Karnataka High Court
Sri. Shivabasavegowda vs State Of Karnataka on 4 September, 2024
Author: K.Somashekar
Bench: K.Somashekar
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CRL.A No. 773 of 2018
C/W CRL.A No. 195 of 2018
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
TH
R
DATED THIS THE 04 DAY OF SEPTEMBER, 2024
PRESENT
THE HON'BLE MR JUSTICE K.SOMASHEKAR
AND
THE HON'BLE MR JUSTICE S RACHAIAH
CRIMINAL APPEAL NO. 773 OF 2018 (C)
C/W
CRIMINAL APPEAL NO. 195 OF 2018 (C)
IN CRL.A No. 773/2018 (C)
BETWEEN:
SMT UMA
W/O CAUVERY GOWDA,
R/AT CHIKKEGOWDANADODDI VILLAGE,
UYYAMBALLI HOBLI,
KANAKAPURA TALUK.
...APPELLANT
(BY SRI. VEERANNA G TIGADI, ADVOCATE)
AND:
Digitally
signed by
NARAYANA STATE OF KARNATAKA BY
UMA
SATHANUR POLICE STATION,
Location:
HIGH COURT RAMANAGARA DISTRICT.
OF ...RESPONDENT
KARNATAKA
(BY SRI. VIJAYAKUMAR MAJAGE, SPP-II)
THIS CRL.A. FILED U/S.374(2) CR.P.C PRAYING TO SET
ASIDE THE JUDGMENT AND ORDER OF CONVICTION AND
SENTENCE DATED 19.01.2018 PASSED BY THE II ADDITIONAL
DISTRICT AND SESSIONS JUDGE, RAMANAGARA TO SIT AT
KANAKAPURA IN S.C.NO.5017/2013 - CONVICTING THE
APPELLANT/ACCUSED NO.1 FOR THE OFFENCE P/U/S 302 AND
201 R/W 34 OF IPC.
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CRL.A No. 773 of 2018
C/W CRL.A No. 195 of 2018
IN CRL.A NO. 195/2018 (C)
BETWEEN:
SRI. SHIVABASAVEGOWDA
AGED ABOUT 30 YEARS
S/O. EEREGOWDA
AGRICULTURIST
RESIDENT OF CHIKKEGOWDANADODDI VILLAGE
UYYAMBALLI HOBLI,
KANAKAPURA TALUK.
(NOW UNDER DURESS AT THE CENTRAL PRISON
BANGALORE).
...APPELLANT
(BY SRI. C V NAGESH, SR. ADVOCATE FOR
SRI. RAGHAVENDRA K, ADVOCATE)
AND:
STATE OF KARNATAKA
BY THE STATION HOUSE OFFICER,
SATHANUR POLICE STATION,
KANAKAPURA TALUK,
RAMANAGARA DISTRICT,
REPRESENTED BY THE
SPECIAL PUBLIC PROSECUTOR.
...RESPONDENT
(BY SRI. VIJAYAKUMAR MAJAGE, SPP-II)
THIS CRL.A. FILED U/S.374(2) CR.P.C PRAYING TO SET
ASIDE THE JUDGMENT DATED 19.01.2018 PASSED BY THE II
ADDITIONAL DISTRICT AND SESSIONS JUDGE, RAMANAGARA
TO SIT AT KANAKAPURA IN S.C.NO.5017/2013 - CONVICTING
THE APPELLANT/ACCUSED NO.2 FOR THE OFFENCE P/U/S 302
AND 201 R/W 34 OF IPC.
THESE APPEALS, COMING ON FOR FINAL HEARING, THIS
DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:
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CRL.A No. 773 of 2018
C/W CRL.A No. 195 of 2018
CORAM: HON'BLE MR JUSTICE K.SOMASHEKAR
and
HON'BLE MR JUSTICE S RACHAIAH
ORAL JUDGMENT
(PER: HON'BLE MR JUSTICE K.SOMASHEKAR)
Criminal Appeal No.773/2018 and Criminal Appeal
No.195/2018 have been preferred by the appellants / accused
Nos.1 and 2 under Section 374(2) of the Code of Criminal
Procedure (for short 'Cr.P.C.') challenging the impugned
judgment of conviction and order on sentence rendered by the
learned II Additional District and Sessions Judge, Ramanagara,
sitting at Kanakapura, (for short 'trial Court') in
S.C.No.5017/2013 for the offences punishable under Sections
302, 201 r/w Section 34 of Indian Penal Code, 1860 (for short
'IPC'). Both the appellants / accused Nos.1 and 2 namely Smt.
Uma and Shri Shivabasavegowda have been convicted by the
trial Court for the offences punishable under Sections 302, 201
r/w 34 of IPC. Both accused Nos.1 and 2 were sentenced to
undergo rigorous imprisonment for life and to pay a fine of
Rs.30,000/- each for the offence under Section 302 r/w 34 of
IPC, in default of payment of fine, to undergo rigorous
imprisonment for a period of one year. For the offence under
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Section 201 r/w 34 of IPC, both accused Nos.1 and 2 were
sentenced to undergo rigorous imprisonment for a period of
seven years and to pay a fine of Rs.20,000/- each, in default of
payment of fine amount, the accused shall further undergo
rigorous imprisonment for a period of six months. The
sentences awarded against the aforesaid accused persons were
ordered to run concurrently.
