(PER: HON'BLE MR. JUSTICE VENKATESH NAIK T.)
2. The appellants were accused Nos.1 to 3 and the
respondent-State was the complainant before the trial Court. For
3. The case of the prosecution is as follows:
On 15.11.2012, PW1-Basavaraja, then President of
Doddaullarthy Grama Panchayat, lodged a complaint to the Police,
alleging that when he was proceeding on a motorcycle, by the
side of scene of offence, some shepherds informed about disposal
of an unknown dead body. Thus, he had been to the spot
(Doddaullarthy Kaval) and found dead body of an unknown
person. Hence, he informed the Police, who in turn came to the
spot and received complaint vide Ex.P1. Based on the complaint,
a criminal case was registered in Crime No.149 of 2012 against
unknown person. During the course of investigation, they
arrested accused Nos.1 to 3, interrogated them and recorded their
voluntary statements as per Exs.P39 to 41 and at their instance,
incriminating articles were seized under seizure mahazars. During
the investigation it was revealed that, Chinna Yarriswamy
(hereinafter referred to as the 'deceased') was known to accused
Nos.1 to 3. They borrowed a sum of Rs.2 lakh from the deceased
and could not repay it. As the deceased insisted the accused for
repayment, they hatched a plan to eliminate him. Thus, on
12-11-2012, in the morning, they took the deceased in a Tata
Ace, bearing Registration No.KA-34 TY-4141, and had dinner at
Anitha Dhaba belongs to PW13-Nagaraja, situated on
Doddaullarthy-Challakere Road, on the guise that they would
show treasure at Boredevara Temple, Challakere Taluk. Accused
Nos.1 to 3 assembled near Boredevara Temple along with the
deceased, at that time, accused No.1 assaulted the deceased with
chopper on his back and when he fell down, accused No.3
assaulted the deceased with chopper on the neck and accused
No.2 assaulted the deceased with chopper on his head, neck, face
and all over the body. Thus, the deceased succumbed to the
injuries. Thereafter, the accused robbed gold neck chain-MO14,
two golden finger rings-MOs.17 and 21, Titan watch-MO20, cash
of Rs.2,500/- and disposed the dead body of the deceased by
digging trench in the forest area, concealed the evidence and tried
to destroy the evidence by screening themselves from legal
punishment. Hence, the matter was investigated and the
Investigating Officer-PW29 laid the charge-sheet against these
accused.
4. The matter was committed to the Court of Sessions and
the learned Sessions Judge framed charge against these accused
for the offences punishable under Sections 302, 201 and 397 read
with Section 34 of IPC. These accused pleaded not guilty and
claimed to be tried.
5. In order to prove its case, the prosecution examined in
all twenty-nine witnesses as PWs.1 to 29 and got marked Exs.P1
to P55 and MOs.1 to 26. After completion of the evidence, the
statements of the accused under Section 313 of the Code of
Criminal Procedure, 1973, (for short, 'Cr.P.C.') were recorded. The
case of the accused was of total denial and they did not adduce
any defence evidence.
6. Considering both oral and documentary evidence on
record, the trial Court convicted the accused and held that, the
prosecution proved its case beyond all reasonable doubt that, on
12.11.2012 during night hours, the accused committed the
murder of the deceased and robbed his gold ornaments and other
articles. Hence, the trial Court convicted the accused for the
aforesaid offences. Aggrieved by the judgment of conviction and
order on sentence, the accused have preferred these appeals.
7. We have heard Sri P.B. Umesh, learned counsel for
Sri R.B. Deshpande, learned counsel for the appellants, and
Sri Vijayakumar Majage, learned State Public Prosecutor-II for the
respondent - State, and have examined the records.
8. Learned counsel for the appellants/accused Nos.1 to 3
has contended that the prosecution has utterly failed to prove its
case. The solitary circumstances relied on the prosecution is the
recovery of gold ornaments, but the recovery is not proved. The
material objects are not produced before the Court and the same
are not identified by any of them. As a result, no material
whatsoever was available to connect the accused to the alleged
offences. It is contended that, the extra-judicial confession
attributed to the accused is also not proved. Therefore, such a
confession would not have been made by the accused. Barring
the oral evidence, no other material is available on record to
establish the guilt of the accused. It is further contended that the
trial Court has committed serious error in convicting the accused
on the prosecution evidence, which is highly interested,
contradictory, unreliable and artificial. The prosecution is guilty of
suppression of material facts and has not come forward with true
version of the incident. The trial Court has committed serious
error in holding that the prosecution has proved beyond
reasonable doubt that the accused are guilty of the alleged
offences.
9. Further, he submits that the learned Sessions Judge
ought to have acquitted the accused on the ground that the
complaint is filed against unknown person and taking advantage
of the alleged incident, with the convenience of interested
persons, a false case is concocted against the accused. Further,
there was no motive on the part of the accused to commit murder
of the deceased. The trial Court has committed serious error
relying on interested testimonies, i.e., PWs.8, 9 and 15, who are
relatives of the deceased and further, their evidence do not link
the accused for the offences alleged against them. Further, the
trial Court has committed serious error relying on the evidence of
PWs.2 to 6, which is full of material omissions, contradictions and
further suffers from legal infirmities. The trial Court ought to have
acquitted the accused on the ground that nobody has last seen
together the deceased with the accused and the evidence of
PWs.9, 13, 15, 18 and 19, who alleged to be last seen witnesses
as projected by the prosecution, is full of material omissions,
contradictions and suffer from infirmities. The trial Court should
have acquitted the accused on the ground that recovery of
material objects which are relied upon by the prosecution in the
case are not recovered legally and the evidence of PWs.5 and 6,
who are Pancha witnesses to Exs.P5 and P6 also suffers from legal
infirmities. Further, the prosecution has failed to examine
independent witnesses and there is missing link in the case of the
prosecution. Thus, the trial Court ought to have acquitted the
accused of the charges leveled against them. Thus, he prayed to
allow the appeals.
