[Cites 10, Cited by 0]
Karnataka High Court
Satishkumar vs State By Hadadi Police on 12 February, 2026
Author: H.P.Sandesh
Bench: H.P.Sandesh
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CRL.A No. 1053 of 2020
HC-KAR
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 12TH DAY OF FEBRUARY, 2026
PRESENT
THE HON'BLE MR. JUSTICE H.P.SANDESH
AND
THE HON'BLE MR. JUSTICE VENKATESH NAIK T
CRIMINAL APPEAL NO.1053 OF 2020
BETWEEN:
1. SATISHKUMAR
S/O. LATE BABU
AGED ABOUT 23 YEARS.
2. MANJUNATHA @ MANJU
S/O. CHALUVARAJA
AGED ABOUT 25 YEARS.
APPELLANT NOS.1 AND 2 ARE
RESIDING AT 4TH MAIN
7TH CROSS, VINOBANAGARA
DAVANAGERE-577 001.
Digitally signed 3. NURULLA
by DEVIKA M S/O. SANAULLA
Location: HIGH AGED ABOUT 24 YEARS
COURT OF RESIDING AT BEHIND ASHRAYA HOSPITAL
KARNATAKA SHAMANUR ROAD
NEAR HP PETROL BUNK
DAVANAGERE-577 002.
...APPELLANTS
(BY SRI VENKATESH R. BHAGAT, ADVOCATE,
FOR A-1 AND A-2, AND
SRI LETHIF B., ADVOCATE, FOR A-3)
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CRL.A No. 1053 of 2020
HC-KAR
AND:
STATE BY HADADI POLICE
DAVANAGERE
REPRESENTED BY STATE PUBLIC PROSECUTOR
HIGH COURT OF KARNATAKA
BENGALURU-560 001.
...RESPONDENT
(BY SMT. RASHMI JADHAV, ADDITIONAL S.P.P.)
***
THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374(2) OF
THE CR.P.C. PRAYING TO SET ASIDE THE JUDGMENT OF
CONVICTION DATED 27-10-2020 AND ORDER ON SENTENCE DATED
28-10-2020 PASSED BY THE II ADDITIONAL DISTRICT AND
SESSIONS JUDGE AND SPECIAL JUDGE, DAVANAGERE, IN SESSIONS
CASE NO.77 OF 2018, CONVICTING THE APPELLANTS/ACCUSED
NOS.1 TO 3 FOR THE OFFENCE PUNISHABLE UNDER SECTION 302
READ WITH SECTION 34 OF IPC.
THIS CRIMINAL APPEAL IS COMING ON FOR FINAL HEARING,
THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE MR. JUSTICE H.P.SANDESH
and
HON'BLE MR. JUSTICE VENKATESH NAIK T
ORAL JUDGMENT
(PER: HON'BLE MR. JUSTICE H.P.SANDESH)
1. Heard Sri Venkatesh R. Bhagat, learned counsel
for appellant Nos.1 and 2, Sri Lethif B., learned counsel for
appellant No.3, Smt. Rashmi Jadhav, Additional State
Public Prosecutor for the respondent-State and perused
the material on record.
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2. This appeal is filed by accused Nos.1 to 3
against the judgment of conviction and sentence for the
offence punishable under Section 302 read with Section 34
of the Indian Penal Code, 1960 (for short, 'IPC') and
sentencing them to undergo imprisonment for life with fine
of Rs.20,000/- each.
3. The factual matrix of the case of the
prosecution is that P.W.17-Chandramma, who is a resident
of Davanagere, had gone to Chennai, Tamil Nadu, about
2-3 years back and stayed there for some period and at
that time, she had developed illicit relationship with Ashok
(hereinafter referred to as 'deceased') and both of them
had lived together for about one and half-a-year as
tenants in Changalpet. About 5-6 months prior to the
complaint, P.W.17 returned from Chennai and stayed in
Davanagere, but never returned to Chennai. P.W.17 and
the deceased were in phone contact and the deceased was
forcing P.W.17 to come back to Chennai and to meet him.
