Karnataka High Court
Vijaya @ Vijaykumara vs State Of Karnataka on 28 February, 2025
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 28TH DAY OF FEBRUARY, 2025
PRESENT
THE HON'BLE MR. JUSTICE SREENIVAS HARISH KUMAR
AND
THE HON'BLE MR. JUSTICE K. V. ARAVIND
CRIMINAL APPEAL No.46/2021
C/W
CRIMINAL APPEAL No.811/2018
IN CRL.A. No.46/2021
BETWEEN:
1. K. MANU,
S/O KAMARAJ,
AGED ABOUT 28 YEARS,
RESIDING AT A. K. COLONY,
2ND CROSS, BEHIND GAJANANA RICE MILL,
SAGARA TOWN,
SHIVAMOGGA DISTRICT, PIN-577401.
...APPELLANT
(BY SRI HARSHA G.C., ADVOCATE FOR
SRI NISHIT KUMAR SHETTY, ADVOCATE)
AND:
1 . STATE OF KARNATAKA,
BY LAKKAVALLI POLICE STATION,
REPRESENTED BY STATE
PUBLIC PROSECUTOR,
HIGH COURT BUILDINGS,
BANGALORE-560 001.
...RESPONDENT
(BY SRI VIJAYKUMAR MAJAGE, SPP-II)
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THIS CRL.A. IS FILED UNDER SECTION 374(2) OF
CR.P.C. BY THE ADVOCATE FOR THE APPELLANT PRAYING TO
SET ASIDE THE JUDGMENT AND CONVICTION AND SENTENCE
DATED 16.03.2017 PASSED BY THE II ADDITIONAL SESSIONS
JUDGE, CHIKKAMAGALURU IN S.C.No.112/2015, CONVICTING
THE APPELLANT/ACCUSED No.2 FOR THE OFFENCE P/U/S
120B, 302, 201 R/W 34 OF IPC.
IN CRL.A. No.811/2018
BETWEEN:
1 . VIJAYA @ VIJAYKUMARA,
S/O. R. VENKATESH,
AGED ABOUT 30 YEARS,
R/AT BHAVANI RICE MILL ROAD,
LAKKAVALLI,
TARIKERE TALUK,
CHIKKAMAGALURU DISTRICT-577 128.
...APPELLANT
(BY SRI HARSHA G.C., ADVOCATE FOR
SRI NISHIT KUMAR SHETTY, ADVOCATE)
AND:
1 . STATE OF KARNATAKA
BY LAKKAVALLI POLICE STATION,
REP. BY STATE PUBLIC PROSECUTOR,
HIGH COURT BUILDINGS,
BAGNALORE 560001.
...RESPONDENT
(BY SRI VIJAYKUMAR MAJAGE, SPP-II)
THIS CRL.A IS FILED UNDER SECTION 374(2) OF CR.P.C
BY THE ADVOCATE FOR THE APPELLANT PRAYING TO SET
ASIDE THE JUDGMENT AND ORDER OF CONVICTION DATED
16.03.2017, PASSED BY THE II ADDITIONAL SESSIONS JUDGE,
AT CHIKKAMAGALURU IN S.C.No.112/2015, CONVICTING THE
APPELLANT/ACCUSED No.1 FOR THE OFFENCE P/U/S 120B, 302
AND 201 R/W 34 OF IPC.
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DATE ON WHICH THE APPEALS
WERE RESERVED FOR JUDGMENT 23.01.2025
DATE ON WHICH THE JUDGMENT
WAS PRONOUNCED 28.02.2025
THESE CRIMINAL APPEALS HAVING BEEN HEARD AND
RESERVED FOR JUDGMENT, COMING ON FOR
PRONOUNCEMENT THIS DAY, JUDGMENT WAS DELIVERED
THEREIN AS UNDER:
CORAM: HON'BLE MR. JUSTICE SREENIVAS HARISH KUMAR
and
HON'BLE MR. JUSTICE K. V. ARAVIND
C.A.V. JUDGMENT
(PER: HON'BLE MR. JUSTICE K. V. ARAVIND)
Both these appeals arise out of the judgment of
conviction and order on sentence dated 16.03.2017 in
S.C.No.112/2015 passed by the II Additional Sessions
Judge, Chikkamagaluru.
2. Crl.A.No.811/2018 is by accused No.1 and
Crl.A.No.46/2021 is by accused No.2.
3. The trial Court convicted the accused Nos.1 & 2 for the
offence punishable under Section 120-B r/w Section 34 of
Indian Penal Code ('IPC' for short) and sentenced them to
undergo life imprisonment with fine of Rs.10,000/- each
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and in default of fine, to undergo simple imprisonment for
six months. They are also sentenced to undergo
imprisonment for life for the offence punishable under
Section 302 r/w Section 34 of IPC with fine of Rs.10,000/-
each, in default, to undergo simple imprisonment for six
months. Accused are further sentenced to undergo
simple imprisonment for three years and to pay fine of
Rs.5,000/- each for the offence punishable under Section
201 read with Section 34 IPC and in default, to undergo
rigorous imprisonment for three months. The sentences
are made to run concurrently.
