side forehead and middle
of the forehead measuring 1 inch each and due to the said
injury, entire face was blood stained. He had boils all over
the body. During the evidence, PW-2 has stated that he
went to Bapuji Hospital, Davanagere wherein inquest was
conducted in the presence of PW-6. He signed on Ex.P6 at
the time of inquest. In his cross-examination, he has stated
about drawing of the Mahazar and also contents of the said
Mahazar. In his cross-examination, identity of the dead
body or injuries found on the dead body are not seriously
disputed.
30. PW-13, the medical officer of Bapuji Hospital,
Davanagere conducted post-mortem on 13.03.2015
between 12.20 p.m. to 2.40 p.m. In his evidence, he has
stated in detail about the injuries found on the dead body.
He has also stated that the body was dissected and
whatever injuries found inside the body were also
mentioned in the post-mortem report, which was marked
as Ex.P16. He has further stated that he gave final report
about cause of death as per Ex.P17 and according to the
report, death was caused due to head injury as a result of
blunt force impact over the head. He has also stated that
on 06.04.2015, he received a requisition from the CPI
along with an article, that is, a stone and on verification of
the same with the injuries mentioned in the post-mortem
report, he gave his report as per Ex.P18. In examination-
in-chief, PW-13 has stated that the said weapon (stone)
being moderately heavy stone with an uneven rough
surface, is not capable of producing the injuries mentioned
in the post-mortem report. He identified the stone shown to
him as MO-4.
31. From the evidence of PW-13, it is clear that
death was caused due to injuries sustained by the
deceased. In his cross-examination, the learned counsel for
the accused did not deny that it was an homicidal death.
32. During the course of arguments also, the
learned advocate appearing for respondents has not
disputed that death of Akash Kumar was a homicidal death
and hence, prosecution has proved that death of Akash
Kumar was a homicidal death.
33. The prosecution has mainly based its case on
the basis of 'last seen theory' of accused in the company of
deceased. As per the case of prosecution, when PW-11 was
at home, accused No.1 came to her house and took Akash
Kumar on his motorcycle, by informing her that he had
some work with deceased. However, during trial, PW-2 has
stated that two days prior to, he saw the dead body of
Akash Kumar, when he was going on his motorcycle, he
saw both accused and deceased Akash Kumar were going
on a motorcycle. He has identified both accused in the
Court and has stated that on that day, the accused No.1
was riding the motorcycle and both Akash Kumar and
accused No.2 were pillion riders on the said motorcycle.
In his cross-examination by the learned advocate for
accused, PW-2 has stated that he has not given any
statement before the investigating officer. Therefore, he
has not informed the above said fact to the investigating
officer. However, records reveal that the investigating
officer has recorded his statement. PW-22 in his evidence
has stated that PW-2 while recording his statement under
Section 161 of Cr.P.C., has not given such information. It
clearly indicates that it is an improvement during the
evidence of PW-2, which is not the case of prosecution.
Therefore, the said improvement is not reliable. It appears
he is an interested witness and to help relatives of the
deceased, he has stated that he saw deceased in the
company of accused. His evidence about seeing deceased
in the company of accused do not inspire confidence in the
mind of Court.
34. PW-11 in her evidence has stated that on
10.03.2015 at about 5.30 p.m. accused came to her house
and they told her that they had some work with Akash
Kumar and took him along with them. At about 6.00 p.m.,
PW-6 came to her house and he enquired about Akash
Kumar. At that time, she told him that Akash Kumar went
outside. Similarly, when PWs-8 and 9 returned home she
told them that Akash Kumar went outside. However, Akash
Kumar did not return home till 9.00 p.m. Thereafter, she
telephoned to PW-6 and informed him that Akash Kumar
did not return home and PW-6 told her that he might be
gone to his friend's house to study, since his exam would
commence from 12.03.2015. She telephoned to the house
of accused to enquire about deceased but daughter of the
accused, Kumari Vanitha picked up the telephone and she
told her that her parents were not at home. Therefore, PW-
11 has last seen the accused in the company of the
deceased. As stated by her in her evidence, she had not
informed to PWs-6, 8 and 9 that on 10.03.2015, deceased
went outside along with accused around 5.30 p.m.
