1 a IN THE HIGH COURT OF KARNATAKA CIRCUIT BENCH AT DHARWAD DATED THIS THE 01 ST DAY OF FEBRUARY, 2011 PRESENT THE HON’BLE MR.JUSTICE K SREEDHAR RAO AND THE HON’BLE MR.JUSTICE C R KUMARASWAMY CRIMINAL APPEAL NO.2546/2010 BETWEEN: 1. SRI.NAGARAJ 5/0 PARAMESHI BORAIAH AGE: 25 YEARS, OCC:AGRICULTURE 2. SRLPARAMESHI BORAIAH Sb PARAMESHI BORAIAH AGE: 50 YEARS 0CC: AGRICULTURE BOTH ARE R/O KARADIHALLI VILLAGE TQ: KUDLIGI, DIST: BELLARY APPELLANTS (BY SRI:HANUMANTHAREDDY SAHUKAR, ADV) AND: THE STATE OF KARNATAKA BY THE CIRCLE POLICE INSPECTOR KUDLIGI CIRCLE, KUDLIGI DIST:BELLARY cv 9 a REP BY ITS STATE PUBLIC PROSECUTOR RESPONDENT (BY SRI:BAHUBALI A DANAWADE, GP) THIS CRL.A. IS FILED UNDER SECTION 374(2) OF CR.P.C. SEEKING TO SET ASIDE THE JUDGMENT AND ORDER OF SENTENCE DATED 10.12.2009 IN SC NO.78/2006 PASSED BY THE LEAREND ADDL. DISTRICT AND SESSIONS JUDGE, BELLARY. THIS CRL.A IS COMING ON FOR FINAL HEARING ThIS DAY, KUMARASWAMY, 3., DELIVERED THE FOLLOWING: JUDGMENT This Criminal Appeal is filed under Section 374(2) of Cr.P.C. seeking to set aside the judgment and order of sentence dated 10.12.2009 In SC No.78/2006 passed by the learned Addi. District and Sessions Judge, Beilary. 2. The primary facts of the case of prosecution is as under: That on 18.10.2005 at about 9.00 a.m., Thippeswamy proceeded by carrying a chopper to his agricultural land to cut the trees. Due to the black magic, the wife of accused No.2 was died and there was enmity between accused Nos.1 and 2 and deceased in this connection. Therefore, accused No.2 by means of chopper V 3 E assaulted on the head of the deceased. Thereafter, accused Nos.1 and 2 with an intention to cause disappearance of the evidence of offence of murder, carried the dead body and burned him in between the land of Sannakunta Boraiah and Guraobaiah. Therefore, the Investigating agency laid chargesheet against accused Nos.1 and 2 for the offence punishable under Section 302, 201 read with Section 34 of IPC. 3. In this case, Kunta Papamma, the wife of deceased Thippeswamy has lodged complaint before the PSI, Gudekote police station. It is stated in the complaint that about 15 years back, she was given in marriage to Thippeswamy. They had three children by name Mahaiaxmana, Premanna and Papanna. She has stated that for the past 10 years, the father of her husband had expired. Therefore, her husband and his brother have separated and they were living separately. When his father-in-law was alone, both the brothers were living together. At that time, complainant husband brother was 4 V handling the affairs of house and he used to take more crops grown In the land. In this regard, her husband and Parameshwara Boraiah were not in talking terms. They did not invite to the marriage of his daughter Shardamma and they also did not go to the marriage. 4. It Is further stated in the complaint that about one year back, Parameshwara Boraiah’s wife Dodda Obaiamma died due to cancer. From there onwards, there was Ill-will between accused Parameshwar Boraiah, his son Nagaraj and deceased thinking that due to black magic administered by the deceased, accused wife Dodda Obaiamma died. They also threatened that they will kill her husband. While they were threatening, it was heard by Potaiapapaiah, Boladia Boraiah and Kunta Boraiah. From there onwards, they were not in talking terms with the deceased and accused. 5. That on 18.10.2005, at about 7.00 a.m. she went in connection with the work to Samudragrama and when she returned to the home at 2.00 p.m., her husband (-I 5 V was not there. She thought that he might have gone to attend the meeting of the Congress party. On the next day, when her husband did not return the home, she started searching hIm. The resident of the village Buladla Bulanna and Eramma told her that in the morning at 8.00 a.m. he went to cut the trees. On 18.10.2005, Karlyappa told her that Parameshwara Boralah and Nagaraj were In panic and they ran away towards theIr house. That on 20.10.2005, complaInant alongwith Kampalaiah started searching inbetween Parameshwara Boraiah land. They saw the leg of the deceased. When they went near the scene of offence, It was about 5.00 p.m. She also states in her complaint that Thippeswamy went to the land on 18.10.2005 at about 8.00 a.m. That on the same day, Parameshwara Boralah and his son Nagaraj due to the previous enmity and with an intention to kill her husband, have assaulted him by means of an axe. They also caused the disappearance of the evidence of murder by buryIng the dead body in a bush in the land of Parameshwara 6 V Boraiah. Therefore, she requested to take action against Parameshwara Boraiah and Nagaraj. 