Karnataka High Court

Veerareddy vs State Of Karnataka on 22 November, 2024

Author: S.Sunil Dutt Yadav

Bench: S.Sunil Dutt Yadav

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                                                    CRL.A No. 200071 of 2020




                             IN THE HIGH COURT OF KARNATAKA,

                                     KALABURAGI BENCH

                       DATED THIS THE 22ND DAY OF NOVEMBER, 2024

                                           PRESENT
                       THE HON'BLE MR. JUSTICE S.SUNIL DUTT YADAV
                                              AND
                    THE HON'BLE MR. JUSTICE RAMACHANDRA D. HUDDAR


                           CRIMINAL APPEAL NO. 200071 OF 2020
                                   (374(Cr.PC)/415(BNSS))
                   BETWEEN:

                   VEERAREDDY
                   S/O SHIVAREDDY CHIRAKE
                   AGED ABOUT 46 YEARS
                   OCC:COOLIE WORK
                   R/AT GHATBORAL
                   TQ:HUMNABAD
                   DIST:BIDAR-585 330
                                                                 ...APPELLANT

Digitally signed   (BY SRI. SHAMBULING S. SALIMATH, ADVOCATE)
by SHAKAMBARI
Location: HIGH     AND:
COURT OF
KARNATAKA
                   STATE OF KARNATAKA
                   THROUGH HUMNABAD
                   POLICE STATION-585 330
                   NEW REPRESENTED BY ADDL.SPP
                   HIGH COURT OF KARNATAKA
                   KALABURAGI BENCH
                                                             ...RESPONDENT
                   (BY SRI. SIDDALING P. PATIL, ADDL. SPP)

                        THIS CRL.A. IS FILED U/S.374 (2) OF CR.P.C PRAYING
                   TO SET ASIDE THE ORDER OF CONVICTION DATED 21.10.2017
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                                        NC: 2024:KHC-K:8740-DB
                                    CRL.A No. 200071 of 2020




AND SENTENCE DATED 28.10.2017 PASSED BY THE II ADDL.
DIST. AND SESSIONS COURT, BIDAR, SITTING AT HUMNABAD
IN S.C.NO.89/2016 CONVICTING THE APPELLANT/ACCUSED
FOR THE OFFENCES P/U/S 364, 302 R/W 34 OF IPC.
     THIS CRIMINAL APPEAL HAVING BEEN RESERVED FOR
JUDGMENT COMING ON FOR PRONOUNCEMENT OF THIS DAY,
RAMACHANDRA D. HUDDAR J., DELIVERED/PRONOUNCED
THE FOLLOWING:


CORAM:    HON'BLE MR. JUSTICE S.SUNIL DUTT YADAV
           AND
           HON'BLE MR. JUSTICE RAMACHANDRA D. HUDDAR


                     CAV JUDGMENT

(PER: HON'BLE MR JUSTICE RAMACHANDRA D. HUDDAR)

This appeal assails the correctness of the judgment

of conviction dated 21.10.2017 and order of sentence

dated 28.10.2017 passed by the II Additional District and

Sessions Court, Bidar sitting at Humnabad in Sessions

case No.89/2016, whereby accused No.1 was convicted for

the offence under Section 302 of IPC and sentenced him to

undergo life imprisonment and also pay a fine of

Rs.10,000/- and in default of payment of fine, he shall

further undergo three months simple imprisonment.

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Case of the Prosecution:

2. It is the case of the prosecution, that on

23.12.2015 at 6 p.m., a person by name Naganath, the

complainant, along with his son, the Balbheem, after

closing their cycle shop, went to their house at 6.30 p.m.

Thereafter, his son Balbheem went out of the house for

the purpose of playing. It is alleged that the said

Balbheem (now deceased) did not return to the house

during night hours. Therefore, the complainant, along with

his other two sons by name Krishna and Sudhakar, went in

search of Balbheem. But they could not trace him.

Thereafter, on the next day, the complainant Naganath

went to the Humnabad police station and submitted a

complaint stating that his son Balbheem was missing and

somebody must have kidnapped him.

3. It is the further case of the prosecution that,

thereafter, the complainant, after lodging the complaint,

returned to the house that is on 24.12.2015. From the

people of the village, he came to know that the accused-

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Veerareddy was telling the villagers of his village that, if

anybody teases his daughter, would not leave them, and

such person would reach the fate of Balbheem as he has

been killed by him and dead body thrown in the well. On

coming to know the said information, immediately the

complainant once again went to Humnabad- police station,

on 25.12.2015 gave a further statement alleging that

accused Veerareddy and the juvenile offender Siddhappa

had killed his son Balbheem. He also requested the police

to take necessary action against them.

4. On receipt of the complaint, a crime was

registered against the accused persons and criminal law

was set in motion. The investigation officer on getting the

complaint arrested accused No.1. On interrogation,

accused No.1 confessed about the crime and he himself

took the police to the well where the dead body of

deceased Balbheem was thrown by him. It is also

confessed that the accused No.1 has killed deceased along

with the juvenile offender Siddhappa. After recovering the

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dead body from the well, it was identified by the

complainant. The police officer prepared the inquest

Panchanama and sent the dead body for post-mortem

examination. On getting the P.M.Report and also on

recording the statements of the witnesses, the IO has filed

the charge sheet against the accused No.1 for the offence

under Section 363 and 302 read with Section 34 of the

IPC. Sofar as the juvenile offender is concerned, a

separate charge sheet is filed against him before the

Juvenile Justice Board, Bidar.

