IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 15TH DAY OF MARCH, 2019 PRESENT THE HON’BLE MR. JUSTICE K.N. PHANEENDRA AND THE HON’BLE Dr. JUSTICE H.B. PRABHAKARA SASTRY CRIMINAL APPEAL NO.891/2016 C/W CRIMINAL APPEAL NO.678/2015 (C) IN CRIMINAL APPEAL NO.891/2016 BETWEEN:
1. SREENIVASA @ SRINIVASAGOWDA @ GADI SEENA S/O LATE BACHEGOWDA AGED ABOUT 39 YEARS R/O MANCHABAYANAHALLI VILLAGE HUNSUR TALUK, MYSURU DISTRICT NATIVE OF MARCHALLI VILLAGE K.R.NAGARA TALUK MYSURU DISTRICT – 571 607 2. SMT. PUTTALAKSHMI @ LAKSHMI W/O LATE SREENIVASA NAIKA @ SEENA NAIKA AGED ABOUT 31 YEARS R/O JABAGERE VILLAGE HUNSUR TALUK MYSURU DISTRICT – 571 105 … APPELLANTS (BY SRI. VIKAS M., ADVOCATE) AND:
STATE OF KARNATAKA BY K. R. NAGARA POLICE MYSURU TALUK REP. BY THE STATE PUBLIC PROSECUTOR HIGH COURT BUILDINGS BENGALURU – 560 001 … RESPONDENT (BY SRI. I. S. PRAMOD CHANDRA, SPP-II) THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374(2) CR.P.C., PRAYING TO SET ASIDE THE JUDGMENT ORDER DATED 29.04.2015 AND SENTENCE DATED 30.04.2016 PASSED BY THE I ADDITIONAL DISTRICT AND SESSIONS JUDGE, MYSURU IN S. C. NO.104/2013 – CONVICTING THE APPELLANT/ACCUSED NO.1 AND 4 FOR THE OFFENCE PUNISHABLE UNDER SECTIONS 302, 120(B) AND 201 OF IPC.
IN CRIMINAL APPEAL NO.678/2015 BETWEEN:
1. RAGHAVENDRA @ RAGHU @ KAANU S/O SHIVE GOWDA AGED ABOUT 22 YEARS MARCHALLI VILLAGE K.R.NAGARA TALUK MYSURU DISTRICT – 571 602 2. RAVIKUMAR S @ RAVEESHA S/O SHIVARAME GOWDA AGED ABOUT 20 YEARS MARCHALLI VILLAGE K.R.NAGARA TALUK MYSURU DISTRICT – 571 602 (BY SRI. C. H. JADHAV, Sr.COUNSEL FOR SMT. RASHMI JADHAV, ADV.) AND:
THE STATE OF KARNATAKA BY K.R.NAGARA P.S.
REP. BY THE STATE PUBLIC PROSECUTOR … APPELLANTS HIGH COURT BUILDING BENGALURU – 560 001 … RESPONDENT (BY SRI. I. S. PRAMOD CHANDRA, SPP-II) THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374(2) CR.P.C. PRAYING TO SET ASIDE THE ORDER DATED 29.04.2015 AND SENTENCE DATED 30.04.2015 PASSED BY THE I ADDITIONAL DISTRICT AND SESSIONS JUDGE, MYSURU IN S.C.NO.104/2013 – CONVICTING THE APPELLANT/ACCUSED NO.2 AND 3 FOR THE OFFENCE PUNISHABLE UNDER SECTIONS 302, 201 AND 120(B) READ WITH 34 OF IPC.