6. The statement of the complainant was recorded on 20.10.2005 at about 8.00 p.m. In the police station. On the basis of the said complaint, Cr.No.75/2005 was registered for the offence punishable under Sections 302 and 201 read with Section 34 of IPC. The FIR was sent to the learned Magistrate through Head Constable 196 on 20.10.2005 at 11.00 p.m. alongwith one enclosure. The crime was registered against Parameshwara Boraiah and Nagaraj on the complaint of Kunta Papamma. 7. The prosecution has examined in all 23 witnesses as PW5.1 to 23 and Exs.P1 to P29 and MOs.1 to 13 were marked. The defence has not examined any witnesses, but got marked Ex.D1 the portion of the statement of PW2. 8. PW1 — Kunta Papamma is the complainant. She has deposed that after the death of Boralah, accused tJ 7 No.2 used to look after the entire land. He was handling the affairs of the land in toto. They were living separately for the past four years. Accused No.2 used to sell jowar crop, therefore there was ill-will between the complainant family and accused family. Since there was Ill-will they were not In talking terms with accused No.2. Accused No.2 wife died due to cancer about three years back. They did not invite for funeral. The accused were under the impression that accused No.2 wife died due to the black magic administered by the deceased and there was enmity between accused and complainant. In this regard, there was quarrel between them. Her husband did not return to the house. She thought that he might have gone to the programme in Beilary. Even on the next day, he did not return. Since her husband did not come, she narrated the same to his brother-in-law, then they started searching in the land, but they could not trace her husband. Then the complainant and her brother-in-law Kampalaiah, went and searched in the land of Parameshwara Boraiah, they found that there were hairs fallen on the land, then they went C—.. 8 near the land of Boramma and Obamma and near the bush, they found the foot of her husband Thereafter, they went to Gudekote police station and lodged the complaint against the accused on the ground of suspicion and then police came and removed the dead body She further deposed that when her husband went to the land, he had carried chopper and when she saw the dead body of her husband, she was able to observe that her husband was killed by assault by means of chopper and axe The chopper which was shown to her was the chopper that was carried by her husband and it was marked as MOl. Axe was also fallen near the land and that was pointed out by Nagaraj It is marked as M02 The apparel of the deceased were also seized M05 baniyan M06 nicLer, MO I ng and M08 h cad A y her nusband C n atr e tat ed Jo 2 o o afte th r I f irs t n 9 omitted to state in the complaint that her husband carried chopper. She does not know what is written in the complaint. She clearly admits in the cross examination that since there was ill-will between her and accused, she has affixed her signature on the statement given by Kampalalah. She has also omItted to state in her complaint that accused No.2 used to sell the grains. 9. PW2 — Kampalalah Is the brother of the deceased. He has deposed that deceased Thippeswamy and accused No.2 were not in talking terms. He further deposed that his brother’s wife Obalamma died due to cancer. But the accused was under the impression that deceased had administered black magic against the wife and accused No.2, therefore, she died. Thlppeswamy used to wear leather slippers. He rarely used to wear hawal slippers. This witness has been cross examined. During his cross examination by the defence Counsel, he states that there was no ill-will between deceased and accused. After I0 cross examination by the learned Counsel for the defence, this witness was treated as hostile by the side of the prosecution 10. PW3 Goudara Sanna Boralah has deposed that inquest was conducted in his presence and police