Karnataka High Court
Muttavva Alias Laxmi W/O Yallappa ... vs The State Of Karnataka on 2 May, 2025
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CRL.A No.100231 of 2023
C/W CRL.A.No.100300 of 2024
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 02ND DAY OF MAY 2025
PRESENT
THE HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM
AND
THE HON'BLE MR. JUSTICE G BASAVARAJA
CRIMINAL APPEAL NO.100231 OF 2023
C/W CRIMINAL APPEAL NO.100300 OF 2024
CRL.A.NO.100231 OF 2023:
BETWEEN:
SHRI. VITTAL S/O. PRAKASH HARIJAN
AGE: 21 YEARS, OCC: COOLIE,
R/O. BALOBAL VILLAGE,
TQ: GOKAK, DIST: BELAGAVI-591218.
...APPELLANT
(BY SRI. SMEER A.MULLA, ADVOCATE FOR
SMT. P.G.NAIK, ADVOCATE)
CHANDRASHEKAR
LAXMAN AND:
KATTIMANI
Digitally signed by
CHANDRASHEKAR
LAXMAN KATTIMANI
Location: High Court of
THE STATE OF KARNATAKA
BY STATE PUBLIC PROSECUTOR,
Karnataka, Dharwad Bench
Date: 2025.05.23 11:31:50
+0530
HIGH COURT OF KARNATAKA,
DHARWAD BENCH,
(GOKAK TOWN POLICE STATION GOKAK).
...RESPONDENT
(BY SRI. M.B.GUNDAWADE, ADDL. SPP)
THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374(2) OF
CRPC SEEKING THAT THE JUDGMENT AND ORDER OF CONVICTION
AND SENTENCE PASSED IN SESSION CASE NO. 8004/2020 DATED
24.11.2022 BY THE XII ADDL. DISTRICT AND SESSIONS JUDGE,
BELAGAVI SITTING AT GOKAKA U/SEC. 302, 506, 201 R/W SECTION
34 OF IPC AGAINST ACCUSED NO.3/APPELLANT BE KINDLY SET
ASIDE AND THE APPELLANT BE ACQUITTED.
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CRL.A No.100231 of 2023
C/W CRL.A.No.100300 of 2024
IN CLR.A.NO.100300 OF 2024:
BETWEEN:
1. MUTTAVVA @ LAXMI W/O. YALLAPPA HARIJAN
AGE: 48 YEARS, OCC: VEGETABLE VENDOR,
R/O. MAHALINGESHWAR NAGAR,
GOKAK, TQ. GOKAK, DIST. BELAGAVI.
2. VITTAL S/O. SHANKAR KEMPSHETTY
AGE: 28 YEARS, OCC: COOLIE,
R/O. DHAVALESHWAR VILLAGE,
MUDHOL TALUKA, NOW AT. BALOBAL VILLAGE,
GOKAK TALUKA, DIST: BELAGAVI.
...APPELLANTS
(BY SRI. JOSHI SHRIPRASAD JAYATEERTH, ADVOCATE)
AND:
THE STATE OF KARNATAKA
THROUGH GOKAK TOWN P.S.,
REPRESENTED BY SPP,
HIGH COURT OF KARNATAKA,
DHARWAD.
..RESPONDENT
(BY SRI. M.B.GUNDAWADE, ADDL. SPP)
THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374 (2) OF
CRPC (415 (2) OF BNSS) SEEKING TO THAT THE IMPUGNED ORDER
OF CONVICTION DATED 24.11.2022 AND CONSEQUENTLY THE
ORDER OF SENTENCE DATED 25.11.2022 PASSED BY THE XII
ADDL.DISTRICT AND SESSIONS JUDGE, BELAGAVI, SITTING AT
GOKAK IN SESSIONS CASE NO.8004/2020 FOR THE OFFENCES
PUNISHABLE UNDER SECTIONS 302, 506, 201 R/W SECTION 34 OF
IPC, AGAINST THE APPELLANTS HEREIN WHO ARE ARRAYED AS
ACCUSED NO.1 AND 2 BE SET ASIDE AND THEY MAY BE ACQUITTED
OF ALL THE OFFENCES IN THE INTEREST OF JUSTICE AND EQUITY.