THESE CRIMINAL APPEALS COMING ON FOR HEARING THIS DAY, K.N. PHANEENDRA, J., DELIVERED THE FOLLOWING:
JUDGMENT The appellants in Criminal Appeal No.891/2016 are arrayed as accused Nos.1 and 4, whereas the appellants in Criminal Appeal No.678/2015 are arrayed as accused Nos.2 and 3 before the trial Court, in SC No.104/2013 on the file of the I Addl. District and Sessions Judge, Mysuru, whereby, the learned Sessions Judge has convicted the appellants for the offence punishable under sections 302, 120B and 201 read with Section 34 of IPC and sentenced:
(1) Accused Nos.1 to 4 to undergo imprisonment for life and also to pay a sum of Rs.10,000/- each as fine for the offence punishable under section 302 of IPC with default sentence of six months rigorous imprisonment; (2) Accused Nos.1 to 4 to undergo rigorous imprisonment for two years for the offence punishable under section 120B of IPC; and (3) Accused Nos.1 to 4 to undergo rigorous imprisonment for seven years and to pay a fine of Rs.5,000/- each for the offence punishable under section 201 of IPC with default sentence of three months rigorous imprisonment.
2. Being aggrieved by the said judgment of conviction and sentence, the appellants are before this court in two appeals. As both the appeals are arising out of a common judgment, they are clubbed and taken up together for disposal.
3. We have heard the arguments of the respective learned counsel for Accused Nos.1 and 4 as well as Accused Nos.2 & 3 and also the learned SPP-II for the respondent - State. We have carefully examined the oral and documentary evidence adduced and produced before the trial Court and as well, we have examined the judgment of the trial Court.
4. Before adverting to the submissions made by the learned counsels for the appellants and the respondent – State, we would like to have a brief factual matrix of the case:
A Lady by name Smt. Rajamma, PW-1 has lodged a report on 15.11.2012 at about 12.20 p.m., stating that PW-1 has been residing along with her husband and four children. The second son by name Srinivasa Naika was married to one Puttalakshmi (A4) about 15 years prior to the incident. The accused No.1 had illicit intimacy with Accused No.4. The accused No.1, accused No.4 and the deceased were often going to Kodagu Madikere coffee plantation for the purpose of doing coolie work. In this background, it is stated that prior to 15.11.2012, on the previous Monday, the accused No.4 and the deceased Srinivasa Naik visited the house of PW-1 in order to attend Deepavali festival. On that day, they were quarreling with each other, the whole night. In fact, the mother of PW-1 by name Thimmamma consoled the deceased and A4 and in fact, the deceased told Thimmamma that A4 was threatening that she would kill the deceased and in fact PW-1 also came to know about accused Nos.1 & 4 having illicit intimacy with each other. It is also stated that accused No.1 was also going to coolie work to Madikeri. It is further stated in the report that on 12.11.2012 in the morning at about 6.00 a.m., while PW-1 returning from the Gavadagere Milk Dairy, the deceased Srinivasa Naika and his wife A4 were proceeding to a temple, at that time, they told PW-1 that they will return by 12.00 noon. It is further stated that at about 2.00 p.m., PW-1 came to know from PW-10 Ranjitha (Grand-daughter of PW-1) who is no other than the daughter of the deceased and A4 to the effect that A1 Srinivasa and A2 Kumara took the deceased along with them. The complainant further stated that, she never seen his son thereafter. It is further stated that on 15.11.2012, at about 11.00 a.m., in the morning she came to know from unknown person through telephone that the deceased Srinivasa Naika was found dead near Doddalala village Nala. Immediately, PW-1 and other family members had been to that particular place and found the dead body of Srinivasa Naika and they also found fatal injuries on the neck of the deceased caused by lethal weapon. On the basis of the above said facts and circumstances, PW-1 suspected that Accused Nos.1 and 2 with the help of Accused No.4 might have committed the murder of the deceased. Therefore, she requested the Police to take appropriate action.
5. On the basis of the above said facts, the respondent – Police registered a case in crime No.331/2012 for the offence punishable under sections 302 and 201 read with Section 34 of IPC. The Police after thorough investigation have laid a charge sheet against all the accused persons for the above said offences. The accused persons were also arrested in connection with this case. After committal proceedings, the trial Court after securing the presence of all the accused persons framed charges against them for the offence punishable under sections 302 and 201 of IPC and put the accused on trial.
6. The prosecution in order to bring home the guilt of the accused examined as many as 28 witnesses as PWs.1 to 28 and got marked Exhibits P-1 to P-50 and Material Objects MOs.1 to 8. During the course of cross examination, the defence also got marked Ex.D-1. The accused did not choose to lead any defence evidence on their side. The learned Sessions Judge after hearing both sides and appreciating the oral and documentary evidence on record has come to the conclusion that the prosecution has proved the case beyond all reasonable doubt and recording the same, the trial Court has convicted and sentenced the accused persons as noted supra.