10. Learned State Public Prosecutor-II has argued in
support of the impugned conviction contending that the
prosecution has proved its case beyond reasonable doubt. The
circumstances of recovery of gold ornaments are proved by the
evidence of PWs.5 and 6 and the ornaments are duly identified by
them. This recovery directly connects the accused to the alleged
offences and establishes that the deceased was murdered and the
evidence of all prosecution witnesses makes out the ingredients of
offence of murder. Therefore, there is no reason to interfere with
the well-reasoned judgment of the trial Court.
11. We have bestowed our careful attention on the
submissions made at the Bar and have carefully examined the
records. In view of the submissions made by the learned counsel
for both parties, the point that arises for the Court's consideration
is:
"Whether the judgment and order of conviction and
sentence passed by the trial Court requires
interference at the hands of this Court?"
12. The prosecution rests its case entirely on
circumstantial evidence. The motive, homicidal death, recovery of
gold ornaments belonging to the deceased and the conduct of the
accused. In the background of above circumstances, let us
examine the prosecution witnesses.
13. PW1-Basavaraja, complainant, has deposed that he
was the President of Doddaullarthy Village Grama Panchayat.
When he was proceeding on a motorcycle, by the side of scene of
offence, some shepherds informed about disposal of dead body.
Accordingly, he had been to spot, i.e. Doddaullarthy Kaval and
found dead body of unknown person. Thus, he informed the said
fact to the Police and lodged the complaint vide Ex.P1.
Immediately, the Police came to the spot. In the cross-
examination, nothing has been elicited to disbelieve the evidence
of PW1 with regard to disposal of dead body and recovery of dead
body at the spot.
14. PW2-Papaiah, witness to recovery mahazars-Exs.P2
and P3, has stated that on hearing the message, he came to know
that someone has committed murder of an unknown person.
Accordingly, the Police called him to act as Pancha, where the
Police drew mahazar vide Ex.P2 and seized MO1-bloodstained
mud, MO2-sample mud, MO3-bloodstained small stones, MO4-ash
and the Police also conducted another mahazar vide Ex.P3 near
the bridge, on the road of Chikkaullarthy, where the accused have
shown MO5-chopper, MO6-bed sheet and MO7-mobile phone and
the Police seized the same in his presence. PW2 was cross-
examined at length. However, nothing has been elicited to
disbelieve the evidence of PW2.
15. PW3-Hanumantharaya, another witness to recovery
mahazars-Exs.P2 and P3. He reiterated the averments as that of
PW2.
16. PW4-Thippeswamy, witness to recovery mahazar-
Ex.P4, has stated that the Investigating Officer drew mahazar vide
Ex.P4 and seized MO8-shirt, MO9-baniyan, MO10-underwear of
the deceased in his presence. PW4 was cross-examined at length.
However, nothing has been elicited to disbelieve the evidence of
PW4.
17. PW5-Chidananda, witness to recovery mahazars-
Exs.P5, P6 and P7, has stated that the Investigating Officer
recovered MOs.11 to 14, i.e. shirt, lungi, mobile and gold neck
chain, respectively, from the house of accused No.2 under Ex.P5;
the Investigating Officer recovered MOs.15 and 16, i.e. shirt and
lungi, from the house of accused No.1 under Ex.P6; and the
Investigating Officer also recovered MOs.18 to 21, i.e. shirt, lungi,
Titan watch and gold ring from the house of accused No.3 under
Ex.P7. Though the learned counsel for the accused cross-
examined this witness in length, however, nothing has been
elicited to disbelieve his evidence.
18. PW6-Thippeswamy, witness to recovery mahazar-
Ex.P8 (body exhume), has stated that about two years back on
hearing the message, he had been to the spot i.e., near
Boredevara Temple at Doddaullarthy Village. The Tahsildar and
the Police came to the spot. At that time, the Police exhumed the
dead body of a male person and drew mahazar as per Ex.P8, for
which, he subscribed his signature as per Ex.P8(a). The Police
seized MO22-bed sheet, MO23-pant, MO24-bloodstained mud and
MO25-sample mud. Thus, this witness has stated about
exhumation of dead body of the deceased and seizure of MOs.22
to 25.
19. PW7-Lakshmana, witness to inquest mahazar, has
stated that the Police conducted inquest mahazar in his presence
vide Ex.P9. He was cross-examined. In the cross-examination,
the learned counsel for the accused has taken contention that
Ex.P9 was drawn at the Police Station, however, the said
suggestion was denied by this witness.
20. PW8-Dodda Yarriswamy is the brother of the
deceased. He has stated that the deceased was his younger
brother. On 12.11.2012, the deceased left his house, but he did
not return. They made best efforts to trace the deceased. Since
he was not traced, he lodged a missing complaint before Dodda
Hirehal Police Station, Andhra Pradesh. Later, on 15.11.2012, the
Dodda Hirehal Police informed him that a dead body has been
traced near Boredevara Temple at Doddaullarthy Village,
Karnataka State. Accordingly, the family members of the
deceased came to the spot and found dead body of Chinna
Yarriswamy. It is his further evidence that the accused had
borrowed a sum of Rs.2 lakh from the deceased, when the
deceased demanded for repayment, these accused took the
deceased pretending that they would show treasure, committed
his murder and robbed his gold chain, ring, mobile, watch and
disposed the dead body. PW8 was cross-examined by the learned
counsel for the accused. He has admitted that the deceased was
doing money lending business and he did not hold any license.
