IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 2ND DAY OF APRIL, 2019 PRESENT THE HON’BLE MR. JUSTICE K.N. PHANEENDRA AND THE HON’BLE Dr. JUSTICE H.B. PRABHAKARA SASTRY CRIMINAL APPEAL NO.883/2015 (C) BETWEEN:
VENKATESHA @ PAAPU S/O LATE SHANMUKAPPA AGED 29 YEARS, R/O BILICHODU VILLAGE JAGALUR TALUK PRESENTLY R/O JAYANAGARA 1ST CROSS, SIDDAGANGA NILAYA NEAR 2ND CHURCH DAVANGERE CITY – 577 002 … APPELLANT (BY SRI. S. S. KOTI, ADVOCATE) AND:
THE STATE OF KARNATAKA THROUGH BILICHODU POLICE STATION, JAGALUR TALUK DAVANAGERE DISTRICT REP. BY S.P.P., ADVOCATE GENERAL OFFICE HIGH COURT BUILDING BENGALURU – 560 001 … RESPONDENT (BY SRI. I. S. PRAMODCHANDRA, SPP-II) THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374(2) OF CR.P.C., PRAYING TO SET ASIDE THE JUDGMENT DATED 24.06.2015 AND ORDER ON SENTENCE DATED 25.06.2015 PASSED BY THE II ADDITIONAL DISTRICT AND SESSIONS JUDGE DAVANGERE, IN S.C.NO.53/2013 – CONVICTING THE APPELLANT/ ACCUSED NO.1 FOR THE OFFENCE PUNISHABLE UNDER SECTIONS 302 AND 404 OF IPC.
THIS CRIMINAL APPEAL COMING ON FOR FINAL HEARING THIS DAY, K.N. PHANEENDRA, J., DELIVERED THE FOLLOWING:
JUDGMENT The appellant, who is arrayed as Accused No.1 before the trial Court in SC No.53/2013 on the file of the II Addl. District and Sessions Judge, Davangere, has preferred this appeal calling in question the judgment of conviction dated 24.6.2015 and order on sentence dated 25.6.2015, convicting and sentencing him to undergo life imprisonment and to pay a fine of Rs.50,000/- and in default of payment of fine, he shall undergo simple imprisonment for one year for the offence punishable under section 302 of IPC; and to undergo simple imprisonment for one year and to pay a fine of Rs.10,000/- and in default of payment of fine, he shall undergo simple imprisonment for six months for the offence punishable under section 404 of IPC.
2. The brief facts of the prosecution case is that:
A case was registered by the respondent Police in Crime No.122/2012 for the offence punishable under section 302 of IPC on the basis of a report submitted by PW-10 Puttarajakumara, who is no other than the husband of the deceased Sneha Prabha. The prosecution case divulged on the basis of the above said report is as follows:
PW-10 Puttarajakumar and his deceased wife Sneha Prabha are the residents of Bilichodu village in Jagalur Taluk, Davanagere District. PW-10, his wife and his children were residing in a house in the said village. On that particular day of the incident i.e., on 23.11.2012 in the morning at about 8.00 a.m., PW-10 had been to the land of one Shivanna along with his tractor. The deceased Sneha Prabha had been to their lands to graze the cattle along with her sister Shobha PW-5. PW-10, after finishing his work, came back to his house. Immediately, after parking the Tractor at about 2.00 p.m., he and his daughter PW-6 Kum.Sandya, had been to their lands on his motor bike. Thereafter, PW-10 told his daughter PW-6 to call her mother. PW-6 while searching for her mother, found the dead body of her mother in their land where the Avare crop was grown, and screamed after seeing the dead body of her mother sustaining injury on her head and face etc., Immediately, PW-10 also went there and saw the dead body and thereafter, he went to the Police Station and lodged a complaint as per Ex.P-7. He has stated that some unknown culprits might have committed the murder. Therefore, he requested the Police to investigate the matter. He has also stated that by the side of the dead body, there was a size stone with blood and also missing of the Mangalya chain with small gold beads and thali etc., and also missing of one ring in the finger of the deceased. On the basis of which, the Police have proceeded to investigate the matter and after completing the investigation, they found that the accused is the person who has committed the murder of the deceased for various reasons. Accordingly, a charge sheet was laid against the accused persons.
3. The accused was arrested during the course of the investigation and it appears that the accused has been in Judicial Custody since the date of his arrest. After committal proceedings and also after securing the presence of the accused, the learned Sessions Judge has framed charges against the accused for the above said offences, for which he was convicted later. The accused pleaded not guilty. Recording his plea, the trial Court has proceeded to hold a trial against the accused.