P.W.17 did not go back to Chennai even after the request
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made by the deceased and their relationship was known to
her son, accused No.1, and her nephew, accused No.2. On
11.09.2017, the deceased came from Chennai to
Davangere and knowing about this, accused Nos.1 and 2
with their common intention to commit murder of the
deceased, took the help of accused No.3, owner of
autorickshaw, bearing Registration No.KA-17 A-3646, from
Railway Station, Davangere, along with P.W.19, driver of
autorickshaw, and went to a Wine Shop to take drinks and
then proceeded to Karnataka Bank ATM and from the ATM
card of the deceased, they withdrew Rs.1,000/- and
thereafter, accused Nos.1 to 3 along with P.W.19 went to
Naganur Village and near the channel beside the road,
they took the deceased and abused him for having illicit
relationship with his mother, due to which, the image of
accused No.1 in the society has tarnished and also scolded
the deceased for making frequent phone calls to his
mother and assaulted him by hands on his face and
pushed him on the ground. At that time, accused No.2
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caught hold of the deceased, accused No.1 took a stone
and assaulted on the face, mouth and forehead of the
deceased and with the same stone, accused No.2 also
assaulted the deceased on face. Though P.W.19 called
them back, accused Nos.1 and 2 did not yield to his words,
but they assaulted the deceased by means of stone and
murdered him. Thereafter, accused No.1 has taken the
mobile phone and ATM card of the deceased and all of
them went away in the autorickshaw of accused No.3.
4. P.W.1-Ravindranath, who found the dead body
of the deceased, lodged a complaint. On the basis of the
complaint, Hadadi Police, Davanagere, registered a case in
Crime No.158 of 2017 and thereafter, accused Nos.1 to 3
were apprehended, investigation was conducted by
recording the statement of the witnesses and ultimately,
filed the charge-sheet. These accused were secured, they
did not plead guilty and claims to be tried. Hence, the
prosecution examined P.W.s.1 to 42, got marked Exs.P1 to
P65 and MOs.1 to 21. On closure of the prosecution
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evidence, the trial Court examined the statements of the
accused under Section 313 of the Code of Criminal
Procedure, 1973 (for short, 'Cr.P.C.') and they denied the
incriminating evidence, but did not lead defence evidence.
5. The trial Court, considering the circumstantial
evidence, convicted accused Nos.1 to 3 and imposed the
sentence as mentioned above. Being aggrieved by the
conviction and sentence, accused Nos.1 to 3 have filed the
present appeal before this Court.
6. The main contention of the learned counsel for
accused No.3 is that in order to connect accused No.3 to
the crime, there is no material before the Court. The case
of the prosecution is that accused Nos.1 and 2 were
having common intention to take away the life of the
deceased. Though accused Nos.1 and 2 had common
intention, but there is no conspiracy of accused Nos.1 and
2 with accused No.3. He also submits that Ex.P1 is the
complaint and the complaint is lodged by Sri Ravindranath
against unknown person after seeing the dead body of the
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deceased and in the said complaint also, nothing is
mentioned against accused No.3. He also submits that
photo of P.W.17 and identity card were found and based
on that, investigation was conducted. He submits that
accused No.3 is the owner of the auto, which was seized
and the same was purchased from P.W.15. He submits
that it is the case of the prosecution that accused No.3 as
well as P.W.19 were together and even in the voluntary
statements of accused Nos.1 and 2, they have
categorically revealed the same, but they were only mute
spectators while committing the alleged murder of the
deceased by accused Nos.1 and 2 and there was no role
on the part of accused No.3 in committing the murder. He
submits that P.W.19, eyewitness to the incident, has
turned hostile and the benefit given to P.W.19 would have
given to accused No.3 also, but the person who was very
much present at the time of the incident was made as a
witness and another person, with an intention, is made as
one of the accused. In the absence of any material
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against accused No.3, there could not be any conviction,
but the trial Court committed error in convicting accused
No.3. He also submits that while framing of charge, no
charge is framed against accused No.3. When the
statement of P.W.19 under Section 164 of Cr.P.C. was
recorded, he has not stated anything about accused No.3.
Further, accused No.3 was also not aware of illicit
relationship between P.W.17 and the deceased. Hence, on
all these grounds, he prays for interference and to set
aside the conviction order against accused No.3.