Further, the deceased was missing since three days, hence, he
accompanied the family members of Chinna Yarriswamy to the
Police Station and lodged the missing complaint.
21. PW9-Kenchappa has stated that he is the resident of
Doddaullarthy Village, Challakere Taluk, and he is working as
Cook in Anitha Dhaba situated at Doddaullarthy Village. He further
stated that one day accused Nos.1 to 3 and another person came
to Dhaba and had dinner. After 3-4 days of the incident, accused
Nos.1 to 3 came to Dhaba along with the Police. He identified
accused Nos.1 to 3 and came to know that they committed the
murder of the deceased for wrongful gain.
22. PW13-Nagaraj, witness to last scene theory, has
stated that he is the owner of Anitha Dhaba. He reiterates the
evidence of PW9. Both PWs.9 and 13 were cross-examined by the
learned counsel for the accused, but nothing has been brought on
record to disbelieve their evidence with regard to last scene
theory.
23. PW10-Kum. Shilpa is a relative of accused No.2.
PW14-Shivamurthy is a younger brother of PW10 as well as
brother-in-law of accused No.2. PWs.10 and 14 have stated that
they know accused No.2-Suresha as he is their relative. About
eight years ago, prior to the incident at 8.00 p.m., accused No.2
came to their house along with other accused and the deceased.
They came to their house in a Tata Ace vehicle and demanded the
bed sheet. According to PW10, she supplied the bed sheet to
accused Nos.1 to 3 in the presence of PW14. Thereafter, they
came to know that these accused have committed murder of the
deceased during night hours on 12.11.2012. Later, accused Nos.1
to 3 came to their house along with the Police officials, at that
time, the Police recovered MO6 and MO22- bed sheets. Thus,
PW10 and PW14 have identified accused Nos.1 to 3. They also
identified MOs.6 and 22-bed sheets, which were recovered at the
instance of the accused. PW10 and PW14 were cross-examined by
the learned counsel for the accused. In the cross-examination,
PW14 has stated that he does not know about the deceased.
24. PW11-Rangappa and PW12-Yaraguntappa, witnesses
to exhumation of the dead body from the gravel, have stated that
as per the instructions of the Tahsildar, the dead body of Chinna
Yarriswamy was exhumed and they found injuries all over the
body of the deceased and they came to know that it was a dead
body of Chinna Yarriswamy and they also noticed that the accused
had robbed the jewelries of the deceased.
25. PW15-Gangamma, aunt of the deceased, has stated
that about four years ago, in between 10.00 a.m. and 10.30 a.m.,
when her husband, CW24-Narayanappa was in the house, the
deceased came in his motorcycle to her house and informed her
that he intended to go to Doddaullarthy Village, Challakere Taluk,
for some work and saying so, he parked his motorcycle in front of
the house and boarded the Tata Ace vehicle, brought by accused
Nos.1 to 3. After three days, the wife of deceased viz., Jayamma
called her over phone and informed about missing of the
deceased. Thereafter, she came to know about the dead body of
the deceased found near Doddaullarthy Forest area. Hence, they
went to the forest area of Doddaullarthy Village, Challakere Taluk
and found the dead body of the deceased. Later, they came to
know that accused Nos.1 to 3 have committed the murder of the
deceased and robbed his gold neck chain, rings, watch and mobile
and disposed of his body to avoid payment of Rs.2 lakh borrowed
from the deceased. In the cross-examination, nothing has been
elicited to discard her evidence.
26. PW16-Jayamma, wife of the deceased, has reiterated
the evidence of PW8-Dodda Yarriswamy and PW15-Gangamma
and corroborated her testimony insofar the deceased going along
with accused Nos.1 to 3 and later, finding of the dead body of the
deceased in the forest area of Doddaullarthy Village, Challakere
Taluk.
27. PW17-Ravindranatha Reddy, in whose presence the
accused made extra-judicial confession, has stated that he knows
accused Nos.1 to 3 and the deceased. He further stated that
about four years ago, one day, at 9.30 p.m., accused Nos.1 to 3
came to his house and informed him that they have committed
the murder of Chinna Yarriswamy and the Police will try to search
them and requested him to protect them from the case and they
also requested him that if the Police arrest them, he must assist
them in their release. However, as it was night, he sent them
stating that he shall discuss the issue on the following day. On
the following day, he came to know that they were arrested by
the Police in connection with the murder of the deceased. Later,
he came to know that accused Nos.1 to 3 had borrowed a sum of
Rs.2 lakh from the deceased and as they could not repay the said
amount, they took the deceased stating that they would show the
treasure and committed his murder.
28. PW18-Ramana Reddy and PW19-Venkatesha, last
seen witnesses, have stated that during 2012, on the date of
incident, they saw the deceased in the company of accused Nos.1
to 3 going in goods auto-rickshaw from Gudisalapalli Village
towards Doddaullarthy Village and later, they came to know about
the death of the deceased.
29. PW20-Dr. Dayanandababu, who conducted autopsy on
the dead body of the deceased, and issued Ex.P21-Post-Mortem
examination report.
30. PW21-Ramachandrappa, Tahsildar, who exhumed the
dead body of the deceased and conducted inquest mahazar-Ex.P9.