7. The learned counsel for the accused Nos.1 to 4, strenuously contended before this court that there are no eye-witnesses to the incident and the entire case revolves around the circumstantial evidence. The prosecution has mainly relied upon the circumstance of (1) Motive, (2) Accused Nos.1 to 3 and the deceased last seen together and (3) Recovery of the incriminating articles at the instance of accused No.1 and also recovery of mobiles at the instance of all the accused persons and the respective call details, the prosecution has attempted to prove the guilt of the accused. They also submitted that including the relative witnesses PW-10 Ranjith, who is no other than, the daughter of appellant No.4 and the deceased have turned hostile to the prosecution. Even PW-1 is a hearsay witness with regard to the last seen theory. PW-2 is also to some extent has supported the prosecution, but her evidence is not credible and trust worthy for acceptance so far as last seen theory. Though the prosecution has attempted to establish the recovery of some incriminating articles like knife from A1, motor cycle and three mobile phones; one from A1 & A2 and another from A4, but the prosecution has failed to establish the connection of these material objects with that of the crime and no material is available to connect the accused No.1 or any of the accused to show that the said knife was used in the commission of the offence. Therefore, there is absolutely no credible evidence available in the case of the prosecution. However, the trial Court morally being convinced with regard to the case of the prosecution, bend the evidence for the purpose of convicting the accused persons, though there is absolutely no sufficient evidence to bring home the guilt of the accused.
8. Per contra, learned State Public Prosecutor – II has argued before the court that PW-2 has categorically stated about the last seen of accused Nos.1 to 3 and the deceased together going and thereafter, the deceased was not seen. Recovery of the incriminating articles like mobiles establish the tower location of accused Nos.1 to accused No.3 and the mobile of the deceased at the time of the incident. Though there is some discrepancy with regard to the narration of the prosecution story by the witnesses and further there are some contradictions and omissions in the evidence of the prosecution witnesses, but on overall looking into the gamut of the prosecution case, the prosecution has proved the guilt of the accused beyond all reasonable doubt. Therefore, he pleads that there is no room to interfere with the judgment of conviction and sentence passed by the trial Court.
9. Before adverting to the material circumstances available and relied upon by the prosecution in this case, we would like to have a brief look at the evidence of the prosecution witnesses.
10. PW-1 Rajamma is the mother of the deceased, PW-2 Lokesha is the brother of the deceased, PW-3 Shivanna, PW-4 Chowdanaika, PW-5 Ramachandranaika, PW-6 Madalgere Naika, PW-7 Sannajavara Naika, PW-8 Chandranaika, PW-9 Yashodhara and PW-10 Ranjitha and they are all examined before the court to establish the existence of motive i.e., illicit relationship between A1 and A4; and the quarrel between A4 and the deceased and the apprehension of the deceased with regard to his death in the hands of A4, but except PWs.1 and 2 all other witnesses PWs.3 to 10 have turned voltaface to the case of the prosecution. There is absolutely no support from them. Therefore, we would like to discuss the material witnesses PWs.1 & 2 with that of PW-10 little later so far as the motive and last seen factors are concerned.
10.1 The prosecution has also relied upon the evidence of PW-18 Ravi sofa as the last seen theory is concerned. But he has also not supported the case of the prosecution.
10.2 PW-11 Tirtesh is the person who was present at the time of conducting the inquest proceedings. There is no dispute with regard to the death of the deceased and conduct of inquest as per Ex.P-13.
10.3 PW-12 Dr.Kishore M.R. is the doctor who conducted the autopsy on the dead body of the deceased Srinivasa Naik. After Post Mortem examination he furnished the cause of death of the deceased as per the Post Mortem examination report marked at Ex.P-14, which shows that the death of the deceased was due to shock and hemorrhage as a result of injury to neck.
