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2016 DIGILAW 247 (KAR)

State of Karnataka v. T. A. Shanthakumari

2016-03-09

MOHAN M.SHANTANAGOUDAR, R.B.BUDIHAL

body2016
JUDGMENT : Mohan M. Shantana Goudar, J. 1. The judgment and order of acquittal dated 31.7.2010 passed by the II Additional Sessions Judge, Tumkur in SC. No. 170/2007 is appealed against by the State. 2. Case of the prosecution in brief is that the deceased Lakshminarayan Chowdary had illicit relationship with accused No. 1; though PW.3 (wife of the deceased) and her relatives advised both the deceased as well as accused No. 1 to stop such illicit relationship, they did not heed to their advice and they continued such relationship; accused No. 1 who was earlier working in Madhugiri shifted her residence to Tumkur inasmuch as the deceased got a house for her at Tumkur; the deceased used to live with both PW.3 as well as accused No. 1 in their respective houses; whenever PW.3 used to advise the deceased to stop the said illicit relationship with accused No. 1, he used to stop coming to the house of PW.3 and used to stay with accused No. 1 in her house; about 4 to 5 months prior to the incident in question, the deceased had suspected that accused No. 1 had generated a new illicit relationship with accused No. 5 and in that regard he used to quarrel with accused No. 1; hence accused No. 1 and accused No. 5 together had a plan to do away with the life of the deceased; they had hired service of accused Nos. 2, 3 and 4 for commission of the murder of the deceased; accused No. 6 is the son of accused No. 1. It is further case of the prosecution that at about 8.30 p.m. on 23.5.2007, the deceased came to the house of accused No. 1 after purchasing a bottle of liquor; after consuming the liquor when the deceased had slept in the bedroom of house of accused No. 1 under the influence of alcohol, accused No. 1 called accused Nos. 2, 3 and 4 who were waiting outside her house; accused Nos. 2, 3 and 4 came inside the house of accused No1 and strangulated the deceased by using nylon rope (MO. No. 1); thereafter accused No. 1 sought for the help of accused No. 5 to shift the dead body to a different place; accordingly, accused No. 5 came in his Fiat car (MO. 2, 3 and 4 came inside the house of accused No1 and strangulated the deceased by using nylon rope (MO. No. 1); thereafter accused No. 1 sought for the help of accused No. 5 to shift the dead body to a different place; accordingly, accused No. 5 came in his Fiat car (MO. No. 11) to the house of accused No. 1 and all the accused shifted the dead body from the house of accused No. 1 to railway track near Mallasandra, Gubbi Taluk; they laid the dead body on the railway track on which the train passed after sometime and consequently the body of the deceased was fragmented into pieces. 3. Though the deceased was unheard of from 23.5.2007, no information was lodged by the family members of the deceased till 29.5.2007 on which day PW.3 being the wife of the deceased lodged the missing complaint in New Extension Police Station, Tumkur which came to be registered in Crime No. 85/2007 by the Sub-Inspector of Police (PW.22); in the meanwhile, i.e., on 24.5.2007, parts of the body of the deceased were found near railway track by Railway Police; CW.20 on seeing the pieces of dead body, informed the same to Tumkur Rural Railway Police on 24.5.2007, which came to be registered in UDR. No. 80/300-400; thereafter inquest panchanama was drawn as per Ex. P27 and postmortem examination was conducted; the doctor (PW.21) who conducted the postmortem examination and submitted the postmortem report as per Ex. P28 has opined that the death is due to multiple fragmentation of dead body and all the injuries sustained are ante mortem in nature. As mentioned supra, PW.3 lodged the missing complaint subsequently on 29.5.2007. 4. No progress was made during the investigation till 23.6.2007. However, on 23.6.2007, PW.7-Lokesha, son-in-law of the deceased received an anonymous telephone call on his mobile informing about the murder of the deceased. In other words, PW.7 received an intimation from anonymous source that accused Nos. 1 to 6 have committed the murder of the deceased. PW.7 in turn talked to his wife (PW.6) and thereafter his mother-in-law (PW.3) during night of 23.6.2007 and informed about the said telephone call. However, at that point of time also, none of them lodged the complaint against anybody. On the next day morning, i.e., on 24.6.2007, PW.1 was informed by PW.3 and her family members