IN THE HIGH COURT OF KARNATAKA CIRCUIT BENCH AT DHARWAD. DATED THIS THE 3QTH DAY OF MARCH 2011 PRESENT THE HON’BLE MR.JUSTICE SUBHASH B. ADI AND THE HON’BLE MR. JUSTICE N. ANANDA CRL.A.No.2325/2005 (A) BETWEEN: State of Karnataka By P.S.1. Kundgol Police Station. Appellant (By Sri. \/.M.Banakar, Addi. SPP) AND: 1. Srikantava Channabasavva Laxmeshwarmath, 2, Ningappa Neelappa Gouli, 3. Krishnappa Totappa Kambali, All are r/o Goudageri. Kundgol Taluk, Dharwad District. Respon cien ts (By Sri. Mahantesh S. Hosmath, Adv. for R 1: Sri. N.P,Vivek Mehta, Adv. for R-2; and Sri. Narasingasa P. Singri, Adv. for R3) This Cr1. A. is filed under Section 378(1) and (3) Cr.P.C. by the State PP. praying to grant leave to file an appeal against the Judgment dated 11.08.2005 passed by the I Addi. Sessions Judge, Dharwad, sitting at Hubli, in S.C. No.10/2005, acquitting the respondentsaccused for the offences punishable under Sections 302, 201 nw 34 of IPC. This Appeal coming on for final hearing this day, Subhash B. Adi, J. delivered the following: JUDGMENT This is an Appeal by the State against the Judgment of acquittal dated 11.08.2005 passed in S,C.No. 10/2005 on the file of the Addi. Sessions Judge, Dharwad, sitting at Hubli, 2. Accused No. I Snikantavva Channabasavva Laxmeshwarmath, Accused No.2 Ningappa Neelappa Gouli and Accused No,3 Krishnappa Totappa Kambali were tried for the offence punishable under Sections 302, 201 r/w 34 of Indian Penal Code. 3 S 3. The case of the prosecution is that P.W. 1- Shivalingappa Adiveppa Godi is the elder brother and P.W. 19- Smt. Renavva is the wife of deceased Ningappa Godi. 4. Accused No.1- Srikantayya one year prior to the incident in order to develop illegai intimacy with P.W. 19, used to contact and to try to talk with her. Deceased Ningappa the husband of P.W. 19 had opposed the conduct of Accused No.1 and had warned the accused. P.W. 19 was none other than the daughter of elder sister of deceased Ningappa. Deceased Ningappa was suspecting the fidelity of P.W. 19. P.W. 19 was staying with her parents as her father was not well. 5. On 19.08.2004 at about 8.00 p.m. deceased after having his meals, as usual went to the panchayath katie to sleep. However, he did not return till 6.00 a.m. on next day i.e., 20.08.2004. P.W. 1 sent his son Basavaraj to panchayath katie to fmd out as to why deceased has not returned. Basavaraj-son of P.W. 1 returned and informed that deceased 4 was not there at panchavath katte. P.W. 1 searched for the deceased in the village. P.W,6 and P,W.9 informed that deceased had gone along with Accused 1 to 3 towards dam to share chicken meals around 8.30 p.m. on 19.08.2004, and at about 11.00 p.m. when P.W.6 had gone to attend the nature call, he saw only Accused Nos. 1 to 3 returning. P.W, 1 though made enquiry, could not find the deceased. He filed missing complaint before Kundagol Police on 21.08.2004 as per Ex,P,2, 6. On 22,08.2004, P.W.l along with his relative Tippanna went in search of deceased and they found the dead body of Ningappa floating in a well situated in the land of one Thotappa Kambli. He identified the body as that of Ningappa and went to the Police Station and informed the same. The police on information, went to the spot along with P.W.1. P.W.l gave written complaint as per Ex.P.l. Thesame was sent through P.C.470. On registration, FIR was sent to jurisdictional Magistrate Photographer was summoned to 5 the spot. He took the photographs of the floating dead body in the well as per ExP,23 7 RW23 Hanumanthappa, Police Inspector, Kundgol, got removed the dead body of the deceased with the help of PWA2, CWA9 and C.W21. P.W23 secured two panchas PW2 and CW3 and conducted inquest mahazar as per ExP5, conducted spot mahazar as per ExP.3, and recorded the statement of PW5, Seized the blood stained earth under ExP6 and seized MO. 2 to 6. MO 7 ash and MO8 bulb with wire were also seized. PW23 sent the body of the deceased to PHC Gudageri for postmortezm On 25O&2OO4, he received the information that the accused were seen near Kalas railway station. He reached railway station with his staff and arrested the accused I to 3. He recorded the voluntary statements of Accused Nos I to 3, as per ExP36, 37 and 38. On the hais of the voluntary statement and at the instance of Accused No.1, MO9 stone and MO II Knife were seized under Ex,P.7. At the instance of Accused No2, 6 MO,10-stone was seized under Ex.P,8, At the instance of Accused No.3. M.O. 12-knife was seized under Ex.P.9. 