IN THE HIGH COURT OP KARNATAKA CIRCUIT BENCH AT DHARWAD DATED THIS THE 9th DAY OP DECEMBER 2011 PRESENT THE HON’BLE MR.JUSTJCE MOHAN SHANTANAGOUDAR AND THE HON’BLE MRJUSTICE RAVI MALIMATH CRIMINAL APPEAL No.2505/2011 State of Karnataka Through Ankola Police Station, Represented by Additional State Public Prosecutor Advocate General office. High Court Circuit Bench Unit Dharwad, APPELLANT [BY SRI. V.M. BANAKAR, ADDL. SPP I 1. Ganapath i. Nagappa @ Thakappa Naik, age 22 years, 0cc: centering work, R/o Beiarnbar, Ankola. 2. Bala Gopaikrishna S/c Vittal Naik. Ane 27 rear 0cc: centering work, R/o Belambar, Ankola, This criminal appeal is flied unde.r Section 378(1) and. 3i of Cr1 P seeemg th i t eae ppea1 ag Pm judgment and order of acquittal passed by the District :and Sessions Judge, Uttara Kannada, Karwar, in special Case NO39 / 2007 dated 05/08/2010 for the offcnces punishable under Section 302 and 201 read with Section 34 of IPC and U s 3t2\ of SC 1 POi ( t inc 1 Set 1 d t at1)Tea o judgment and order of acquittal passed by the Court below by allowing this CrLA, and convict and sentence the amused/respondents fbr the offences with which they have been charge sheeted in. accordance with law. This criminal appeal is corning on Ibr hearing this day. MOHAN SHANTANAGOUDAR J, delivered the following: JUDGMENT Questioning the judgment and order of acquittal, the State has preferred this appeal. The respondents/ accused were charged and tried for the offences punishable under Sections 302 a..nd 201 read with Section 34 of the ,lndian Penal Code and under Section 3(2)(v) of the Schedule Caste and Schedule TribelPrevention of Atrocitiesj t\t 1989. 2. The case of the pro sceu.tion in br.ief s that there was quarrel between the deceased,thrashant and ac.cused No. .1 four months prior to the date of the incident and the was settec among themselves amicabiv. On Oh /00 /731)7 at the box. from a snop and gove at the house. After giving match box, he went out of the house on 03/06/2007 at about 9.00 or 930 p.m and did not return to home during that night. On 04/06! 200i. PW came near the house of the complainant and told him about the quarrel between the deceased and accused No.1 near the Customs Office at 9.30 p.m. on the previous day i.e. on 03/06/2007. It was further informed by PW5 that on the previous day, accused No, 1 assaulted Prashatith on his head. When the complainant was searching for his brother, he received the news that a dead body was found near railway track Hosgadde. After coming to know that the dead body was brought to the Government Hospital by poitce, the complainant went to the mortuary and found a dead body in a mutilated condition. He identified the dead body as that of Prashanth. The complainant is none other than the eider brother of the deceased. A complaint, came to be lodged as per ExPi by PW 1 which came to be registered in Ankola police station in Crime No.149/2007. The police after investigation laid the charge sheet. n. f3 eses rvec cf r’ :4: material objects. Two portions of the statements of the prosec.uti.on witnesses are marked t.t ExsJ. 1 a.nd D2 by the defence. The trial Court, on evaluation of the matertal on record and after hearing, acquitted the accused on the ground that the prosecution has not proved its case beyond reasonable doubt inasmuch as the chain of circumstances is not completely proved. 4. Sri. Banakar, learned Additional State Public Prosecution and Sri. Yadrami learned advocate appearing on behalf of the respondent have taken us through the material on record and argued in support of their respective case. 5. Sri. Banakar, learned Addi. SPP submits that the cjrcumstances relied upon by the rosecutlon are proved and that such proved circu.mstr.nces would lead to the guilt of the accused, ccording to hlm, the reasons assigned and the conclusion arrivect at be the Court be.low are not uroner an . correct. 6. The case rests on circumstantial evidei cc. PW I is the brother of the ciprpznwd who lc itted the comriaint as per Ex.P 1. He does not know personally about the quarrel between accused No. I and the deceased and about happening of the ir.cident. PWs2 and 3witnesses for inquest mahazar and the mahazar relating to seizure of cIothes-Exs.P3 and P4 respectively, have turned hostile. PW4 is the mahazar witness for scene of offence panchanammExP-5. PW5 was supposed to speak about the quarrel between accused No.1 and the deceased near Customs Office on 03/06/2007 at about TOO pm. but he has turned hostile, PW6 is an engineer who prepared the sketch of scene of offence as per Ex,P7. PW7 is the doctor who conducted postmortem examination. Postmortem report is at Ex.P8. PWth is the mahazar witnesses for inquest panchanarnathxP3. PWs,9 and 10 are the. mahazar witness fbr scene of offence panc.hanama ExP 11 PWs. 11 tol4 are the witnesses who allegedly saw the qu.arrel between accused No.1 and the deceased at about 9 00 ram. on U. / u6, a’ju / (Jut Ot ttiefli i-PA a Ii tw - to moo hostile. PW- 15 is the sister of the deceased. She has deposed that s 0 e saw the 1 raccmed gping wit.h Or cused Nc. 2 on 0306/2007 at about 830 am. 8W— 16 saw both the accused going together on 04/06/ 20t,)7 a.t about. 