4. The case of the prosecution is that accused No.1 took
the motorbike from his relative N. Kumar to go to
Lakkavalli. Then, he went to Sagar and pledged that bike
to Ananda for Rs.5,000/-. On 28.06.2015, while Ananda
was riding the pledged motorbike, the Motor Vehicle
Inspector checked vehicle documents in Sagara Town.
Ananda stopped and left the vehicle with the Motor Vehicle
Inspector and ran away. The motor Vehicle Inspector
seized the motor bike. Ananda having come to know that
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a stolen vehicle was pledged with him, insisted that
accused No.1 should repay the money, and threatened
accused No.1 with dire consequences. Therefore, accused
No.1 conspired with accused No.2 to finish Ananda. On
15.07.2015 at about 8.30 A.M., accused No.1 went to
Ananda's house and asked Ananda to come with him to
collect the vehicle documents. Ananda and accused No.1
went to B.H. Circle, Sagara Taluk, where accused No.2
was waiting, on a Motor cycle bearing registration No.KA
15/V-7923 that belonged to one Malathesh. Accused
No.1, 2 and Ananda came to Lakkavalli at about 11.00
p.m., and were chatting on bridge near Government Tamil
School at Hirekere of Lakkavalli. Ananda raised his voice,
alleging that accused No.1 had wrongly assured him of
handing over the vehicle documents. Accused No.1 hit
Ananda with boulders on his head causing bleeding
injuries with the intention of killing him. Later accused
No.2 hit Ananda with the same stone on his forehead.
Ananda died on the spot due to these injuries.
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5. Accused Nos.1 & 2, with an intention to screen the
evidence of offence, brought two sarees and a gunny bag
from the house of accused No.1. They wrapped the dead
body of Ananda with gunny bag and dragged the dead
body with saree through the wetland in front of
Government Tamil School and threw the body into
Hirekere lake.
6. One Kumara, while going to his garden land, noticed
the dead body floating in the lake, sensed foul smell and
informed the police. The police registered a criminal case
against the accused for offences punishable under Sections
302, 201 and 120-B r/w 34 of IPC. The trial Court on the
circumstantial evidence held that accused had committed
the offence. The trial Court considered the last seen
theory by P.W.4-wife of the deceased as one of the
circumstances. The other circumstances considered are
possession of motor cycle of Malathesh, seizure of the
same, discovery of murder place and place where dead
body was found, and the sequence of shifting the dead
body. This chain of circumstances are held to be
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established to connect the accused with crime.
Accordingly, the trial court convicted the accused for the
offences punishable under Sections 302, 201 and 120-B
r/w 34 of IPC.
7. Heard Shri G.C.Harsha for Shri Nishit Kumar Shetty,
learned counsel for the appellants-accused and
Shri Vijaykumar Majage, learned SPP-II for the
respondent-State.
8. Shri Harsha, learned counsel for the appellants-
accused submits that as per the testimony of P.W.4-
deceased's wife, accused No.1 took the deceased on the
bike owned by Malathesh on 15.07.2015 at about 8.30
A.M. The dead body was noticed on 21.07.2015 and FIR
was registered. The case has been built against the
accused on the statement of P.W.4 applying last seen
theory. The efforts made by P.W.4 from 15.07.2015 to
21.07.2015 are not explained.
9. It is submitted by learned counsel that considering
the huge time gap of six days from the last seen date to
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the report of death, the principle of last seen theory is not
applicable due to the time difference.
10. Though P.W.4 has tried to explain that she attempted
to file complaint with the police on missing of her husband
after three days, police refused to register the complaint.
The said fact is not proved.
11. The accused leading the police to the place of the
dead body was not based on the voluntary statement.
Before the accused were arrested, the place of the dead
body was within the public knowledge. The place of the
dead body was not within the knowledge of the accused
alone, leading to discovery at the instance of the accused
to attract Section 27 of the Indian Evidence Act.
12. The seizure of stone at the instance of the accused,
alleged for its use in committing the offence is not
proved. The seized stone is not found with any traces of
the deceased's blood corroborating the offence committed
by the accused.
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13. Learned counsel further submits that the dead body
is not properly identified to be of deceased Ananda. The
manner in which the dead body is identified, the process
and outcome of identification is doubtful.
14. As stated by P.W.4, the deceased was taken by
accused No.1 in Malathesh's bike. To prove the above
aspect, Malathesh is not examined by the prosecution.
Hence, the statement of P.W.4 cannot be believed.
15. Shri Vijaykumar Majage, learned SPP-II submits that
P.W.4-deceased's wife has seen the deceased with
accused No.1 while he was taken on the motorbike of
Malathesh on 15.07.2015 at about 8.30 A.M. After this,
no person had seen the deceased till he was found to be
dead. It was for the accused to explain the
circumstance. However, no explanation was offered.
16. It is further submitted that, based on the information
of P.W.4, police apprehended the accused. On the
information provided by the accused, the place of the
incident was identified. The accused guided the police to
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the place of the dead body. The stone used for committing
the offence was recovered at the instance of the accused.