5. On filing the charge sheet, the learned

jurisdiction Magistrate took cognizance of the offence. As

the offences so alleged against the accused were

exclusively triable by the Sessions Court, the said criminal

case came to be committed to the Sessions Court as per

the orders dated 7.4.2016.

6. Before the Sessions Court, the accused No.1 is

represented by an Advocate appointed by the District

Legal Services Authority, Bidar district. On hearing both

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sides, the learned Sessions Court framed the charges

against the accused for the offences under Section 363

and 302 r/w Section 34 of IPC and accused No.1 pleaded

not guilty. Before the Sessions Court to prove the guilt of

the accused, the prosecution in all examined 10 witnesses

from PWs.1 to 10 and got marked Ex.P1 to P16 and closed

prosecution evidence. Thereafter, the accused was

questioned under Section 313 of the CRPC so as to enable

him to answer the incriminating circumstances appearing

in the evidence of the prosecution. He denied his

complicity in the crime and has produced two documents

with his written submission offering his explanation to the

prosecution case. He did not choose to lead any defence

evidence on his behalf.

7. The learned Sessions Court, on hearing the

arguments and on evaluation of the evidence, found the

accused guilty of committing the offence under Section

363 and 302 of the IPC and ultimately convicted and

sentenced the accused as noted above. This is how the

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accused is now before this Court challenging the said

judgment of a conviction and sentence passed against him

by the trial Court.

8. We have heard the arguments of learned

counsel for the appellant Shri.Shambuling S Salimath and

learned SPP Shri.Siddaling P Patil for the State and

perused the records.

9. During the course of the arguments, the

learned counsel for the appellant accused Shri.Shambuling

S Salimath, would submit that the prosecution has utterly

failed to prove its case beyond all reasonable doubt. The

theory as set out by the prosecution is not at all spoken to

by any of the witnesses, much less the complainant. He

further submits that initially a missing complaint was filed

by the complainant Naganath. Thereafter, with a delay of

two to three days of filing a missing complaint, a further

complaint was filed by the complainant stating that he has

suspected the fowl act of the accused No.1 and juvenile

offender in committing the crime against the deceased. He

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submits that there is a delay in filing the complaint. He

would further submit that evidence of a PW4 Ram and

evidence of PW6 Adarsh if looked into; both are opposite

and destructive to the case of the prosecution. Their

evidence creates doubt in the case of the prosecution. He

further submits that the time and date of death are also

not properly explained by the doctor. There is no evidence

based on record through the evidence of PW6 Adarsh that

after the incident of assault on the person of a deceased

Balbheem, i.e. on 23.12.2015, he was thrown into the

well. But, such evidence is not at all coming forth from the

mouth of any of the witnesses, much, less from the

evidence of the doctor PW.7 who was examined by the

prosecution. He would further submit that the cause of

death given by the doctor is not due to drowning but, for

some other reason. It also creates doubt in the case of the

prosecution. He further submits that the admission of the

doctor in the cross-examination and also with regard to

the cause of death is also not properly explained.

Therefore, the evidence of the doctor cannot be accepted.

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He would further submit that statement recorded is not

admissible under Section 65B of the Indian Evidence Act.

Therefore, the learned counsel for the appellant- accused

relying upon the grounds urged in the appeal memo with

all vehemence submits that the trial Court has committed

illegality in coming to the conclusion that the accused is

guilty of committing such offence. He further submits that

in view of contradiction in the evidence of PW.4 and 6, the

version of the prosecution cannot be accepted. He submits

to allow the appeal and to set aside the impugned

judgment.

10. As against this submission, the learned counsel

for the State Shri. Siddaling P. Patil submits that the initial

complaint was for the missing Balbheem. When the

villagers were telling that it was accused No.1 who was

proclaiming in the village that nobody should tease his

daughter Pallavi and if anybody teases his daughter, the

said person would face the same consequence as

Balbheem had faced, he will kill them. By saying so, he

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was also telling that himself and juvenile offender

Siddhappa had killed this diseased and thrown him in a

well. On getting such information from the public, the

complainant went to the police station and gave a further

statement alleging that accused No.1 is proclaiming in the

village about the causing of the crime against his son.

Based upon that information so furnished by the

complainant, when accused no.1 and juvenile offender

were arrested, it was revealed from their mouth by way of

a confession that it is they who have killed the deceased

Balbheem and thrown him in the well. He would also

submit that in view of the confession statement of

accused, the dead body was recovered at the instance of

the accused persons. Witnesses examined by the

prosecution have stated in their evidence about

proclaiming the words used by the accused No.1 that he

has killed the deceased by throwing him in a well, that

corroborates with each other. Therefore, he submits that

the learned trial Court, on evaluation of the evidence in

proper perspective, has come to the conclusion that the

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accused is really guilty of the offence so alleged against

him. According to him, the well-reasoned judgment of the

learned trial Court does not require interference. In

support of his submission, he relied upon various evidence

placed on record by the prosecution and also, especially,

the findings of the learned trial Court in coming to such a

conclusion. He prays to dismiss the appeal.

