Karnataka High Court
The State By Circle Inspector vs Sri P.S. Ananda @ Ananda Kumar on 5 January, 2024
Author: H.B.Prabhakara Sastry
Bench: H.B.Prabhakara Sastry
1 CrlA.No.37/2018
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 5TH DAY OF JANUARY 2024
PRESENT
THE HON'BLE DR. JUSTICE H.B.PRABHAKARA SASTRY
AND
THE HON'BLE MR JUSTICE UMESH M ADIGA
CRIMINAL APPEAL No. 37 OF 2018
BETWEEN:
The State by Circle Inspector,
Madikeri Town Circle,
Represented by
State Public Prosecutor,
Bengaluru-560 001. ...Appellant
(By Shri.B.N. Jagadeesha, Addl. SPP)
AND:
1. Sri. P.S. Ananda @ Ananda Kumar,
Son of Setu,
Aged about 37 years,
Electrician work,
R/o Chennangi Goodluru Village,
Siddapura Kodagu District,
Permanently R/at Kannammangalam
Village, Velur Taluk,
Thiruvannamalai District,
Tamilnadu State - 638 182.
2. Sri. P.S. Vijaya @ Vijayakumar,
Son of Setu,
Aged about 37 years,
Electrician work,
2 CrlA.No.37/2018
R/o Chennangi Goodluru Village,
Siddapura Kodagu District,
Permanently R/at Kannammangalam
Village, Velur Taluk,
Thiruvannamalai District,
Tamilnadu State - 638 182.
3. H.S. Kumari,
Wife of P.S. Ananda Kumar,
Aged about 30 years,
Coolie Work,
R/o Chennangi Goodluru Village,
Siddapura, Kodagu District,
Permanently R/at Didaga Village,
Chennarayapattana Taluk,
Hassan District - 573 116. ...Respondents
(By Sri. Manu Prabhakar Kulkarni, Advocate)
This Criminal Appeal filed under Section 378(1) and (3) of
Code of Criminal Procedure, praying to grant leave to appeal
against the judgment and order of acquittal dated 12.04.2017
passed by the learned II Additional District and Sessions Judge,
Kodagu-Madikeri sitting at Virajpet in S.C.No.34/2010 acquitting
the respondents/accused for the offence punishable under
Sections 302, 201 read with 34 of IPC.
This Criminal Appeal coming on for Further Arguments
having been heard through Physical Hearing/Video Conference
and reserved for Judgment on 16.11.2023, coming on for
pronouncement, this day, UMESH M. ADIGA J., delivered the
following:
3 CrlA.No.37/2018
JUDGMENT bracket
This appeal is by the State directed against judgment
passed in S.C.No. 34 of 2010 on the file of II Additional
District and Sessions Judge at Kodagu (hereinafter for short
referred to as 'Sessions Court') dated 12-04-2017.
2. The complainant - Police, that is, CPI -Madikeri
Town Circle, charge-sheeted accused Nos.1 to 3 for the
offences punishable under Section 302, 201, read with
Section 34 of the IPC. The accused Nos. 1 to 3 pleaded not
guilty. After holding the trial, the Sessions Court acquitted
the accused of the above-said offences, by the impugned
judgment. Being aggrieved by the same, State preferred
this appeal.
3. For the sake of convenience, we refer to the
parties as per their rank before the Sessions Court.
4. Brief facts of the case of prosecution are as
under:-
The accused No. 1 to 3 were tenants of deceased
K.M. Hassan. The deceased was owner of coffee garden
4 CrlA.No.37/2018
situated at Maldare in Chandangi-Gundlur village
of Madikere district. Line houses are situated in the said
land for occupation of labours of coffee plantation. Accused
No. 1 and 2 obtained one of such line houses on lease
(hereinafter for short referred to as place of incident). It is
alleged that accused did not pay advance amount of
deposit and monthly rent for a period of 7 to 8 months
prior to the incident. In this regard, the relationship
between accused and deceased was strained.
It appears on the date of incident, it was informed to
the deceased by the accused that they would vacate the
said house and hand over the possession to deceased and
accused told him to come to said house. To take possession
of the said house from accused and also for harvesting
coffee fruits, on 30.10.2009, at about 3.00 p.m., deceased
went to the said coffee garden on his motor cycle. He
approached accused Nos. 1 to 3 in the leased house and
entered the house, wherein accused No. 1 to 3 were
residing. It is alleged that accused No. 1 to 3 with an
intention to murder deceased Hassan, assaulted him with
5 CrlA.No.37/2018
hammer as well as brick and caused him fatal injuries, as a
result of which, he succumbed to the said injuries and
thereafter, the accused dragged the dead body from the
said house and kept it about 20 meters away from the said
house, in the coffee garden.