THESE APPEALS HAVING BEEN HEARD AND RESERVED FOR
JUDGMENT ON 25.04.2025, COMING ON FOR PRONOUNCEMENT OF
ORDERS THIS DAY, THE COURT DELIVERED THE FOLLOWING:
CORAM: HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM
AND
HON'BLE MR. JUSTICE G BASAVARAJA
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CRL.A No.100231 of 2023
C/W CRL.A.No.100300 of 2024
CAV JUDGMENT
(PER: THE HON'BLE MR. JUSTICE G BASAVARAJA)
These two appeals arise out of the judgment of conviction
and sentence passed by the XII Additional Sessions Judge,
Belgavi, sitting at Gokak in Sessions Case No.8004/2020 dated
24.11.2022 [for short "Trial Court"], wherein the Trial Court
has convicted the accused Nos.1 to 3 for the offences
punishable under Sections 302, 201, 506 read with Section 34
of the Indian Penal Code [IPC].
2. The parties are referred to as per their rank before
the Trail Court.
3. The brief facts leading to these appeals are that the
Gokak Town Police submitted the charge sheet against the
accused for the offences punishable under Sections 120B, 302,
201, 506 read with Section 34 of IPC. It is alleged by the
prosecution that one Yallappa Nagappa Harijan aged about 40
years resident of Kadabagatti had intimacy with accused No.1
Muttavva for the past 15 to 16 years, and they were living as
husband and wife at Mahalingeshwar Nagar, Gokak in the
house of one Mallavva Yallappa Yallapur. Accused No.2 is the
son-in-law of accused No.1, and accused No.3 is a friend of
accused No.2. Yallappa being addicted to alcohol, used to
repeatedly man-handle the accused No.1 by consuming liquor
every day, and she being fed up of the torture, conspired with
accused Nos.2 and 3 to cause his murder. For that purpose,
she assured to give 1,000/- each towards expenditure for
accused Nos.2 and 3. On 10.07.2020 at about 10:00 p.m. as
per the prior meeting of mind and criminal conspiracy in
furtherance of common intention, the accused Nos.2 and 3
came on a motor cycle to the house of accused No.1 at
Mahalingeshwar Nagar in Gokak, started consuming alcohol
with Yallappa, and when, he went asleep due to heavy
intoxication at about 12:00 am, the accused No.2 caused
suffocation with the use of rope on his neck. Accused No.3
closed his mouth with veil, and accused No.1 caught hold of his
legs and thereby, all the three were successful in causing his
homicidal death. At that time, the daughter of accused No.1
namely Deepa got up from the sleep and noticed accused Nos.1
to 3 causing the death of Yallappa. She was given life threat by
the accused Nos.1 to 3 and then, accused Nos.2 and 3 took
the dead body in the gunny bag on the motor cycle, and thrown
into the river near Lolasur bridge to destroy the evidence of
offence. Thus the accused have committed the aforesaid
offences.
4. After filing of the charge sheet, the jurisdictional
Magistrate has taken cognizance against the accused for the
alleged commission of offences and case was registered in C.C.
No.1821/2020. Thereafter case was committed to the Court of
sessions and the case was registered in S.C. No.8004/2020.
Having heard on charges, charges were framed against the
accused for the alleged commission of offences. Same was read
over and explained to the accused. Having understood the
same, accused pleaded not guilty and claimed to be tried.