35. While drawing the inquest on 13.03.2015, as per
Ex.P6, the investigating officer had recorded the statement
of PWs-6 and 11. In the said statement, he has stated that
on 10.03.2015 around 6.00 p.m. he went to the house of
PW-11 and at that time he did not find Akash Kumar in her
house. On enquiry PW-11 told him that around 5.30 p.m.,
Akash Kumar went outside and did not return till 9.30 p.m.
Therefore, again she contacted PW-6 and informed that till
that time Akash Kumar did not return home and both of
them believed that he might have gone to some of his
friends house and he might return home at late hours.
36. PW-11 in her statement recorded at the time of
inquest on 13.03.2015 has stated that on 10.03.2015,
when she was at home, her younger brother (Akash
Kumar) left home around 5.30 p.m., which was marked as
Ex.D1. In the same statement, she has also stated that on
"10.03.2015 around 5.30 p.m., someone had taken him
somewhere and for some reasons assaulted on him with
some weapon and murdered him. Post-mortem has to be
conducted to ascertain cause of his death." The said
statement was marked as Ex.D2. She denied the giving of
such statement to police.
37. It is pertinent to note that on the very same day
i.e., on 10.03.2015, PW-11 knew that Akash Kumar did not
return home till night 9.00 p.m. to 9.30 pm. She and other
members of the family were worried about it. According to
the statement given to police, she along with others
searched Akash Kumar in his friends house and also tried
to contact his friends to know whereabouts of Akash
Kumar, but they could not get any information. Therefore,
they believed that Akash Kumar had gone to some of his
friends' house to study. During the evidence, PW-11 has
stated that she tried to contact accused by making call to
his house and his daughter picked up telephone and told
that her parents were not at home. These facts were not at
all mentioned in her previous statement recorded by the
police either in Ex.P6 or statement recorded under Section
161 of Cr.P.C.
38. PWs-6, 8, 9 and 11 till 12.03.2015, i.e., till filing
of complaint by PW-1, did not even tried to contact accused
to ascertain whereabouts of deceased Akash Kumar, if
really he had taken accused along with him on 10.03.2015.
It is also pertinent to note that the above said persons
even did not file any missing complaint. They did not even
inform to police that on 10.03.2015 around 5.30 p.m.,
accused No.1 had taken Akash Kumar and thereafter,
Akash Kumar did not return home. If really, accused No.1
had taken Akash Kumar on that day, i.e., on 10.03.2015
around 5.30 p.m., then why PWs-6, 8, 9 and 11 did not
inform this fact to police or tried to take help of police to
ascertain whereabouts of Akash Kumar? Therefore, the
submission of learned advocate for respondents that after
arrest of the accused and the so called confession of the
accused, the story of accused No.1 had taken deceased
Akash Kumar from the house of PW-11 was fabricated
cannot be ruled out. Till then there is no mention anywhere
in the prosecution papers about this fact that creates
serious doubt about the said story.
39. PWs-6, 8 and 9 on the basis of information given
by PW-11, have stated in their evidence that Akash Kumar
was last seen in the company of the accused on
10.03.2015 around 5.30 p.m. and thereafter, he did not
return home. All the three witnesses are hear-say
witnesses and secondary evidence. When PW-11 is
examined who is primary evidence, their evidence loses
importance.
40. It is not the case that PWs-6, 8 and 11 are rustic
villagers. PW-6 is a lecturer in a college, PW-8 is a teacher
in a school and PW-11 is staff nurse in a hospital. They are
educated and residing in Davanagere Town. They did not
lodge missing complaint till case was registered on the
statement of PW-1. There is no explanation for not lodging
a missing complaint. These facts also add doubt in the
'theory of last seen' of accused in the company of the
deceased on 10.03.2015 around 5.30 p.m.
Exs.D1 and D2 i.e., statement of PW-11 recorded
during the inquest, is material contradiction/omission. In
the cross-examination of PW-22, he has stated that PW-11
has given statement before him as per Exs.D1 and D2.
Therefore, the evidence of PW-11 that she had last seen
deceased in the company of accused is not believable.
Therefore, another material circumstance which connect
the accused with guilt is not established beyond reasonable
doubt.
41. Motive for the accused to murder Akash Kumar
was that he was loving their daughter Kumari Vanitha;
Inspite of their warning, he continued to contact their
daughter. Hence, they hatched a plan and murdered him.
