IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 09th DAY OF DECEMBER, 2017 PRESENT THE HON’BLE MR.JUSTICE ARAVIND KUMAR AND THE HON’BLE MR.JUSTICE BUDIHAL R.B. CRIMINAL APPEAL NO. 993/2012 BETWEEN:
MADEVA S/O UDDADA RANGEGOWDA AGED ABOUT 21 YEARS COOLIE, R/A BENGALIPODU BILIGIRANGANABETTA YELANDUR TALUK … APPELLANT (BY SRI B.S.PRASAD, ADVOCATE) AND:
THE STATE OF KARNATAKA BY CHAMARAJANAGAR EAST POLICE … RESPONDENT (BY SRI CHETAN DESAI, HCGP) THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374(2) CR.P.C. PRAYING TO SET ASIDE CONVICTION AND SENTENCE DATED 02.04.2012 PASSED BY THE DISTRICT & SESSIONS JUDGE, CHAMARAJANAGAR IN S.C.NO.19/2011 CONVICTING THE APPELLANT/ACCUSED FOR THE OFFENCES PUNISHABLE UNDER SECTIONS 302 AND 201 IPC AND ETC.,.
THIS APPEAL COMING ON FOR HEARING THIS DAY, ARAVIND KUMAR J., DELIVERED THE FOLLOWING:
JUDGMENT This appeal has been preferred by appellant - accused challenging the correctness and legality of judgment and order of conviction passed by the learned District and Sessions Judge, Chamarajanagar in S.C. No.19/2011 on 02.04.2012 whereunder appellant- accused has been convicted for the offences punishable under Sections 302 and 201 of IPC and sentenced him to undergo rigorous imprisonment for life for the offence punishable under Section 302 of IPC and to pay a fine of `50,000/- in default, further imprisonment for five months, and has also been directed to undergo rigorous imprisonment for five years for the offence punishable under section 201 of IPC and ordered to pay fine of `5,000/-, in default, to imprisonment for five weeks.
2. The gist of prosecution case is as under:
The father of deceased Smt. Nanjamma lodged a complaint on 21.11.2010 as per Ex.P.1 alleging that one month prior to the incident, accused and his wife Smt. Nanjamma namely, daughter had stayed in the house of C.W.1 at Kuntagudi colony and were leading their life by doing coolie work; his daughter - deceased Nanjamma was the second wife of accused and accused had married deceased on demise of his first wife; accused was in the habit of consuming liquor and under intoxication, he would pick up quarrel for every reason and was threatening his daughter to pay money for purchasing liquor; on 13.11.2010 at about 8.30 p.m., accused had assaulted his daughter and in that process, child Amulya (relative’s daughter of deceased) had also received injury to her knee and on being questioned, accused had left the house; on 14.11.2010 himself and deceased had lodged a complaint before Rama Samudra Police Station against accused. It was further alleged that he came to know that accused was hiding in the house of Siddegowda and he was brought to panchayat and in the panchayat, it was resolved that the complainant deceased Nanjamma would take back the complaint lodged against her husband on the assurance of accused that he would take care of his wife; it was further alleged that on 20.11.2010, complainant had gone to his agricultural land for harvesting and at that point of time, his daughter Nanjamma and accused were staying in the house of Siddegowda and when they returned back at 6.00 p.m., neither his daughter nor son in law were in the house; on enquiring with Muthegowda, he has stated that at about 12.00 p.m., deceased Nanjamma and accused together had gone to Sundana Habbi Halla to wash clothes; it was also alleged that complainant was informed by Muthegowda that accused was standing alone at Hondarabalu at about 3.00 p.m. and he was intoxicated and as such, on suspicion, he along with Siddegowda went near Sundana Habbi Halla and saw that saree of his daughter Nanjamma was tied to a tree near the said Halla, and along with this, when they searched for accused, he was found near the forest gate and on enquiry with him about the whereabouts of Smt.Nanjamma, he ran away from the spot; Complainant alleged that on the next day, he along with Muthegowda, Siddegowda, forest guard and Rangaswamy went in search of deceased and when they reached Sundana Habbi Halla, they found, at the place, where women folk were washing the clothes, the dead body with waist belt belonging to accused tied around her neck; it is also stated that clothes of deceased was scattered all along and a saree was also tied to the nearby tree; it was alleged that accused had assaulted deceased with machchu; three-four days prior to her death, accused had insisted for withdrawal of the complaint she had lodged and under the guise of resolving the issue, he had taken the deceased and had murdered her by strangulating with his belt; with an intention to murder deceased and to make others to believe that she had committed suicide by hanging, accused had made an attempt to tie her body to the branch of the tree with her saree and he was not able to do so and as such, had thrown her dead body and had run away; said complaint came to be registered and after investigation, charge sheet came to be filed. Accused came to be apprehended and it came to be committed to jurisdictional Sessions Court where accused pleaded not guilty and as such, trial was commenced after framing charges for the offence punishable under Sections 302 and 201 of IPC.