5. It is further the case of the prosecution that
neighbors of the said house, heard commotion from the
said house; they also heard cry of Hassan for
help. Someone intimated this fact to the complainant by
name A.K. Hakeem (PW-4). Thereafter, P.W.4 along with
PWs-6, 14 and 18 i.e. B.A. Samshu, Mohammad Ali and
K.M. Hamsa went to the said garden land. They went to the
place of incident. The door of the said house was closed
and latched from inside. PWs-4, 6, 14 and 18 asked the
inmates of the house to open the door. However, they did
not open for a quite some time; thereafter, they opened
the back door through which PWs.4, 6, 14 and 18 entered
the house. They found the dress materials of the accused
were having blood stains; blood spilled over the ground and
it was mopped. They also saw a bucket containing red
6 CrlA.No.37/2018
colour water. On repeated enquiry with the accused, they
confessed that they assaulted Hassan with brick and
hammer and caused his death. On further enquiry, they
also confessed that they kept the dead body in the coffee
garden of the deceased. Thereafter, the accused took the
above said persons to the place, wherein they had kept the
dead body. PW-4 in this regard lodged written complaint as
per Ex-P10 to Siddhapura Police Station and on the basis
of Ex-P10, PW-15, PSI and SHO of the police station,
registered the case in Crime No. 147 of 2009 for the
offences punishable under Section 302, 201, read with
Section 34 of the IPC.
6. It is further the case of prosecution that CW-42
H.C. Vasanth Kumar, CPI of Medikeri Town Circle had taken
up further investigation. He arrested accused Nos. 1 to
3, drew the spot mahazar, mahazar of seizure of the
articles, inquest on the dead body and sent dead body to
Primary Health Centre, Siddhapura for post-mortem. CW-
30 Dr.Anand conducted the post-mortem examination and
gave post-mortem report. After conclusion of the
7 CrlA.No.37/2018
investigation, CW-42 submitted charge sheet to the JMFC
Court, Virajpet, against accused Nos. 1 to 3 for the
offences punishable under Section 302, 201 read with
Section 34 of IPC.
7. The learned JMFC has taken cognizance of the
offence and registered it as the criminal case. The learned
JMFC secured presence of accused; supplied copy of charge
sheet and enclosures to them. The alleged offences are
triable by court of Sessions, therefore, the learned
magistrate committed the case to the Court of Sessions for
trial. The Sessions Court Madikeri, after receipt of the
charge sheet and enclosures, registered the case as
SC.No.34 of 2010 and made over to II Additional District
and Sessions Judge Court, Kodugu, Madikeri, sitting at
Virajpet, for trial.
8. The learned Sessions Judge secured presence of
the accused. Heard the accused on charge and framed the
charges for the offence punishable under Section 302,
201, read with Section 34 of IPC, read out and explained
8 CrlA.No.37/2018
to accused. The accused Nos. 1 to 3 pleaded not guilty and
claimed to be tried.
9. Prosecution to prove its case had examined PW-
1 to 21 and got marked Exs.P1 to 16 and properties at MOs
1 to 7. On completion of evidence for prosecution, the
learned Sessions Judge examined accused Nos.1 to 3 under
Section 313 of Cr.P.C and their answers were recorded.
The accused did not offer defence evidence when called
upon. On behalf of the accused, Ex.D1 was marked.
10. The learned Sessions Judge heard the
arguments on both side and framed one point for
determination as under:
"Whether the prosecution proves the guilt
of the accused beyond all reasonable doubt as
levelled against them?"
The learned sessions Judge on appreciating evidence
and materials on record answered the said point in the
negative and by impugned judgement dated 12-04-
2017, acquitted accused Nos. 1 to 3 for the offences
9 CrlA.No.37/2018
punishable under Section 302, 201, read with Section 34
of the IPC.
11. The same is challenged by the State on the
grounds mentioned in the Appeal Memo.
12. We have heard the arguments of learned
Additional State Public Prosecutor (herein after referred to
as 'Additional SPP' for short) and learned advocate for
accused.
13. The learned Additional SPP has vehemently
contended that accused have not disputed that they were
tenants of the property belonging to the deceased. Even
they have not disputed that, they did not pay advance as
well as the 7 to 8 months rent to deceased. PWs-4, 6, 14
and 18 have gone to place of incident, within a short period
from the time of occurrence of the incident. Both the side
doors of place of incident was closed from inside and songs
were played in high volume through tape recorder and
nobody responded. After repeated requests, back side
door was opened through which PWs-4, 6, 14 and 18
10 CrlA.No.37/2018
entered inside the house and found that blood was spilled
over the ground and it was mopped by accused No. 3 with
a cloth and washed said cloth in the water kept in the
bucket and its colour was red. On enquiry with the accused
Nos. 1 to 3, "they confessed before all the four persons
that they had assaulted the deceased with hammer and
brick and caused his death. Thereafter, his dead body was
kept in the coffee garden." They showed the said place
wherein dead body was kept. Thereafter, PW-4 lodged the
complaint and on that basis, case was registered.