31. PW22-Venkatesh, Police Constable, who carried F.I.R.
to the Court.
32. PW23-T.V. Sathisha, Assistant Executive Engineer,
who drew the sketch of scene of offence vide Ex.P31.
33. PW24-Priya B.R., Village Accountant, who issued
R.T.C. extract of the land, where the body was exhumed as per
Ex.P32.
34. PW25-Ramanjenaya, Police constable, who was
entrusted to guard the dead body of the deceased at the scene of
offence.
35. PW26-Obanna, Police Constable, who secured the
accused and produced them before the Investigating Officer.
36. PW27-Raghu, Police Constable, who took photographs
of the scene of the offence and during exhumation of the dead
body of the deceased vide Exs.P22 to P27, and P33 to P36.
37. PW28-Boraiah, Sub-Inspector of Police, who received
the complaint, registered F.I.R., secured the accused and
produced them before the Investigating Officer.
38. PW29-Manjunatha, Circle Inspector of Police, who
investigated the matter and filed the charge-sheet against the
accused.
ANALYSIS
39. Admittedly, the case is based on circumstantial
evidence. In a circumstantial evidence, the prosecution has to
prove that the chain of circumstances from which the conclusion
of the guilt has to be drawn should be fully established. It is a
primary principle that the accused 'must be' and not merely 'may
be' guilty before a Court to convict him. The Hon'ble Apex Court
in the case of BOBY v. STATE OF KERALA, reported in 2023
LIVELAW (SC) 50, has held that, there is not only grammatical
but a legal distinction between 'may be proved' and 'must be or
should be proved', and it has been held that, the facts so
established should be consistent only with the guilt of the
accused, that is to say, they should not be explainable on any
other hypothesis except that the accused is guilty and the chain of
evidence must be so complete as not to leave any reasonable
ground to the conclusion consistent with the innocence of the
accused and must show that in all human probabilities, the act
must have been done by the accused. In the light of these guiding
principles, we have to examine the present case.
40. According to the prosecution, these accused had
borrowed a sum of Rs.2 lakh from Chinna Yarriswamy. As the
deceased demanded for repayment, accused Nos.1 to 3 with
common intention, hatched plan to eliminate the deceased to
avoid repayment. Accordingly, they took the deceased pretending
that they would show the treasure near Boredevara Temple and
during night hours, accused Nos.1 to 3 committed his murder near
Boredevara Temple, Doddaullarthy Village, Challakere Taluk,
Chitradurga District, with chopper and in order to screen the
offence, disposed of the dead body by digging a trench and
robbed gold neck chain, two finger rings, Titan watch and cash of
Rs.2,500/- from the deceased.
41. Burden is on the prosecution to prove that the
accused committed murder of the deceased for gain. In order to
establish this aspect, the prosecution relied on circumstantial
evidence.
42. Where a case rests on circumstantial evidence, the
inference of guilt can be justified till all the incriminating facts and
circumstances are found incompatible with the innocence of the
accused. To prove the charges, the prosecution relied on the
following circumstances:
(a) Nature of death of the deceased,
(b) Motive,
(c) Last seen together of the accused and the
deceased before the deceased found dead,
(d) Recovery of gold articles of the deceased,
(e) Identification of gold articles,
(f) Extra-judicial confession, and
(g) Conduct of the accused under Section 106 of the
Indian Evidence Act, 1872.
Reg-Nature of death of the deceased:
43. So far as the death of the deceased is concerned,
PW1-Basavaraja (complainant), PW6-Thippeswamy, PW7-
Lakshmana, PW8-Dodda Yarriswamy, PW15-Gangamma and
PW16-Jayamma have stated that on 15.11.2012, they came to
know that the dead body of the deceased was found in
Doddaullarthy Kaval Forest area, the body was exhumed and they
found visible injuries on the dead body of the deceased, the gold
articles and wrist watch was missing from the dead body of the
deceased. Hence, PW1 lodged the complaint to the Police as per
Ex.P1.
44. The prosecution relied on the evidence of PWs.2 and
3, who have stated that they saw the dead body at the scene of
offence, where the Police conducted recovery mahazars as per
Exs.P2 and P3. Further, PW7-Lakshmana has stated that he saw
the dead body of the deceased near Forest area of Doddaullarthy
Kaval, where the Tahsildar conducted inquest mahazar as per
Ex.P9. Further, PW8-Dodda Yarriswamy, brother of the deceased,
PW15-Gangamma, aunt of the deceased, and PW16-Jayamma,
wife of the deceased, have stated that on 12.11.2012, the
deceased had been to Doddaullarthy for some work along with
accused Nos.1 to 3, but he did not return and after three days,
the dead body of the deceased was found near Boredevara
Temple, Doddaullarthy Kaval Forest area, where the dead body
was exhumed and they identified the body as that of Chinna
Yarriswamy, they identified injuries on the neck of the deceased
and they came to know that accused Nos.1 to 3 committed
murder of the deceased for gain. Therefore, PWs.1 to 3, 7, 8, 15
and 16 have categorically stated that they saw the dead body of
the deceased with homicidal injuries. Therefore, the oral
testimonies of PWs.1 to 3, 7, 8, 15 and 16 clearly establish that
they saw homicidal injuries on the person of the deceased. Their
testimonies stand corroborated by the evidence of inquest
mahazar witnesses and the evidence of the Investigating Officer.
They have described visible injuries on the deceased, which
determined the fact behind death of the deceased.