drew panchanama to that effect. The panchanama was marked as Ex.P3. He further deposed that accused pointed out the weapon and it was seized under Ex.P4 panchanama He further deposed that hairs fallen at the spot were seized under Ex.P5 - seizure panchanama. He has affixed his signature as per Ex.P5(a) on the seizure panchanama The police also seized blood stained mud under Ex.P6 - panchanama. He has also affixed his signature as per x.P6(ai on the said panchanama He also fur Icr de aec’ tI-at lo hes hid vere oicea d in e bathroom by the accused were seizea under panrhanama Fx w ç t ed tilt ‘J ide. ro cutio 11. PV14 Bora:a’. cpn.ii,s aour n,fferenz saizurc 3 I H Ic t. 11 4 seizure of blood stained mud. He also deposed that dothes of the deceased were seized from the bathroom of the house of accused. 12. PW5 — Kariyappa deposed about the dispute between accused and deceased and also about black magic administered against the wife of accused No.2. 13. PW6 — Masakatti Eramma has turned hostile to the side of the prosecution. PW7 — Boralah deposed about the meeting with regard to congress party. 14. PW8 — Boramma deposed about the wife of accused No.2 suffering from cancer and later on she died due to cancer. He also speaks about the black magic administered by the complainant. She speaks about the burial of the dead body. 15. PW9 — Angadi Boramma is the neighbour and she has turned hostile. PW1O — H Venkatesh has turned hostile to the side of prosecution. PW11 — Yamagurusab has turned hostile to the side of prosecution. PW12 - C- 12 Hampamma, PW13 — Sanna Kunta Boraiah, PW14 — Gurra Obaiah have turned hostile to the side of prosecution. 16. PW15 - Pranesh Maddi is the Police Constable. On 21.02.2005, under the instructions of Circle Inspector he produced the clothes for medical examination. 17. PW16 — Jeeian speaks about the ownership of the land. PW17 — Kotresh has turned hostile to the side of prosecution. PW18 — Sanna Veerappa is the FIR carrier. PW19 — Ramesh carried the seized articles to the FSL. PW2O — Basavareddy is the engineer who inspected the spot and prepared the sketch of scene of offence. 18. PW21 - V Shanta Kumar is the inspector who inspected the spot and did spot panchanama and recorded the voluntary statement of accused, seized the weapon used for the commission of offence and also seized chopper, chappal under the panchanama. After completion of investigation, he laid the chargesheet. C- 5 13 19. PW22 - Dr.M Vinaya Is the Medical Officer who conducted postmortem examination on the dead body of one male person by name Thippeswamy, aged about 36 years and he conducted postmortem examination between 11.30 a.m. to 12.00 p.m. on 21.02.2005. The time of death is more than three days prior to the postmortem. Provisional sample of blood and hairs has been collected from the body of deceased and sent to FSL to compare to the blood and hairs found on the weapon which has been sent for FSL. Final opinion as to the cause of death is due to brain hemorrhage which leads to cardiac arrest and respiratory failure and finally death. Ex.P19 Is the certificate. Injuries mentioned In Ex.P19 could be caused if a person Is assaulted with axe. On account of injuries noted in Ex.P19 brain hemorrhage cardiac arrest and respiratory failure could be caused. In Ex.P19 it is not mentioned whether he conducted postmortem examination and on re-examination, he has stated that he conducted postmortem examination at Karadlhalli outskirts of village where the dead body was found. 14 p 20. PW23 — N Raveendra is the police inspector of Gudekote Police Station. He was working In the said police station between 29.05.2005 to 19.06.2006. On 20.10.2005 at about 10.00 p.m. complainant Kunta Papamma appeared before him and gave a complaint as per Ex.P1 and she affixed her signature as per Ex.Pla and on the basis of the said complaint, he registered a case In Cr.No.75/2005 and sent FIR through HC 196 to the learned Magistrate. During his cross examination, he admits that Kunta Papamma does not know to read and write. He denies the suggestion that Kunta Papamma did not narrate the incident as per Ex.P1. He also denies the suggestion that as per the say of Kampalaiah, he has created Ex.P1. He has deposed that Kampalaiah Is the brother of the deceased and brother-in-law of Kunta Papamma. C, 15 21. The statement of the accused was recorded under SectIon 313 Cr.P.C. Accused denied all the allegations of the prosecution. 