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2019 DIGILAW 1255 (KAR)

Basayya v. State of Karnataka

2019-06-14

ASHOK G.NIJAGANNAVAR, K.N.PHANEENDRA

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JUDGMENT : K.N. Phaneendra, J. The appellant is the sole accused before the 1st Additional Sessions Judge, Bijapur in S.C.No.150/2010 who was convicted by the learned Sessions Judge for the offences punishable under sections 302 and 201 of Indian Penal Code and sentenced him to undergo imprisonment for life and to pay fine of Rs.25,000/- for the offence punishable under section 302 with default sentence and also to undergo rigorous imprisonment of five years and to pay a fine of Rs.5,000/- for the offence under section 201 of Indian Penal Code. 2. Before adverting to the grounds urged by the learned counsel for the appellant and the learned Addl. State Public Prosecutor, it is just and necessary for us to go through the brief factual matrix of the case. It is the case of the prosecution as per the entire charge sheet papers and the evidence laid before the Court that, the accused was in love with the deceased Kallawwa @ Kalavathi who is none other than sister of PW.6, resident of Tondihal village, in Koppal district. In fact, the said Kalavathi was given in marriage to some other person but afterwards the deceased Kalavathi and accused went together to Gadag and lived like husband and wife there for some time. Afterwards, they came back. As the accused have had sexual activity with Kalavathi, the elders of both the families forced them to marry each other. In this context, it is an undisputed fact that a registered marriage between accused and the deceased took place. Thereafter accused started living with Kalavathi. They lived together happily for some time and thereafter as the parents of the accused did not allow the said Kalavathi to reside with them, this made accused to shift her to his sisters' house i.e. the house of PW.16 Lalitha and they stayed there for some time. In the meantime, it is also seriously alleged against accused that because of the family differences, accused and deceased were not allowed to stay together alongwith the family members of the accused, this virtually irritated accused further on the ground that, the accused started suspecting the conduct and fidelity of the deceased. In the meantime, it is also seriously alleged against accused that because of the family differences, accused and deceased were not allowed to stay together alongwith the family members of the accused, this virtually irritated accused further on the ground that, the accused started suspecting the conduct and fidelity of the deceased. On this particular motive, it is alleged that on 19.12.2009, accused took Kalavathi from the house of PW.16 at Koppal on his motorcycle bearing registration No.KA37/Q-1010 by saying that, he would take her to Kudalasangam and Basavana Bagewadi for the purpose of visiting religious temples. It is also the case of the prosecution that, thereafter the deceased was not seen and she did not return to the house. On the next day, the dead body of Kalavathi was found in the land of complainant by name PW.1 Parvatibai in Survey No.105. This was informed by PWs.2 and 4 labours in the said land and in turn a report was lodged by PW.1 as per Ex.P1 before the respondent Police. The Police have registered a case against some unknown persons in crime No.295/2009 and started the investigation. Thereafter, the police have recorded the statement of PW.6 and came to know that accused is the person responsible for the death of the deceased. Therefore, the police have investigated the matter and ultimately submitted a charge sheet against the accused for the aforementioned offences. 3. After committal proceedings, accused was secured by the learned Sessions Judge and framed charges against him for the above said offences. As the accused pleaded not guilty, he was put on trial for the offences under sections 302 and 201 of Indian Penal Code. The prosecution in order to bring home the guilt of the accused, examined as many as 31 witnesses as PWs.1 to 31 and got marked 45 documents as per Ex.P1 to P45 and during the course of cross-examination of PWs.6, 8 and 9 accused also got exhibited D1 to D3. Material objects at MOs.1 to 11 were also marked. Accused was also examined under section 313 of Cr.P.C. and his answers were recorded. Accused did not choose to lead any defence evidence. Thereafter learned Sessions Judge after hearing both the sides rendered the impugned judgment of conviction and sentence as noted supra. 4. Material objects at MOs.1 to 11 were also marked. Accused was also examined under section 313 of Cr.P.C. and his answers were recorded. Accused did not choose to lead any defence evidence. Thereafter learned Sessions Judge after hearing both the sides rendered the impugned judgment of conviction and sentence as noted supra. 