8. RW.23 sent police constable to the house of Accused Nos. 1 to 3 to get their clothes. Accused No. 1 undressed M.O.13- blood stained T-shirt, M.O.14- pant and M.O,15- banivan which were seized under Ex,P,i0. Accused No.2 undressed blood stained shirt-M.O.16. blood stained towel M.O. 17 same were seized under Ex,P. 11. Accused No.3 handed over M.O.18- blood stained T-shirt and M.O.l9- blood stained lungi and were seized under Ex.P.12. He received the Medical Officer opinion on 07.10.2004. After completing the investigation. P.W.23 filed the charge sheet. 9. The learned Sessions Judge after securing the presence of Accused, framed the following charges for the offence punishable under Sections 302. 201 r/w 34 IPC. “That you the above named accused, on 19.08.2004 at about 10.00 p.m. near the meter board of the bore-well situated in the agricultural land bearing R,S,No,128 belonging to C.W.26 7 Neelappa Hanamanthappa Gali, within the limits of Kundgol Police Station, did commit murder by intentionally causing the death of deceased Ningappa, S/o Adiveppa Godi, the brother of the complainant Shivalingappa Godi, by assaulting deceased with the stones and stabbing with the knife all over his body and thereby committed an offence punishable under Section 302 r/w 34 of I.PC and within my cognizance. You the above named accused on the aforesaid date, did commit the murder of Ningappa, S/o Adiveppa Godi by assaulting him with the stones and stabbing with the knife all over his body and having reason to believe that certain offence has been committed, did cause certain evidence of the said offence to disappear and with the intention of screening yourselves from legal punishment, you all the accused carried the dead body of the deceased Ningappa and thrown the same into the well situated in the land of accused no.3 and thereby committed an offence punishable under Section 201 r/w 34 of IPC and within mT cognizance.” 8 AU the accused pleaded not guilty and claimed to be tried 10. The prosecution examined RW. I to RW25, marked ExP. I to Ex.R4 1 and produced MO. I to MO. 19. The defence got marked ExD. I to ExD5. ExD. I is marked from the portion of statement in missing complaint marked as EicP,2. ExD2 is marked from another portion of ExP2. Exi13 is portion of statement of PW5. ExD.4 is the portion of statement of Hanamantgouda. ExD5 is the portion of statement of Lokappa. 11. The Trial Court on appreciation of evidence, found that the prosecution has failed to prove the charge against the accused beyond reasonable doubt, and acquitted all the accused. As against the said judgment of acquittal, the State has filed this Appeal. 12. We heard the Addi. SPP for the appellant and the learned counsel for the respondents/accused. 9 13. P.W. 1 -Shivalingappa is the complainant under Ex.P. 1 and Ex.P.2. P.W. 19 is the wife of the deceased. P.W. 1 is not an eye witness to the incident. P.W. 1 and P.W. 19 states the motive of the Accused No.1 to commit the murder of the deceased. 14. P.W. 1 in his evidence has stated that, on 19.08.2004 at 8.00 p.m. the deceased had gone to panchayath katte to sleep. Since the deceased did not return home even after 6.00 a.m. on 20.08.2004, he asked C.W.9-his son to find out as to why deceased has not returned. C.W.9 came back with blanket and informed that the deceased was not seen on the katte of panchayath office. P.W. 1 enquired with C.W. 13 and C.W. 14 i.e., P.W.6 and P.W.9. They informed that Accused Nos. 2 and 3 took the deceased and Accused No.1 followed them and that they had left the place at 8.00 p.m. on 19.08.2004. When P.W.6 had gone to attend the nature call at 11.00 p.m., he saw only Accused Nos. 1 to 3 returning. P.W.6 asked the accused as to the deceased, but they went 10 without responding to him. P.W. 1 has further stated that on 2 1.08.2004 he went to Kundagol Police Station and lodged complaint as per Ex.P.2 and on 22.08.2004 when he went in search of the deceased, he found the dead body of the deceased in the well situated in the land at Thotappa Kambali. He informed the police at 12 noon on 22.08.2004. The police with the assistance of C.W. 19 to 21 removed the dead body of the deceasedh He found injuries on the body of the deceased Ningappa. The police conducted inquest panchanama and spot panchanama and sent the body to postmortem. 