11. We have given our anxious consideration to the

arguments of both sides and meticulously perused the

records.

12. In view of the rival submissions of both sides,

the point that would arise for our consideration is:

           "Whether      the   learned         trial   Court    is
     justified   in   convicting        and   sentencing       the

accused as alleged by the prosecution?."

13. It is a case of the prosecution that deceased

Balbheem, being the son of the complainant on the date of

incident, that is, 23.12.2015, returned to the house at

6.30 p.m. along with his father, who is a complainant.

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Thereafter, the said deceased went away from the house

saying that he would return. Since he did not return, the

complainant and his two other sons, by name Krishna and

Sudhakar, went in search of Balbheem. But, they could not

trace him. Even one Dhulappa and another relative of the

complainant also searched. Therefore, he suspected that

between 6.30 p.m. and 9.30 p.m. on 23.12.2015, his son

Balbheem must have been kidnapped. He went to the

Humnabad police station and lodged a complaint as per

Ex.P1 on 24.12.2015 at 7 p.m. The same was registered

and criminal law was set in motion. It is the further

assertion of the prosecution that, on 25.12.2015, when

the complainant got the information that it was accused

No.1, a juvenile offender was proclaiming in the village

that if anybody teases the daughter of the accused No.1,

they would face the same fate as that of Balbheem. They

were telling that they had killed Balbheem by throwing

him in a well. On getting such information through the

public of his village, he went to the police station again

and gave a further statement on 25.12.2015 at 10 a.m.

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The same was reduced to writing in the said crime itself

and a crime was registered against the accused for the

offence under Section 363 and 302 r/w Section 34 of the

IPC. They said further statements are marked in evidence

as per Ex.P2. It is further case of the prosecution that on

getting such a complaint, the I.O. arrested accused No.1

and so also juvenile offender. On interrogation, it was

revealed by accused No.1 that both accused No.1 and the

juvenile offender had killed deceased Balbheem and had

thrown the dead body into the well situated in their

village. It was accused No.1 and the juvenile offender

went with the police and showed the well where they had

thrown the deceased. The I.O. noticed that the said dead

body was fallen in the well in a flat position. With the help

of lifters, the said dead body was removed from the well.

It was identified by the complainant as that of his son. I.O.

prepared the inquest Panchanama as per Ex.P3 in the

presence of Panchas, recorded the statements of the

complainant again as well as the mother of the deceased

and other witnesses, subjected the said dead body to the

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post-mortem. Thereafter, handed over the dead body to

the complainant.

14. It is the case of the prosecution that the

deceased had suffered the homicidal death. To prove the

same, the prosecution relied upon the post-mortem

report, Ex.P11. On reading the post-mortem report, it

shows that the deceased had suffered injury to his genital

region. The relevant extract of the post-mortem report is

reproduced as under:

"It is stated that, penetrating wound present over right posterior distal 1/3rd shaft of pennis, extending up to urethra measuring 5.m.m in dia meter, depth 6.m.m".

15. When the post-mortem was conducted, the

doctor was of the opinion that cause of death is withheld

for want of a chemical examiner's report from a Forensic

Science Laboratory. PW.7-Dr.Ravishankar Khandre was

examined before the trial Court has deposed in his

examination-in-chief and makes it clear that, he

conducted the post-mortem on the dead body of the

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deceased on 25.12.2015 between 5.10 p.m. and 6.15

p.m., wherein he noticed the aforesaid injury on the

person of the deceased. Time since death was within 24

hours of a conducting post-mortem. According to his

evidence, the cause of death was a "vasovagal attack due

to injury to a genital organ." He further opines that when a

person is thrown from a considerable height and while

entering the water, if that person comes in contact with

the sharp object, the injuries to genital organs like the one

mentioned in the report would cause resulting in a

vasovagal attack, causing death. He deposed that, the

death of the deceased has occurred because of the injury

so noted in the post-mortem report. There is no effective

cross-examination directed to this PW.7 in the cross-

examination directed by the defense. Except the denial,

nothing is elicited from the mouth of this witness. Thus

even the doctor has opined in his examination-in-chief

itself that the dead body was found in the well and he

conducted the post-mortem and the cause of death was

due to vasovagal attack, due to injury to genital organ.

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16. Coupled with this, prosecution also relies upon

the report issued by the Forensic Science Laboratory,

Kalaburgi, wherein, he is of the opinion that residues of

volatile poisons, pesticides, drugs, acolytes, and toxic

metal ions were not detected in all the above-sealed

articles that were sent for chemical examination. This

document is substantiated by the evidence of a scientific

examiner. So also the Bidar Institute of Medical Science,

Bidar, has issued Ex.P8 stating that "the gross and

radiological examination of the higher board does not

reveal any evidence of fracture or cartilaginous injury on

the person of the deceased." That means, as noted by the

doctor in the final opinion, this deceased had suffered

injuries as noted in the PM report as stated above. This

document, as well as the evidence of PW.7 and other

evidence, do establish that a deceased has suffered the

homicidal death. It is argued by the learned counsel for

the State Shri. Siddaling P. Patil that the deceased had

sustained such injuries and they were ante-mortem.

