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Judgment
These appeals are by the convicted accused Nos.1 and 2
against the judgment and order of conviction passed by the
Principal Sessions Judge, Chikmagalur, in Sessions Case
No.122/2011 dated 26.4.2012 whereunder the accused Nos.1
and 2 are convicted for the offences punishable under section
302 r/w. section 34 of Indian Penal Code and are sentenced to
undergo imprisonment for life and a fine of Rs.2,00,000/- each,
in default to pay fine, to undergo rigorous imprisonment for a
period of one year. It is also ordered that out of the fine amount
payable by each of the accused Nos.1 and 2, Rs.1,75,000/- shall
be paid to PW.1 Smt.Gowramma, w/o.Revanasiddappa as
compensation and the balance amount of Rs.25,000/- shall be
confiscated to the State Government.
The case of the prosecution is that the deceased
Revanasiddappa and his wife Smt.Gowramma (PW.1) were the
residents of Anuvinahalli village, Tarikere taluk, Chikmagalur
district. On 16.4.2011, after dinner, they were sleeping in their
house. At about 10.30 or 11.00 p.m., somebody rung the calling
bell. The deceased peeped through the window and asked as to
what was the matter and the person who was outside the house
informed him that she-buffaloes are found grazing in the onion
field. Immediately the deceased put on his monkey-cap and
went out carrying a torch light. On the next day morning, when
PW.1 - the wife of the deceased went in search of the deceased,
she found him lying dead with injuries on his head and private
parts. One of his testicles was also found at a distance.
On receiving the information of the incident, PW.24 -
the PSI of Ajjampura Police Station rushed to the spot and
received a written complaint from the wife of the deceased
(PW.1) and on its basis, Cr.No.42/2011 came to be registered
against unknown persons. The further investigation was
continued by PW.26 -the CPI, Tarikere. He visited the place of
incident, drew up an inquest mahazar and seized the material
objects found at the spot of occurrence including a key. It is the
case of the prosecution that the son-in-law of the deceased PW.9
identified the said key as that of the motorbike of accused No.1
and hence, along with the panch witnesses, the Investigating
Officer proceeded to the house of accused No.1 and found a
motorbike parked outside his house. Having found that the said
bike could be started with the key found at the spot of
occurrence, he seized the motorbike. On 23.5.2011, accused
Nos.1 and 2 were arrested and on the basis of the alleged
voluntary statements of accused Nos.2 and 3, the blood stained
clothes worn by them at the time of the incident were recovered
and were sent to Forensic Laboratory for scientific examination
and on completing the investigation, charge-sheet was laid
against the accused.
In order to prove the charges framed against the
accused, the prosecution examined in all 26 witnesses and
produced in evidence 22 documents marked as exhibits P1 to
P22 and the material objects at MOs.1 to 14. The Trial Court on
evaluation of the material on record and after hearing the
parties, convicted the accused for the offence punishable under
section 302 r/w. section 34 Indian Penal Code and sentenced
them as above.
Learned Advocate on either sides have argued in
support of their respective cases and both of them have taken us
through the material on record including the judgment of the
court below.
The case of the prosecution is rested solely on
circumstantial evidence. The circumstances relied on by the
prosecution are that:
(i) Key of the motorbike of accused No.1 was
found near the dead body;
(ii) Recovery of the clothes worn by the accused at
the time of the incident;
(iii) Abscondence of the accused and their
apprehension at a far away place;
(iv) The accused were seen going near the house
of the deceased on the night of the incident;
(v) Ill-will between the accused and the deceased
in respect of the land dispute;
The learned Sessions Judge believed the evidence let
in by the prosecution and has held that the prosecution has
proved all the above five circumstances which unerringly point
out the guilt of the accused and accordingly convicted both the
accused for the murder of the deceased.
The contention of the learned counsel for the
accused is that the prosecution has failed to prove any of the
above circumstances with cogent and convincing evidence. It is
the submission of the learned counsel that the Trial Court has
not appreciated the evidence in proper perspective and
therefore, the conviction recorded by the learned Sessions Judge
without there being any evidence to connect the accused to the
alleged offence cannot be sustained under law and in the facts
and circumstances of the case. Learned counsel for accused
No.2 would submit that none of the circumstances alleged by the
prosecution establish the charge against accused No.2 and
therefore, the conviction recorded against accused No.2 is wholly
illegal and liable to be set aside by this court.