10.4 PW-13 J.P. Gangadhar, the Senior Motor Cycle Inspector of RTO, Hunusuru, has deposed before the court that he examined the Motorcycles bearing Registration Nos.KA-45/Q-1230 and KA-45/Q-4723 and has given the opinion as per Ex.P-17 to the effect that the vehicles are road-worthy to run on the road.
10.5 PW-14 Rachappa, the then ASI, Hullahalli Police Station, has deposed before the court that during the relevant point of time, he received the information over phone to the effect that on 15.11.2012 at 11.30 a.m., a dead body of a male person was found lying, near the Nala of Doddalaladevanahalli. Immediately, he went to the spot along with HC 192, PC 667 and saw the dead body and thereafter, he came to know that, the dead body was that of Srinivasa Naik, on the basis of a hand book and a purse kept in the pant pocket of the deceased. Thereafter, they secured the presence of PW-1 Rajamma for identification of the dead body. PW-1 Rajamma identified the dead body and lodged a complaint as per Ex.P-1.
10.6 PW-15 Prasanna Kumar, CPI of Piriyapatna Circle has deposed before the court that, he took over the further investigation, examined the dead body of the deceased and conducted the inquest Mahazar on the deceased and also seized the pant of the deceased produced by the Police who went to watch the dead body and thereafter he records the statement of some of the witnesses, collects the call details pertaining to the mobiles seized in connection with this case and in fact, he also arrested accused No.1 and recorded his voluntary statement and recovered one knife and motor cycle. He also arrested A2 and recovered a motor cycle from him and after completing the investigation, he submitted charge sheet against the accused persons.
10.7 PW-16 Sathish Thimmaiah, Coffee Planter, Kodagu District, alleged to be the employer of Accused No.1, deceased and as well as Accused No.4, who has a plantation at Palangala village at Virajpet Taluk, Kodagu District, he has turned hostile to the prosecution. He has gone to the extent of denying that A4 and the deceased were working with him. However, he identified the Accused No.1 who was working in his plantation.
10.8 PW-17 Yogesha is a Photographer and Videographer has deposed before the court that as per the instructions and request by the Police, he accompanied the Police to different places with reference to the recovery of the mobiles, recovery of the motor cycles and the knife and taken the photographs as and when required by the Police and he furnished a compact disc containing the photographs as per Ex.P-14.
10.9 PW-18 Ravi, Cashier in a shop by name Shiva Wines, at Srirampura, in K.R. Nagara, has deposed before the court that, he has examined to establish A1 to A3 have visited his Wine Shop on the previous day of the incident, but the witness has not supported the case, but has turned hostile.
10.10 PW-19 B.L. Swamy Gowda, working as ASI has deposed before the court that at about 12.20 p.m., he registers a case on the basis of Ex.P-1 complaint in Crime No.331/2012 for the offences punishable under section 302 and 201 of IPC. He prepared the FIR as per Ex.P-43 and dispatched the same to the court.
10.11 PW-20 Nanjunda, who is a recovery panch witness to Exs.P-23, P-25, P-26 and P-27 under which the Police alleged to have recovered a knife, two motor cycles and two mobiles and also he speak about MO-8 another Mobile which was said to have been seized under Ex.P-27 Mahazar.
10.12. PW-21 Putta, who is an agriculturist cited as a witness so far as the panchnama Ex.P-26 is concerned, regarding the Recovery of a motor cycle from A1, but he has not supported the case of the prosecution.
10.13 PW-22 K.P. Ishwar shetty, Assistant Engineer, Division-II, PWD, K.R. Nagar, has deposed before the court that, he has prepared the scene of offence as per the request of the Police, after visiting the spot as per Ex.P-30.
10.14 PW-23 Santhosh was another panch witness has deposed before the court that, he is a mobile repairer. He has also identified the seizure of Exs.P-27 and P-28 mahazars. In fact, he has supported the case of the prosecution so far as these panchanamas are concerned. We would like to discuss the evidence of this witness with regard to recovery little later.
10.15 PW-24 Shivananjappa T. working as Asst.
Engineer, Harangi Distribution Division, K.R. Nagar, has deposed before the court that, he gave the information as per Ex.P-31 stating that, the dead body of the deceased was found near the Nala running 38.933 kilometer space.