7. Learned counsel for accused Nos.1 and 2 would
submit that there is delay in lodging the complaint and the
said delay has been used by the complainant and other
interested person to concoct a false case against accused
Nos.1 and 2. There is no eyewitness to the incident and
the case rests on circumstantial evidence. Though the
voluntary statements of accused Nos.1 and 2 were
recorded and at their instance, mobile phone, ATM card
and the clothes of the accused were seized, but P.W.41-
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Investigating Officer has not stated anything about seizure
of mobile phone, ATM card and clothes. Though the
prosecution relies on the evidence of P.W.3 and P.W.4 with
regard to seizure, the same cannot be accepted. He
submits that P.W.19, according to the prosecution, is an
eyewitness to incident, but he has turned hostile and when
the eyewitness turns hostile, the case rests on
circumstantial evidence. He submits that the
circumstances relied on by the prosecution requires the
presence of the deceased and other circumstance relied on
is accused No.3 accommodating accused Nos.1 and 2 and
also purchase of liquors and drawing of Rs.1,000/- from
the ATM and AB group blood found in MOs.11 to 14. He
vehemently contended that no test identification parade
was conducted to identify the accused and hence, the
evidence of P.W.22, worker in the Bar, who has last seen
the accused, cannot be relied on and hence, the evidence
of P.W.22 will also not come to the help of the
prosecution. He also submits that evidence of P.W.17 also
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does not come to aid of the prosecution since she turned
hostile. Even P.W.13, son of the deceased, also not found
any incriminating evidence against accused Nos.1 and 2.
P.W.26 is the FSL Expert, who has received about 14
articles seized in this case, and these articles were
chemically examined, and she has given the evidence that
except Item No.6, all other 13 items were bloodstained
and contained human origin blood of "AB" Group. He also
relied on the judgment of this Court in the case of
Chakravarthy v. State of Karnataka reported in ILR
2001 KAR 3203, wherein mere making of a panchanama
as an exhibit does not dispense with its proof and mere
marking is no proof of its contents and he relied on
paragraph No.22 of the same judgment that the
Investigating Officer has not whispered the contents of
mahazar. He also vehemently contented that except
PWs.1, 6, 14, 15, 22 and 25, others prosecution witnesses
have turned hostile. The evidence of P.W.1-complainant is
very clear that he acted as a chance witness. In order to
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prove the illegal relationship between P.W.17 and the
deceased, nothing is placed on record and none of the
witnesses speaks about the same. He would contend that
the clothes which were found in the CCTV as well as
seized, i.e. shirt and pant, at the instance of accused
Nos.1 and 2 creates doubt in the mind of the Court having
used the same on the date of incident and recovery.
Merely because the bloodstains were found in the clothes
of the deceased and also the accused, the same cannot be
a ground to convict the accused even though explanation
is offered under Section 313 of Cr.P.C. He would
vehemently contend that the trial Court failed to take note
of the fact that the chain of circumstances has not been
proved by the prosecution and even in spite of it, when
there is no chain of circumstances, the trial Court
committed error in convicting accused Nos.1 and 2. In the
absence of linking the each chain of circumstance, the trial
Court ought not to have convicted accused Nos.1 and 2.
Hence, he prays to allow the appeal.
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8. Per contra, the learned Additional State Public
Prosecutor for the respondent-State submits that the Post-
Mortem examination report-Ex.P39 is very clear that the
deceased had sustained four external injuries and Ex.P40-
final opinion as to the cause of death is due to injury to
vital organ brain sustained as a result of multiple blow to
the skull with a hard heavy object. Hence, it is a case of
homicidal. Cross-examination of the Doctor also not
disputed with regard to nature of injuries as well cause of
death is concerned and hence, the death of homicidal is
proved. She also vehemently contended that P.W.1 gave
the complaint as per Ex.P1 and no doubt, the same is
registered against unknown person. Though the learned
counsel for the appellants contended that the blood of the
deceased was not seized, but it is very clear from Ex.P2-
seizure mahazar that at the time of conducting mahazar, it
is stated that, blood of the deceased was collected and
same was also sealed, packed and sent it to the FSL.
