IN THE HIGH COURT OF KARNATAKA, AT BENGALURU DATED THIS THE 5TH DAY OF FEBRUARY, 2019 PRESENT THE HON’BLE MR.JUSTICE K. N. PHANEENDRA AND THE HON’BLE MR.JUSTICE K. NATARAJAN CRIMINAL APPEAL NO.429/2013 (C) BETWEEN 1. SMT. UMADEVI W/O PANCHAKSHARI AGED ABOUT 27 YEARS R/AT KATTIGENAHALLI VILLAGE KIBBANAHALLI HOBLI TIPTUR TALUK, TUMKUR DISTRICT – 572 114 2. SRI. PANCHAKSHARI S/O LATE SHIVARAMAIAH AGED ABOUT 30 YEARS R/AT KATTIGENAHALLI VILLAGE, KIBBANAHALLI HOBLI TIPTUR TALUK, TUMKUR DISTRICT – 572 114 ... APPELLANTS (BY SRI. ROBIN CHRISTIPHER J., ADV.) AND THE STATE OF KARNATAKA BY CHIKKANAYAKANAHALLI POLICE STATION, TUMKUR DISTRICT, REP. BY STATE PUBLIC PROSECUTOR HIGH COURT BUILDING, BENGALURU – 560 001 ... RESPONDENT (BY SRI. VIJAYAKUMAR MAJAGE, ADDL.SPP) THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374(2) OF CR.P.C., PRAYING TO SET ASIDE THE JUDGMENT AND ORDER OF CONVICTION DATED 27.02.2013 PASSED BY THE P.O., F.T.C., TIPTUR IN S.C.NO.210/2012 CONVICTING THE APPELLANTS/ ACCUSED FOR THE OFFENCE PUNISHABLE UNDER SECTION 302 AND 201 READ WITH 34 OF IPC AND SENTENCING THEM FOR THE SAID OFFENCES, ETC.
THIS CRIMINAL APPEAL COMING ON FOR HEARING THIS DAY, K.N.PHANEENDRA J., DELIVERED THE FOLLOWING:
JUDGMENT The appellants are the accused before the Fast Track Court, Tiptur, (for short, ‘trial Court’) in S C No.210/2012. The learned trial Judge vide judgment dated 27.02.2013 convicted the appellants/accused for the offences punishable under Sections 302 and 201 read with Section 34 of IPC and sentenced them to undergo imprisonment for life and to pay fine of Rs.20,000/- each in default of payment of fine, to undergo simple imprisonment for further period of three months for the offence punishable under Section 302 of IPC and further sentenced them to undergo Rigorous Imprisonment for four years and to pay fine of Rs.5,000/- each with default sentence of simple imprisonment for one month, for the offence punishable under Section 201 of IPC.
2. The appellants/accused have called in question the said judgment of conviction and order of sentence passed by the trial Court, on various grounds.
3. We have heard the arguments of the learned counsel for the appellants and the learned Additional SPP for the respondent-State. We have carefully re-evaluated the evidence on record and also perused the judgment passed by the trial Court.
4. Before adverting to the submissions made by the learned counsel and the material evidence on record, we would like to have the brief factual matrix of this case.