The over all consideration of the circumstances
surrounding the death of the deceased would prove
beyond reasonable doubt that the death was caused by
the accused Nos.1 & 2.
17. We have considered the submissions of learned
counsel for the parties and perused the records.
18. Before proceeding further, it is necessary to analyze
the evidence.
19. P.W.1-N. Kumar, was examined as the first informant
upon the discovery of the dead body. The complaint is
marked as per Ex.P1. As per Ex.P1, on 21.07.2015 at
approximately 6:30 A.M., while proceeding to his farm
near Chowdamma Temple, he noticed a foul odor. Upon
closer observation, he noticed two legs floating and
subsequently found a dead body wrapped in a gunny bag
and a white and brown saree. The witness has partially
turned hostile. In his initial statement, P.W.1 alleged that
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the accused caused the death of the deceased owing to
dispute over a motorcycle. However, during cross-
examination by the defence, he stated that he had seen
the accused for the first time in court and had no
knowledge or information regarding the case. He further
admitted that his deposition was made at the instance of
the police. Additionally, while he denied knowledge of the
contents of the mahazar, he conceded that he had signed
the same at the insistence of the police.
20. P.W.2 is a mahazar witness. However, the testimony
of this witness holds limited relevance to the matter at
hand.
20.1. P.W.3 is a witness to the inquest mahazar. His
testimony is limited to describing the procedure followed in
the removal of the dead body.
20.2. P.W.4 is material evidence examined by prosecution
to establish one of the circumstance, namely, last seen
theory. P.W.4 the wife of the deceased, testified that she
had last seen the deceased in the company of accused
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No.1 on 15.07.2015. According to her evidence, the
deceased was taken by accused No.1 on Malathesh's
motorcycle at approximately 8:30 A.M. on that day.
The case of prosecution is based on the 'last seen' theory,
and the testimony of this witness is a crucial piece of
evidence in support of the prosecution's case.
20.3. P.W.4 testified that her husband did not return
home for two to three days prompting her to enquire with
relatives, but she was unable to gather any information.
Concerned about his absence, she went to Sagar Police
Station with her brother in law Murthy to file a complaint.
However, a police did nor register the complaint and
advised them to wait for two days. It was only after this
period that the police informed her via WhatsApp that
body has been found. P.W.4 identified the body as her
husband based on the clothing he was wearing when he
left home and a distinct mark on his head. She also
mentioned that accused No.1 has taken her husband on
motor cycle of Malathesh at 8.30 A.M. on 15.07.2015.
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During cross-examination, she admitted that her husband
was on alcohol.
20.4. P.W.5, the brother of the deceased, has
corroborated the 'last seen' theory as explained by P.W.4.
This witness further testified to searching for the deceased
along with P.W.4 and making inquiries with relatives. He
also spoke of visiting the Sagara Police Station to file a
complaint, although the police refused to accept the
complaint at that time. P.W.5 stated that a photograph of
the deceased's body was later shown to both P.W.4 and
himself at the police station, and they identified it as that
of the deceased.
20.5. Additionally, P.W.5 provided evidence regarding the
pledge of the deceased's motorcycle and its subsequent
seizure by the R.T.O. During cross-examination, P.W.5
admitted that the deceased was an alcoholic but denied
the suggestion that the deceased's death resulted from
riding the motor cycle in drunken state. The testimony of
this witness largely aligns with that of P.W.4.
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20.6. P.W.6 is witness to Ex.P8-seizure mahazar.
20.7. P.W.7 testified that accused No.1 requested for
loan of Rs.10,000/- by offering a two-wheeler as security.
The witness only provided information regarding the loan
being secured against the bike, which was subsequently
seized from him. P.W.7 is a witness to Ex.P11, the seizure
mahazar. This witness was extensively cross-examined,
and his testimony is not worthy to support the case of
prosecution.
20.8. P.W.8 was examined to establish the pledge of the
bike by accused No.1. The testimony of P.W.8
corroborates the loan of Rs.10,000/- extended to accused
No.1, with the bike being provided as security.
21. The prosecution examined P.W.9 to establish that
accused No.1 is alcoholic. However, nothing has turned
out to support the prosecution. P.W.10 and P.W.11 are
examined to establish the arrest of accused Nos.1 and 2.
21.1. P.W.12 was examined to establish the facts as per
Ex.P11, the spot mahazar and the seizure of M.O.7.
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According to P.W.12, the accused explained that he and
the deceased had a party near the bridge, during which a
heated argument ensued between them. The accused
inflicted grievous injuries with stone to the deceased's
head, resulting in his death. P.W.12 further testified that
accused No.1 went to his house, brought a gunny bag and
a saree and used them to cover the deceased's body. The
body was then dragged with the saree in front of the
Government Tamil School, crossed a fence and was
ultimately thrown into the water.