In view of the above contentions, we have
reassessed the entire evidence on record and have carefully
scrutinized the impugned judgment.
Before proceeding to discuss the evidence produced
by the prosecution on the five circumstances alleged against the
accused, it may be necessary to refer to the injuries found on
the dead body as noted by PW.23 -the Doctor who conducted
the post mortem examination. According to PW.23, he noted
the following injuries over the body:
Peeling of skin 1) Over left lateral upper arm, (2)
left lateral and posterior aspect of elbow. 3) medio
anterior aspect of the left thigh. 4) Medial aspect of
right lower leg. 5) Ventral aspect of right arm and
ventral aspect of right forearm. 6) Lower aspect of
left anterior chest. 7) Left anterior leg near and
below left knee joint.
Contusion injury over dorsal aspect of left forearm
measuring 3 x 3 c.m.s circular.
Contusion injury measuring 10 c.m.s above the
previous injury measuring 3.5 x 3 c.m.s over dorsal
aspect of left forearm.
Irregular contusion injury 1.5 x 1.5 c.m.s just lateral
to previous injury.
Right testis - everted out with cut incised scrotal
skin about 5 c.m.s in length.
Left testis - absent with cut incised scrotal skin
measuring 7 c.m.s in length.
Incised wound over left temporal and orbital region
two wounds 1 c.m. apart measuring 2 c.m.s in
length.
Comminuted fracture of maxilla present.
Comminuted fracture of mandible present.
Contusion injury just above left eyelid including
eyelid with protrusion of left eye.
Fracture of nasal bone present.
Incised wound measuring 5 c.m.s in length near
right Zygomatic area just lateral to right eye.
Incised would 1 c.m. length over the forehead.
Incised sound over the chin 2 c.m.s in length.
Denture completely lost its position with also injuries
to teeth and gums.
Fracture of temporal bone on both side present.
Fracture of parietal bone on both sides present.
Crush injury to brain tissue with internal
hemorrhage present."
PW.23 has opined that the death is due to shock and
hemorrhage as a result of injury to brain and skull. According to
PW.23, the death might have taken place 12 to 18 hours prior to
the post mortem conducted by him at about 4.00 pm on
17.4.2011.
It is not in dispute that the dead body was found in
the onion field situated close to the house of the deceased.
According to the prosecution, on the night of the incident, the
deceased had gone out of the house wearing a monkey cap and
carrying a torch light with him and on the next day morning, at
about 6.30 a.m., his dead body was found by PW.1 in the onion
field. Undisputedly, there are no eye-witnesses to the incident.
The evidence of PW.1 the wife of the deceased, indicates that
only PW.1 and deceased were living in the house on the night of
the incident and the deceased went out of the house at the call
of someone who has not been identified either by PW.1 or any
other witnesses. Here itself it is relevant to note that none of
the accused were implicated in the murder of the deceased at
the earliest point of time. The complaint was lodged against
unknown persons. Except stating that someone rang the bell
and informed the deceased that she-buffaloes have strayed into
his onion field, PW.1 has neither named accused No.1 nor did
she suspect the involvement of the accused in the alleged
incident at the time of lodging the complaint. It is only during
her evidence before the court for the first time PW.1 has stated
that "accused No.1 came and called him by saying that in our
onion field she-buffaloes have entered and grazing the same."
This evidence is proved to be an improvement and therefore, no
reliance could be placed on this part of the testimony of PW.1.
Even otherwise if PW.1 had identified accused No.1 as the
person who had come to their house to inform about the grazing
of she-buffaloes, nothing prevented her from mentioning the
name of accused No.1 in the complaint Ex.P1 which was lodged
on the next day i.e., on 17.4.2011 at 10.45 a.m. This indicates
that till the lodging of FIR, the finger of suspicion was not
pointed at accused No.1.
Even in the inquest mahazar which is stated to have
been conducted on 17.4.2011 between 1.30 p.m. and 4.00 p.m.,
the name of either accused No.1 or accused No.2 did not figure
out even though in their evidence, PW.1 - the wife of the
deceased and PW.9 - the son-in-law of the deceased have stated
that early in the morning when they traced the dead body, they
found the motorcycle key belonging to accused No.1 at the spot.