14. The learned Additional SPP has further
submitted that PWs-4, 6, 14, 18 have stated these facts in
their respective evidence. Other witnesses are mahazar
witnesses. In the cross-examination of material witnesses,
nothing is brought out to disbelieve or discard their
evidence. Unfortunately, CWs- 42 - Investigating Officer of
this case was dead prior to trial, therefore, the prosecution
was unable to examine him. The learned Additional State
Public Prosecutor has further submitted that post-mortem
report as well as inquest were marked with consent and
11 CrlA.No.37/2018
accused did not dispute that the deceased had sustained
injuries mentioned in post mortem report and he died due
to the said injuries. Therefore, it is not in dispute that,
death was caused due to injuries sustained by the
deceased and it was a homicidal death. The learned
Sessions judge has not considered these fact and without
appreciating the evidence properly, acquitted the accused
for the said serious offences. Therefore, prayed to allow the
appeal and convict the accused for the offence punishable
under section 302, 201, read with section 34 of IPC.
15. The learned counsel for accused submitted that
evidence of PWs- 4, 6, 14 and 18are not consistent. One
person says, they entered the house from back door and
another said they entered the house from front side and all
the four persons have stated different version about the
confession of accused. The alleged extra-judicial confession
is not reliable and there are no other materials to connect
the accused with the guilt.
16. The learned advocate for accused further
submitted that according to case of prosecution, the dead
12 CrlA.No.37/2018
body was found in the open yard of the coffee garden of
deceased and not from place of incident. Prosecution has
not produced evidence to show that the alleged sample of
red coloured water seized from the house of accused was
containing human blood and that it was of the deceased.
Merely post mortem report and inquest were marked with
the consent does not mean that the accused have admitted
their guilt. The accused have not disputed that Hassan was
dead due to injuries or other reasons mentioned in the post
mortem report, but they have not admitted that they have
committed murder of deceased. Therefore, mere marking
of the document is not sufficient to prove the case of
prosecution. There are no evidence to show that accused
had strangulated deceased.
17. The learned advocate for the respondents
further submitted that PWs-4, 6, 14 and 18 are not
independent witnesses and none of the independent and
probable witnesses were examined in this case, to prove
the alleged incident. On the contrary, only the known
persons, friends and relatives of the deceased were cited as
witnesses and on the basis of said evidence, accused could
13 CrlA.No.37/2018
not be convicted for such a heinous offence. With these
reasons, the learned advocate for accused, prayed for
dismissing the appeal.
17. The following points emerges for our
determination :
(i) Whether prosecution proved beyond
all reasonable doubt, that on 30.10.2009
between 4.30 p.m. to 5 p.m. in Maldhare of
Chenangi, Gundlur village, accused Nos.1 to 3 in
furtherance of a common intention, quarrelled
with the deceased K.M. Hassan in respect of
vacating house property, obtained by them on
lease from the deceased and assaulted on the
head of K.M. Hassan, with brick as well as
hammer, and strangled him with an intention to
murder him and caused his death thereby
accused Nos.1 to 3 have committed an offence
punishable under Section 302 read with section
34 of IPC ?
(ii) Whether prosecution proved beyond
reasonable doubt that on aforesaid place, date
and time, accused Nos.1 to 3 in furtherance of a
common intention murdered K M Hassan and
with an intention to destroy the evidence,
mopped blood spilled over the floor of the house
and also removed the dead body from the house
14 CrlA.No.37/2018
and thereby accused Nos.1 to 3 have committed
an offence punishable under Sections 201 read
with Section 34 of IPC.
(iii) Whether finding of trial judge is
erroneous and perverse and interference in the
said finding is required?
(iv) What order?
18. The deceased Hassan was owner of coffee
plantation/ coffee garden bearing survey number 1/271
measuring 0.85 acre situated in Maladare of Chennangi,
Gundlur village and there were line of houses situated in
the said garden, appears to be used by the labourers is not
in dispute. Ex-P7 and 8 pertaining to said facts is marked
with the consent. Ex.P1 is prepared by investigating officers
in the presence of witnesses and Ex.P.6 was prepared with
the help of police, by the Engineer of PW-D department. In
Ex.P-6, place of incidence is shown in the coffee garden of
the deceased, wherein dead body of deceased K.M.Hassan
was said to be found. In Ex.P1, the description of the place
of incident is shown as inside the house. PWs-1 and 2 are
witness to Ex-P1 and both of them have turned hostile to
the case of prosecution. Unfortunately, the investigating
15 CrlA.No.37/2018
officer, who drew the said mahazar is reported to be dead.