3. Prosecution in all examined 15 witnesses as P.Ws.1 to 15 and got marked nine documents as Exs.P.1 to 9 and M.Os.1 to 5 also came to be marked. During the course of trial, relevant portion of statement of P.W.10 came to be marked as per Exs.D.1 to D.3. The statement of accused under Section 313 of Cr.P.C. came to be recorded and on behalf of defence, no witnesses were examined. The learned Sessions Judge, after evaluating the evidence, both oral and documentary, by judgment in question, convicted the accused for offences punishable under Sections 302 and 201 of IPC. Being aggrieved by the same, as noticed hereinabove, accused has filed this appeal.
4. We have heard the arguments of Sri B.S. Prasad, learned Counsel appearing for the appellant- accused and Sri Chetan Desai, learned HCGP appearing for respondent-State. We have perused the entire records secured from the Sessions Court.
5. It is the contention of Sri Prasad, learned counsel appearing for the appellant that learned Sessions Judge has committed a serious error in arriving at a conclusion that there was motive in committing the murder of Smt. Nanjamma by accused inasmuch as, the alleged motive had to recede to background of undisputed facts. He would contend that alleged motive was not there since deceased Nanjamma had already agreed to withdraw her complaint which she had lodged against accused and as such accused had no intention to do away with the deceased. As such, the motive alleged against accused was not there at all. The learned Counsel would also contend that, prosecution had relied upon the last seen theory by relying upon the evidence of P.W.3 and when his evidence is perused it would disclose his testimony ought not to have been accepted since he had turned hostile and there was no other corroborative evidence available on record to establish motive. The learned Counsel also contend that prosecution had relied upon the recovery of articles namely M.O.1 which relates to the accused and M.Os. 2 to 5 which relates to the deceased seized under panchanama (Ex.P.5) and panchas to Ex.P.5 were not examined and seizure of belt (M.O.1) which was allegedly used by the accused to strangulate Nanjamma came to be marked as per Ex.P.8 was not proved by pancha (C.W.11). He would further contend that extra judicial confession is also not proved by prosecution inasmuch as prosecution had relied upon the call register extract of the accused which came to be produced and marked as per Ex.P6 and same was also not in compliance with Section 65B of Indian Evidence Act. Hence, he contends, prosecution had failed to prove the guilt of the accused. He also submits that there was no material whatsoever available before the Sessions Court to examine the alleged conduct of accused and as such, there has been improper appreciation of evidence and also erroneous appreciation of available evidence. On these grounds, he contends that prosecution had failed to establish its case. Hence, he prays for allowing the appeal by acquitting the appellant - accused.
6. Per contra, Sri Chetan Desai, learned HCGP appearing for the prosecution would submit that judgment passed by the learned Sessions Judge requires to be sustained on the ground that there was strong motive on the part of accused to take away the life of the deceased, inasmuch as, few days prior to her death, he had assaulted her with a chopper and this was established by the prosecution by producing the complaint lodged by deceased as per Ex.P.7 and even, the inquest report (Ex.P.2) would also corroborate about injuries found on the body of the deceased, which was relatable to the incident that occurred on 13.11.2010 and it was said incident which resulted in filing of the complaint - Ex.P.7 and on the ground of deceased having lodged such complaint against him, accused was having grudge against deceased and with this motive, he had eliminated his wife Smt.Nanjamma. The learned HCGP would also submit that P.W.8 had seen deceased and accused together and as such, the last seen theory had also been proved by the prosecution beyond reasonable doubt and as such prays for conviction of the accused being sustained. He would also submit that chain of events would clearly establish the motive and evidence on hand would disclose that deceased and accused were seen together and accused having absconded thereafter would clearly prove that accused had committed the murder of his wife Smt.Nanjamma and his absence having not been explained in his defence, inference has been drawn about his participation in the crime. Hence, he prays for sustaining the judgment and sentence passed against the accused.
