IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 18TH DAY OF FEBRUARY, 2019 PRESENT THE HON'BLE MR. JUSTICE K.N. PHANEENDRA AND THE HON'BLE MR. JUSTICE K. NATARAJAN CRIMINAL APPEAL NO.793 OF 2014 BETWEEN:
BHOJYANAIKA S/O. DHARMANAIKA, AGED ABOUT 24 YEARS, RESIDENT OF CHIKKAMAGADI THANDA, SHIKARIPURA TALUK, SHIMOGA DISTRICT.
... APPELLANT (BY SRI HASHMATH PASHA, SENIOR ADVOCATE, FOR M/S. HASHMATH PASHA ASSOCIATES) AND:
STATE OF KARNATAKA BY SHIRALKOPPA POLICE, SHIKARIPURA TALUK, SHIMOGA DISTRICT.
... RESPONDENT (BY SRI VIJAYAKUMAR MAJAGE, ADDL. S.P.P.) * * * THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374(2) OF THE CR.P.C PRAYING TO SET ASIDE THE JUDGMENT DATED 17/18.07.2014 PASSED BY THE II ADDITIONAL DISTRICT AND SESSIONS JUDGE, SHIMOGA, IN S.C. NO.151 OF 2012 CONVICTING THE APPELLANT/ACCUSED FOR THE OFFENCES PUNISHABLE UNDER SECTIONS 302, 201 AND 404 OF THE I.P.C. AND CONSEQUENTLY, ACQUIT THE APPELLANT FROM THE ALLEGED CHARGES AND HE MAY BE SET AT LIBERTY.
THIS CRIMINAL APPEAL COMING ON FOR HEARING THIS DAY, K. NATARAJAN, J., DELIVERED THE FOLLOWING:
J U D G M E N T The appellant is the sole accused in Sessions Case No.151 of 2012 on the file of the II Additional District and Sessions Judge, Shimoga, being tried and convicted for the offences punishable under Sections 302, 201 and 404 of the Indian Penal Code (for short, ‘the IPC’). He has been sentenced to undergo imprisonment for life and to pay a fine of Rs.25,000/- and in default of payment of fine, he shall undergo rigorous imprisonment for four months for the offence punishable under Section 302 of the IPC and sentenced to undergo rigorous imprisonment for three years and to pay a fine of Rs.10,000/- and in default of payment of fine, he shall undergo rigorous imprisonment for three months for the offence punishable under Section 201 of the IPC and he also sentenced to undergo rigorous imprisonment for two years and to pay a fine of Rs.5,000/- and in default of payment of fine, he shall undergo rigorous imprisonment for two months for the offence punishable under Section 404 of the IPC vide judgment dated 17/18.07.2014.
2. Heard the arguments of Sri Hashmath Pasha, the learned senior counsel for the appellant, and the learned Additional State Public Prosecutor. Perused the records. The brief facts of the case of the prosecution is that;
PW.1-Shivyanaika, the father of the deceased, filed a report as per Ex.P.1 on 15.03.2012 alleging that he is residing with his wife and daughter-
Annapurna, who is aged 18 years, studying in 10th Standard. On 09.03.2012, his daughter went to School to attend sharadha pooja by wearing gold ornaments of his wife and came back in the evening. His wife and daughter slept together in the room. At about 2:00 a.m., his wife and himself could not find their daughter, they searched for their daughter in the surrounding areas and in relatives’ houses. On 15.03.2012, he has filed a missing complaint before the Police. Thereafter, on 18.05.2012, he came to know through the Villagers that a dead body of a female is found in the forest area located at Banashankari temple. He and his wife went to the spot and after seeing the dress material on the dead body, they ascertained that it is the body of their daughter. Therefore, on the same day, he lodged a complaint as per Ex.P.2. After registering the case, the Police have arrested the accused and he has given the voluntary statement and they have recovered the incriminating material. After investigation, the Police filed charge-sheet against the accused.
3. The trial Court, after securing the presence of the accused, after receipt of the committal records, framed the charges under Sections 302, 201 and 404 of the IPC and put the accused on trial. The prosecution in all examined 25 witnesses as PW.1 to PW.25 and got marked 43 documents as per Ex.P.1 to Ex.P.43 and also got marked 14 material objects as per MO.1 to MO.14. Thereafter, the accused was examined under Section 313 of the Code of Criminal Procedure. When the incriminating material against the accused was read over to the accused, the case was one of the total denial, but he has not entered into any defence. After hearing, the trial Court has found guilt of the accused, convicted and sentenced the accused, as stated supra.