5. To prove the case of the prosecution, in all, 22
witnesses were examined as PWs.1 to 22. 80 documents were
marked as Exs.P1 to P80 and 16 material objects were marked
as MOs.1 to 16. On closure of the prosecution side evidence,
the statement under Section 313 of the Code of Criminal
Procedure [Cr.P.C.] was recorded. The accused have totally
denied the evidence of prosecution witnesses, but they have
not chosen to lead any defence evidence on their behalf.
6. Having heard the arguments on both sides, the Trial
Court has convicted the accused for the offences punishable
under Sections 302, 506, 201 read with Section 34 of IPC and
acquitted all the accused for the offences punishable under
Sections 120B, 449 read with Section 34 of IPC. Being
aggrieved by this judgment of conviction and order of sentence
passed by the Trial Court, the appellant Sri.Vittal S/o. Prakash
Harijan - accused No.3 has preferred Criminal Appeal
No.100231/2023 and Smt. Muttavva @ Laxmi W/o. Yallappa
Harijan and Sri.Vittal S/o. Shankar Kempshetty - accused
Nos.1 and 2 respectively have preferred Criminal Appeal
No.100300/2024.
7. The learned counsel appearing on behalf of the
appellants Smt. P.G. Naik and Sri. Joshi Shriprasad Jayateerth
would submit that the impugned order of conviction and
sentence passed by the Trial Court is liable to be set aside on
the ground that the impugned judgment suffers from non-
application of judicious mind. The impugned order is passed in
a mechanical manner. On perusal of the statements, evidence,
materials placed before the Trial Court, the Trial Court ought to
have acquitted the appellants.
8. The major error committed by the prosecution and
the Trial Court is that the entire emphasis for conviction is on
the basis of the statement of CW19 - Deepa Harijan, who was
examined as PW1. It is specifically submitted that the said PW1
is deaf and was a minor. It would be pertinent to note that her
statements were recorded in absence of an "official sign
language translator" who was the sole and appropriate person
to translate the sign language.
9. The Trial Court did not seek aid of an official sign
language translator while recording her evidence. This entire
exercise was done in absolute disregard of law as the Trial
Court cannot be presumed to be an expert in sign language.
10. The admissions of the PW1 would, in itself, go to
show that the witness was not even awake when the alleged
incident took place and therefore, the said witness cannot be
held to be eyewitness.
11. PW1 was not able to identify the MOs.3 to 6, 9 and
12. The Trial Court ought to have taken this aspect into
consideration and refused to mark the said objects. However,
the Trial Court proceeded to mark these objects and proceeded
to pass an order of conviction which is against the principles of
law and therefore, calls for interference.
12. Further, the learned counsel for the appellants
would submit that there was some overwriting on the page
numbers of the evidence of PW1, this fact was brought to the
knowledge of the Trial Court. Overwritings on the evidence of
the sole eye witness, that too in a sessions case, should have
had addressed by the Trial Court. However, even this sensitive
issue, which would affect the life and liberty of the appellants,
was dealt in a casual manner. Further, there are also some
other rectifications in the same document. None of these
rectifications or over writings were brought to the notice of the
appellants or their counsel. These aspects raise serious
questions in respect to the statements of the sole eye witness
who was minor and deaf.
13. It is further submitted that the CW18 is shown to be
the owner of the house where the appellant No.1 and the
deceased resided on rental basis. This CW18 is examined as
PW2. PW2 has clearly deposed in his evidence that the
deceased Yallappa had left the house about 15 years ago and
his whereabouts are not known at all. This admission is
absolutely contrary to the entire story put forth by the
prosecution. The Trial Court, in the light of such major
contradictions, could not have convicted the appellants.
14. Further, the person who filed the FIR has turned
hostile and denied the material aspects. This would go to show
that the investigation itself was questionable. This person was
examined as PW4. The evidence of the doctor as well who was
examined as PW9 stated that the cause of death could not be
determined as the body had decomposed. It is submitted that
when the medical evidence is contrary to the story of the
prosecution, the Trial Court ought to have given the benefit of
doubt to the appellants. The Trial Court has interlinked all the
issues and has taken up all the issues at once to avoid
repetition. This should not have been done in the present case
as the issue involved would decide the fate of the appellants.