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17. A cumulative reading of the medical record

along with the deposition of PWs.1 to 7 creates a chain of

circumstances establishing that the death of the deceased

is homicidal. The injuries noted in the PM report are a

cause for death of the deceased. When this is the medical

evidence brought on record by the prosecution, it was

incumbent upon the appellant/accused to prove as to how

the death occurred in view of the burden contemplated

under Section 106 of the Indian Evidence Act, 1872 (the

Evidence Act). In this case, it is the prosecution case that

the appellant has not only failed to offer any alternative

explanation so as to the cause the death of the deceased

but also failed to tend to the prosecution's version. We

saw his role at the scene of the alleged offence, thereby

being unable to negate the contention that no one else

could have inflicted the said injuries on the body of the

deceased when he was thrown in the well by the accused

No.1 and juvenile offender. It is submitted that it is the

case of the prosecution that on the date of incident, which

is on 23.12.2015, when the deceased went away from the

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house, he had talk with the daughter of the accused

Pallavi under a mango tree. At that time, the juvenile

offender and another person were moving. The juvenile

offender had asked the said Pallavi whether she was loving

him or loving Balbheem. When he asked her, she hides

herself. Immediately the said juvenile offender Siddhappa

went to accused No.1 and informed. Thereafter, this

accused along with juvenile offender Siddhappa, brought

deceased Balbheem to their house and assaulted him. He

gave a warning to him. It is the case of the prosecution

that thereafter this juvenile offender as well as accused

No.1 took this Balbheem towards the said well where the

dead body was found and threw him in the well. Thus he

died. Thus it is the case of the prosecution that, it was

accused No.1 and a juvenile offender, both have

committed the offence in the manner alleged by the

prosecution. Here in this case, there is no eyewitness

arrayed by the prosecution. The factum evidence of a

prosecution witness is purely based upon medical evidence

as well as the deposition of the doctor. As per the

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argument of the counsel for the State, the medical

evidence as well as the deposition of the doctor

substantiates the culpability of the accused person to

murder the deceased Balbheem. It is urged by the

prosecution that the prosecution does not rest upon

circumstantial evidence alone and also corresponds to

circumcision that they pointed towards the guilt of the

accused person, i.e., the appellant.

Findings of the trial court:

18. The trial Court has concluded that the case of

the prosecution is proved beyond all reasonable doubt and

hence the accused/appellant is liable for conviction and

sentence. It is also observed by the learned trial Court

that the motive for the crime was that the deceased

Balbheem was in love with daughter of the accused No.1

Pallavi. Even juvenile offender Siddhappa was also loving

her. When both Balbheem and Pallavi were talking

together on the date of the missing Balbheem, it was

informed by the juvenile offender that Pallavi was loving

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him or deceased. By hearing such words, the said Pallavi

hid herself beneath the tree. The fact of talking of

Balbheem with Pallavi was informed by the juvenile

offender to accused No.1. Thereafter, both took this

Balbheem to the house of the accused No.1 and assaulted

him. This fact of assault was also seen by the witnesses

who examined in this case. Thus, the learned trial Court

has come to the conclusion that, it was accused No.1 and

the juvenile offender have committed the offence. Thus it

is concluded by the learned trial Court that the chain of

circumstances that have been brought on record by the

prosecution prove the guilt of the accused beyond all

reasonable doubt. Thus convicted and sentenced him.

19. The aforenoted conclusion was substantiated on

the basis of evidence of PWs.1 to 7 as per the case of the

prosecution. Though it is argued by the learned counsel for

the appellant that the prosecution has failed to prove the

guilt of the accused beyond all reasonable doubt as

submitted, now we have to ascertain whether really the

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prosecution is able to establish the guilt of the accused

beyond reasonable doubt or otherwise. To ascertain the

same, we have to read both oral and documentary

evidence adduced by the prosecution.

Analysis and conclusion

20. The case of the prosecution rests on

circumstantial evidence, the testimonies of PWs.1 to 7,

read with the report of medical examination Ex.P7, post-

mortem report, and other evidences and evidence of the

doctor. Admittedly, there are no direct eyewitnesses to the

said incident. In such cases, an inference of guilt must be

sought to be drawn from a cogently and firmly established

chain of circumstances. The PW1 complainant corroborates

his evidence with that of his missing complaint filed on

24.12.2015 and 25.12.2015. He has been cross-examined

at length by the defence. It is his evidence in the cross-

examination that he did not inquire with Adarsh and others

about whereabouts of his son. He further states that he

has the mobile number of his son. According to him,

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immediately on hearing the say of the accused, he did not

go to the police station to pass on this information about

the killing of his son by accused No.1 along with a juvenile

offender. He has not observed any froth coming from the

mouth of his son after removing the body from the well, as

per his evidence. As he is not an eyewitness and filed a

complaint about the missing of his son as well as getting

information about the death of his son in the hands of this

accused, he just informed the police and lodged a

complaint as well as further statements as per Ex.P1 and

P2, respectively. He has denied all the suggestions so

directed to him. The evidence of PW1 is to be accepted to

the extent that he has filed a missing complaint initially, as

well as on getting information he lodged a further

statement as per Ex.P2 before the police and thereafter

the criminal law was set in motion against the accused

persons.

