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2024. KHC:36187-DB CRL.A No.773 of 2018 C/W CRL.A No.195 of 2018 R IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE04H DAY OF SEPTEMBER, 2024 PRESENT THE HON'BLE MR JUSTICE K.SOMASHEKAR AND THE HON'BLE MR JUSTICE S RACHAIAH CRIMINAL APPEAL No.773 OF2018(C) C/W CRIMINAL APPEAL No.195 OF2018(C) IN CRL.A No.773/2018 (C) BETWEEN: SMT UMA W/O CAUVERY GOWDA, R/AT CHIKKEGOWDANADODDI VILLAGE, UYYAMBALLI HOBLI, KANAKAPURA TALUK. …APPELLANT (BY SRI. VEERANNA G TIGADI, ADVOCATE) AND: STATE OF KARNATAKA BY SATHANUR POLICE STATION, RAMANAGARA DISTRICT. …RESPONDENT (BY SRI. VIJAYAKUMAR MAJAGE, SPP-II) THIS CRL.A. FILED U/S.374(2) CR.P.C PRAYING TO SET ASIDE THE
JUDGMENTAND
ORDEROF CONVICTION AND SENTENCE DATED1901.2018 PASSED BY THE II ADDITIONAL DISTRICT AND SESSIONS JUDGE, RAMANAGARA TO SIT AT KANAKAPURA IN S.C.NO.5017/2013 - CONVICTING THE APPELLANT/ACCUSED NO.1 FOR THE OFFENCE P/U/S302AND201R/W34OF IPC.-. 2 - NC:
2024. KHC:36187-DB CRL.A No.773 of 2018 C/W CRL.A No.195 of 2018 IN CRL.A No.195/2018 (C) BETWEEN: SRI. SHIVABASAVEGOWDA AGED ABOUT30YEARS S/O. EEREGOWDA AGRICULTURIST RESIDENT OF CHIKKEGOWDANADODDI VILLAGE UYYAMBALLI HOBLI, KANAKAPURA TALUK. (NOW UNDER DURESS AT THE CENTRAL PRISON BANGALORE). ...APPELLANT (BY SRI. C V NAGESH, SR. ADVOCATE FOR SRI. RAGHAVENDRA K, ADVOCATE) AND: STATE OF KARNATAKA BY THE STATION HOUSE OFFICER, SATHANUR POLICE STATION, KANAKAPURA TALUK, RAMANAGARA DISTRICT, REPRESENTED BY THE SPECIAL PUBLIC PROSECUTOR. ...RESPONDENT (BY SRI. VIJAYAKUMAR MAJAGE, SPP-II) THIS CRL.A. FILED U/S.374(2) CR.P.C PRAYING TO SET ASIDE THE
JUDGMENTDATED1901.2018 PASSED BY THE II ADDITIONAL DISTRICT AND SESSIONS JUDGE, RAMANAGARA TO SIT AT KANAKAPURA IN S.C.NO.5017/2013 - CONVICTING THE APPELLANT/ACCUSED NO.2 FOR THE OFFENCE P/U/S302AND201R/W34OF IPC. THESE APPEALS, COMING ON FOR FINAL HEARING, THIS DAY,
JUDGMENTWAS DELIVERED THEREIN AS UNDER: - 3 - NC:
2024. KHC:36187-DB CRL.A No.773 of 2018 C/W CRL.A No.195 of 2018 CORAM: HON'BLE MR JUSTICE K.SOMASHEKAR and HON'BLE MR JUSTICE S RACHAIAH ORAL
JUDGMENT(PER: HON'BLE MR JUSTICE K.SOMASHEKAR) Criminal Appeal No.773/2018 and Criminal Appeal No.195/2018 have been preferred by the appellants / accused Nos.1 and 2 under Section 374(2) of the Code of Criminal Procedure (for short ‘Cr.P.C.’) challenging the impugned judgment of conviction and order on sentence rendered by the learned II Additional District and Sessions Judge, Ramanagara, sitting at Kanakapura, (for short ‘trial Court’) in S.C.No.5017/2013 for the offences punishable under Sections 302, 201 r/w Section 34 of Indian Penal Code, 1860 (for short ‘IPC’). Both the appellants / accused Nos.1 and 2 namely Smt. Uma and Shri Shivabasavegowda have been convicted by the trial Court for the offences punishable under Sections 302, 201 r/w 34 of IPC. Both accused Nos.1 and 2 were sentenced to undergo rigorous imprisonment for life and to pay a fine of Rs.30,000/- each for the offence under Section 302 r/w 34 of IPC, in default of payment of fine, to undergo rigorous imprisonment for a period of one year. For the offence under - 4 - NC:
2024. KHC:36187-DB CRL.A No.773 of 2018 C/W CRL.A No.195 of 2018 Section 201 r/w 34 of IPC, both accused Nos.1 and 2 were sentenced to undergo rigorous imprisonment for a period of seven years and to pay a fine of Rs.20,000/- each, in default of payment of fine amount, the accused shall further undergo rigorous imprisonment for a period of six months. The sentences awarded against the aforesaid accused persons were ordered to run concurrently.
2. Heard learned counsel Shri Veeranna G.Tigadi for appellant / accused No.1 namely Smt. Uma in Criminal Appeal No.773/2018 and so also learned Senior Counsel Shri C.V.Nagesh for learned counsel Shri Raghavendra.K. for appellant / accused No.2 namely Shri Shivabasavegowda in Criminal Appeal No.195/2018. Perused the impugned judgment of conviction and order on sentence rendered against both the accused Nos.1 and 2, consisting of evidence of PWs.1 to 19, documents at Exs.P1 to P24, and material objects marked as M.Os.1 to 8.
