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2016 DIGILAW 753 (KAR)

Manja Puttegowda v. State

2016-10-07

H.G.RAMESH, K.N.PHANEENDRA

body2016
JUDGMENT : K.N. Phaneendra, J. These two Criminal Appeals are preferred against a common judgment of conviction and sentence passed by the Fast Track Judge at Srirangapatna in SC No. 131/2006 vide judgment dated 26.7.2011. Criminal Appeal No.1251/2011 is filed by A1-Nagesha and Criminal Appeal No.945/2011 is filed by A2-Manja. After due trial, the learned Sessions Judge has convicted and sentenced A1 to undergo rigorous imprisonment for life and to pay fine in a sum of Rs. 10,000/- with a default clause of simple imprisonment for one year for the offence punishable under section 302 of IPC. Both A1 and A2 were also convicted and sentenced to undergo rigorous imprisonment for three years and to pay fine of Rs.5,000/- each and in default to undergo simple imprisonment for three months for the offence punishable under section 201 of IPC. The trial Court has also awarded compensation of Rs.25,000/- to PW-1 and PW-13, father and mother of the deceased. In view of the above said common judgment, we feel it just and necessary to consider both the appeals together. We retain the ranks of the appellants as per their ranks before the trial Court for convenience. 2. The brief factual matrix as could be seen from the entire case papers are that: PW-1 Chandrashekar, resident of G. Mallanahalli in Srirangapatna Taluk, has been residing along with his wife, PW-13 Rathnamma and his daughters by names Ramamani, Vasantha, Komala and Jyothi. A1 is also residing in the same village. It is the case of the prosecution that the accused No. 1 though had two wives, but had no issues. He was often demanding the daughter of PW-1 by name Vasantha (deceased) to marry him and in that connection he was also threatening her with dire consequences of killing her if she do not marry him. 3. In this context, it is the further case of the prosecution that, the marriage of the said Vasantha was fixed and the engagement ceremony was also performed. That on 8.3.2006 PW-1 Chandrashekar and his wife PW-13 Rathnamma had been to distribute the marriage invitation card in the village. The accused having frustrated because of the reason of the arrangements of the marriage of the deceased Vasantha, he had decided to eliminate the said Vasantha as she refused to marry him. That on 8.3.2006 PW-1 Chandrashekar and his wife PW-13 Rathnamma had been to distribute the marriage invitation card in the village. The accused having frustrated because of the reason of the arrangements of the marriage of the deceased Vasantha, he had decided to eliminate the said Vasantha as she refused to marry him. On that particular fateful day of the incident, at about 7.00 p.m., PWs.2 to 4 and deceased Vasantha had been to put on the fuse in the Electric Pole near the house and at that time, the accused was also present and they have put the fuse in order to get the electricity. After the said act, the accused called Vasantha under the guise that, he would like to talk to her for some time. Accordingly, at that time, he took Vasantha along with him. But, thereafter the said Vasantha did not return to the house. PWs.-1 and 13 came back to their house at about 8.30 p.m., and came to know Vasantha did not come back to the house. Thereafter, they searched for their daughter Vasantha, but they could not locate her whereabouts. Therefore, PW-1 has given a missing complaint as per Ex.P-1 to the police in which he suspected the hands of A1 and A2 and others by name Gajendra and Pujari Ramesh. Thereafter, Srirangapatna Police registered a case in Crime No.70/2006. The search was in progress. It is the further case of the prosecution that on 11.3.2006, the police have arrested A1 and A2 and in fact, they disclosed before the police about the offence committed by them. On the basis of such information as per Ex.P-15, the Sub-Inspector of Police, sent one more FIR to the Court for the offences punishable under sections 302 and 201 of IPC. 4. It is the further case of the prosecution that the accused No. 1 on that particular day took the deceased to the backyard of her house near a fence and forced her to marry him. As the said Vasantha refused to marry A1, and told him that, she would disclose his said attitude to her father and the villagers. 4. It is the further case of the prosecution that the accused No. 1 on that particular day took the deceased to the backyard of her house near a fence and forced her to marry him. As the said Vasantha refused to marry A1, and told him that, she would disclose his said attitude to her father and the villagers. In that context, the accused removed his waist thread from his waist and strangulated her, thereafter laid the dead body near a fence and thereafter, secured the presence of A2 Manja and shifted the dead body near the land of one Somegowda of Sadenahalli and threw the dead body into the well situated in the land of Somegowda. After recording the voluntary statement of the accused and at his instance, the police have recovered the dead body from the said well in the land of Somegowda and also recovered the waist thread from A1. After conducting thorough investigation, the police have submitted the charge-sheet against A1 and A2 for the above said offences. 5. After securing the presence of A1 and A2, after due committal proceedings, the Sessions Court framed charges for the offence punishable under sections 302 and 201 of IPC. As the accused pleaded not guilty, the accused were put on trial. The prosecution in order to bring home the guilt of the accused, examined 18 witnesses, PWs. 1 to 18 and got marked 22 documents as Ex.Pl to P22 and material objects as MOs.1 to 7. Exs.D1 to D4 were also got marked during the course of cross-examination of the prosecution witnesses. Accused persons were also examined u/S.313 of Cr.P.C. The accused did not choose to lead any defence evidence as such after appreciating the oral and documentary evidence on record, the Court has rendered the above said judgment of conviction and imposed the sentence. 