10.16 PW-25 Lava M.R., working as PSI, Hunusuru Town Police has deposed that on 18.11.2012, he apprehended accused No.2 and produced him before the CPI along with report Ex.P-50.
10.17 PW-26 Geethalakshmi R., is a Retired Police Inspector. She has deposed in her evidence that, she has furnished the call details with reference to mobiles seized in this case.
10.18 PW-27 Sujatha K.M., is the Scientific Officer, RFSL, Mysuru. She has deposed in her evidence that on 20.12.2012, she examined four sealed items containing some internal parts of the body of the deceased sent by Police pertaining to Crime No.331/2012 of K.R. Nagar Police Station, and gave report as per Ex.P-15.
10.19 PW-28 Gavinaika is the scribe of Ex.P-1 complaint. He has deposed that about 2½ to 3 years back, he came to know about the murder of Srinivasnaika, son of Rajamma, and Rajamma is his cousin sister. As Rajamma does not know the reading and writing, he has given a report as per Ex.P-1.
10.20 On perusal of the evidence of the prosecution witnesses, now the court has to examine whether the prosecution has proved the circumstances projected by it. The major circumstances to implicate the accused persons relied upon by the prosecution are:
(i) Motive;
(ii) Last seen of accused Nos.1 to 3 along with the deceased;
(iii) Recovery of incriminating articles at the instance of the accused and their connection to the crime.
(iv) Conduct of the accused on the basis of the alleged mobile phones recovered from the accused persons.
11. Now we are going to deal with each and every circumstance relied upon by the prosecution as noted supra.
12. Motive: In order to prove the motive, the prosecution relied on the facts that, accused Nos.1 and 4 were having illicit intimacy with each other which prompted them to join together and hatch a conspiracy with accused Nos.2 and 3 to do away with the life of the deceased, who is the husband of accused No.4. The prosecution has relied upon the evidence of PWs.1 to 10. PWs.1 and 2 are none other than the mother and brother of the deceased. PW-10 is the daughter of the deceased. Including PWs.3 to 9 and 10, have turned totally hostile to the case of the prosecution and they have not supported the case to any extent. Therefore, what remains for consideration is that, the evidence of PWs.1 and 2 with regard to the motive factor. Of course, in the compliant, PW-1 has stated that, accused No.4 and the deceased are husband and wife and further, accused No.4 and the deceased are doing coolie work in Kodagu area and they used to come to their village two or three times in a month. In one sentence, it is stated that, the mother of PW-1 - Thimmamma was telling to this witness that accused No.4 was threatening the deceased that, she would kill him. It is also stated that, accused Nos.1 and 4 had some illicit intimacy with each other. In this context, there was a quarrel between husband and wife. But, nowhere it is stated about any circumstance with regard to the quarrel and as well as on what basis, she came to know about the illicit intimacy between accused Nos.1 and 4 and whether she has personally seen such illicit intimacy or she has received any information from any other source. Further, added to that, with regard to the threat given by accused No.4, to the deceased the same was informed to this witness by her mother Thimmamma. Admittedly, Thimmamma has not been examined before the Court.
13. PW-2, who is none other than the brother of the deceased, to some extent has deposed with regard to the allegation made against accused Nos.1 and 4. Though he has stated in one word that there was illicit intimacy between accused Nos.1 and 4, but he has not stated vividly on what basis he has deposed before the Court in such manner. Whether he has got any personal knowledge with regard to illicit intimacy or he has received any information from other source. Except this piece of evidence, there is no other materials in this regard. In our opinion, there is distorted version in the evidence of these two witnesses and there is no other witnesses to the alleged incident. Without any personal knowledge about illicit intimacy between accused Nos.1 and 4, it is very difficult for the Court to draw an inference that, the prosecution has proved the case beyond reasonable doubt and the existence of the alleged motive factor.
14. Coupled with the above said deficiencies, as we have narrated, the other relative witness of the same village, particularly PW-10, who is none other than the daughter of the deceased and accused No.4 has not supported the case of the prosecution. Under the above stated circumstances, we are of the opinion that, the prosecution has not established this particular aspect.