If PW.1 and PW.9 were knowing that the key found at the spot of
occurrence was that of accused No.1, in all probability the name
of accused No.1 would have been mentioned in Ex.P1 and the
investigation would have been proceeded in that direction. But
the records reveal that until 23.5.2011 no efforts were made to
trace A1 and A2 . It is in this backdrop of facts, we have to
analyze the evidence produced by the prosecution to find out
whether the evidence on record is sufficient to prove the basic
facts establishing the circumstances alleged by the prosecution
so as to connect the accused to the murder of the deceased. (i) Motorbike key
The first and foremost circumstance relied on by the
prosecution is the motorbike key which is stated to have been
found near the dead body at the spot of occurrence. PW.1 the
wife of the deceased has stated before the court that in the
morning when she went in search of the deceased, at about 6.30
a.m., she found the dead body of her husband in the onion field
and a monkey cap, torch, one stone, chappals and a key chain
were found near the dead body. PW.1 has further stated that
after the arrival of the police, the police took the key chain and
went to the house of A1 and by inserting the key to the motor
bike of A1, the motor bike got started and thereafter, the
motorbike was also seized by the police. Similar evidence is
given by PW.9 the son-in-law of the deceased. The relevant
portion of his evidence reads as under:
"After all the proceedings in the evening the
police went along with the key which was found at the
place, to the house of A1 and with the said key when
they started the motorbike of A1 it started and the
police also seized the motorbike."
The other witnesses examined by the prosecution namely PW.2
the panch witness to the spot mahazar as well as PW.12 the
daughter of the deceased have also spoken about the finding of
the key at the spot of occurrence.
What emanates from the above evidence is that a
key M.O.2 was found near the dead body in the onion field and
with the said key the motorbike M.O.1 parked in front of the
house of accused No.1 was started by the Investigating Officer.
But the crucial question to be determined is whether the said
motorbike key M.O.2 belonged to accused No.1 and whether the
above evidence is sufficient to infer that accused No.1 had been
to the spot of occurrence? In answering this question, it is
necessary to refer to the evidence of PW.26. The relevant
portion of his evidence reads as under:
"At the time of drawing Ex.P2, I seized M.Os.2
to 8. At the time of seizing the key of motorbike PW.9
identified the key as that of A1''s motorbike. Along
with panch witnesses, I went to the house of accused
and we found M.O.1 motorbike standing in front of the
house of A1 and by applying the key found near the
deadbody we started and the motorbike started with
the said key. There we also seized M.O.1 motorbike in
the presence of PW.2 and CW.3 in Ex.P2."
Here itself it is pertinent to note that PW.9 in his evidence has
nowhere stated that he identified the said key as that of accused
No.1 as stated by PW.26. Likewise, PW.2 has also not stated
anything about the identification of the said key as belonging to
A1. PW.2 has given a bald statement before the court stating
that "police drew up the spot mahazar and also recovered
M.Os.1 to 8. " He has not even spoken about the seizure of
individual items from the spot of occurrence. Therefore, the
statement of PW.26 that the key found at the spot of occurrence
was identified by the PW.9 and other witnesses as that of
accused No.1 which prompted him to seize the motorbike M.O.1
does not find any corroboration.
Viewed from another angle, if PW.1 and PW.9 were
aware that the key found at the spot of occurrence was that of
the accused No.1, in all probability, they would have suspected
the involvement of accused No.1 in the murder of the deceased
and he would have been implicated as the prime suspect in the
complaint Ex.P1 at the earliest point of time. But, in the instant
case, it has come in evidence that till the completion of the
inquest mahazar which was prepared late in the evening
between 1.30 p.m. and 4.00 p.m., none of the witnesses have
stated that there was any suspicion against accused No.1 or that
the keys belonging to the motorbike of accused No.1 were found
at the spot of occurrence. In this context, it is relevant to refer
to the evidence of PW.7 and PW.8, the independent witnesses
examined by the prosecution. Though PW.7 and PW.8 are
examined to speak to the fact that on the date of the incident,
accused No.1 had borrowed the motorbike of the husband of
PW.8 Smt.A.M.Bhagya, both these witnesses are treated hostile
by the prosecution; yet in the cross-examination of PW.8 it is
suggested by the Public Prosecutor as under:
"It is false to suggest that on 16.4.2011 at about 8.00
p.m., A1 came when I and my husband were there in
the house and asked the motorbike to go to Shivani
and we told that you accused is owning a motorbike
you take the same and at that time A1 told that his
father will not allow him to take the motorbike in the
night and after repeated request he took the
motorbike of my husband."