21. PW.2 Ashok Chandrappa Todsalle is the witness

who was seizure Pancha in whose presence the police have

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recovered M.O.'s No.4 and 5 under Ex.P9. According to

him, these seizure Panchanama was conducted in his

presence and in the presence of other Naganath and police

have seized M.O.'s No.4 and 5. The fact of seizure of these

M.O.'s No.4 and 5 in his presence is not specifically denied

by the defence. Therefore, the evidence of PW2 has to be

accepted to the extent that in his presence, M.O.'s No.4

and 5 were seized by the police under Ex. P9. The

credibility of this evidence is further supported by the

consistent testimonies from other witnesses present

during the seizure. Additionally, the prosecution has

provided documentation that corroborates the legitimacy

of the procedure followed by the police, reinforcing the

integrity of the evidence presented.

22. PW.3 Rajkumar Vithalrao Patil is a villager of a

Ghatboral village and he has deposed before the Court

that on 23.12.2015, Naganath came to him at 9 p.m. and

informed him about the missing of his son Balbheem. He is

a person who has heard the words of the accused on

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24.12.2015 stating that this accused was roaming in the

village saying that he had killed Balbheem by throwing

into the well. He further has stated that it was the accused

who took the police to the said well and showed the place

of throwing the said deceased Balbheem. He states that on

25.12.2015 at 2 p.m., the C.P.I. brought the accused to

their village and took them to Satyakala well. It was

accused who showed the well and thereafter the dead

body was removed from the well in his presence. P.W1

Naganath identified the dead body as that of his son. It is

his further evidence in the cross-examination that, he has

personally heard, accused Veerareddy telling that he,

along with juvenile offender Siddhappa, have thrown

Balbheem into the well. He has stated so in his statement

before the police. Further, it is suggested that he has

stated in his statement to that effect that the next night

Veerareddy, son of Shivareddy Chirake, was roaming in

the village, saying that he would not leave any person if

anybody caused trouble to his daughter and that person

would be killed, the way he has killed Balbheem. Thus the

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evidence of this P.W3 shows that he has heard about the

words being used by the accused stating that he has killed

Balbheem. He came to know about the said fact. Though

this PW3 was cross-examined at length but he has

withstood the test of cross-examination.

23. PW.4 Ram Ganpathrao Mule is a person who is

an important witness examined by the prosecution.

According to his evidence, on 23.12.2015 at 7 p.m., when

he was returning home from his land, he noticed the

Galata in front of the house of the accused. He went there

and saw that this accused Veerareddy and juvenile

offender Siddhappa had wrongfully restrained Balbheem

and were quarreling with him. It was he who intervened in

the quarrel and asked the accused as to why he is

quarrelling with Balbheem. At that time, the accused told

that this Balbheem was eve teasing his daughter

Balbheem while going to school and for that reason he has

brought Balbheem and confined him. He pacified their

quarrel and made Balbheem to leave that place. When

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Balbheem was proceeding towards the house, accused

Veerareddy and Siddhappa and CW.21 Adarsh followed

Balbheem and they all proceeded towards Bhavani temple.

Thus this evidence of this witness PW4 shows that on the

date of the disappearance of the deceased at 7 p.m., he

noticed the presence of Balbheem in front of the house of

the accused, and there was a quarrel going on and it was

the accused who had confined the deceased. It was he

who pacified the quarrel and sent the deceased from that

place, but, this accused as well as the juvenile offender

Siddhappa and CW.21 followed Balbheem and they

proceeded towards Bhavani temple. This evidence of PW4

is not denied in the cross-examination directed to him. It

is further evidence that, on the next day when Naganath

and his son were searching for Balbheem, he told that

Balbheem was restrained by Veerareddy and juvenile

offender Siddhappa and got him released. On 25.12.15 at

about 2 p.m., police brought the accused, and all villagers

followed them to Satyakala well. He too followed them. On

going over there, they saw the dead body of deceased

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Balbheem floating in the well. On removal of the dead

body, Naganath identified it as that of his son Balbheem.

24. In the cross-examination directed to this PW 4,

it shows that the house of Veerareddy consists of only one

small room. There is no electricity supplied to his house. It

is suggested that he has not pacified the quarrel, etc., but

this PW4 has denied the same. Except this denial, nothing

is brought on record in the cross-examination so as to

disbelieve his version, it was he who pacified the said

quarrel and sent a deceased from that place, but accused

as well as juvenile offender Siddappa followed him. It is

one of the important circumstances to show that, it was

PW4 who pacified the quarrel, in between accused and

Balbheem and has last seen the deceased with the

company of accused.

25. PW5-M.A.Samad is a businessman in

Humnabad. When the accused was in custody, he

accompanied the police with this Samad, PW 5, and in his

presence, at the instance of the accused, Ex.P10

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Panchanama was prepared with regard to the scene of

offence. Though it is suggested that, this PW5 is a stock

witness, he withstood the test of cross-examination.

Preparation of Ex.P.10 in the presence of the Pancha is not

denied by the defense in a proper manner. Thus, from the

evidence of PW5, Ex.P.10 is duly proved in accordance

with law.