5. The case of the prosecution is that, the deceased Panchakshari is the husband of PW.12 by name Leelavathi and they were living at Kattigenahalli village in Kibbanahalli Hobli, Tiptur Taluk. It is the further case of the prosecution that, on 18.03.2012, the deceased Panchakshari left the house at about 9.00 am., stating that, he would go to Kibbanahalli Cross and he will be back soon, but he did not return to the house on that day. On the next day ie., on 19.03.2012 the motor cycle of the deceased was found abandoned in a near by lake called Karadi Lake and the same was detected by some village people. On the basis of such information the wife of the deceased Leelavathi had been to Kibbanahalli Cross Police Station and lodged a report as per Ex.P18 requesting the police to trace-out her husband. The said report was registered by Kibbanahalli Police in Crime No. 90/2012. Thereafter, it appears on 22.03.2012 in the morning hours, some people have found a Gunny Bag containing a dead body near a bush on the side of Jayanthi Village, NH from Kibbanahalli Cross towards Tiptur and immediately, the brother of the said Leelavathi by name Mr. K.M.Vijayakumar went to that place along with others and he saw the dead body in the Gunny Bag and identified the same as that of the deceased Panchakshari. They suspected that, some people have committed murder of the deceased Panchakshari and threw the dead body near a bush on the side of the road tying the same in a Gunny Bag. PW.1-Mr. Vijayakumar, the brother of the said Leelavathi has further lodged a report before the police and the same was continued in the same Crime No.19/2012, by converting the said case for the offence under Section 302 and 201 of IPC. Subsequently, during the course of investigation, the police found that the deceased and Accused No.1 had some illicit intimacy between each other and this relationship came to the knowledge of Leelavathi and she advised her husband and also Accused No.1 not to continue the said relationship. But, in spite of that, their relationship continued and the deceased was forcing Accused No.1 to continue the relationship. Accused No.2 also came to know about the same. On 18.03.2012 Accused No.1 and the deceased conversed with each other over phone and thereafter, the deceased Panchakshari on his motor cycle No.KA.44-H-4127 visited the house of Accused No.1 situated at Tigadanahalli within the jurisdiction Chikkanayakanahalli Police Station and he forced Accused No.1 to have sexual intimacy with him. It appears at that time, Accused No.2 also came to his house and questioned the deceased Panchakshari as to why he had come to his house to destroy the family, and in that context, Accused Nos.1 & 2 who are the husband and wife, joined their hands together and assaulted on the head of the deceased with a club and also strangulated his neck with a plastic rope and committed murder of the deceased Panchakshari in the house of Accused No.1 at Tigadanahalli. It is also the case of the prosecution that, after committing the murder, they tied the dead body in a Gunny Bag in order to destroy the evidence in this case took the motor cycle of the deceased and carried the said dead body on the said motor cycle and threw the same near Jayanthi Road within the jurisdiction of Kibbanahalli Cross near a bush on the side of Jayanthi road and also threw the motor cycle into a nearby Karadi Lake and went away.
6. During the course of investigation, the police found sufficient materials against the accused persons and therefore, they were chargesheeted.
7. It is also to be noted here that, though the case was initially investigated by Kibbanahalli Police, after they found that, the incident had happened within the jurisdiction of Chikkanayakanahalli Police and the said case was registered in FIR No.62/2012 and thereafter, further investigation had been taken up by Chikkanayakanahalli Police and charge sheet has been laid against the accused by the said police.
8. During the course of investigation, Accused Nos. 1 & 2 were arrested on 13.12.2000. After filing the charge sheet and after committal of the case, the learned trial Judge secured the presence of Accused Nos. 1 & 2 (the appellants herein) and framed charges against them for the offences punishable under Sections 302 and 201 of IPC. As the accused pleaded not guilty, they were tried by the trial Court.
9. The prosecution in order to bring home the guilt of the accused, examined as many as 19 witnesses–PWs. 1 to 19 and got marked the documents as per Exs. P1 to P51 and during the course of cross-examination of PW.12, Ex.D1 was marked by the defence counsel and the prosecution also got marked the material objects as per Mos. 1 to 9. The accused were also examined under Section 313 of Cr.PC. and they were also called upon to enter into the defence evidence if any. As the appellants/accused did not choose to lead any defence evidence, the trial Court after appreciating the oral and documentary evidence on record, found that, the prosecution has proved its case beyond reasonable doubt, as such convicted the accused persons for the offences punishable under Sections 302 and 201 of IPC and sentenced them accordingly, as noted supra.