22. The sum and substance of the findings of the Trial Court Is as under: The Thai Court has observed that there is no eye witness to the alleged incident. MOs.1 to 3 were seized at the Instance of accused No.1 and the voluntary statement was recorded In the presence of PW5.3 and 4. Though PW3 has not fully supported the case of the prosecution, In the cross examination, he clearly admitted that the contents of Exs.P4 and P7 were read over to him. Mos.1 to 3 were seized at the instance of accused No.1 under Ex.P4 - mahazar. PW4 fully supported the case of the prosecution and stated that MOs. 1 to 3 — chopper, axe and one pair of chappais were seized at the instance of accused No.1 and the same was kept by him in cave, the place where Mos.1 to 3 are kept, which is not accessible to the general public and the same is only within the knowledge 16 of accused. M02 - blood stained axe, M012 1 shIrt and MOl 3 lungs are also seized at the instance of accused No 1 as per his voluntary statement. The prosecution proved Ex P7 mahazar by examining PWs.3 and 4. PW4 fully supported to the case of the prosecution. MOs.12 and 13 T shirt and Lungi were worn by the accused No.1 at the time of alleged incident. Both are blood stained. M09 hair of deceased, MOlO blood stained mud which are seized at the place of dead body and M02 axe, M09 hair, MOlO blood stained mud, M012 shirt, M013 lungi were sent to FSL report alongwlth other materials Ex P18 serological report clearly support the case of prosecution that blood group on item Nos 1, 3 to 5, 7 to 11 are stained with ‘0’ group blood Iten- Nos 1 ard 4 are hu nan scalç hair SI No 7 1 shirt anu Sl.No.9 l’ingi belong to accused No.1 Bot bl t ed t ‘joi o qroup .4 ‘ieceased. There is no explanation iron the e Jseu ls’ how is - hir’ eairai wit bG i at i 1 C 1€ ap)drcl W ttc acced vas r od’ic d b ii ,tl 1 ‘aS F r - e . F at”—’.”n V.iE €u, 17 supports the case of prosecution. Further, the evidence of PW6 shows that on the date of alleged Incident both accused went to their field, thereafter deceased also went to the field. PW8 sister of deceased as well as accused No.2 seen accused coming from their field with fear. Further motive for this Incident Is enmity between accused and deceased. It is the case of the prosecution that accused was blaming deceased Thippeswamy and his brother for the death of wife of accused No.2. He thinks that his wife was died on account of black magic administered by the deceased and his brother. The Trial Court has also observed that this type of belief in the village more particularly in liiiterate viiiagers is common. The evidence of PW1 complainant and PW2 brother of accused No.2 as well as deceased support the case of prosecution regarding lii will between accused and deceased. The Trial Court has observed from the prosecution evidence that on account of Iii will between accused and deceased on the fateful day accused with common intention to commit murder, accused No.1 S. I8 committed murder of Thlppeswawmy by assaulting him on his head with axe when he was cutting fire wood. The Trial Court has also observed that in this case M02 - axe, M012 — T shirt, M013 — lungi seized at the instance of accused No.1. MOs.12 and 13 are blood stained. The blood group found on Mos.12 and 13 and deceased are one and the same. Accused No.1 has not explained as to how his clothes were stained with blood. Therefore, the Trial Court came to a conclusion that accused Is guilty of the offence punishable under Sections 302, 201 read with SectIon 34 of Indian Penal Code. 23. Feeiing aggrieved by the same, accused has preferred this appeal challenging the Judgment of conviction. 