1.1.5 a ,m.. :6: PW-17 is the track man of railway Department who gave report to the concerned authorities about the dead body lying on rails. PW- 18- Tahsildar issued caste certificates of the as per Exs.P-2 and 15. Pws.lg, 20, and 21 are the police constables who have participated in the investigation at different levels. PW-22 is the police officer who filed charge sheet after completion of the investigation. PW-23 is the mahazar witness for seizure of the clothes of the deceased as per Ex.P-4. PW-24 is the owner of the bar and restaurant wherein the accused and the deceased consumed drinks in the night of 03/06/2007. He has turned hostile. PW-25 is the police officer who registered the complaint and investigated into the crime in part. 7. According to the learned Additional State Public Prosecutor, the following circumstances are found from the prosecution evidence: L Quwvel between accused No.1 and the deceased ensued at about 9.00 p. in. on the previous day to the incident Le. on 03/06/2007 in the presence of accused No.2 and Arun(PW-5). The said circumstance is spoken to by PWs.5 and 14. II. The last seen circumstance is spoken to by PW15, PVv15 has deposed that the accused caine to the house of the deceased arid called him, Thereafter, the decE:.ased went along with accused 316,2 during the night on 03/ 06/2007. III. Accused Nos. 1 and 2 were seen together at 1.15 am. on 04/06/2007. The said circumstance is spoken to by PW 16. Based on these 3 circumstances, the prosecutor contends that the accused is liable to be convicted for the offence punishable under Section 302 of the Indian Penal Code inasmuch as the above circumstances are proved by the prosecution 8 As atbrementioned, the only motive aaanst accused No. I is the quarrel that took place about 4 months prior to the date o the incident with regard to petty matter relatma to cricket match. it nas aiso come on record. tnat accused No. I and the dcccased resolved the dispute andka.)v on the .str Therraflcr, there was no curcrel between the two. However, the first circumstance argued the Proiiecuwn as i oct/coed sum’s. is that the: :8: ensued between accused No.1 and the deceased on the previous date of the incident at about 9.00 p.m. near custom’s office in the presence of accused No.2 and PW-5. The said circumstance is spoken to by PWs.5 and 14. PW-5- a student though has supported the prosecution to certain extent, has given a go-bye to his statement made before the police during the course of investigation subsequently. According to PW-5, he saw the deceased and accused No.1 quarreling with each other and the said quarrel was pacified by PWs.5 and 12. He does not speak about the presence of PW-14. However, he has specifically deposed that the has not seen hitting the deceased on the head. He has aiso not seen accused No.1 and the deceased grappling with each other and fell down on the ground. He further specifically deposes that he has not seen the incident later. However, in the cross-examination by the defence, he is treated hostile by the prosecution. In the cross examination by the defence, PW-5 admits that his house and the house of the deceased are adjoining each other. He further admits that the younger brother of the deceased and mother of the deceased are mentally ill; the deceased also behaves as a mentally retarded patient; the deceased used to drink liquor; he VS further admits that the deceased could not know as to what he is doing during the influence of alcohol. PW5 dearly admits that the people were suspecting the hand of PW5 also in the death of the deceased. 0. From the aforementioned material on record, it is clear that all was not well with the deceased. He was a drunkard, Whenever, he consumed liquor, he did not know what is right and what is wrong inasmuch as he was not knowing about his actual doing while he was drinking. The deceased also used to behave as a mentally retarded person. Thus, the evidence of PW5 is of no help to the prosecution, on the cortrarv it helps the defence. 10. The eviderce. of PW 14 with regard to thu first circun stance also will not help tire ca.se of the prosecution. PW14 was studying PUG at Ankoic during the relevant period. Thuugh in the examinationUnci.ief he has c..eposed that he has seen tire deceased and accused No. I cuareiling with each other s.t about 930 prn. on 03/06/2007, his. is shattered duriiw the course cross esram.i.nation. 