about the anonymous call received by PW.7. However, at that point of time also, none of them lodged the complaint against anybody. On the next day morning, i.e., on 24.6.2007, PW.1 was informed by PW.3 and her family members about the anonymous call received by PW.7. PW.1 being the family friend of the deceased went to the house of accused No. 1 and asked her about the incident. At the first instance, accused No. 1 did not tell anything before PW.1. However, on being threatened by PW.1, accused No. 1 made extra judicial confession before him narrating about the motive for commission of offence as well as the actual incident in question. Thereafter at 3.00 p.m. on 24.6.2007, PW.1 lodged the complaint against all the accused which came to be registered in Crime No. 106/2007 of New Extension Police Station, Tumkur for the offences punishable under Sections 302 and 201 r/w. Section 149 of IPC. PW.22 registered the crime and sent FIR as per Ex. P30 to the jurisdictional Magistrate. PW.23, the Inspector of Police completed the investigating and laid the charge sheet. 5. In order to prove its case, the prosecution in all has examined 23 witnesses and got marked 45 Exhibits and 11 Material Objects. On behalf of the defence, two Exhibits were got marked. As mentioned, supra, the trial Court on evaluation of the material on record acquitted all the accused by concluding that none of the circumstances relied upon by the prosecution is proved beyond reasonable doubt and therefore benefit of doubt should go in favour of the accused. 6. Sri P.M. Nawaz, learned SPP appearing on behalf of the appellant-State taking us through the entire material on record submits that all the circumstances relied upon by the prosecution are proved; the foundation for the prosecution case is extra judicial confession made by accused No. 1 before PW.1; immediately after getting the information from accused No. 1 about the incident in question, PW.1 lodged the complaint as per Ex. P1 without any further delay; the evidence of PW.1 conclusively proves that accused No. 1 has disclosed about the incident in question and the defence is not successful in diluting the evidence of PW.1; the last seen circumstance is spoken to by PW.2 by deposing that he had dropped the deceased to the house of accused No. 1 during night of 23.5.2007 on his motor cycle; PW.2 has seen accused No. 6 coming out of the house of accused No. 1 and receiving him to the house of accused No. 1; since the evidence of PW.2 has practically remained unimpeached, according to the learned SPP, the last seen circumstance relied upon by the prosecution is wholly proved. He further submits that all the accused removed the dead body from the house of accused No. 1 to railway track in Fiat car of accused No. 5; all the six accused along with dead body travelled from Tumkur to railway track near Mallasandra, Gubbi Taluk; PWs.13 and 20 being the Police Constables who were on patrolling duty during the relevant point of time, i.e., early hours of 24.5.2007 checked the car and made the entries in Outpost Daily Register as per Exs.P17 and P18 which reveal that seven persons travelled in a Fiat car bearing Regn. No. KA-06- M-1521 driven by accused No. 5; the evidence of PWs.13 and 20 cannot be disbelieved inasmuch as they are Government Servants and they did not have any grouse against the accused and even they did not have any affinity towards the deceased and his family members. According to the learned SPP, the official records maintained by the Department cannot be suspected. He further relies upon the circumstance of recovery of gold ornaments (M.O. Nos. 1 to 8) worn by the deceased as well as rope (MO. No. 1) allegedly used for commission of offence, at the instance of the accused; accused Nos. 2 to 4 being the hired goondas for commission of crime, have robbed the gold ornaments which were worn by the deceased at the time of his death and the same are successfully recovered by the police, in the presence of panchas who have fully supported the case of the prosecution. He further submits that the identity card of the deceased (Ex. He further submits that the identity card of the deceased (Ex. P14) is also recovered at the instance of accused No. 5, inasmuch as he had kept the said identify card with him for the best reasons known to him. Lastly, he submits that the circumstance of motive for commission of offence is also proved by the prosecution beyond reasonable doubt. Sri Nawaz finally argues that all the circumstances so proved will complete the chain of circumstances and such chain of circumstances would not lead in any manner of doubt so as to the conclude that accused Nos. 1 to 6 have committed the murder of the deceased. 