7. Having heard the learned Counsel appearing for the parties and on perusal of judgment under challenge and after having given our careful and anxious consideration to the rival contentions raised by the learned Advocates appearing for the parties and on minute scrutiny of entire records, it would clearly emerge therefrom that learned Sessions Judge has convicted the accused on the basis of circumstantial evidence. It is also opined by the learned Sessions Judge that deceased and accused were seen together by P.W.8 and there has been recovery of the clothes of deceased (M.Os.2 to 5) including the belt seized under Ex.P.8 panchanama which was used by the accused for strangulation (M.O.1), by examining the investigating officer and as such, it came to be held by the learned Sessions Judge that circumstances unfolded would establish the guilt of the accused. Learned Sessions Judge has also held that confessional statement before P.W.5 and P.W.6 over phone as per call register extract – Ex.P.6 would corroborate other evidence available on record.
8. In the background of above referred findings of learned Sessions Judge, rival contentions raised and on perusal of records, we are of the view that following point would arise for our consideration:
“Whether conviction and sentence passed by learned Sessions Judge against appellant/accused is sustainable in the light of evidence available on record?”
9. As already noticed hereinabove, learned Sessions Judge has relied upon extra judicial confession statement of accused to convict him and has also based the conviction on circumstantial evidence. Hence, we have examined the entire material evidence not only on these points but also from all other angles.
10. At the out set, it requires to be seen that extra judicial confession which prosecution has very heavily relied to sustain the conviction is based on evidence tendered by P.W.8. P.W.8 – Smt Rangamma is none other than the sister of the deceased. In fact, she had turned hostile and had not supported the case of the prosecution at all. Hence, her evidence has rightly not been taken note of by the Sessions Court.
11. P.W.5 who is the sister-in-law of the accused has turned hostile. In her cross examination, she has admitted that accused did not inform/state that he had committed the murder of Smt. Nanjamma and as such, much reliance cannot be placed on the evidence of P.W.5.
12. Now turning our attention to the evidence of P.W.6, i.e., father-in-law of P.W.5, it would disclose that accused had voluntarily confessed to him when he had called on his mobile phone, which phone came to be handed over to him (P.W.6) by his daughter-in-law – P.W.5. He states that accused had stated that he had has committed the murder of his wife Smt.Nanjamma. Evidence of P.W.5 and P.W.6 when cumulatively read, would disclose that on the basis of a phone call they had received from accused, prosecution claims it is a extra judicial confession. Same cannot be accepted for the simple reason that it is admitted by P.W.5 and P.W.6 in their evidence that they do not have any mobile. They have clearly stated that a call from accused had been received by one Smt.Siddamma -
C.W.21 and she in turn is said to have handed over her phone to P.W.5 and P.W.5 having spoken to the accused is said to have handed over the mobile phone to P.W.6. Undisputedly, said Smt.Siddamma though cited as a witness - C.W.21 was not examined by the prosecution for reasons best known. On this ground itself, evidence of P.W.5 & P.W.6 cannot stand the test of law or in other words, their deposition cannot be considered for sustaining the conviction of the accused. In other words, purported extra judicial confession is not proved by the prosecution.
13. That apart, it would be apt and appropriate to note at this juncture that prosecution had also very heavily relied upon call details statement- Ex.P-6 which purportedly relates to mobile belonging to accused to prove the call made by accused to P.W.5 and P.W.6. On perusal of Ex.P-6, it would disclose that it is a computer generated statement relating to the mobile phone bearing No.9663896029 of the accused. Said statement would disclose that prosecution has marked the entry relating to outgoing call made on 20.11.2010 at 13.22 Hrs., (1.22 p.m.) to the mobile phone bearing number 9980626956. As to whether called number i.e., 9980626956 belonged to C.W.21- Smt. Siddamma is not established by prosecution. Neither Smt. Siddamma was examined nor call records/statement relating to said date in respect of mobile phone belonging to Smt. Siddamma came to be produced and marked. It was not established by the prosecution that calling number is that of the accused.
14. Ex.P-6 is not signed or certified by the competent authority who is stated to have issued the said call details register extract. Be that as it may.