10. Learned counsel for the appellant has strenuously contended before the Court that, out of many circumstances projected by the prosecution, not even a single circumstance is proved by the prosecution and the circumstances projected by the prosecution are not so strong enough to implicate the accused persons to the crime. The learned counsel has taken us through the evidence of the prosecution and also submitted that the trial Court, only on the basis of the evidence of PW.2 found that there is a strong motive for the accused persons to do away with the life of the deceased; He submits that there is absolutely no other materials to corroborate the evidence of PW.2; Though the recovery of a club at the instance of the accused has been doubtfully established, but connection of that club to the crime is also not established. Therefore, the mere recovery is bereft of any connection to the crime is of no use. Lastly, the conversation alleged to have been taken place between Accused No.1 and the deceased has also not been established because, the call details discloses that Accused No.1 has actually had no conversation with the deceased at any point of time. There is absolutely no material to show that, the death of the deceased has occurred in the house of Accused No.1 and no incriminating materials have been collected by the police in order to establish the said factor. Therefore, the trial Court convincing itself morally without there being any legal evidence, has convicted the accused, which is erroneous and the same is liable to be set aside.
11. Per contra, the learned Addl. SPP supporting the judgment of the trial Court submitted that, there is a strong motive for Accused Nos. 1 & 2 to do away with the life of the deceased. Evidence of PW.2 clearly establishes the relationship between Accused No.1 and the deceased. He also contends that, on the relevant date and time, Accused No.1 conversed with the deceased with the help of a mobile belonged to the mother of Accused No.1. This particular aspect has been established from the call details report marked before the Court.
Though there is no material to show that, the accused and the deceased last seen together in the house of Accused No.1, but the other circumstances are strong enough to convict the accused. Therefore, he submitted that, there is no grounds to interfere with the judgment of conviction and sentence passed by the trial Court.
12. In the wake of the above facts and circumstances, and on careful perusal of the entire case of the prosecution, we noticed that, the prosecution has mainly relied upon the following main circumstances,-
i) Motive, ii) Recovery of incriminating materials at the instance of the accused iii) Call details pertaining to the conversation between Accused No.1 and the deceased and also the deceased visiting the house of Accused No.1 on that day and the police have conducted mahazar in the house of Accused No.1 wherein the blood stains of the deceased found in the house of Accused No.1.
13. Before adverting to the above said circumstances, we would like to have the brief cursory look at the evidence of the prosecution witnesses and we would discuss the evidence of these witnesses pending upon the circumstances projected above.
13.1 PW.1-KM Vijayakumar is no other than the brother-in-law of the deceased Panchakshari ie., brother of Leelavathi, the wife of the deceased. In his evidence he has stated that, on 18.03.2012 the deceased went out from the house as per the information received from his sister Leelavathi and he did not return. They came to know that the motor cycle of the deceased found in Karadi Lake on 19.03.2012 and in spite of due search by them, they could not able to trace the whereabouts of the deceased. Therefore, a missing complaint was lodged by PW.12 as per Ex.P18 on 20.03.2012 at 9.30 a.m. The people of Kibbanahalli Cross found a Gunny Bag containing the dead body, near Jayanthi Cross. Immediately this witness along with one Shivaswamy and Leelavathi went to that particular spot and found the dead body of Panchakshari in the said Gunny Bag. The Police, who were already present at the spot, have in fact started investigation after detecting the dead body. Thereafter this witness has lodged a complaint to the police as per Ex.P1, on which the police have registered a case for the offences punishable under Sections 302 and 201 of IPC. This witness also identified the clothes of the deceased and a plastic rope tied to the neck of the deceased, and a ‘T’ shirt, a pant and a Gunny Bag were also identified by this witness, which are marked as MOs. 1 to 4. He has further deposed that, the police have visited the house of Leelavathi and drew up mahazar as per Ex.P2 from where the deceased left the house on 18.03.2012. PW.1 also stated that his sister was telling him that the deceased had illicit intimacy with Accused No.1 and therefore they suspected the hands of Accused Nos. 1 & 2 in the death of the deceased. Except these things, this witness has not stated anything about the accused persons which is incriminating against them. The motive factor stated by PW.1 was not personally known to him, but that information was received by him from Leelavathi. Therefore, the evidence of this witness is not helpful to the prosecution. Except that, the criminal prosecution has set into motion against Accused Nos.
1 & 2 suspecting their hands in the death of the deceased, the evidence of this witness is no avail to the prosecution.