4. The prosecution in order to bring home the guilt of the accused examined as many as 17 witnesses and got marked Exhibits P-1 to P-38 and Material Objects MOs.1-
13 and Exhibits D1 and D2 were also marked through PWs. 2 & 3 in their statement made before the Investigating Officer during the course of inquest. The statement of the accused was recorded u/s.313 of Cr.P.C. However, the accused has not taken any specific defence and he did not choose to lead any defence evidence on his side. After hearing both the parties, the trial Court has arrived at a conclusion that, the prosecution has proved the case beyond all reasonable doubt; and thereby convicted the accused and sentenced him as noted supra.
5. We have heard the arguments of the learned counsel Sri S.S. Koti and also the learned State Public Prosecutor-II Sri I.S. Pramod Chandra, for respondent – State. We have re-evaluated the entire materials on record and also examined the correctness of the judgment of the trial Court.
6. The learned counsel for the appellant/accused No.1 strenuously contends before this court that the entire case revolves around four important circumstances, which are: (i) Homicidal death of the deceased; (ii) Motive; (iii) Accused and deceased last seen together; and (iv) Recovery of incriminating articles at the instance of the accused and connection of the said incriminating articles with the crime and the accused. The learned counsel has further contended that, none of the above said circumstances have been proved by the prosecution beyond all reasonable doubt. He draws our attention to the evidence of PW-3 and other circumstances coupled with the evidence of the Investigating Officer and submitted that, there is no acceptable evidence from these witnesses in order to establish sufficient motive for the accused to commit such an offence. The last seen incident is not established though the so called last seen witnesses who are close relatives and naighbours of the deceased, but they have not opened their mouth at the relevant point of time for the reasons best known to them and at the earliest point of time even though opportunity was there for them to disclose the factum of accused and deceased last seen together before anybody including the Investigating Agency and also the complainant, but they have not stated so. Even they have not given any explanation in their evidence as to why they have kept quiet, though some relevant material was there without disclosing the same at right point of time. Therefore, the evidence of this witness cannot be made use of by the court for the purpose of holding that the prosecution has proved the case beyond all reasonable doubts.
7. The next contention raised by the learned counsel for the appellant is with regard to the recovery of the Material Objects i.e., one pair of Thali chain and gold beads at the instance of the accused and also the blood stained shirt of the accused marked at Mos.7 & 8 respectively.
8. The learned counsel for the appellant contended that the voluntary statement of the accused itself is doubtful. The arrest of the accused is doubtfully shown before the court that one of the witness PSI who arrested the accused has deposed that he arrested the accused on 24.11.2012 whereas the Investigating Officer says that the accused was produced before him on 25.11.2012. Further, there is no material to show that the accused was wearing the blood stained shirt on him and the same has not been depicted in the voluntary statement of the accused. Even the witnesses examined, i.e., one of the witness, an appraiser of the gold ornament turned hostile and he has not seen the presence of the accused in the Police Station. The other witnesses are interested witnesses who have brought to the Police Station by the complainant himself and other witnesses are also closely related to PWs.4 & 13. PW-4 is a close relative and known to the complainant and therefore, he was brought to the Police Station. Therefore, the said recovery of incriminating articles at the instance of the accused in his opinion cannot be made basis for the purpose of convicting the accused. Therefore, on overall taking us through the evidence of the prosecution witnesses, the learned counsel contended that the evidence is totally insufficient for the purpose of drawing any inference in proving the guilt of the accused. Hence, he pleaded for acquittal of the accused.
9. Per contra, learned SPP-II submitted that the trial Court has considered all the above said contentions raised by the learned counsel and giving proper reasons has arrived at a conclusion that the prosecution has proved the case beyond reasonable doubt. He has further contended that though there is some discrepancy in not disclosing the factum of accused and deceased last seen together by the witnesses, but subsequently, they have disclosed on the very next day. Therefore, delay in recording the statement of these witnesses and delay in disclosing the said fact before the Investigating Officer by them are not fatal to the case of the prosecution. He further contended that the accused was actually apprehended on 25.11.2012 and at that time, accused was actually wearing blood stained shirt and also having the gold beads and thali in his packet and he voluntarily produced them before the Investigating Officer and virtually the Police, after investigation seized those objects in the Police Station. Though circumstance projected by the prosecution remotely connect the accused to the motive, but it cannot be disbelieved because some of the witnesses have stated that, the accused was teasing and in sighting the deceased for his sexual satisfaction, as she refused for the same, he took the opportunity on the date of the incident to do away with the life of the deceased. Therefore, though there are discrepancies here and there, and also contradictions and omissions, those would not go to the root of the prosecution case. On overall looking to the case of the prosecution, it cannot be said that, the prosecution has not proved its case beyond reasonable doubt. In fact, the trial Court has after appreciation of the entire evidence arrived at a conclusion which requires no interference at the instance of this court. Hence, he pleaded for dismissal of the appeal.