This suggestion implies that on 16.4.2011, accused No.1 had
been to the house of PW.8 and had borrowed the motorbike of
her husband. In the further examination of PW.8 it is elicited
that accused No.1 returned at about 10.30 p.m. and left the
motorbike near their house and at that time, PW.8 saw that
accused No.1 had consumed alcohol. According to the
prosecution, incident had taken place between 10.30 p.m. and
11.00 p.m. If accused No.1 was holding the key of his motor
bike during the occurrence as sought to be made out by the
prosecution, there was absolutely no necessity for accused No.1
to approach PW.8 to borrow the motorcycle of her husband. All
these circumstances therefore throw doubt on the prosecution
case that the key found at the spot belonged to accused No.1
and that he was carrying the said key with him during the
occurrence.
It is also important to note that even though it is the
case of the prosecution that on the date of the incident itself, the
motocycle M.O.1 was seized, the prosecution has not produced
any documents to show that the said motorbike M.O.1 stood in
the name of accused No.1 at the relevant point of time. In the
absence of any such document, solely on the basis of evidence
of PW.26 it cannot be concluded that the keys found at the spot
of occurrence pertained to the motorcycle owned by accused
No.1. In the wake of these discrepancies and unexplained
circumstances, we are not inclined to accept the theory put
forward by the prosecution that the key M.O.2 found at the spot
of occurrence belonged to accused No.1. The evidence
discussed above does not establish the basic facts leading to the
proof of the circumstance connecting accused No.1 to the
murder in question. (ii) Seizure of clothes:
Another circumstance pressed into service by the
prosecution is that after the arrest of the accused on 23.5.2011,
the clothes worn by accused Nos.1 and 2 were recovered at their
instance. In order to prove this recovery, the prosecution has
examined PW.2 and PW.4 the panch witnesses to the seizure of
clothes M.Os.11 to 14. The evidence of PW.2 reads as under:
"3. About 7-8 months back again myself and
C.W.6 were called by the police. Along with police A1
and A2 were present. Accused led us to Devanakere
situated at Lingadahalli road. There the accused told
that in the said Devanakere they took bath and have
thrown the clothes . In the said Devanakere the
clothes were floating. In the first instance A1 Nagaraj
went and brought and produce one shirt and one pant.
The said pant and shirt were mud stained and were
also stink with blood. Thereafter A2 also went inside
Devanakere and he also brought and produced one T-
shirt and one panche. The said T-shirt and panche
were also mud stained and were also stink with blood.
I can identify the said clothes produced by A1 and A2
if shown to me. (Now two sealed covers are shown to
the learned counsel for the accused. The seals are
found intact. They have no objection to open the
same. The same are now opened). The first cover
contains one shirt and one pant. The same are now
marked as M.O.11 and 12 respectively. M.O.11 and
12 are belonging to A1. The second cover contains
one T-shirt and one panche. The same are now
marked as M.O.13 and 14 respectively. M.O.13 and
14 are belonging to A2. M.O.11 to 14 were seized by
the police by drawing a mahazar."
PW.4 another panch witness to the seizure mahazar
Ex.P3 has been treated hostile by the prosecution; but in the
course of cross-examination, he admitted the suggestion made
by the public prosecutor and answered as under:
"6 . It is true to suggest that on 24.5.2011 at
about 8.30 a.m. police came along with A1 and A2 to
our village and there they told by calling us that what
the accused say and produce has to be seen by us and
thereafter they led us in a police jeep to Devanakere
and there A1 and A2 told that after murder they have
come and have taken the bath and thrown the clothes
in the said kere and they will produce the same . It is
true to suggest that thereafter accused persons went
inside the said kere and produced M.O.s 11 to 14.
It is the argument of the learned counsel for the
accused that the alleged recovery cannot be ascribed any weight
as the said recovery is not based on the voluntary statement of
any of the accused. Learned counsel has pointed out that the
Investigating Officer has stated in his evidence that he has
recorded the voluntary statement, but the portion of the said
statement leading to the recovery is not marked in evidence,
therefore, the provisions of section 27 of the Evidence Act
cannot be applied to the facts of this case and consequently, the
alleged seizure of MOs.11 to 14 relied on by the prosecution are
liable to be discarded.
The law on the question as to the evidentiary value
of the incriminating circumstance relating to the recovery of the
material objects at the instance of the accused is well settled
ever since the decision in PULIKURI KOTAYYA & Others vs.