7. Per contra, Sri A.H. Bhagawan, learned counsel appearing on behalf of respondents 1, 5 and 6 once again taking us through the material on record argues in support of the judgment the trial Court. He submits that none of the circumstances relied upon by the prosecution is proved beyond reasonable doubt; FIR came to be lodged belatedly; if accused No. 1 was suspected by the family members of the deceased, there was no reason as to why they should have kept quiet without lodging the complaint at least against accused No. 1; if really PW.2 is a witness for last seen circumstance, the family members of the deceased would not have kept quiet without suspecting the hands of the accused No. 1. He further submits that the evidence of PWs.13 and 20, the Police Constables cannot be believed at all, inasmuch as the documents at Exs.P17 and P18 seems to be got up documents to prove the case of the prosecution; even the circumstances of recovery as well as motive for commission of offence are not proved by the prosecution; only the testimony of interested witnesses is brought on record by the prosecution though number of independent witnesses/persons were present at the time of alleged recovery of gold ornaments, none of such independent persons came to be examined before the Court and the signatures of such independent witnesses/persons are not taken on the recovery mahazars. He further submits that extra judicial confession allegedly made by accused No. 1 is not voluntary; PWs.15 and 17, the recovery panchas have deposed before the Court that they were tutored by the police prior to giving the evidence before the trial Court. He further submits that extra judicial confession allegedly made by accused No. 1 is not voluntary; PWs.15 and 17, the recovery panchas have deposed before the Court that they were tutored by the police prior to giving the evidence before the trial Court. On these among other grounds, he prays for confirmation of the judgment of the trial Court. Sri Vijay Kumar Prakash, learned amicus curiae appearing on behalf of respondents 2 to 4 also supports the arguments of Sri A.H. Bhagwan. 8. There are no eye witnesses to the incident in question. Case of the prosecution rests only on circumstantial evidence. The circumstances relied upon by the prosecution are as under:-- "(i) Extra-judicial confession made by accused No. 1 before PW.2. (ii) The last seen circumstance deposed by PW.2. (iii) All the accused removed the dead body from the house of accused No. 1 to the railway track near Mallasandra, Gubbi Taluk and threw the same on the railway track. PWs.13 and 20, the Police Constables who were on patrolling duty have deposed in support of the said circumstance. (iv) Recovery of M.O. Nos. 1, 8 to 11 (plastic rope, gold ring, gold chain, watch, car) under Exs.P22, P21 and P23 at the instance of the accused. PWs.11, 13, 14, 15, 16 and 17 have deposed about such recovery. (v) Motive for commission of offence. PWs.1, 2, 3, 6 and 7 have deposed about the said circumstance." 9. Before proceeding further, it would be relevant to note the gist of the depositions of each of the witnesses. PW.1 is the close friend of the deceased. He lodged the complaint as per Ex. P1 on 24.6.2007 at 3.00 p.m. before New Extension Police Station, Tumkur which was based on extra judicial confession allegedly made by accused No. 1 before him. He has deposed about the illicit intimacy between accused No. 1 and the deceased. He attested the recovery mahazar at Ex. P2, under which the plastic rope (MO. No. 1) was recovered from the house of accused Nos. 1 and 6. PW.2 is another friend of the deceased. At about 8.00 p.m. on 23.5.2007, he dropped the deceased near the house of accused No. 1 on his motor cycle after buying a liquor from a wine shop. He has deposed that the deceased went inside the house of accused No. 1 along with accused No. 6. 