26. PW.6-Adarsh was aged 17 years and was a

friend of a juvenile offender as well as deceased.

According to him, on 23.12.2015, himself and juvenile

offender Siddhappa were going to the landed properties of

Shankar Malke on a bicycle at 7 p.m. At that time, they

noticed the presence of Balbheem and Pallavi sitting under

a mango tree and talking with each other. On seeing them

together, this juvenile offender questioned Pallavi as to

whether she is loving him or deceased Balbheem. By that

time, Pallavi tried to hide herself behind the tree.

Immediately, juvenile offender Siddhappa went to the

house of Pallavi and brought her parents there. On seeing

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them, Balbheem ran away from that place. Accused

brought Balbheem. He states that he was accompanied by

a juvenile offender. According to him, he followed all of

them at a distance of 10 feet, and they had taken

Balbheem towards the well, and both caught hold of the

legs of Balbheem and threw him in the well. As he

frightened, he ran away from that place. No doubt this

PW6 has stated so much evidence in his examination, but

he accompanying the juvenile offender on 23.12.2015 at

7 p.m. is not denied by the defence in the

cross-examination. Though he has been examined at

length, he specifically states that, juvenile offender

Siddhappa and Veerareddy, is accused/appellant in this

appeal, took the deceased to the well and threw him by

catching hold of him. Though lengthy cross-examination is

directed to him, he has stated with regard to taking away

of a deceased by both accused as well as juvenile

offender. No doubt he has spoken some inconsistent

evidence in the cross-examination. He being a friend of a

juvenile offender, no animosity or ill-will is established by

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the defense that because of that ill-will, he has spoken

untruth before the court. PW4 has also spoken to that

effect in his evidence and there is no ill-will established

between PW4 and the accused to speak falsehood against

this accused. So the chain of circumstances that has been

brought on record by the prosecution is proved in the

cross-examination by the evidence of this PW6.

27. PW.7-Dr.Ravishankar Khandre has spoken

before the Court about the conducting of the post-mortem

on the dead body of the deceased, etc. PW8-Gurulingappa

Gauda Patil, the PSI, received the complaint and started

the criminal law in motion initially. He registered a crime

in Crime No. 267/15 for the offence under Section 363 of

the IPC and thereafter recorded the further statement of

the complainant and inserted Section 302 of the IPC, and

thus criminal law was set in motion by him. As per the

memo issued by the CPI, he apprehended juvenile

offenders on 26.12.2015 and produced him before the IO.

The evidence of this PW8 goes to establish that he has

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received the complaint and set the criminal law in motion.

It is elicited from the mouth of this witness that the

juvenile offender told him that MO No.4 belongs to

deceased Balbheem, which was recovered at the instance

of the accused himself. To that effect, the report is

submitted by him. Panchnama was prepared as per Ex.P9

with regard to the recovery of MO No.4 and 5 at the

instance of the accused. He also says that on opening the

purse, two photos of the Balbheem were found in the said

purse and the photographs are marked as Ex.P16 and P17.

MO No.4 and 5 were also seized under Ex.P9. The

evidence of this PW8 is corroborated with the evidence of

other witnesses also.

28. PW9-Shivananda was a CPI in Humnabad at the

relevant time. He took up the investigation and conducted

the investigation. He conducted the panchanama as per

Ex.P10 when the dead body was removed from the well.

He identifies it as Ex.P3, which bears his signature.

Though this IO has been directed with severe

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cross-examination, he has withstood the test of cross-

examination.

29. PW10-Dattatraya Mapanna Karnad was an IO

and he has filed the charge sheet after collecting the

necessary documents. The learned trial Court on

evaluation of the evidence of all these witnesses, has

come to a definite conclusion that the prosecution is able

to establish the guilt of the accused beyond all reasonable

doubt.

Re. Discussions on 'Last Seen Theory':

30. In absence of eye witnesses, the last seen theory

and circumstantial evidences play a vital role. The

corroboration of last seen theory and circumstantial

evidence must not give any single way which shows the

innocence of accused and time gap between last seen alive

and the recovery of dead body must be so small that the

possibility of any person other than accused being the

author of the crime becomes impossible. In the instant

case the Court can draw an inference that, accused had

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committed an offence of crime based on circumstantial

evidence.

31. This last seen theory derives from Section 7 of

the Indian Evidence Act which is called the "Doctrine of

Inductive Logic" in which it is stated that if any fact related

to the occasion, cause or effect lead to the circumstance in

which that thing occurred or it provided an opportunity for

the occurrence of that thing then those facts will be

relevant. And the last seen theory also the person who

was the last present with the victim would have a

reasonable opportunity to commit the crime.

32. This case rests on circumstantial evidence for

the following reasons:

1. The first circumstance is, the deceased-

Balbheem left his house at 6.30 p.m after closing of his cycle shop.

2. Pallavi and Balbheem were sitting under a mango tree and the Siddappa juvenile offender saw them and informed it to father of Pallavi about their love affair.

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3. Father of Pallavi came and took Balbheem to his house, confined him and started galata with him. PW.4 Ram Ganpathrao Mule noticed galata between Balbheem and accused in front of the house of accused. He also noticed that accused Veerareddy & juvenile wrongfully restrained Balbheem. PW.4 pacified their quarrel and made Balbheem to leave that place.