45. So far as the medical evidence is concerned, the
prosecution relied on the testimony of PW20-Dr. Dayanandababu,
who has stated that on 15.11.2012, he conducted autopsy on the
dead body of the deceased at Mortuary of Government Hospital,
Challakere, between 7:15 p.m. and 9:20 p.m. and made the
observations that 'the body shows the signs of the decomposition.
Eyeballs swollen, testis swollen, skin peels off and shows blebs at
places'. On examination of the dead body, he found the following
external injuries:
i. "Penetration present over front of neck.
ii. Head is crust.
iii. Facial bones and skull bones are fractured at
multiple places beyond alignment
and reorganisation.
iv. Brain matter drained out through the skull."
46. PW20-Doctor opined that the death is due to multiple
injuries sustained. Hence, he issued Post-Mortem examination
report vide Ex.P21. He further opined that, injuries mentioned in
the Post-Mortem examination report could be caused with stone
and chopper.
47. The oral evidence of PW20 and the contents of
Ex.P21-Post-Mortem examination report revealed that the death
of the deceased was due to stab and crush injury sustained.
Hence, the evidence of the Doctor, who conducted the autopsy
and the evidence of the inquest mahazar witnesses go to show
that the cause of death of the deceased was due to antemortem
stab and crush injuries. Thus, the oral evidence of the prosecution
witnesses is corroborated by the medical evidence as to the cause
of death of the deceased. Hence, the homicidal death of the
deceased stands proved.
Reg-Motive:
48. As per the prosecution, accused Nos.1 to 3 had
borrowed a sum of Rs.2 lakh from the deceased. When the
deceased demanded for repayment, accused Nos.1 to 3 with
common intention, hatched plan to commit the murder to avoid
repayment and hence, they took the deceased near Boredevara
Temple, where they committed murder of the deceased. To
establish this aspect, PW16-Jayamma, wife of the deceased,
stated that on 12.11.2012, when she was in her house, her
husband told her that he would visit Urukonda Village,
Ananthapura District, took his motorcycle at 10:30 a.m. and told
her that he would park his motorcycle in front of house of PW15
Gangamma, aunt of the deceased. She further stated that on the
same day, he called her over telephone and told that he will not
return that night and assured her to come on the following day,
but on 13.11.2012, her husband did not return, his mobile was
switched off. Hence, her family members and herself searched for
her husband. Since he was not traced, on 15.11.2012 at
7:00 a.m., she lodged the missing complaint vide Ex.P20 to the
Police and later, at 3:00 p.m., she came to know about tracing of
the body of her husband in Doddaullarthy Kaval Forest area. Thus
PW8, PW15 and herself went to the forest area and found the
dead body of her husband.
49. From the evidence of PW16, it goes to show that
accused Nos.1 to 3 borrowed a sum of Rs.2 lakh from the
deceased and could not repay it and in order to avoid the
repayment; they hatched plan to eliminate the deceased. Thus,
they called the deceased with assurance that they would show
treasure near Boredevara temple, where they committed murder
and snatched gold chain, rings and Titan watch of the deceased.
Hence, the motive also stands proved.
Reg-Last seen together of the accused and the deceased
before the deceased found dead:
50. The third ground on which the prosecution has placed
reliance is the last seen theory. The last seen theory comes into
play when there is proximity of time and place of sighting the
accused and the victim together soon before the victim was found
dead, thereby the possibility of any person other than the accused
being the author of the crime becomes impossible.
51. Insofar as the last seen theory is concerned, we may
refer to the ratio laid down in the case of
STATE OF U.P. v. SATISH reported in (2005) 3 SCC 114,
wherein the Hon'ble Apex Court at paragraph No.22 held as
under:
"22. The last seen theory comes into play where the
time gap between the point of time when the
accused and the deceased were last seen alive and
when the deceased is found dead is so small that
possibility of any person other than the accused
being the author of the crime becomes impossible. It
would be difficult in some cases to positively
establish that the deceased was last seen with the
accused when there is a long gap and possibility of
other persons coming in between exists. In the
absence of any other positive evidence to conclude
that the accused and the deceased were last seen
together, it would be hazardous to come to a
conclusion of guilt in those cases. In this case there
is positive evidence that the deceased and the
accused were seen together by witnesses PWs.3 and
5, in addition to the evidence of PW.2."
(Emphasis supplied)
52. PW9-Kenchappa, who was working as Cook in Anitha
Dhaba situated at Doddaullarthy, Challakere Taluk, has stated
that he knew accused Nos.1 to 3. About four year ago, from the
date of recording of his evidence, one day, he was in Dhaba,
accused Nos.1 to 3 along with another person came in Tata Ace
vehicle, had lunch and left the Dhaba. After three days, accused
Nos.1 to 3 came to Dhaba along with the Police. At that time, he
identified accused Nos.1 to 3 and later, he came to know about
these accused committing murder of the deceased for wrongful
gain. In the cross-examination, he has admitted that himself and
another person are working in the Dhaba. He attends cooking
work and another person supplies food. He further admitted that,
many people visit the Dhaba and hence, movements of every
customer cannot be remembered and rest of the suggestions was
denied by him.