15. The trial Court mainly relying upon the telephonic conversations alleged to have taken place between accused Nos.1 and 4 has drawn an inference on imagination that the telephonic conversation itself is sufficient to draw an inference of illicit intimacy between accused Nos.1 and 4. As we have already narrated the evidence of some of the witnesses particularly, the owner of the coffee plantation PW.16-Satish Thimmaiah, he never stated that the cell phones and the SIM card belonged to him and he never handed over the same to accused No.1 at any point of time. Further, added to that, what was the conversation that has taken place between accused Nos.1 and 4 is also not made known to the Court by anybody. The trial Court, simply on the basis of the said alleged conversation between accused Nos.1 and 4 has come to the conclusion that there was illicit intimacy between each other. If such inference is drawn, it will have a far reaching consequence and it will cause a serious repercussion on a lady. Therefore, while giving finding with regard to illicit intimacy, the Court must have sufficient material to draw an inference with regard to such relationship between the parties. We are afraid to draw such inference without any proof of the conversation between accused Nos.1 and 4 with each other over phone. Even the prosecution in our opinion has not proved that, the possession of the said mobile phone which belonged to PW.16 was given to accused No.1 and the deceased at any point of time. Therefore, we have no hesitation to say that there is no acceptable evidence, so far as motive factor is concerned. There is absolutely no allegation, so far as accused Nos.2 and 3 are concerned with regard to the motive factor.
16. LAST SEEN THEORY:
Prosecution has relied upon the evidence of PWs.1, 6, 10 and 18 to establish this last seen theory. The last seen theory, if established, should have some nexus between the last seen of the accused and the death of the deceased. So far as the recovery of the dead body is concerned, there should not be huge gap between last seen and the detection of the dead body to draw the inference that, there was no interference by any third person in between these two timings. In this background, the prosecution has to establish not only the last seen of the accused and the deceased together but also has to establish that there was no such gap between last seen theory and as well as detection of the dead body.
17. PW.1 in this regard in her evidence and in the complaint-Ex.P1, it is stated that, on 13.11.2012 in the morning at about 6.00 a.m., when she was going back from Gavadagere, she saw accused No.4-Lakshmi and deceased-Srinivasa Naika were proceeding towards temple and they told that they will come back at about 12.00 noon. But, at about 2.00 p.m., PW.1 received information from her grand daughter Ranjitha stating that accused Nos.1 and 3 have taken the deceased along with them and thereafter, they did not return to the house. After a long lapse of three days i.e., on 15.11.2012, the dead body of the deceased was found near Doddalalanahalli in a Canal. Thereafter, PW.1 and others went there and saw the dead body. Therefore, she suspected that accused Nos.1 and 3 might have committed the murder of the deceased. Therefore, it is clear that, accused No.4 and the deceased went to the temple and his son did not return. In the course of evidence, PW.1 has deposed that, on the date of incident i.e., on 13.11.2012, accused No.4 and deceased went to the temple and in the evening at about 5.00 p.m. accused No.1-Srinivasa took the deceased from the temple and the said information was given by PW.10 and thereafter, her son did not return. Therefore, there is a contradiction with regard to the time. In the compliant, she states that at 2.00 p.m., she received such information. In the course of cross-examination again it is reiterated by her that on 13.11.2012 the above said person i.e., accused No.4 and deceased went to the temple and thereafter, she did not see the deceased at all.
18. PW.10 in fact insofar as this aspect is concerned has turned totally hostile to the prosecution perhaps the reason she wanted to save her mother from any punishment because accused No.4 is none other than the mother of PW.10. In this context, evidence of PW.2 also comes into play. PW.2 in fact has stated that on the relevant date, accused No.4 and the deceased had gone to the Chandagalamma temple and accused No.1 also visited the said temple and thereafter all of them came back to the house. On the same day at 3.00 or 4.00 p.m., accused Nos.1 and 3 came to the house and called the deceased to go with them and thereafter, the deceased did not return to the house. Even without referring to the cross- examination of this witness, it is seen that according to the evidence of PW.1 and also the statement of PW.1 given before the police, as per the prosecution case, after going to the temple, the deceased did not return at all from the temple and accused Nos.1 and 3 took the deceased along with them. But according to PW.2, they all came back to the house at about 3.00 p.m. or 4.00 p.m. and accused Nos.1 and 3 took the deceased along with them. Therefore, it creates a serious doubt whether PW.2 has actually seen accused Nos.1 and 3 taking the deceased along with them. If at all accused No.1 has taken the deceased from the temple itself, there is no chance of he being taken by the accused Nos.1 and 3 once again from the house.