Ex.P38-FSL report is very clear and the same is spoken by
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P.W.26-FSL Expert with regard to the linking of the
accused, since the clothes of accused Nos.1 and 2 and the
clothes of the deceased, were stained with AB blood of
human origin. She also contended that the clothes, mobile
and also ATM card of the deceased was recovered at the
instance of accused Nos.1 and 2 and they have given
statements as per Exs.P61 and P62, wherein, they
categorically stated that if they are taken to the spot, they
are going to produce the same. No doubt, it is a trite law
that voluntary statement could be admitted only for the
purpose of any recovery and remaining portion of the
voluntary statement cannot be considered and the same is
inadmissible. The fact that recovery is made at the
instance of the accused is spoken by P.W.3 and P.W.4 with
regard to seizure is concerned and when the witnesses
speaks about the seizure of the same, and the very
citation (stated supra) relied on by the learned counsel for
the appellants does not come to the aid. She also submits
that with regard to illicit relationship is concerned, direct
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evidence cannot be produced and only circumstantial
evidence can be considered. She also submits P.W.22,
worker of the Bar, has very clearly stated that the accused
persons came to the Bar and Restaurant, wherein he was
working and he also identified them and the same is not
denied by him in the cross-examination. P.W.23, Security
Guard of ATM, though turned hostile, but in the cross-
examination categorically deposes withdrawal of amount
of Rs.1,000/- from the ATM and with regard to
withdrawing of amount also, no effective cross-
examination was done. She also contended that Ex.P9-
seizure mahazar clearly shows that it bears ATM card
No.607324100883181 with name Ashok (deceased). This
card has been recovered by the Police under the mahazar
and marked as MO9. The photographs-Exs.P10 to 12 goes
to show that the pictures are taken by the Police while
drawing the mahazar, specifically, while recovering the
mobile phone and the ATM card from accused No.1. The
ATM card seen in Ex.P12 clearly reads the same number
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as found in the ATM card-MO9 and as seen in the CCTV
Footage-MOs.20 & 21, and that number is also visible in
the photograph- Ex.P12. So it can be easily held that the
ATM card and the Mobile phone recovered in the house of
accused No.1 was shown by accused No.1 and it was in his
exclusive possession and under the mahazar, they have
recovered the ATM card and the Mobile phone. All these
material connects accused Nos.1 and 2 to the crime.
9. Learned Additional State Public Prosecutor also
vehemently contended that the trial Court has taken note
of the fact that accused No.3 was present along with
accused Nos.1 and 2 and he did not question the act of
accused Nos.1 and 2, but he was silent spectator while
accused Nos.1 and 2 committing the murder of the
deceased. Though there was no overt act against accused
No.3, but there was common intention to eliminate the
deceased.
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10. Having heard the learned counsel for the parties
and considering the material available on record, the
points that would arise for consideration of this Court are:
i) Whether the trial Court committed error in
convicting accused Nos.1 to 3 for the
offence invoked against them?
ii) Whether the findings of the trial Court
require interference of this Court?
iii) What order?
11. Having considered both oral and documentary
evidence available on record, this Court has to re-
appreciate the same. The case rests upon eye witness as
well as circumstantial evidence. The eye witness is
examined as P.W.19 and he turned hostile. P.W.19 in his
chief evidence completely turned hostile stating that on
11.09.2017, he did not go along with accused Nos.3 and 4
and also did not come in the autorickshaw belonging to
accused No.3 and also did not witness the person who was
speaking Tamil language and evidence says that did not
make any statement under Section 164 of Cr.P.C. before
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the learned Magistrate in terms of Ex.P31. However, he
identifies the signature as Ex.P31(a) and categorically
made the statement before the learned Magistrate. This
witness was subjected to cross-examination. In the cross-
examination, treating him as hostile, learned Public
Prosecutor, cross examined him in detail in terms of the
statement made before the police as well as statement
made before the Court. Even in the cross-examination
though he admits in the chief evidence making the
statement under Section 164 of Cr.P.C., identifying his
signature, but denies the same. Having considered the
document of Ex.P.31, his statement was recorded by the
JMFC II Court, Davangere in respect of the very same
crime, wherein he has deposed that on 11.09.2017 at
6:30 when he was sitting along with accused No.1 and 3,
the accused No.2 called and informed to take the
autorickshaw to the railway station and accordingly went
to railway station. The case of the prosecution is narrated
before the learned Magistrate, but witness identifies his
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signature in Ex.P.31, but not supports the case of
prosecution when he was examined before the Court, but
it is not in dispute that his statement was recorded in
terms of Ex.P.31 though he says that he did not make
such statement, but this statement was made before the
learned Magistrate, but the fact is that 164 statement is
not the substantive piece of evidence, however Court can
look into the same for corroboration, whether the evidence
of P.W.19 gives aid to the case of the prosecution and in
view of this eye witness who was present at the time of
incident has turned hostile. The Court has to take note of
the validity of the statement made before the learned
Magistrate. The statement recorded by the Learned
Magistrate is not substantiated. When such being the case,
this Court has to consider the other circumstantial
evidence before the Court.
12. Before considering the other circumstantial
evidence, this Court would like to make it clear with regard
to whether death is on account of homicidal. The
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document at Ex.P.39 - post mortem report discloses the
nature of injuries i.e., external injuries 4 in number and so
also opinion given at the first instance kept pending for
want of chemical analysis report of FSL and having
received the report, final opinion was given in terms of
Ex.P.40 and the death is due to injury to vital organ brain
sustained as a result of multiple blow to the skull with a
heavy object and hence, Court has to take note of the
evidence of the Doctor who has been examined as P.W.27.
