Karnataka High Court
State Of Karnataka vs Rukodara on 16 January, 2024
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CRL.A No. 774 of 2017
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 16TH DAY OF JANUARY, 2024
PRESENT
THE HON'BLE MR JUSTICE SREENIVAS HARISH KUMAR
AND
THE HON'BLE MR JUSTICE VIJAYKUMAR A. PATIL
CRIMINAL APPEAL NO. 774 OF 2017
Between:
State of Karnataka
By Hunsur Rural Police,
Represented by
State Public Prosecutor,
High Court Building,
Bengaluru-560001.
...Appellant
(By Sri B.N.Jagadish, Addl. SPP)
And:
Digitally signed
by C K LATHA 1. Rukodara
Location: HIGH S/o. Basavegowda,
COURT OF Aged 36 years,
KARNATAKA Kiranguru Village,
Hunsur Taluk - 571105.
2. Madegowda @ Madhu
S/o. Late Desigowda,
Aged 34 years,
Kiranguru Village,
Hunsur Taluk - 571105.
3. Bira @ Birashetty
S/o. Late Subbashetty,
Aged 41 years,
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CRL.A No. 774 of 2017
Kiranguru Village,
Hunsur Taluk - 571105.
...Respondents
(By Sri B Lethif, Advocate for R1;
Sri Mohammed Tahir, Advocate for R2;
Sri K.Shridhara, Advocate for R3)
This Criminal Appeal is filed under Section 378(1) & (3)
Cr.P.C., praying to grant leave to file an appeal against the
judgment and order dated 29.06.2016 passed in
S.C.No.349/2012 on the file of VIII Additional District And
Sessions Judge, Mysuru, sitting at Hunsur acquitting the
respondents/accused No.1 to 3 of the offence punishable under
sections 364, 302 and 201 read with 34 of IPC and etc.
This Criminal Appeal, coming on for hearing, this day,
Sreenivas Harish Kumar J., delivered the following:
JUDGMENT
This appeal is preferred by the State
challenging the judgment dated 29.06.2016 in
S.C.No.349/2012 on the file of the VIII Additional
District and Sessions Judge, Mysuru (Sitting at
Hunsur). The accused faced trial for the offences
punishable under Sections 364, 302 and 201 read
with Section 34 of IPC. By the impugned judgment
the trial court acquitted the accused of all the
offences.
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2. The name of the deceased is Dinesh.
PW29 who was working as police sub-inspector at
Hunsur Rural police station suo-moto registered
FIR after recording confession statement of
accused No.2.
3. The prosecution story is that accused
No.1 had married the daughter of the deceased
and she committed suicide. In that case accused
No.1 was facing trial and that the deceased Dinesh
was one of the witnesses. Thinking that the
deceased would depose against him, accused No.1
took the help of other two accused and killed him.
4. PW29 received a call from PW20 on
12.08.2012 that accused No.2 Madegowda had
confessed before him about the involvement of
himself and other two accused in the killing of
Dinesh. Around 03.30pm, PW29 met PW20 at
Hosur village and enquired accused No.2
Madegowda who state that he along with other two
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accused killed Dinesh. Based on the confession
given by accused No.2, accused No.1 was traced
and enquired. Accused No.1 revealed that poison
was mixed in the alcohol and given to Dinesh for
drinking and consequently Dinesh died; the dead
body was drowned in the river by tying stones to
it. Two or three days later, the body was lifted
from river water and buried at another place.
Thereafter the dead body was exhumed. The wife
of the deceased identified the dead body. Certain
recoveries were also made and after completion of
investigation, charge sheet came to be filed.
5. The prosecution in all examined 31
witnesses and relied upon 41 documents as per
Exs.P1 to P41 and 13 material objects as per
MOs.1 to 13.
6. Assessing the evidence, the trial court
recorded reasons that since the case is based on
the circumstantial evidence, all the links in the
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chain of circumstances must be proved. It is
further held that the motive was to prevent the
deceased from giving evidence in the court against
accused No.1 in the case in which the latter was an
accused on the allegation of instigating his wife to
commit suicide. Though this motive is said to be
proved, the other circumstances especially as
regards accused No.2 making a confession before
PW13 and PW20 does not get established. If PW13
turned hostile, the evidence of PW20 would appear
to be doubtful. Though the dead body was
exhumed, it would not lead to a conclusion that
accused were the persons who were involved in the
death of Dinesh. The court has held that the
benefit of doubt should be given to accused and
hence the trial court acquitted the accused of all
the offences charged against them.