19. Further added to the above, if the evidence of PWs.1, 2 and 10 is carefully perused, none of them have stated any particular time of the incident and the last seen theory. PW.1 never deposed that she was present in the house when accused No.1 took the deceased along with him. PW.2 never deposed with regard to the presence of PW.1 or PW.10 in the house at any particular time. Therefore, having found such discrepancy in the evidence of PWs.1, 2 and 10, we do not have any hesitation to say that, the prosecution has not proved the circumstance of last seen theory and that accused Nos.1 and 3 taking the deceased along with them, beyond reasonable doubt.
Therefore, giving benefit of the above said doubts, the accused are entitled for acquittal.
20. RECOVERY: Next circumstance is the recovery of some incriminating articles at the instance of the accused.
21. It is the case of the prosecution that accused No.1 was arrested by PW.15. PW.15 has deposed before the Court that on 15.11.2012, accused No.1 was produced before him and he arrested him. He further deposed that he also arrested accused No.2-Raghavendra and accused No.3-Ravi Kumar. He recorded the voluntary statement of accused No.1, in which, Accused No.1 has stated that, he would produce a knife and a shirt of the deceased and motor cycle which was used for commission of the offence. Accused No.2 also gave voluntary statement stating that he would produce a motor cycle.
22. It is in a very ambiguous manner stated that, Investigating Officer has secured the panch witnesses Sannajavaranaika and Nagarajanaika and recovered Mobiles i.e., Mos-4 and 5 from the accused persons under a mahazar Ex.P22 and he identified them before the Court. But he has not in detail stated in what manner he has recovered these articles. It is further stated in his cross-examination that, the accused persons have also shown the place of incident and also produced a knife from a bush and after recovering the same, he drew up a the mahazar as per Ex.P-23 and identified the said knife as MO.2. He has also prepared a sketch as per Ex.P-24. He has also deposed that, he has recovered a Motor Cycle under mahazar-Ex.P-25 from accused No.1 and also another motor cycle under mahazar-Ex.P-26 as per MO.7 produced by accused No.2. It is also stated that on 19.11.2012, he recovered a mobile phone-MO.8 from accused No.4 under a mahazar-Ex.P27.
23. In the course of cross-examination, he has admitted that the mobile phones-MOS.6 and 7 belonged to one Satish Thimmaiah and MO.8 belonged to accused No.4. He has also secured the call details report of these mobiles which are fitted with SIM Cards. But he has not secured the details as to how these articles came to the possession of the accused. In this regard, the evidence of one Sathish Thimmaiah required to be discussed. The said witness denied that, he gave any mobile or SIM card in favour of accused No.1 and the deceased. Therefore, mere recovery of some mobiles bereft of other connecting material, the Court cannot say that, these mobiles connect the accused in any manner.
24. Apart from the evidence of Investigating Officer, one of the Nodal Officer i.e., PW.26- Geethalakshmi.R was examined before the Court and she deposed that she has examined the call details pertaining to four numbers ie., No.94832 61923 and Mobile No.93418 27150 and it is also stated that, there was extensive talks between these two numbers. There is no call details which refers to the mobile number of the deceased which has recorded any conversation with any of the accused person. It is also stated that telephone No.99012 34963 is in the name of one Shivaramu Subbegowda, that person has not been examined to establish the said factum. Further added to that, this witness also stated in the course of cross-examination that cell No.94832 61923 is the telephone number of accused No.1 and its location was found at K.R.Nagar town. But there is no specific evidence before the Court to say that, at that relevant point of time, these mobiles were found in the location where the incident had happened. Therefore, mere production of the mobiles and the call details bereft in any connecting evidence to say that actually these mobiles were handled by the accused at the relevant point of time and the same were found at the place where the incident had taken place at the relevant point of time. Mere recovery of these mobiles, noway connect the accused persons to the crime.