24. We have heard learned counsel for the appellants as well as learned counsel for the State. We have carefuiiy perused the Trial Court records and the material placed before us. i9 25. It is the contention of learned Counsel for the appellants that there is Inconsistency in the evidence of PWs.1 and 2. There is delay in lodging the complaint by more than 3 days. In the complaint, the name of accused have been mentioned on suspicion. The motive narrated in the complaint has not been established by credible evidence. No weapons have been seized at the instance of accused Nos.1 and 2 and there Is no eye witness to the incident. He further submits that though serological report has been produced, but the witness has not been examined. Therefore, there is no opportunity for the accused to rebut the evidence produced by the prosecution. Therefore, the accused was unable to defend their case In an effective manner. In the circumstances, benefit of doubt must be given to the accused. This case Is based on circumstantial evidence. All the events are not so connected to point out the guilt of the accused. Even the evidence of last seen circumstances is not consistent. The witness who speaks about last seen has turned hostile. Therefore, there is no positive evidence to point out that LI 20 accused went to the land where the deceased was cutting the trees. 26. Learned High Court Government Pleader submits that PWs.1 and 4 have supported the case of prosecution. The blood stains found on the clothing of the deceased and accused tallies and blood group matches. PW4 speaks about the seizure of hairs, axe, chappal, blood stained mud and apparel of accused. 27. In this case, the postmortem examination was conducted on 21.10.2005 between 11 30 a.m. to 12.30 p m The doctor has given his opinion that the cause of death is due to brain hemorrhage which leads to cardiac arrest and respiratory failurt md f naily dead In this ase he. c. mplainar PW ia r iplicated acc. ed Nos r d o 1 suspicior t rd g work, edNoslandlv I c ime Even e motive has not beer e ‘a k 1 ’uc.ng C ‘idence D, examir’ing the jeison tF’ c d ted ttc biack magic ‘r fji.a “1ff )f arisd ;i: •h• mt.:e s r:rnoteii S. S S r 21 I., connected with the crime. The motive alleged to have stated in the complaint is about 3 years pnor to the date of commission of offence. Therefore. the prosecution has not been cogently established the motive for the crime. This case Is based on circumstantial evidence. There Is no positive evidence in respect of last seen circumstances All the events have not been established fully by the prosecution. There is missing link In the evidence of the prosecution. This aspect has not been properly apprecIated by the learned Sessions Judge. 28. It is the contention of learned Counsel for the appellant that though blood group matches with the apparel of the deceased as well as the apparel of the accused, but the accused vas not given ar opportunity to cross examine on this aspect and they have not been cross examined therefore, the accused was not able to defend tie isc in ar a rtainm t nf the 3d grou y I’ ice i a f p or I ‘aw Mi the nvary c dcna T ciseil s tted lais, M I I 0 22 recovery evidence is only a corroborative piece of evidence and it is not substantive piece of evidence. Therefore, the Tnai Court mainly relying on the recovery evidence and coming to the conclusion that accused is guilty of the offence charged is not sound and proper. PW1 complainant clearly admits during her cross examination that at the initiative of PW2, she has signed the complaint and complaint was prepared by the brother of the deceased Kampaiaiah Therefore, the evidence of PWI. is also not cogent and clear. She also clearly admits that due to ill- will, this complaint has been lodged against accused Nosi. and 2. In other words, the Trial Court mainly relying on the hemicai examination report and also recovery evide ce ha based onvictior In our is’ a stated earl er ecovery c. den e is o i y a orroborat ye piece o evidence and this case is based ‘r rirrljmstantja, evide’cc and thus all circumstinc’es has not been fully estabiished. rhere ‘niss;nc !ink and als the evlwienra of PW1 corn 4% n 1* tor here nce o I S —. 23 complete proof of wrongness or guilt of the accused. Therefore, the accused is entitled of benefit of doubt. 29 In that view of the matter, we pass the followings ORDER In the result, the appeal is allowed. The judgment of conviction passed by the Trial Court in Sc No.78/2006 on the file of the AddI. District and Sessions Judge, Bellary is hereby set aside. The appellants accused are set at liberty forthwith, if they are not required to be detained in any other cases The operative portion of the order shall be intimated tc the jail authonties and to the. 1. ial Court 1’’ JUDGU