13.2 PW.2-HM Umapathi is the inquest witness, who has in fact supported the case of the prosecution. He went to the place where the dead body was found near Tigadanahalli village on 22.03.2012 and he in fact signed the inquest mahazar which is marked at Ex.P3. He has also identified MOs. 1 to 4 and also the underwear of the deceased as per MO.5. He has also stated that, he came to know about the deceased leaving the house on 18.03.2012 and he does not know anything personally about the incident. But he has also suspected that, some persons might have assaulted the deceased and caused his murder. Therefore, from the evidence of this witness, even in the examination chief, absolutely no incriminating evidence is available against the accused. The evidence of this witness is also fully corroborated by the evidence of the doctor who was examined as PW.9, who conducted post-mortem examination on the dead body of the deceased Panchakshari. He conducted post-mortem examination on 22.03.2012, initially he reserved his opinion till the receipt of FSL report. But he actually seen the FSL report in the Court and gave opinion in the court itself stating that the cause of death of the deceased was due to ‘pressure on the neck and injuries sustained inside the neck and also due to the head injury caused,’ deceased had suffered brain hemorrhage. But he has actually not given the correct opinion as to how the death actually occurred as to whether it is due to suffocation or due to hemorrhagic shock or due to the injuries sustained by the deceased on the head. Nevertheless, he has given his opinion that the injury found on the head of the deceased would be caused if a person was hit with a weapon like MO-7 (Club) and also other injuries may also be caused if a person is strangulated with the help of a rope or putting pressure on the neck etc..
13.3. What could be gathered from the evidence of the Doctor and as well as this witness is that, the death of the deceased Panchakshari was an unnatural death and he died due to head injury and due to strangulation of his neck. Therefore, it goes without saying that, when the death occurs due to some extraneous circumstances, it is not the natural death. In our opinion, the prosecution was able to establish that the deceased died a homicidal death. However, mere proving of homicidal death is not sufficient. There must be strong materials which connects the accused persons to the crime and it must be shown that they are the perpetrators of the crime. There is no such material in the evidence of PW.2 with regard to the said aspect.
13.4 PW.3-BS Nagaraju is also one of the witnesses to the incident. He has also not stated anything about the accused or the deceased except identifying MOs. 1 to 5, and in his evidence, absolutely no such incriminating materials available, which connects the accused to the crime.
13.5 PW.4-KR Shivanna is a panch witness to Ex.P4. The police in fact have found a Gunny Bag after receiving the information from the public on 22.03.2012 and the police had been to that particular place and drew up mahazar as per Ex.P4. This witness has also signed the mahazar drawn as per Ex.P4(a). Except that, he has not stated anything. He has also identified MOs. 1 to 4. In his evidence, absolutely no incriminating evidence is found, which connects the accused to the crime.
13.6 PW.5-KM Honnappa is a witness to Ex.P5, which is a seizure mahazar of, MOs. 1 to 5 at the spot where the Gunny Bag containing the dead body was found. In fact he has not fully supported the case of the prosecution. Except identifying his signature as per Ex.P5(a) and also identifying MOs. 1 to 5, he also never stated anything about the connection of these items with the accused. What is to be looked into from the evidence of this witness is, the prosecution wants to establish that the police had been to the place where the dead body was found in a Gunny Bag and drew up mahazar as per Ex.P5.