KING-EMPEROR AIR 1947 P.C. 67. In the said decision, it has
been held that the statement of the accused relating to the
discovery is admissible under section 27 of the Evidence Act. As
per section 27 of the Evidence Act, only the information or the
statement leading to the recovery would be admissible. In the
instant case, admittedly the prosecution has not brought on
record any voluntary statement attributed to the accused.
Nonetheless in view of the law expounded by the Hon''ble
Supreme Court in the case of A.N.VENKATESH & Another vs.
STATE OF KARNATAKA reported in 2005 AIR SCW 3914, even if
we hold that the disclosure statement made by the accused is
not proved under section 27 of the Evidence Act, still the
recovery becomes admissible under section 8 of the Evidence
Act. In the above decision, the Hon''ble Supreme Court has held
as under:
"9. By virtue of section 8 of the Evidence Act,
the conduct of the accused person is relevant, if such
conduct is influenced by any fact in issue or relevant
fact. The evidence of the circumstance, simpliciter,
that the accused pointed out to the police officer, the
place where the dead body of the kidnapped boy was
found and on their pointing out the body was
exhumed, would be admissible as conduct under
section 8 irrespective of the fact whether the
statement made by the accused contemporaneously
with or antecedent to such conduct falls within the
purview of section 27 or not as held by this court in
Prakash Chand v. State (AIR 1979 SC 400). Even if
we hold that the disclosure statement made by the
accused appellants (Ex.P14 and P15) is not admissible
under Section 27 of the Evidence Act, still it is relevant
under Section 8. The evidence of the investigating
officer and PWs.1, 2, 7 and PW.4 the spot mahazar
witness that the accused had taken them to the spot
and pointed out the place where the dead body was
buried, is an amissible piece of evidence under Section
8 as the conduct of the accused."
In the instant case, the portion of the evidence
extracted above goes to show that after the arrest of the
accused Nos.1 and 2, PWs.2 and 4 were summoned to the Police
Station and PW.4 has admitted in his evidence that in the
presence of PWs.2 and 4 the accused disclosed the place where
the clothes were thrown and accordingly, led them to
Devanakere and produced the clothes M.Os.11 to 14. This
evidence is also corroborated by PW.26 and is also reflected in
the seizure mahazar Ex.P3. The photographs produced by the
prosecution at Ex.P19 and Ex.P21 also reveal that M.Os.11 to 14
clothes were seized under the mahazar Ex.P3 at the instance of
accused No.1 and accused No.3. In the light of this evidence,
the legal contention urged by the petitioner that for want of
disclosure statement marked in evidence the entire recovery
effected from the accused is liable to be rejected cannot be
accepted.
Needless to say, the recovery of clothes M.Os.11 to
14 by themselves do not relieve the prosecution of the primary
burden cast on it to prove the fact that the said clothes were
worn by the accused at the time of incident and that they were
stained with the blood of the deceased. On evaluation of the
circumstances brought out in the evidence, we are of the firm
view that the evidence produced by the prosecution to connect
these recoveries to the respective accused falls short of the
required standard. Undisputedly, the incident took place on
16.4.2011. M.Os.11 to 14 are recovered on 23.5.2011 nearly 37
days after the incident. According to the prosecution, after the
incident, the accused took bath in Devanakere (tank) and threw
away the clothes in the said tank. According to PWs.2 to 4,
these clothes were found floating in the water and they were
mud stained and also stained with blood. None of these
witnesses have stated that they examined these clothes closely
to detect the presence of stains and the size and location
thereof. The FSL report also is silent about the size and location
of the stains. Except stating that there were few stains here and
there, the FSL report Ex.P22 does not specify the size and
location of the blood stains in M.Os.11 to 14. No doubt it is true
that it is mentioned in the FSL report Ex.P22, that the clothes of
the deceased as well as M.Os.11 to 14 were stained with ''AB''
group of blood, but that by itself may not be decisive of the fact
that the clothes recovered at the instance of the accused were
stained with the blood of the deceased. The very fact that these
clothes were submerged in the tank and were soaked in water
continuously for nearly 37 days, the possibility of foreign
material getting absorbed in the threads and strands of the
fabric cannot be ruled out. Another circumstance which renders
it difficult to connect the blood group detected in the clothes to
the accused is that the panch witnesses have affirmed in their
evidence that after the accused removed the clothes from the
water and handed them over to the Investigating Officer, they
were immediately packed and sealed. According to PW.26 the
Investigating Officer, on 4.6.2011 he sent the seized articles to
RFSL, Mangalore. The contents of Ex.P22 reveal that the articles
sent were received in the Laboratory for examination on
9.6.2011 and they were subjected to chemical analysis and the
certificate is dated 20.7.2011 which indicates that the clothes
were in a sealed condition and they were subjected to
examination on 20.7.2011. It cannot be believed that without
squeezing the said clothes to drain out the water or getting them
dried the Investigating Officer straightaway packed and sealed
them as stated by the panch witnesses. If infact these clothes
were squeezed, there is a strong likelihood of the stains getting
dislocated. In the absence of any details with regard to the
conditions of these clothes at the time of recovery as well as at
the time of subjecting them to the chemical examination, it is
not safe to rely solely on the FSL report to hold that the stains
found in M.Os.11 to 14 contained the blood group of the
deceased.