10. In the wake of the above said submissions made by both the counsels, now we would like to examine the evidence on record, to ascertain whether the prosecution has proved the case beyond reasonable doubt that the accused has actually committed the murder of the deceased or not. As rightly contended by the learned counsel for the appellant and as conceded by the learned SPP-II that the entire case of the prosecution revolves around 4 major circumstances, which are;
(i) Homicidal Death of the deceased;
(ii) Motive;
(iii) Accused and deceased last seen together and the dead body was found immediately after that; and (iv) Recovery of the incriminating articles at the instance of the accused and connection of the same with that of the crime.
11. Now, we would like to discuss the above said circumstances in detail. Before doing that we would like to have the brief cursory look at the evidence of the prosecution witnesses.
12. PW-1 S J. Manjunatha is an inquest panch witness who supported the case of the prosecution and identified his signature on Ex.P-1 inquest Mahazar as Ex.P1(a). Virtually, there is no cross examination so far as this witness is concerned.
13. PW-2 Rajesh, brother of the deceased, has deposed that soon after he came to know about the incident, he went to the Hospital, saw the dead body of the deceased and he has spoken about the motive factor with regard to the accused always teasing and in-sighting the deceased for his sexual lust.
14. PW-3 Ashoka, father of the deceased, has almost re-iterated the evidence as spoken to by PW-2.
15. PW-4 H.P. Sheetal Prasad Kumar, who is a witness for Spot Mahazar Ex.P-2, has deposed that, the Police have seized Mos.1 to 6 i.e., one stone, one pair of chappal, one rope, blood stained mud and sample mud from the spot. He is also a witness to Ex.P-3 mahazar for recovery of one gold chain with thali marked at MO-7 and one blood stained shirt marked at MO-8 from the accused. He is also a panch witness to Exhibits P-4 mahazar and P- 5 seizure mahazar. Ex.P-4 is the mahazar drawn by the police to the effect that the accused has once again showed the place of incident. Ex.P-5 is the seizure mahazar to the effect that the accused has shown the place where he has thrown the black beads after removing it from the gold chain of the deceased.
16. PW-5 Shoba B.S, PW-6 Kum.Sandhya, PW-7 Kum.Halamma, and PW-8 Arun Kumar are the important witnesses who are examined for the purpose of proving the last seen of the accused and the deceased together in the land of PW-10.
17. PW-9 K.Chandrappa, is another witness examined to prove the last seen of the accused and deceased together and he has seen the dead body thereafter and a size stone at the spot, which is stained with blood.
18. PW-10 Puttarajakumar is the husband of the deceased. After he saw the dead body of the deceased in his land, he went to the Police Station and lodged a complaint as per Ex.P-1 and he also identified the gold chain with black beads and thali belonged to the deceased as per MO-7. He also identified Mos.1 to 6 and the accused before the court. Earlier, he has suspected some other person might have committed the offence in his statement. But subsequently, he has stated that after receiving the information from his naighbours, he suspected the commission of the offence by the accused.
19. PW-11 K. Ramachandrappa, who was a Junior Engineer, attached to PWD, Jagalur, has prepared the sketch of scene of offence as per Ex.P-21 and there is no dispute so far as these aspects and also the place of incident is concerned. But, it is only the question that who has committed the murder of the deceased.
20. PW-12 Jagadeesh, is a Police Constable who carried the FIR to the learned JMFC Court on 23.11.2012 at 12.00 midnight and there is no dispute so far as this aspect is concerned.
21. PW-13 K.M. Ananthachari, is an appraiser and he was present in the Police Station when the accused has produced the gold chain with black beads and thali as per MO-7. But, he has not fully supported the case of the prosecution. He has not identified the accused in the Police Station on that particular day.
22. PW-14 Imran Baig, PSI, Chitradurga, spoke about the receipt of a report as per Ex.P-7 lodged by PW- 10, on the basis of which he registered a case in Crime No. 122/2012 and dispatched the FIR to the JMFC, on 23.11.2012 at 12.00 in the mid-night as per Ex.P-22, and later he has stated that, he apprehended the accused Nos.1 & 2 on 24.11.2012 and produced them before the Investigating Officer.
23. PW-15 Dr.Tulasinaik, Sr. Specialist, CG Hospital, has deposed before the court that he has conducted the Post Mortem examination on the dead body of the deceased Sneha Prabha and issued the Post Mortem examination report as per Ex.P-23 stating that the death of the deceased was due to massive cerebro baseular injury and as a result of injuries sustained to brain. He has also opined that such injuries could be caused if a person is assaulted with the help of an object like MO-1 stone.
24. PW-16 Dr.N.L. Ningegowda, who is a Scientific Officer, RFSL, Davanagere, has examined item Nos.1 to 6 and gave his opinion that the blood stains on those items contained ‘O’ Group blood, which virtually tallied with the blood group of the deceased.