4. When Balbheem was proceeding towards the house, accused Veerareddy and Siddhappa and CW.21 Adarsh followed Balbheem and they all proceeded towards Bhavani temple.

5. Father of Balbheem lodged a missing complaint before Humnabad police station.

6. Accused Veerareddy started proclaiming in the village that, if somebody eve-teases his daughter Pallavi, they will face consequences as that of Balbheem.

7. Then on getting such news spread in the village, father of Balbheem went to the police station and gave his further statement.

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8. Based upon that, police arrested accused Veerareddy and Juvenile offender Siddappa.

9. After interrogation by police, accused Veerareddy gave confession statement.

10. After his arrest, accused lead the police to the well where he threw Balbheem, later; police noticed the dead body of Balbheem floating in the well.

11. During investigation as per the confession statement, mobile phone and purse belonging to deceased were seized at the instance of the accused.

33. With regard to 'Last Seen theory' the Hon'ble

Apex Court in Ashok v. State of Maharashtra, reported

in (2015) 4 SCC 393, paras 8 and 14 observed as under:

8. The "last seen together" theory has been elucidated by this Court in Trimukh Maroti Kirkan v. State of Maharashtra [(2006) 10 SCC 681 : (2007) 1 SCC (Cri) 80] , in the following words :

(SCC p. 694, para 22) "22. Where an accused is alleged to have committed the murder of his wife and the prosecution succeeds in leading evidence to show that shortly before the commission of crime they were seen together or the offence takes place in the dwelling home where the husband also normally

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resided, it has been consistently held that if the accused does not offer any explanation how the wife received injuries or offers an explanation which is found to be false, it is a strong circumstance which indicates that he is responsible for commission of the crime. Thus, the doctrine of last seen together shifts the burden of proof onto the accused, requiring him to explain how the incident had occurred. Failure on the part of the accused to furnish any explanation in this regard, would give rise to a very strong presumption against him.* [Ed. : See also Rohtash Kumar v. State of Haryana, (2013) 14 SCC 434 at pp. 448-49, para 34 : (2014) 4 SCC (Cri) 238.] "

14. In the present case, the Sessions Judge found following incriminating evidence against the accused:

(i) Taking half-day casual leave on 26-8-2008.

(ii) Last seen when all the deceased were in the company of the appellant-accused.

(iii) Mysterious disappearance of the three deceased persons from the said company.

(iv) Conduct of the appellant-accused:

(a) requiring the colleague to prepare the dinner;

(b) reporting to police about the missing on the next day;

(c) attitude of the appellant-accused in presence of the relatives of the deceased;

(d) leaving of two daughters and wife at HP gas agency.

(v) Falsity in defence.

(vi) Disliking towards the deceased.

(vii) Demand of amount which was kept in the name of Shubhangi by Shalinibai.

(viii) Post-mortem report.

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34. As this case is purely based upon the

'circumstantial evidence' and 'last seen theory' the Hon'ble

Apex Court in Sharad Birdhichand Sarda v. State of

Maharashtra, reported in (1984) 4 SCC 116, has laid

down the following five golden principles, which constitute

the panchasheela of proof as under:

"153. A close analysis of this decision would show that the following conditions must be fulfilled before a case against an accused can be said to be fully established:

(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established.

It may be noted here that this Court indicated that the circumstances concerned "must or should" and not "may be" established. There is not only a grammatical but a legal distinction between "may be proved" and "must be or should be proved" as was held by this Court in Shivaji Sahabrao Bobade v. State of Maharashtra [(1973) 2 SCC 793 : 1973 SCC (Cri) 1033 : 1973 Crl LJ 1783] where the observations were made: [SCC para 19, p. 807:

SCC (Cri) p. 1047]

"Certainly, it is a primary principle that the accused must be and not merely may be guilty before a court can convict and the mental distance between 'may be' and 'must be' is long and divides vague conjectures from sure conclusions."

(2) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on

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any other hypothesis except that the accused is guilty,

(3) the circumstances should be of a conclusive nature and tendency,

(4) they should exclude every possible hypothesis except the one to be proved, and

(5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused."

35. In this case, the prosecution has proved its case

beyond all reasonable doubt. Established the complete

chain of circumstances, including the motive, i.e., accused

No.1 had quarrelled with the deceased, on the ground

that, deceased was eve-teasing his daughter Pallavi. It

was informed by juvenile offender Siddhappa that the

deceased and Pallavi were talking with each other under a

mango tree. Juvenile offender brought accused there.

Then accused brought Balbheem to his house. He was

quarrelling with him and confined him. At that time, PW6,

on seeing the said Galata, went there and pacified the

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quarrel. He made the deceased go away from the said

place, but even then, the accused as well as the juvenile

offender followed the deceased. The motive for the crime

was that the deceased was eve- teasing the daughter of

the accused.

36. With regard to the presence of the accused at

the time of the incident and the presence of the juvenile

offender at the time of the quarrel, PW6 has spoken in his

evidence on oath. He states that, though he pacified the

quarrel, made the deceased go away from the said place.