15. The entire case of the prosecution based on the
credibility of the statement of the eye witness itself is
questionable, there is no other material for the Trial Court
which would justify the conviction of the appellants.
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16. The Trial Court has relied on assumptions and
presumptions against the appellants to convict the appellants
for life. On perusal of the entire material available on record,
there is nothing to show that the appellants have any allegation
of overt act on them. The entire story of prosecution revolves
around probabilities and there is nothing on record to show that
the appellants had indeed committed the alleged crime.
17. Further, it is submitted that the Investigating
Officer has not conducted DNA test of the deceased with his
daughter PW1. The Trial Court ought to have considered the
fact that the investigation was earlier done by some other
police station and then the case was transferred to some other
police station, the investigation reports were not in consonance
with each other and the investigation so conducted by both the
police stations were not in accordance with law and there were
many discrepancies in the statements recorded and
investigation done and therefore, the conviction based on this
faulty investigation is bad in the eyes of law. Absolutely there
are no materials to convict the accused for the alleged
commission of offences. However, without proper appreciation
of evidence on record, the Trial Court has convicted the
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accused which is not sustainable under law. To substantiate
their arguments, the appellants' counsels have relied on the
decisions rendered by the Hon'ble Apex Court in the case of
State of Rajasthan vs. Darshan Singh alias Darshan Lal
reported in AIR 2012 SCW 3036 and in the case of Pradeep
vs. The State of Haryana reported in 2023 LiveLaw (SC)
501. On all these grounds, the learned counsels appearing for
the appellants sought for allowing the appeals.
18. As against this, the learned Additional State Public
Prosecutor would submit that the Trial Court has properly
appreciated the evidence on record in accordance with law and
facts and that there are no materials to interfere with the
impugned judgment of conviction and order of sentence passed
by the Trial Court and on all these grounds sought for dismissal
of the appeals.
19. Having heard the arguments on both sides and on
perusal of the materials, the following points that would arise
for our consideration:
"i. Whether the impugned judgment and
order of sentence passed by the Trial
Court suffers from legal infirmities /
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perversities requiring this Court to
intercede?
ii. What order?"
20. Our answers to the above points are as under:
Point No.i. in the affirmative.
Point No.ii. As per final order.
21. We have examined the materials placed on record
including the evidence and the impugned judgment.
22. The Investigating Officer has submitted the charge
sheet against the accused Nos.1 to 3 for commission of
offences punishable under Sections 302, 201, 120B, 506 read
with Section 34 of IPC. On hearing for charges, the Trial Court
framed the charges against the accused for the commission of
offences punishable under Sections 120B, 302, 449, 506, 201
read with Section 34 of IPC. The Trial Court has acquitted the
accused for the offences under Sections 120B, 449, 506, 201
read with Section 34 of IPC. The Trial Court has acquitted the
accused for the offences under Sections 120B, 449 read with
Section 34 of IPC and convicted the accused for the offences
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punishable under Sections 302, 506, 201 read with Section 34
of IPC.
23. The Investigating Officer has cited 38 witnesses in
the charge sheet. Out of them, 16 witnesses were examined as
PWs.1 to 16. CW19 - Deepa is only the eye witness. CW19 -
Deepa, daughter of Yallappa Harijana is examined as PW1. This
witness is the daughter of the deceased. The vehement
argument of the appellants' counsels is that this testimony of
PW1 has not been recorded in accordance with law. PW1 is a
child witness and also is not able to speak and can express the
things on the basis of signs. The Investigating Officer has
recorded her statement without the assistance of expert.
Though the accused's counsel has objected and same was
recorded by the Trial Court, the Trial Court has ignored the
objections raised by the respondent's counsel and recorded the
evidence of PW1 with the assistance of one Kamesha, the close
relative of PW1. Even his evidence is also not recorded on oath.