21.2. P.W.12 further testified regarding the seizure of the
motorcycle from Sanju, which had been pledged by the
accused for Rs.10,000/-. The defence extensively
cross-examined P.W.12, during which it was admitted that
M.O.7 (the stone) was found in the water next to the
bridge and that the stone had been removed by the
accused. It was also confirmed that there were no
bloodstains on M.O.7. A contradiction is evident
regarding the seizure of M.O.7. In his examination-in-
chief, P.W.12 stated that M.O.7 was seized near the
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bridge; however, in cross-examination, it was admitted
that the stone had been removed from the water by the
accused.
21.3. P.W.13 was examined to establish recovery of dead
body from the lake. P.W.14 was examined to prove
ownership of the bike. P.W.14 turned hostile. Though
cross-examined by the prosecution, no worthy information
is elicited. P.W.15 was examined to prove the submission
of FIR to the Magistrate.
21.4. P.W.16 was examined to a limited extent regarding
the fact that the accused had taken food parcel from his
hotel. However, this witness turned hostile and during
cross-examination by the prosecution, no significant
information was elicited.
21.5. P.W.17 speaks about registration of FIR and his
visit to the place of dead body.
21.6. P.W.18, the doctor who conducted the autopsy,
was examined by the prosecution to establish that the
deceased died due to the injury inflicted with the stone,
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M.O.7. The doctor identified a 6x5 cm injury on the
deceased's head, towards the right posterior portion.
In cross-examination, P.W.18 stated that the death
occurred approximately three days prior. When responding
to suggestions made by the defence, P.W.18 admitted that
the exact cause of death could not be conclusively
determined. However, Ex.P23, the post-mortem report,
states that the cause of death is due to head injury.
21.7. P.W.19, the Motor Vehicle Inspector, was examined
to establish the seizure of the motorcycle. According to the
testimony of P.W.19, the motorcycle was handed over to
the Sagara Rural Police Station. Additionally, it was stated
that the vehicle was released in favor of Kumar after the
collection of tax and penalty. A contradiction regarding
the handing over of the motorcycle is noticeable.
21.8. P.W.20, the Investigation Officer, was examined to
explain the course of the investigation. This witness
disclosed that the voluntary statement of the accused was
recorded. It was further stated that accused No.2-Manu
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was arrested based on the involvement in the crime as
disclosed by accused No.1.
21.9. P.W.20 testified regarding the recovery of the stone
from the water. This witness was subjected to extensive
cross-examination by the defence. During the cross-
examination, P.W.20 was confronted with the recording of
the mahazar, which stated that the stone was found near
the bridge. However, P.W.20 explained that M.O.7 was, in
fact, recovered by the accused from the lake.
21.10. Ex.P1 is the intimation of the dead body by P.W.1.
Ex.P2 is the mahazar prepared at the place where the
dead body was found. Ex.P7 is the inquest mahazar.
Ex.P11 is the mahazar drawn upon identifying the place of
the incident, detailing the sequence of events explaining
how the dead body was carried to the lake. Ex.P21 is the
FIR, based on Ex.P1. Ex.P23 is the post-mortem report.
(i) LAST SEEN THEORY
22. The case of prosecution is based on the last seen
theory. According to the testimony of P.W.4, the wife of
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deceased, the deceased was taken by accused No.1 on
Malathesh's bike on 15.07.2015 at 8.30 A.M. After that
date, the dead body of Ananda, was found on 21.07.2015.
The considerable gap between 15.07.2015 and 21.07.2015
cannot be overlooked. When applying the last seen theory,
the Court must exercise caution, taking into account the
surrounding circumstances and the conduct of the person
who last saw the deceased.
22.1. According to the testimony of P.W.4, after the
deceased was taken by accused No.1, she waited for her
husband's return for two to three days. Thereafter, she,
along with her brother-in-law, went to Sagara Police
Station to lodge a complaint. The police advised her to
wait for two days. On 21.07.2015, she received a phone
call along with a photo of the dead body via WhatsApp
from Lakkavalli Police. She visited the police station. She
was taken to the place where the body was found. She
identified the dead body as that of her husband.
22.2. The explanation provided by P.W.4 regarding her
efforts to trace her husband cannot be believed. It is
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human nature that when a person does not return home,
the first step would be to inquire with the person they
were last seen with. According to the testimony of P.W.4,
she made no inquiry whatsoever with accused No.1. It is
not a case where accused No.1 was unknown to P.W.4.
Therefore, it is difficult to accept that P.W.4 waited for
three days without attempting to make any inquiries or
take prompt action.
22.3. Furthermore, it has not been established that
P.W.4, along with her brother-in-law, went to Sagara
Police Station to file person missing complaint. In the
absence of evidence proving this fact, the Court is left with
no alternative but to draw an inference. In light of this, it
can be inferred that P.W.4 made no genuine effort to trace
her missing husband. With these circumstances, the last
seen theory cannot be applied based solely on the
testimony of P.W.4, as her testimony is not corroborated
by any other evidence.
23. It is relevant to consider the principles as laid down
by the Hon'ble Supreme Court on the last seen theory.
