State vs Vijaya Kumar and Others

Mohan Shantanagoudar, J.

Delay condoned. IA.I/07 is allowed.

Heard for Admission.

The State has filed this appeal against the judgment and order of acquittal passed by II Addl. Sessions Court, Kolar in S.C. No. 165/2004. By the impugned judgment and order, the accused arc acquitted of the offences punishable under Sections 302, 201 of IPC and u/s 3(2)(v) of SC/ST (POA) Act, 1989 r/w 34 of IPC.

The case of the prosecution in brief is that while deceased Venkatarayappa was taking meals, he was calied by accused No. 2 saying that he would provide him drinks and took him to the garden land of accused No. l. Thereafter, both the accused allegedly murdered Venkatarayappa by assaulting him on his head with an iron rod.. Accused were tried for the offences punishable under Sections 302, 201 of IPC & Section 3(2)(v) of SC/ST(POA) Act 1989, inasmuch as, deceased Venkatarayappa was belonging to community of Schedule caste.

In order to prove its case, the prosecution in all examined 21 witnesses and got marked 29 exhibits and 12 material objects, The Trial Court on hearing acquitted the accused.

PWs-2, 3 and 4 turned hostile to the case of the prosecution. The only two circumstances against the accused that arise in the matter are:

a. Accused No. 2 called the deceased for taking drinks and dinner &

b. Accused Nos. 1 and 2 were found with the deceased in the house of Ajjappa,

Merely because accused were found with the deceased in the house of Ajjappa, it cannot be said that the accused were last seen with the deceased near the scene of offence, As to what has happened after taking dinner in the house of Ajjappa is not forthcoming. Ajjappa is not examined before the Court, If anybody had found the presence of accused Nos 1 and 2 alongwith deceased near the water pond i.e., (scene of offence) or nearby that place, that could not have been a different aspect. The presence of the acuused should be in the proximity and place of the incident, then only the circumstance relating to last seen assumes importance. Even according to PW-1, accused No. 2 called the deceased for dinner during the relevant date. Thereafter, accused No. 2 and deceased went to the house of accused No. l Ultimately they went to the house of Ajjappa, The presence of the accused and the deceased in the house of Ajjappa was spoken to by PW-13 Ramakriahnappa. Even assuming that accused No. 2 had really taken the deceased on the night of the incident in question for dinner, the same itself would not be sufficient for connecting both the accused to the incident in question, inasmuch as, the accused were not seen with the deceased after taking dinner in the house of Ajjappa.

It is by now well settled that in case of circumstantial evidence, all the incriminating facts and circumstances should he fully established by cogent and reliable evidence and the facts so established xnuat be consistent with the guilt of the accused and should not be capable of being explained away on any other reasonable hypothesis than that of his guilt. In short, the circumstantial evidence should unmistakably point to one and one conclusion only that the accused person and none other perpetrated the alleged crime. If the circumstances proved in a particular case are not inconsistent with the innocence of the accused and if they are suscaptible of any rational explanation, no conviction can lie.

Judged from this stand point, it is not possible to alter and order of acquittal of the respondents, inasmuch as, the evidence on record does not establish the case of the prosecution against the accused. The evidence does not unmistakably point to one and one conclusion that the accused persons and none other perpetrated the alleged crime, In view of the same., the Trial Court is justified in acquitting the accused. No interference is called for Appeal fails the same stands dismissed at the stage of admission