25. PW-17 J.S. Thippeswamy, CPI, Chittavadi, Hosapete, has deposed that he has conducted the investigation in this case and arrested the accused, recorded the voluntary statement of the accused as per Ex.P-26 and spoke about the recovery of MOs.7 & 8 under Ex.P-3 mahazar from the accused. He has also deposed about the drawing up of Mahazars Ex.P-4 and P-5, as shown by the accused, i.e., the place of incident and the place where the black beads are thrown by accused No.1.
26. On the basis of the above said evidence, the court has to examine whether the prosecution has established the guilt of the accused beyond reasonable doubt un-erringly or not?.
27. Now, we would like to consider the circumstances as projected by the prosecution sequence- wise.
28. Homicidal death of the deceased: In our opinion, the homicidal death of the deceased is not much disputed. Even otherwise, the witnesses i.e., PWs.5 to 10, have categorically stated in their evidence that they have actually seen the dead body of the deceased lying in the land of PW-10 sustaining grievous injuries on the head and the face and the death was occurred in the land itself and thereafter the dead body was shifted to Davanagere Hospital and in the Hospital inquest proceedings were conducted. PW-1 who is the inquest panch has in fact identified the dead body as that of the deceased and he has stated that, he was very much present when the inquest proceedings were conducted. There is no cross examination so far as the evidence of this witness is concerned. In support of the same, the prosecution has also relied upon the evidence of the doctor PW-15 Dr. Tulasi Naik. He has stated that, he has examined the dead body of the deceased Sneha Prabha on 23.11.2012 and he found as many as five grievous injuries on the dead body which are (1) Depressed fractured wound with cut wound present on the right side face about 20x5 cms with the red clot was present with the CLW present on the right forehead measuring 7x3x2 cms.; (2) Depressed scull vault on the left side of temporal and parital region; (3) Abrasion present on the right side wrist 1x½ cms.; (4) Abrassion present on the forehead 3x2 cms.; (5) Lenear abrasion was present over the frontal of the neck 5x½ cms. He has also deposed that, on dissection of the body, he has seen wounds on scull, brain, membrane, depressed fractured wound on the right side of the face. He gave his opinion that the cause of death was due to massive cerebro baseular injury and as a result of injuries sustained to brain. He has not been cross examined by the defence counsel and the contents of Ex.P-3 is not controverted. Therefore, looking to the above said evidence of the witnesses and the nature of the death occurred and the injury sustained by the deceased, it cannot be said that those injuries could not be self- inflicted and it is also not the case of accused that, he never denied the death of the deceased at all. Therefore, under the above said circumstances, the injuries could not have been caused on the deceased by herself. Therefore, the third party intervention must be inferred. Under the above said circumstances, it can be safely concluded that the prosecution has proved the homicidal death of the deceased. Mere proving of the homicidal death of the deceased is not sufficient to connect the accused persons in any manner. Therefore, the other circumstances require to be considered by this court.
29. MOTIVE: It is the case of the prosecution that the accused was often in-sighting the deceased for the purpose of having sexual relationship with her. Another aspect is that, after commission of the murder, he has taken away the gold ornaments on her person, for his wrongful gain. Therefore, these are the two factors; the prosecution has relied upon for the purpose of establishing motive. Of course, here and there, by one or two witnesses have stated about the motive. Mainly, the prosecution has relied upon the evidence of PWs.2 & 3 so far as this aspect is concerned.
PW-2 is the brother of the deceased and PW-3 is the father of the deceased. Both of them have deposed in a very similar manner with regard to the first motive factor is concerned. Both of them have stated that, about one month prior to the incident, the deceased had been to their house and disclosed that, a person by name Venkatesh was causing inconvenience to her. Except that, there is nothing in their evidence to show as to what type of sexual harassment given by the accused Venkatesh and even they have not stated that whether the said Venkatesh is the same person who is before the court or not. Therefore, from the evidence of these two witnesses so far as motive aspect is concerned, no court can draw a conclusive inference and further, elucidation of facts not completely give any inference that, what type of harassment that was undergone by the deceased from the accused Venkatesh. Therefore, without there being any vivid evidence before the court, the court cannot draw an inference that this was a strong motive on the part of the accused to do away the life of the deceased.