2. Heard learned counsel Shri Veeranna G.Tigadi for
appellant / accused No.1 namely Smt. Uma in Criminal Appeal
No.773/2018 and so also learned Senior Counsel Shri
C.V.Nagesh for learned counsel Shri Raghavendra.K. for
appellant / accused No.2 namely Shri Shivabasavegowda in
Criminal Appeal No.195/2018. Perused the impugned
judgment of conviction and order on sentence rendered against
both the accused Nos.1 and 2, consisting of evidence of PWs.1
to 19, documents at Exs.P1 to P24, and material objects
marked as M.Os.1 to 8.
3. The factual matrix of these appeals is as under:-
It is the case of the prosecution that the deceased namely
Smt. Doddadevamma had lent the hand loan of Rs.25,000/- to
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the accused No.1 - Smt. Uma and the deceased was
demanding the accused No.1 to repay the aforesaid loan
amount. Accused No.1 stated that she had sustained a huge
loss in the silk business and after selling the silkworms, would
pay the amount and on 28.01.2013, the deceased demanded
accused No.1 pay back the amount, and accused No.1 assured
to pay the amount and took the deceased to her house at
around 6.45 p.m. But, even after 8.00 p.m., the deceased did
not return to her house. Therefore, the family members of the
deceased started searching for her, but they could not find her
and their efforts went in vain. On 29.01.2013, around 1.30
p.m., the complainant received an information that the
deceased had been murdered at the Silkworm Cocoons house
of accused No.1, and thereafter only, the complainant lodged
the complaint before the police having jurisdiction to deal with
the matter and based upon the complaint filed by the
complainant, the criminal law was set into motion by recording
the FIR under Section 154 of Cr.P.C. Subsequent to registering
the case against accused Nos.1 and 2, the Investigating Officer
has taken up the case for investigation and conducted the
investigation thoroughly and laid the charge sheet against the
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accused Nos.1 and 2 before the committal Court. Subsequent
to laying up of charge sheet against the accused Nos.1 and 2,
wherein the committal Court had passed a committal order
keeping in view Section 209 of Cr.P.C., and wherein this order
had been passed by the Addl. Civil Judge and JMFC,
Kanakapura and committed the case to the District and
Sessions Court, Ramanagara for trial, subsequently, heard on
charge and charges were read over to the accused Nos.1 and 2
in the language known to them and wherein they have pleaded
not guilty, but claim to be tried, accordingly, the plea of the
accused have been recorded separately.
4. Subsequently, in order to prove the guilt against
the accused, the prosecution, in all, examined PWs.1 to 19 and
got marked several documents at Exs.P1 to P24 and so also got
marked material objects as per M.Os.1 to 8 and closed its case.
5. Subsequent to closure of the evidence of the
prosecution, the accused were subjected to examination as
contemplated under section 313 of Cr.P.C., for enabling them
to rebut the incriminating evidence / statement against them,
whereby the accused have denied the testimony of the
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prosecution witnesses, but no defence evidence has been let in
by them as contemplated under section 233 of Cr.P.C.
Accordingly it was recorded.
6. Subsequently, the trial Court heard the arguments
advanced by the learned Public Prosecutor and also the defence
counsel.
7. The Trial Court had delved in detail on the evidence
of P.W.1, who is the author of the complaint as per Ex.P1 and
who is none other than the son of the deceased
Doddadevamma and he has stated in his evidence that his
mother died on 28.01.2013. His mother had paid Rs.25,000/-
to accused No.1 - Uma as a hand loan, but the said Uma had
not returned the aforesaid loan amount back to his mother,
hence, his mother used to demand the money frequently, even
then, accused No.1 did not repay the aforesaid amount. Later,
on 28.03.2013 i.e., on Monday at 4.00 p.m., his mother was
sitting on the pial, by that time, accused No.1 came there and
his mother demanded the money, for that accused No.1 saying
that she would pay back the amount and took his mother to her
house. But his mother did not return back during the said
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night, so also on the next day morning. Satanur Police at
about 2.00 p.m. found his mother's dead body beneath
mulberry leaves at the scene of crime i.e., silkworm cocoon
house. He noticed that his mother was killed by tying a rope
around her neck and pulling it, there were blood stains. Police,
public and Dy.S.P. had gathered there. He lodged a complaint
as per Ex.P1 and the police conducted mahazar as per Ex.P2
and the Investigating Agency seized blood stained cement piece
as M.O.1, without blood stain cement piece as M.O.2, rope as
M.O.3, langa as M.O.4, saree as M.O.5, blouse as M.O.6,
sample of mulberry leaves as M.O.7 and tarpal as M.O.8.
These are all the material objects that have been seized by the
Investigating Officer during the course of conducting seizure
mahazar as per Ex.P2 in the presence of the panch witnesses.
This is the evidence as let in by P.W.1, who is the author of the
complaint at Ex.P1, his evidence is circumstantial evidence in
nature. This witness has been subjected to cross-examination
thoroughly on the part of the defence side, but nothing
worthwhile has been elicited and these contentious contentions
are taken by the learned counsel for the accused No.1 and so
also by the learned Senior Counsel for accused No.2.
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8. The evidence of P.W.1 runs contrary to the
evidence of P.W.2. P.W.2 who is the husband of the deceased,
deposed that three years back in the month of January,
accused No.1 - Uma came to their house and by saying that
she will repay the hand loan, took his wife to her house. His
wife had told that accused No.1 had to pay Rs.30,000/-. He
deposed that he does not know what she did with his wife
during the night as his wife did not return home. Later on next
day, at 12.00 noon, he came to know that his wife is murdered.
Further, P.W.2 deposed that he does not know who had
committed the murder, he does not know who were available in
the house where the murder was committed, his wife's body
was covered with leaves, his children were searching for their
mother, but the police inquired him and conducted mahazar,
but the police did not take his statement with regard to the said
incident.