1 and 6. PW.2 is another friend of the deceased. At about 8.00 p.m. on 23.5.2007, he dropped the deceased near the house of accused No. 1 on his motor cycle after buying a liquor from a wine shop. He has deposed that the deceased went inside the house of accused No. 1 along with accused No. 6. PW.2 is the witness for mahazar at Ex. P3 relating to the scene which was shown by accused Nos. 1 and 6 where they threw the dead body i.e., near railway track. PW.3 is the wife of the deceased. She lodged the missing complaint as per Ex. P4 on 29.5.2007. She has deposed about the illicit intimacy between the deceased and accused No. 1. She has also identified the clothes of the deceased as well as photographs of the deceased which are at Exs.P7 to P13. PW.4 is the maid servant of accused No. 1. She has deposed that she has seen the deceased coming to the house of accused No. 1. PW.5 is the tailor who has stitched the shirt of the deceased. He confirmed that the shirt of the deceased which was seized by the police was stitched by him. PW.6 is the daughter and PW.7 is the son-in-law of the deceased. Both of them have deposed about the illicit intimacy between the deceased and accused No. 1. Both of them have also deposed that one Mr. Naveen called PW.7 over phone on 23.6.2007 and informed PW.7 regarding the murder of the deceased. PW.6 identified the clothes of the deceased (M.O. Nos. 2 and 7) as well as the gold ornaments (MO. Nos. 8 to 10) which were recovered by the police from the accused. She also identified the identify card of the deceased (Ex. P14). PW.8 is the Assistant Executive Engineer, Bangalore Development Authority. He has deposed about the deceased attended the Office on 23.5.2007 and on that day the driver dropped the deceased at the Bus Stand. PW.9 has deposed about the deceased last worked in Bangalore Development Authority on 23.5.2007. PW.10 is the driver of auto rickshaw who was supposed to depose about seeing accused Nos. 2 to 4 near the house of accused No. 1 on 23.5.2007 at 10.00 p.m. But however, he has turned hostile to the case of the prosecution. PW.11 is the shop-keeper who allegedly sold the plastic rope (MO. PW.10 is the driver of auto rickshaw who was supposed to depose about seeing accused Nos. 2 to 4 near the house of accused No. 1 on 23.5.2007 at 10.00 p.m. But however, he has turned hostile to the case of the prosecution. PW.11 is the shop-keeper who allegedly sold the plastic rope (MO. No. 1) to accused Nos. 2 to 4. He has also turned hostile to the case of the prosecution. PW.12 is the mahazar witness for Exs.P2 and P3. Under Ex. P2 MO. No. 1 (plastic rope) was seized at the instance of accused Nos. 1 and 6. Ex. P3 is the mahazar relating to the scene which was shown by accused Nos. 1 and 6 where they had thrown the dead body near railway track. PW.13, who is the Head Constable has deposed that while he was patrolling duty in the early hours of 24.5.2007, he saw seven persons travelling in a Fiat car driven by accused No. 5. He identified all the accused in Court as the persons who were travelling in the said car during the relevant day. Exs.P17 and P18 are produced and marked through him. PW.14 is the witness for mahazar at Ex. P19 under which identity card of the deceased (Ex. P14) was recovered. He is also the witness for seizure of car (MO. No. 11) along with RC book under Ex. P20. PWs.15, 16 and 17 are the witnesses for recovery mahazars at Exs.P21, 22 and 23 respectively under which gold chain (MO. No. 9), gold ring (MO. No. 8) and watch (MO. No. 10) were recovered from accused Nos. 3, 2 and 4 respectively. PWs.18 is the Assistant Sub-Inspector of Police. He went to the spot, i.e., near railway track on 24.5.2007 after receiving the information. He has deposed about the registration of UDR crime and seizure of clothes of the deceased, etc. PW.19 is the Police Constable attached to Tumkur Railway Police Station. He has also deposed about the seizure of clothes of the deceased. PW.20 is another Police Constable. He was also doing patrolling duty along with PW.13 on 24.5.2007 at 3.20 a.m. He also saw seven persons travelling in the Fiat car. He identified all the accused before the Court. He has also deposed about Exs.P17 and P18, the relevant entries in the Outpost Daily Register maintained by the police. PW.20 is another Police Constable. He was also doing patrolling duty along with PW.13 on 24.5.2007 at 3.20 a.m. He also saw seven persons travelling in the Fiat car. He identified all the accused before the Court. He has also deposed about Exs.P17 and P18, the relevant entries in the Outpost Daily Register maintained by the police. PW.21 is the doctor who conducted postmortem examination over the dead body. Postmortem report is at Ex. P28. PW.22 is the Sub-Inspector of Police, who registered the missing complaint as per Ex. P4 on 29.5.2007 in Crime No. 85/2007. He has also registered the complaint as per Ex. P1 lodged by PW.1 on 24.6.2007 and registered Crime No. 106/2007. PW.23 is the Investigating Officer who completed the investigation and laid the charge sheet. 