6. The appellants' counsel Smt. Archana Murthy P., has taken us through the entire oral and documentary evidence on record. She has argued before the Court that the trial Court has not properly appreciated the evidence on record and erroneously drawn the inferences against A1 and A2. The conviction and sentence passed by the trial Court suffers from serious incurable defects. The appellants' counsel Smt. Archana Murthy P., has taken us through the entire oral and documentary evidence on record. She has argued before the Court that the trial Court has not properly appreciated the evidence on record and erroneously drawn the inferences against A1 and A2. The conviction and sentence passed by the trial Court suffers from serious incurable defects. Though the entire case revolves around the circumstantial evidence and all the witnesses examined are interested witnesses and their evidence consists of material contradictions and omissions, those have not been properly considered and appreciated by the trial Court. There are certain investigation lapses which go to the root of the prosecution case also not properly appreciated. Therefore, the learned counsel prayed before this Court to re-appreciate the entire materials on record and by giving the benefit of doubt to acquit the accused persons. 7. Per contra, Sri. Vijay Kumar Majage, learned Addl. State Public Prosecutor, contends before this Court that though the case revolves around circumstantial evidence, the prosecution has successfully established the main circumstances which are believed, constitute a complete chain. Therefore, the trial Court after considering all the materials on record, properly appreciating the evidence had drawn the proper inferences in order to bring home the guilt of the accused. Though, there are some minor and in-consequential contradictions and omissions are elicited in the evidence of the prosecution witnesses, the same are not sufficient to reverse the judgment of the trial Court. Hence, he pleaded for dismissal of both the appeals. 8. After hearing the learned counsel appearing for the appellants and also the learned Addl. State Public Prosecutor and after re-evaluating the material evidence on record, the only point that would arise for consideration of this Court is - "Whether the trial Court has committed any error in appreciating the evidence on record and whether the judgment of conviction and sentence suffers from any serious irregularity or illegality". 9. In order to appreciate the materials available on record, it is just and necessary for this Court to consider the relevant circumstances which are relied upon by the prosecution in order to bring home the guilt of the accused persons. It is the fundamental basic principles of Criminal jurisprudence that the prosecution has to prove the case against the accused beyond reasonable doubt. It is the fundamental basic principles of Criminal jurisprudence that the prosecution has to prove the case against the accused beyond reasonable doubt. The circumstances relied upon by the prosecution must be proved to the hilt so as to show to the Court that the accused persons are the perpetrators of the crime and there is no other inference that can be drawn from the same evidence. In this regard, it is worth to refer a decision reported in 2016 (2) AKR 177 between Mrs. Sharada Urs. v. Bharthi Urs Rani and others wherein the Hon'ble Apex Court has observed at paragraphs 14 and 15 as to how the courts have to consider the case of circumstantial evidence and the same are extracted hereunder :- "14. There are any number of decisions rendered by the Hon'ble Apex Court with regard to the circumstantial evidence. In a case reported in Sharad Birdhichand Sarda v. State of Maharashtra reported in AIR 1984 SC 1622 wherein the Hon'ble Apex Court has held that the entire responsibility or the onus in circumstantial evidence cases to prove the chain is complete without there being any infirmity or lacuna, is on the prosecution. The condition precedent in the words of the Hon'ble Supreme Court before a conviction can be recorded on the basis of circumstantial evidence is categorized as follows :- (1) The circumstances from which the conclusion of guilt is to be drawn should be fully established. The circumstances concerned 'must or should' and not 'may be' established. (2) The facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty. (3) The circumstances should be of a conclusive nature and tendency. (4) They should exclude every possible hypothesis except the one to be proved, and there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have done by the accused. 15. While dealing with the circumstantial evidence cases, there is always danger when the conjuncture or suspicion lingered in the mind, may take the place of proof. 15. While dealing with the circumstantial evidence cases, there is always danger when the conjuncture or suspicion lingered in the mind, may take the place of proof. It is well recognised principle that suspicion however strong it may be, it cannot take the place of proof. Therefore, the courts must be very careful and watchful in order to ensure that the discrepancies, conjunctures, suspicions do not take the place of legal proof." In this background, we would like to discuss the circumstances which are involved in this case. 10. The prosecution has mainly relied upon the following circumstances in order to bring home the guilt of the accused : (i) Homicidal death of the deceased (ii) Motive (iii) Accused No.1 and deceased last seen together. (iv) Recovery (v) Conduct of the accused prior to and after the incident. We would like to discuss the above said circumstances in detail according to their sequence. 