9. P.W.3 who is none other than another son of the
deceased Doddadevamma and P.W.2, but he has stated in his
evidence that his mother had died 2 years ago and his parents
were staying separately, his brother and sister-in-law were also
staying separately, one land was given to his mother by his
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father, the same was sold and money was given to accused
No.1 - Uma, but accused No.1 did not repay the amount to his
mother, hence, she demanded accused No.1 frequently to give
back her money. Further, he deposed that on one day i.e.,
28.01.2013 on Monday at 6.00 p.m., accused No.1 came and
took the deceased to her house, but instead of money, on the
next day, the dead body of his mother was found at the scene
of crime beneath mulberry leaves. Sathanur Police traced and
found the body. The police conducted mahazar at the spot and
seized the clothes worn by his mother. This is the evidence as
let in by P.W.3.
10. PWs.2 and 3 have been subjected to cross-
examination at length, but nothing worthwhile has been elicited
in conformity with the narration made in the complaint at Ex.P1
and these contentious contentions are taken by the learned
counsel for the accused No.1 and so also by learned Senior
Counsel for accused No.2.
11. However, the evidence of P.Ws.1, 2 and 3 runs
contrary to the evidence of P.W.4 who is none other than the
daughter-in-law of deceased Doddadevamma and she has
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specifically stated in her evidence that her husband and also
her brother-in-law and sister-in-law were staying separately,
and her parents-in-law were also living separately. These are
all the evidence that have been let in by P.W.4.
12. P.W.5 who is none other than another daughter-in-
law of the deceased Doddadevamma. She has deposed in her
evidence that her mother-in-law had paid Rs.25,000/- to the
accused No.1, but the said amount was not returned. The
incident is said to have happened in the year 2013. The
accused No.1-Uma by coming to their house saying that she
would pay back the money, took her mother-in-law. Even after
9.00 p.m., when her mother-in-law did not return home, they
searched for her and gave a complaint to the police. When
they had been to the house of the accused No.1 in the night,
she did not open the door saying that at that time, there was
'Rahu' in her house. These are all the evidence let in by P.W.5
in her evidence.
13. But the evidence of P.W.5 runs contrary to the
evidence of P.W.6 inclusive of evidence of PWs.1 to 4. P.W.6
deposed that accused Nos.1 and 2 were in friendship, but both
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were staying in opposite houses. During the lifetime of
deceased Doddadevamma, she had paid Rs.25,000/- to the
accused No.1 and accused No.1 by saying that she would pay
back the amount, took the deceased to the scene of crime i.e.,
her house on 28.01.2013. When the deceased did not return
back, the family members of the deceased telephoned him and
all of them searched surrounding areas. They even went to the
house of accused No.1 and enquired, but accused No.1 said
that the deceased had already gone away from her house and
refused to open the door saying that "Rahu" was there in her
house. Thereafter, they lodged a complaint before Sathanur
Police Station. On the next day, P.W.6 went along with police
to the silkworm cocoons house of accused No.1 and the police
found the dead body of the deceased Doddadevamma beneath
mulberry leaves bundle.
14. These are all the evidence let in by the prosecution.
P.W.1 to P.W.6 even on being subjected to cross-examination,
they did not state anything about the allegations made in the
complaint - Ex.P1. P.W.7 - Nanjunda, P.W.8 - Eeraiah, P.W.9
- Shivakumar, P.W.10 - Rajesh, P.W.16 - Kumara and P.W.17
- Shivakumara have been subjected to examination on the part
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of the prosecution, but they did not support the version of the
statement. The statements of PWs.7 to 9 have been marked as
Exs.P3 to P5 and their evidence runs contrary to the evidence
of PWs.1 to 6. These are the contentious contentions as
taken by the learned counsel Shri Veeranna G.Tigadi for the
accused No.1 and so also by learned Senior Counsel Shri
C.V.Nagesh appearing for learned counsel Shri K.Raghavendra
for accused No.2.
15. P.W.11 - Sathish who is the Investigating Officer
who had conducted investigation in part based upon the
complaint at Ex.P1. Ex.P7 is the inquest panchanama held over
the dead body and also subjected to P.F. bearing No.16/2013
marked at Ex.P8, seizure mahazar - Ex.P9 wherein the
property has been seized and subjected to P.F. bearing
No.17/2013. These are the evidence let in on the part of the
prosecution, but the contents of mahazar at Ex.P2, even
though it has been held by the Investigating Officer in the
presence of the panch witnesses, but there is no worthwhile
evidence let in by the prosecution to prove the case and secure
conviction against accused Nos.1 and 2 for serious offence
under Sections 302 r/w 34 of IPC. Section 34 of IPC relates to
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common intention, but the motive behind eliminating the
deceased Doddadevamma is that the deceased Doddadevamma
had tendered a hand loan of Rs.25,000/- to accused No.1 -
Uma, but Uma did not return the said amount, but the
deceased was frequently demanding accused No.1 - Uma to
repay the said amount and abusing accused No.1 - Uma in a
filthy language, due to which accused No.1 being fed up, along
with her friend-accused No.2, killed the deceased
Doddadevamma. These are the motive factors for accused
Nos.1 and 2 to eliminate the deceased Doddadevamma as
narrated in the complaint and also narration has been made in
the theory of the prosecution. These are the contentious
contentions as taken by the learned counsel Shri Veeranna
G.Tigadi for the accused No.1 and so also by learned Senior
Counsel Shri C.V.Nagesh appearing for learned counsel Shri
K.Raghavendra for accused No.2.