The P.W.27 deposes with regard to the nature of injuries
and final opinion is that death is due to injury to vital
organ brain sustained as a result of multiple blow to the
skull with a heavy object. In the cross examination of this
witness, only suggestion was made that a person under
the influence of alcohol if falls on the ground may sustain
such injuries and the same was denied. However, he
admits that the stone-MO.4 weighs about 1,375 grams.
Further suggestion was made that only if assaulted by a
stone weighing about 5 to 6 kg such injury shown in the
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report could be caused and the same was denied, except
these suggestions, nothing is suggested that it is not a
case of homicidal. Having considered the PM report which
is marked as Ex.P.39 and also the evidence of P.W.27, it is
very clear that it is a case of homicidal and hence, we
accept the evidence of the Doctor that it is a case of
homicidal as accepted by the Trial Court.
13. Now coming to the connecting the accused is
concerned, the main case of the prosecution is that at the
body of the deceased, found the xerox copy of identity
card of the P.W.17 - Voter ID and having considered the
Voter ID, P.W.30 in his evidence categorically deposes that
he had approached the P.W.17 and P.W.17 informed about
the deceased person is one Ashok and on enquiry, she
revealed that accused No.1, 2 and 3 went along with him
and hence, accused persons are apprehended and
produced before the I.O and identifies the accused
persons. It is also the evidence that by the side of the
dead body, found the purse and photo that is MO.1 and
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MO.1(a) and photo belongs to the Chandramma and
accordingly, went and investigated, but this witness was
cross examined by the counsel for accused and except
eliciting that MO.1(b)-xerox ID card was not clear and
even not suggested to the witness P.W.30 that the P.W.17
did not make any statement that accused No.1 to 3 did
not accompany the deceased and no cross-examination to
that effect. Based on the statement of P.W.17, the law was
set in motion for investigating to identify the accused
persons and accused No.1 to 3 were apprehended. Now
this Court has to see the evidence of P.W.17. Since it is
the case of P.W.30 that she gave only the information. But
P.W.17 who has been examined before the Court turned
hostile, even gone to the extent of denying that she is not
aware of the deceased. But, this witness was treated as
hostile and cross examined this witness by way of question
and answer. When the question was put to the witness
that why the deceased took the passport photo of her,
only answer was given that her sister's daughter in a
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summer holidays while taken the photo that may be lost
and the same may be gone to the hands of the deceased
and no proper reason was given. When further question
was put to her that why election identity card was given to
him and once again says that sister's daughter taken the
same and might have gone to the hands of deceased.
When further question was put to the witness, calls are
received by her from the deceased on several occasions,
but says that she did not receive the same, but in an
ingenious method she says that wrong numbers are
received and with regard to the accused No.2 is residing
along with them and the same is admitted, but in the
cross examination, says that she is not aware of the said
Ashok and children were not knowing the call which she
was receiving, but in further cross examination,
categorically admits that on 11.09.2017 when the question
was put that Ashok i.e., deceased came to Davanagere
and witness volunteers that she is not aware of the same.
However, categorically admits that when she went to see
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the deceased to Davanagere railway station in an auto
belongs to accused No.3 along with her, accused No.1 and
2 are also accompanied her and hence, it is very clear that
the P.W.17 has turned hostile in order to protect her son
accused No.1 and also the sister's son accused No.2 and
not telling the truth. Hence, it is clear that on the date of
committing the murder, all of them were together and met
the deceased in the Davanagere railway station. This
evidence of admission given by P.W.17 also not
controverted by the counsel appearing for the accused
while cross examining this witness. Hence, it is very clear
that this witness is a last seen witness of the deceased
and all of them were together including accused No.1 to 3
and P.W.22 evidence is consistent.
14. The other witness is P.W.22 to connect the
accused persons and he says that he was working in a
spirit bar and identifies the accused No.1 to 3 that he had
witnessed them in a spirit bar and they came to bar at
around 7:00 p.m., to 8:00 p.m., in order to purchase the
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liquor and there were 3 to 4 persons, one more person
was there he was aged and police brought one of the
accused to the bar. In the cross examination of this
witness, when P.W.22 gives the evidence that he identified
the accused persons as well as all the three came along
with one person in the cross examination of this witness
also, nothing is elicited with regard to identifying the
accused along with another person in the cross
examination and the evidence of P.W.22 is not
controverted while cross examining this witness and
hence, it is very clear that the P.W.17 though turned
hostile and P.W.22 was cross examined, in both the
evidence of witnesses, it is very clear that on the
particular day, deceased came to Davangere and accused
No.1 to 3 went and met the deceased and the evidence of
P.W.30 categorically deposes before the Court that on
enquiry, P.W.17 revealed that these accused No.1 to 3
went along with the deceased Ashok.