11. Homicidal Death : The learned counsel appearing for the accused has contended that there is no specific opinion expressed by the doctor with reference to the homicidal death of the deceased. He has simply stated about the cause of death, that was due to "asphyxia as a result of strangulation". The doctor has also stated that the ligature mark did not tally with the waist thread recovered from the accused. Though it is not much disputed with regard to the homicidal death of the deceased, nevertheless, when such a doubt is expressed, it is the duty of the Court to ascertain whether the prosecution has placed sufficient material to establish the homicidal death of the deceased. 11.1. The prosecution has relied upon the evidence of PW-5 and PW-12 who are the inquest witnesses. PW-16, the doctor who conducted the post-mortem examination and PWs.-17 and 18 who are the Investigating Officers who conducted the inquest and finally filed the charge-sheet. 11.2. Though PWs.-5 and 15 have turned hostile to the prosecution, nevertheless, PWs.-5 and 15 have categorically admitted their signature in Ex.P-3, the inquest proceedings. They have admitted that the dead body of the deceased was found in a well belonging to one Swamygowda of Shwadanahalli. They have also admitted that there was a ligature mark on the neck of the deceased. They have admitted that the dead body of the deceased was found in a well belonging to one Swamygowda of Shwadanahalli. They have also admitted that there was a ligature mark on the neck of the deceased. Though these witnesses turned hostile, sofar as other factors are concerned, with regard to the conduct of the accused, immediately prior to and after the incident but sofar as the inquest proceedings are concerned, they have fully supported the case. 11.3. Coupled with the above said evidence, PW-16 Dr. Sheela, who conducted the postmortem examination has categorically stated that the death was due to asphyxia as a result of strangulation. She has also given the details about the dissection of the dead body, fracture of the thyroid cartilages etc., She has also stated that such strangulation could be caused by using the waist thread marked at MO-7 and also opined that, such death could also be caused due to throttling. During the course of cross-examination, nothing has been elicited to deviate from the factum of cause of death as opined by her. Not even a single suggestion was made to this witness. Of course, it is elicited that the FSL report does not tally with the ligature produced before the Court as per MO-7 with reference to the injuries on the neck. However, it is also stated that there was concussion and clotting of the blood underneath the skin in the neck area. Therefore, she has stated that the said death could be caused by strangulation by using the waist thread MO-7. 11.4. Looking to the above said evidence of the doctor, there is absolutely no doubt with regard to the homicidal death of the deceased due to asphyxia as a result of strangulation or throttling. 11.5. PW-18 Investigating Officer who has got lifted the dead body from the well at the instance of the accused and conducted the inquest proceedings in the presence of the panch witnesses as per Ex.P-3 and he has also drawn spot mahazar as per Ex.P2. Sofar as this particular aspect is concerned, there is no much cross-examination. In view of the above said circumstances, there is no other inference can be drawn, but holding that the death of the deceased had occurred due to strangulation. Therefore, in our opinion, the prosecution has proved the case of homicidal death of the deceased. 12. Sofar as this particular aspect is concerned, there is no much cross-examination. In view of the above said circumstances, there is no other inference can be drawn, but holding that the death of the deceased had occurred due to strangulation. Therefore, in our opinion, the prosecution has proved the case of homicidal death of the deceased. 12. Motive : The motive projected in this particular case as noted briefly while describing the factual aspects of this case, that the accused No.1 had two wives, but he was issue-less. He was forcing the deceased Vasantha to marry him. She was not willing for the same. He has been threatening her with dire consequences of killing her if she do not give consent to marry him. In this background, the accused being aggrieved by the engagement of the deceased with some other person, has finally on the date of the incident on 8.3.2006, demanded Vasantha deceased to marry him and on her refusal he has decided to do away with her life. 12.1. The learned counsel contended that the evidence of the witnesses sofar as this motive factor is concerned is very weak and if the motive is not properly established beyond reasonable doubt, the main link to the prosecution case would be cut and the Court cannot convict the accused persons for the above said offences. 12.2. On careful examination of the evidence of the prosecution, particularly the evidence of PWs.1, 3, 4 and 13, and even the hostile witness PW-6 who has spoken to about the motive play a relevant role. Of course, we are conscious that the motive is one of the relevant factors in a criminal case, particularly in circumstantial evidence cases. Even the motive is not proved to the satisfaction of the Court, but if other circumstances are strongly established, that itself is not sufficient to discard the other evidence. On the other hand, if the motive is established, that would strengthen the case of the prosecution in order to ascertain the gravity and also mindset of the accused. With this background, we would like to discuss the evidence in this regard. 