IN THE HIGH COURT OF KARNATAKA CIRCUIT BENCH AT DHARWAD DATED THIS THE 22N1) DAY OF JULY 2011 PRESENT THE HON’BLE MR.JUSTICE H.BILLAPPA AND THE HON’BLE MR. JUSTiCE ARALI NAGARAJ CRIMINAL APPEAL No.269812010 (C) BETWEEN: Shri Dayanand Kailappa Shinge Age: 38 Years. 0cc: Doctor R/O Akkiwat, Tal. Hukkeri, Dist. Belgaurn Appcliant (By Sri. : Ashok R Kalvanashettv. Mv.) And The State Of Karnataka B’ its State Public Prosecutor, Advocate General Office, High Court Circuit Bench Premises Dharwad. Respondents (By Sri. V.M.Banakar, Addl.SPP) This Criminal Appeal is filed ti/s 374 (2) of Cr.P.C. seeking to set aside the judgement of conviction and order of sentence dated 08.06.2010. passed by the Presiding Officer. Fast Track Court And Additional Sessions Judge. Hukkeri, in Sessions Case No.188/2009. This Criminal appeal coming on for further P submission this day, ARALI NAGARAJ, J delivered the following: JUDGMENT This appeal is by accused No. I, in Sessions Case No.188/2009, on the file of the learned Presiding Officer, Fast Tract Court and Additional Sessions Judge, Hukkeri. (hereinafter referred Eu as “Trail Court” for short). 2. Totally 3 accused were tried in the said case for the offences under Sections 302 and 201 both read vith Section 34 IPC. The Trial Court. bt its impugned Judgment and Order dated 8/6/2010 acquitted accused Nos.2 and 3 therein, of both the said offences but convicted the appellant (accused No.1) for the same. Therefore, the appellant- ac cuseci NC). 1 has c lia)len°ecl in this a p al eorreetnrss of the irnpiiuntcI Judgment and C • ci of his Cofl irticjfl. 3. Stated in brief. the case of the prosecution is as under: i) Ott I 3 1 2OO au about 11 .Oflaum I VI Mallappa Balappa Kaclalagi rt-sith i C)f Akkiw at iIlage. Taluk Hukkeri. his . I3elgauin. filed his compliant (Its P I ) before the PSI of Sankes1i ar PS st. ing thai at about qwoam on that cl . ? lie was iii his agricultural land in the .:id ‘ iilage. sn’ the dead l)odI of a ne ‘.ni k ing infront 1)1 use ha) stark. !i : stistaii:td severe injuries w hicli apn’ lo hae been tausrcl I)’ assau1tiin . .fli ith stone. On the basis of i hr tic. nnplatnt. a t ase in (‘rime ‘ , 12 If ‘ Sankesh at PS C ill U) In ic ‘istc re’ a the nfft iie under S.c’ti in ?02 I PC’ ‘ ‘ Some unknovii Pt9 son and FIR can to be issued art “rdingl 4 ii) During the investigation, it was found that accused Nos. 1 to 3 namely. Dayanand Kallappa Shinge, Rehman @ Shanul Paul and Suresh Bhimuppa Goturi, committed murder of the said person who came to be identified as one Lagamanna of Akkiwata village and charge sheet was placed against them accordingly. Therefore, all the said Lhree accused came to be tried in the said Sessions case by the Trial Court. 4. On appreciation of the oral evidencu of •PWs1 to 22. the documents at Exs.P1 to P40 and M.Os.1 to 16 and after considering Ex.Dl, the statement of one of the prosecution witnesses marked for the accused, the Trial Court, b3 its impugned Judgment and Order though acc 1 uitied the accused Nos.2 and 3, of both the said ol’fences, convicted the accused No.1 (appellant herein’ for both the offences under Sections 302 and 201 IPC. Therefore, the appellant (AlJ has challenged the legality and correctness of the impugned judgment and order insofar as it relates to his conviction and sentence for the said offences. 3. We have heard the arguments of Sri Ashok R.Kalyanashetty, learned counsel for the appellant- accused and Sri V.M.Banakar, learned Addi. SPP. Perused the entire material found in the original records obtained from the Trial Court. 