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15. The other witness P.W.23-ATM security guard in
his evidence also says that an amount of Rs.1,000/- was
drawn and found the accused No.1 and also the deceased
while drawing the money and this witness was examined
with the help of CCTV footage. Though he says that he
cannot identify the deceased person, but he categorically
says that on the date of drawing of the amount, he was on
duty. But, he was cross examined and in the cross
examination, he says that CCTV footage is in respect of
the ATM in which he works and in the further cross
examination, he categorically admits that on the particular
date, accused No.1 to 3 came along with other two
persons and drawn the money for an amount of
Rs.1,000/- and at around 10:20, they left the ATM, but
when this answer was elicited from the witness who has
turned hostile by this learned Public Prosecutor. In the
cross examination of this witness also the accused persons
did not controvert the evidence which was admitted in the
cross examination when the Public Prosecutor elicited the
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answer and all these materials discloses that accused
persons were there along with the deceased on the
particular date.
16. Now coming to the evidence of spot mahazar is
concerned, Ex.P.2, no doubt Ex.P.1 is the complaint given
by P.W.1, but he gave the complaint only against the
unknown persons, but Ex.P.2-spot mahazar was conducted
and the same is spoken by P.W.1 and P.W.2 and both of
them support the case with regard to the conducting of
the spot mahazar and witness I.O-P.W.41 also
categorically deposes before the Court that spot mahazar
was conducted in terms of Ex.P.2. The P.W.1 and P.W.2
also identifies the said signature and specifically P.W.1 and
P.W.2 says that MO.1 to MO.8 were seized at the spot.
The counsel appearing for accused No.1 and 2 says that
not specifically deposed regarding seizure of MO.1 to
MO.8, but MO.1 to MO.8 is spoken by the I.O even though
not specifically mentioned the name of MO.1 to MO.8, but
evidence of P.W.41 is very clear.
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17. No doubt, learned counsel appearing for the
appellant relying upon the judgment referred supra
contend that the evidence of P.W.41 cannot be accepted
and the said contention cannot be accepted I.O as well as
P.W.1 and P.W.2 spoken about the seizure of the article at
the spot i.e., MO.1 to MO.8 and also FSL report is very
clear that the blood which was found at the spot is human
origin of 'AB' blood group.
18. Now coming to the seizure of the incriminating
articles at the instance of the accused that is mobile of the
deceased, ATM card of the deceased and also
autorickshaw in which they proceeded and also the blood
stained cloth of accused No.1 and 2 were seized and
witnesses P.W.3 and P.W.4 speaks about the recovery at
the instance of the accused and also it has to be noted
that the pant and shirt belongs to the accused No.1 and 2
are marked as MO.11 to MO.14 and FSL is also positive
that all these MOs that is MO.11 to MO.14 belongs to
accused also stained with blood. The main argument of
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counsel appearing for appellant No.1 and 2 that there is no
any blood grouping of accused as well as deceased, but
counsel appearing for the State brought to notice of this
Court that while conducting the spot mahazar in terms of
Ex.P.2, blood was found at the spot and same was seized
and sent to the FSL and FSL report is also very clear that
except article 6, all MOs are stained with blood i.e., 'AB'
blood group. Both found in the cloth of the deceased as
well as the cloth of the accused. When such being the case
and no injuries on the part of the accused No.1 and 2 that
they have sustained. The very contention of the counsel
appearing for the appellant No.1 and 2 that FSL report
also will not comes to the aid of the prosecution cannot be
accepted. When there is no any explanation on the part of
the accused in 313 statement, how the blood stains of the
deceased found in their cloth, nothing is stated. The spot
mahazar Ex.P.2 is very clear that where the dead body
was lying of the deceased blood was collected from the
spot. When such being the case, it is very clear that blood
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was collected from the body of the deceased and the same
was subjected to examination and hence, the contention of
the counsel appearing for appellant No.1 and 2 in the
absence of blood group, the said contention cannot be
accepted.