16. However, P.W.19 being the Investigating Officer
and who has thoroughly conducted the investigation and
keeping in view Sections 161 and 162 of Cr.P.C., wherein he
has laid charge sheet against the accused before the committal
Court. Subsequently, the case was committed to the Court of
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Sessions and the Trial Court had framed the charges for the
offence under Sections 302 r/w 34 of IPC and so also for the
offence under Section 201 of IPC relating to causing
disappearance of evidence of offence to screen the offender
from legal punishment. But the conviction has been held
against the accused on both counts of offences whereas the
prosecution has let in evidence by subjecting PWs.1 to 6 to
examination, but there is no whisper in their evidence about
the role of accused No.2 and this contention has been taken by
learned Senior Counsel for accused No.2 in this matter.
However, the evidence of P.Ws.1 to 6 runs contrary to the
evidence of P.Ws.7, 8 and 9 and they are independent
witnesses. They have given evidence, but they have disowned
their own statements at Exs.P3, P4 and P5. However, the
Investigating Officer during the course of investigation,
conducted inquest panchanama as per Ex.P7 and mahazars as
per Exs.P15, P17 and so also during the course of evidence, the
Investigating Officer has recorded voluntary statements of
accused No.1 as per Ex.P16 and accused No.2 as per Ex.P18.
These documents were got marked on the part of the
prosecution. But, merely because these documents were got
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marked on the part of the prosecution, it cannot be said that
the prosecution has proven the guilt against accused by
facilitating worthwhile evidence and also acceptable evidence.
17. Further, learned counsel Shri Veeranna G.Tigadi for
accused No.1 - Uma has taken us through the evidence of the
witnesses, more importantly, the motive behind eliminating the
deceased Doddadevamma, but the motive factor has not been
established by the prosecution by facilitating worthwhile
evidence to secure conviction for the serious offence punishable
under Section 302 of IPC and equally, for the offence
punishable under Section 201 of IPC relating to the
disappearance of evidence of offence to screen the offender
from legal punishment. But the dead body of the deceased
Doddadevamma was found in the scene of crime i.e., silkworm
cocoons house belonging to accused No.1 and moreso, the
dead body of Doddadevamma was covered with mulberry
leaves. Merely because the dead body was found at the scene
of crime, it cannot be said that there was direct
acknowledgment of guilt against accused No.1. Unless there is
positive evidence let in by the prosecution, it cannot be
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concluded that the prosecution has proven the guilt against the
accused beyond all reasonable doubt.
18. But, P.W.13 being the Doctor has conducted the
autopsy and issued post-mortem report as per Ex.P14, but
even on a cursory glance of the entire contents made in the
post-mortem report - Ex.P14 and the letter of Rajarajeshwari
Hospital regarding the opinion and examination of the plastic
rope M.O.3, but there was no fracture of cartilage or even to
the extent of hyoid bone. That itself creates a doubt whether
the deceased Doddadevamma was done to death in the scene
of crime or not and this doubt always arises in the prosecution
theory and when the doubt has arisen in the theory of
prosecution, the benefit of doubt should always go to the
accused.
19. Whereas the prosecution is required to prove the
guilt against the accused by facilitating worthwhile evidence in
respect of Section 302 of IPC. In respect of the deceased
Doddadevamma met with homicidal death, that the death is
caused by the accused or was the consequence of the act of the
accused, that the accused did so with an intention of causing
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the death, or the accused knew that their act was likely to
cause death and the accused inflicted injury around the neck of
the deceased which is sufficient in the ordinary course of nature
to cause death. But, merely because there is a ligature mark
around the neck of deceased Doddadevamma, it cannot be said
that the prosecution has proven the guilt against the accused
relating to ingredients of Section 302 of IPC.
20. In this context, it is relevant to refer to the
evidence of P.W.1, even at the cost of repetition. P.W.1 is
none other than the son of the deceased and he has filed a
complaint as per Ex.P1. Even on dwelling in detail about the
contents stated in Ex.P1, which discloses about "last seen
theory", however, the "last seen theory" is required to be
established by the prosecution by facilitating worthwhile
evidence. But on the cursory glance of evidence of P.W.1, who
is the author of the complaint at Ex.P1, and even on the
cursory glance of evidence of P.W.2, who is the husband of the
deceased Doddadevamma, their evidence runs contrary to each
other and there are some inconsistencies and contradictions to
prove the guilt against the accused Nos.1 and 2 and those
accused having the intention to eliminate the deceased
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Doddadevamma and killed her by putting rope, which is termed
as ligature material, around the neck of the deceased, but the
evidence let in by the prosecution and even on a cursory glance
of evidence of PWs.1 to 6 and further evidence of PWs.7, 8 and
9, but their evidence runs contrary to each other and their
evidence does not inspire confidence to prove the guilt against
the accused for securing the conviction.
21. On the contrary, learned SPP-2 for respondent -
State in this matter has taken us through the theory set up by
the prosecution to prove the guilt against the accused, but
Ex.P1 has been filed by P.W.1 being the son of the deceased
Doddadevamma and based upon his complaint, criminal law
was set into motion and even the FIR has been recorded as
taking in view Section 154 of Cr.P.C., and subsequent to
registration of the crime, the Investigating Officer has taken up
the case for investigation and during the investigation, seizure
mahazar has been conducted and seized materials marked at
M.Os.1 to 8 in the presence of panch witnesses and also seized
plastic rope from R.R. Hospital and subjected to P.F. bearing
No.17/2013. During the course of investigation, accused No.1
- Uma was also traced by the Investigating Agency and
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similarly, the Investigating Agency traced accused No.2 -
Shivabasavegowda.