6. Sri. Ashok R.Kalyanashetty. learned counsel for the appellant-accused strongly contends that, since the entire case of the prosecution rests on circumstantial evidence, though the circumstance that the deceased was taken from his house by accused Nos.l and 3 at about 8.OOam on 11 / 1/2009 is held established. fun her circumstances that he was further seen in the company of all the said accused Nos. I to 3 at about rw 6 by PW3 at abut 9.Oopni and In PW? it about .00 pm on the same day i.e. on 11 1 2009 ha not been proved, thc Trial Court coin icteci he appellant accused lot the said offences intl therefore, the impugned Judgment and Orde’ of con’ iction of Al cannot be sustained in law lie also contends that the Trial Court committed ci :or in holding that the circumstance that the €.ic e’iscd Nos. 1 and 3 took the accused from his hous at 8.OOpm on 11 1/2009 as deposed by P\k s. I £ i. J () is established by the prosecution. lie fin 1er contends that the Trial Court has erroi eu asl belieed the recocries of MO Nos 11 and 12 the pant and shirt said to ha e been produc et by accused No. I and cons icted him on that r :ncl also despite thet e beinv no c iclenc e th t tIn pant ai’l shirt wc ic stained w ith blood and li a’C the impugned Judament mcl Order of CornicLi ‘ of —E. 7 Al is liable to be set aside and he deserves to be acquitted of both the offences. 7. Per contra. learned Additional SPP. strongly contends that the circumstance of motive i.e. strained relationship between the appellant (accused No.1) and the deceased by reason of illicit intimacy between PW6 Smt. Gowrawwa, the wife of deceased Lagamanna and accused No. 1, and loan transaction of accused No. I with the deceased: the circumstance that the deceased was taken by accused Nos.l and 3 at about 8.00 pm on 11/1/2009 from his house have been proved through the evidence of PW4 and PW9 and therefore, the Trial Court. has rightly held that in the absence of any explanation by the accused as to what happened after the deceased was taken from his house by accused Nos. I and 3. accused No. I shall be held guilty of the said offence. He further contends that the tans that the dead b dv as seen on the mornine f 1 3 1 2004 h P 1. and that the death of the deceased as homit idctl arc not in dispute and therefore convictic,. of appellant accused No.1 is quite justified md hence, the present appeal cieser es to be dismissed as being devoid of merits. 8. The fact that PW I complainant found ‘he dead bod 3 of a male person 13 ing infront of ‘ne ha stack in his land on 13/1/2009 at a) )ut Q.OOam anti that the said both came I identified as that of the deceased Lagamann i .he ii usband of PW6 SnIL. Gout a a L;tuani . Kadalagi of Akkiat village laluk Hukkri n in dispute. It is also not in dispute that ‘tie C In of the iec eased as homic idal as a result I 1 he injuries sustained in hutt due to CLSSUUIL itli stone. Besides this. the fact’im of homicidal i tth I) of the deceased has been proved b the irosecui ion through Es. P31 post mortem examination report issued by PWI9 medical officer who conducted post mortem examination on the dead body of the deceased on 13/1/2009. This document and also the oral evidence of PW19 have remained totally unchallenged. Therefore, the circumstance that the death of the deceased was homicidal during the period from 9.OOpm on 11/1/2009 and 9.0Oan on 13/1/2009 has been established by the prosecut ion beyond reasonable doubt. 9. Motive alleged against the accused No. I to commit murder of the deceased is that he had illicit intimacy with PV6 Smt. Gouravva. the wife of the deceased Lagamanna and therefore. 1.agam;.!ma had grudge against the accused. It is also furLLier case of the prosecution that accused No.1 had given a loan of ?15,000/- to the deceased and there was dispute hct\\eon ilio n i(SpvCt Ut Nw loan timnsacticn and thU said dispute cie LlopcCl into illwIfl gainst each utiicr, flHSo aUtS arc proved through the ovidencc ol P\Vb, who is nune other than the wife ol tho deceased, \Vith whoi ki is allegod to have had ilhcii intimacy. Thorutore, the Trial Court has rightly recorded its finding that motive alleged against the accused has been proved by the prosecution bevon d reason able doubt I). It s the soccilic cast- 01 the proscccwun that thu neceased was takun ov accused \os. I nd 3 from 115 110 Li SC at abo Lit 8OOpm on 1 1/ 1 / 2009. This fact is spoken to by both by PW4 Durahuldi Satappa kadalagi. the brothur of the deceascri und P W P S in t Par a vv S a t a p p a S h c t t c a a va 11 C mother of the