30. PW-10 Puttarajakumar, who is no other than the husband of the deceased is silent so far as this particular aspect is concerned, except stating that, he has received such information from PWs.2 & 3. So also, it is not his case that, during the life time of his wife, she has disclosed anything against the accused with him at any point of time. Therefore, in our opinion, this is little bit un-natural, because the first person to whom the said complaint could have been made by the deceased is PW- 10, who is the husband of the deceased. In the course of cross examination, he has admitted that he do not know anything about any allegations made against the accused in this regard. Even, the other witnesses in a very casual manner, have stated that the accused was teasing and in- sighting the deceased. But, at no point of time, they have actually seen or heard about the said factum either from the deceased Sneha Prabha or actually, they have witnessed the accused and the deceased together at any point of time prior to the date of incident as stated by them. In the above said circumstances, in our opinion, the evidence placed before the court by the prosecution in order to establish the motive is very feeble and it is inadequate and insufficient to draw any inference in this regard. Therefore, we are of the opinion, the prosecution has failed to prove the existence of motive factor beyond reasonable doubt.
31. LAST SEEN THEORY: The prime circumstance relied upon by the prosecution is the accused and deceased last seen together. The prosecution has relied upon the evidence of PWs.5-10 in this regard. PW-5 Shoba is no other than the co-sister of the deceased Sneha Prabha; PW-6 is no other than the daughter of the deceased; PW-7 Kumari Halamma is the naighbour, who has gone to the naighbouring land for the purpose of plucking cotton; PW-8 Arun Kumar, is the owner of the adjacent land has also deposed that he was present on 23.11.2012 at about 11.00 a.m., in their land and seen the accused and deceased in the land of the accused itself; PW-9 K.Chandrappa is also the owner of the naighbouring land of the deceased and PW-10. All these witnesses, in fact, in their examination-in-chief have categorically stated that they were present in their respective lands at the time of the incident, particularly, in the afternoon at about 1.30 to 2.30 p.m., They have categorically stated that accused No.1 had come to the land of PW-5 Shoba, talked with her and went to the land of the deceased Sneha Prabha and was talking to her and thereafter, at about 2.30 p.m., or 2.45 p.m., the accused went away from the said land.
32. The witnesses have further stated that immediately after 2.30 p.m., PW-6 Kum.Sandya and her father PW-10 came to that particular spot and PW-10 told PW-6 to go in search of her mother. In that context, PW-6 has stated that she went in search of her mother and found her mother lying dead in the Avare crop, sustaining severe bleeding injuries to the head and face. Immediately, she screamed and thereafter, all the witnesses as well as PW-10 rushed to that particular place, where the dead body was lying and saw the dead body of the deceased. Though in the examination-in-chief, these witnesses have categorically stated about the accused coming to the spot and going out from the said spot between 1.30 and 2.30 p.m., But, in the course of cross examination, something worth has been elicited that, these witnesses have not disclosed the same before anybody much less to the complainant about the said aspect of accused visited the said spot and going away at the relevant point of time. In this context, it is just and necessary for us to examine the cross examination portion of these witnesses.
33. PW-5 Shoba, in fact has admitted in her examination-in-chief itself that at about 2.45 p.m., herself, Chandrappa and Arunkumar, Halamma, Manjakka and Susheelamma, rushed to the place where the dead body was lying and by that time, PW-10 was also present and PW-6 was also present at that time. She has categorically stated in the course of cross examination that accused, deceased as well as PW-10 were all cordial with each other and therefore, they never suspected the conduct of the accused at all. Nevertheless, PW-5 has admitted that after seeing the dead body, she did not disclose about the accused to PW-10 and also before police, when police came to the spot. Police were there upto 5.00 p.m., and the dead body was lying there till 5.00 p.m., and thereafter, the police drew up the mahazar, but she did not know the contents of the mahazar. The police did not ask PW-5 on that particular day and she also did not disclose the said factum to the police or to PW-10 at that particular point of time.
34. PW-6 also stated in the course of examination-in-chief, that on that particular day itself, the naighbouring land owners have stated that the accused came to the spot and went away. In spite of that, she being the daughter of the deceased and PW-10 was very much present she did not disclose the same to PW-10. In the course of cross examination, she also admitted that till 24.11.2012 i.e., on the next day, she did not disclose the said fact to anybody much less to her father. Likewise, PW-7 also admitted her presence and the presence of other witnesses near the dead body on that particular day and not disclosed the said important factual aspects to PW-10 or to the police till next day and till their statements were recorded by the police.