15. In the cross examination P.W. 1 has admitted that he had not seen Accused No.1 with P.W. 19-wife of the deceased nor he has filed any complaint against Accused No.1. He has also admitted that till filing of second complaint on 22.08.2004, all the accused persons were in the village and they left the village when the complaint was lodged. He also admits that P.W.5-Irappa met him after the lodging of II complaint as per Ex.P. 1. P.W.5 is the sole eye witness to the incident in this case. 16. P.W. 19-Renavva wife of the deceased has also stated about the motive. She has stated that Accused No.1 used to address her in singular language while she was proceeding towards field or fetching water. Accused No.1 used to behave indecently with her with an intention to develop intimacy. She had also told him not to talk to her. One day Accused No.1 stopped her, at that time, deceased Ningappa was coming behind and had observed the conduct of Accused No.1 and he got angry. Thereafter, relationship between Accused No.1 and her deceased husband had become stained. She has been living for the last six months prior to the date of incident in her parents’ house as her father was not keeping good health. On 2 1.08.2004, her aunt Neelagangavva had come to Goudageri and informed thatj the P.W1 was searching the deceased. P.W. 19 came to know of the death of her husband only on 22.08.2004. Except stating that Accused No. 1 was trying to develop illicit relationship with her and her husband-deceased Ningappa had warned Accused No.1, nothing further is stated. Evidence of P.W. 1 and P.W. 19 only relates to the motive of Accused No, 1 of developing illicit relationship with P.W.19. 17. According to the prosecution case P.W.6 and P.W.9 are the last seen witnesses who had last seen the deceased in the company of the accused. Ex.P.2 is the complaint given by P.W.1 on 21.08.2004 at 6.30 p.m. informing the missing of deceased, in the said complaint, P.W. 1 has referred to the name of P.W,6 informing him, that Accused Nos. 1 to 3 had arranged chicken meal and deceased had informed that he is going to have meal. There is no reference as regard to the motive of Accused No.1 or that Accused No.1 was trying to develop illicit relationship with P.W.19. Whereas, P.W.6 in his evidence has stated that Accused Nos. 2 and 3 came to the panchavath katte at 8.00 p.m. and asked the deceased to join for chicken meal in the land of Neelappa Godi. Deceased cm 13 went along with Accused Nos. 2 and 3 and Accused f’.o. 1 followed them after five minutes. At about 11.00 p.m. when P.W.6 had gone to attend nature call, he saw only Accused Nos. I to 3 returning towards village and he enquired as to why Ningappa has not returned. The accused went without responding to P.W.6. Next day at about 8.00 or 9.00 a.m. when he was near Agasi, P.W. 1 came and enquired about the deceased Ningappa and he informed that deceased had gone along with Accused to take chicken meal and stated that he does not know whether he had returned or not, In the cross examination, he has admitted that village tank is situated towards the darn road. Darn road and Kalasa road are running in different direction. On the date of incident, he \vent to answer the nature call towards Kalasa road. After attending the nature call, he went home and slept. The direction towards which he had gone to attend the nature call was opposite to the dam road. There was no possibility of P.W.6 seeing accused 1 to 3 returning at 11.00 p.m. on that day, P.W.9 another witness has stated that he has seen the 14 deceased in the company of the accused, in his evidence has stated that Accused Nos. 2 and 3 came to panchavath katte at about 8.00 p.m., they took the deceased Ningappa for the chicken meal. Deceased Ningappa told them that he had already taken meal. Even then, they took away Ningappa towards dam side. Accused No.3 was holding a hand bag. Two minutes later Accused No.2 also went towards the dam. P.W.6 and himself returned from the panchavath katte and went to their respective home. On the next day morning, at about 9.00 a.m. he went to Agasi. P.W. 1 came and enquired about his deceased brother. He informed that deceased had gone along with accused. P.W.6 informed him that at about 11.00 p.m. when he had gone to attend to the nature call, he saw only Accused Nos. 1 to 3 returning. In the cross examination, he