Hence discrepancy in the Ex.P1 and 6 is not properly
explained. There are no sufficient materials to show that
after murder of Hassan, his body was shifted to garden
from the house. Therefore, the prosecution, failed to prove
Ex-P1.
19. The prosecution, to prove death of K M Hassan
as homicidal death, conducted the inquest on dead body at
the place, wherein the dead body was found as Ex.P-9 and
got conducted post-mortem at government hospital,
Siddhapur. CW-30 - Dr. Anand-Medical officer, Community
Health centre, Siddhapur had conducted and obtained the
post mortem report as per Ex.P5. Ex.P.5 and 6 were
marked with the consent and hence, the relevant witnesses
to the said documents were not examined by the
prosecutor.
20. In Ex-P9, the witnesses have observed some of
the visible injuries found on the dead body. It also indicate
seizure of the some articles relevant to the case.
16 CrlA.No.37/2018
21. Ex.P5 - Post mortem report shows that deceased
sustained following external injuries:
1. Lacerated wound in the left side
forehead near glabella measuring 2cm length x
0.5 cm breadth and bone deep with blood stain.
2. A lacerated wound in the
temporat(right) region 5cm above the right
mastoid process measuring about 3cms length x
2cm breadth and bone deep with blood stain.
3. An abrasion with reddish black colour
in the right shoulder area measuring 3cm x 2cm
in size.
4. A lacerated wound with surrounding
contusion area measuring 2cmx3cms in the right
zygomatic area.
5. An abrasion with reddish black colour
in the right elbow joint posteriorly over the
olecranon process measuring 6 cms length x
4cms breadth.
6. An abrasion with reddish colour in the
left elbow joint area at left epicondylar region of
humerus measuring 5.5 cm length x 3 cm
breadth.
7. A contusion with blackish red colour
in the right forehead measuring 2 cms x 4 cms
size with swelling.
17 CrlA.No.37/2018
8. Multiple linear scratched abrasions
over back running from neck down to bullock.
9. A linear abrasion in the left fore arm
measuring 6cms x 4cms in size.
10. A point abrasion in the right medial
maleoles.
11. An abrasion in the left shin bone area
measuring 1 cm x 2 cms in size.
12. A ligature mark with
parchmentisation of skin from right side of neck
below right ear lobule to 2cm lateral to midline in
front measuring 14cms length x 1 cms breadth.
13. A blackish red linear contusion
marking running from the mid line in front of
neck to left lateral side below left ear lobule
measuring 8 cms length x 0.5cms breadth.
internal examination of the neck showed
extravasations of blood into the neck muscles on
the right side beneath the ligature mark at two
spots. And in the left side of neck beneath the
contusion marks blood extravasation deep in the
neck muscles at one spot.
Rigorous Marks present in the upper and lower
limbs.
18 CrlA.No.37/2018
22. After dissecting the body, medical officer found
injuries on Carnium and spinal canal noted in Ex.P.5. The
medical officer after perusing of FSL report and post
mortem findings, was of the opinion that, "death was
caused due to asphyxia, as a result of strangulation".
Injury at serial number 12 and 13 mentioned above as the
ligature mark found on the dead body.
23. Excluding Ex.P-5, there were no material to
show that Hassan was died of strangulation or to
corroborate the same. The learned public prosecutor
appearing before the Trial Court, could have examined the
Medical Officer to explain regarding said ligature mark as
well as the article of ligature for causing such mark. Hence
it is not clarified by the prosecution. The Investigating
Officer did not collect ligature materials and produced
before Court to prove that the death of K.M. Hassan was
caused due to strangulation. Death of K.M. Hassan as
homicidal death is not seriously disputed. Ex.P.5 helps the
prosecution to prove that death of K.M. Hassan is
homicidal.
19 CrlA.No.37/2018
24. Admittedly, this case is based on circumstantial
evidence. Merely death of K.M.Hassan is not sufficient to
believe that the accused had cased his death.