35. PWs.8 & 9 have also in their cross examination have stated that they were very much present when the police visited the spot. The complainant was also present, but they did not disclose anything before police or before PW-10 about the said aspects. As rightly contended by the learned counsel for the appellant, if at all, these witnesses were present in their lands and saw the accused talking with Sneha Prabha for such a long time, between 1.30 and 2.30 p.m., and particularly, the witness PW-5 Shoba talked with the accused person that, she was the last person to have seen the real culprit, if at all she has actually seen the accused and this witness on that particular day, why they have not disclosed the same atleast to PW-10. PW-10 in fact lodged the complaint as per Ex.P-7. It is conspicuously absent in Ex.P-7 any information with regard to the presence of any of these witnesses in the land when PW-10 went to the spot, except the presence of Shoba in the said land. He also never disclosed that Shoba or himself have suspected the accused in this regard. On the other hand, it is only stated that, some unknown culprits might have committed the murder of the deceased by throwing a stone on her head for the purpose of snatching gold chain with thali from the neck of the deceased. Therefore, this creates a serious doubt whether the accused person coming to the land of Sneha Prabha, talked to her and thereafter went away from the spot. In the absence of any explanation, elucidated in the evidence of these witnesses as to why and for what reason, they did not immediately disclose the said factum before PW-10 at right point of time. It is not their case that, after seeing the dead body they were fully afraid or they were threatened by the accused not to disclose the same to anybody. When there is no such circumstances, how the accused No.1 went away from the said land after sustaining so much of injuries on the head. It is the un-natural conduct of the said witnesses in not disclosing the said factum before PW-10 or atleast before the Police, when it is established that the police came to the spot immediately after the incident at about 3.00 p.m., itself. In this context, it is worth to refer the evidence of the PSI who visited the spot immediately after he received the information.
36. PW-14 Imran baig, PSI, in the course of cross examination has stated that on the day of the incident, after receiving the information, he also went to the spot and observed the dead body lying in the land of PW-10 and he along with his personnel stayed there upto 8.00 p.m., and he assisted the CPI, the Investigating Officer, in shifting the dead body to the Hospital. He never said that though he went to the Hospital, these witnesses have given any information making any allegation about the conduct of the accused. He has also stated that upto 24.11.2012, they were not having any suspicion about anybody as to who has committed the murder of the deceased.
37. Another witness PW-17 J.S. Thippeswamy, CPI, who has taken over the further investigation. He has stated before the court that after receiving the information, on 23.11.2012 in the afternoon itself at about 3.00 p.m., with regard to the murder of Sneha Prabha from PSI, Bilichodu over phone, immediately he visited the spot and preserved safely the evidence on the spot. He has further deposed in the examination-in-chief itself that he found the nose pin, ear studs and a ring on the dead body. However, the Mangalya chain was conspicuously absent. But he has never stated that, he has enquired from any of the witnesses who are present at that particular point of time and recorded the statement of any of the witnesses. But, he has stated that on the next day, he recorded the statement of Sandya, Shoba, Arunkumar, Shreyas Kumar and Chandrappa. Their evidence has already been discussed, but there is no explanation by him, as to why he has not actually recorded the statement of these witnesses on that day itself. In the course of his further cross examination, he has admitted that on that particular day, when he visited the spot, he has enquired with the people, who are surrounded there and examined the place of incident. But, nobody has given any information about anything suspecting anybody as to who might have committed the offence. He has categorically stated that, at that particular point of time, PW-5 Shoba and PW-6 Sandya were very much present and they also did not disclose anything and not suspected anybody.
38. Therefore, looking to the above said evidence, the evidence of the so called witnesses who are cited to establish the last seen of the accused and deceased together just prior to the incident, in our opinion is not so credit worthy or trustworthy for acceptance. It is not that they have seen the accused persons for a long time on that day prior to or after the incident. It is their evidence that immediately prior to the incident, they saw the accused going towards the land of Sneha Prabha and immediately after the incident, he has left the said place so this fact must be very much green in their mind and no other person could have been suspected other than the accused, who has seen immediately after the incident. It is also worth to note here within no time, i.e., within a span of ½ an hour or one hour, the police have visited the said place. More over particularly PWs.5, 6, 10 and others were very much present and from the time, they detected the dead body in their land, these witnesses were also curiously witnessing the dead body, but in spite of that they never disclose the coming and going of the accused at that particular point of time.
39. Though the learned counsel has relied upon various decisions in this regard with regard to the delay in giving such information by the witnesses to the investigating agency and also delay in recording of the statement, but the fact itself is sufficient in this case, therefore, there is no need for us to rely upon any decision in this regard. Therefore, looking to the above said circumstances, we are of the opinion, that the prosecution has also not proved the last seen of the accused and the deceased together beyond reasonable doubt.
40. As we have expressed that the prosecutor before the trial Court has not even made any efforts to elucidate from the evidence of these witnesses as to why they did not disclose the said fact before PW-10 or before the investigating agency at the earliest point of time when sufficient opportunity was there to them to disclose the same.