13.7 PW.6-M. Nanjamari is the material witness, who has been examined to establish the recovery of MO.6 (Mobile) from Accused No.1 under mahazar Ex.P6. In fact this witness is also a witness to Ex.P4 where the police drew up mahazar after they found the dead body in a Gunny Bag. This point has already been covered and established by the prosecution. He has stated that, on 30.03.2012 the police had been to the place called Kattigenahalli Village and Accused No.1-Umadevi has produced one Cement Colour mobile which was recovered by the police under a mahazar (Ex.P6). In the course of cross-examination, it is elicited that the police have opened the said mobile and they found no SIM Card in it, but Accused No.1 has disclosed the SIM Card No.9743290760 and she has also admitted that, she has burnt the said SIM Card in a charcoal stove, in her house. Except that, this witness has not stated anything else about the said mobile belonged to him etc. In the course of cross-examination by the learned Public Prosecutor, there is some discrepancy with regard to the colour of mobile phone, but it has been clarified by the said witness himself that, he being 63 years old, he might have stated the colour of the mobile as red. The evidence of this witness shows that, Accused No.1 has taken out and produced the said mobile from the haystack at Kattigenahalli Village. Though Accused No.1 is the resident of Tigadanahalli, but the mobile was kept by this lady in a haystack at Kattigenahalli Village. It is not explained by her as to how that mobile came to that particular place and when and why she kept that mobile in the haystack. Of course, it is only known to Accused No.1 as to how come that mobile was kept in the haystack on that particular day is not relevant. We will consider the recovery of mobile with reference to the SIM Card used, with reference to the CDR little later.
13.8 PW.7-K.S. Mahesh is another witness, who supported the case of the prosecution. He is an attester to mahazar under which the Police have recovered a club at the instance of accused Nos.1 and 2. PW.18 (IO) and as well this witness have stated that, on 30.03.2012 accused Nos.1 and 2 were already in the custody of the Police and they took the Police, this witness and another witness to Tigadanahalli Village to the house of accused No.1 and opened the door of the house and went behind that house and showed a place and stated that, they have committed the murder of the deceased by assaulting him with a club. They had also produced a club searching out from the tile roof of the said house and they produced the same before the Police and the Police have seized that club and drew up a mahazar on the spot as per Ex.P7 and marked the said club through PW.7 as MO.7. Thereafter, the accused have also taken the Police near a Honge tree situated near Karadi Village and shown the place where the dead body was thrown. Police have also drawn a mahazar as per Ex.P8, but this circumstance has no significance, as the Police had already knew the place where the dead body was found and they have already visited that said place. It is further stated by PW.7 that, the accused also took the Police to a nearby tank at Karadi Village to show the tank where actually the motor-cycle of the deceased was thrown into and there the Police have also drawn the mahazar as per Ex.P9. But in our opinion, this mahazar is also superficial because, that aspect was already known to the Police much earlier to the arrest of the accused persons and there cannot be any detection of this place or motor-cycle or the dead body at the instance of the accused. Therefore, we are of the opinion that, these circumstances will not in any manner help the prosecution case. Except recovery of a club at the instance of accused Nos.1 and 2, there is no recovery of any incriminating materials. We would like to discuss the evidence of PW.7 little later with regard to connection of the club with the alleged crime.
13.9 PW.8-Nandeesh is a witness to Ex.P11.
According to the Investigating Officer and this witness, on 19.03.2012, the Police had secured the presence of a panch witness near Karadi Village as the Police found a motor-cycle near a tank and the Police went to that place and drew mahazar as per Ex.P11. This witness signed the same and identified MO.8. This circumstance is also insignificant, as the Police new about a motor cycle sunk in the said lake much earlier to the arrest of the accused.
13.10 PW.9-Dr. S. Rudramurthy, who conducted Post-Mortem, clearly stated that, the deceased died due to assault on his head with a club and tying of his neck with a plastic thread. Further, he opined that the injuries were anti-mortem in nature and they were fresh injuries. Even in the cross-examination of this witness, nothing has been elicited, except suggesting him that, what was the weapon used to assault on the head and how those injuries could be caused, etc. Doctor has given his opinion only before the Court and not given opinion in the Post-Mortem Examination Report which in fact we have already discussed.
13.11 PW.10-H. Rajanna, P.D.O, is a person, who has issued katha extract pertaining to the house No.81 situated at Thigalanahalli Village, Chikkanayakanahalli Taluk. He has stated that the said house belonged to one Shivanna, son of Bettegowda. There is no dispute that in the said house accused No.1 was residing. Said documents issued by this witness are marked as Exs.P14 and 15. There is no cross-examination so far as this witness is concerned. There is no dispute that, the said house belonged to one Shivanna.