4. Sri Hashmath Pasha, the learned senior counsel appearing for the appellant, has strenuously argued that the prosecution evidence relied upon circumstantial evidence and the entire material, i.e. recovery of golden ornaments belonging to the deceased by the voluntary statement of the accused, the abscondence of the accused and last seen theory of the accused found with the deceased were not at all proved by the prosecution, but the trial Court without proper appreciation of the evidence, recorded conviction, which is erroneous. Hence, he prayed for setting aside the judgment of conviction and order of sentence passed by the trial Court.
5. Per contra, Sri Vijayakumar Majage, the learned Additional State Public Prosecutor for the respondent–State, has contended that the prosecution has proved the circumstances with regard to last seen theory. PW.4-Manjunatha has seen the deceased and the accused prior to missing of the deceased and PW.2-Peekyanaika has also stated in his evidence that the deceased had given a call to the accused, on the date on which the deceased went on missing. After arrest of the accused, the Police have recovered MO.9-mobile phone, which was used by the accused to contact the deceased. The call details produced and marked through the Investigating Officer which suggests that the accused contacted the deceased continuously through MO.9. He further contended that the Police have recovered MO.1-golden balls of the chain (34 balls) belonging to the deceased from the house of the accused, after recording the voluntary statement of the accused. It is also contended that after commission of the offence, the accused was absconding and the same was proved by the prosecution beyond reasonable doubt. Therefore, he contended that the prosecution has proved the case beyond reasonable doubt. Hence, he supported the judgment of conviction and order of sentence passed by the trial Court and prayed for dismissal of the appeal.
6. Before adverting to the submissions made by the learned counsel on each and every circumstance in this case, we feel it just and necessary to have a closer look at the evidence of the prosecution witnesses, which is as under;
6.1 PW.1-Shivyanaika, father of the deceased, has deposed that on 09.03.2012, his daughter had been to School, on that day, she was wearing golden ornaments for the purpose of taking photograph in the School function. She returned as usual and after taking food by 8.00 p.m., they went for sleep. At about 2.00 a.m., his wife informed him that she could not find the daughter in the house. Hence, they searched their daughter in the surrounding areas, but she was not found. Thereafter, they searched her for 8-10 days in the relatives’ houses and could not find even there. It is also stated that on 19.03.2012, they got to know that her daughter used to call somebody through coin telephone booth belonging to Peekyanaika. When they enquired with Peekyanaika, he gave some mobile number ending with xxx63 that the deceased used to receive the call. Thereafter, on 15.03.2012, he gave complaint as per Ex.P.1 regarding missing of his daughter. Thereafter on 18.05.2012, he received some information that a dead body was found in a gunny bag, then himself, his wife and son went to the spot and saw the decomposed body. On the basis of dress, clips and slipper, they ascertained that it is the body of their daughter. At that time, Police came to spot and they have taken second complaint as per Ex.P.2. Based upon his statement, the Police after registering the case, prepared spot panchanama as per Ex.P.3 and in the complaint, he has suspected the accused. He further deposed that on 11.06.2012, he took his wife to the Magistrate, where blood sample of his wife was taken for the purpose of DNA test. He further deposed that on the next day of recovery of dead body, the Police have arrested the accused and recovered golden balls, i.e. gundus from his house. He also identified 34 golden balls (gundus) marked as MO.1, he also identified MO.2-ear studs and hangings and MO.3-kenne sara. He also identified the photographs of said ornaments in the Court. He also identified MO.6-Chudidaar top and MO.7-veil (Dupatta) and MO.8-hairpin.
6.2 PW.2-Peekyanaika is a teacher, who is also running a coin telephone booth in his house. He has deposed that on 09.03.2012 at about 5.30 to 6.30 p.m., the deceased came to his coin booth and taken one rupee 2 coins and spoke over the telephone and told that she will come at 9.00 p.m. thereafter, she went back. Subsequently, he had received a phone call from the same number and requested him to call the girl, who had just spoken to her. By that time, she had left that place. He asked who is calling, at that time, the person from other side told his name as Bhojyanaika (the accused herein). He also deposed that on 10.03.2012, he met PW.7 and gave mobile No.9538113663 to him as he suspected something.