"Proof" as understood in legal parlance and as
defined in the Evidence Act does not mean proof with rigid
mathematical demonstration because that is impossible, but
proof requires such evidence as would induce a reasonable man
to come to a particular conclusion. In the instant case, the
manner in which the recovery is effected, the condition of the clothes
at the time of the seizure, the manner in which they were sealed and
packed and the time taken to subject them to the chemical
examination renders the recovery evidence produced by the
prosecution susceptible to doubt. In any event, the above evidence
is not conclusive to hold that the blood group found in these
clothes are that of the deceased so as to connect the accused to
the alleged circumstance of recovery of clothes at their instance.
(iii) Absconding of the accused
"Absconding and absence for several days from the
normal place of residence can be a tell-tale circumstance of a
guilty mind ." In the instant case, the trial court has held that
accused Nos.1 and 2 were absconding from the date of incident
till they were nabbed on 23.5.2011 which is taken as one of the
circumstance connecting the link in the chain of circumstances.
But on scrutiny of the material on record, we do not find any
convincing material to show that the accused had fled away from
the village after the incident in question. Except PW.26, not a
single witness has stated before the Court that the accused were
not seen in the village after the incident. There is nothing on
record to show that the Investigating Officer has made any
efforts to trace the accused till 23.5.2011. A perusal of the
evidence of PW.26 indicates that for the first time, he constituted
two squads to trace and apprehend the accused on 23.5.2011
and on the same day, the accused were apprehended. Though
the prosecution has examined PW.17 to PW.20 to show that
accused Nos.1 and 2 had been to Aldur, Sagar, Kalgatagi and
Hubli in search of job, disguising themselves as Suresha and
Mahesha, none of these witnesses have supported the
prosecution, as a result, prosecution is not left with any reliable
evidence to show that after the incident, accused Nos. 1 and 2
had run away from their place of residence. Therefore even the
evidence produced by the prosecutor relating to this
circumstance cannot be held against the accused.
(iv) Last seen circumstance
The witnesses examined by the prosecution in proof
of the fact that prior to the incident, the accused were seen
going near the house of the deceased, namely PW.6 and PW.11,
have failed to support the prosecution and nothing is brought out
in their cross-examination in proof of this circumstance.
(v) Motive/ill-will
Lastly, the prosecution has examined the close
relatives of the deceased namely PW.1, PW.3, PW.4 and PW.9 to
prove the motive for the commission of the offence. According
to the prosecution, there was a land dispute between the father
of accused No.1 and the deceased and on account of this ill-will,
the accused resorted to the murder of the deceased. Even with
regard to this aspect, we find the evidence let in by the
prosecution is discrepant and inconsistent. PW.1 -the wife of the
deceased has stated in her evidence that her husband was
owning a land bearing Sy.No.262/5 at Shivani measuring 1 acre
12 guntas and there was a land dispute between accused No.1
and her husband and also in respect of the site owned by her
son-in-law PW.9. PW.9 -the son in law of the deceased has
totally a different story with regard to the alleged land dispute.