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In Dinesh Kumar Vs. State of Haryana, 2023
SCC OnLine SC 564, it is held as under:
"25. The evidence of last seen becomes an
extremely important piece of evidence in a case of
circumstantial evidence, particularly when there is a
close proximity of time between when the accused
was last seen with the deceased and the discovery
of the body of the deceased, or in this case the
time of the death of the deceased. This does not
mean that in cases where there is a long gap
between the time of last seen and the death of the
deceased the last seen evidence loses its value. It
would not, but then a very heavy burden is placed
upon the prosecution to prove that during this
period of last seen and discovery of the body of the
deceased or the time of the death of the deceased,
no other person but the accused could have had an
access to the deceased. The circumstances of last
seen together in the present case by itself cannot
form the basis of guilt.
26. The circumstances of last seen together does
not by itself lead to an irrevocable conclusion that it
is the accused who had committed the crime. The
prosecution must come out with something more to
establish this connectivity with the accused and the
crime committed. Particularly, in the present case
when there is no close proximity between
circumstances of last seen together and the
approximate time of death, the evidence of last
seen becomes weak."
24. In R.Sreenivasa Vs. State of Karnataka, 2023
SCC OnLine SC 1132, it is held as under:
"15. The burden on the accused would, therefore,
kick in, only when the last seen theory is
established. In the instant case, at the cost of
repetition, that itself is in doubt."
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25. In Kanhaiya Lal Vs. State of Rajasthan,
(2014) 4 SCC 715, it is held as under:
"12. The circumstance of last seen together does
not by itself and necessarily lead to the inference
that it was the accused who committed the crime.
There must be something more establishing
connectivity between the accused and the crime.
Mere non-explanation on the part of the appellant,
in our considered opinion, by itself cannot lead to
proof of guilt against the appellant."
26. In Nizam and another vs. State of Rajasthan,
(2016) 1 SCC 550, it is held as under:
"16. In the light of the above, it is to be seen whether
in the facts and circumstances of this case, the courts
below were right in invoking the "last seen theory".
From the evidence discussed above, deceased Manoj
allegedly left in the truck DL 1 GA 5943 on 23-1-
2001. The body of deceased Manoj was recovered on
26-1-2001. The prosecution has contended that the
accused persons were last seen with the deceased but
the accused have not offered any plausible, cogent
explanation as to what has happened to Manoj. Be it
noted, that only if the prosecution has succeeded in
proving the facts by definite evidence that the
deceased was last seen alive in the company of the
accused, a reasonable inference could be drawn
against the accused and then only onus can be shifted
on the accused under Section 106 of the Evidence
Act.
17. During their questioning under Section 313 CrPC,
the appellant-accused denied Manoj having travelled
in their Truck No. DL 1 GA 5943. As noticed earlier,
the body of Manoj was recovered only on 26-1-2001
after three days. The gap between the time when
Manoj is alleged to have left in Truck No. DL 1 GA
5943 and the recovery of the body is not so small, to
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draw an inference against the appellants. At this
juncture, yet another aspect emerging from the
evidence needs to be noted. From the statement
made by Shahzad Khan (PW 4) the internal organ
(penis) of the deceased was tied with rope and blood
was oozing out from his nostrils. Maniya Village, the
place where the body of Manoj was recovered is
alleged to be a notable place for prostitution where
people from different areas come for enjoyment.
18. In view of the time gap between Manoj being left
in the truck and the recovery of the body and also the
place and circumstances in which the body was
recovered, possibility of others intervening cannot be
ruled out. In the absence of definite evidence that the
appellants and the deceased were last seen together
and when the time gap is long, it would be dangerous
to come to the conclusion that the appellants are
responsible for the murder of Manoj and are guilty of
committing murder of Manoj. Where time gap is long
it would be unsafe to base the conviction on the "last
seen theory"; it is safer to look for corroboration from
other circumstances and evidence adduced by the
prosecution. From the facts and evidence, we find no
other corroborative piece of evidence corroborating
the last seen theory."
(underlining by us)
27. The application of the aforementioned principles
leads to the conclusion that the prosecution has not
established the last seen theory and therefore, the burden
of proof does not shift to the accused under Section 106 of
the Indian Evidence Act, 1872. Apart from the testimony
of P.W.4, which states that the deceased was seen with
accused No.1, there is no substantial evidence linking the
accused to the crime. According to P.W.4, the deceased
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was seen with accused No.1 on 15.07.2015 at 8:30 A.M.,
and the body was discovered on 21.07.2015 at 6:45 A.M.
The considerable time gap between these two events
makes it unreasonable to draw an inference solely against
the accused.
27.1. In this context, it is also necessary to address the
further aspects of the case of prosecution.
The post-mortem report (Ex.P23) states that the cause of
death was a head injury, yet P.W.18, the doctor who
performed the autopsy, was unable to conclusively
determine the precise cause of death. This issue will be
discussed later in greater detail. The prosecution has
failed to establish the last seen theory as one of the
circumstances.