But this accused and juvenile offender followed him, and

so also Adarsh followed him.

37. Though the accused has submitted his 313

statement with explanation, it is not an acceptable

explanation given by him as per the evidence brought on

record. Therefore, the explanation so offered by the

accused is not clear as to whether he is not responsible for

the death of the deceased.

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38. The conduct of the accused that he was

proclaiming in the village that he had killed Balbheem,

who was eve teasing his daughter and if anybody eve

teases his daughter, the same fate would happen as that

of a deceased Balbheem also contributes his culpability in

committing crime. The conduct of the accused is stated by

the witnesses examined of proclaiming the said

information in the village. The medical evidence shows

that, deceased died not because of consuming any poison.

He died because of the injuries to his genital area. It is the

opinion of the doctor that the deceased had sustained

injuries to his genital area with a sharp weapon.

Something must have been touched to the genital area

when this deceased was thrown in the well, as per the

case of the prosecution. This clearly shows that the

deceased had sustained the said ante-mortem injury to his

genital area. He was thrown in the well as per the

evidence brought on record, and recovered the articles

such as mobile phone and purse belonging to deceased

from the possession of accused No.1 under Ex.P9 and

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P10, the Panchanamas. It is not explained as to how the

accused came in possession of these articles belonging to

the deceased. PW.8 Ashok speaks about seizure of these

articles i.e., Mos. No.4 and 5, at the instance of the

accused. PW.3 is a person who heard about the

proclaiming of the accused in the village about causing the

death of a deceased Balbheem by him. PW.4 also speaks

in similar words. The evidence of PW6 clinchingly

establishes that it was he who pacified the quarrel before

the death of the deceased. Thus the presence of the

appellant/accused at that time, at the said well, when he

threw the deceased, is demonstrated from the evidence of

PW.6 Adarsh.

39. In Section 313 of IPC statement, though

accused has stated that, he is not involved in the crime,

the other evidence if read together, do establish that, it

was the accused who is involved in the commission of

crime. When the presence of accused is stated by PW4,

who has seen the deceased with the company of the

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accused, then the important conclusion, we could reach is

that, it is accused who is responsible in the committing of

crime from that place where the deceased had gone. In

the case of Darshan Singh v. State of Punjab, reported

in (2024) 3 SCC 164, the Hon'ble Apex Court has held as

under:

"19. In Trimukh [Trimukh Maroti Kirkan v. State of Maharashtra, (2006) 10 SCC 681 : (2007) 1 SCC (Cri) 80], this Court has pointed out that there are two important consequences that play out when an offence is said to have taken place in the privacy of a house, where the accused is said to have been present. Firstly, the standard of proof expected to prove such a case based on circumstantial evidence is lesser than other cases of circumstantial evidence. Secondly, the appellant would be under a duty to explain as to the circumstances that led to the death of the deceased. In that sense, there is a limited shifting of the onus of proof. If he remains quiet or offers a false explanation, then such a response would become an additional link in the chain of circumstances".

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40. Here in this case, the accused has offered a

false explanation. Therefore, in terms of Section 106 of

the Indian Evidence Act, the appellant/accused has not

discharged his burden that he is not responsible for the

homicidal death of the deceased. There is also evidence of

PWs.4 and PW.6, adduced by the prosecution to hold that,

the appellant/accused had the clear motive to eliminate

the deceased as he was eve teasing his daughter. Even

the juvenile offender was also a person who informed the

parents of the Pallavi. He brought them from the place

where the deceased and Pallavi were talking with each

other. At that time, when the juvenile offender noticed the

presence of the deceased as well as Pallavi, he inquired

Pallavi about whether she is loving him or Balbheem.

Being enraged by the same, he must have brought the

accused to the said place. Thus, we are of the considered

opinion that the prosecution has been able to prove its

case beyond reasonable doubt that the accused No.1, with

the aid of the accused juvenile offender, must have thrown

deceased Balbheem into the well. When deceased came in

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contact with the sharp object, he must have sustained

such an injury and died before he reached the water in the

well. Therefore, his dead body was found floating within 24

hours of committing crime. It is not the case of drowning.

When the death had occurred before it reaches water in

the well, the dead body would float as per the medical

jurisprudence. In our considered opinion, the observation

of the trial Court with regard to the occurrence, motive to

commit a crime and the evidence being purely

circumstantial nature, the medical evidence becomes of

less consequence. The trial Court has considered all the

consistent testimonies of the prosecution witnesses and

has rightly convicted the accused. It has dealt with the

charge framed against the accused and the grounds so

urged by the appellant now are not dispelled in view of the

acceptable evidence produced by the prosecution.

41. For the reasons herein mentioned above, the

appeal filed with the appellant fails and is liable to be

dismissed.

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42. Resultantly, we pass the following:

ORDER

(i) Appeal is dismissed.

(ii) The judgment of conviction and order of

sentence dated 21/28.10.2017 by the II

Additional District and Session Judge,

Bidar sitting at Humnabad in Session Case

No.89/2016, is hereby confirmed.

(iii) Since the accused is in judicial custody

from the date of arrest i.e., 25.12.2015,

the set off is given with regard to

substantial sentence imposed on him as

provided under Section 428 of Cr.P.C.