10. Re. Extra Judicial Confession: Case of the prosecution is that the incident has taken place during the night of 23.5.2007. Extra judicial confession is made by accused No. 1 before PW.1 in the morning of 24.6.2007. PW.1 was not in close contact with accused No. 1. According to PW.1 he had visited the house of accused No. 1 only once or twice, that too along with deceased, which means that PW.1 did not have contact with accused No. 1 intimately so as to make her extra judicial confession before him. It is by now well settled that extra judicial confession is a weak piece of evidence and hence has to be supported by other evidence. The Court can take judicial notice that extra judicial confessions are generally made by the accused before the persons who had got close acquaintance with the accused. Since PW.1 had no close acquaintance with accused No. 1, it is improbable that accused No. 1 might have made extra judicial confession before PW.1. More over, PW.1 has admitted in his examination-in-chief itself that after hearing the news of murder of the deceased from PWs.3, 6 and 7 on 24.6.2007, he alone had gone to the house of accused No. 1 and asked her about the incident, but she did not disclose any information to PW.1. Thereafter, when PW.1 threatened accused No. 1, she made extra judicial confession before him, which means that extra judicial confession allegedly made by accused No. 1 was not voluntary, but it was made by accused No. 1 involuntarily as a result of threat. Thereafter, when PW.1 threatened accused No. 1, she made extra judicial confession before him, which means that extra judicial confession allegedly made by accused No. 1 was not voluntary, but it was made by accused No. 1 involuntarily as a result of threat. As mentioned supra, case of the prosecution starts on the basis of the telephone call received by PW.7 from one Mr. Naveen on 23.6.2007; on getting such telephone call, PW.7-Lokesha informed his wife (PW.6) and his mother-in-law (PW.3) in the evening of the very day. Despite the same, they did not venture to lodge the complaint before the police immediately thereafter. Further, they intimated about the same to PWs.1 and 2. PW.1 in turn went to the house of accused No. 1 who allegedly made extra judicial confession before him. But PW.3 in her deposition has not at all deposed about the extra judicial confession allegedly made by accused No. 1 before PW.1. According to the case of the prosecution, PW.1, after getting the information from accused No. 1 (extra judicial confession), came to the house of PW.3 and informed her about extra judicial confession made by accused No. 1, which means that though PW.3 had the knowledge of extra judicial confession allegedly made by accused No. 1, she has not deposed at all about such extra judicial confession made by accused No. 1 before PW.1. She has also not deposed about the details of telephone call received by PW.7. All these factors would reveal that so-called extra judicial confession relied upon by the prosecution is not free from doubt. In this view of the matter the trial Court is justified in concluding that the said circumstance of extra judicial confession is not proved by the prosecution beyond reasonable doubt. 11. Re. Last seen circumstance: Case of the prosecution is that PW.2 being the friend of the deceased dropped him near the house of accused No. 1 on his motor cycle. On the way, the deceased purchased liquor bottle from a wine shop and thereafter he and PW.2 proceeded near the house of accused No. 1, where the deceased alighted from the motorcycle and went inside the house of accused No. 1 along with accused No. 6. On the way, the deceased purchased liquor bottle from a wine shop and thereafter he and PW.2 proceeded near the house of accused No. 1, where the deceased alighted from the motorcycle and went inside the house of accused No. 1 along with accused No. 6. Though PW.2 is the close friend of the deceased and though the whereabouts of the deceased were not known since one month, he did not inform anybody about the fact that he saw the deceased going to the house of accused No. 1 during night of 23.5.2007. Admittedly, PW.2 was present throughout all the deliberations which had happened in the house the deceased and PW.3. Even he also searched for the deceased along with PW.3 and her family members. Despite the same, PW.2 did not inform anybody, including PW.3 about the last seen circumstance. This conduct of non-informing anybody by PW.2, that too even after one