(ii) IDENTIFICATION OF THE PLACE OF WHERE
DEAD BODY BY THE ACCUSED:
28. The prosecution's case hinges on the voluntary
statements made by the accused, which explains the
location of the murder and the place where the body of
deceased was disposed of. It is the case of prosecution
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that accused No.1 allegedly took the deceased on a
motorcycle at 8:30 A.M. on 15.07.2015, with the promise
of securing the original documents of the two-wheeler. The
accused and the deceased spent time at various locations
and arrived at Lakkavalli at 4:30 P.M. The three of them
sat near the bridge by the Lakkavalli Government Tamil
School until 8:00 P.M. At approximately 9:00 P.M., they
brought food from hotel of P.W.16. Around 11:30 P.M.,
the deceased allegedly abused the accused, which led to
accused No.1 inflicting head injuries on the deceased with
a stone found nearby. The deceased began bleeding and
accused No.2 also struck the deceased with the same
stone, ultimately causing his death.
28.1. The accused No.1 allegedly went to his house at
2.00 A.M., brought a saree and a gunny bag and wrapped
the dead body in the gunny bag. The body was then
dragged with saree in front of the school, passed through
a fence and thrown into the lake.
28.2. Exs.P2 and P11, the mahazars were drawn based on
the voluntary statements of the accused. According to
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Ex.P11, the deceased's body was allegedly dragged
through a fence, but this is not reflected in Ex.P9, the spot
sketch. P.W.20, the Investigating Officer, also
corroborates this aspect. The presence of the fence is a
significant factor in establishing the connection between
the location of the death and the place where the body
was disposed of.
28.3. However, there are discrepancies that need to be
addressed. Firstly, existence of fence is not shown in the
spot sketch (Ex.P9). Secondly, there is no evidence to
suggest the presence of any marks or traces near the
fence, nor there is any indication that the accused could
have dragged the body through it. The fence could have
been an important piece of evidence to connect the crime
scene to the location of the body. In a situation where
defence denies involvement of the accused in the crime,
heavy burden is placed on the prosecution. If any doubt
arises on the occurrence of the incident as projected by
the prosecution, its benefit should enure to the accused.
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In the fact situation as to whether the accused can shift
dead body in between the fence wire is doubtful.
28.4. In a situation where the prosecution has not
sufficiently established these details, it is difficult to
conclusively link the place of death with the place where
the body was found, and by extension, the accused to the
crime. Therefore, it is held that the prosecution has failed
to establish the connection between the accused, the place
of death, and the discovery of the body.
28.5. According to P.W.12, the stone was found near
the bridge, but in his cross-examination, he stated that
the stone was recovered by accused from water. Ex.P11
records that M.O.7 was recovered from water. The
evidence of PW.12 is not consistent and contradicts
Ex.P11. Since the case is based on circumstantial
evidence, such discrepancies cannot be ignored.
28.6. The case of prosecution also asserts that prior to
the body of deceased was disposed of in the water, he was
attacked with a stone near the bridge by accused Nos.1
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and 2, resulting in fatal injuries. Afterwards, the body was
allegedly thrown into the water. Spot mahazar was
conducted in the presence of panchas, but Ex.P11, which
records the mahazar, is notably silent on critical details
about the location of the death. Additionally, neither
Ex.P11 nor the testimony of P.W.20, the Investigating
Officer, provides any clarity regarding the events at the
scene of the crime. This omission creates further
uncertainty about the occurrence of the incident at the
alleged place as claimed by the prosecution.
28.7. The prosecution further relies on the circumstance
of the accused identifying the location of the dead body to
establish the guilt. The trial court has placed significant
emphasis on this point, drawing an inference of the
accused's involvement in the offence. According to Ex.P1,
P.W.1 discovered the body at 6:45 A.M. on 21.07.2015,
and the police were informed at 8:30 A.M. The FIR was
filed at 8:30 A.M. and sent to the Magistrate by 9:00 A.M.
The statement of P.W.4 was recorded on the same day,
she revealed that the deceased had been taken by
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accused No.1. Accused Nos. 1 and 2 were arrested on
24.07.2015, and their voluntary statements were recorded
on the same day (Exs.P29 and P30). The mahazar
(Ex.P11) was drawn on that day. The body was recovered
on 21.07.2015 and subjected to post-mortem on the same
day.
28.8. However, as indicated in Ex.P2, the presence of
public crowd at the scene of the dead body is noteworthy.
The location of the body was already known to the public
before the accused identified it. Consequently, it cannot be
concluded that the discovery of the body was solely due to
the information provided by the accused. In this situation,
the identification of the body's location by the accused
holds little significance in the case and cannot be relied
upon to prove the guilt of the accused in causing the death
of Ananda.
28.9. It would be relevant to refer to the Judgment of
Hon'ble Supreme Court in Ravishankar Tandon Vs. The
State of Chhattisgarh, 2024 SCC OnLine SC 526. It is
held as:
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"13. As such, for bringing the case under Section
27 of the Evidence Act, it will be necessary for the
prosecution to establish that, based on the
information given by the accused while in police
custody, it had led to the discovery of the fact,
which was distinctly within the knowledge of the
maker of the said statement. It is only so much of
the information as relates distinctly to the fact
thereby discovered 570 [2024] 4 S.C.R. Digital
Supreme Court Reports would be admissible. It has
been held that the rationale behind this provision is
that, if a fact is actually discovered in consequence
of the information supplied, it affords some
guarantee that the information is true and it can
therefore be safely allowed to be admitted in
evidence as an incriminating factor against the
accused.