7. We have heard the arguments of Sri
B.N.Jagadish, learned Addl. SPP for the appellant-
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State, Sri Lethif B, learned counsel for respondent
No.1, Sri Mohammed Tahir, learned counsel for
respondent No.2 and Sri K.Shridhara, learned
counsel for respondent No.3.
8. It is the argument of Sri B.N.Jagadish
that the main witnesses are PWs.2, 6, 14, 15 and
20. The whole incident came to light after accused
No.2 made a confession before PW13 and PW20.
Based on the confession the police were able to
trace the dead body which was buried at a
secluded place. The dead body was identified by
the wife of the deceased i.e., PW6. Based on the
disclosures made by accused No.1, the police were
able to recover motorcycle used for commission of
the offence. The place where the dead body was
buried could not have been traced unless the
accused had made disclosure of the same while
giving confession statements. All the mahazars
have been proved as the witnesses have
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supported. PW20 has fully supported the
prosecution case. The evidence of PW29 and the
other police officials also supports the prosecution
case. Though there are some discrepancies, they
do not matter much. In this view, the trial court
ought to have convicted the accused instead of
acquitting them. Hence the appeal deserves to be
allowed.
9. It is the argument of Sri B.Lethif and Sri
Mohammed Tahir that though a few mahazars
appear to have been established by the witnesses,
it is quite strange that accused No.2 would give
confession before PW20. It is clearly stated by
PW20 in the cross examination that he did not
know accused No.2 on the earlier occasion. They
argued that extra judicial confession is a weak
piece of evidence. It requires corroboration. In
this case there is no corroboration to the
testimony of PW20 as another witness PW13 has
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turned hostile. The recoveries alone cannot be
relied on to come to conclusion about involvement
of accused in the commission of crime. The trial
court has observed this aspect of the matter to
record acquittal. They further argued that even if
another view is possible to be taken, the reasons
given by the trial court cannot be disturbed. When
two views are possible to be taken, its benefit
necessarily goes to the accused and hence the
appeal deserves to be dismissed.
10. We have perused the entire records and
the testimonies of the witnesses. If we make
reassessment of the evidence, we may start with
PW29. His evidence is that on 12.08.2012, when
he was near Beechanahalli attending to his official
duty, he received a telephone call from Annaiah,
i.e., PW20 and came to know that in relation to
missing of Dinesh, one Madegowda gave
information to him stating that himself and two
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others, namely, Rukodhara and Bhyrashetty killed
Dinesh. On the same day at 03.30pm, PW29 went
to Hosur village and brought accused No.2
Madegowda to the police station. In the police
station accused No.2 disclosed their involvement in
the death of Dinesh. Based on the information
given by accused No.2, he was able to procure
accused No.1 Rukodhara and came to know as to
how Dinesh was killed. On the information given
by accused No.1, PW29 registered an FIR as per
Ex.P32 and then handed over further investigation
to Circle Inspector of Police.
11. The evidence of PW20 discloses that in
the month of May, 2012, the wife of Dinesh i.e.,
PW6 told him that her husband was missing for
about one month past. On 11.08.2012,
Madegowda i.e., accused No.2 telephoned him and
at 4.00pm, on the next day, Madegowda came to
his manure shop situated near Hosur gate with
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Kalegowda and Rajesha. PW20 has stated that
having come to his shop, Madegowda disclosed
before him that himself, Rukodhara and
Bhyrashetty had killed Dinesh. PW20 has also
stated that accused No.3 bought a bottle of brandy
from a wine shop situated at Hosur gate and gave
it to Dinesh for drinking and thereafter accused
No.3 brought Dinesh on the motorcycle to a place
near Hunasekatte. Accused No.1 Rukodhara and
accused No.3 Bhyrashetty bought another bottle of
brandy which was mixed with poison and gave it to
Dinesh. Dinesh drank it and sometime later died.
They all carried the dead body to a tank called
Hulikere situated near Kiranguru and dropped the
dead body in the water. Two days later, the
accused came to know that some people would go
to that tank for fishing purpose and therefore they
went to that place, lifted the dead body from water
and then buried the same near river called
Lakshmana Theertha.
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12. After PW29 registered FIR based on the
confession statement, certain mahazars were
drawn during investigation. Ex.P.1 is the first
mahazar that we have to refer to. This mahazar
was drawn at the place where the deceased Dinesh
was killed on 23.05.2012. Under the said mahazar
two material objects MO1 and MO2 a slipper and
two empty bottles were seized. PW1 supports
drawing up of Ex.P1.