deceased. Since these PVvs -t iNI a were the natural witnesses, whose presence in the house of the deceased cOLlidi not be doubted hc II Trial Court has recorded its finding that the fact that the deceased was taken by accused Nos. 1 and 3 from his house at about 8.OOpm on 11/1/2009 is established by the prosecution beyond reasonable doubt. But, PW8 Mahaveer Dundappa Kalappagul of the same village to which the deceased belonged. has been examined by the prosecution to prove that this witness had been engaged in the sale of brandy bottles by purchasing them from Sankeshwar and that on 11 / 1/2009 at about 8.OOpm the deceased was found sitting in the house of this I’WS. consuming liquor. However, this witness has turned hostile to the prosecution. It is suggested to him by the learned Public Prosecutor that he has stated before 1.0. as per Ex.Pl 2 to the effect that on 11 / 1/2009 at about 8.OOpm clcuvased Lagamanna came to the house of this PWH. took from him liquor and sat in his house consuming liquor and that, in the meantime, accused Nos.2 I’ and 3 came there and took with them some lic aor bottles and also the deceased Lagainanna. I his case of the prosecution as suggc-steci to I % is totall3 inconsistent ith its case as depost I b3 PW s. 4 and 9 that the deceased cLS taken frc,,’ his house at 8.O0pin on that dai in accused Nos I ‘md 3. Therefore, c’ are of the opinion that ‘Lii ‘np the case of the pros ittion as suggested to 1’ 8, the Trial Court erroneously recorded its fizicting that the prosecution has pros cci. be ond rea.,ui 1 lilt, doubt the circ umstance that accused \os. 1 1 3 took tht deceased from his house at about F U mn on 11 / 1 2009. as because this accused to mkl hot be present in his house and also in the hon of P\ 8 Maha er Dunclappa Kalappaol. at th . t’ time i.e at ‘ibout S O0pin - 1 1 1 2W “ I ‘ii’s case of the prosecution that accused Nos 2 ai I 3 took the dtceascd from the house of PW 8 ttn 8.00 pin on ii I 200Q. in the absence of I t: icr 1 .3 evidence that accused No.1 joined accused Nos.3 and 3 and the deceased thereafter, conviction of accused No.1 (appellant herein) only while acquitting accused Nos.2 and 3 cannot be sustained. 11. Further case of the prosecution is that the deceased was seen in the company of all the accused Nos. 1 to 3 at about 9.OOpm. on 11/1/2009 by PW3 Ravindra Siddappa Alur of the said village near Mallikarjun Temple in thc skiid village and that thereafter, by about 10.OOpm on the same clay, the deceased was seen in the company of accused Nos.1 to 3 by PW2 Babu Dundappa Hitni of the said village. Unfortunate to the prosecution. both these witnesses have turned hostile to it and have not supported its case either as to the said fact or as to any other fact. Both of them have denied the suggestions put to them that 14 they stated before 1.0. rcspectiveI. as per Exs.P4 and P6 the substances of which is that PV2 Babu Dundappa [-litni saw the deceased in the company of accused Nos.1 to 3 at about 1O.OOpm on 11/1/2009 near the land of PW1 and, PW3 saw the deceased in the company of accused Nos. 1 to 3 and about 9.OOpm on the same day near Mallikarjun Temple in the village. These two circumstances, which are relevant to the prosecution case are not proved by it. The Trial Court has observed in its judgment that these tvo circumstances are minor ones and therefore, failure to prove the same deserves tobe ignored. It is well settled that in a case which rests on circumstantial evidence, all the relevant circumstances should be proved by the prosecution beyond reasonable doubt and all the proved circumstances should form a complete chain pointing at the guilt of the accused. Therefore. we are of the opinion that the Trial 15 I Court has committed serious error in observing that these two circumstances are igiiorable as being minor ones. 12. Further case of the prosecution is that accused No. 1 (appellant herein) came to he arrcsted by PWI8 1.0. on 14/1/2009 and that during interrogation he volunteered as per Ex.P27 and, pursuant thereto, he led the 1.0. and also