22. But, learned SPP-2 in this matter submits that
though case rests upon circumstantial evidence, but accused
Nos.1 and 2 have caused the death of the deceased by putting
plastic rope around the neck of the deceased and the dead
body was found in the scene of crime i.e., silkworm cocoons
house of accused No.1 - Uma who had borrowed hand loan of
Rs.25,000/- from the deceased Doddadevamma and the
deceased Doddadevamma was demanding her frequently to
repay the loan amount and there was some exchange of words
between the deceased and accused No.1 and the deceased
Doddadevamma who was abusing accused No.1 in a filthy
language and because of this reason only, accused Nos.1 and 2
with a common intention to eliminate the deceased
Doddadevamma, in order to escape from repaying hand loan of
Rs.25,000/- to deceased Doddadevamma, these are all the
contentions taken up by learned SPP-2 in this matter and
moreso, accused No.1 had given voluntary statement as per
Ex.P16 and accused No.2 had given voluntary statement as per
Ex.P18, but on a cursory glance of the evidence of the
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prosecution witnesses, that too evidence of PWs.1 to 6 and
even in the evidence of P.W.11 - Sathish, who is Investigating
Officer who conducted the investigation in part and wherein
criminal law was set into motion by recording the FIR and also
receipt of complaint at Ex.P1 and so also the evidence of
P.W.19, who is Investigating Officer and wherein investigation
has been done thoroughly and laid the charge sheet against the
accused, but, the prosecution has let in evidence stated supra
and moreso, the prosecution has proven the guilt against the
accused beyond all reasonable doubt and the Trial Court had
appreciated the evidence and rightly arrived at a conclusion
that the prosecution has proved the guilt against the accused
and rendered sentence for the offence under Section 302 r/w
34 of IPC.
23. But, "last seen theory" in this matter has been
taken up, but the material witnesses have said in their evidence
clearly and categorically that the accused No.1 - Uma had
come to the house of the deceased and took her to her house
and caused the death of the deceased and the dead body was
made to sit nearby the window and was covered with mulberry
leaves. These are all the testimony on the part of the
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prosecution has been let in, but it cannot be discarded as
pointed out during the evidence of the prosecution and there is
no proper explanation by the side of the defence in respect of
accused Nos.1 and 2 about the dead body of the deceased
Doddadevamma was found place in the scene of crime, but the
evidence of PWs.7, 10 and 16 on the part of the prosecution,
who turned hostile, but their evidence on the part of the
prosecution it is in terms of circumstantial in nature and so it
prevails and merely because these witnesses have turned
hostile, their evidence cannot be completely brushed aside
because accused Nos.1 and 2 have committed murder of the
deceased and the same has been established by the
prosecution by facilitating worthwhile evidence. But, on the
scrutiny of the materials placed on the part of the prosecution
and even conduct of accused Nos.1 and 2, the Trial Court has
rightly come to the conclusion and recorded conviction against
accused Nos.1 and 2 for the offence under Section 201 r/w
Section 34 of IPC. Therefore, in these appeals, it does not call
for intervention on the premise that the prosecution has not
been able to prove the guilt against the accused beyond all
reasonable doubt. On this premise, learned SPP-2 in these
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matters submits that the appeals preferred by the appellants /
accused Nos.1 and 2 do not have any acceptable grounds for
seeking intervention and consequently, seeks for dismissal of
these appeals and to confirm the judgment of conviction and
order on sentence rendered by the Trial Court.
24. Whereas learned counsel for the appellant /
accused No.1 Shri Veeranna G. Tigadi and also learned Senior
Counsel Shri C.V.Nagesh appearing for learned counsel Shri
K.Raghavendra for appellant / accused No.2 have taken us
through the evidence let in by the prosecution and delved into
the details about the evidence and moreso P.Ws.1 to 6 who
have been subjected to examination, but the entire case rests
on circumstantial evidence and moreso, no witnesses have
been coming on the part of the prosecution to let in their
evidence to secure conviction, but merely because they have
been subjected to cross-examination, it cannot be said that the
prosecution has proven the guilt against the accused beyond all
reasonable doubt. It is further contended that though the
prosecution has let in evidence, there is no strong and
convincing evidence on the part of the prosecution to prove the
guilt against the accused and secure conviction. On this
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premise, learned counsel for the appellant / accused No.1 and
so also learned Senior Counsel for accused No.2 contend that
these appeals required to be allowed and consequently, set
aside the judgment of conviction and order on sentence
rendered by the Trial Court and consequent upon that, accused
Nos.1 and 2 deserve for acquittal for the aforesaid offences.
25. Whereas learned counsel for the appellant /
accused No.1 has facilitated the judgment rendered by the
Hon'ble Supreme Court of India in Criminal Appeal
No.1348/2013 in the case of SHIVAJI CHINTAPPA PATIL v.
STATE OF MAHARASHTRA1. Whereas in this judgment, the
Hon'ble Supreme Court of India referred the judgments of G.
PARSHWANATH v. STATE OF KARNATAKA2, ESWARAPPA
@ DOOPADA ESWARAPPA v. STATE OF KARNATAKA3,
SUBRAMANIAM v. STATE OF TAMIL NADU & Another4,
GARGI v. STATE OF HARYANA5, BABU v. STATE OF
Crl.A.No.1348/2013 dated 02.03.2021 - LL 2021 SC 125 - WWW.LIVELAW.in
(2010) 8 SCC 593
(2019) 16 SCC 269
(2009) 14 SCC 415
(2019) 9 SCC 738
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KERALA6, DEVI LAL v. STATE OF RAJASTHAN7 and STATE
OF RAJASTHAN v. KASHI RAM8.