12.3. PW-1, PW-3, PW-4 and PW-13 are respectively father, sister, cousin brother and mother of the deceased Vasantha. On the other hand, if the motive is established, that would strengthen the case of the prosecution in order to ascertain the gravity and also mindset of the accused. With this background, we would like to discuss the evidence in this regard. 12.3. PW-1, PW-3, PW-4 and PW-13 are respectively father, sister, cousin brother and mother of the deceased Vasantha. They have in categorical terms stated that, the deceased was telling them before that the accused has been demanding her to marry him and also threatening her with dire consequence of killing her if she do not give consent to marry him. PWs.-1 and 13 have in fact ignored the words of the deceased by telling her that the accused already had two wives and perhaps, he may be asking Vasantha, simply in order to cajole her, therefore, she need not worry in that regard. PW-3 and PW-4 have also repeated the same facts that the deceased was disclosing the said fact before PW-1 and PW-13 and these witnesses have also over heard in that context. During the course of cross-examination, this particular portion of the evidence has not been subjected to any serious cross-examination except suggesting that, they are all telling lie in order to create a false motive against the accused. It is elicited during the course of cross-examination of PW-1 that when Vasantha disclosed the said fact to in such a manner, PW-1 at that time, his wife and children were also present. This particular aspect reinforces the statement of PW-1 and other witnesses in the examination-in-chief. Likewise, PWs.-3 and 4 were also not subjected to cross-examination sofar as this particular aspect is concerned. It is however suggested to PW-3 that she has not stated before police about this particular fact, but she has denied the said suggestion. Further, it is not put to the Investigating Officer sofar as the statement of this witness is concerned to elicit the contradiction or omission. In the similar fashion PW-13 is also cross examined, but nothing more has been elicited except denying the said statement of the witness. Therefore, looking to the above said evidence of these witnesses, there is nothing to disbelieve the statement of these witnesses. 12.4. In the similar fashion PW-13 is also cross examined, but nothing more has been elicited except denying the said statement of the witness. Therefore, looking to the above said evidence of these witnesses, there is nothing to disbelieve the statement of these witnesses. 12.4. PW-6 Siddegowda, who is an independent witness in this regard has of course admitted that he knew the accused and accused had two wives and issue-less, but he has not stated anything with regard to the motive factor though he has stated before police as per Ex.P-6. He has turned hostile to that extent. However, he has admitted that the land of this accused and the land of PW-1 are adjacent to each other and he is the resident of the same village. Though this witness has turned hostile to the prosecution sofar as this aspect is concerned, it can be construed that this particular motive factor which is with reference to the marriage of Vasantha, it is quite natural that Vasantha is the proper person to disclose the same to her parents which has been consistently stated by these witnesses. Therefore, we are of the opinion, the prosecution has also brought out in the evidence of these witnesses that there was motive for to do away with the life of the deceased Vasantha. Hence, we also hold that the prosecution has also proved this particular circumstance. 13. Accused No. 1 and Deceased Last Seen Together : This circumstance has been strongly relied upon by the prosecution. The case of the prosecution is that, on the day of the incident i.e., on 8.3.2006, at 7.30 p.m., PWs.2 to 4 and also the deceased came to know that there was no electricity in the house of PW-1. Therefore, they want to put on the fuse in the electric pole which is situated near the house of PW-1. At that time, A1 was already there near the said electric pole. In fact he has put on the fuse. After the said incident, the accused made a request to the deceased to go along with him as he wanted to talk to her and requested PWs.2 to 4 to leave that place and in fact he took the deceased Vasantha along with him. In fact he has put on the fuse. After the said incident, the accused made a request to the deceased to go along with him as he wanted to talk to her and requested PWs.2 to 4 to leave that place and in fact he took the deceased Vasantha along with him. PW-1 and PW-13 came back to the house who had been for distribution of the invitation card pertaining to the marriage of Vasantha at about 8.30 p.m., At that time Vasantha was not there and they enquired with PWs.2 to 4 and inturn they disclosed the above said fact. Since that time i.e., since 7.30 the deceased was not seen anywhere. Even after due search by PWs. 1 to 4, they could not able to locate the whereabouts of Vasantha. Therefore, it is alleged that the accused has taken away the said Vasantha at 7.30 p.m., and thereafter she was not seen alive. After 2-3 days, her dead body was found in a well in the land of PW-12 Swamygowda which was recovered at the instance of the accused. 13.1. The prosecution has relied upon the evidence of PWs.2 to 4 in this regard and also PW-9. PWs.2 to 4 have categorically re-iterated the above said facts. They have consistently and specifically stated that the accused was present at 7.30 p.m., near the electric pole situated just behind the electric pole of PW1 and he took Vasantha along with him to talk with her and thereafter, she was not seen alive any where and she did not come back to the house at all. 13.2. PW-9 Jayaramegowda, who turned hostile to the prosecution was also examined to establish this particular aspect. He has admitted that the land of accused No.1 and PW-1 are adjacent to each other and that he has seen the dead body of Vasantha in the well of PW-12 later. But he has denied the suggestions made to him as per Ex.P8 in the course of cross-examination that, he saw the accused No. 1 at about 7.30 p.m., talking with Vasantha alone. The independent witness of course has turned hostile sofar as this aspect is concerned. 