Prosecution has to prove following circumstances to
connect the accused with the said guilt:
a. Accused obtained property belonging to
deceased on lease and they were in arrears of
advance as well as monthly rent for a period of
eight months, prior to alleged incident.
b. The accused did not pay the said arrears
of rent as well as advance, due to which
relationship between accused and deceased was
strained.
c. That on 30.10.2009, around 4.30
p.m. deceased went inside the house of accused
Nos.1 to 3.
d. There was commotion inside the
house of accused which could be audible to
neighbors and the neighbors over hearing the
same, intimated the said fact to PW-4.
e. PW- 4, 6, 14, 18 visited the place of
incidence and observed certain facts and
20 CrlA.No.37/2018
materials collected from the place of incident
connect the accused with death of Hassan.
f. That accused Nos.1 to 3 have made
extra judicial confession before PWs-4, 6, 14 and
18.
g. Collection of weapons of offence on the
confession of accused.
h. Blood stains found on the dress
materials of accused were of deceased Hassan.
25. Prosecution has not produced any documentary
or oral evidence to show that about eight months prior to
the incidence, deceased had given the house property to
the accused Nos. 1 to 3 on lease and there was an
agreement between them to pay advance amount as well
as monthly rent.
26. Prosecution examined PW-9 - wife of deceased
K.M. Hassan. In her evidence, she has not stated about
amount of advance as well as amount of rent for which
accused were agreed to pay to the deceased Hassan or
execution of any document in this regard. It appears
deceased had intimated these facts only to PW-9 that
21 CrlA.No.37/2018
accused were residing in the said house as tenant and they
were not vacating the house or paying the rent and they
had been dodging for vacating the house; She has also
stated that a day prior to incidence accused telephoned
K.M.Hassan and informed that they would vacate the
property and asked him to come to their house." However,
he did not go due to preoccupation. P.W.9 further stated
that on the day of incident, in the afternoon, at about 3.00
p.m., he left home to go to coffee garden. On that day in
the evening, she got information from her neighbors that
her husband was murdered in the said house. She became
unconscious and hence, she could not go to the said house.
Therefore, her evidence does not help the case of
prosecution to prove that the accused were in arrears of
advance amount as well as rent for about 7 to 8 months.
27. In the evidence, PW-4 has stated that on the
date of incident, deceased told him that he was going to
coffee garden to collect arrears of rent and harvest the
coffee crop. Except the said particulars, there are no other
material evidence to prove that about 7 to 8 months prior
22 CrlA.No.37/2018
to the incident, the accused had taken the building on lease
and failed to pay advance amount and rent.
28. Prosecution should also prove that, on the day
of his murder between 3.00 p.m to 4.30 p.m., deceased
went to spot of incident. Except the evidence of PWs-4 and
9, who have stated in their evidence that, on that day,
deceased informed them, that he would go to the coffee
garden to meet accused Nos. 1 and 2 to collect arrears of
advance and rent, there are no other reliable evidence to
prove the same. There is no evidence to prove that he went
to spot of incident and met accused.
29. Prosecution case was that dead body was found
in the Coffee garden and not inside the house of accused
Nos. 1 and 2. Under those circumstances, it is difficult to
believe that deceased entered the house of accused
between 4.30 to 5.00 p.m., on the day of incident.
30. Prosecution case is that PWs- 4, 6, 14 and 18
entered the house of accused; they saw blood spilled over
the floor and it was mopped by using cloth. The said cloth
23 CrlA.No.37/2018
was cleaned with bucket of water which was turned into red
color (i.e., water mixed with the blood) Investigating officer
seized the sample of said water and sent to the Forensic
Science Laboratory for testing. However, the prosecution
did not produce the said report of Forensic Science Lab.
Prosecution also not produced serology report of Forensic
Science Lab, to prove that blood stains on hammer and
brick pieces were of human blood and they were of the
deceased.
31. The house of accused is situated within the
coffee garden belonging to deceased. Prosecution case is
that line houses situated in coffee garden and one of such
houses leased out to accused. While drawing spot mahazar
as well as sketch of the spot of incident i.e., Exs.P1, P6 and
P9, there is no reference about line houses, situated near
by the house of accused. Therefore the said document do
not help in any way to believe that nearby the place of
incident, there were houses belonging to and residing by
others.
32. It is the case of prosecution that, around 4.30
p.m. P.W.10 residing near by place of incident, heard
24 CrlA.No.37/2018
commotion from the house of accused and they also heard
voice of the deceased, crying for help. Thereafter, PW-10
informed the said fact to one Addu. In Ex.P13, it is stated
that PW-10 heard commotion from the house of accused.
She thought that something was wrong. Therefore, through
her landline phone bearing number 310886, she telephoned
to Addu, to his mobile phone number 9448588151 and
requested him to come to the place of incident, so that he
can rescue the deceased.
33. The said Addu @ Abdullah was examined as PW-
13. In his evidence, he has stated that, on the day of
incident, he was going towards Mysore and he received a
telephone call from PW-10; narrating about commotion in
the house of accused and crying for help by Hassan. He
tried to contact PW-4, however, PW-4 did not pick up the
telephone. Therefore. again he called PW-10 and informed
her to go near the place of incidence and inform him.