13.12 PW.11-B.P. Nagaraju, is the Assistant Engineer, who has prepared the sketches of the spot and the house of accused No.1, where the incident has taken place and gave his report as per Exs.P16 and 17. This witness was also not cross-examined. However, these sketches prepared by this witness do not help to draw any inference that incident has happened in the said house belonged to one Shivanna.
13.13 PW.12-Leelavathi is the material witness to the prosecution, who is the wife of the deceased and who actually last seen the deceased on 18.03.2012 at 9:00 p.m. and she lodged a missing complaint as per Ex.P18, which we have already discussed. Apart from lodging the complaint as per Ex.P18, this witness has also spoken about tracing of the motor-cycle on the next day, i.e. on 19.03.2012 and also finding the dead body of the deceased in a gunny bag on 20.03.2012 and visiting the said place, where the dead body was found and identifying the dead body as that of her husband. Apart from above, PW.12 has also spoken about the motive factor. She has stated that, accused No.1 and the deceased had illicit intimacy with each other. In fact, on one occasion, this witness has taken oath from the deceased that, he should not continue the illicit contact with accused No.1. In fact, this witness has gone to accused No.1 and advised her not to continue the illicit relationship with her husband and accused No.1 accepted the same and thereafter, accused No.1 did not meet or come to the house of this witness at any point of time and this witness also never seen accused No.1 thereafter. The evidence of this witness is liable to be discarded, because she never said as to particularly on what date and time prior to the death of the deceased, she met accused No.1 and as to when actually she advised her husband not to meet or not to have contact with accused No.1 etc. Therefore, it is very difficult to draw any inference about the motive factor. It is a stale motive or the said motive is not persuasive in nature and it is not happened soon prior to the death of the deceased. She also stated that, on 18.03.2012, her husband was talking to somebody over phone, but she did not over heard such conversation. Thereafter, her husband said, he will go near K.B. Cross and come back soon, but after that, he did not return.
13.13 (a) In the course of cross-examination, PW.12 has disclosed the name of two persons-Uma and Rathnamma, who stated to have seen the deceased visiting the house of accused Nos.1 and 2, but absolutely, no evidence has been placed before the Court to establish this particular motive, except the Statement of PW.12. Therefore, in our opinion, there is no adequate evidence to draw an inference that, there was illicit intimacy between accused No.1 and the deceased. Though there is some contradictory elucidation of facts in the cross- examination about the time the deceased left the house, he had quarreled with his wife and whether she advised him not to contact accused No.1; had he received any phone call from accused No.1, he should not respond to her, etc., but nothing worth has been elicited in the cross-examination of this witness. Be that as it may, the examination-in-chief is not sufficient to connect the accused persons to the crime, as there is no consistency or corroboration to the evidence of this witness so far as motive factor is concerned. As could be seen from the entire evidence, no witnesses have spoken about illicit intimacy between the deceased and accused No.1. Even otherwise motive itself is not sufficient to draw any inference of guilt against the accused, in the absence of strong material on motive factor to connect the accused persons with the crime. Motive may be used for the purpose of strengthening the case of the prosecution, but that alone is not sufficient to believe the case of the prosecution or to draw any inference of guilt of the accused persons. Therefore, we have to see whether any other circumstances are established by the prosecution in order to use the motive factor either to strengthen the case of the prosecution or to disbelieve the case of the prosecution.
13.14 PW.13-D.S. Chandrashekar is the person, who registered a missing complaint as per Ex.P18 lodged by PW.12 and registered the same in Crime No.19/2012 and dispatched the F.I.R. (Ex. P.19) to the jurisdictional Court.
13.15 PW.14-S. Vijayalakshmi is the then Police Sub-Inspector of K.B. Cross Police Station, who apprehended the accused on 30.03.2012 and produced them before the Investigating Officer with a report as per Ex.P22. She has also deposed about the detection of the dead body near Jayanthi Village in a gunny bag on 22.03.2012. There is no necessity for us to discuss this particular aspect here once again, as we have already dealt with, and even there is no dispute with regard to arrest of the accused on 30.03.2012. The fact that, by the time of the arrest of the accused, motor-cycle was detected, dead body was already detected and only recovery of club from the house of accused No.1 is show to have been established.