13.3. But merely because PWs.2 to 4 are the related witnesses, there is no reason as to why their evidence should be unnecessarily discarded. The independent witness of course has turned hostile sofar as this aspect is concerned. 13.3. But merely because PWs.2 to 4 are the related witnesses, there is no reason as to why their evidence should be unnecessarily discarded. It should be borne in mind that mere relationship itself is not sufficient to dub a witness as an interested witness. The interestedness should be shown otherwise than the relationship between the parties in their evidence. 13.4. In this background, the cross-examination of these witnesses have to be tested whether they are really interested witness or they have spoken truth before the Court. PW-2 has stated in his evidence that he does not remember whether he has exactly stated before police the presence of the accused at that particular point of time and he also do not know what type of clothes he was wearing at that particular point of time. But, he reiterates the presence of the accused and taking Vasantha along with him. Of course, there is some discrepancy with regard to the putting of the fuse by the accused or by the deceased Vasantha herself. Except this, nothing has been suggested to this witness that he was not at all present at that particular point of time and it is not established as to why he has to falsely implicate the accused No. 1. The suggestions made to this witness have not been fructified by any other evidence on record. Of course, these witnesses have also stated that after Vasantha disappeared from 7.30 p.m., on that night, they were all searching for deceased Vasantha. In fact, at that particular point of time, they did not suspect the accused at all, because they thought that Vasantha gone somewhere but after searching for Vasantha and they could not locate her whereabouts, they started suspecting the accused because he took the deceased along with him on that day. 13.5. PW-3 has also re-iterated the said aspects even in the course of cross-examination same facts has been elicited. In fact, PW-3 has also stated fairly that on the same night at about 10.00 p.m., the accused had come to their house and PW-1 enquired him, then A1 told before them that after talking to Vasantha, he brought her back to the house. In fact, PW-3 has also stated fairly that on the same night at about 10.00 p.m., the accused had come to their house and PW-1 enquired him, then A1 told before them that after talking to Vasantha, he brought her back to the house. But none of the witnesses including PW-1 and PW-13, have stated that, Vasantha had come back to the house after talking to the accused. Even PWs.2 to 4, who were very much present in the house of PW-1 on that day, they also never stated that deceased came back to the house on that night. It is also there in the evidence of these witnesses that, at about 10.00 p.m., on that day; the accused had also went along with PW-1 in search of the deceased, but they could not able to locate the whereabouts of the deceased. 14. The above conduct of the accused has been made as an argument point by the learned counsel for the accused, by submitting that if at all the accused was the person who has committed the murder of the deceased Vasantha between 7.30 to 8.30 p.m., he could not have come back at about 9 or 10.00 p.m., to the house of PW-1, because the place where the dead body was thrown to the well is at a distance of 1 km. from the house of PW-1, it may not be possible for the accused to lift the dead body and travel one kilometer and throw the dead body to the well and come back to the house of PW-1. Though PW-1 has stated in a discrepant manner with regard to the time that, A1 coming and meeting him as he has stated that accused met him at about 8.45 or 9.00 p.m., but all these three witnesses have categorically stated that the accused came there at about 10.00 a.m., Therefore, the returning of the accused to the house of PW-1 is to be taken note of that, he had come back to the house of PW-1 at about 10.00 p.m., but there is some discrepancy with regard to the time, but the said discrepancy, in our opinion, is not so disturbing and it will not be sufficient to draw any adverse inference against PWs.2 to 4. Therefore, the last seen theory has been successfully established. 15. Therefore, the last seen theory has been successfully established. 15. One should bear in mind that last seen together itself is not sufficient to draw any inference against the accused if it is bereft of other materials on record. But it is a strong circumstance running against the accused. If it is satisfactorily established, that the accused was last seen together with the deceased immediately prior to the death of the deceased, then it becomes the responsibility of the accused to explain as to what happened after the accused and deceased went together, and actually when he parted with the deceased. In the evidence of PWs. 1 to 4, they have admitted that, the accused came back at 10.00 p.m., on that day under the guise of searching Vasantha. Therefore, it is argued that, if at all he has committed the murder, he would not have had such courage to come to the house of PW-1 and help him in searching the deceased Vasantha. We are not persuaded by such argument and such conduct of the accused to hold that he is not the perpetrator of the crime. In the course of cross-examination, he has suggested that, he has brought back to her to the house. Therefore, it is his responsibility to show before the Court by preponderance of probabilities, that the deceased was brought back to the house. But, on the other hand, in this case, the deceased was not shown to have come back after meeting the accused, but later her dead body was found in the well situated in the land of PW-12. 