3. The factual matrix of these appeals is as under:- It is the case of the prosecution that the deceased namely Smt. Doddadevamma had lent the hand loan of Rs.25,000/- to - 5 - NC:
2024. KHC:36187-DB CRL.A No.773 of 2018 C/W CRL.A No.195 of 2018 the accused No.1 – Smt. Uma and the deceased was demanding the accused No.1 to repay the aforesaid loan amount. Accused No.1 stated that she had sustained a huge loss in the silk business and after selling the silkworms, would pay the amount and on 28.01.2013, the deceased demanded accused No.1 pay back the amount, and accused No.1 assured to pay the amount and took the deceased to her house at around 6.45 p.m. But, even after 8.00 p.m., the deceased did not return to her house. Therefore, the family members of the deceased started searching for her, but they could not find her and their efforts went in vain. On 29.01.2013, around 1.30 p.m., the complainant received an information that the deceased had been murdered at the Silkworm Cocoons house of accused No.1, and thereafter only, the complainant lodged the complaint before the police having jurisdiction to deal with the matter and based upon the complaint filed by the complainant, the criminal law was set into motion by recording the FIR under Section 154 of Cr.P.C. Subsequent to registering the case against accused Nos.1 and 2, the Investigating Officer has taken up the case for investigation and conducted the investigation thoroughly and laid the charge sheet against the - 6 - NC:
2024. KHC:36187-DB CRL.A No.773 of 2018 C/W CRL.A No.195 of 2018 accused Nos.1 and 2 before the committal Court. Subsequent to laying up of charge sheet against the accused Nos.1 and 2, wherein the committal Court had passed a committal order keeping in view Section 209 of Cr.P.C., and wherein this order had been passed by the Addl. Civil Judge and JMFC, Kanakapura and committed the case to the District and Sessions Court, Ramanagara for trial, subsequently, heard on charge and charges were read over to the accused Nos.1 and 2 in the language known to them and wherein they have pleaded not guilty, but claim to be tried, accordingly, the plea of the accused have been recorded separately.
4. Subsequently, in order to prove the guilt against the accused, the prosecution, in all, examined PWs.1 to 19 and got marked several documents at Exs.P1 to P24 and so also got marked material objects as per M.Os.1 to 8 and closed its case.
5. Subsequent to closure of the evidence of the prosecution, the accused were subjected to examination as contemplated under section 313 of Cr.P.C., for enabling them to rebut the incriminating evidence / statement against them, whereby the accused have denied the testimony of the - 7 - NC:
2024. KHC:36187-DB CRL.A No.773 of 2018 C/W CRL.A No.195 of 2018 prosecution witnesses, but no defence evidence has been let in by them as contemplated under section 233 of Cr.P.C. Accordingly it was recorded.
6. Subsequently, the trial Court heard the arguments advanced by the learned Public Prosecutor and also the defence counsel.
7. The Trial Court had delved in detail on the evidence of P.W.1, who is the author of the complaint as per Ex.P1 and who is none other than the son of the deceased Doddadevamma and he has stated in his evidence that his mother died on 28.01.2013. His mother had paid Rs.25,000/- to accused No.1 – Uma as a hand loan, but the said Uma had not returned the aforesaid loan amount back to his mother, hence, his mother used to demand the money frequently, even then, accused No.1 did not repay the aforesaid amount. Later, on 28.03.2013 i.e., on Monday at 4.00 p.m., his mother was sitting on the pial, by that time, accused No.1 came there and his mother demanded the money, for that accused No.1 saying that she would pay back the amount and took his mother to her house. But his mother did not return back during the said - 8 - NC:
2024. KHC:36187-DB CRL.A No.773 of 2018 C/W CRL.A No.195 of 2018 night, so also on the next day morning. Satanur Police at about 2.00 p.m. found his mother’s dead body beneath mulberry leaves at the scene of crime i.e., silkworm cocoon house. He noticed that his mother was killed by tying a rope around her neck and pulling it, there were blood stains. Police, public and Dy.S.P. had gathered there. He lodged a complaint as per Ex.P1 and the police conducted mahazar as per Ex.P2 and the Investigating Agency seized blood stained cement piece as M.O.1, without blood stain cement piece as M.O.2, rope as M.O.3, langa as M.O.4, saree as M.O.5, blouse as M.O.6, sample of mulberry leaves as M.O.7 and tarpal as M.O.8. These are all the material objects that have been seized by the Investigating Officer during the course of conducting seizure mahazar as per Ex.P2 in the presence of the panch witnesses. This is the evidence as let in by P.W.1, who is the author of the complaint at Ex.P1, his evidence is circumstantial evidence in nature. This witness has been subjected to cross-examination thoroughly on the part of the defence side, but nothing worthwhile has been elicited and these contentious contentions are taken by the learned counsel for the accused No.1 and so also by the learned Senior Counsel for accused No.2.-. 9 - NC:
2024. KHC:36187-DB CRL.A No.773 of 2018 C/W CRL.A No.195 of 2018 8. The evidence of P.W.1 runs contrary to the evidence of P.W.2. P.W.2 who is the husband of the deceased, deposed that three years back in the month of January, accused No.1 – Uma came to their house and by saying that she will repay the hand loan, took his wife to her house. His wife had told that accused No.1 had to pay Rs.30,000/-. He deposed that he does not know what she did with his wife during the night as his wife did not return home. Later on next day, at 12.00 noon, he came to know that his wife is murdered. Further, P.W.2 deposed that he does not know who had committed the murder, he does not know who were available in the house where the murder was committed, his wife’s body was covered with leaves, his children were searching for their mother, but the police inquired him and conducted mahazar, but the police did not take his statement with regard to the said incident.
9. P.W.3 who is none other than another son of the deceased Doddadevamma and P.W.2, but he has stated in his evidence that his mother had died 2 years ago and his parents were staying separately, his brother and sister-in-law were also staying separately, one land was given to his mother by his - 10 - NC:
2024. KHC:36187-DB CRL.A No.773 of 2018 C/W CRL.A No.195 of 2018 father, the same was sold and money was given to accused No.1 – Uma, but accused No.1 did not repay the amount to his mother, hence, she demanded accused No.1 frequently to give back her money. Further, he deposed that on one day i.e., 28.01.2013 on Monday at 6.00 p.m., accused No.1 came and took the deceased to her house, but instead of money, on the next day, the dead body of his mother was found at the scene of crime beneath mulberry leaves. Sathanur Police traced and found the body. The police conducted mahazar at the spot and seized the clothes worn by his mother. This is the evidence as let in by P.W.3.