two Panchas viz., PWI I and PWI2 stating thai he would show them the place where dead body of the deceased was concealed. Ex.P.17 is the Panchanama drawn b5 Pk’ 18 1.0. in respect of the discovery of the place where dead body was said to had been concealed by the accused. Ex.P1 -I is another Panchanama drawn by the very same 1.0. on 13/1/2009 i.e. on the day previous to the arrest of accused No. 1. I t’ 13. On careful reading of the contents of Ex.P14 and Ex.Pl7. Panchanamas it could be seen that both of them pertain to the same place. This fact is observed by the Trial Court also at para No.27 of the impugned judgment. Thus, it is clear that the place where the dead body is said to had been concealed by the appellant-accused and the place vhere the dead body vas found by PW I on 13/1/2009 were same and the said place was known to all, including PW 1 . the 1.0.. and the said panchas, before the appellant-accused could be arrested. Therefore, no value could be attached to Ex.P17 panchanama to hold that the place where the dead body was concealed by the accused was discovered pursuant to the disclosure statement (Ex.P27) of the accused as claimed h he prosecution. Il I 14. It is the case of the prosecution that MO Nos.1 I and 12 respectiveI. the pant and shirt. were produced by accused No.1 pursuant to his disclosure statement and the same came to be seized by PWI8 1.0. under a Panchanama in thc presence of Panchas, namely PWs1 1 and 12. Both the said Panchas have supported the prosecution. Therefore, the Trial Court has held that the said recovery of M.O.Nos.1 1 and 12 is proved by the prosecution. It is pertinent to note that the accused is said to have produced both M.Os. II and 12 from his house. It is not the case of the prosecution that they were concealed by the accused at some place which could not be noticed by any other person. It would be quite unnatural for any accused to bring the incriminating articles like his blood stained clothes to his residence her committing the crime at some far off place and keep them in his residence. Further, Ex.P.35 FSL report I8 ,1 discloses that item Nos. 1 0 to 1 5 shown therein namely, 3 pants and 3 shirts said to be belonging to each of accused Nos.l to 3 were not stained with blood. This being so. even if recovery of these clothes is held proved, they cannot be said to be incriminating ones as against the accused No. 1 herein so as to connect him with the death of the deceased. 1 5. In view of our forgoing discussion. we are cit the opinion that the prosecution has not been able to prove beyond reasonable doubt, the circumstances that the deceased was seen in the company of all or any of A to A3 between 8.OOpm to 10.OOpm on 11/1/2009 and also the circumstance of this Accused No.1 shoving the pl:ice of concealment of the dead body. Besides this. M.O.Nos. I and 12, clothes of this accused, do not in any way connect with the murder of the deceased. Therefore, the con’ iction of accused No.1 cannot be sustained in law. Further, the 1’) facts and circumstances allc eed against all ac t secl Nos. I to 3 are same. This N 1119 SC) the rriil C .rt is not justified in convictina accused No. I , dc ie acquitting accused Nos.2 and .3 giving them bci ‘fit of doubt. 16. For the reasons aforesaid, the prt sent appeal filed by accused No.1 in s.c. No.188’ J09 on the file tf the learned E’i esiding Officc’i ist Track Court. Hukken. is hereb al1oed ihe mi pugned J ttdgmeiit and Order dated 08/00 . • I U. insofar as it relates to the cc)n ictioti • t s appellant jaccused No. 1) IC)! the olfences u . icr Section 302 and 201 of [PC and sentencing In to under go imprisonment br life for the o1’ C under Section 302 1 P( and to under go Ri I period of 5 years 101 the oifnre under Secti h I. IPC and to pay (inc. of 5U.000 anti 10.0 ) respectiel for the said olfences is hereby set S C) 0 •-D 6 C) 0:. 6— 0 0 0 •4- ..E. + 6) o C) — 46 C) — C) 0- •6 C) 0 r ;>.... C) C) C) (U C) - 0 C) - C) — (U C) — U c - — C) C) o o./ C) t L C) !D E (U C) C) C) (U C) (U -D .C) C) 0 F— C) (J) C) > C) (ID C)