6.3 PW.3-Krishna Naika has deposed that prior to disappearance of the deceased, he saw the deceased with the accused in the maize field.
6.4 PW.4-Manjunatha has deposed that on 09.03.2012 at 10.00 p.m., when himself and his friend Prabhanaika were proceeding to Chikkamagadi Thanda, at that time, he saw the accused and the deceased together, but he did not suspect anything. After 4 to 5 days, he got to know that the deceased was missing. On 18.05.2012, he came to know that a dead body of the deceased was found, he went to the spot and saw the dead body.
6.5 PW.5-Gowribai is the mother of the deceased. She has also deposed on the same line of the husband, i.e. PW.1. Her daughter had been to School on the date of missing. On that day, there was shardha pooja and photo programme in the School, hence, she was wearing gundina sara, hangings, kenne sara. When she returned from her work, the daughter was there in the residence. They slept together and when she woke up at 2.00 a.m., she did not find the deceased. They searched the deceased, but she was not found. After 4 to 5 days, a missing complaint has been filed. After 2 months, they found a decomposed dead body of their daughter. She also identifies MOs.1 to 3 belonging to her which was given to the deceased and MOs.4 to 8 belonging to her daughter.
6.6 PW.6-Devaraj is the brother-in-law of the accused. This witness is examined by the prosecution in order to prove the guilt of the accused, who is said to have committed the murder of the deceased. He has denied as to pledging of golden ornaments which were handed over to him by the accused. But this witness turned hostile and not supported the case of the prosecution. Nothing has been elicited from this witness and he has denied the statement made before the Police as per Ex.P.5.
6.7 PW.7-Kumar Naika is the hearsay witness.
He came to know about missing of the deceased and also death of the deceased. His evidence is also not much significant to hold the case of the prosecution.
6.8 PW.8-Venkatesha Naik, who is a panch witness, has deposed that on 18.05.2012, the Police called him near Banashankari temple, for drawing Ex.P.3-spot mahazar. Accordingly, he went there and saw the dead body in a gunny bag and the Police have seized the same. He has signed the mahazar at the spot. He also signed Ex.P.6-inquest mahazar. With regard to recovery of the dead body on the spot was not in dispute.
6.9 PW.9-Prasanna has deposed that on 22.05.2012, at the request of the Police, he went to the Police Station, the Police seized MO.9-mobile phone, which was in the custody of the accused. When the mobile phone was inspected, there was no SIM. He has signed the mahazar-Ex.P.6. Learned counsel for the appellant contended that though MO.9 is seized by the Police, after the arrest of the accused, the same is not in accordance with law. However, seizure of MO.9 will be discussed in the later part of the judgment.
6.10 PW.10-Erappa Naika is another seizure panch witness. He has deposed that in the month of May-2012, the Police came and took him to the house of the accused, where one bike, one spade and 34 golden balls were seized under Ex.P.7 and the Police also took the photographs. He also identified MO.10-spade. He has also stated that the accused took the Police and this witness to Holakatte road and about 25 feet away from main road, he has shown the spot where the dead body was thrown. Ex.P.7-seizure mahazar, Exs.P.8 to P.12 are the photographs and Ex.P.13- seizure mahazar marked through PW.10.
6.11 PW.11-Arun Kumar is working in Muthoot Finance. He has stated that PW.6-Devaraj was his customer and he has pledged some gold ornaments. On 22.5.2012, the Police came along with PW.6 and seized ear studs and hangings-MO.2 and kennesara-MO.3. He also identified Exs.P.14 and P.15 are the receipts for pledging and closing of accounts.
6.12 PW.12-Shambulingaswamy has agency to allot coin telephone booth. He has stated that PW.2- Peekyanaika was allotted coin telephone booth. The evidence of this witness is not much significant, as there is no dispute with regard to installing the coin telephone booth in the house of PW.2.
6.13 PW.13-Peekyanaika is the elder brother of the accused. He has stated that he is having a bike, bearing registration No.KA-15/K-9801, which was seized by the Police and it was released in his favour. He identifies the photographs Exs.P.8 to P.12. Absolutely, there is no connecting evidence to show how this bike was used for the commission of the offence. Therefore, there is no significant in the seizure of the bike.