16. The nexus between the death and the last seen together is so proximate and close in this particular case which confirms that the accused must be the only person who has done something to the deceased. 17. In this background, it is worth to refer the evidence of Dr. Sheela - PW16, who has explained the features of the dead body and she has categorically stated that the death was 2-3 days prior to the post-mortem examination and she has also stated that the death was homicidal in nature. Nothing has been suggested to this witness with regard to the time of death of the deceased. It is not the case of the accused that after he took the deceased, she came back and after a long time, she died a homicidal death. Nothing has been suggested to this witness with regard to the time of death of the deceased. It is not the case of the accused that after he took the deceased, she came back and after a long time, she died a homicidal death. There is no much time gap between the accused, deceased last seen together and the time of death. Therefore, in all probabilities, the Court can definitely say that he must be the perpetrator of the crime and there is no doubt arises so far as this particular aspect is concerned. 18. The accused No.1 in his 313, Cr.P.C. statement before the Court also has not even stated anything except total denial of the case. When once the prosecution proves the circumstance of last seen together and proximity of death, in that event the onus shifts on the accused to probabilise that the death of the deceased was not due to his intervention. Therefore, the Court has to presume that the fact of accused taking Vasantha along with him and what happened thereafter were all in the exclusive knowledge of the accused and those facts ought to have been explained by the accused which has not been done. Therefore, we have no hesitation to hold that the prosecution has also proved this particular circumstances beyond all reasonable doubts. 19. Recovery: The prosecution has come up with a case that the death of the deceased Vasantha and the disposal of the dead body was in the exclusive knowledge of both the accused persons. The place where the dead body was thrown, was disclosed by the accused and at the instance of the accused, the police have recovered the dead body of the deceased Vasantha as well as the waist thread which was used for the purpose of strangulating her. 19.1. First we will discuss the recovery of the dead body at the instance of the accused : The evidence of the Investigating Officer PW-17 who has stated that after registration of a complaint in Crime No. 17/2006 which was a missing complaint, they were in search of the deceased. In the missing complaint itself PW-1 has suspected the hands of A1 and A2 and one Gajendra. Therefore, it appears, the police were in search of these A1 and A2 also. In the missing complaint itself PW-1 has suspected the hands of A1 and A2 and one Gajendra. Therefore, it appears, the police were in search of these A1 and A2 also. In this background, it is stated by PW-17 that on 11.3.2006 at about 7.30 a.m., A1 and A2 were arrested. A1 and A2 have disclosed the commission of the offence particularly A1 has disclosed that he has strangulated the neck of the deceased Vasantha. Thereafter, with the help of A2 Manja, thrown the dead body into a well situated in the land of PW-12. On receiving such information, the police have submitted another information to the Court as per Ex.P-15 requesting the Court to convert the offence u/Ss.302 and 201 of IPC. It is also stated by PW-17 that the accused No. 1 has also disclosed that, he would show the place where Vasantha was done to death and also the place where the dead body was lying and also the place where the waist thread was thrown and also the place where the dead body was thrown into the well and accordingly his statement was recorded as per Ex.P-18. 19.2. PW-18 K.T. Jayaram has stated that on 11.3.2006 he took up the further investigation of this case and went to the spot as led by A1, along with the complainant PW-1, and the panch witness to the land of one Swamygowda of Swadenahalli village. Near a pump house, A-1 has shown the dead body of the deceased Vasantha in a well which was floating. The police have got lifted the said dead body, drew up a mahazar as per Ex.P2. Ex.P2 also discloses the above said factual aspects coupled with the voluntary statement of A1 as per Ex.P-18. Therefore, on the basis of the discovery of a fact with reference to the throwing of the dead body into a well by Al, the dead body was recovered. 19.3. PW-18 has also stated that A1 and A2 took the police and the panch witnesses near the land of one Maridevaragowda of Aralaguppe/Jagatemallanahalli village and stopped near a bush and took out a waist thread, which was recovered under mahazar Ex.P-11 and the said waist thread has been marked at MO-7. The evidence of the Investigating Officer so far as this aspect is concerned is fully supported by the evidence of PW-14 Ravi, a panch witness. The evidence of the Investigating Officer so far as this aspect is concerned is fully supported by the evidence of PW-14 Ravi, a panch witness. He has re iterated that about four years back, the police have secured his presence and on that day A1 and A2 were in the custody of police and A1 had shown the place where the death of the deceased occurred and also showed the place where the dead body was thrown and also shown the place where the waist thread was thrown and the police have recovered the same. The witness has also identified the waist thread as per MO-7. It is also specifically stated that A1 has shown the place where the dead body was thrown and the police have recovered the dead body and in fact he identified his signature in Exs.P11 and P12. 