Insofar as electronic records are concerned, it is trite law that under Section 65B of the Indian Evidence Act, 1872 production of such documents is to be made in the manner prescribed under sub-section (2) of Section 65B, which reads as under:
“65B. Admissibility of electronic records.- (1) Notwithstanding anything contained in this Act, any information contained in an electronic record which is printed on a paper, stored, recorded or copied in optical or magnetic media produced by a computer (hereinafter referred to as the computer output) shall be deemed to be also a document, if the conditions mentioned in this section are satisfied in relation to the information and computer in question and shall be admissible in any proceedings, without further proof or production of the original, as evidence of any contents of the original or of any fact stated therein of which direct evidence would be admissible.
(2) The conditions referred to in sub- section (1) in respect of a computer output shall be the following, namely:-
(a) the computer output containing the information was produced by the computer during the period over which the computer was used regularly to store or process information for the purposes of any activities regularly carried on over that period by the person having lawful control over the use of the computer;
(b) during the said period, information of the kind contained in the electronic record or of the kind from which the information so contained is derived was regularly fed into the computer in the ordinary course of the said activities;
(c) throughout the materiel part of the said period, the computer was operating properly or, if not, then in respect of any period in which it was not operating properly or was out of operation during that part of the period, was not such as to affect the electronic record or the accuracy of its contents; and (d) the information contained in the electronic record reproduces or is derived from such information fed into the computer in the ordinary course of the said activities.
(3) Where over any period, the functions of storing or processing information for the purposes of any activities of any regularly carried on over that period as mentioned in clause (a) of sub-section (2) was regularly performed by computer, whether-
(a) by a combination of computers operating over that period; or (b) by different computers operating in succession over that period; or (c) by different combinations of computers operating in succession over that period; or (d) in any other manner involving the successive operation over that period, in whatever order, of one or more computers and one or more combinations of computers.
all the computers used for that purpose during that period shall be treated for the purposes of this section as constituting a single computer; and references in this section to a computer shall be construed accordingly.
(4) In any proceedings where it is desired to give a statement in evidence by virtue of this section, a certificate doing any of the following things, that is to say,-
(a) identifying the electronic record containing the statement and describing the manner in which it was produced;
(b) giving such particulars of any device involved in the production of that electronic record as may be appropriate for the purpose of showing that the electronic record was produced by a computer;
(c) dealing with any of the matters to which the conditions mentioned in sub-section (2) relate, and purporting to be signed by a person occupying a responsible official position in relation to the operation of the relevant device or the management of the relevant activities (whichever is appropriate) shall be evidence of any matter stated in the certificate; and for the purposes of this sub-section it shall be sufficient for a matter to be stated to the best of the knowledge and belief of the person stating it.
(5) For the purposes of this section,-
(a) information shall be taken to be supplied to a computer if it is supplied thereto in any appropriate form and whether it is so supplied directly or (with or without human intervention) by means of any appropriate equipment;
(b) whether in the course of activities carried on by any official information is supplied with a view to its being stored or processed for the purposes of those activities by a computer operated otherwise than in the course of those activities, that information, if duly supplied to that computer, shall be taken to be supplied to it in the course of those activities;
(c) a computer output shall be taken to have been produced by a computer whether it was produced by it directly or (with or without human intervention) by means of any appropriate equipment.
Explanation.- For the purposes of this section any reference to information being derived from other information shall be a reference to its being derived therefrom by calculation, comparison or any other process.]”
15. A bare reading of sub-section (4) of Section 65B of the Act would clearly indicate that in any proceedings where it is desired to give a statement in evidence by virtue of the said section, a certificate in the manner prescribed under clause (a) to (c) are required to be appended to the said document as otherwise, authenticity or validity or correctness or otherwise of the contents of the said document cannot be held to have been proved. This view is supported by the authoritative pronouncement of Hon’ble Apex Court in the case of ANVAR P.V. vs. P.K. BASHEER AND OTHERS reported in 2014 AIR SCW 5695 whereunder their Lordships have clearly held that electronic records cannot be substituted to secondary evidence, until and unless requirements prescribed under Section 65B of the Evidence Act, 1872 is complied and satisfied and evidence tendered contrary to such prescription would be in admissible. It has been held:
“19. Proof of electronic record is a special provision introduced by the IT Act amending various provisions under the Evidence Act. The very caption of Section 65A of the Evidence Act, read with Sections 59 and 65B is sufficient to hold that the special provisions on evidence relating to electronic record shall be governed by the procedure prescribed under Section 65B of the Evidence Act. That is a complete code in itself. Being a special law, the general law under Sections 63 and 65 has to yield.