6.14 PW.14-Albert Sequiera is a Branch Manager of Muthoot Finance. He has deposed that PW.6-Devaraj had bought gold ornaments weighing 7.9 grams, he pledged the same and took money. On 22.05.2012, the Police had come with the accused and informed that the gold ornaments were pledged at the instance of the accused. He has produced the gold ornaments before the Police and the Police had seized the same under Ex.P.4 and he also identified the articles MOs.2 and 3, which were seized from his Branch.
6.15 PW.15-Dr. Vrinda J. Bhat, Medical Officer, who conducted the Post-Mortem on the dead body of the deceased and gave the Post-Mortem Report as per Ex.P.17. She has deposed that on 19.05.2012, she received requisition from Shiralkoppa Police for conducting autopsy on a decomposed skeletonized body. She has collected the skull and bone for the purpose of DNA. This witness has not given any opinion as to cause of the death. Later, she has examined the veil and gave opinion that veil is sufficient to strangulate and cause death and her opinion is marked as Ex.P.18. Therefore, the evidence of this witness is not much significant.
6.16 PW.16-Puttabasavaih, Assistant Director of F.S.L, Bengaluru, has deposed that on 14.06.2012, he received requisition from Shikaripura Police with two sealed articles pertaining to Crime No.42/2012 of Shiralkoppa Police. He has examined the gunny bag adhering with soil and also sample soil collected on the spot. He gave report as per Ex.P.19 that both soil are one and the same. The evidence of this witness is not disputed by the learned counsel for the accused.
6.17 PW.17-Basappa, Assistant Engineer, prepared the sketch as per Exs.P21 and 22. The evidence of this witness is also not in dispute.
6.18 PW.18-Ramesha is the Head Master of the School, where the deceased had studied and he issued School Certificate as per Ex.P.23. The same is also not in dispute.
6.19 PW.19-Dr. Gurumurthy has deposed that at the request of the Police, he has drawn the blood of PW.5-Gowribai for DNA test. The evidence of this witness is also not disputed.
6.20 PW.20-Paramesha Naika is a panch witness, who signed the mahazar-Ex.P.4. He has deposed that he does not know the contents. He has turned hostile and not supported the case of the prosecution.
6.21 PW.21-Dr. Lingegowda is an Expert of F.S.L., who has examined the under garments of the deceased. He has opined that there was no symptom of semen stains on the clothes of the deceased and gave report as per Ex.P.24. There is no allegation that the deceased was raped by the accused.
6.22 PW.22-Shanmukappa is the Assistant Sub-Inspector of Police. He has deposed that he has produced 10 articles before the Circle Inspector of Police, which were handed over to him at the time of Post-Mortem. His report is marked as Ex.P.25. There is no dispute in this regard.
6.23 PW.23-Harish K. Patel is the Inspector.
He has deposed that on 15.03.2012 at about 10.00 a.m., he received a complaint from PW.1 as to missing of the deceased. He has registered a case in Crime No.42/2012 and issued F.I.R. On 16.03.2012, he had visited the spot and prepared panchanama. He also deputed his staff for searching the deceased. On 18.05.2012 at about 11.30 a.m., PW.1 informed that body of a lady was found at the plantation and PW.1 identified the same as body of his daughter. Hence, second complaint was taken and permission was sought from the Magistrate to add Section 302 of the IPC; then the accused was arrested on 20.05.2012 in the morning hours and produced before the Circle Inspector of Police and gave report as per Exs.P.27 and P.28.
6.24 PW.24-Suresha is the Investigating Officer. He has deposed that on 20.05.2012, the accused was produced before him, recorded Ex.P.32- confession statement of the accused, recovered the articles and laid the charge-sheet. He has written a letter for DNA test and in presence of the Magistrate, sample blood of the mother of the deceased was drawn for DNA test. Skull and radius bone along with sample blood have been sent for F.S.L and the DNA report is marked as Ex.P.35. There is no much cross-examination on this witness and identification of the dead body of the deceased was also not disputed. Therefore, from the evidence of this witness and the blood group of PW.5-mother of the deceased, the prosecution is able to prove that the dead body belongs to the deceased.