10. PWs.2 and 3 have been subjected to cross- examination at length, but nothing worthwhile has been elicited in conformity with the narration made in the complaint at Ex.P1 and these contentious contentions are taken by the learned counsel for the accused No.1 and so also by learned Senior Counsel for accused No.2.
11. However, the evidence of P.Ws.1, 2 and 3 runs contrary to the evidence of P.W.4 who is none other than the daughter-in-law of deceased Doddadevamma and she has - 11 - NC:
2024. KHC:36187-DB CRL.A No.773 of 2018 C/W CRL.A No.195 of 2018 specifically stated in her evidence that her husband and also her brother-in-law and sister-in-law were staying separately, and her parents-in-law were also living separately. These are all the evidence that have been let in by P.W.4.
12. P.W.5 who is none other than another daughter-in- law of the deceased Doddadevamma. She has deposed in her evidence that her mother-in-law had paid Rs.25,000/- to the accused No.1, but the said amount was not returned. The incident is said to have happened in the year 2013. The accused No.1-Uma by coming to their house saying that she would pay back the money, took her mother-in-law. Even after 9.00 p.m., when her mother-in-law did not return home, they searched for her and gave a complaint to the police. When they had been to the house of the accused No.1 in the night, she did not open the door saying that at that time, there was ‘Rahu’ in her house. These are all the evidence let in by P.W.5 in her evidence.
13. But the evidence of P.W.5 runs contrary to the evidence of P.W.6 inclusive of evidence of PWs.1 to 4. P.W.6 deposed that accused Nos.1 and 2 were in friendship, but both - 12 - NC:
2024. KHC:36187-DB CRL.A No.773 of 2018 C/W CRL.A No.195 of 2018 were staying in opposite houses. During the lifetime of deceased Doddadevamma, she had paid Rs.25,000/- to the accused No.1 and accused No.1 by saying that she would pay back the amount, took the deceased to the scene of crime i.e., her house on 28.01.2013. When the deceased did not return back, the family members of the deceased telephoned him and all of them searched surrounding areas. They even went to the house of accused No.1 and enquired, but accused No.1 said that the deceased had already gone away from her house and refused to open the door saying that “Rahu” was there in her house. Thereafter, they lodged a complaint before Sathanur Police Station. On the next day, P.W.6 went along with police to the silkworm cocoons house of accused No.1 and the police found the dead body of the deceased Doddadevamma beneath mulberry leaves bundle.
14. These are all the evidence let in by the prosecution. P.W.1 to P.W.6 even on being subjected to cross-examination, they did not state anything about the allegations made in the complaint – Ex.P1. P.W.7 – Nanjunda, P.W.8 – Eeraiah, P.W.9 – Shivakumar, P.W.10 – Rajesh, P.W.16 – Kumara and P.W.17 – Shivakumara have been subjected to examination on the part - 13 - NC:
2024. KHC:36187-DB CRL.A No.773 of 2018 C/W CRL.A No.195 of 2018 of the prosecution, but they did not support the version of the statement. The statements of PWs.7 to 9 have been marked as Exs.P3 to P5 and their evidence runs contrary to the evidence of PWs.1 to 6. These are the contentious contentions as taken by the learned counsel Shri Veeranna G.Tigadi for the accused No.1 and so also by learned Senior Counsel Shri C.V.Nagesh appearing for learned counsel Shri K.Raghavendra for accused No.2.
15. P.W.11 – Sathish who is the Investigating Officer who had conducted investigation in part based upon the complaint at Ex.P1. Ex.P7 is the inquest panchanama held over the dead body and also subjected to P.F. bearing No.16/2013 marked at Ex.P8, seizure mahazar – Ex.P9 wherein the property has been seized and subjected to P.F. bearing No.17/2013. These are the evidence let in on the part of the prosecution, but the contents of mahazar at Ex.P2, even though it has been held by the Investigating Officer in the presence of the panch witnesses, but there is no worthwhile evidence let in by the prosecution to prove the case and secure conviction against accused Nos.1 and 2 for serious offence under Sections 302 r/w 34 of IPC. Section 34 of IPC relates to - 14 - NC:
2024. KHC:36187-DB CRL.A No.773 of 2018 C/W CRL.A No.195 of 2018 common intention, but the motive behind eliminating the deceased Doddadevamma is that the deceased Doddadevamma had tendered a hand loan of Rs.25,000/- to accused No.1 – Uma, but Uma did not return the said amount, but the deceased was frequently demanding accused No.1 - Uma to repay the said amount and abusing accused No.1 – Uma in a filthy language, due to which accused No.1 being fed up, along with her friend-accused No.2, killed the deceased Doddadevamma. These are the motive factors for accused Nos.1 and 2 to eliminate the deceased Doddadevamma as narrated in the complaint and also narration has been made in the theory of the prosecution. These are the contentious contentions as taken by the learned counsel Shri Veeranna G.Tigadi for the accused No.1 and so also by learned Senior Counsel Shri C.V.Nagesh appearing for learned counsel Shri K.Raghavendra for accused No.2.