53. The prosecution further relied on the evidence of
PW10-Shilpa, who is relative of accused No.2. In her evidence,
she has stated that accused No.2 is none other than her maternal
uncle. During 2012, she was studying in 9th Standard at Gowra
Samudra School. She is permanent resident of Bande
Thimmalapura Village. Her evidence is that about three years ago,
from the date of recording of her evidence, when she was in her
house along with her brother-PW14, accused Nos.1 to 3 and
another person came to their house at 8.00 p.m. and accused
No.2 sought for two bed sheets and she supplied the same to him
in the presence of her brother. After five days, she came to know
that the person, who had accompanied accused Nos.1 to 3 to their
house, was murdered by accused Nos.1 to 3. Accordingly, the
Police brought accused Nos.1 to 3 to their house and seized MOs.6
and 22-bed sheets. In the cross-examination, she admits that her
brother-PW14 handed over the bed sheets to accused No.2 and
she was inside the house. She does not know the contents of her
statement recorded by the Police. She specifically denied the
suggestions that she is falsely deposing about three years ago
accused Nos.1 to 3 came along with the deceased and sought for
two bed sheets. The learned counsel for the accused did not elicit
from the mouth of PW10 as to any animosity with accused Nos.1
to 3, more particularly, against accused No.2. No suggestions
were put to her by the learned counsel for the accused to discredit
her testimony.
54. The prosecution further examined PW18-Ramana
Reddy, last seen witness, who has stated that he hails from
Gudisalapalli Village, he knows accused Nos.1 to 3 and the
deceased. His evidence is that during 2012, one day, when he
was near his house at Gudisalapalli Village, the deceased came in
motorcycle and informed him that he would go to Doddaullarthy
Village for some work and at the same time, accused Nos.1 to 3
followed him in goods auto-rickshaw towards Doddaullarthy
Village. On the following day, the deceased and accused Nos.1 to
3 did not return to the Village. Hence, he enquired PW16-
Jayamma about the deceased, in turn, she told that she called her
husband, but his phone was switched off. Later, they searched for
the deceased and when they did not find the deceased, the wife of
the deceased lodged the missing complaint. After three days, the
dead body of the deceased was traced in Forest area of
Doddaullarthy Village. Later, he came to know that accused Nos.1
to 3 had borrowed a sum of Rs.2 lakh from the deceased and
could not repay it. Hence, they pretended that they would show
treasure to the deceased and took the deceased to Boredevara
Temple and committed murder of the deceased. He also came to
know that these accused robbed gold neck chain, rings, watch and
mobile phone of the deceased. In the cross-examination, nothing
worthwhile has been elicited to discredit his testimony, except the
admission that he does not know the registration number of the
Tata Ace vehicle.
55. PW19-Venkatesh, another last seen witness, has
stated that he knows these accused and the deceased. The
deceased is his uncle. During 2012, one day, the deceased went
to Doddaullarthy for his work and following him, accused Nos.1 to
3 went in Tata Ace Vehicle towards Doddaullarthy Village and on
the same day, these accused and the deceased did not return.
Hence, they searched the deceased, but he was not traced. On
the following day at 6:00 a.m., he had been to attend nature call,
at that time, accused Nos.1 to 3 came to Gudisalapalli Village in
Tata Ace vehicle, but the deceased did not return. Later, his aunt,
PW16 lodged the missing complaint. Later, he came to know that
accused Nos.1 to 3 had borrowed a sum of Rs.2 lakh from the
deceased and could not repay it. Hence, they pretend that they
would show treasure to the deceased and took the deceased to
Boredevara Temple and committed the murder of the deceased.
He also came to know that these accused robbed gold neck chain,
rings, watch and mobile phone of the deceased. In the cross-
examination, nothing worthwhile has been elicited to discredit his
testimony, except the admission that he does not know the
registration number of the Tata Ace vehicle.
56. The evidence of PWs.9, 10, 18 and 19 clearly
establishes that on 12.11.2012, accused Nos.1 to 3 and the
deceased went towards Doddaullarthy Village in Tata Ace vehicle
and the deceased not returning to his Village. Therefore, the
evidence of PWs.9, 10, 18 and 19 substantiates the prosecution
version that on the relevant date and time, the accused and the
deceased went towards Doddaullarthy Village and the deceased
was in company of the accused and later, the deceased found
dead in Doddaullarthy Kaval Forest area with homicidal injuries.
57. Accused Nos.1 to 3 have not offered any explanation
as to how and when they parted the deceased. In cases of "last-
seen together" circumstantial evidence, when an accused fails to
offer a plausible explanation regarding how and when they parted
ways with the deceased, an adverse inference can be drawn
against them. The last-seen theory is strongest when the time
gap between being seen together and the death is minimal. Thus,
the lack of an explanation for their separation creates a strong
presumption of guilt. Therefore, the evidence of PWs.9, 10, 18
and 19 proved the last seen theory as propounded by the
prosecution beyond reasonable doubt.
Reg-Recovery of gold articles of the deceased:
58. So far as recovery of gold articles, the prosecution
relied on the evidence of PW5, who has stated that he knew these
accused and the deceased and they are from the same Village. His
evidence is that in connection with the murder of the deceased,
the Police brought the accused to Gudisalapalli Village, at that
time, the accused disclosed that they would furnish certain articles
and accordingly, accused No.2 accompanied the Police, CW8-
Palaksha and himself to his house and furnished MOs.11 to 14,
i.e. shirt, lungi, mobile and gold neck chain, respectively. Thus,
the Police seized those articles under Ex.P5-recovery mahazar.
59. It is his further evidence that thereafter, accused No.1
accompanied the Police, CW8-Palaksha and himself to his house
and furnished MOs.15 to 17, i.e. shirt, lungi and gold finger ring,
respectively. Thus, the Police seized the same under Ex.P6-
recovery mahazar and accused No.1 also furnished Tata Ace
vehicle.