7. On perusal of the entire material on record, the prosecution mainly relied upon six circumstances;
i. Motive;
ii. Missing of the deceased and recovery of dead body on 18.05.2012 near Banashankari temple in a plantation;
iii. Last seen theory, i.e. the accused found with the deceased together prior to missing of the deceased;
iv. Exchange of phone calls between the deceased and the accused;
v. Absconding of the accused, after missing of the deceased; and vi. Arrest of the accused and articles recovered on the voluntary statement of the accused.
7.1 Prosecution though projected the motive for commission of offence that the accused and the deceased fell in love and the deceased insisting the accused to marry her and therefore, at the force of the deceased, the accused and the deceased left the home, but the accused wanted financial help from the deceased and to avoid the marriage. None of the witnesses have spoken about the motive aspect.
7.2 The second circumstance relied by the prosecution is that missing of the deceased on 09.03.2012 and recovery of the dead body of the deceased on 18.05.2012 which is not disputed by the defence. The evidence of PWs.1 and 5, the parents of the deceased, clearly goes to show that the deceased was found missing from the house of PW.1 from the midnight, i.e. on 09.03.2012 and later, the dead body was found in a plantation on 18.05.2012 and a complaint has been filed by PW.1 before the Police. The evidence of the Investigating Officer clearly goes to suggest that the deceased was found missing from 09.03.2012. Thereafter, the dead body belongs to the deceased was found on 18.05.2012. The prosecution is successful in proving this circumstance.
7.3 The third circumstance projected by the prosecution is that the deceased and the accused were last seen together prior to missing of the deceased. In this regard, the prosecution examined PW.4-Manjunatha, who has deposed that on 09.03.2012 at 10.00 p.m., when himself and his friend Prabhanaika were proceeding to Chikkamagadi Thanda, at that time, he saw the accused and the deceased together. After 4 to 5 days, he got to know that the deceased was missing. Thereafter, on 18.05.2012, he came to know that a dead body of the deceased was found. He had gone near Banashankari Temple, saw the dead body and gave statement to the Police. As per the evidence of this witness, he saw the deceased and the accused on 09.03.2012 and during cross-examination, he has stated that he saw the deceased and the accused 10 - 12 feet away, when they were going on a cart road and he also admitted that there was no street light and he also admitted that he saw the accused and the deceased with the help of his bike light and has not suspected them. In respect of this fact, he has not intimated to any of the person, even though, he had knowledge that the deceased was missing from the house and her father was searching the deceased. Learned counsel for the accused has seriously contended that this witness is not reliable and not seen the deceased with the accused on 09.03.2012. Therefore, the evidence of this witness cannot be acceptable. Learned Additional State Public Prosecutor has contended that though this witness has not intimated to anybody, but his evidence cannot be disbelieved as he has supported the case of the prosecution. However, the evidence of this witness plays a vital role as he has seen the accused on the date of missing of the deceased. Therefore, the evidence of this witness is reliable.
On perusal of Ex.P.6-inquest panchanama, PW.5-mother of the deceased has last seen the deceased and the Investigating Officer recorded the statement of this witness. Apart from that, even though PW.4 came to know that the deceased was found missing from 09.03.2012, but he has not informed to the parents of the deceased that the accused and the deceased together seen by him and also not informed anybody even at the time of inquest. The statement was also not recorded at the time of inquest. Therefore, the evidence of this witness is not reliable to prove the circumstance that this witness has last seen the deceased with the accused on 09.03.2012.
The prosecution also examined PW.3-Krishna Naika. As per the evidence of this witness, he saw the deceased and the accused in the maize field four days prior to missing of the deceased. In the cross- examination, he has admitted that he has not informed the same to the parents of the deceased or anybody else. Therefore, the evidence of this witness cannot be acceptable in support of the case of the prosecution, as he could have intimated the parents of the deceased when they were searching the deceased. Even though he had knowledge of missing of the deceased, but he has not informed anybody. Therefore, the conduct of this witness is unbelievable and it appears that he is a planted witness. Therefore, we are unable to accept the evidence of P.Ws.3 and 4. Hence, we hold that the prosecution has failed to prove the last seen theory beyond all reasonable doubt.