According to PW.9, there was dispute between the father of
accused No.1 Neelakantappa and deceased Revansiddappa and a
suit was filed in 1983. Prosecution has not produced any
documents relating to this land dispute and it is not known
whether accused No.1 was also a party to the said suit. If the
evidence of PW.9 is believed, it goes to show that he had
purchased 10 guntas of open space by the side of the house of
one Eshwarappa - the brother of father of accused No.1 and
three months prior to the death of the deceased, father of
accused No.1 came to put up a foundation in that site by the
side of his house and on that account, there was ill-will between
the members of the accused family and his father-in-law. There
is no reliable evidence to show that there was any grudge or ill-
will between accused No.1 and the deceased on that count or
that any civil or criminal proceedings are pending between them
so as to furnish an immediate motive for the accused to do away
with the deceased. Even otherwise, the prosecution having
failed to substantiate any circumstance connecting the accused
to the murder of the deceased, the motive projected by the
prosecution, even if accepted, would be of no avail to prove the
complicity of the accused in the death of the deceased.
It is trite law that in a case based on circumstantial
evidence, the Court has to take the totality of circumstances into
consideration and come to the conclusion that the facts
established in evidence are inconsistent with the innocence of
the accused and incapable of explanation on any reasonable
hypothesis other than the guilt of the accused. The chain of
circumstances must be complete (a) as not to leave any
reasonable ground for a conclusion consistent with the innocence
of the accused; and (b) to show that within all human
probability, the act must have been done by the accused and the
accused alone. The following principles are laid down by judicial
precedents in proving the culpability of the accused in a case
based on circumstantial evidence namely:-
(i) Facts or circumstances alleged must be proved
by cogent and convincing evidence;
(ii) They must be of a conclusive nature and tending
to be totally inconsistent with the innocence of
the accused and are not explainable by any other
hypothesis except the guilt of the accused;
(iii) There should be no missing links in the case; yet
it is not essential that every one of the links
must appear on the surface of the evidence.
Some of the links may have to be inferred from
the true facts;
(iv) In drawing the inferences or presumptions, the
court must have regard to the common course of
events and human conduct in their relation to
the facts of the particular case;
(v) Where the circumstances are susceptible of two
equally possible inferences, the court should
accept the inference which favours the accused,
rather than an inference which goes in favour of
the prosecution.
(vi) Motive is important, though not indispensable.
Failure to prove motive is not fatal by itself.
In the case in hand, on re-appreciating the material
on record, we find that the prosecution has failed to prove any of
the circumstances alleged against the accused with cogent and
convincing evidence. None of the circumstances alleged by the
prosecution unerringly point out the involvement of the accused
in the murder of the deceased. The witnesses examined by the
prosecution in support of the theory that the accused were last
seen near the place of occurrence have not supported the
prosecution. The prosecution has not been able to prove that
the key found at the spot of occurrence (M.O.2) belonged to
accused No.1 and that he carried the said key to the spot of
occurrence during the occurrence. Though the clothes said to
have been worn by the accused at the time of the incident are
proved to have been recovered at the instance of the accused,
the evidence produced by the prosecution is not sufficient to
hold that the said clothes were stained with the blood of the
deceased so as to prove the complicity of the accused in the
incident in question. The plea of absondance of the accused is
also not proved with reliable and convincing evidence. The
prosecution has not been able to establish even a single
circumstance connecting the accused to the murder of the
deceased.
There is absolutely no evidence whatsoever to prove
the involvement of accused No.2 in the incident in question
much less any evidence in proof of the common intention to
liquidate the deceased as sought to be made out by the
prosecution. Under the said circumstances, the learned Sessions
Judge was not justified in convicting the accused for the alleged
offence and sentencing them for life imprisonment and a fine of
Rs.2,00,000/-. For the reasons discussed above, we are unable
to concur with the findings recorded by the trial court on the
culpability of accused Nos.1 and 2. On re-appreciation of the
evidence and for reasons stated above, we are of the firm view
that both the accused deserve to be acquitted of the alleged
charge under section 302 r/w. 34 of Indian Penal Code by
extending the benefit of doubt.
Accordingly, Criminal Appeal No.524/2012 and Criminal
Appeal No.661/2012 are allowed. The impugned judgment and
order of conviction passed by the Principal Sessions Judge,
Chikkamagaluru in S.C.No.122/2011 dated 26.4.2012 is set-
aside. Accused Nos.1 and 2 are acquitted of the offence
punishable under section 302 r/w. section 34 of Indian Penal Code.
Both the accused are ordered to be set at liberty forthwith, if not
required in any other case. The bail bonds of the accused stand
cancelled and their sureties are discharged.
Registry is hereby directed to communicate the operative
portion of this judgment to the concerned jail authorities
forthwith to enable them to release accused Nos.1 and 2.