month of the incident in question the deceased was not traced, would generate lot of suspicion in the mind of the Court about the version PW.2. It is admitted by PW.2 that though he met PW.3 and other family members immediately after last seeing the deceased, he did not pass such an important information to PWs.1 and 2 and the family members of the deceased. PW.2 was present during the course of recording the mahazar at Ex. P2 while recovering the rope from the house of accused Nos. 1 and 6. Even at that point of time also, PW.2 did not inform the police that he brought the deceased on his motor cycle to the house of accused No. 1 on 23.5.2007. Hence, we find that the conduct of PW.2 is not natural. It is also relevant to note here itself that while drawing the panchanama of at Ex. P3 on 26.5.2007 also PW.2 did not inform about he dropping the deceased to the house of accused No. 1 on his motor cycle. The very fact that he did not inform anybody including family members of the deceased that deceased was last seen by him in the house of accused Nos. 1 and 6 would speak about the conduct of PW.2. It is an unnatural conduct of PW.2 which would lead us to draw inference against him to conclude that he is unreliable witness. 1 and 6 would speak about the conduct of PW.2. It is an unnatural conduct of PW.2 which would lead us to draw inference against him to conclude that he is unreliable witness. It seems, the prosecution has generated the story of last seen circumstance through PW.2 to prove its case. 12. Re. removing the dead body by the accused: As mentioned supra, it is the case of the prosecution that all the accused removed the dead body in the Fiat car from the house of accused No. 1 at Tumkur to the railway track near Mallasandra, Gubbi Taluk, which means that all the six accused travelled in Fiat car along with the dead body of the deceased. In support of the said contention, the prosecution has relied upon the evidence of PWs.13 and 20, who are the Police Constables. It is relevant to note that statements of PWs.13 and 20 are recorded on 24.6.2007, i.e., after lapse of one month of the incident in question. If really these two Police Constables had seen the dead body in the car, they would not have kept quiet without informing the same to their higher Officers. The prosecution has further relied upon the entries made in Outpost Daily Register as per Exs.P17 and P18 maintained by the Police Department. Ex. P17 is a stray sheet without any pagination, etc. It is admitted by PW.13 that such sheets are provided to the Police Department by the State Government having page numbers which are printed by Government Printing Press. However, such pagination is missing in Ex. P17. There cannot be any dispute that Ex. P17 discloses the Fiat car bearing Regn. No. KA-06-M-1521 has passed through the check post at 3.20 a.m. on 24.5.2007 and the said car was driven by Chandrashekhar (accused No. 5) and there were seven persons traveling in the said car. Based on the document at Ex. P17, it is contended by the prosecution that all the six accused along with the dead body have travelled in the Fiat car driven by Chandrashekhar. Such contention of the prosecution cannot be believed in view of the versions of PWs.13 and 20. Both of them have deposed that they checked the said car for about 5 to 10 minutes. According to them seven persons were travelling in the car, which means that all those persons were alive. Such contention of the prosecution cannot be believed in view of the versions of PWs.13 and 20. Both of them have deposed that they checked the said car for about 5 to 10 minutes. According to them seven persons were travelling in the car, which means that all those persons were alive. It is highly unnatural on the part of PWs.13 and 20 that they could not identify the dead body in the said car though the car was checked by them for about 5 to 10 minutes. The very fact that seven persons were travelling in the car itself would clearly indicate that all those seven persons were alive and there was no dead body at all in the car. Ex. P18 is the photostat copy of the Outpost Daily Register maintained by the Police Department. It is strange that PWs.13 and 20 have identified all the accused in the Court inasmuch as their evidence is recorded after about one year three months of the incident in question. Even test identification parade was also not conducted earlier thereto. It is highly impossible for any Police Constable to remember a person or identify the face of a person after one year three months. In this view of the matter, we find that the evidence of PWs.13 and 20 is rightly disbelieved by the trial Court. 