16. However, P.W.19 being the Investigating Officer and who has thoroughly conducted the investigation and keeping in view Sections 161 and 162 of Cr.P.C., wherein he has laid charge sheet against the accused before the committal Court. Subsequently, the case was committed to the Court of - 15 - NC:
2024. KHC:36187-DB CRL.A No.773 of 2018 C/W CRL.A No.195 of 2018 Sessions and the Trial Court had framed the charges for the offence under Sections 302 r/w 34 of IPC and so also for the offence under Section 201 of IPC relating to causing disappearance of evidence of offence to screen the offender from legal punishment. But the conviction has been held against the accused on both counts of offences whereas the prosecution has let in evidence by subjecting PWs.1 to 6 to examination, but there is no whisper in their evidence about the role of accused No.2 and this contention has been taken by learned Senior Counsel for accused No.2 in this matter. However, the evidence of P.Ws.1 to 6 runs contrary to the evidence of P.Ws.7, 8 and 9 and they are independent witnesses. They have given evidence, but they have disowned their own statements at Exs.P3, P4 and P5. However, the Investigating Officer during the course of investigation, conducted inquest panchanama as per Ex.P7 and mahazars as per Exs.P15, P17 and so also during the course of evidence, the Investigating Officer has recorded voluntary statements of accused No.1 as per Ex.P16 and accused No.2 as per Ex.P18. These documents were got marked on the part of the prosecution. But, merely because these documents were got - 16 - NC:
2024. KHC:36187-DB CRL.A No.773 of 2018 C/W CRL.A No.195 of 2018 marked on the part of the prosecution, it cannot be said that the prosecution has proven the guilt against accused by facilitating worthwhile evidence and also acceptable evidence.
17. Further, learned counsel Shri Veeranna G.Tigadi for accused No.1 – Uma has taken us through the evidence of the witnesses, more importantly, the motive behind eliminating the deceased Doddadevamma, but the motive factor has not been established by the prosecution by facilitating worthwhile evidence to secure conviction for the serious offence punishable under Section 302 of IPC and equally, for the offence punishable under Section 201 of IPC relating to the disappearance of evidence of offence to screen the offender from legal punishment. But the dead body of the deceased Doddadevamma was found in the scene of crime i.e., silkworm cocoons house belonging to accused No.1 and moreso, the dead body of Doddadevamma was covered with mulberry leaves. Merely because the dead body was found at the scene of crime, it cannot be said that there was direct acknowledgment of guilt against accused No.1. Unless there is positive evidence let in by the prosecution, it cannot be - 17 - NC:
2024. KHC:36187-DB CRL.A No.773 of 2018 C/W CRL.A No.195 of 2018 concluded that the prosecution has proven the guilt against the accused beyond all reasonable doubt.
18. But, P.W.13 being the Doctor has conducted the autopsy and issued post-mortem report as per Ex.P14, but even on a cursory glance of the entire contents made in the post-mortem report – Ex.P14 and the letter of Rajarajeshwari Hospital regarding the opinion and examination of the plastic rope M.O.3, but there was no fracture of cartilage or even to the extent of hyoid bone. That itself creates a doubt whether the deceased Doddadevamma was done to death in the scene of crime or not and this doubt always arises in the prosecution theory and when the doubt has arisen in the theory of prosecution, the benefit of doubt should always go to the accused.
19. Whereas the prosecution is required to prove the guilt against the accused by facilitating worthwhile evidence in respect of Section 302 of IPC. In respect of the deceased Doddadevamma met with homicidal death, that the death is caused by the accused or was the consequence of the act of the accused, that the accused did so with an intention of causing - 18 - NC:
2024. KHC:36187-DB CRL.A No.773 of 2018 C/W CRL.A No.195 of 2018 the death, or the accused knew that their act was likely to cause death and the accused inflicted injury around the neck of the deceased which is sufficient in the ordinary course of nature to cause death. But, merely because there is a ligature mark around the neck of deceased Doddadevamma, it cannot be said that the prosecution has proven the guilt against the accused relating to ingredients of Section 302 of IPC.
20. In this context, it is relevant to refer to the evidence of P.W.1, even at the cost of repetition. P.W.1 is none other than the son of the deceased and he has filed a complaint as per Ex.P1. Even on dwelling in detail about the contents stated in Ex.P1, which discloses about “last seen theory”, however, the “last seen theory” is required to be established by the prosecution by facilitating worthwhile evidence. But on the cursory glance of evidence of P.W.1, who is the author of the complaint at Ex.P1, and even on the cursory glance of evidence of P.W.2, who is the husband of the deceased Doddadevamma, their evidence runs contrary to each other and there are some inconsistencies and contradictions to prove the guilt against the accused Nos.1 and 2 and those accused having the intention to eliminate the deceased - 19 - NC:
2024. KHC:36187-DB CRL.A No.773 of 2018 C/W CRL.A No.195 of 2018 Doddadevamma and killed her by putting rope, which is termed as ligature material, around the neck of the deceased, but the evidence let in by the prosecution and even on a cursory glance of evidence of PWs.1 to 6 and further evidence of PWs.7, 8 and 9, but their evidence runs contrary to each other and their evidence does not inspire confidence to prove the guilt against the accused for securing the conviction.
21. On the contrary, learned SPP-2 for respondent – State in this matter has taken us through the theory set up by the prosecution to prove the guilt against the accused, but Ex.P1 has been filed by P.W.1 being the son of the deceased Doddadevamma and based upon his complaint, criminal law was set into motion and even the FIR has been recorded as taking in view Section 154 of Cr.P.C., and subsequent to registration of the crime, the Investigating Officer has taken up the case for investigation and during the investigation, seizure mahazar has been conducted and seized materials marked at M.Os.1 to 8 in the presence of panch witnesses and also seized plastic rope from R.R. Hospital and subjected to P.F. bearing No.17/2013. During the course of investigation, accused No.1 – Uma was also traced by the Investigating Agency and - 20 - NC:
2024. KHC:36187-DB CRL.A No.773 of 2018 C/W CRL.A No.195 of 2018 similarly, the Investigating Agency traced accused No.2 – Shivabasavegowda.