42. PW-6 in his evidence has stated that after
completion of high school education of Kumari Vanitha, the
accused did not want to continue her education. However,
PW-8 insisted them to continue her education; She made
arrangement to admit her in Pre-University College at
Davanagere and paid college fees of Kumari Vanitha. While
recording statement under Section 313 of Cr.P.C., accused
have submitted that they had sufficient source of income to
spend for education of Kumari Vanitha and PW-8 had not
paid the fees and he has also appears to be given receipts
for payment of college fees of Kumari Vanitha. In his cross-
examination, PW-6 denied that his statement that Akash
Kumar was visiting the house of accused and he was loving
Kumari Vanitha is not true. He also denied the suggestion
that Akash Kumar and Kumari Vanitha were studying in
different colleges, therefore, they had no connection with
each other. He has also denied suggestion that accused
never told him or his sister to advise Akash Kumar not to
continue love affair with Kumari Vanitha.
43. The evidence of PW-6 regarding love affair of
Kumari Vanitha and the deceased is hear-say evidence. He
has never stated that he personally saw or sensed that
deceased Akash Kumar fell in love with Kumari Vanitha or
they were meeting often. It appears, on the basis of
information given to him by PW-8, he deposed before the
Court.
44. PW-8 in her evidence has stated that she has
been serving in school at Eechaghatta as a teacher; house
of accused was situated next to the said school. Accused
No.1 had two wives and he has two children from his first
wife and three children from his second wife. Chaithra and
Vanitha were children of second wife of accused No.1. Four
children of accused No.1 had been studied in the said
school, wherein she was serving as teacher. She was
familiar with accused and was visiting to their house.
Kumari Vanitha studied 6th to 8th standard in the said
school. Akash Kumar frequently visiting the said school to
drop her from her house. Family of accused also became
familiar to him. Even she has persuaded accused No.1 to
continue education of Kumari Vanitha and got her admitted
to Pre-University course by paying fees.
45. PW-8 has further stated that when Kumari
Vanitha was studying in Pre-University college Akash
Kumar was also studying in PUC. Twice she had seen
deceased as well as Kumari Vanitha in the Park. Therefore,
on one day evening in the presence of PW-9 and PW-11
she enquired Akash Kumar, in this regard and Akash Kumar
told her that both of them were loving each other. Hence,
she along with PW-9 and PW-11, advised Akash Kumar that
"he was still young and studying. It was not proper time for
love affairs and after completion of their education, let
them decide on this issue. Till then, not to continue love
affairs". About two three months thereafter, both accused
came to her house and told that "Akash Kumar was loving
their daughter Kumari Vanitha. Both of them were very
young and their caste were different. Therefore, requested
her to advise Akash Kumar not to contact her or continue
love affair with Kumari Vanitha; failing which, he has to
face consequences." In her cross-examination, accused
denied all the said evidence given by her. PW-8 admits that
Akash Kumar and Kumari Vanitha were studying in
different colleges. However, she denied the suggestion that
Akash Kumar and Kumari Vanitha had no connection at all.
46. One of the defence of the accused is that Kumari
Vanitha was studying in the school wherein PW-8 was a
teacher. She had ill-treated and harassed her. Therefore,
accused requested PW-8 not to ill-treat Kumari Vanitha or
harass her. However, she did not care to his request and
because of the said reason, PW-8 was very much angry
against accused. Conduct of Akash Kumar was not good, he
was quarrelsome boy and fighting with others. Deceased
quarrelled with them also. He had enemies and the said
enemies might have committed his murder. However, due
to earlier enmity, PW-8 lodged a false case against them.
The said defence were suggested to PWs-6, 8, 9 and 11
and all of them have denied the said suggestions.
47. PWs-9 and 11 have also stated that on the basis
of information given to them by PW-8 that Akash Kumar
fell in love with Kumari Vanitha, they have deposed same
facts before the Court. They have also stated that accused
came to their house and requested them to advise Akash
Kumar not to have love affair with Kumari Vanitha and
inspite of that if he continued to contact Kumari Vanitha,
then, he has to face severe consequences. The evidences
given by them were denied in their cross-examinations.
PWs-16, 17 and 21 were examined by the prosecution
to prove that Akash Kumar and Vanitha were loving each
other. But they are also hear-say witnesses. They are
friends of late Akash Kumar and during his lifetime, he said
to be informed them that "he fell in love with Kumari
Vanitha." It is not the evidence of PWs-16, 17 and 21 that
they had seen deceased and Vanitha were meeting often
in the college or park or other places. Except the evidence
of PW-8, there is no reliable evidence to prove love affair
between the deceased Akash Kumar and Kumari Vanitha
and they were planning to marry.