26. In SHIVAJI CHINTAPPA PATIL case, referred to
supra, the Hon'ble Supreme Court in para 11 of the judgment,
made an observation that,
"The law with regard to conviction on the basis of
circumstantial evidence has been very well crystalized in the
judgment of this Court in the case of SHARAD BIRDHICHAND
SARDA v. STATE OF MAHARASHTRA9 whereas in para
No.153 made an observation that,
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 & Anr. v. State of Maharashtra (1973)
2 SCC 793 where the following observations were made:
(2010) 9 SCC 189
(2019) 19 SCC 447
(2006) 12 SCC 254.
AIR 1984 SC 1622 : (1984) 4 SCC 116
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"29. ... 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 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.
154. These five golden principles, if we may say so,
constitute the panchsheel of the proof of a case based
on circumstantial evidence."
In the light of these guiding principles, let us
examine the facts in the present case.
27. But, in this case, the prosecution has examined
PWs.11 to 19. PWs.11 and 19 are the Investigating Officers in
parts. P.W.19 has been subjected to examination thoroughly
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wherein he has conducted investigation and charge sheet is laid
against the accused and during investigation, he has conducted
several mahazars and also recorded voluntary statements of
accused Nos.1 and 2 and based upon the voluntary statements,
investigation has been carried out by the Investigating Agency.
28. But, in the present case, the dead body of the
deceased Doddadevamma had been subjected to inquest by
the concerned Investigating Agency in the presence of panch
witnesses, and the dead body was sent to autopsy, wherein the
Doctor conducted an autopsy over the dead body and issued
post-mortem report. But, admittedly there are no specific
marks on the body of Doddadevamma which would suggest that
there was some violence or struggle marks. In any case, the
Medical Expert himself has not ruled out the possibility of
suicidal death, but the dead body was found in the scene of
crime i.e., silkworm cocoon house belonging to accused No.1 -
Uma. But, on the contrary, the post-mortem report indicates
and also specific opinion has been stated by the Doctor who
conducted autopsy over the dead body that the hyoid bone has
not been found to be fractured even though the aforesaid
plastic rope has been put around the neck of the deceased and
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firmly held by the accused persons, in the light of the evidence
on the part of the prosecution. But, the Trial Court has
misinterpreted the evidence let in by the prosecution relating to
the guilt against the accused.
29. In Shivaji Chintappa Patil case, referred to supra,
the Hon'ble Supreme Court referring to the judgment in the
case of Subramaniam (supra), had an occasion to consider a
similar case. But so far as the circumstance that accused Nos.1
and 2 had been living together is concerned, the allegation is
that there was some friendship between accused Nos.1 and 2,
but keeping in view the status of accused Nos.1 and 2 are
concerned, the theory that they have done to death the
deceased Doddadevamma as where the dead body of
Doddadevamma was found place in the scene of crime, but the
Hon'ble Supreme Court referring to the judgment of Gargi
(supra), insofar as the "last seen theory" is concerned, there is
no doubt that the appellant / accused being none other than a
local person has acquainted with the deceased Doddadevamma
and moreso, the accused No.1 had obtained hand loan of
Rs.25,000/- from the deceased Doddadevamma, but merely
because there was some hand loan had been availed and it was
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not returned, it cannot be said that the accused Nos.1 and 2
had the intention to kill the deceased, as narrated in the theory
of the prosecution for securing conviction.
30. However, it is a well-settled law relating to the
scope of Section 106 of the Evidence Act, it does not directly
operate against an accused person, but Section 106 of the
Evidence Act does not absolve the prosecution of discharging
its primary burden of proving the prosecution case beyond
reasonable doubt. It is only when the prosecution has led
evidence which, if believed, will sustain a conviction, or which
makes out a prima facie case, that the question arises for
considering facts on which the burden of proof would lie upon
the accused. But, in the instant case, the prosecution has put
in forth worthwhile evidence to secure conviction, but merely
because the dead body was found place in the scene of crime
i.e., silkworm cocoons house belonging to accused No.1 and
moreso, accused No.1 had obtained hand loan from the
deceased, merely because of this aspect, it cannot be said that
the prosecution has been able to establish the guilt against the
accused beyond all reasonable doubt.
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31. The judgment rendered by the Hon'ble Supreme
Court reported in NIZAM & Another V. STATE OF
RAJASTHAN10. Criminal Trial / Circumstantial evidence - Last
seen together - Theory of - Importance of, in the chain of
circumstances pointing towards guilt of the accused - Such
theory when applicable - Where time gap is long between last
seen and recovery of body - Effect of - Onus under Section
106, Evidence Act - When shifts on to accused - To base
conviction solely on "last seen theory" - Not prudent. The
scope of "last seen theory" has been extensively addressed by
the Hon'ble Supreme Court. It is important link in chain of
circumstances that would point towards guilt of accused with
some certainty - Such theory permits court to shift burden of
proof to accused and he must then offer a reasonable
explanation as to the cause of death of deceased - But, it is not
prudent to base conviction solely on the "last seen theory" -
Such theory should be applied, taking into consideration case of
prosecution in its entirety and keeping in mind circumstances
that precede and follow the point of being so last seen - Where
time gap is long, it would be unsafe to base conviction on "last
(2016) 1 SCC 550
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seen theory" - It is safer to look for corroboration from other
circumstances and evidence adduced by the prosecution.