22. The evidence relating to electronic record, as noted hereinbefore, being a special provision, the general law on secondary evidence under Section 63 read with Section 65 of the Evidence Act shall yield to the same. Generalia specialibus non derogant, special law will always prevail over the general law. It appears, the court omitted to take note of Sections 59 and 65A dealing with the admissibility of electronic record. Sections 63 and 65 have no application in the case of secondary evidence by way of electronic record; the same is wholly governed by Sections 65A and 65B. To that extent, the statement of law on admissibility of secondary evidence pertaining to electronic record, as stated by this Court in Navjot Sandhu case (supra), does not lay down the correct legal position. It requires to be overruled and we do so. An electronic record by way of secondary evidence shall not be admitted in evidence unless the requirements under Section 65B are satisfied. Thus, in the case of CD, VCD, chip, etc., the same shall be accompanied by the certificate in terms of Section 65B obtained at the time of taking the document, without which, the secondary evidence pertaining to that electronic record, is inadmissible.”
In that view of the matter, contention of learned HCGP that extra judicial confession made by the accused before P.W.5 and P.W.6 is to be construed as legal evidence, cannot be accepted and said contention stands rejected.
16. Insofar as ‘last seen theory’ which prosecution has relied upon to sustain the conviction of the accused, when seen in the background of evidence of P.W.8 which has been heavily relied upon by the prosecution as well as learned Sessions Judge would also not stand the test of law, for the simple reason that P.W.8 who is the elder sister of the deceased had not only turned hostile, but has also admitted in her cross examination that she was instructed to say in the manner she has stated in her examination- in-chief by the police. In her own words, her admission reads as under:
“Police enquired me xxx I seen the dead body. It is right to suggest I was instructed to say in this way.”
Thus, credibility of this witness is shrouded with suspicion and cannot be accepted and she has to be necessarily held as a tutored witness. Thus, last seen theory propounded by the prosecution based on her (P.W.8) evidence to sustain the conviction also cannot be accepted and it stands rejected.
17. The circumstantial evidence which has been relied upon by the prosecution and came to be accepted by learned Sessions Judge to convict the appellant when re-examined, it would disclose that seizure of clothes of the deceased namely, M.Os.2 to 5 under Ex.P-
5 is one such circumstance. Panchas to Ex.P.5 were C.Ws.8 & 9. For reasons best known, prosecution has not examined them. Thus, seizure under Ex.P.5 was not proved. That apart, it was alleged by the prosecution that accused had used his waist belt -
M.O.1 for strangulating the deceased and said M.O.1 came to be seized under the panchanama – Ex.P-8 and witness to said seizure panchanama was one Sri.Basavanayak - C.W.11 who was also not examined. Thus, seizure of belt under panchanama was also not proved by the prosecution. In other words, seizure of clothes of deceased and belt of accused purportedly used by accused to strangulate deceased which came to be seized under panchanamas – Exs.P-5 & P-8 respectively have not been proved by the prosecution.
18. Though motive would not be a primary ground on which conviction can be sustained, yet it would be one of the corroborating factor, together with circumstantial evidence, only in the event of prosecution being able to prove the guilt of the accused beyond reasonable doubt. It is an admitted fact that there was an altercation between deceased and accused on 13.11.2010 and there was a Panchayat held and in the said Panchayat it was resolved by the elders of the village and in said panchayath deceased had agreed to withdraw the complaint on the next day. Thus, evidence on record would disclose that deceased herself had voluntarily agreed to withdraw the complaint lodged by her against accused. P.W.1 in his deposition dated 22.06.2011 has admitted, after said panchayath where deceased had been persuaded by elders to withdraw complaint lodged by her against accused had gone with the accused to stay in the house of Siddegowda -C.W.4. In other words, purported motive can be said to have receded to background atleast in the background of this evidence available. In other words, motive could not be held to be as a strong factor which was the cause for accused to commit murder of his wife. In the absence of prosecution discharging this initial burden, conduct of the accused cannot be held as one of the mitigating factor to convict him in the absence of initial burden being discharged by the prosecution. In case of circumstantial evidence relied upon for conviction, prosecution will have to necessarily establish said motive being there and same has to be proved beyond reasonable doubt. Hence, considering the totality of facts and the evidence tendered in the instant case, including the circumstances relied upon by the prosecution, we are of the considered view that prosecution has failed to establish by convincing evidence the motive and circumstantial evidence and one relied upon do not form complete chain pointing to the guilt of the appellant-accused. Hence, appellant’s conviction under Section 302 & 201 IPC cannot be sustained particularly in the background of the links in the chain of circumstances not being established by the prosecution beyond all reasonable doubt. It has been held by the Hon’ble Apex Court in the case of VIJAY SHANKAR vs. STATE OF HARYANA reported in (2015)12 SCC 644 that a case based on circumstantial evidence, circumstances from which inference of guilt is sought to be drawn must be cogently and firmly established. It has been held:
“8. There is no eyewitness to the occurrence and the entire case is based upon circumstantial evidence. The normal principle is that in a case based on circumstantial evidence the circumstances from which an inference of guilt is sought to be drawn must be cogently and firmly established; that these circumstances should be of a definite tendency unerringly pointing towards the guilt of the accused; that the circumstances taken cumulatively should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and they should be incapable of explanation of any hypothesis other than that of the guilt of the accused and inconsistent with their innocence vide Sharad Birdhichand Sarda vs. State of Maharashtra, (1984) 4 SCC 116. The same view was reiterated in Bablu Alias Mubarik Hussain vs. State of Rajasthan, (2007) 2 SCC Crl. 590.