48. It is pertinent to note that mere meeting of
Akash Kumar and Kumari Vanitha is not sufficient to
believe that they had love affair. Deceased was familiar to
the family of accused and he was said to be visiting their
house as per evidence of PW-8. Therefore, once or twice
Akash Kumar was seen in the company of Vanitha cannot
be sufficient to hold that they had love affair. In the
absence of strong evidence, it is difficult to believe that
deceased Akash Kumar was fell in love with Kumari Vanitha
and they decided to marry, inspite of advise by PWs-6, 8,
9, 11 and the accused. The said adamant behaviour of
Akash Kumar provoked accused to murder him is not
proved.
49. PW-1 has set the law into motion by filing the
complaint after seeing the dead body as per Ex.P.1. PWs.1
and 2 are witnesses to mahazar-Ex.P.2 and seizure of
MOs-1 to 3. Both of them supported case of prosecution.
Both PWs-1 and 2 have identified photographs of the dead
body as per Exs.P3 to P5. These facts are not seriously
disputed.
50. PW-2 has stated about drawing of inquest as per
Ex.P6 and his signature at Ex.P6(a). Injuries found on the
dead body is not seriously disputed. PW-2, during his
evidence has stated that he saw accused going along with
deceased on a motor cycle during evening of 10.03.2015.
According to his evidence, even he had not given any
statement to the police. It is defence of accused that PW-2
is close friend of PW-6 and to help them, he had given false
evidence that he saw accused in the company of deceased
on 10.03.2015. The said defence cannot be ruled out. The
learned advocate for respondent/accused submits that
since there are no materials to connect accused with the
guilt, PW-6 has tutored him to say the said evidence during
trial. Said contention also cannot be ruled out. Had he seen
the said fact then he could have informed to police in this
regard. But PW-22 says that PW-2 has not given any such
statement to him. As discussed in above paras the
improvement made by PW-2 is not believable. Hence said
evidence of PW-2 is not credit worthy.
51. PWs-3 and 4 are witnesses to Ex.P8. No
incriminating materials were seized from the said place.
Their evidence is not helpful to prove guilt of accused.
PWs-5 and 7 are witness to the seizure mahazar of MO-4
and motorcycle, photo of which are at Exs.P.10 to 13. It is
the case of prosecution that MO-4 and the motorcycle were
recovered on the confession of accused and during that
period Ex.P9 was drawn. Both of them have supported the
case of prosecution about seizure of the said articles.
52. It is the case of prosecution that accused
assaulted the deceased due to which he fell down.
Thereafter, accused with an intention to murder him, took
MO-4 available at the spot and hit on his head, because of
which, the deceased sustained severe head injuries and
died at the spot. The accused threw MO-4 at the said spot.
As discussed in the earlier paras, PW-13 has stated that
injuries found on dead body could not be possible by MO-4.
Investigating officer has sent a letter dated
06.07.2015 questioning specifically about MO-4 to PW-13.
Investigating officer by the letter dated 06.07.2015, asked
a question "(i) as to whether MO-4 sent to him was the
instrument used to cause of death of Akash Kumar?" In
answer to the said questions, PW-13 had sent a report as
per Ex.P17 and Ex.P18, stating that "MO-4 was not
capable of producing the injuries mentioned in the post-
mortem report. It is also mentioned that the weapon
being a moderately heavy stone with an uneven rough
surface is not capable of producing the injuries
mentioned in the post-mortem report". From the expert
evidence of PW-13, it is clear that MO-4 was not used to
murder Akash Kumar. There is no eye-witness to the
incident. Hence medical evidence also do not support the
case of prosecution regarding possibility of causing injury
by MO-4. The investigating officer has not further
investigated in this regard after receipt of the Ex.P.16 and
Ex.P.18, to ascertain whether accused had used any other
weapons than MO-4, to cause injuries to the deceased,
which resulted in his death. Lapses of investigation office
on this aspect is fatal to the case of prosecution. Therefore,
seizure of MO-4 is of no consequence.
53. PW-10 is also not a material witness. He was
witness to the seizure of clothes of the deceased under
Ex.P14, which were marked as MOs-5 to 8. It is not in
dispute. It does not connect the accused with the guilt.