13. The next mahazar to be referred to is,
Ex.P.7 which was drawn in between 8.30 and
9.30pm on 13.08.2012 at the place where the dead
body was buried. PW5 Hosur Kumar has
established drawing of mahazar as per Ex.P7.
Since it was late night the dead body was not
exhumed, it was undertaken on 14.08.2012. Ex.P8
is the mahazar drawn on 14.08.2012 in between
13.30 to 19.00 hours. The dead body was not
traced on that day because of too much water
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found at that place. The work was stopped and on
the next day on 15.08.2012, the dead body was
exhumed using JCB machine. Ex.P2 is the
mahazar drawn on 15.08.2012. PW28, the
Tahsildar has given evidence that the exhumation
was done in his presence.
14. Exs.P3, 4, 5, and three other mahzars.
Ex.P.3 was drawn on 16.08.2012 at the place
where the dead body was drowned in the water by
tying stones to it. Under Ex.P3, stones at MO7
and MO8 were recovered. PW3 is a witness for the
prosecution to establish Ex.P.3 and he has
ofcourse supported the prosecution case. Ex.P4
was another mahazar drawn on 16.08.2012 in
between 12.30 and 13.30 hours in regard to
seizure of motorcycle used for committing the
offence. MO11 is the motorcycle and PW3
Channaiah has supported this mahazar.
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15. There is another mahazar as per Ex.P.5
drawn on 16.08.2012 in between 14.00 to 15.00
hours. It was drawn at a place where the poison
mixed alcohol was given to Dinesh. Again PW3 is a
witness to this mahazar and he has established it.
16. Ex.P6 is the mahazar drawn on
31.08.2012 in between 5.00pm and 6.00pm to
prove seizure of certain items, namely, bones, a
gunny bag, a creeper, one black colour waist
thread, a brown colour pants and a biscuit colour
full shoulder shirt. But this mahazar is not
established by the independent witnesses. PW6 is
the wife of the deceased. After exhumation of the
dead body she identified it to be the dead body of
her husband seeing the clothes and the waist
thread and her testimony cannot be disbelieved.
17. Ofcourse all the police officials have
supported the prosecution case. Now if we
reassess the entire evidence, what we find is that
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though there is evidence establishing the mahazars
Exs.P1 to P8 except Ex.P6, we have to state that
merely based on the mahazars, no inference as to
involvement of the accused can be drawn. This is
a case based on circumstantial evidence. Motive is
that accused No.1 wanted to prevent the deceased
i.e., his father-in-law from going to court and
giving evidence against him in another case where
he was an accused. The motive may be there, but
unless the extra judicial confession can be held to
be believable, involvement of accused Nos.1 to 3
can't be inferred. Two witnesses examined by the
prosecution to prove extra judicial confession are
PW13 and PW20. PW13 has not supported at all.
18. We have referred to the evidence of
PW20 already. In the examination in chief, he has
spoken that accused No.2 disclosed before him
about involvement of himself and other two
accused. But his answers in the cross examination
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do not inspire our confidence with regard to
confession said to have been made by accused
No.2. In the cross examination dated 24.03.2016,
he clearly stated that he had no acquaintance with
accused No.2. His another answer is that neither
in the month of May, 2012, nor any day before
2012 accused No.2 had made a call to him. If this
is the answer of PW20, the inference to be drawn
is that the chances of accused No.2 making a
confession before PW20 appears to be a remote
possibility. Generally extra judicial confession is
made before acquainted person. If PW20 had no
acquaintance with accused No.2, it is difficult to
believe that he would have made confession before
PW20. Moreover it has been brought on record
that accused No.2 made a call to PW20 before
meeting him at the latter's shop. The
investigating officer did not collect the call details.
Though PW20 has stated that accused No.2 had
called him, that itself is not sufficient to place
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reliance on the evidence of PW20 when the case
rests on circumstantial evidence. It was necessary
that the investigating officer ought to have
collected the call details to provide strength to
prosecution case. Therefore we find that a link in
the chain is missing. For this reason the
prosecution case cannot be said to have been
proved beyond reasonable doubt. Even if it is
possible to hold that evidence of PW20 is fully
believable, it is another view possible to be taken.
Therefore when two views are possible, benefit
must always be available to the accused. Hence
we do not find any merit in this appeal and it
stands dismissed.
Sd/-
JUDGE
Sd/-
JUDGE
KMV