19. The other material available before the Court is
the evidence of P.W.13 who is the son of the deceased and
though he says that he came to Bangalore and the
information received of committing the murder of his
father along with his mother and the younger brother and
witness was also confronted the document of CD - MO.20
and identify his father and the person with him as the
accused No.1 who is before the Court and in MO.1(a) the
photograph of a lady and her identity as Chandramma and
categorically says that she was doing cleaning and
sweeping work in the temple in which her father was a
priest. Even mahazar was conducted in terms of Ex.P.25
stating that both his father and mother were staying in
that house. But, in the cross examination also even
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defence itself has elicited that he had only heard that his
father was residing in a house with Chandramma, but he
had not seen the house during his lifetime, but also
defence got elicited the answer that people living in
Thimmavaram told him about they are living together and
also he volunteers that he had seen her before temple in
Chennai. It is also not in dispute that the deceased was
also a priest in the several temple at Chennai and Court
has to take note of the evidence of P.W.17 and in chief
evidence, she completely turned hostile, but in the cross-
examination answers are elicited before the Court that
receiving telephone call from the deceased and also the
election identity card belongs to her with Ashok, but only
in an ingenious method answer is given that she has given
the card and passport size photo to his sister's daughter
and might have gone to the custody of the said Ashok and
also answer elicited from the mouth of the P.W.17 that she
went and met the deceased on the particular date at
Davangere, went along with accused No.1 and 2 in an
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autorickshaw belongs to the accused No.3 is not
controverted and when all this material discloses with
regard to the illicit relationship between the P.W.17 and
deceased and he came to know about the deceased and
the same was came to his knowledge and the said
deceased passed away and having witnessed the TV, came
to know that accused No.1 and 2 committed the murder.
The deceased was resident of Tamilnadu and also he
speaks that he came to know that mother of accused No.1
and also the deceased were together and they came to
house 20 days back and hence, not having any document.
He categorically admits that he came to know about the
same only through the TV, but the fact is that P.W.13-son
of the deceased also categorically says that both of the
deceased as well as the P.W.17 were living together in
Chennai for a period of one and half years and when such
being the case, it clearly discloses connection of the
P.W.17 and deceased that they were in illicit relationship.
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20. The other witness is P.W.15-owner of the
autorickshaw. In his evidence he says that he came to
know about both of them having illicit relationship and
murder was taken place for that reason and also says that
other two persons were there along with the driver of the
autorickshaw. In the cross examination, no doubt he says
that he came to know about through the Police, but overall
taking into note of the evidence, it is very clear that the
deceased was working as a priest and also having contact
with P.W.17. The P.W.17 was also working in the very
same temple as a Coolie. When such being the case, the
motive is attributed against the accused persons that they
took the life of the deceased only on the ground that in
order to prevent the illicit relationship with P.W.17 and the
deceased, the murder was committed. The motive for
committing the murder is with regard to the illicit
relationship between P.W.17 and also the deceased. The
fact that accused No.2 was also staying along with the
P.W.17 is admitted clearly by P.W.17 and P.W.17 also
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admits that accused No.1 is her son. The witnesses also
spoken with regard to the recovery of mobile belongs to
the deceased and ATM card and ATM also used on the very
particular date on the date of the incident was spoken by
the bank officials that the ATM card was used and also
drawn the amount of Rs.1,000/- and in the voluntary
statement also says that having remaining amount of
Rs.300/- with them and going to produce the same and
when MO.9-ATM card was seized at the instance of the
accused and also the mobile was seized at the instance of
the accused and CCTV footage also clearly discloses with
regard to the drawing of the amount. All these
circumstances goes against the accused persons. The
voluntary statement of Ex.P.61 and Ex.P.62 is very clear
with regard to the recovery at the instance of the accused
and the portion of the voluntary statement is admissible,
but remaining voluntary statement is not admissible.
21. It is also important to note that in the cross
examination of witnesses P.W.30 and P.W.32 regarding
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photo of the Chandramma was found and Chandramma
given the details about the accused No.1 and 2 is not
controverted. In the cross examination of P.W.32, not
denied the ATM card belongs to the deceased as well as
how the ATM card belongs to the deceased, came to the
custody of the accused and there was no any explanation
in 313 statement and incriminating articles were found at
the instance of the accused. When such being the case,
having considered the material available on record with
regard to the motive and also last seen theory as well as
recovery of articles belongs to the deceased at the
instance of the accused as well as blood stains clothes of
the accused found the blood grouping of the deceased and
only contention that there was no any TI parade to identify
the accused persons by P.W.22 cannot be accepted.