According to his evidence, PW-10 again told him that, she
scared to go to the said place since she was hearing the
songs played through a tape recorder, in high volume.
25 CrlA.No.37/2018
Therefore, she couldn't hear anything from the said house.
In view of the said reasons, PW-4 did not go to Mysore and
returned to the house of K.M. Hassan. PW-4 further stated
that he came to the house of accused and he noticed
several vehicles were parked nearby their house. He also
came to know about the murder of K.M. Hassan.
34. PW-10 has turned hostile to the case of
prosecution. According to her evidence, on the day of
alleged incident, she went to graze cattle to the lands,
situated about three to four kilometres away from her
house; when she returned home, in the evening, she came
to know about the incidence and she did not telephone
anybody or intimated them that "she heard commotion
from the house of K.M.Hassan, wherein accused were
residing". She was treated as a hostile witness and cross
examined by the learned Public Prosecutor. In her cross
examination, she denied all the suggestions of learned
Public Prosecutor and also denied that she gave statement
before investigating officer as per Ex.P13.
26 CrlA.No.37/2018
35. In her cross examination, by the learned Public
Prosecutor, questions were not asked regarding the
location of her house as well as distance between her
house and the place of incident. Even no questions were
asked to show that one could hear Commotion from the
place of incident to her house.
36. Evidence of PWs.10 and 13 are not consistent
and it doesn't help the case of prosecution in proving the
circumstances that persons residing in the neighbourhood
could hear the commotion from the house of accused.
37. Prosecution strongly relied on the evidence of
PWs.4, 6, 14 and 18. Prosecution's case is that PWs.4, 6,
14 and 18 had gone to the place of incident within short
period after the incident. All the four persons in their
evidence have stated that accused were inside the house;
they were playing songs by the tape recorder in high
volume. All the four requested the accused to open the
door, however they did not open the door immediately.
After some time, the accused opened the back door and
they entered the house. They observed that just before
27 CrlA.No.37/2018
their entry someone have moped the floor and cleaned
moped cloth in the water kept in bucket due to the same
colour of water was red. All the four have stated that on
repeated enquiry with accused, the accused have confessed
that "They assaulted on the head of deceased with hammer
and a brick and caused his death. Thereafter shifted dead
body in coffee garden" and one of the witnesses has also
stated that "accused No.3 had also shown the place where
the dead body was kept". They also stated that accused
showed weapons of offence.
The said witnesses were thoroughly cross-examined
by the accused and visit of said witnesses to the spot of
incident and alleged confession made by the accused are all
denied.
38. During investigation, Investigating officer
recorded statement of few persons, who have turned
hostile before the Court and their statement recorded
under section 161 of Cr.p.c were marked as exhibits. In the
said exhibits, the witnesses have stated that they had been
to the place of incident around 6:30 p.m., and by that time,
28 CrlA.No.37/2018
the people and police gathered near house of accused. All
of them had information that accused have assaulted the
deceased with brick and hammer and caused his death.
39. In the statement of PWS-1 and 2 marked as
Ex.1 and 3, these facts are clearly mentioned. As per the
complaint lodged by PW-4, he came to place of incident at
about 6.00 p.m., and as per the statement of PW-1 and 2
in Exs.2 and 3, police were already present near the spot of
incident. PW-4, 6, 14 and 18 came to the spot of incident
around 6.30 p.m. If police were already in the place of
incident, then why they did not try to arrest accused or
proceed with the investigation by recording statement of
any of the person who was present at the spot of incident.
However, PW-4, 6, 14 and 18 were said to be entered the
house of accused and tried to investigate even though
police were present. This fact is not explained by
prosecution which appears to be very strange and
unnatural.
29 CrlA.No.37/2018
40. The evidence of PWs - 4, 6, 14 and 18 are not
consistent regarding information of incident and extra
judicial confession of the accused.
41. As per the case of the prosecution, the accused
Nos. 1 to 3 removed the dead body from the house and
kept it in the coffee garden and they closed both the side
door and cleaned blood spilled on floor of the house and
destroyed the evidence. It indicates that accused have
knowledge to destroy the evidence to save their skin. When
they are so clever, it is difficult to believe that they would
reveal details of crime or confess before PWs-4, 6, 14 and
18 who were strangers. It appears to be unnatural.