54. PW-12/Dr.P.M.Nagaraj is Scientific Officer who
has clinically examined the samples sent to him and gave a
report as per Ex.P15. According to his report, "ethyl
alcohol" was found in item Nos.1 and 2, which indicates
that the deceased had consumed alcohol prior to his death.
It is not at all case of the prosecution that accused had
drinks with deceased prior to incident or forcefully made
the deceased to drink liquor and when he was intoxicated,
he was murdered by them. There is no explanation in this
regard by the prosecution. It rather supports defence of
accused that deceased was in the company of bad element
and he had some enemies. They might have killed him.
Therefore, the Ex.P15 also do not help the case of the
prosecution.
55. PW-14/Vijayakumar is an Engineer of Public
Works Department who has drawn map of the spot of
incident as per Exs.P20 and P31. Place wherein dead body
was found is not in dispute. Hence Exs.P20 and P31 do not
help prosecution to prove the charge.
56. PW-15 is a Police Constable who escorted the
dead body before post-mortem and after post-mortem, he
secured clothes of the deceased from the medical officer
and produced before the CPI, which were seized by CPI,
under Ex.P14.
57. PW-19 is a senior Scientific Officer of FSL who
verified the blood stains found on MOs-1 to 8 and issued a
certificate that some of them contains blood stains and
they were of the same group. No articles seized are of
accused. Hence said report also do not help case of
prosecution.
58. PW-20 is the Police Sub-Inspector of Harihara
Rural Police Station who received a complaint and
registered FIR on the basis of said complaint on unknown
persons. Evidence of PWs.14 to 20 are not of much
importance to prove the guilt of accused.
59. PWs-18 and 22 are investigating officers who
had investigated the case and submitted the charge sheet.
They have stated about investigation done by them and
recording of the statement of witnesses; they have also
stated about contradictions of the witnesses which were
suggested to them by the accused, which is already
discussed in the above paragraphs and there is no need to
repeat.
60. It is the duty of the prosecution to prove the
guilt of the accused beyond all reasonable doubt. The Court
cannot convict an accused only on the basis of assumptions
and presumptions. In this case, except proving homicidal
death of deceased Aakash Kumar, the prosecution is not
able to prove any other circumstances to connect the
accused with the guilt. Till arrest of accused PWs-6, 8, 9
and 11 have not stated before police that on 10.03.2015,
deceased went along with accused around 5.30 p.m., why
this important fact was not disclosed is not explained.
Hence the last seen theory of deceased in the company of
accused is highly doubtful.
61. PW-11 though stated in his previous statement
recorded on 13.03.2015 during inquest that she was
unaware as to where and with whom the deceased had
gone. But during evidence, she denied her statement as
per Exs.D1 and D2. PW-22 in his cross-examination has
stated that PW-11 has given statement before him as per
Exs.D1 and D2. There were no reasons for PW-22 to record
different facts than stated by PW-11. It shows that PW-11
had given such statement as per Ex.D1 and D2 before him
and when she came to know that it is contrary to her
evidence, she denied in her cross-examination of stating
Exs.D1 and 2. Hence her evidence to that effect is not
reliable.
PW-2 in his evidence stated new facts that he had
seen accused in the company of the deceased on the
evening of 10.03.2015 is also not reliable. Therefore, the
material link to connect the accused with the guilt, i.e.,
"last seen theory" is not proved.
62. The prosecution failed to prove beyond
reasonable doubt that deceased fell in love with daughter
of accused - Kumari Vanitha and inspite of caution/warning
of accused he continued to contact her that enraged the
accused to murder Akash Kumar. Prosecution has utterly
failed to prove that by assaulting with MO-4 to Akash
Kumar, his death was caused. The learned Sessions Judge
considered all these facts and came to right conclusion that
prosecution had failed to establish guilt of the accused
beyond reasonable doubt. We do not find any reasons to
interfere in the said findings.
63. The learned HCGP relied on the judgment of
Hon'ble Apex Court in the case of Radha Mohan Singh alias
Lal Saheb and others Vs. State of Uttar Pradesh clubbed
with Kaushal Kishore Singh and another Vs. State of Uttar
Pradesh1. In this judgment, the Hon'ble Apex Court held
that while drawing the inquest report, details of overt act
need not be recorded. Under Section 174 of Cr.P.C., there
is no requirement in law to mention details of FIR, names
of the accused or names of the eye-witnesses or gist of
their statement, in the inquest report. The principles of law
(2006) 2 SCC 450
laid down in the aforesaid judgment is not applicable to the
facts of the present case. In this case, it is not in dispute
that each and every particulars were not furnished in the
inquest report, but there is a specific reference in the
inquest report i.e., statement of PWs-6 and 11, that on
10.03.2015, deceased Akash Kumar left home around
5.30 p.m. without any information as to where he was
going. They have not stated anywhere in the said
statement that accused took him from the house of PW-11;
and thereafter, they did not see Akash Kumar till his death.