24. The counsel further submitted that on 11.08.2021,
the Trial Court has passed an order for recording further
examination that it is just and proper to record the evidence of
this witness through video recording and also Court has
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directed the prosecution to make necessary arrangements for
video conference of this witness and then case was posted to
afternoon session on the same day. But the prosecution has not
made arrangements in this regard. Therefore, the Trial Court
has recorded further cross-examination of PW1, the learned
Sessions Judge also certified on the deposition mechanically
that the Court has read over and explained the statement of
this witness, though the witness is not capable to understand
the same.
25. We have examined the statement of this witness
recorded by the Investigating Officer under Section 161 of
Cr.P.C. The Investigating Officer has recorded the statement of
this child witness Deepa Harijan aged about 16 years on
20.07.2020. The Investigating Officer PW18 - G.I.Kalyanshetti
in the examination-in-chief, has not deposed as to the
recording of the statement of this witness PW1, who is shown
as CW19 in the charge sheet as eyewitness, but during the
course of cross-examination in para 16, he has stated that
CW19 Deepa is not able to speak properly.
26. While recording evidence of PW1, the learned
Sessions Judge has recorded her statement that the age of this
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witness is 16 years but before recording this witness, the Trial
Court has not recorded its opinion that the child is able to
understand the questions put to her and that she is able to give
rational answers to the questions put to her. The Trial Judge
has not followed the provisions of Section 4 of the Oaths Act,
1969 and provisions of Sections 118 and 119 of the Indian
Evidence Act, 1872. The Investigating Officer has mechanically
recorded the statement of PW1 though she has not stated
anything before him. Hence, that evidence has to be discarded
but however, the Trial Court has convicted the accused solely
on the basis of this evidence of PW1. Hence, the impugned
judgment of conviction is not sustainable under law.
27. Upon a thorough examination of the record, we find
significant procedural irregularities in the manner in which the
statement of the witness, allegedly recorded under Section 161
of the Code of Criminal Procedure (Cr.P.C.), has been dealt
with. The statement purportedly recorded by the Investigating
Officer on 20.07.2020 under the said provision is claimed to be
that of a witness who, as per later judicial observation, is
incapable of speech. However, the Investigating Officer,
examined as PW18 during trial, does not depose in his
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examination-in-chief that such a statement was recorded, nor
does he clarify the mode in which the statement was obtained.
Instead, the statement appears to have been recorded on the
assumption that the witness was capable of verbal
communication. It is only during the course of trial, at the
stage of her examination before the Court, that the learned
Sessions Judge observed that the said witness is unable to
speak. This inconsistency raises serious doubt about the
authenticity and admissibility of the earlier recorded statement
under Section 161 Cr.P.C.
28. Further, the Trial Court failed to follow the mandatory
preliminary procedure contemplated under Sections 118 and
119 of the Indian Evidence Act, 1872, while recording the
testimony of a witness who is both a minor and speech-
impaired. It is the solemn duty of the presiding judicial officer
to ascertain the competency of such a witness to testify. This
involves a preliminary inquiry through appropriate questioning
to determine whether the minor understands the nature of the
questions being posed, is capable of providing rational and
coherent answers, and comprehends the obligation of speaking
the truth. The Judge must conduct such an inquiry and record
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its outcome, preferably including the questions posed and the
answers received, so that the Appellate Court can assess the
propriety of allowing the witness to testify. In the present case,
no such procedure was followed, and no satisfaction was
recorded by the Trial Judge regarding the witness's ability to
testify, thereby violating established judicial norms and
safeguards.