4p also ad,mi.ts in his examination in chief that 7 :10: the quarrel was pacified by Arun and Prakash. PW- 14 has deposed that PW-5 also pacified the quarrel between accused No.1 and the deceased. The said fact is not spoken to by PW-5 himself. According to PW-5, the quarrel was pacified by himself and PW-12 Ajay. As aforementioned PW-5 as weil as PW-12 have turned hostile. Moreover the presence of PW-14 is not spoken to by PW-5. In the cross-examination of PW-14, he admits that once he was admitted to KUE Hospital as he had taken sleeping pills. He further admits that he was disgusted by the words used by his family members in relation to drinking habits. He further admits that he went to police station in the matter of quarrel with regard to a girl by name Bhandari. 11. For the aforementioned reasons, the trial Court did not find it safe Co rely upon the evidence of PW-14 and we so not find any ground to hold that such reasons assigned by the Court below are erroneous. On the other hand, in our considered opinion, PWs.5 and 14 are unreliable and their evidence is not safe to rely upon. vs :11: 12. The circumstance of last seen as spoken to by PW-15 is that accused No.2 came to the house of the deceased and called her brother standing outside. After hearing such sound, PW-15 came out of the house and thereafter she informed the deceased that accused No.2 was calling, thereafter, the deceased accompanied accused No.2 on 03/06/2007. PW-15 is none other than the sister of the deceased. Her evidence is rightly not believed by the Court below inasmuch as her evidence is full of improvements. In the cross-examination, she has admitted that she has not stated before the police about accused No.2 calling her brother and herself telling her brother about the same. She admits that she is saying so for the first time before the Court. She further admits that he has not stated in her statement before the police as per Ex.D-2. Since the fact of accused coming to the house and calling the deceased Prashant on that night is being spoken to by PW-5 for the first time before the Court, no evidentiary value can be attached to the evidence of PW-15. If it is disbelieved on that score, the second circumstance relied upon by the prosecution also fails. 12 13. The 3 circumstance of the prosecution is that accused Nos. 1 and 2 were seen together at 1.15 am. on 04/06/2007. Relying on the evidence of PWi6 it is contended by Sri, Banakar, learned Additional SPP that accused Nos. 1 and 2 came back together from scene of offence after commission of the murder. The said contention cannot be accepted. The statement of PW-16 is recorded by the police nearly after about one month after the incident. PW16 admits that he went to the scene of offence on 04/06/2007 itself along with the family members of the deceased. He was all through present in the house. If PW—16 had really seen accused Nos.1 and 2 together at about 1.15 a,m . on 04/06/2007, he would not have kept quite without informing the sat. e to the family members of the deceased and to the police for about one month. Even otherwise, the explanation given by PW 16 that he was waiting for an auto rcksriaw near in to boa make believe fact. Be that as it may. Since the version of PW 16 is recorded by the police after one month and as no reasons are fort.hcorning f r000rdung the statement 01 P7th 16 belatedly, ifl t .±S S 0, ‘ r’- Hence, the 3rd circumstance relied on by the prosecution also fails. 14, PW24 was supposed to speak about consumption of liquor by accused Nos. 1 and 2 on 03/06/2007. He has turned hostile. 15. It is by now well settled that where a case rests squarely on circumstantial evidence, the inference of guilt can he justified only when all the incriminating facts and circumstances are found to be incompatible with the innocence of the accused or the guilt of any other person. The circumstances from which an inference as to the guilt of the accused is drawn have to be proved beyond reasonable doubt and have to be shown to be closely connected with the principal fact. sought to he inferred from those circumstances where the case depends upon the conclusion drawn from circi.unsta.nces t.he- cumulnth.ie el/bc t. of the circr.i.rnstances must be such as to negatwe the innocence of the accused and bring the offences home beyond any reasonable doubt. 14 16. We find that the only inference that can be drawn from the material on record is that the prosecution has utterly failed to prove its case against the ac.cu.sed. 1 7. Since none of the circumstances relied or’ by the prosecution are proved, the trial Court is justified in acquitting the accused. Thus, even on remppreciation of the material on record, we do not find any ground to interfere with the impugned judgment and order of acquittal. The appeal fails. Dismissed. Sci/ TTTTThr 1 T7 j %u ‘hi 7 3UDGE kmv