13. Re. Circumstance of recovery: The prosecution has relied upon the evidence of PWs.15, 16 and 17 in order to prove the recovery of gold ornaments, i.e., gold chain (MO. No. 9), gold ring (MO. No. 8) and the watch of the deceased (MO. No. 10). According to the case of the prosecution, gold ring (MO. No. 8) was recovered under the panchanama at Ex. P22 at the instance of accused No. 2; gold chain (MO. No. 9) was recovered under Ex. P21 from accused No. 3 and the watch of the deceased (MO. No. 10) was recovered under panchanama at Ex. P23 from accused No. 4. Such recoveries were made on 30.6.2007, 17.7.2007 and 16.7.2007 respectively. None of the witnesses, including PWs.3, 6 and 7 who are the wife, daughter and son-in-law of the deceased have deposed about the fact that the deceased was wearing the gold ornaments and watch during the relevant day. Unless there is material to show that the deceased had worn MO. Nos. None of the witnesses, including PWs.3, 6 and 7 who are the wife, daughter and son-in-law of the deceased have deposed about the fact that the deceased was wearing the gold ornaments and watch during the relevant day. Unless there is material to show that the deceased had worn MO. Nos. 8 to 10 on the relevant day when he left his house, it would be very difficult for the Court to believe the aspect of recovery of MO. Nos. 8 to 10. PW.16 is none other than the brother-in-law of the deceased and he participated in all the proceedings relating to search of the deceased, lodging of the complaint, etc. Though it is admitted by PWs.16, 17 and 18 that there were other independent witnesses/persons present at the time of recovery of gold ornaments, none of such independent witnesses is treated as witness for recovery mahazars. Either the interested witnesses (PWs.16, 17, 18) or close relatives or friends of the deceased are taken as witnesses to the said mahazars. The gold chain-MO. No. 8 was recovered from the house of Ratnamma, who is the aunt of accused No. 3. But neither the statement of Ratnamma is recorded nor her signature is taken on the recovery panchanama. She is not even cited as chargesheet witness. Moreover, PWs.15 and 16 have explicitly admitted before the Court that they were tutored by the police prior to deposing before the trial Court. As mentioned above, the recoveries are made after about one month of the incident in question. In the absence of any material to show that the gold ornaments were worn by the deceased while he was leaving the house on 23.5.2007, the trial Court is justified in disbelieving the versions of witnesses PWs.15 and 16 relating to recovery of gold ornaments. The recovery of identity card (Ex. P14) also appears to be unnatural. There is no reason as to why accused No. 5 should keep the identity card of the deceased in his possession. The prosecution wants to some how implicate accused No. 5 on the basis of the recovery of identity card of the deceased from him. No person would keep the identity card of a deceased person only to be caught by the police subsequently. The prosecution wants to some how implicate accused No. 5 on the basis of the recovery of identity card of the deceased from him. No person would keep the identity card of a deceased person only to be caught by the police subsequently. In our considered opinion, the trial Court is justified in observing that the recovery of identity card of the deceased from accused No. 5 appears to be artificial. So far as recovery of rope-MO. No. 1 is concerned, it is the case of the prosecution that PW.11 sold the rope to accused Nos. 1 to 4, but PW.11 has turned hostile to the case of the prosecution. The rope like MO. No. 1 would normally be found in every house for the purpose of drying of the washed clothes, etc. 14. Re. Motive: It is the case of the prosecution that accused No. 1 and the deceased had quarrelled since the deceased had suspected that accused No. 1 had generated illicit intimacy with accused No. 5 recently. But such case as made out by the prosecution is without any basis. The aspect of motive is completely depending upon the extra judicial confession made by accused No. 1 which is not proved by the prosecution. On the other hand, the evidence of prosecution witnesses, more particularly the evidence of PWs.3, 6 and 7 would clearly reveal that the deceased and accused No. 1 were intimately living as husband and wife. Despite number of advises by the family members of the deceased, he did not discontinue his affair with accused No. 1. They were living together 15 to 16 years prior to the incident in question. There is no reliable material to show that accused Nos. 1 and 5 were having illicit relationship. Thus, the trial Court is justified in observing that the evidence of PWs.3 and other witnesses relating to illicit intimacy between accused No. 1 and 5 is based on assumption and not based on material facts. 