29. The Hon'ble Supreme Court in State of Rajasthan vs.
Darshan Singh (supra) has laid down clear guidelines to be
followed while recording the evidence of a witness with speech
and hearing impairments. The Apex Court has held that if the
Court forms an opinion that the witness can be administered an
oath, it should be done accordingly. Further, if the witness is
literate, it is advisable to pose questions in writing and obtain
written responses. If the witness is illiterate or unable to write,
the statement can be recorded through sign language with the
assistance of an interpreter. However, the interpreter must be
a neutral individual from the same environment as the witness
and must not have any vested interest in the case. Crucially,
the interpreter must also be administered an oath. In the
present case, the witness-Deepa, has signed her deposition on
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every page, indicating that she is literate and could potentially
respond to questions in writing. Despite this, the Court failed to
adopt any of the modes prescribed by the Hon'ble Supreme
Court.
30. In the instant matter, the Trial Court not only failed
to ask preliminary questions to the witness to assess her
competency, but also did not record any certification or
satisfaction to the effect that the witness understood the
proceedings or the significance of giving truthful evidence. Even
assuming that the witness was competent to depose, the
further question arises as to whether she was capable of
understanding and responding to the questions posed by the
Court without the assistance of an expert. Despite objections
raised by the defence, no expert was appointed to facilitate
communication with the witness. In a surprising and legally
unsustainable move, the Trial Court allowed one Mr. Kamesh--
admittedly a close relative of the witness to interpret the
proceedings midway through the examination. This was done
without administering any oath to him or verifying his
qualifications or neutrality as an interpreter. This clearly
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contravenes the procedure laid down by the Supreme Court
and undermines the integrity of the evidentiary process.
31. Moreover, given that the witness Deepa is literate,
the most appropriate course of action would have been to
conduct her examination by way of written questions and
answers. This method was not adopted. Even if the Court were
to accept the involvement of a relative as an interpreter, the
correct protocol would require both the prosecution and the
defence to submit their questions in writing to the Court. The
Court would then be obliged to translate the questions into sign
language preferably through an interpreter and record the
answers in a legally admissible form. None of these essential
steps were followed. The Trial Court, without expert assistance,
appears to have assumed the role of an interpreter, which is
neither proper nor legally sustainable. It is also noted that the
witness was accompanied to the Court by her uncle Kamesh,
who later assisted in interpreting her testimony, raising further
concerns about conflict of interest and impartiality. During
cross-examination, the witness herself admitted that she came
to Court accompanied by Kamesh, confirming his close
relationship to her and thereby invalidating his suitability as a
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neutral interpreter. The relevant extracts from the witness's
admissions are set out hereinbelow:
"...£ÁåAiÀiÁ®AiÀÄPÉÌ F ¢£À AiÀiÁgÉÆA¢UÉ §A¢¢Ýj JAzÀgÉ
¸ÁQëzÁgÀgÀÄ PÁªÉÄñÀgÀªÀgÀ£ÄÀ ß vÉÆÃj¹ PÁPÁ£À eÉÆvÉ §A¢zÉÝãÉ
J£ÀÄßvÁÛgÉ. F ¢£À ¸ÁQëAiÀÄ°è CªÀé ªÀÄvÀÄÛ G½zÀ E§âgÀÆ
DgÉÆævÀgÉ PÉÆA¢zÁÝgÉ JAzÀÄ ºÉüÀĪÀAvÉ PÁªÉÄñÀgÀªÀgÄÀ ªÀÄvÀÄÛ
CªÀgÀ eÉÆvÉ §AzÀgÀªÀgÄÀ PÀ°¹ PÉÆnÖzÁÝgÉ JAzÀÄ ¥Àæ±ßÉ PÉýgÀÄvÁÛgÉ.
CzÀPÉÌ ¸ÁQëzÁgÀgÀÄ ºËzÀÄ J£ÀÄßvÁÛgÉ. £ÁåAiÀiÁ®AiÀĪÀÅ ¸ÁQëzÁgÀjUÉ
¤ÃªÀÅ £ÉÆÃr®èªÉà JAzÀgÉ ¸ÁQëzÁgÀgÄÀ £ÉÆÃrgÀÄvÉÃÛ £É ªÀÄvÀÄÛ CdÓ£À
ªÀÄÄAzÉ ªÀÄvÀÄÛ PÁPÁ£À ªÀÄÄAzÉ ºÉýgÀÄvÉÃÛ £É J£ÀÄßvÁÛgÉ."