22. But, learned SPP-2 in this matter submits that though case rests upon circumstantial evidence, but accused Nos.1 and 2 have caused the death of the deceased by putting plastic rope around the neck of the deceased and the dead body was found in the scene of crime i.e., silkworm cocoons house of accused No.1 – Uma who had borrowed hand loan of Rs.25,000/- from the deceased Doddadevamma and the deceased Doddadevamma was demanding her frequently to repay the loan amount and there was some exchange of words between the deceased and accused No.1 and the deceased Doddadevamma who was abusing accused No.1 in a filthy language and because of this reason only, accused Nos.1 and 2 with a common intention to eliminate the deceased Doddadevamma, in order to escape from repaying hand loan of Rs.25,000/- to deceased Doddadevamma, these are all the contentions taken up by learned SPP-2 in this matter and moreso, accused No.1 had given voluntary statement as per Ex.P16 and accused No.2 had given voluntary statement as per Ex.P18, but on a cursory glance of the evidence of the - 21 - NC:
2024. KHC:36187-DB CRL.A No.773 of 2018 C/W CRL.A No.195 of 2018 prosecution witnesses, that too evidence of PWs.1 to 6 and even in the evidence of P.W.11 – Sathish, who is Investigating Officer who conducted the investigation in part and wherein criminal law was set into motion by recording the FIR and also receipt of complaint at Ex.P1 and so also the evidence of P.W.19, who is Investigating Officer and wherein investigation has been done thoroughly and laid the charge sheet against the accused, but, the prosecution has let in evidence stated supra and moreso, the prosecution has proven the guilt against the accused beyond all reasonable doubt and the Trial Court had appreciated the evidence and rightly arrived at a conclusion that the prosecution has proved the guilt against the accused and rendered sentence for the offence under Section 302 r/w 34 of IPC.
23. But, “last seen theory” in this matter has been taken up, but the material witnesses have said in their evidence clearly and categorically that the accused No.1 – Uma had come to the house of the deceased and took her to her house and caused the death of the deceased and the dead body was made to sit nearby the window and was covered with mulberry leaves. These are all the testimony on the part of the - 22 - NC:
2024. KHC:36187-DB CRL.A No.773 of 2018 C/W CRL.A No.195 of 2018 prosecution has been let in, but it cannot be discarded as pointed out during the evidence of the prosecution and there is no proper explanation by the side of the defence in respect of accused Nos.1 and 2 about the dead body of the deceased Doddadevamma was found place in the scene of crime, but the evidence of PWs.7, 10 and 16 on the part of the prosecution, who turned hostile, but their evidence on the part of the prosecution it is in terms of circumstantial in nature and so it prevails and merely because these witnesses have turned hostile, their evidence cannot be completely brushed aside because accused Nos.1 and 2 have committed murder of the deceased and the same has been established by the prosecution by facilitating worthwhile evidence. But, on the scrutiny of the materials placed on the part of the prosecution and even conduct of accused Nos.1 and 2, the Trial Court has rightly come to the conclusion and recorded conviction against accused Nos.1 and 2 for the offence under Section 201 r/w Section 34 of IPC. Therefore, in these appeals, it does not call for intervention on the premise that the prosecution has not been able to prove the guilt against the accused beyond all reasonable doubt. On this premise, learned SPP-2 in these - 23 - NC:
2024. KHC:36187-DB CRL.A No.773 of 2018 C/W CRL.A No.195 of 2018 matters submits that the appeals preferred by the appellants / accused Nos.1 and 2 do not have any acceptable grounds for seeking intervention and consequently, seeks for dismissal of these appeals and to confirm the judgment of conviction and order on sentence rendered by the Trial Court.
24. Whereas learned counsel for the appellant / accused No.1 Shri Veeranna G. Tigadi and also learned Senior Counsel Shri C.V.Nagesh appearing for learned counsel Shri K.Raghavendra for appellant / accused No.2 have taken us through the evidence let in by the prosecution and delved into the details about the evidence and moreso P.Ws.1 to 6 who have been subjected to examination, but the entire case rests on circumstantial evidence and moreso, no witnesses have been coming on the part of the prosecution to let in their evidence to secure conviction, but merely because they have been subjected to cross-examination, it cannot be said that the prosecution has proven the guilt against the accused beyond all reasonable doubt. It is further contended that though the prosecution has let in evidence, there is no strong and convincing evidence on the part of the prosecution to prove the guilt against the accused and secure conviction. On this - 24 - NC:
2024. KHC:36187-DB CRL.A No.773 of 2018 C/W CRL.A No.195 of 2018 premise, learned counsel for the appellant / accused No.1 and so also learned Senior Counsel for accused No.2 contend that these appeals required to be allowed and consequently, set aside the judgment of conviction and order on sentence rendered by the Trial Court and consequent upon that, accused Nos.1 and 2 deserve for acquittal for the aforesaid offences.
25. Whereas learned counsel for the appellant / accused No.1 has facilitated the judgment rendered by the Hon'ble Supreme Court of India in Criminal Appeal No.1348/2013 in the case of SHIVAJI CHINTAPPA PATIL v. STATE OF MAHARASHTRA1. Whereas in this judgment, the Hon'ble Supreme Court of India referred the judgments of G. PARSHWANATH v. STATE OF KARNATAKA2, ESWARAPPA @ DOOPADA ESWARAPPA v. STATE OF KARNATAKA3, SUBRAMANIAM v. STATE OF TAMIL NADU & Another4, GARGI v. STATE OF HARYANA5, BABU v. STATE OF1Crl.A.No.1348/2013 dated 02.03.2021 – LL2021SC125– WWW.LIVELAW.in 2 (2010) 8 SCC5933 (2019) 16 SCC2694 (2009) 14 SCC4155 (2019) 9 SCC738- 25 - NC:
2024. KHC:36187-DB CRL.A No.773 of 2018 C/W CRL.A No.195 of 2018 KERALA6, DEVI LAL v. STATE OF RAJASTHAN7 and STATE OF RAJASTHAN v. KASHI RAM8.