7.4 The fourth circumstance relied by the prosecution is that the accused used to contact the deceased by mobile phone and the Police have seized MO.9-mobile phone from the possession of the accused. MO.34 is the call details of the accused cell phone and the coin telephone booth belonged to PW.2. Though the call list shows that there was incoming and outgoing calls from the mobile phone No.9538113663, which was used by the accused to contact the coin telephone booth No.9632652399 and to the mobile phone number belonging to PW.5, mother of the deceased, but the prosecution has not examined the service provider in respect of using of phone number by the accused. Apart from that, the phone number through which the accused alleged to have been called does not belong to the accused and it belongs to an unknown lady and she was not examined. Though the SIM card activated in the year 2010, but there is no connecting evidence to show how the SIM card came to the hands of the accused and also the prosecution not able to connect that the accused himself used the SIM card through MO.9-mobile phone. Learned counsel also contended that IMEI number is not collected by the Police to show that the same was in the possession of the accused and used by him for calling the deceased through mobile phone. In this aspect, the prosecution has also examined PW.2, who is running the coin telephone booth. This witness has stated that on 09.03.2012, the deceased after taking 2 coins of 1 rupee, told the other person over the phone on the other end to come by 9:00 p.m. After few minutes, there was call to the coin telephone booth from the accused and requested to call the deceased. By that time, the deceased had already left the place and the person from other side told his name as Bhojyanaika-the accused. He, himself, admitted that he has not told to the Investigating Officer when he was examined by the Investigating Officer. Even the Police after registering the case of missing and the Sub-Inspector of Police has not enquired with PW.2 in respect of calls by the accused through coin telephone booth of PW.2. Though coin telephone booth was not disputed by the defence, but not connected the accused with the mobile phone No.9538113663. The Investigating Officer though collected Ex.P.34-call details, but not seized the SIM card and not established the fact that the SIM card was in use of the accused till 09.03.2012.
7.5 The fifth circumstance relied by the prosecution is that the accused was absconding after the deceased was missing from 09.03.2012. In this regard, PW.1-father of the deceased, and PW.5- mother of the deceased, have stated that, the accused was found missing after the deceased was missing on 09.03.2012. Even the house of the accused was situated just next to two house of PW.1. They have stated that, the accused was only seen by them after his arrest. PW.5-Gowribai, mother of the deceased, admitted in the cross-examination that the accused was found in the house when the deceased was missing. Thereafter, the accused went to Kerala for the purpose of work. None of the witnesses were examined by the prosecution to establish that the accused was absconding from 09.03.2012 onwards. Therefore, from the evidence of PWs.1 and 5, it is seen that the accused was not at all absconding from the date of missing of the deceased i.e. on 09.03.2012. Therefore, the evidence of PWs.1 and 5 is not acceptable that the accused was absconding. Even otherwise, if the evidence of PW.2-Peekyanaika is acceptable that, he has stated that he came to know that Bhojyanaiaka telephoned to him to contact the deceased on 09.03.2012, but has not informed the same either to the parents or anybody else. Even if the said Bhojyanaika telephoned to the deceased through PW.2, he could have informed the same to the Police. Apart from that, the accused was arrested in the house on 20.05.2012 by PW.23, which clearly goes to show that the accused was in the house and he was not absconding and even from the evidence of PWs.1 and 5, it reveals that the accused and his brother used to go to Kerala and one of them used to stay in the station. Therefore, the evidence of prosecution witness is not acceptable that, the accused was absconding after the missing of the deceased on 09.03.2012. Thereby, the prosecution has failed to prove the circumstance of abscondence of the accused beyond reasonable doubt.