60. It is his further evidence that thereafter accused No.3
accompanied the Police, CW8-Palaksha and himself to his house
and furnished MOs.19 to 21, i.e. shirt, lungi and gold ring,
respectively. Thus, the Police seized the same under Ex.P7-
recovery mahazar. PW5 identified all the seized articles and also
identified the photographs taken at the time of conducting
mahazars.
61. PW5 was cross-examined. In the cross-examination,
he admits that the Police did not issue any notice in writing to him
to act as Pancha. He does not know to read, write and speak the
Kannada language. However, he knows the contents of all the
three recovery mahazars. He further admits that as soon as he
visited the house of accused Nos.2 and 3, the doors were open
and it was not locked. The Police did not seal and packed the
seized articles in his presence. There were several houses near
the houses of accused Nos.1 to 3 and rest of the suggestions was
denied by PW5.
62. In order to corroborate the oral testimony of PW5,
the prosecution examined PW29-Investigating Officer. He deposed
supporting recoveries of MOs.11 to 21 under Exs.P5, P6 and P7 at
the instance of accused Nos.1 to 3. The evidence regarding
circumstance was cogent and consistent. Therefore, the trial Court
was justified in holding that the said circumstance was proved.
63. In the case of PULUKURI KOTTAYYA
AND OTHERS v. KING EMPEROR reported in 1946 SCC
ONLINE PC 47, the Hon'ble Privy Council has held as under:
Head Note: xxx xxx "fact discovered" within the
section as equivalent to the object produced, xxx
xxx. The fact discovered embraces the place from
which the object is produced and the knowledge
of the accused as to this, and the information
given must relate distinctly to this fact.
"27. xxx xxx The section seems to be based on
the view that if a fact is actually discovered in
consequence of information given, some
guarantee is afforded thereby that the information
was true, and accordingly can be safely allowed to
be given in evidence.''
64. In this case, these accused during their Police custody
confessed regarding the place, where incriminating articles,
namely, gold neck chain-MO14, gold ring-MO17, Titan watch-
MO20, and gold ring-MO21 were placed. Hence, these accused
led the Police and Panchas to their respective houses, produced
those articles along with their clothes, mobile phones and other
articles. That amounts to discovery of the fact which was within
their special knowledge and the said fact discovered is very
relevant.
65. It could thus be seen that Section 27 of the Indian
Evidence Act, 1872, requires that the fact discovered embraces
the place from which the object is produced and the knowledge of
the accused as to that and the information given must relate
distinctly to the said fact. Having regard to the evidence discussed
above, it goes to show that the circumstance of recovery of
incriminating material is proved.
Reg-Identification of gold articles:
66. The prosecution in order to identify the gold articles
belonging to the deceased, which were seized from the possession
of these accused, got examined PW16-Jayamma, wife of the
deceased. She identified MOs.13, 14, 17 and 20, i.e. mobile, gold
neck chain, ring and Titan watch, respectively, belonging to the
deceased. Therefore, identification of seized properties stands
proved.
Reg-Extra-judicial confession:
67. The prosecution also relied on the extra-judicial
confession of accused Nos.1 to 3. An extra-judicial confession
made to a person, other than Judge or Magistrate, is generally
considered as weak piece of evidence. While it can form the sole
basis for consideration, if proven voluntary, truthful, and reliable,
however, it shall be corroborated by other circumstances. In this
regard, the prosecution examined PW17-Ravindranatha Reddy, in
whose presence these accused made extra-judicial confession. He
has stated that himself, accused Nos.1 to 3 and the deceased
hails from the same Village. He stated that about four years ago,
one day, at 9.30 p.m., accused Nos.1 to 3 came to his house and
informed him that they have committed the murder of Chinna
Yarriswamy. Hence, the Police will search them and requested
him to protect them from the case and they also requested him
that if the Police arrest them, he must assist them in their release.
Since it was night, he sent them stating that he shall discuss the
issue on the following day. On the following day, he came to
know that these accused were arrested by the Police in connection
with the murder of Chinna Yarriswamy. Later, he came to know
that accused Nos.1 to 3 had borrowed a sum Rs.2 lakh from the
deceased and as they could not repay the said amount, they took
the deceased stating that they would show the treasure near
Doddaullarthy Village, Chitradurga, and committed the murder of
the deceased.
68. The trial Court has relied on this piece of evidence as
extra-judicial confession. In our view, the evidence of PW17
satisfies the requirement of extra-judicial confession so as to
render accused Nos.1 to 3 guilty for the murder of the deceased.
69. Regarding the appreciation of evidence in Extra-
Judicial confession, the Hon'ble Apex Court in the case of
SAHADEVAN AND ANOTHER v. STATE OF TAMIL NADU
reported in (2012) 6 SCC 403, at paragraph No.16, has held as
follows:
"16. Upon a proper analysis of the above referred
judgments of this Court, it will be appropriate to state the
principles which would make an extra-judicial confession
an admissible piece of evidence capable of forming the
basis of conviction of an accused. These precepts would
guide the judicial mind while dealing with the veracity of
cases where the prosecution heavily relies upon an extra-
judicial confession alleged to have been made by the
accused:
(i) The extra-judicial confession is a
weak evidence by itself. It has to be
examined by the court with greater care
and caution.
(ii) It should be made voluntarily and should
be truthful.
(iii) It should inspire confidence.
(iv) An extra-judicial confession attains
greater credibility and evidentiary value
if it is supported by a chain of cogent
circumstances and is further
corroborated by other prosecution
evidence.