32. In the aforesaid judgment, the Hon'ble Supreme
Court addressed scope of Section 302 and 201 of IPC. Murder
trial - Circumstantial evidence - Links in the chain of
circumstances - Not established - Many lapses in investigation.
And missing links - Apparent presence of more than one
inferences - Benefit of doubt - Entitlement - Conviction
reversed.
33. The judgment rendered by the Hon'ble Supreme
Court in the case of VIKRAMJIT SINGH @ VICKY v. STATE
OF PUNJAB11. In this judgment, the Hon'ble Supreme Court
has addressed scope of Sections 374 and 386 of IPC. Appeal
against conviction - Held, where two views of a story appear to
be probable, the one that was contended by the accused should
be accepted - Trial Court as well as High Court, after weighing
the probability of both, erred in convicting the appellant opining
that the appellant having not been able to prove his case, the
prosecution case may be accepted. This aspect has been
(2006) 12 SCC 306
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extensively addressed in para Nos.13 and 27 of the aforesaid
judgment. Insofar as Section 106 of Evidence Act, 1872 has
been addressed by the Hon'ble Supreme Court that burden of
proving fact especially within knowledge - Held, does not
relieve the prosecution to prove its case beyond all reasonable
doubt - Only when the prosecution case has been proved the
burden in regard to such facts which was within the special
knowledge of the accused may be shifted to the accused for
explaining the same subject to certain statutory exceptions -
On facts held, strong suspicion legitimately arises that in all
probabilities the accused was guilty of commission of heinous
offences, but applying the well-settled principle of law that
suspicion, however, grave may be, cannot be a substitute for
proof, the same would lead to the only conclusion herein that
the prosecution has not been able to prove its case beyond all
reasonable doubt, the appellant would be entitled to acquittal.
The same has been addressed in para Nos.13, 14, 15 and 16.
In this judgment, Hon'ble Supreme Court has referred to the
judgment in the case of SHARAD BIRDHICHAND SARDA
(referred to supra).
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34. Whereas in the case on hand, it is relevant to refer
judgment of the Hon'ble Supreme Court in the case of BABU v.
STATE OF KERALA (referred to supra). Whereas in this
matter, Hon'ble Supreme Court had extensively addressed the
issue and also offence under Section 302 of IPC relating to
motive suggested was contrary to the evidence produced -
Chain of circumstances found not complete - Acquittal justified.
It has been extensively addressed in para Nos.22 to 24 and 62.
35. In this judgment, the Hon'ble Supreme Court has
addressed the scope of circumstantial evidence in a criminal
trial. Generally - Burden of proof - In case of circumstantial
evidence burden on prosecution is always greater, which is
extensively addressed in para 61 of this judgment. In the
aforesaid judgment, Criminal Trial - Proof - Burden and onus of
proof - reversal of burden of proof - When permissible -
Presumptions of Innocence - as found in Article 21 and 14 of
the Constitution of India. In the aforesaid judgment, in para
No.22, regarding circumstantial evidence in KRISHNAN V.
STATE, Represented By Inspector Of Police12, this Court
(2008) 13 SCC 430
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after considering large number of its earlier judgments
observed as follows:
"This Court in a series of decisions has consistently held
that when a case rests upon circumstantial evidence,
such evidence must satisfy the following tests:
(i) the circumstances from which an inference of guilt is
sought to be drawn, must be cogently and firmly
established;
(ii) those circumstances should be of definite tendency
unerringly pointing towards guilt of the accused;
(iii) the circumstances, taken cumulatively, should form
a chain so complete that there is no escape from the
conclusion that with all human probability the crime was
committed by the accused and none else; and
(iv) the circumstantial evidence in order to sustain
conviction must be complete and incapable of
explanation of any other hypothesis than that of the guilt
of the accused and such evidence should not only be
consistent with the guilt of the accused but should be
inconsistent with his innocence."
In the aforesaid judgment, the Hon'ble Supreme Court
addressed issue relating to Burden of Proof and Doctrine of
Innocence. Every accused is presumed to be innocent unless
the guilt is proved. The presumption of innocence is a human
right. However, subject to statutory exceptions, the said
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principle forms the basis of criminal jurisprudence. For this
purpose, the nature of the offence, its seriousness and gravity
thereof have to be taken into consideration. The Courts must
be on guard to see that merely on the application of the
presumption, the same may not lead to any injustice or
mistaken conviction. Statutes like the Negotiable Instruments
Act, 1881; the Prevention of Corruption Act, 1988; and the
Terrorist and Disruptive Activities (Prevention) Act, 1987,
provide for a presumption of guilt if the circumstances provided
in those statutes are found to be fulfilled and shifts the burden
of proof of innocence on the accused. However, such a
presumption can also be raised only when certain foundational
facts are established by the prosecution. There may be
difficulty in proving a negative fact. These are all the reliance
that has been referred in these cases.