13.16 PW.15-Chidanandamurthy, working as a Sub-Inspector of Police at Chikkanayakanahalli, has deposed that, he received the case papers on transfer from Kibbanahalli Police for want of jurisdiction and he registered a case in Crime No.62/2012 and submitted F.I.R. to the Court as per Ex.P24 and also received all the materials from Kibbanahalli Police and he sent the club to the F.S.L. and obtained the permission of the Court to keep the other seized material in Police custody.
13.17 PW.16-Chandrashekar, who is a friend of PW.1 deposed that, on 19.03.2012, he has assisted PW.1 in searching the deceased and he has also deposed that the Police have conducted the mahazar in the house of PW.12 at Kattigenahalli as per Ex.P2, which is not significant in so far as this case is concerned.
13.18. PW.17-Chandraiah, Agriculturist, deposed that, he is the paternal uncle of accused No.1. The prosecution has examined this witness in order to strengthen its case and to connect accused Nos.1 and 2 to the crime. It is the case of the prosecution that, the deceased was visiting the house of accused Nos.1 and 2 and he had illicit intimacy with accused No.1. But this witness has turned hostile to the prosecution. In the course of cross-examination, it was suggested to this witness that, on 18.03.2012 (the date of incident), some person had come to the house of the accused at about 11:00 p.m. It was further suggested to him that, this witness has heard the voice of accused No.1 and then, he went there and observed a motor-cycle - MO.8 belonging to the deceased was parked in front of the house of accused No.1 and he, in fact, enquired what was going inside the house, but the accused persons told that, they are doing some pooja inside the house, therefore, he came back to his house. All these suggestions made in the cross-examination have been denied stating that he has not given any such statement as per Ex.P25. Therefore, the connecting material that, on the date of the incident, the accused persons and the deceased met together in the house of accused No.1 is not established before the Court. The circumstance of this witness noticing the motor-cycle of the deceased near the house of the accused is not established. The circumstance of deceased and the accused were last seen, as projected by the prosecution, as sought to be established from the evidence of this witness, is not sustainable and the same has not been proved at all.
13.19. PW.18-K.G.Ramakrishan, Circle Inspector of Police is the Investigating Officer, who investigated the case partially. He deposed that, after coming to know about a filled gunny bag tied with a thread was lying in Jayanthi Village, he went to the spot and conducted inquest proceedings as per Ex.P3 and also drew a mahazar as per Ex.P4 and recorded the statement of some of the witnesses. He has also stated that, he has collected the telephone number-9844690120 of the deceased. So far as this aspect is concerned, there is no much denial in the cross-examination. He has also stated that, he collected the information about the telephone and SIM Card used by accused No.1, bearing No.9743290760 and the call details are marked at Exs.P26 and 27. We would like to discuss with reference to these documents particularly with reference to evidence of PW.6.
14. Coming to the call details collected by the Police under Exs.P26 and 27, admittedly, the mobile was seized at the instance of accused No.1. PW.6, in fact, has supported the evidence so far as this aspect is concerned. Exs.P26 and 27 show that, the said two call details registers, i.e one belonging to the deceased and another belonging to one Nagamma, who is none other than mother of the accused No.1. Of course, in the call details, there is no conversation between two SIM cards at the relevant point of time on 18.03.2012 and the same is not established before the Court. Admittedly, according to the prosecution, the mobile phone and SIM card was possessed by accused No.1. According to the prosecution, this SIM card belonged to mother of accused No.1, Nagamma. Though the statement of Nagamma was recorded during the course of investigation, she was not examined before the Court to establish the factum that the said mobile phone was given to accused No.1 by her, to draw any inference that, it was accused No.1, who actually conversed with the deceased on the particular date. In the absence of any material to show that, accused No.1 had actually conversed with the deceased, it is difficult to draw any inference that accused No.1 has secured the presence of the deceased to her house on the particular date and thereafter, accused No.1 & 2 have done away with the life of the deceased. It is a very feeble circumstance, even the prosecution has failed to establish. In fact the trial Court has committed serious error in relying upon the statement of Nagamma recorded by Police during investigation to draw an inference that Nagamma had given mobile phone to accused No.1 and accused No.1 conversed with the deceased through the said phone, on the particular date. It is to be borne in mind that, if any statement is made before a competent authority, that should unequivocally and without any doubt has to be proved before the Court by the case of the prosecution in the manner known to law. If it is not done and creates any doubt in the mind of the Court, the benefit of such doubt should be given to the accused. Therefore, in our opinion, call details admitted to be established before the Court alone are not sufficient to draw an inference that the accused persons have secured the presence of the deceased on that date in order to do away with his life.