7.6 The last circumstance relied by the prosecution is arrest of the accused and recovery of MOs.1 to 3 on the voluntary statement of the accused i.e. small golden balls belonging to the deceased. MOs.2 and 3 of the deceased were worn by her on the date of missing from the house. In this regard, the prosecution has examined PW.23, the PSI, who apprehended the accused as per his evidence. After the apprehension of the accused in the house at 2.00 a.m. along with other staff, he brought him to the Police Station and produced him before the CPI and gave a report as per Ex.P.28. Thereafter, the CPI-PW.24, the Investigating Officer arrested the accused and said to have recorded the voluntary statement as per Ex.P.32 wherein, the accused is said to have revealed that he himself murdered the deceased by using veil and he will produce the ornaments of the deceased which were kept in the house as well as through his brother-in- law-Devaraj who has pledged MO.3 in the Muthoot Finance, after recovery. On his voluntary statement, the Investigating Officer also called the panch witnesses and seized MO.9-mobile phone said to have been used by the accused. Learned counsel for the appellant strenuously argued that when the accused was apprehended by PW.23 in the house, the mobile phone is said to be found in the possession of the accused, which was not seized on the spot, but it was seized in the Police Station and that too without the SIM card, which is improper to keep the mobile phone for more than two months without SIM card. Admittedly, the Investigating Officer seized MO.9-mobile phone said to be in possession of the accused, but there is no evidence for the document being collected by the Investigating Officer in order to connect or prove that this mobile phone belongs to the accused by examining any seller of the mobile phone or the owner of the SIM, which was used from this mobile phone. Apart from that, the evidence of the Investigating Officer also shows that the accused led the Police as well as the panchas to his house and produced 34 small golden balls, in the presence of panchas. The same was recovered under Ex.P.7 panchanama in the presence of panchas. The accused is said to have went inside the house and produced MO.1 before the Police in the presence of panchas. The Investigating Officer is said to have taken the photographs. The prosecution has examined PW.10-Erappanaika to prove seizure of MO.1. Though the said witness supported the case of the prosecution and deposed that seizure of the bike and 34 small golden balls in the house of the accused and he has identified MO.1 and the photographs as per Exs.P.8 to P.12.
8. Learned counsel for the accused strenuously contended that recovery of MO.1 was not acceptable as the said golden balls were seized from the house where other persons were also residing and it is not in the exclusive knowledge of the accused alone which were recovered by the Investigating Officer. In this regard, learned counsel for the appellant relied upon the judgment of the Hon’ble Supreme Court in the case of Radha Kishan vs. State of U.P reported in AIR 1963 SC 822 wherein, a similar case has been dealt with where the accused lived jointly with his father and the key of the Almirah was furnished by the father and it would not be legitimate to infer that the Almirah was even with the accused much less in his exclusive possession. The circumstance that the Almirah contained, apart from the registered letters in question, certain other articles belonging to the appellant cannot sustain an inference that the Almirah was in the appellant’s possession exclusive or even jointly with his father. Here, in the present case, even on perusal of the voluntary statement- Ex.P.32, it is not stated as to whether the accused kept MO.1 in the house. Even the evidence of PW.10 and the Investigating Officer do not reveal that whether the accused brought this MO.1 and produced before them. The evidence is silent to the extent that the accused went inside and brought MO.1 and produced before the Investigating Officer, which is not acceptable one. As held by the Hon’ble Supreme Court that, the house is jointly resided by the accused, his brother and his parents, which cannot be said to be in exclusive possession of the accused to show that MO.1 was kept by the accused in his house and he produced the same before the Police at the time of recovery. Thereby, the evidence of PW.10 and the Investigating Officer cannot be acceptable in respect of seizure of MO.1. Though the learned counsel for the appellant not disputed in respect of MO.1 belong to them, but it was stated in the cross-examination that there is no connection between the recovery of MOs.1 and 3 and the accused with the case. Even though the accused has not claimed the said MO.1 that it is not a ground to infer that MO.1 belongs to the deceased, which was produced by the accused in order to prove the offence under Section 404 of IPC.
9. Learned counsel for the appellant strenuously contended that MO.1-small golden balls are available in the house of the villagers for their use in the community. It is also brought in the evidence of PWs.1 and 5 that, if similar golden balls are kept along with MO.1, it is not possible to identify the same. Therefore, when similar ornaments were available in the Villagers’ houses, it cannot be inferred that MO.1 was worn by the deceased at the time of missing from the house. Though Ex.P.1 shows that the deceased was wearing Sara with golden balls, but there is no specific document or evidence collected by the Investigating Officer to show that the said balls were same which were seized by the deceased. In respect of recovery of MOs.2 and 3 from Muthoot Finance, as already stated above, the prosecution examined PW.11- Arunakumara, Staff of Muthoot Finance and PW.14- Albert Sequira, the Manager of Muthoot Finance Corporation. They deposed that on 22.5.2012, the Police brought the accused to the Finance Corporation and asked to produce MOs.2 and 3 which were pledged by PW.6-Devaraj, who is the brother-in-law of the accused.