There was no hindrance for PWs-6 and 11 to disclose this
fact before the investigating officer on 13.03.2015. Failure
of PWs-6 and 11 to disclose said fact to PW-22 creates
serious doubt about evidence of PW-11. That is fatal to the
case of prosecution. Therefore, law laid down in the above
said judgment do not help the case of the prosecution.
64. The learned counsel for appellant has relied on
the judgment in in the case of Birbal Nath Vs. State of
Rajasthan2 of Hon'ble Apex Court dated 30.10.2023. We
Criminal Appeal No.1587 of 2008
have gone through the said judgment. The facts of the said
case are different from the facts in the present case. There
is no dispute regarding proposition of law laid down in the
said case. Merely there is contradiction in the previous
statement of witness recorded by the investigating officer
and evidence recorded in the Court, cannot be a reason to
discard or disbelieve the evidence of the said witness in its
entirety. But the contradictions which are given has to be
considered very carefully. In the present case, the
contradictions in the previous statement of PWs-6 and 11
pertaining to 'last seen theory' that was not stated before
the investigating officer on 13.03.2015. But said facts were
stated while recording the evidence of the said witnesses
before the Court. According to case of prosecution, on
10.03.2015, accused took deceased from house of PW-11
at 5.30 pm. This fact was very well within knowledge of
PW-11. Inquest was drawn on 13.10.2015 after four days
from missing of deceased. On that day, she did not inform
to the investigating officer that on 10.03.2015, accused
C/W Criminal Appeal No.1588 of 2008
came to her house and has taken deceased. On the
contrary, in Ex.P6, PW-11 has stated that on 10.03.2015,
around 5.30 p.m., deceased left her house to attend some
work. It appears, even deceased did not inform her where
he was going. She denied the said statement, which were
marked as Exs.D1 and D2. It was confronted to
investigating officer, who has stated that no such
statement was given by PW-11 before him while drawing
Ex.P6. However, PW-6 fairly admitted that he had stated
before the police as mentioned in his previous statement
while drawing of the inquest.
65. The prosecution tried to connect the accused
with the guilt, mainly on the "last seen theory" which was
not stated by PWs-6 and 11 before investigating officer on
13.03.2015 and both of them within two days, after
recording statement in Ex.P.6 remembered all these things
and given further statement before the investigating officer,
stating that they had last seen the deceased in the company
of the accused and accused had taken him from her home.
These contradictions needs to be considered carefully.
Looking to the other circumstances, the said facts appears to
be highly doubtful. Therefore, law laid down in the aforesaid
judgment is not applicable to the facts of the present case.
For the aforesaid discussion, we answer Point Nos.1 and 3 in
the 'negative';
66. Point No.3: The evidence of prosecution witnesses
were discussed elaborately in the above said paras. The Trial
Judge has also discussed the evidence of prosecution
witnesses. Ofcourse, the reasons assigned by the Trial Court
is different from the reasons assigned by us. However, both
the Courts have come to conclusion that the prosecution
failed to connect the accused with the murder of Akash
Kumar. When the commission of murder itself is not proved
beyond reasonable doubt, the question of accused tried to
destroy the evidence available against them does not arise.
Therefore, the findings of the learned Trial Judge is also
possible view and hence, it is not perverse or capricious and
hence, there is no need to interfere in the said findings of the
Trial Court. Therefore, we answer Point No.2 in the 'negative'.
67. For the aforesaid discussion, we pass following:
ORDER
i) Criminal Appeal Nos.242 of 2018 and 1904
of 2017 are dismissed.
ii) The impugned judgment passed by the
learned I Additional District and Sessions
Judge in S.C.No.152 of 2015 dated
16.08.2017, acquitting the accused Nos.1
and 2 for the offences of punishable under
Sections 302 and 201 read with Section 34
of the Indian Penal Code is confirmed.
Sd/-
JUDGE
Sd/-
JUDGE
DH