26. In SHIVAJI CHINTAPPA PATIL case, referred to supra, the Hon'ble Supreme Court in para 11 of the judgment, made an observation that, “The law with regard to conviction on the basis of circumstantial evidence has been very well crystalized in the judgment of this Court in the case of SHARAD BIRDHICHAND SARDA v. STATE OF MAHARASHTRA9 whereas in para No.153 made an observation that, 153. A close analysis of this decision would show that the following conditions must be fulfilled before a case against an accused can be said to be fully established: (1) the circumstances from which the conclusion of guilt is to be drawn should be fully established. It may be noted here that this Court indicated that the circumstances concerned 'must or should' and not 'may be' established. There is not only a grammatical but a legal distinction between 'may be proved' and 'must be or should be proved' as was held by this Court in Shivaji Sahabrao Bobade & Anr. v. State of Maharashtra (1973) 2 SCC793where the following observations were made:
6. (2010) 9 SCC1897 (2019) 19 SCC4478 (2006) 12 SCC254 9 AIR1984SC1622: (1984) 4 SCC116- 26 - NC:
2024. KHC:36187-DB CRL.A No.773 of 2018 C/W CRL.A No.195 of 2018
"29. … Certainly, it is a primary principle that the accused must be and not merely may be guilty before a court can convict and the mental distance between 'may be' and 'must be' is long and divides vague conjectures from sure conclusions."
(2) The facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say. they should not be explainable on any other hypothesis except that the accused is guilty, (3) the circumstances should be of a conclusive nature and tendency. (4) they should exclude every possible hypothesis except the one to be proved, and (5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.
154. These five golden principles, if we may say so, constitute the panchsheel of the proof of a case based on circumstantial evidence.” In the light of these guiding principles, let us examine the facts in the present case.
27. But, in this case, the prosecution has examined PWs.11 to 19. PWs.11 and 19 are the Investigating Officers in parts. P.W.19 has been subjected to examination thoroughly - 27 - NC:
2024. KHC:36187-DB CRL.A No.773 of 2018 C/W CRL.A No.195 of 2018 wherein he has conducted investigation and charge sheet is laid against the accused and during investigation, he has conducted several mahazars and also recorded voluntary statements of accused Nos.1 and 2 and based upon the voluntary statements, investigation has been carried out by the Investigating Agency.
28. But, in the present case, the dead body of the deceased Doddadevamma had been subjected to inquest by the concerned Investigating Agency in the presence of panch witnesses, and the dead body was sent to autopsy, wherein the Doctor conducted an autopsy over the dead body and issued post-mortem report. But, admittedly there are no specific marks on the body of Doddadevamma which would suggest that there was some violence or struggle marks. In any case, the Medical Expert himself has not ruled out the possibility of suicidal death, but the dead body was found in the scene of crime i.e., silkworm cocoon house belonging to accused No.1 – Uma. But, on the contrary, the post-mortem report indicates and also specific opinion has been stated by the Doctor who conducted autopsy over the dead body that the hyoid bone has not been found to be fractured even though the aforesaid plastic rope has been put around the neck of the deceased and - 28 - NC:
2024. KHC:36187-DB CRL.A No.773 of 2018 C/W CRL.A No.195 of 2018 firmly held by the accused persons, in the light of the evidence on the part of the prosecution. But, the Trial Court has misinterpreted the evidence let in by the prosecution relating to the guilt against the accused.
29. In Shivaji Chintappa Patil case, referred to supra, the Hon'ble Supreme Court referring to the judgment in the case of Subramaniam (supra), had an occasion to consider a similar case. But so far as the circumstance that accused Nos.1 and 2 had been living together is concerned, the allegation is that there was some friendship between accused Nos.1 and 2, but keeping in view the status of accused Nos.1 and 2 are concerned, the theory that they have done to death the deceased Doddadevamma as where the dead body of Doddadevamma was found place in the scene of crime, but the Hon'ble Supreme Court referring to the judgment of Gargi (supra), insofar as the “last seen theory” is concerned, there is no doubt that the appellant / accused being none other than a local person has acquainted with the deceased Doddadevamma and moreso, the accused No.1 had obtained hand loan of Rs.25,000/- from the deceased Doddadevamma, but merely because there was some hand loan had been availed and it was - 29 - NC:
2024. KHC:36187-DB CRL.A No.773 of 2018 C/W CRL.A No.195 of 2018 not returned, it cannot be said that the accused Nos.1 and 2 had the intention to kill the deceased, as narrated in the theory of the prosecution for securing conviction.
30. However, it is a well-settled law relating to the scope of Section 106 of the Evidence Act, it does not directly operate against an accused person, but Section 106 of the Evidence Act does not absolve the prosecution of discharging its primary burden of proving the prosecution case beyond reasonable doubt. It is only when the prosecution has led evidence which, if believed, will sustain a conviction, or which makes out a prima facie case, that the question arises for considering facts on which the burden of proof would lie upon the accused. But, in the instant case, the prosecution has put in forth worthwhile evidence to secure conviction, but merely because the dead body was found place in the scene of crime i.e., silkworm cocoons house belonging to accused No.1 and moreso, accused No.1 had obtained hand loan from the deceased, merely because of this aspect, it cannot be said that the prosecution has been able to establish the guilt against the accused beyond all reasonable doubt.-. 30 - NC:
2024. KHC:36187-DB CRL.A No.773 of 2018 C/W CRL.A No.195 of 2018 31. The judgment rendered by the Hon'ble Supreme Court reported in NIZAM & Another V. STATE OF RAJASTHAN10. Criminal Trial / Circumstantial evidence – Last seen together – Theory of - Importance of, in the chain of circumstances pointing towards guilt of the accused - Such theory when applicable - Where time gap is long between last seen and recovery of body – Effect of - Onus under Section 106, Evidence Act - When shifts on to accused - To base conviction solely on “last seen theory” – Not prudent. The scope of “last seen theory” has been extensively addressed by the Hon'ble Supreme Court. It is important link in chain of circumstances that would point towards guilt of accused with some certainty - Such theory permits court to shift burden of proof to accused and he must then offer a reasonable explanation as to the cause of death of deceased – But, it is not prudent to base conviction solely on the “last seen theory” - Such theory should be applied, taking into consideration case of prosecution in its entirety and keeping in mind circumstances that precede and follow the point of being so last seen - Where time gap is long, it would be unsafe to base conviction on “last 10 (2016) 1 SCC550- 31 - NC:
2024. KHC:36187-DB CRL.A No.773 of 2018 C/W CRL.A No.195 of 2018 seen theory” - It is safer to look for corroboration from other circumstances and evidence adduced by the prosecution.