42. Normally confession cannot be a basis for
conviction, unless prosecution has produced corroborative
evidence to prove its case. It is normal human psychology
that a defaulter may always defend himself and deny that
he had committed such a crime. In this case, PWs- 4, 6, 14
and 18 are strangers to accused. There are no material to
show that accused had faith and confidence in the said
witnesses to reveal true facts of the incident. It is also not
30 CrlA.No.37/2018
the case of prosecution that PW.4, 6, 14 and 18 assured
accused that they would help the accused and protect their
interest. When there is no such circumstances, it is highly
suspicious to believe that accused Nos.1 to 3 would confess
before strangers that too PWs - 4, 6, 16 and 18, who are said to
be friends of deceased Hassan.
43. It is pertinent to note that the death of K.M.
Hassan as per medical records, was caused by
strangulation and not due to injuries sustained by the
deceased. During the alleged confession, the said accused
did not disclose about the strangulation of deceased. There
might not be any reason to the accused to suppress it.
Moreover, according to accused Nos.1 and 2, one of the
accused assaulted with brick and another with hammer.
They have not disclosed the role of accused No.3 in the
commission of crime. This also creates doubt, about alleged
confession said to be stated to P.W.4, 6, 14 and 18.
44. As stated earlier, only on the basis of extra
judicial confession, the Court cannot convict an accused for
such a grave offence. Prosecution should prove the
31 CrlA.No.37/2018
circumstances or place sufficient materials to prove that
the accused had committed the said crime. In this case,
except alleged extra judicial confession, there are no other
materials to connect the accused with the alleged guilt.
Therefore, the submission of learned Additional SPP, that
the confession of the accused before PWs - 4, 6, 14 and 18
is sufficient to convict the accused is not acceptable.
45. PWs-1 to 3 are the witness to Ex.P1 i.e., spot
mahazar drawn on 31.10.2009. All the three witnesses
have turned hostile and even they have denied earlier
statement as per Ex.P2, P3 and P4. The investigating
officer, who had drawn the mahazar is no more. Hence,
drawing of Ex.P1 is not proved.
46. PW-5 is father of the deceased. In his evidence,
he has stated that after hearing the news of death of his
son, he went to place of incident, where accused Nos.1 to 3
were present and in presence of people assembled at the
spot of incident, they confessed that they had murdered
K.M. Hassan. It is a new case made out by PW-5.
According to PWs.4, 6, 14 and 18, the said confession was
32 CrlA.No.37/2018
made inside the house. It is not clear from the prosecution
papers about where about of accused after alleged
confession till they were said to be arrested around 3.00
a.m. on next day i.e., on 31.10.2009. If accused nos.1 to
3 were present and confessed before people gathered at
the spot, including the police, as per the statement of PW-
.1 to 3, then why police did not arrest accused nos.1 to 3
at that time, is not explained. Therefore, either statement
made by PW-5 is incorrect or evidence of police officials,
who were deputed to arrest the accused and who arrested
the accused in the early morning at 3.00 a.m., is false.
Hence, said evidence is not believable.
47. PW- 7 and 8 are the witness to the seizure
mahazar Ex.P11 drawn on 31.10.2009. As per the case of
prosecution, the said mahazar was drawn at the time of
seizure of shirt and T-shirt of accused Nos.1 and 2. Both
the witnesses have turned hostile and hence seizure of the
shirt and T-shirt said to be belonged to accused No.1 and 2
is not proved.
33 CrlA.No.37/2018
48. PW- 11 and 12 are witness to seizure mahazar
of seizure of telephone belonging to accused Nos. 1 to 3.
The said mobile phones were said to be seized on 4-11-
2009, that they have thrown their mobile phone in the said
coffee garden. On the confession of the accused, the
investigating officer, with the help of public, had searched
the coffee garden and traced out the mobile phone. They
were seized under Ex.P14. Both PW- 11 and 12 have
turned hostile to the case of prosecution and denied that in
their presence mobile phone of the accused were seized.
49. PW-17 is witness to mahazar Ex.P16, drawn at
the time of seizure of mobile phone of the deceased. He
has supported seizure of mobile phone in the police station
under Ex.P16. PW-21 is also witness to said mahazar and
he identified the mobile phone and his signature on Ex.P.16
at Ex.P.16B. However, he pleads ignorance about contents
of the said mahazar.
50. The investigating officer had seized mobile
phones belonging to accused as well as the deceased under
two mahazars. The relevancy of seizure of mobile phones is
34 CrlA.No.37/2018
not explained by the prosecution. It is not the case of the
prosecution that before commission of the incident, there
was a conversation over the mobile phone between the
accused and the deceased. No C.D.Rs. are produced. The
said evidence also do not help prosecution to bring home
the guilt of accused.