25. So far as the motor cycles are concerned, nowhere it is stated that they are recovered from accused Nos.1 and 2. None of the witnesses including Investigating Officer have produced any acceptable evidence to show that any one of the accused have used these motor cycles for the purpose of commission of offence particularly to take the deceased along with them on the relevant date and time.
26. As we have already given finding that prosecution has not proved the last seen theory, without last seen theory being proved, mere recovery of these motor cycles without any connecting material, would noway prove the prosecution case against the accused.
27. The only point that remains for consideration is with regard to the recovery of a knife. The prosecution witnesses in fact PW.20-Nanjunda and PW.23-Santhosh, who were virtually to some extent supported the case of the prosecution but their evidence is not acceptable. PW.21 who is the panch witness to Ex.P26 has totally turned hostile to the prosecution. PW.20-Nanjunda has supported the case of the prosecution. So far as this mahazar is concerned, particularly Ex.P23 under which the police have seized the knife, in the examination-in-chief, he has stated that accused has produced the said knife from a bush. But in the course of cross-examination, he has stated that he can identify the said knife because it was a new knife.
28. Likewise PW.23-Santhosh has also to some extent supported this particular aspect with regard to the recovery of a knife at the instance of accused No.1. Though the prosecution was able to show the recovery of the knife at the instance of accused No.1, there is no further connecting material to show that this knife was actually used for commission of the offence or even to establish that the knife was used by accused No.1 at any point of time. The prosecution has noway narrated that there was blood stains on the knife and no eyewitness has deposed to the effect that this knife was found in the hands of accused No.1. Further, this knife was not sent to Forensic Science Laboratory for examination. Therefore, mere recovery of a knife is not sufficient to prove the guilt of the accused. Therefore, looking from any angle, in our opinion, though the prosecution has made some efforts to prove the alleged commission of offence, on the above said circumstances, the same is not enough to prove the recovery. Therefore, giving benefit of the aforesaid circumstances, we are of the opinion that, the trial Court has committed serious error in bending the evidence for convicting the accused persons.
29. As we have seen the judgment of the trial Court, the trial Court has believed the evidence of the witness to the motive though there is no sufficient material. Mere conversation between accused Nos.1 and 4 has been taken as substantive evidence by the trial Court to give a finding that there was a relationship between accused Nos.1 and 4 existed and further without referring to how the prosecution could connect the recovered article to that of the crime. But simply stated that, the prosecution has proved the commission of the offence. The last seen theory is also not properly appreciated. Particularly in a circumstantial evidence case, when the eyewitnesses are not there, the Court has to meticulously examine each and every circumstance to ascertain whether, the prosecution has proved the case beyond reasonable doubt. The trial Court has not done such exercise in this particular case. Under the above said circumstances, we are of the opinion that the judgment of the trial Court is liable to be set aside. Hence, we proceed to pass the following:
ORDER i) The appeals are hereby allowed. Consequently, the judgment of conviction and order of sentence dated 29/30.04.2015 passed by the 1st Additional District and Sessions Judge, Mysore in S.C.No.104/2013 is hereby set aside. The appellants/accused Nos.1 to 4 are hereby acquitted of the charges levelled against them for the offences punishable under Sections 302, 201 and 120(B) read with Section 34 of the Indian Penal Code;
ii) The appellants/accused Nos.1 to 4 shall be set at liberty forthwith, if they are not required in any other case;
iii) If the appellants/accused Nos.1 to 4 have deposited any fine amount, the same is ordered to be refunded to them on proper identification and acknowledgement;
iv) The Registry is hereby directed to communicate the operative portion of this judgment to the concerned Jail Authority for release of the appellants/accused Nos.1 to 4 forthwith, if they are not required in any other case; and v) Copy of this judgment shall also be sent to the trial Court along with its records.
Sd/- JUDGE Sd/- JUDGE PL/VM