32. In the aforesaid judgment, the Hon'ble Supreme Court addressed scope of Section 302 and 201 of IPC. Murder trial - Circumstantial evidence - Links in the chain of circumstances - Not established - Many lapses in investigation. And missing links - Apparent presence of more than one inferences - Benefit of doubt – Entitlement - Conviction reversed.
33. The judgment rendered by the Hon'ble Supreme Court in the case of VIKRAMJIT SINGH @ VICKY v. STATE OF PUNJAB11. In this judgment, the Hon'ble Supreme Court has addressed scope of Sections 374 and 386 of IPC. Appeal against conviction – Held, where two views of a story appear to be probable, the one that was contended by the accused should be accepted – Trial Court as well as High Court, after weighing the probability of both, erred in convicting the appellant opining that the appellant having not been able to prove his case, the prosecution case may be accepted. This aspect has been 11 (2006) 12 SCC306- 32 - NC:
2024. KHC:36187-DB CRL.A No.773 of 2018 C/W CRL.A No.195 of 2018 extensively addressed in para Nos.13 and 27 of the aforesaid judgment. Insofar as Section 106 of Evidence Act, 1872 has been addressed by the Hon'ble Supreme Court that burden of proving fact especially within knowledge – Held, does not relieve the prosecution to prove its case beyond all reasonable doubt – Only when the prosecution case has been proved the burden in regard to such facts which was within the special knowledge of the accused may be shifted to the accused for explaining the same subject to certain statutory exceptions – On facts held, strong suspicion legitimately arises that in all probabilities the accused was guilty of commission of heinous offences, but applying the well-settled principle of law that suspicion, however, grave may be, cannot be a substitute for proof, the same would lead to the only conclusion herein that the prosecution has not been able to prove its case beyond all reasonable doubt, the appellant would be entitled to acquittal. The same has been addressed in para Nos.13, 14, 15 and 16. In this judgment, Hon'ble Supreme Court has referred to the judgment in the case of SHARAD BIRDHICHAND SARDA (referred to supra).-. 33 - NC:
2024. KHC:36187-DB CRL.A No.773 of 2018 C/W CRL.A No.195 of 2018 34. Whereas in the case on hand, it is relevant to refer judgment of the Hon'ble Supreme Court in the case of BABU v. STATE OF KERALA (referred to supra). Whereas in this matter, Hon'ble Supreme Court had extensively addressed the issue and also offence under Section 302 of IPC relating to motive suggested was contrary to the evidence produced – Chain of circumstances found not complete – Acquittal justified. It has been extensively addressed in para Nos.22 to 24 and 62.
35. In this judgment, the Hon'ble Supreme Court has addressed the scope of circumstantial evidence in a criminal trial. Generally - Burden of proof - In case of circumstantial evidence burden on prosecution is always greater, which is extensively addressed in para 61 of this judgment. In the aforesaid judgment, Criminal Trial – Proof - Burden and onus of proof – reversal of burden of proof - When permissible - Presumptions of Innocence - as found in Article 21 and 14 of the Constitution of India. In the aforesaid judgment, in para No.22, regarding circumstantial evidence in KRISHNAN V. STATE, Represented By Inspector Of Police12, this Court 12 (2008) 13 SCC430- 34 - NC:
2024. KHC:36187-DB CRL.A No.773 of 2018 C/W CRL.A No.195 of 2018 after considering large number of its earlier judgments observed as follows:
"This Court in a series of decisions has consistently held that when a case rests upon circumstantial evidence, such evidence must satisfy the following tests: (i) the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established; (ii) those circumstances should be of definite tendency unerringly pointing towards guilt of the accused; (iii) the circumstances, taken cumulatively, should form a chain so complete that there is no escape from the conclusion that with all human probability the crime was committed by the accused and none else; and (iv) the circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence."
In the aforesaid judgment, the Hon'ble Supreme Court addressed issue relating to Burden of Proof and Doctrine of Innocence. Every accused is presumed to be innocent unless the guilt is proved. The presumption of innocence is a human right. However, subject to statutory exceptions, the said - 35 - NC:
2024. KHC:36187-DB CRL.A No.773 of 2018 C/W CRL.A No.195 of 2018 principle forms the basis of criminal jurisprudence. For this purpose, the nature of the offence, its seriousness and gravity thereof have to be taken into consideration. The Courts must be on guard to see that merely on the application of the presumption, the same may not lead to any injustice or mistaken conviction. Statutes like the Negotiable Instruments Act, 1881; the Prevention of Corruption Act, 1988; and the Terrorist and Disruptive Activities (Prevention) Act, 1987, provide for a presumption of guilt if the circumstances provided in those statutes are found to be fulfilled and shifts the burden of proof of innocence on the accused. However, such a presumption can also be raised only when certain foundational facts are established by the prosecution. There may be difficulty in proving a negative fact. These are all the reliance that has been referred in these cases.
36. As where the prosecution has set up a theory relating to accused No.1 - Uma had obtained a hand loan of Rs.25,000/- from the deceased Doddadevamma and subsequently, the deceased had demanded her frequently to repay the said amount and also there was some exchange of words in filthy language, the accused No.2 - - 36 - NC:
2024. KHC:36187-DB CRL.A No.773 of 2018 C/W CRL.A No.195 of 2018 Shivabasavegowda, who had acquainted with accused No.1 and there was some friendly relationship and these are all the theories that find a place on the prosecution side. But merely because there was some friendship between accused Nos.1 and 2, it cannot be said that both the accused had the intention to eliminate the deceased Doddadevamma and moreso the prosecution has subjected to examination several witnesses as PWs.1 to 19, but PWs.1 to 6 have been subjected to examination and also stood for cross-examination. But nothing worthwhile has been elicited in their evidence and these are contentious contentions as stated by the learned counsel Shri Veeranna G.Tigadi for the accused No.1 and so also by learned Senior Counsel Shri C.V.Nagesh appearing for learned counsel Shri K.Raghavendra for accused No.2. On a cursory glance of the entire evidence of the prosecution, it is said that the prosecution has even though let in evidence to prove the guilt, it is the domain vested with the prosecution to prove the guilt against the accused beyond all reasonable doubt.