Motive:-
10. So far as the motive is concerned, Sukhbir Singh (PW-10), brother of the deceased stated that the appellant Vijay Shankar used to park his cycle on their farm and his brother Satish Kumar had rebuked him about fifteen days prior to the occurrence for parking his cycle. PW-10 further stated that on the intervening night of 16.03.1995/17.03.1995, the appellant came to the farm in an inebriated condition and stated that since Satish and Sukhbir are not allowing him to park his cycle and are not allowing him to take liquor in their farm, he will not let them to celebrate Holi. The appellant is the neighbour of PW-10 and the deceased- Satish Kumar. Allegation of previous enmity between the appellant and the deceased family has not been proved. Excepting PW-10, no other independent witness was examined to prove that Satish Kumar had rebuked the appellant and serious doubts arise as to the motive suggested and the alleged previous enmity.
11. As per the version of PW-10, on 16.03.1995, his brother Satish Kumar came to the farm for celebrating the festival of Holi and his children went to the house in village Dujana while Satish Kumar stayed back at the farm and that they celebrated Holi festival by cracking fireworks and continued talking up to wee hours of 17.03.1995 and thereafter he left for his home while Satish Kumar continued to be in the poultry farm. There were three servants in the poultry farm; two were sleeping in the adjoining room where Satish Kumar was sleeping and the third servant was sleeping in the truck parked at some distance from the farm. None of the farm servants were examined and this again raises doubts about the evidence of PW-10 and the motive suggested.
12. In each and every case, it is not incumbent on the prosecution to prove the motive for the crime. Often, motive is indicated to heighten the probability of the offence that the accused was impelled by that motive to commit the offence. Proof of motive only adds to the weight and value of evidence adduced by the prosecution. If the prosecution is able to prove its case on motive, it will be a corroborative piece of evidence. But even if the prosecution has not been able to prove its case on motive that will not be a ground to throw the prosecution case nor does it corrode the credibility of prosecution case. Absence of proof of motive only demands careful scrutiny of evidence adduced by the prosecution. In the present case, absence of convincing evidence as to motive makes the court to be circumspect in the matter of assessment of evidence and this aspect was not kept in view by the High Court and the trial court.”
Keeping these principles in mind, when the evidence as discussed herein above is perused, it would not detain us for too long to arrive at a conclusion that prosecution had failed to prove the motive, last seen theory, extra judicial confession as well as seizure of M.Os.1 to 5 under Exs.P-8 & P-5 respectively and as such conviction cannot be sustained.
19. For the reasons aforestated, we are of the considered view that judgment and order of sentence passed by the learned Sessions Judge requires to be set aside.
20. Hence, we proceed to pass the following:
JUDGMENT (1) Criminal Appeal is hereby allowed.
(2) Judgment of conviction and sentence passed by District and Sessions Judge, Chamarajanagar in S.C.No.19/2011 dated 02.04.2012 is hereby set aside.
(3) Appellant-accused is hereby acquitted for the offences punishable under Sections 302 and 201 IPC and is ordered to be set at free forthwith if not required in any other case.
(4) Registry is directed to forward operative of the judgment forthwith to the jurisdictional Jail Superintendent.
(5) Registry is directed to transmit the records to the jurisdictional Sessions Court.
Sd/- JUDGE Sd/- JUDGE CS/sp