4. Learned counsel for the appellant Sri R. S. Lagali seriously attacked the judgment of the trial Court on the basis of the evidence on record. He submitted that the entire case revolves around four circumstances, i.e. homicidal death and identification of the deceased, accused and deceased last seen together, recovery of incriminating material at the instance of accused and lastly the conduct of the accused. 5. He further submitted that, none of the circumstances have been proved by the prosecution beyond reasonable doubt. Evidence of the witnesses particularly PW.15, 16, 23 and 24, so far as last seen circumstance is concerned are vague and contrary to each other. This has not been properly appreciated by the trial Court but the evidence of PW.16 was accepted by the trial Court or gospel truth without there being any reference to the evidence of PWs.23 and 24. Therefore, last seen theory has not been properly established. He further contends that, so far as homicidal death is concerned, though the prosecution has established homicidal death but the identification of the dead body has not been properly established. He contends that, photograph of the dead body, burnt pieces of the clothes of the deceased were shown to PW.6 after lapse of 40 days and on the basis of that, PW.6 has identified the dead body. Therefore, when the identification itself is not properly made, the trial Court has proceeded in convicting the accused. The evidence of recovery panchas PW.5 and 31 with reference to Exs.P.7 to 11 is also not properly considered by the trial Court. There is a serious cleavage between the evidence of PW.5 and 31. They altogether gave a different version of evidence. Therefore, none of the witnesses should have been believed by the trial Court. The recovery as such itself is not proved, therefore, the trial Court has also committed an error in accepting the evidence of PW.5 and 31 regarding recovery of incriminating materials particularly at the instance of accused. 6. They altogether gave a different version of evidence. Therefore, none of the witnesses should have been believed by the trial Court. The recovery as such itself is not proved, therefore, the trial Court has also committed an error in accepting the evidence of PW.5 and 31 regarding recovery of incriminating materials particularly at the instance of accused. 6. He further contends that, so far as motive is concerned, one version of the prosecution is that accused committed rape on the deceased Kalavathi, therefore, their marriage took place, on the other hand, PW.6 also stated that after the marriage of accused and deceased, they went together to Gadag and stayed there for more than 15 days and they were forced to marry each other. So far as other matrix is concerned that, suspecting the fidelity of the deceased the family members of the accused did not allow the deceased to stay with them. These facts are also not established before the Court beyond reasonable doubt. It is only the suspicion on the part of the accused, so far as motive is concerned, no concrete material is established. Even establishing the motive alone is not sufficient. The motive is not a decisive factor. Therefore looking from any angle, he submitted that the trial Court has not properly looked into the material on record in drawing an inference. Hence the said judgment has to be set aside. 7. Per contra, learned Additional State Public Prosecutor submitted before the Court that, though there are some omissions and contradictions in the evidence of PW.16, 23 and 24, nevertheless, accused taking the deceased on 19.02.2009 at about 9.30 p.m. has been fully established by the prosecution. Therefore, it shifts the onus on to the accused to explain as to what happened to the deceased thereafter. If the accused does not give any explanation, that itself is sufficient to draw an inference of the guilt of the accused. He further submitted that though PW.5 and 31 have given different versions but Investigating Officer has stated that MOs.7, 8 to 11 have been recovered at the instance of the accused. There is no reason to disbelieve the evidence of Investigating Officer. The conduct of the accused is not above board, he has not explained as to where his wife has gone. There is no reason to disbelieve the evidence of Investigating Officer. The conduct of the accused is not above board, he has not explained as to where his wife has gone. Though there is no burden on him but it is his duty to give some explanation as to what happened to his wife. Therefore when this onus is not discharged, the prosecution has proved the last seen theory that itself is sufficient to draw an inference that accused perpetrated of the crime. Therefore, he contended that the contradictions, omissions are all minor in this case as such the trial Court's judgment deserves to be upheld and appeal deserves to be dismissed. 