has stated that village tank is situated by the side of Kalasa road. P.W.6 did not meet P.W.9 after answering nature call. There are residential houses at a distance of 50 to 60 feet from village panchavath office, 15 w 18. Though P.W.6 and P.W.9 have stated that P.W.6 had seen the accused returning and he had enquired about deceased Ningappa, Ex.P.2 complaint which was filed at 6.30 p.m. on 2 1.08.2004 after P.W. 1 met P.W.6 and P.W.9, does not refer with regard to Accused Nos. 1 to 3 returning and P.W.6 enquiring Accused Nos. 1 to 3 with regard to the deceased. P.W.6 has admitted that Kalasa road towards which he had gone to attend the nature call is opposite to dam road. The learned trial Judge while appreciating the evidence of P.W.6 and P.W.9, has doubted as to whether P.W.6 has seen accused 1 to 3 returning at 11.00 p.m. as he had gone to attend nature call in an opposite direction and disbelieved the evidence of P.W.6 seeing accused 1 to 3 coming back at 11.00 p.m. 19. P.W.5 is examined as eye witness to the incident. In his evidence, he has stated that at about 9.30 p.m. on 19.08.2004 he was returning towards village from his land to take meal and go back to the land to watch as the ground nut 16 e crop was standing in the land. Near the hut he heard some conversation. In order to ascertain the same, he proceeded towards the hut and found deceased in the company of Accused No.3. Deceased was lifting fire. Accused No.3 was standing by his side. Accused Nos. 1 and 2 came from back side of the hut holding stones. Accused No.1 assaulted the deceased Ningappa on his head with a big stone. As a result, deceased fell down on the ground. Accused No.2 assaulted the deceased on his face with stone. Accused No.3 stabbed the deceased near the private part of the deceased. Accused No.1 further stabbed the deceased on his neck, caught hold the legs of the deceased, lifted the body and carried towards dam. Electrical bulb was put in front of the hut. 20. P.W.5 after seeing the incident got frightened and came back to village and slept without taking meals. On the next day morning at 6.00 a.m., he left Gudigeri and went to Hubli and returned to the village only after three days after the date of incident. When he returned, it was 3.30 p.m. on I Cr 17 22.08.2004. Number of persons were assembled in the house of P.W. 1. Police were also present. He disclosed the incident to P.W.1. P.W.l asked him to disclose the same to the police. He went to Agasi and narrated the incident to the police. Police asked him to show the spot. He went in a jeep along with P.W.3 and C.W.5 and showed the hut where blood stained mud was found, Police seized the articles viz., bulb wire with holder, ash, half burnt sticks as M.O.4 to M.O.8 under Ex.P.6. Stone and knife were seized as M.O.9 and M.O. 10 and another big knife M.O. 11. He has further stated that accused were brought to village after five days after the incident and all accused were wearing blood stained clothes. 21. In the cross-examination, P.W.5 has stated that except himself, no other person in the village had grown the ground nut crop. He has further stated that he returned to his house after seeing the incident at 10.00 p.m., he did not disclose the incident to his wife also. He also admits that there is police station at Gudageri and Kundagol and to go to Hubli. he has 18 to go infront of the police station at Gudigeri, he has not informed the police at Gudigeri. He went to Hubli railway station on the date of the incident and spent night there only. He had purchased the railway ticket. He has also stated that he has not raised any hue and cry after witnessing the incident and that he did not made any efforts to tell the P.W. 1 or the villagers and take them to the spot. 22. From the evidence of P.W.5 it is clear that P.W.5 though alleges that he had witnessed the incident, has admitted that he left the village, went to Hubli and returned only after three days and he went to P.W, i’s house and informed the incident. He has come to the village only after case was registered against the accused and inquest and spot panchanama were conducted. Thereafter his statement is recorded by the Police. He has not produced any document such as revenue records to show that he owns the land and further to show that there was ground nut crop. The Trial Court has disbelieved the evidence of P.W.5 as eve witness, as he