15. Coming to recovery of a club at the instance of accused Nos.1 and 2, of course, the evidence of PWs.18 and 7 shows that accused Nos.1 and 2 have produced the said club from the house of accused No.1, i.e particularly from the tile roof of the house and of course, the Police have recovered the same and sent the club to the F.S.L. The F.S.L. report which is marked at Ex.P12 discloses that club was sent along with blood sample of the deceased. After examining these two objects, the F.S.L. report shows the presence of blood as it was stained on item No.1 and that stained blood was human blood and since the blood fluid collected from the dead body was sent lately to F.S.L., the same was disintegrated and hence, its origin could not be determined. Corroboration of the blood-stain on item No.1 could not be inconclusive, therefore, there is no brevity with regard to seizure of this club and user of the same for the purpose of assaulting the deceased. Though the club contained blood stains, but the prosecution failed to establish that the blood stains matched with the blood group of the deceased.
16. Apart from the above, the trial Court has relied upon the photographs marked at Exs.P30 to 50, which are in a compact disc marked at Ex.P51 and the Court has observed that the blood stains in photographs as per Exs.P30 to 35 are visible on the back side of the door, on the stone flooring and on the walls. Therefore, the trial Court has drawn an inference that the murder has taken place in the house of accused No.1, but very peculiarly, the Investigating Officer has deposed before the Court so far as this aspect is concerned at paragraph No.72 that, on the voluntary statement of accused Nos.1 and 2, they took panch witnesses to the spot shown by the accused, which is situated at Thigalanhalli Village, which is the parental house of accused No.1 and the Police found blood spilled on the kadapa slab and on the wall of the said house and photographs were taken as per Exs.P30 to 35 and also seized the club thereafter. In the course of cross-examination, except stating that he has taken the photographs, he has not stated that, he has collected any blood scrapping from the wall of the house or from the kadapa slab or anywhere from the said house. Therefore, there was no question of sending blood stains found in the house of accused No.1 to the F.S.L. The trial Court has committed serious error, only by looking at the photographs it drawn an inference that the death must have occurred in the house of accused No.1. The observation made by the trial Court is not acceptable even by a common man.
17. Therefore, looking to the above said circumstances, it appears except a feeble link of call details, no other material has been placed before the Court by the prosecution to establish the guilt of the accused persons. Therefore, we are of the opinion that the trial Court has convinced itself morally without there being any legal evidence to convict the accused, which is erroneous and does not stand for judicial scrutiny. Therefore, we have no hesitation to reverse the judgment of the trial Court and acquit the accused. Hence, we proceed to pass the following order:
ORDER i) The appeal is hereby allowed. Consequently, the Judgment of Conviction and Order of Sentence dated 27.02.2013 passed by the Sessions Judge, Fast Track Court at Tiptur, in SC No.210/2012 is hereby set aside.
ii) Appellant No.1 (A1)-Umadevi and Appellant No.2 (A2)- Panchakshari are hereby acquitted of the charges levelled against them for the offences punishable under Sections 302 and 201 of the Indian Penal Code;
ii) Accused Nos.1 and 2 shall be set at liberty, if they are not required in any other case.
iii) If accused Nos.1 and 2 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 this order to the concerned Jail Authority for release of the Appellants (A1 and A2) forthwith, if they are not required in any other case.
Sd/- JUDGE KGR/kvk Sd/- JUDGE