19.4. In the course of cross-examination much has been concentrated with regard to the length of the waist thread and other things. He has also stated that one Krishnegowda was also another panch witness. This witness has consistently and fully supported even during the course of cross-examination. He has further affirmed that about 3-4 police personnel came to his shop at Aralakuppa and he accompanied the police in a jeep. In the course of cross-examination, the accused had made suggestions to elicit that, this witness and police were already knew about the place where the dead body was thrown into a well, but these witnesses have denied the said suggestion. On the other hand, they have categorically stated that the accused took them to the said well first in point of time and thereafter the police found the dead body in the said well and it is specifically stated after these witnesses, police went near the said well, the other village people and the relatives of the deceased came to that particular spot. 19.5. Of course, this witness at one breath has said that he went to that particular place on motorcycle, in another breath he has also stated that, he went to that place along with the police in a police jeep, except this small discrepancy, nothing has been elicited from the mouth of this witness to totally discard his evidence. In the course of cross-examination, it is also elicited that he has got very good relationship with A1 and they were all cordial with each other. In the course of cross-examination, it is also elicited that he has got very good relationship with A1 and they were all cordial with each other. Therefore, in our opinion, there is no reason for this witness to falsely implicate the accused into the crime. 19.6. PW-1 in fact has also stated that after the accused persons were arrested, they were brought near the house of PW-1 and they all went near the well where the dead body was thrown. However, PW-18 Investigating Officer has not stated that they took the accused to the house of PW-1 but they went near the said well. Though there are some small discrepancies, but they do not go to the root of the prosecution case so as to uproot the entire case of the prosecution. Hence, we are of the opinion that the prosecution has also proved, this strong circumstance which is against the accused with regard to the recovery of the dead body and the waist thread at the instance of Al. 19.7. It is pertinent to note here itself that the statement of A1 (Ex.P-18) was recorded much earlier to recording of the statement of A2 as per Ex.P-21. This fact is evident from the deposition of the Investigating Officers-PW.17 & PW. 18. PW. 17 has stated that A1 and A2 were arrested on 11.03.2006 and A1 has given his voluntary statement as per Ex.P. 18. He never stated that he has recorded the statement of A2 as per Ex.P21. In the cross-examination he was very specific that he has recorded the statement of A2 between 1.15 p.m. to 1.45 p.m., This clearly discloses that A1 had already disclosed the fact of scene of offence and the place where the dead body was laid near a bush and also throwing of the dead body into a well. The spot-mahazar which is marked at Ex.P2 discloses that the said mahazar was drawn between 10.00 a.m. to 10.45 a.m. and the inquest proceedings started at 11.00 a.m. and concluded at 1.00 p.m. This clearly indicates that, on the basis of voluntary statement of A1 alone, the dead body and waist thread were recovered and place of incident was identified by the police. There is no question of disclosure of the same facts by A2 arises. There is no question of disclosure of the same facts by A2 arises. Therefore, there is no evidence as such so far as A2-Manja is concerned with reference to his participation in the crime either at the time of A1 committing the offence or at the time of shifting the dead body up to the well, except the voluntary statement of Al. Therefore, there cannot be any imputation against A2-Manja so far as commission of the offence or shifting of the dead body or throwing of the dead body into the well and he assisted A1 in disposing of the dead body. We would also like to discuss this aspect while discussing the next circumstance regarding the conduct of the accused persons as to whether there is any material available against A2, before we conclude the judgment. 20. Conduct of the Accused : The prosecution has relied upon the evidence of PW.10, PW.5 and PW. 11 to show the conduct of A1 & A2 prior to the incident and immediately after the incident. Whatever worth it is, we would like to refer to the evidence of these witnesses in order to conclude the sequence of events. PW.5-J.C. Nataraj was examined by the prosecution for the purpose of establishing that A1 and the deceased Vasantha were moving close to each other and they were purchasing vegetables from Mysuru and they used to go together. It is the case of the prosecution that, on 08.03.2006 at about 10.00 to 10.15 p.m., he saw A1 and A2 who were coming from the direction of Shadanahalli Gudda. But, this witness did not support the said fact, there is no proof with regard to the conduct of A1 & A2 prior to or after the incident. 20.1. PW.7-K.T. Ramesh was examined before the Court in order to establish that on 10.03.2006, A1 & A2 both of them went to this witness and they have confessed before this man that they have committed the murder of Vasantha and thereafter disposed of the dead body by throwing the same into a well. This witness also not supported to the prosecution case to any extent so far as the above said fact is concerned. His statement is marked at Ex.P7. 20.2. PW. This witness also not supported to the prosecution case to any extent so far as the above said fact is concerned. His statement is marked at Ex.P7. 