10. Learned counsel for the appellant strenuously argued that even recovery of MOs.1 and 3 is said to be proved by the prosecution, which cannot be relied upon for convicting the accused for the reason that recovery of MOs.2 and 3 are not pertaining to recovery under Section 27 of the Indian Evidence Act, as it would not directly lead to recovery on the personal knowledge of the accused.
11. On perusal of the evidence, it is the case of the prosecution that the accused is said to have given MOs.2 and 3 to PW.6-Devaraj, brother-in-law of the accused. The said Devaraj is said to be the regular customer of Muthoot Finance, who pledged the ornaments for Rs.12,000/- and the finance company also issued receipt as per Ex.P.14. The Investigating Officer also deposed the same that he has relied on Ex.P.14 and also Ex.P.15 for having redeemed the pledged ornaments.
12. On perusal of Ex.P.14, it is not revealed in the receipt for having pledged ornaments by PW.6 and also there is no signature of the pawn for pledging the ornaments under Ex.P.14. Even the Investigating Officer has not collected the original register from Muthoot Finance to show that the receipt is said to have been issued by Muthoot Finance during their regular course of business and there was no signature of either the accused or the brother-in-law-Devaraj on the Pledge receipt- Ex.P.14. When Ex.P.14 has not revealed, if it is a copy, the Investigating Officer ought to have collected a Certificate from the Manager of Muthoot Finance to prove this document. Absolutely, there is no signature of either PW.11 or PW.14 on Ex.P.14. The panchanama-Ex.P.4 drawn by the Investigating Officer for recovery of MOs.2 and 3, the panch witness also not supported the prosecution case. PW.6-Devaraj has also not supported the prosecution case to prove the recovery of MOs.2 and 3 from PW.14 by the Investigating Officer. Even though the Investigating Officer collected Ex.P.14, it is the original receipt, but not obtained any Certificate from PW.14 or PW.11, which is required under Section 65B of the Indian Evidence Act, as it is the secondary evidence. Therefore, we hold the recovery of MOs.2 and 3 also not proved by the prosecution beyond reasonable doubt.
13. On overall perusal of the evidence of the entire witnesses, as already stated, the prosecution is not able to establish the circumstances like last seen, motive, factor of abscondence of the accused, arrest and recovery of the ornaments of the deceased on the voluntary statement of the accused beyond all reasonable doubt, except missing of the deceased and recovery of the dead body. It is well settled by the Hon’ble Supreme Court that, when case rests upon a circumstantial evidence, the prosecution is required to prove all the circumstances beyond reasonable doubt to point out that the accused alone committed the offence. But, the prosecution has utterly failed to prove any of the circumstance or any incriminating circumstance connecting the accused with the crime and after committing the murder, he put the dead body in a gunny bag, thrown in a plantation and thereby, he has committed the offence and also he is said to have taken the gold ornaments of the deceased, which were recovered by the Investigating Officer. The prosecution also failed to prove that the accused was in conversation with the deceased and used to telephone her through PW5-mother. Therefore, we are unable to accept the contention of learned Additional S.P.P. that the prosecution has proved the case beyond reasonable doubt to show that the accused has committed the murder and destroyed the evidence and has also taken the ornaments of the deceased after committing the murder. Therefore, the benefit of doubt shall be extended to the accused and we hold that the accused is entitled for acquittal of the charges leveled against him. Accordingly, we pass the following order;
The appeal filed by the appellant/accused- Bhojyanaika is allowed. The judgment of conviction and order of sentence passed by the II Additional District and Sessions Judge, Shivamogga, in S.C.No.151/2012, dated 17/18.07.2014 is hereby set aside;
(ii) The appellant/accused is acquitted of the charges leveled against him for the offences punishable under Sections 302, 201 and 404 of IPC and he shall be released from the custody forthwith, if he is not required in any other case;
(iii) Fine amount deposited, if any, is ordered to be refunded to the appellant/accused, on proper identification and acknowledgement;
(iv) The order passed by the Trial Court regarding disposal of MOs.1 to 3 is not disturbed; and (v) The Registry is directed to communicate the operative portion of this judgment to the concerned Jail Authorities for release of the appellant/accused forthwith, if he is not required in any other case.
SD/- JUDGE SD/- JUDGE kvk / mv