41. RECIVERT: Last, but not least, another strong circumstance relied by them is the recovery of the incriminating articles at the instance of the accused. The prosecution has relied upon the evidence of PW-17, the Investigating Officer and PW-13 K.M. Ananthachari, as well as PW-4 H.P. Sheetal Prasad Kumar. PW-17 in our opinion, in a very casual manner has deposed in his examination-in-chief that on 25.11.2012 at about 11.00 a.m., when he was in the Police Station, his staff produced accused No.1 before him. He arrested him and recorded his voluntary statement as per Ex.P-26. He identified the signature on Ex.P-26 of him as Ex.P-26(c) and the signature of the accused as Ex.P-26(d). It is also stated that the accused was having thali and blood stained shirt on him. He seized them under mahazar Ex.P-3. He has identified one pair of thali and four gold beads as MO-7 and blood stained shirt as MO-8. Except this he has not stated anything as to which are the places the blood stains were there on the shirt of the accused, whether any replacement of shirt was made to the accused at that particular point of time or not, when it is alleged that the accused has removed his shirt and handed over the same to the police etc. In the course of cross examination, he has stated that accused was not produced before the court on 24.11.2012 but only on 25.11.2012 at 11.00 a.m., the accused was produced. He has further admitted that he has not specifically mentioned in Ex.P-3 from where the accused has taken out thali and gold beads whether from his packet or from which place. It is suggested that the accused was not at all wearing any blood stained shirt and not produced the same before police and the police have concocted the story of recovery for the purpose of laying a false case against the accused.
42. Before adverting to discuss the evidence of these witnesses, we would like to examine the other witnesses in this regard.
43. PW-14 Imranbaig, PSI of Chitradurga Police Station has deposed before the court that on 23.11.2012 he was deputed for the purpose of apprehending the accused and on 24.11.2012, he has left the Police Station in search of the accused and he saw the accused – Venkatesha in the bus stand at Bilichodu village and he apprehended him and produced him before the Investigating Officer. He has very specifically stated in his evidence that he has apprehended the accused on 24.11.2012 itself and brought him to the Police Station. In the course of cross examination, nothing has been elicited to show that the accused was not at all arrested by this witness. The core of the evidence of this witness is that according to PW-17, the accused was arrested on 25.11.2012, but according to the evidence of this witness, the accused was arrested on 24.11.2012 itself. There is no explanation offered by the prosecution in order to resolve this discrepancy in the evidence. Though the learned SPP brought to our notice that the case diary and the remand application and also the report submitted by PW-14 as per Ex.P-38 though disclosed that actually the accused was arrested on 25.11.2012, but we do not know what prompted this PW-14 to depose before the court that he has apprehended A1 on 24.11.2012 itself, we cannot simply brush it aside because on 23.11.2012 itself, the Investigating Officer has sent this man to apprehend the culprit in this case. When it clearly goes to show that the Investigating Officer had some information about this accused that it is not surfaced in the evidence of any of the witnesses, nevertheless, it gives a suspicion in the conduct of the Investigating Officer as to how he came to know about the culprit on 23.11.2012 itself, in order to depute this man to apprehend the accused.
44. In this context, learned SPP-II brought to our notice the inquest proceedings. During the course of inquest, the Investigating Officer PW-17 has recorded the statements of Rajesh Ashok and Padma Prasad and according to the inquest proceedings, it is those witnesses who have disclosed about the accused persons on the ground that they have received the information from their naighbouring land owners. But, this particular factum has not been brought on record either in the evidence of PWs.2 & 3 or in the evidence of the Investigating Officer himself. Therefore, in the absence of any substantive evidence before the court, to that extent, we cannot rely upon such submission made by the learned SPP-II, notwithstanding that, we can only draw an inference that the Investigating Officer had some suspicion against this accused. Therefore, perhaps that may be reason even one day prior to showing his arrest, he might have apprehended. If at all the version of PW-14 is believed, that the accused was apprehended on 24.11.2012 itself on that day if the accused was wearing the blood stained shirt, but this witness has not at all stated whether the accused was wearing any clothes much less the shirt with blood stains on it or not. This factum also creates a serious doubt with regard to the apprehension of the accused, production of the accused before the Investigating Agency either on 24.11.2012 or on 25.11.2012.
45. Now, coming to the evidence of the other two witnesses, i.e., PW.13 and PW.14. PW.13 – K.M. Anandachari, who is an appraiser of the gold ornaments. He was secured to the Police Station on 25.11.2012. He has deposed in his evidence that he has weighed the gold thali as well as 14 gold beads totally weighing 5 ½ grams. But, he says that he do not know who has actually given those gold beads to him and he never spoken anything about MO-7 and the accused wearing MO-8 shirt at that particular point of time. Though he identified MO-7 gold ornaments, but for the remaining aspects, he turned hostile to the prosecution. During the course of cross examination, it is suggested that the accused No.1 has produced the said two thalis and gold beads from his packet. But the said suggestion has been denied by this witness.