20.2. PW. 10-J.C. Dhananjaya was examined by the prosecution in order to establish that on 08.03.2006 this witness was near a hotel belonging to one Jayamma, at that time, A1 came near A2 who was also present along with this witness and he confessed that he has committed the murder of Vasantha and he requested A2-Manja to assist him to dispose of the dead body and thereafter, A1 & A2 went together. But he also totally turned hostile to the prosecution and his statement before police is marked at Ex.P9. 20.3. Lastly, PW. 11-Chandregowda was also examined to elucidate the facts that A1 & A2 on 08.03.2006 at about 9.30 p.m. were transporting something, by moving towards Shadanahalli and they were having some load on their shoulders. This witness also not supported to any extent so far as the said fact is concerned. Therefore, the prosecution though relied upon these circumstances, has not proved those circumstances to the satisfaction of the Court. 21. On overall analysis of the above said circumstantial evidence placed for consideration of this Court, the Court has to conclude as to whether the proven circumstances before this Court constitute a complete chain so as to draw an inference of guilt of A1 and A2. As we could see, A1 and deceased were last seen together and thereafter, A1 was arrested and voluntary statement has been recorded and that the dead body and waist thread has been recovered at the instance of A1 these circumstances have been proved to the satisfaction of the Court. The motive is also established to show that the accused was intended to marry Vasantha, though he is having two wives but had no issues and in this regard he was threatening the said Vasantha with dire consequences of killing her. These important circumstances which are proved, in our opinion, would constitute a complete chain so as to shift the onus on to the accused to explain the incriminating circumstances against him. As we have already observed, neither the accused stepped into the witness box, nor examined any of the witnesses on his side, nor he has stated anything in his 313 statement in order to explain the above said important circumstances. As we have already observed, neither the accused stepped into the witness box, nor examined any of the witnesses on his side, nor he has stated anything in his 313 statement in order to explain the above said important circumstances. Therefore, in our opinion, the prosecution has proved the guilt of A1 beyond all reasonable doubt. However, there is no iota of evidence so far as A2-Manja is concerned. It is not the case of the prosecution at all that A1 & A2 together took the deceased and committed murder. The role of A2 as per the prosecution case is that, he assisted the accused in disposing of the dead body of the deceased Vasantha after committing her murder. But, as noted above, none of the witnesses have supported the case of the prosecution so far as this aspect is concerned, except the voluntary statement of A1 as per Ex.P. 18. 22. It is a well recognised principle of law that, the statement of a co-accused or even the evidence of a co-accused before the Court cannot be treated as a substantive evidence against another accused, unless it is corroborated by other materials on record. Hence, we are of the opinion that the prosecution has not proved the guilt of A2 for the offence punishable under section 201 of IPC, for which he is convicted. 23. In view of the above said reasons, we find no mistake committed by the trial Court in convicting and sentencing the accused No.1 for the offence punishable under section 302 of IPC. However, the trial Court has committed serious error in convicting A2 for the offence punishable under Section 201 of IPC and sentencing him accordingly. 24. Before parting with this judgment, we must also mention that the learned counsel for A1 contended before this Court that, as per the prosecution case, A1 was not happy with the deceased as she was refusing and reluctant to marry him. Therefore, on that day, due to some provocation or in a heat of passion, he might have committed the offence. Therefore, there may not be any intention to commit the murder of the deceased. Hence, at the most, his act may fall under Section 304(11) of IPC and not u/S.302 of IPC. Hence, the sentence may be reduced. Therefore, on that day, due to some provocation or in a heat of passion, he might have committed the offence. Therefore, there may not be any intention to commit the murder of the deceased. Hence, at the most, his act may fall under Section 304(11) of IPC and not u/S.302 of IPC. Hence, the sentence may be reduced. We are unable to accede to the said arguments of the learned counsel simply because of the reason that, so far as these aspects are concerned, no foundation has been laid during the course of cross-examination of any of the witnesses, nor it is the defence of the accused in his 313 statement. Hence, such plea is not available to the accused. 25. In view of the above said facts and circumstances and the reasons adverted to by us, we answer the point formulated "Partly in the affirmative" and proceed to pass the following order :- ORDER 1. The appeal filed by A1-Nagesh in Criminal Appeal No. 1251/2011 is hereby dismissed. 2. The appeal filed by A2-Manja in Criminal Appeal No.945/2011 is hereby allowed. Consequently, the judgment of conviction and sentence passed by the learned Sessions Judge FTC Srirangapatna in SC No.131/2006 dated 26/27.07.2011 is hereby set aside in so far as it relates to A2-Manja, is concerned and he is acquitted of the charges levelled against him for the offence punishable under Section 201 of IPC. The bail bond and surety bond, if any, executed by A2-Manja are hereby cancelled. A2 is not in custody. Hence, no further order is required. The remaining order of the trial Court with reference to awarding of compensation and destruction of material objects are not disturbed.