15. Sri A.H. Bahagawan, learned counsel appearing for respondents 1, 5 and 6 is justified in arguing that neither the police nor the family members of the deceased have taken swift action; there is lot of delay in initiating the proceedings. 16. It is the case of the prosecution that the deceased had left his home at Tumkur on 23.5.2007 at about 8.00 p.m. and he did not turn back. 16. It is the case of the prosecution that the deceased had left his home at Tumkur on 23.5.2007 at about 8.00 p.m. and he did not turn back. It is further case of the prosecution that the deceased was dropped by PW.2 on his motor cycle on the very day near the house of accused No. 1; despite the same, nobody suspected accused No. 1 till she allegedly made extra judicial confession before PW.2 after about one month of the incident in question. The body was found in fragmented condition on railway track near Mallasandra, Gubbi Taluk. Inquest panchanama was conducted on 24.5.2007 and the postmortem examination was also done on the very day. The railway authorities had published in daily newspapers about finding of unknown dead body. The police of New Extension Police Station, Tumkur were knowing about such news published by the railway authorities. It is also brought on record from the version of railway police that Tumkur police were informed about the finding of the dead body. Despite the same, Tumkur police did not take any action even when the missing complaint was lodged by PW.3 on 29.3.2007. Though the family members of the deceased and PWs.2 and 3 had known about the deceased going to the house of accused No. 1 on the night of 23.5.2007, accused No. 1 was not suspected by them. Ultimately, the prosecution story has started from 23.6.2007 on which day, PW.7 (son-in-law of the deceased) allegedly received a telephone call from an unknown source. Curiously police have not collected any of the details in respect of the said telephone call received by PW.7, such as who had called PW.7, etc. Void so created is not filled up by the prosecution. Even on 23.6.2007, when telephone call was received by PW.7, no complaint was lodged against all the accused. Ultimately, on 24.6.2007 at 3.00 p.m., complaint came to be lodged against all the accused. In view of the above, it is clear that there is inordinate delay on the part of the prosecution and such delay generates suspicion in the mind of the Court. Hence, the case as built up by the prosecution appears to be artificial. 17. More over, the evidence of the doctor-PW.21 who conducted the postmortem examination over the dead body as well as PM report at Ex. Hence, the case as built up by the prosecution appears to be artificial. 17. More over, the evidence of the doctor-PW.21 who conducted the postmortem examination over the dead body as well as PM report at Ex. P28 would clearly reveal that the injuries sustained by the deceased are ante mortem in nature. This evidence runs totally contrary to the case of the prosecution. Case of the prosecution is that the deceased was murdered in the house of accused No. 1 by strangulation and thereafter dead body was taken away to railway track in the car. If it is so, the injuries sustained by the deceased could not have been mentioned as ante mortem in nature. The very injuries sustained by the deceased would clearly show that the victim was taken to railway track and thereafter his body was cut into pieces. In this regard, the arguments of the defence counsel that the deceased might have the tendency of committing suicide, assumes importance. Be that as it may, having regard to the totality of the facts and circumstances of the case and as we find that none of the circumstances relied upon by the prosecution is proved beyond reasonable doubt, no interference is called for. Accordingly, appeal fails and the same stands dismissed. We place on record the valuable assistance rendered by Sri Vijay Kumar Prakash, learned amicus curiae. Hence, Registry is directed to pay a sum of Rs. 10,000/- (Rupees ten thousand only) to the learned amicus curiae as an honorarium.