14. We will have to therefore examine as to
whether the prosecution has proved beyond
reasonable doubt that the recovery of the dead
body was on the basis of the information given by
the accused persons in the statement recorded
under Section 27 of the Evidence Act. The
prosecution will have to establish that, before the
information given by the accused persons on the
basis of which the dead body was recovered,
nobody had the knowledge about the existence of
the dead body at the place from where it was
recovered."
(underlining by us)
28.10. Applying the aforementioned principles to the
facts of this case, the dead body was discovered on
21.07.2015 and the post-mortem was conducted shortly
thereafter. P.W.4, the wife of deceased, stated that the
deceased was taken by accused No.1, after which he was
not seen alive. Accused Nos. 1 and 2 were arrested on
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24.07.2015, and their voluntary statements were
recorded. Following this, Ex.P11 Mahazar was drawn on
24.07.2015.
28.11. In light of these facts and based on the judgment
previously referenced, it is difficult to conclude that the
discovery of the dead body was solely due to the
information provided by the accused. By the time the
accused's statements were recorded, the body had already
been discovered and subjected to post-mortem.
Additionally, Ex.P2 indicates that a public gathering was
present at the scene, with information about the body
already circulating within the public domain.
28.12. In these circumstances, the Court cannot draw
an inference against the accused based on identification of
dead body to connect to the crime. The prosecution
cannot make use of this circumstance.
iii) MEDICAL EVIDENCE:
29. Ex.P23, the post-mortem report, indicates that the
cause of death was head injury. While P.W.18, the doctor,
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has certified that the death resulted from the head
injuries. The head injuries would also be caused by a
sharp weapon other than the stone and the injuries on the
neck was not explained. The evidence of doctor cannot
be considered to prove the cause of death on its own
unless it corroborates with other evidence. P.W.18 also
expressed his inability to determine whether Ananda was
thrown into the water while he was alive or after his
death. He further mentioned that a sharp weapon could
have caused similar injuries. With this inconclusive
opinion, it becomes difficult to accept the prosecution
case.
30. This lack of conclusive evidence creates reasonable
doubt regarding the connection between the accused and
the crime. The theory of prosecution is that the injuries
were inflicted by the stone (M.O.7), but there were no
traces of human blood found on the stone. This absence
of evidence undermines the chain of events and weakens
the link between the accused and the crime.
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30.1. The Hon'ble Supreme Court in Machindra Vs.
Sajjan Galfa Rankhamb & Ors., (2017) 13 SCC 491,
while analyzing the scope of the expert opinion has held as
under:
"16. But looking at the post-mortem report, cause
of injuries was not stated nor was any opinion
formed to create independent testimony. We would
like to emphasize on the vital role played by opinion
of the expert which is simply a conclusion drawn
from a set of facts coming to his knowledge and
observation. Expert's opinion should be
demonstrative and should be supported by
convincing reasons. Court cannot be expected to
surrender its own judgment and delegate its
authority to a third person, however great. If the
report of an expert is slipshod, inadequate or
cryptic and information on similarities or
dissimilarities is not available in the report of an
expert then his opinion is of no value. Such
opinions are often of no use to the court and often
lead to the breaking of very important links of
prosecution evidence which are led for the purpose
of prosecution. Therefore, we are of the considered
opinion that the prosecution has failed to prove that
death was caused due to the injuries inflicted by
the recovered weapons."
(underlining by us)
30.2. The expert opinion provided by P.W.18 is
inadequate when assessed in the context of the evidence
presented, as outlined in Ex.P23. Applying the principles
discussed above, this opinion cannot be relied upon
extensively to establish the guilt of the accused. The
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opinion of expert lacks convincing reasons and does not
offer sufficient clarity or substantiation to support the
prosecution case.
IV) MOTIVE:
31. Motive plays a crucial role in the present case.
Motive can be considered as one of the circumstances to
prove the prosecution case. The entire sequence of events
that led to the alleged crime began when accused No.1
pledged the motorbike bearing number KA-14/NT-
027333/2014-15, with the deceased, Ananda, which
belonged to P.W.14-Sri N. Kumar. While Ananda was in
possession of the motorbike, it was seized by the RTO due
to the absence of valid documents. When Ananda
confronted accused No.1 about the pledge of a stolen
vehicle, accused No.1 allegedly took Ananda on another
motorbike, owned by Malathesh (bearing number KA-
15/V-7923) and killed him.
31.1. P.W.14, however, turned hostile during his
testimony and denied that he had handed over the
motorbike to accused No.1. Despite this, his earlier
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voluntary statement (Ex.P20) provides important
information. In this statement, P.W.14 had stated that he
had purchased the motorbike through financing from Hero
FinCorp and that accused No.1 had taken the bike. Later,
P.W.14 learnt that the bike had been pledged to Ananda.