46. Another witness PW-4 Sheetal Prasad, is a panchwitness to Exs.P2, P3, P4 and P5. He has deposed before the court that on that particular day, the accused was in the Police station i.e., on 25.11.2012 and he produced the said Thali and gold beads before Police and the Police have recovered the same under a Mahazar Ex.P3. He identified his signature as per Ex.P3(a) and the accused has also produced the blood stained shirt (MO-8) to the Police and the same was also recovered. In the course of cross examination, it is suggested that this witness is a close relative of the complainant and in fact at the instance of the complainant he had been to the Police Station and even though he has not seen anything, he has falsely implicated the accused. Though he has denied the said factum that, he was not related to the complainant, but the said factum has been proved in the course of cross examination of the Investigating Officer PW-17. PW-17 in fact has stated at paragraph 14 that, Sheethal Kumar and Pradeep Kumar are the relatives of the complainant and those witnesses were actually brought by PW-10 Puttarajakumara to the Police Station. Of course, the evidence of the related witnesses need not be discarded on the sole ground that they are related to the prosecution witnesses, but the court has to examine whether that relationship has in any way prompted the witness to support the case of the prosecution as per the version of the complainant or the Investigating Agency. The discrepancies we have already discussed show that PW- 13, who is an independent witness has not supported the case of the prosecution. PW-14 Imran Baig, PSI, has also in a discrepant manner stated with regard to the apprehension of the accused and further, the Investigating Officer has not stated from where the accused has produced the said articles and PW-14 has not stated, when he apprehend the accused, whether the accused was wearing the blood stained shirt. Therefore, these are all the surrounding circumstances creates a serious doubt with regard to the apprehension of the accused and also the accused wearing a blood stained shirt at that particular point of time.
47. In the above backdrop, the learned counsel has also brought to our notice the voluntary statement of the accused recorded by the Investigating Officer as per Ex.P-
26. Of course, the voluntary statement does not contain that the accused was wearing a blood stained shirt and he actually voluntarily stated before Police that he was wearing the said shirt at the time of commission of the offence and he has produced at the time of arrest before Police. In the absence of such statement by the accused and the surrounding doubtful circumstances show that, if at all they were to be true version of the prosecution, why that has not been elucidated in the voluntary statement of the accused. This also in our opinion creates a serious doubt with regard to the recovery of these articles at the instance of the accused. Further, added to that, the accused in his voluntary statement Ex.P-26 has elucidated that he was produced all the gold articles and also gold mangalya and black beads and also he would show the house where he has committed the theft and he has also stated that he has committed the theft in the house of one Venkatesh and the said house is situated adjacent to the house of the accused. So, this clearly creates a serious doubt whether recovery of the gold articles which is alleged to have been seized from the custody of the accused pertaining to the deceased or they were actually theft articles from the house of Venkatesh. Therefore, in our opinion, these important aspects ought to have been clarified by the Investigating Agency, for which no attempt has been made by the Investigating Officer.
48. Looking from the above said circumstances, we do not want to labour this judgment by further discussing with regard to the connection of these incriminating articles with that of the crime, though the prosecution has examined FSL Officer PW-16 to establish that, the blood stained shirt of the accused and the stains on the shirt of the accused were also examined by him and it tallied with the blood group of the deceased, but when we are disbelieving the recovery of the shirt, there is no question of considering this evidence as gospel truth. Therefore, looking from any angle, though the prosecution has made attempts to establish the case against the accused, but no adequate and sufficient evidence has been led by the prosecution. Discrepancies and omissions on the part of the witnesses in our opinion go to the root of the prosecution case itself. The contradictions and omissions which the court accept the same which are sufficient to create serious doubt about the case of the prosecution, the benefit of such doubts should be given in favour of the accused. The trial Court though appreciated the evidence, has not taken into consideration of these important doubts meticulously and not given such benefit of doubt in favour of the accused. Therefore, the judgment of the trial Court is not proper and correct and is not sustainable either in law or on facts and the same in our opinion, is liable to be set aside. Hence, we proceed to pass the following:
ORDER (1) The appeal is allowed.
(2) The judgment of conviction dated 24.6.2015 and the order on sentence dated 25.6.2015 passed by the II Addl. District and Sessions Judge, Davangere, in SC No.53/2013, is hereby set aside.
(3) Consequently, the appellant/accused No.1 is hereby acquitted of the charges levelled against him for the offence punishable under Section 302 and 404 of IPC. The appellant/accused No.1 is ordered to be released forthwith, if he is not required in any other case.
(4) If any fine amount has already been deposited, the same is ordered to be refunded to the appellant/accused No.1 on proper identification and acknowledgement.
(5) Registry is hereby directed to communicate the operative portion of this order to the concerned jail authority for release of the appellant/accused No.1 forthwith, if he is not required in any other case.
(6) Registry is hereby further directed to send a copy of this judgment to the trial Court while returning the LCRs. to the trial Court.
Sd/- JUDGE Sd/- JUDGE PL*