37. But in the peculiar facts and circumstances of the case are concerned, it is relevant to refer Section 134 of the Indian Evidence Act, 1872 which relates to the number of - 37 - NC:
2024. KHC:36187-DB CRL.A No.773 of 2018 C/W CRL.A No.195 of 2018 witnesses, but no particular number of witnesses shall in any case be required for the proof of any fact. But the merit of the statement is important. It is well-known principle of law that the reliance can be placed even on the solitary statement of a witness if the court comes to the conclusion that the said statement is the true and correct version of the case of the prosecution. The same has been extensively observed in the case of RAJA v. STATE13 by the Honorable Supreme Court. It is the quality of evidence and not the quantity of evidence which is required to be judged by the Court to place credence on the statement as referred in the decision of Hon’ble Supreme Court reported in STATE OF UTTAR PRADESH V. KISHANPAL14.
38. But, with respect to the plurality of witnesses, in the matter of appreciation of the evidence of witnesses, it is not the number of witnesses, but the quality of their evidence that is important, as there is no requirement in law of evidence that any particular number of witnesses is to be examined to prove/disprove a fact. It is time honoured principle that the evidence must be weighed and not counted. The test is whether 13 (1997) 2 Crimes 175 (Delhi) 14 2008 (8) JT650- 38 - NC:
2024. KHC:36187-DB CRL.A No.773 of 2018 C/W CRL.A No.195 of 2018 the evidence has a ring of trust, is cogent, credible and trustworthy or otherwise. The legal system has laid emphasis on the value provided by each witness, rather than the multiplicity or plurality of witnesses. It is quality and not quantity, which determines the adequacy of evidence as has been provided by Section 134 of the Evidence Act. In this regard, it is relevant to refer the reliance in the case of Laxmibai (Dead) through LRs vs. Bhagwantbura (Dead) through LRs.,15.
39. It is relevant to refer the judgment of the Hon'ble Supreme Court in the case of Lallu Manjhi v. State of Jharkhand16 regarding the requirement of number of witnesses. The law of evidence does not require any particular number of witnesses to be examined in proof of a given fact. However, faced with the testimony of a single witness, the Court may classify the oral testimony of a single witness, into three categories, namely, i) wholly reliable, ii) wholly unreliable and iii) neither wholly reliable nor wholly unreliable. 15 AIR2013SC120416 AIR2003SC854- 39 - NC:
2024. KHC:36187-DB CRL.A No.773 of 2018 C/W CRL.A No.195 of 2018 40. In the first two categories, there may be no difficulty in accepting or discarding the testimony of a single witness. The difficulty arises in the third category of cases. The Court has to be circumspect and has to look for corroboration in material particulars by reliable testimony, direct or circumstantial, before acting upon the testimony of a single witness.
41. However, in the instant case, keeping in view the evidence let in by the prosecution, which is stated supra, and also keeping in view the judgments rendered by the Hon’ble Supreme Court are concerned and even dwelling in detail about the evidence, but the prosecution has miserably failed to prove guilt against the accused beyond all reasonable doubt for securing conviction under Section 302 r/w Section 34 of IPC and so also for the offence under Section 201 of IPC relating to the disappearance of the evidence to screen the offender from the legal punishment. However, accused No.1 is in incarceration for around 7 years, but keeping in view the incarceration period, even though it is taken into consideration, it is to be said that it is in terms of service of sentence. Even on - 40 - NC:
2024. KHC:36187-DB CRL.A No.773 of 2018 C/W CRL.A No.195 of 2018 that count also, in these appeal matters, it is required for intervention. But, it is specifically stated that the prosecution has miserably failed to prove guilt against the accused beyond all reasonable doubt. Therefore, keeping in view aforesaid reconsidered findings in these matters, we are of the opinion that the appellants / accused Nos.1 and 2 deserve to seek intervention in these appeals and consequently, deserve to seek for set aside the impugned judgment of conviction rendered by the Trial Court.
42. Accordingly, we proceed to pass the following:-
ORDER1 Crl.A.No.773/2018 and Crl.A.No.195/2018 preferred by appellants / accused Nos.1 and 2 under Section 374(2) of Cr.P.C. are hereby allowed.
2. Consequently, the judgment of conviction and order of sentence dated 19.01.2018 rendered by the learned II Additional District and Sessions Judge, Ramanagara, sitting at Kanakapura, in S.C.No.5017/2013 for offences punishable under Section 302, 201 r/w Section 34 of IPC, is hereby set aside.-. 41 - NC:
2024. KHC:36187-DB CRL.A No.773 of 2018 C/W CRL.A No.195 of 2018 3. The accused Nos.1 and 2 are hereby acquitted for the aforesaid offences.
4. The bail bonds executed, if any, stands cancelled.
5. The fine amount deposited, if any, by Accused No.2 / Shri Shivabasavegowda, shall be refunded to Accused No.2, upon due identification.
6. The accused No.1 / Smt. Uma is ordered to be released from the custody forthwith, if she is not required in any other case.
7. The Registry is directed to forward a copy of the operative portion of the judgment to the Superintendent of Jail Authority, Central Prison, Parappana Agrahara, Bengaluru City forthwith for necessary action to be taken in respect of accused No.1. Sd/- (K.SOMASHEKAR) JUDGE Sd/- (S RACHAIAH) JUDGE Bss List No.:
2. Sl No.: 2