51. PWs-15, 16, 19 and 20 are official witnesses
and they are not material witnesses PW-20 in his evidence
has stated that he was SHO of police station on 30.10.2009
at 11.45 pm and received written complaint as per Ex.P10
from P.W.4 and on that basis, he registered a case in crime
No.147 of 2009 for the offence punishable under section
302 and 201 read with section 34 of the IPC, thereafter, it
was sent to the jurisdictional magistrate.
52. PW-15 is head constable, submitted FIR to the
magistrate on 31.10.2009. In the statement of witnesses
recorded by the police, it is mentioned that around 6.30
pm, the public as well as police were present at the spot of
incidents. PW-4 had been to the spot of incident as
mentioned in Exhibit P.10, at 6.00 pm. Both PW-4 as well
35 CrlA.No.37/2018
as PW-20 have not explained regarding delay in filing
complaint and registering the FIR.
53. PW-16 and 19 were entrusted with the work of
arrest of the accused. According to their evidence, they had
credible information that accused had hidden themselves in
the said coffee garden, belonging to the deceased and they
searched accused in the coffee garden and apprehended
the accused at about 3 a.m., and produced before the
investigating officer. As already discussed in earlier
paragraphs, the accused all along were said to be present
in the place of incident as per evidence of PW - 4, 5, 6, 14
and 18, then question of searching them in the garden
during night might appears to be highly doubtful. Hence, it
is difficult to believe evidence of PW-16 and 19.
54. It appears investigating officer had collected the
material objects i.e., bloodstained, clothes of the deceased
as well as the accused and sent them to the FSL. Report of
FSL was not placed before the Trial Court and there were
no explanation for not producing the same before the trial
court.
36 CrlA.No.37/2018
55. The offence alleged to be committed by accused
is grave in nature. The way in which investigation was
done is highly inappropriate . Incident was said to be taken
place during the daylight i.e., around 4.30 to 5.00 p.m.
Looking to the statements of witnesses i.e., PWs-1 to 3,
there were houses nearby the place of incident. PWs 4, 6,
14 and 18 went to spot around 6.00 p.m. However,
complaint was lodged at 11.45 p.m. Prosecution did not
place any materials regarding occupation of labour in the
line of houses situated in the coffee garden, nearby the
place of incident. The prosecution mainly is relying on the
extrajudicial confession of the accused before PW- 4, 6, 14
and 18. Only on the basis of such alleged extrajudicial
confession of the accused No.1 to 3 before the said
witnesses, cannot be sole reason to convict the accused for
such a grave offence.
56. The prosecution unable to secure scientific
evidence that is FSL report, regarding alleged bloodstain
found on the dress materials of the accused as well as the
deceased as well as red colored water kept in bucket, in the
37 CrlA.No.37/2018
house of the accused. Prosecution had made out case that
death was caused due assault with a hammer and a brick.
However, Exhibit P5 shows that death was due to
strangulation. No materials were collected to prove the
same, except the opinion of the doctor. In view of these
reasons, the prosecution had miserably failed to prove the
guilt of the accused much less beyond reasonable doubt.
57. It is true that the learned trial judge did not
discuss and appreciate the evidence of the witnesses
properly. It is the duty of the trial judge to appreciate the
evidence of all the witnesses and materials placed before
the court and give his findings. However, the learned
session judge in his cryptic order didn't consider any of the
evidence except observing that "they have turned hostile
and their evidences are not reliable" which is not sufficient
to come to conclusion. The finding of the acquittal of the
accused was proper and there are no materials to reverse
the said finding.
Looking to the facts of the case investigation done by
the concerned was very improper/inappropriate. The
38 CrlA.No.37/2018
police were in the spot much prior to lodging of complaint
but no action taken including apprehending of accused No.1
to 3. Scientific evidences were not collected. Materials were
not collected to ascertain motive for the incident; Report of
blood stained clothes etc. No material collected to prove
that accused had strangled the deceased. Even after
obtaining post mortem report, ligature materials were not
collected or investigation was made in this regard.
Relevant evidence not collected to prove that
deceased was crying for help and there was quarrel
between accused and deceased. These are material lapses
by the concerned police. It is an appropriate case to direct
the higher police officer to hold enquiry of concerned as to
why responsible officers did not investigate properly and
submit the report within four weeks.
58. For the above said reasons, we answer point
No.1 to 3 in the negative and pass following:
39 CrlA.No.37/2018
ORDER
i. Appeal is dismissed.
ii. The impugned Judgment dated
12.04.2017 in S.C.No.34 of 2010 on the file
of the II Additional District and Sessions
Judge at Kodagu-Madikeri is confirmed.
Registry to transmit copies of this judgment to
the Director General of Police/Inspector General of
Police to hold enquiries about lapses in investigation
and report within four weeks to this Court.
Sd/-
JUDGE
Sd/-
JUDGE
AG