32. This admission made by this PW1 is tutored one. It
is a well settled principle that corroboration of the testimony of
a child witness is not a rule but a measure of caution and
prudence. A child of tender age is easily susceptible to tutoring.
However, that itself is no ground to reject the evidence of a
child witness. The Court must make careful scrutiny of evidence
of a child witness. The Court must apply its mind to the
question whether there is a possibility of the child witness being
tutored. Therefore, scrutiny of the evidence of child witness is
required to be made by the Court with care and caution. In the
case on hand, the Court has not followed preliminary procedure
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while recording the evidence of this witness. The Investigating
Officer has also not followed the procedure recording the
statement of this witness and mechanically cited this witness as
eye witness. Unfortunately, the Trial Court has also recorded
her statement mechanically without following the procedure to
be followed in recording the evidence of child witness and deaf
and dumb witnesses. Therefore, this evidence of PW1 cannot
be accepted and we cannot rely on the evidence of PW1.
33. Now we have to examine whether the prosecution
has placed other evidence to convict the accused. In this
regard, we have examined the other witnesses. CW18 -
Mallavva Yallappur, the owner of the house which was rented to
accused Muttavva, examined as PW2. She has deposed in her
evidence that deceased Yallappa Harijana is the son of elder
brother. He was residing in her house on rent at
Mahalingeshwara Gokak. His wife and daughter were residing
there. Daughter's name is Deepa. Wife name is Muttavva, who
is the accused before the Court. She was residing in her house
since 4 to 5 years. About one year back, Muttavva vacated the
house and handed over the key to her. After one week, Police
shown photos. She has identified the photo of his son-in-law
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Yallappa, Exs.P1 to P6. She has not deposed anything against
the accused as to the accusation made by the prosecution.
34. CW13 - Mahalinga, mother of Siddavva Talawara
has deposed in his evidence that about 5 years back, one day,
he called deceased Yallappa for Laxmi Devi fair and he has
handed over a sim to Yallappa at his request.
35. CW1 - Mutteppa Govindappa Ladi - complainant
and who has witnessed the dead body for the first time in
Ghataprabha river, examined as PW4, he has deposed in his
evidence that about one year back one day at 10:00 a.m.,
when he was going to his land to flow water to the sugar cane
crop, he found one gunny bag on the bank of the river near his
land. He do not know the contents of his bag, but same was
filled, then he returned to home. On the same day Police called
him near the bank river and took his signature. He has not
deposed anything. Hence he was treated as hostile witness.
Even during cross-examination, the prosecution has not elicited
anything from him to substantiate the case of the prosecution.
36. CW5 - Vishwanatha Basavaraj Dabbanavar, CW4 -
Ramasidd Sadashi Tuppad said to be the attestor to the inquest
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panchanama Ex.P8, examined as PWs.5 and 6, both have not
supported the case of the prosecution.
37. CW7 Rajashekar Irappa Koppad said to be the
attestor to the seizure mahazar examined as PW7, has deposed
in his evidence regarding seizure of mobile phones and
motorcycle under Ex.P11 mahazar, but he has not deposed in
his evidence that the Police have seized the rope MO1 under
Ex.P15 mahazar and the recovery of dead body under mahazar
Ex.P21. This witness is treated as partly hostile witness and
cross-examined by the prosecution.
38. CW14 - Sadashiv Nagappa Harijan, who has
identified the photo of deceased Exs.P1 to 6, examined as PW8.
39. CW25 - Dr. Rajeshwari Hiremath has deposed in
her evidence as to conducting of autopsy of an unknown body
on 15.07.2020. She has also deposed as to the postmortem
report Ex.P26 and also has given certificate as per Exs.P27 to
P29.