36. As where the prosecution has set up a theory
relating to accused No.1 - Uma had obtained a hand loan of
Rs.25,000/- from the deceased Doddadevamma and
subsequently, the deceased had demanded her frequently to
repay the said amount and also there was some exchange of
words in filthy language, the accused No.2 -
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Shivabasavegowda, who had acquainted with accused No.1 and
there was some friendly relationship and these are all the
theories that find a place on the prosecution side. But merely
because there was some friendship between accused Nos.1
and 2, it cannot be said that both the accused had the intention
to eliminate the deceased Doddadevamma and moreso the
prosecution has subjected to examination several witnesses as
PWs.1 to 19, but PWs.1 to 6 have been subjected to
examination and also stood for cross-examination. But nothing
worthwhile has been elicited in their evidence and these are
contentious contentions as stated by the learned counsel Shri
Veeranna G.Tigadi for the accused No.1 and so also by learned
Senior Counsel Shri C.V.Nagesh appearing for learned counsel
Shri K.Raghavendra for accused No.2. On a cursory glance of
the entire evidence of the prosecution, it is said that the
prosecution has even though let in evidence to prove the guilt,
it is the domain vested with the prosecution to prove the guilt
against the accused beyond all reasonable doubt.
37. But in the peculiar facts and circumstances of the
case are concerned, it is relevant to refer Section 134 of the
Indian Evidence Act, 1872 which relates to the number of
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witnesses, but no particular number of witnesses shall in any
case be required for the proof of any fact. But the merit of the
statement is important. It is well-known principle of law that
the reliance can be placed even on the solitary statement of a
witness if the court comes to the conclusion that the said
statement is the true and correct version of the case of the
prosecution. The same has been extensively observed in the
case of RAJA v. STATE13 by the Honorable Supreme Court. It
is the quality of evidence and not the quantity of evidence
which is required to be judged by the Court to place credence
on the statement as referred in the decision of Hon'ble
Supreme Court reported in STATE OF UTTAR PRADESH V.
KISHANPAL14.
38. But, with respect to the plurality of witnesses, in
the matter of appreciation of the evidence of witnesses, it is not
the number of witnesses, but the quality of their evidence that
is important, as there is no requirement in law of evidence that
any particular number of witnesses is to be examined to
prove/disprove a fact. It is time honoured principle that the
evidence must be weighed and not counted. The test is whether
(1997) 2 Crimes 175 (Delhi)
2008 (8) JT 650
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the evidence has a ring of trust, is cogent, credible and
trustworthy or otherwise. The legal system has laid emphasis
on the value provided by each witness, rather than the
multiplicity or plurality of witnesses. It is quality and not
quantity, which determines the adequacy of evidence as has
been provided by Section 134 of the Evidence Act. In this
regard, it is relevant to refer the reliance in the case of
Laxmibai (Dead) through LRs vs. Bhagwantbura (Dead)
through LRs.,15.
39. It is relevant to refer the judgment of the Hon'ble
Supreme Court in the case of Lallu Manjhi v. State of
Jharkhand16 regarding the requirement of number of
witnesses. The law of evidence does not require any particular
number of witnesses to be examined in proof of a given fact.
However, faced with the testimony of a single witness, the
Court may classify the oral testimony of a single witness, into
three categories, namely,
i) wholly reliable,
ii) wholly unreliable and
iii) neither wholly reliable nor wholly unreliable.
AIR 2013 SC 1204
AIR 2003 SC 854
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40. In the first two categories, there may be no
difficulty in accepting or discarding the testimony of a single
witness. The difficulty arises in the third category of cases.
The Court has to be circumspect and has to look for
corroboration in material particulars by reliable testimony,
direct or circumstantial, before acting upon the testimony of a
single witness.
41. However, in the instant case, keeping in view the
evidence let in by the prosecution, which is stated supra, and
also keeping in view the judgments rendered by the Hon'ble
Supreme Court are concerned and even dwelling in detail about
the evidence, but the prosecution has miserably failed to prove
guilt against the accused beyond all reasonable doubt for
securing conviction under Section 302 r/w Section 34 of IPC
and so also for the offence under Section 201 of IPC relating to
the disappearance of the evidence to screen the offender from
the legal punishment. However, accused No.1 is in
incarceration for around 7 years, but keeping in view the
incarceration period, even though it is taken into consideration,
it is to be said that it is in terms of service of sentence. Even on
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that count also, in these appeal matters, it is required for
intervention. But, it is specifically stated that the prosecution
has miserably failed to prove guilt against the accused beyond
all reasonable doubt. Therefore, keeping in view aforesaid
reconsidered findings in these matters, we are of the opinion
that the appellants / accused Nos.1 and 2 deserve to seek
intervention in these appeals and consequently, deserve to
seek for set aside the impugned judgment of conviction
rendered by the Trial Court.
42. Accordingly, we proceed to pass the following:-
ORDER
1. Crl.A.No.773/2018 and Crl.A.No.195/2018
under Section 374(2) of Cr.P.C. are hereby allowed.
2. Consequently, the judgment of conviction and order
of sentence dated 19.01.2018 rendered by the
learned II Additional District and Sessions Judge,
Ramanagara, sitting at Kanakapura, in
S.C.No.5017/2013 for offences punishable under
Section 302, 201 r/w Section 34 of IPC, is hereby
set aside.
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3. The accused Nos.1 and 2 are hereby acquitted for
the aforesaid offences.
4. The bail bonds executed, if any, stands cancelled.
5. The fine amount deposited, if any, by Accused No.2
/ Shri Shivabasavegowda, shall be refunded to
Accused No.2, upon due identification.
6. The accused No.1 / Smt. Uma is ordered to be
released from the custody forthwith, if she is not
required in any other case.
7. The Registry is directed to forward a copy of the
operative portion of the judgment to the
Superintendent of Jail Authority, Central Prison,
Parappana Agrahara, Bengaluru City forthwith for
necessary action to be taken in respect of accused
No.1.
Sd/-
(K.SOMASHEKAR)
JUDGE
Sd/-
(S RACHAIAH)
JUDGE
Bss