had ‘9 w not informed the incident to any one, not even to P.W. 1. He has admitted that to go to Hubli, he has to cross the police station. He gives the statement nearly three days after the incident. It is doubtful as to whether he owns land, whether there was ground nut crop in the land and whether he used to go to land to watch it. It appears that his statement is recorded by the police to create the evidence of having witnessed the incident. But the tenure of evidence of P.W.5 clearly shows that if he had seen the incident, even if he was frightened, he could not have kept quite. At least he could have informed P.W. 1 and police. When he had no hesitation to give statement before police on his return from Hubli, there was no reason to go to Hubli for three days and thereafter come back and give statement. The trial Court rightly disbelieved the evidence of P.W.5 on the ground that (1) he had no land, (2) that he had gone to land and (3) he has witnessed the incident. ‘0 w - 23. Except P.W.6 and P.W.9 who states that the deceased was last seen in the company of accused. P.W.6 evidence also did not support as to whether he saw accused only returning. Doctor-P.W. 18 who conducted the postmortem and issued report as per Ex.P.30 has stated that the injuries are ante mortem in nature and he has given opinion as per Ex.P.32. Body was in decomposed state and if the body is in highly decomposed state, cause of death could not be made out. However, he has opined that death was due to shock and haemorrhage due to the injuries to vital organ i.e., brain and injury to trachea and temporal vessels. In the evidence he has not stated the time of occurrence of death. Ex.P-30-postmortem report also does not disclose as to the time of death. Ex.P-2-missing complaint and the evidence of PW-6, PW-7 and PW-9 only state to the extent that deceased had gone to take chicken meal with the accused. Whether deceased has reached the place where the accused had prepared chicken meal and had I e 21 taken meal, there is no evidence Though ash, half burnt stick and blood stained mud are seized from the place of incident, no other material has been seized form the spot and seizure does not prove that the accused had prepared food. 24. Apart from this, PW-5 has stated, after 5 days, the police brought the accused to the village and accused were still wearing the blood stained clothes. PW- 1 in his evidence has stated that the accused were in the village from the date of the incident till he filed a complaint Le,, from 19/08/2004 to 22/08/2004. Even after 5 days, the accused were found wearing blood stained clothes and PW- 1 had seen the accused in the village between 19/08/2004 to 22/08/2004 and PW-6 and PW9 had informed him that the deceased had gone along with the accused. It looks unnatural as to whether the accused could have roamed around in the village wearing blood stained clothes and were arrested with the same clothes. And why PW 1 did not enquire with the accused when they were in the village. PW.23 has stated, he sent PC to the houses of accused Nos. I to 3 and the accused were undressed and their clothes were seized, The credibility of the evidence of these witnesses is doubtful. They are not reliable, The evidence of PW-5 looks artificial, unnatural and not reliable, as he had not even informed the incident to any one till the complaint is registered, till the police conducted inquest mahazar and spot panchanama. It also appears unnatural that the accused wearing the blood stained clothes for 5 days and with the said clothes they were roaming in the village. PW- 1 having known that the deceased was last seen in the company of the accused and having filed a missing complaint, could not have kept quite without even informing the police about the deceased last seen in the company of the accused. He had not made any allegation ‘7 23 in the missing complaint. No motive is alleged. Motive is only spoken in Ex.P- 1 which was filed on 22/08/2004. Considering the entire evidence, the trial Court found the evidence of P1W-i, PW-5, PW-6, PW-9 and PW 19, not credible and reliable. The trial Court on proper appreciation of evidence has acquitted the accused. Even on re-appreciation of the entire evidence, we also do not fmd any reason to interfere with the judgment of the trial Court. Accordingly, the appeal fails and the same is dismissed. Sd!- JUDGE Sd! JUDGE Mkc/Kmv