Immediately after the incident, on the very next day
accused was arrested and the P.W.22 immediately
identified the accused because the incident was taken
place on the previous date of 11.09.2017. When such
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being the case, the very contention that TI parade is
conducted cannot be accepted. Having considered all these
materials available on record, it is very clear that
incriminating materials were recovered at the instance of
the accused No.1 and 2 and also the evidence available
before the Court point out the role of the accused No.1
and 2.
22. No doubt accused No.3 took the autorickshaw
to the railway station to see the deceased, but there is no
any overt act allegation against accused No.3 and also
with regard to the sharing of common intention, nothing is
found and only the accused No.3 was present at the time
of the incident and unless any role played by the accused,
invoking of offence under Section 302 against the accused
No.3 cannot be accepted. No doubt Trial Court committed
an error in convicting the accused No.3. It was not the
case of prosecution that accused No.3 had the knowledge
of the conspiracy between the accused No.1 and 2. It is
the case of the prosecution that accused No.1 and 2 only
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having common intention to eliminate the deceased in
view of the illicit relationship and also it has to be noted
that P.W.19 though he is an eye witness, he was also
along with the accused No.1 to 3 and he was cited as a
witness and Investigating officer, when the role of the
accused No.3 is also similar to the P.W.19, who was also
very much present at the time of the incident but not
arrayed as an accused and eventhough arrayed as an
accused as A3, but nothing is found to connect the
accused No.3 that he was having a common intention to
invoke Section 34 of IPC to convict him along with accused
No.1 and 2. The material clearly discloses the role of
accused No.1 and 2 to connect the accused in the crime
and all these circumstances goes against accused No.1
and 2 and not against accused No.3 and merely because
he was present, he cannot be termed as he was also
having the common intention unless common intention is
brought out in the evidence of the prosecution witnesses.
When such being the case, we do not find any error on the
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part of the Trial Court in convicting the accused No.1 and
2, but we find the error on the part of the Trial Court in
convicting the accused No.3 in coming to the conclusion
that he was very much present at the incident and he was
also shared the common intention, but the voluntary
statement of the accused is also very clear that both
accused No.3 as well as P.W.19 were threatened not to
reveal the same to anybody and when such being the
case, convicting the accused No.3 for the offence under
Section 302, invoking Section 34 of IPC is erroneous and
the same leads to the miscarriage of justice.
23. The learned counsel for the appellant would
submits that it is the case of bringing the same to the
Section 304 part I that there was no any intention and no
preparation and hence, the Court has to reduce the
sentence. The counsel appearing for the respondent-State
would submits that it is a case of brutal murder and he
was taken to a lonely place and dropped the stone on the
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head and the same has resulted in instantaneous death at
the spot and hence, not a case for invoking 304 Part I.
24. Having heard the learned counsel for the
appellant and also the counsel appearing for the State-
respondent and also considering the material available on
record, it is very clear that accused No.1 and 2
accompanied with their mother to the railway station and
thereafter, both of them took the deceased along with
them in an autorickshaw belongs to the accused No.3 and
not only taken, even made him to consume the liquor by
purchasing the same from the bar and the same is spoken
by P.W.22 and after making him to consume the liquor,
dropped the stone on the head which is marked as MO and
also Court has to take note of M.O weighs about 1,375
grams and if the same is dropped on the vital part of the
head, it likely to cause death and hence, the contention of
the counsel appearing for the appellant that there was no
intention cannot be accepted when the victim was made to
fall on the ground and thereafter, accused No.2 held him
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and accused No.1 dropped the stone on the head. When
such being the case, the very contention that there was no
any intention to commit the murder cannot be accepted
and hence, it is not a case to bring the case within the
purview of Section 304 part I as contended by the
appellant's counsel and hence, we answered the point
accordingly.
25. In view of the discussions made above, we pass
the following:
ORDER
i) Criminal appeal is partly allowed.
ii) Appellant No.3/accused No.3 is acquitted
of the offence punishable under Section
302 read with Section 34 of the Indian
Penal Code, 1860.
iii) Conviction and sentence imposed on the
accused Nos.1 and 2 is upheld and
confirmed.
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iv) The Prison authority is directed to release
appellant No.3/accused No.3, forthwith, if
he is not required in any other case.
Sd/-
(H.P.SANDESH)
JUDGE
Sd/-
(VENKATESH NAIK T)
JUDGE
KVK / RHS
List No.: 1 Sl No.: 8