40. CW20 - Mallavva Yallappa Solabannavar examined
as PW10. She has deposed in her evidence that the accused
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No.1 - Muttavva was residing in their house on rent basis. After
4-5 days, Police came and arrested this accused.
41. CW3 Vittala Bhimappa Adin said to be the attestor
to the mahazar and inquest mahazar Ex.P30 and 31 examined
as PW11.
42. CW10 - Gopala Nagappa Talawar, Village Assistant,
has deposed in his evidence as to the burial of the dead body of
the deceased.
43. CW33 - B.B. Biradar, CW36 - V.S. Murnal, CPI,
CW38 - Gopala R. Rathod, CPI, CW37 G.I. Kalyanashetti - CPI,
CW35 - H.K.Narali, PSI, the Investigating Officers examined as
PWs.13, 14, 16, 18 and 22 respectively, have deposed as to
their respective investigation conducted by them.
44. CW22 - Laxman Jattappa Kanpet has deposed in
his evidence as to the issuance of assessment extract Ex.P50 at
the request of CPI.
45. CW24 - S.S. Gasti, Assistant Engineer has deposed
in his evidence as to the preparation of sketch at the request of
CPI, Gokak.
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46. CW21 - photographer - Nasir Karimsab Khazi
examined as PW19 he has deposed in his evidence as to the
snapping of photos Exs.P1 to P6, 10, 12, 14, 16, 22 to 25, 32
and 61.
47. PW20 - Sanjeev Kumar Jha, is alternative Nodal
Officer. He has deposed as to the issuance of documents
Exs.P71 to 74.
48. PW21 - Vinay, another alternative Nodal Officer. He
has deposed in his evidence as to the issuance of documents as
per Exs.P75 to P79.
49. Except the oral testimony of PW1, which is already
discarded by this Court, absolutely that there is no cogent,
clinching, corroborative evidence to connect these accused to
alleged crime. Except the photos of the deceased, Exs.P1 to P6,
after decomposition of the dead body identified by some
witnesses, is not sufficient to come to the conclusion that this
body is of Yallappa Harijana. The original documents like
Aadhar card and other admitted photos, if any, have not been
collected by the Investigating Officer. The Investigating Officer
has not taken steps for DNA examination to confirm to
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identifying of the dead body of the deceased. The Investigating
Officer has not explained anything in this regard. Only on the
basis of the identification of the dead body through photos of
decomposed dead body, it is not safe to come to the conclusion
that the accused has committed the murder of the deceased
Yallappa Harijan as alleged by the prosecution.
50. Viewed from any angle there is no sufficient
material to come to the conclusion that the accused have
committed the murder of the deceased Yallappa Harijan as
alleged by the prosecution. We are of the view that the
prosecution has failed to prove the guilt of the accused beyond
all reasonable doubt. Accordingly, we answer Point No.1 in the
affirmative.
Regarding Point No.2
51. For the foregoing reasons and discussions, we
proceed to pass the following:
ORDER
(i) Appeals are allowed.
(ii) The judgment of conviction and order of
sentence dated 24th November, 2022
passed in Sessions Case No.8004/2020 by
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the XII Additional Sessions Judge, Belagavi,
sitting at Gokak is hereby set aside.
(iii) The accused are acquitted for the offences
punishable under Sections 302, 506, 201
read with Section 34 of IPC.
(iv) Registry to send the copy of this judgment
to the Jail Superintendent, where the
accused No.2 is confined, to release the
accused No.2 forthwith, if he is not involved
in any other case;
(v) Registry is also directed to send Trial Court
records along with a copy of this judgment
to the concerned Court.
Sd/-
(SACHIN SHANKAR MAGADUM)
JUDGE
Sd/-
(G BASAVARAJA)
JUDGE
Rsh / CT:VH