Furthermore, P.W.14 revealed that while Ananda was
using the bike, it was seized by the RTO and on
31.08.2015, he paid a penalty of Rs.4,700/- to have the
bike released. Due to his financial difficulties, P.W.14
eventually surrendered the bike to Hero FinCorp Finance.
31.2. Although P.W.14 turned hostile and denied his prior
statements during the trial, his voluntary statement
(Ex.P20) is supported by corroborative evidence in the
form of documents, including the fine payment receipt
(Ex.P25), the temporary certificate of registration in
P.W.14's name (Ex.P26), the purchase invoice (Ex.P27),
and the insurance policy (Ex.P28). These documents
substantiate the claim that the motorbike belonged to
P.W.14.
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31.3. While these documents establish the motive
concerning the motorbike, they do not directly link the
vehicle or its ownership to the death of the deceased,
Ananda. Consequently, while a motive may be established,
other missing factors must be connected to prove the
accused's involvement in the death of Ananda.
31.4. P.W.7 testified that on 16.07.2015, accused No.1
pledged the motorcycle and obtained loan of
Rs.10,000/-. The police later seized this motorcycle, as
noted in Ex.P11, which also records the seizure of the
motorcycle with registration number KA-15/V-7923.
According to P.W.4, this vehicle belonged to Malathesh,
and it was the same motorcycle on which that accused
No.1 is said to have taken the deceased.
31.5. The prosecution asserts that after committing the
crime, the motorcycle was pledged with P.W.8, the
following day. However, the prosecution has failed to
examine or establish that Malathesh was the owner of the
motorcycle bearing number KA-15/V-7923. Malathesh
was not called to testify and there is no evidence to prove
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that his motorcycle was handed over to accused No.1.
Without this crucial testimony, it is difficult to establish a
connection between the motorcycle and the crime based
solely on the evidence of P.W.8. Another aspect that
glares at the case of prosecution is, the alleged crime
started with motorcycle bearing No. KA-14/NT-
027333/2014-15. This motorcycle was alleged to be
pledged without valid documents. This is one of the
circumstances to be considered. The prosecution has not
proved this circumstance. Consequently, it is held that
the prosecution has failed to prove that the motorcycle
bearing number KA-15/V-7923 was involved in the
commission of the crime.
31.6. According to the prosecution, Accused No.1 took the
deceased, Ananda, under the pretense of providing vehicle
documents, and following a heated argument, Accused
Nos.1 and 2 allegedly killed Ananda using a stone. The
deceased was reportedly taken by Accused No.1 at 8:30
A.M., while the alleged incident occurred at 11:30 P.M.
The prosecution has failed to establish that the deceased
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was taken by the accused with the intention to kill him. At
most, the circumstances may raise suspicion, which by
itself is not sufficient to prove the guilt of the accused.
32. The trial Court convicted the accused based on the
last seen theory, the alleged threat made by the deceased
to accused No.1 and other circumstances such as the
vehicle of Malathesh, which was claimed to be sold to
Sanju and the identification of the places of the dead body
and the murder site by the accused. Another factor
considered was the disposal of the body in the lake to
conceal evidence. The trial Court concluded that these
circumstances formed a complete chain of evidence to
establish the accused's guilt.
33. However, upon re-assessing the evidence, this Court
finds that the last seen theory cannot be applied,
considering the significant gap of six days between the last
seen and the discovery of the dead body. The motorbike
involved in the dispute was owned by P.W.14. The trial
court erroneously linked it to Malathesh and the said
Malathesh was not examined to establish the involvement
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of bike in the crime. The chain of events between the
place of death and place where the dead body was found
is not complete. Any missing of links should favour the
accused. These aspects are not considered by the trial
Court. Therefore, the findings of the trial court cannot be
upheld and hence, the conviction is not sustainable.
34. From the overall consideration and assessment of the
evidence on record and the reasons assigned by the trial
court, the only conclusion that can be reached is that the
order of conviction and sentence of the trial court is
unsustainable and is liable to be set aside.
35. Accordingly, the following:
ORDER
(i) Crl.A.No.811/2018 filed by accused No.1 and
Crl.A.No.46/2021 filed by accused No.2 are
allowed;
(ii) The judgment of conviction and order on
sentence dated 16.03.2017 passed by the
II Additional Sessions Judge, Chikkamagaluru in
S.C.No.112/2015 is set aside;
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(iii) Accused Nos.1 & 2 are hereby acquitted of the
charges leveled against them for the offences
punishable under Sections 120-B, 302 and 201
read with Section 34 of IPC.
(iv) The bail and surety bond executed by the
accused Nos.1 & 2 are hereby cancelled.
(v) If the accused have deposited the fine amount
before the trial Court, the same shall be
refunded to them on proper identification.
(vi) The Registry is directed to communicate this
order to the concerned Jail Authorities.
(vii) Registry is directed to send back the trial court
records with a copy of this judgment.
Sd/-
(SREENIVAS HARISH KUMAR)
JUDGE
Sd/-
(K. V. ARAVIND)
JUDGE
YN.