(v) For an extra-judicial confession to be the
basis of conviction, it should not suffer from
any material discrepancies and inherent
improbabilities.
(vi) Such statement essentially has to be
proved like any other fact and in accordance
with law."
(emphasis supplied)
70. The Hon'ble Apex Court in the case of PAWAN
KUMAR CHOURASIA v. STATE OF BIHAR reported in 2023
SCC OnLine SC 259, at paragraph No.6, has held as follows:
"6. As far as extrajudicial confession is concerned, the
law is well settled. Generally, it is a weak piece of
evidence. However, a conviction can be sustained on
the basis of extrajudicial confession provided that the
confession is proved to be voluntary and truthful. It
should be free of any inducement. The evidentiary
value of such confession also depends on the
person to whom it is made. Going by the natural
course of human conduct, normally, a person
would confide about a crime committed by him
only with such a person in whom he has implicit
faith. Normally, a person would not make a
confession to someone who is totally a stranger to him.
Moreover, the Court has to be satisfied with the
reliability of the confession keeping in view the
circumstances in which it is made. As a matter of rule,
corroboration is not required. However, if an
extrajudicial confession is corroborated by other
evidence on record, it acquires more credibility."
(emphasis supplied)
71. The judgments cited supra and the evidence of PW17
indicate that the accused were acquainted with him as he is also
resident of the same Village and moreover, he was Sarpanch
(Chairman of Gram Panchayat) of Hirehal Mandal, Rayadurga
Taluk, Andhra Pradesh. Even if his evidence is believed, it would
go to show that he met these accused. The evidence indicates
that there was interaction between PW17 and these accused and
these accused reposed confidence in PW17 and therefore, it shows
that these accused had implicit faith in PW17. He was in a
position to help these accused. Therefore, it can be believed that
these accused approached PW17 and confessed the alleged crime
with him. The statement of PW17 inspires confidence to hold that
these accused had made such confession before him.
Reg-Conduct of the accused under Section 106 of the
Indian Evidence Act, 1872:
72. According to the prosecution, on committing the
crime, accused Nos.1 to 3 came to their respective houses by
robbing MOs.13, 14, 17, 20, and 21, i.e. mobile, gold neck chain,
gold ring, Titan watch and gold ring, respectively, belonging of the
deceased. The incident took place on 12.11.2012, the dead body
of the deceased was found on 15.11.2012 and the belonging of
the deceased was seized on 17.11.2012 under recovery
mahazars-Exs.P5, P6 and P7 at the instance of accused Nos.1 to
3, pursuant to their voluntary statements vide Exs.P39, P40 and
P41, respectively. Hence, this is also one of the chain links in the
evidence.
73. So far as invoking Section 106 of the Indian Evidence
Act, 1872, the prosecution must first establish that there was
some fact within the special knowledge of the accused. In a case
of circumstantial evidence, the accused being the master of the
crime alone knows the circumstances which led to death. This
Section mandates that the facts that are within the exclusive
knowledge of the accused shall be explained by him alone. Non-
explanation of incriminating circumstances leads to an inference
that the accused and the accused alone is the author of the crime.
74. Once the prosecution is able to establish that, at the
relevant time, these accused took the deceased pretending that
they would show treasure near Boredevara Temple, committed his
murder and robbed his gold articles, watch, mobile, and same
were seized from the possession of these accused. Thus, how the
deceased died and how his belonging came in possession of these
accused are exclusively within the knowledge of these accused.
The burden of proof would lie upon these accused to explain that.
Whereas, in this case, these accused have not offered any
explanation for the said circumstances and their failure to offer
reasonable explanation itself provides an additional link in the
chain of circumstances.
75. It is now well settled that in a case based on
circumstantial evidence, the circumstances from which the
conclusion of guilt is drawn should be fully proved and such
circumstances must be conclusive in nature. There should be no
gap left in the chain of circumstances. Further, the proved
circumstances must be consistent only with the hypothesis of the
guilt of the accused and totally inconsistent with his innocence. In
the instant case, the circumstances proved by the prosecution, in
our opinion, form a complete chain unerringly pointing to the guilt
of these accused for the murder of the deceased. It is established
beyond pale of doubt that these accused murdered the deceased
and robbed his belongings for gain. The recovery of the gold
articles at the instance of these accused establishes the fact that
murder was committed by them for gain.
76. After hearing the learned counsel appearing for the
parties and on examining the material on record, we find no error
in the case of the prosecution. On overall consideration of all the
above facts and circumstances, we are of the considered opinion
that the prosecution has proved the guilt of these accused beyond
reasonable doubt for the alleged offences. The trial Court,
therefore, was justified in convicting these accused for the
aforesaid offences. We do not find any error or infirmity
whatsoever in the findings recorded by the trial Court. Even on
reconsideration of the material on record, we do not find any
reason to differ with the view taken by the trial Court. As a result,
the conviction of these accused for the offences punishable under
Sections 302, 397 and 201 of IPC needs to be confirmed. Hence,
we pass the following:
ORDER
i. Criminal appeals are dismissed.
ii. The judgment of conviction dated 6.2.2018 and order
on sentence dated 8.2.2018 in Sessions Case No.30 of
2013 passed by the Principal District and Sessions
Judge, Chitradurga, against the appellants/accused
Nos.1 to 3 for the offences punishable under Sections
302, 397 and 201 read with Section 34 of the Indian
Penal Code, 1860, are hereby confirmed.
Sd/-
(H.P. SANDESH)
JUDGE
Sd/-
(VENKATESH NAIK T)
JUDGE
AM / MN / KVK