8. In the wake of the above submissions made by the learned counsel, it is just and necessary for this Court, firstly, to have a cursory look at the evidence of the prosecution witnesses and then to appreciate the material witnesses with reference to the circumstances projected by the prosecution. 9. Pw.1 Parvathibai is the complainant and her evidence is not of much relevant because after receiving the information from PW.2 and 4 Mahantesh and Prabhayya who were working as coolies with regard to finding of the dead body in the land of PW.1. On the basis of that information, she gave a report as per Ex.P1 on which basis police have registered a case and investigated the matter. 10. Pw.2 is the panch witness to the inquest and spot mahazars marked at Ex.P3 and 4. Ex.P2 is also another panchanama that was drawn where the incident alleged to have been happened. PW.3 is also an inquest panch and PW.4 has stated that he saw the dead body first and informed the same to PW.1. 11. Pw.5 Mallayya is also a panch witness to mahazar Ex.P4 and recovery as per Ex.P8 under which the police have recovered Mos. 8 to 11 and also witness to spot mahazar at Ex.P9, where the accused took the deceased on his motorcycle. 12. Pw.6 Ashok K.Menasinakai is the brother of deceased, who has filed a missing complaint before the police station as per Ex.P29. He has stated about the motive and also suspected the conduct of the accused and he is the person who doubted the conduct of the accused in committing the murder of the deceased. 13. 12. Pw.6 Ashok K.Menasinakai is the brother of deceased, who has filed a missing complaint before the police station as per Ex.P29. He has stated about the motive and also suspected the conduct of the accused and he is the person who doubted the conduct of the accused in committing the murder of the deceased. 13. Pw.7 Kalakappa S/o Basappa Menasinakai father of the deceased and PW.8 Panchappa Shivamutheppa Bisnalli, village head and PW.9 Shambugond Malipatil, who is another villager of the deceased and accused and they infact have only stated about the past incident, conduct of the accused with reference to the motive factor. 14. Pw.10 Sampath Kumar is another panch witness who has conducted the seizure mahazar i.e. seizing the belongings of the deceased such as gold ornaments, bangles, ear-rings etc., PW.11 Tannanagouda S.Patil, Dalapathi of Tangadagi village and PW.12, 13 and 14 are the neighbouring land owners of the complainant's land, they all turned hostile and not supported the case in any manner. PW.15 Prakash is the nephew of the accused not supported the case. 15. Pw.16 Lalithamma sister of the accused in whose house deceased Kalavathi was kept for some time and thereafter the accused took the said lady on the date of the incident. PW.17 Iranna K. Tondihal is also a brother of the accused in whose house one of the belonging of the deceased Kalavati i.e., ornaments and watch were kept. He in fact not supported the case. PW.18 Suresh S/o Yallappa Talawar is another villager who was examined to speak about the conduct of deceased and accused. He only spoke about accused and deceased on the basis of information received by him by somebody. PW.20 Vijayalaxmi Hiremath, is the sister of accused and has not supported the case of the prosecution and turned hostile. 16. Pw.21 Dr. Vijaylaxmi S.Tiwari and PW.22 Dr. Ashok N. Pattanshetty are the two doctors who have conducted post mortem examination on the dead body and gave opinion as per Ex.P25 that, the death of the deceased was due to asphyxia as a result of compression to the neck. PW.23 Praveen P.Pawar and PW.24 Mahesh S/o Mahantesh Gudi are also important witnesses to the last seen of the accused and the deceased just prior to the dead body of the deceased found in the land of PW.1. They also not supported the case of the prosecution. PW.23 Praveen P.Pawar and PW.24 Mahesh S/o Mahantesh Gudi are also important witnesses to the last seen of the accused and the deceased just prior to the dead body of the deceased found in the land of PW.1. They also not supported the case of the prosecution. PW.25 Sangmesh S/o Govindappa Juttad PSI Kukanoor P.S. who at the behest of complainant received the missing complaint lodged by PW.6 as per Ex.P1. PW.26 Basavaraj S/o Bheemappa Bajantri C.P.I. Kukanoor P.S. who investigated the matter and later transferred the matter to the Muddebihal police station for want of jurisdiction. 17. Pw.27 Sharanaprabhu S/o Rachappa Shettar is the superior officer and PW.28 K.M. Mahadevaswami issued sanction order to prosecute the accused. These witnesses are not at all relevant for consideration. PW.29 Kareppa Shivappa Hatti, PSI Muddebihal P.S. who registered a case in No.295/2009 and dispatched the FIR as per Ex.P35 to the jurisdictional Court. PW.30 Srikant Bheemappa Kattimani is the investigating Officer and PW.31 Sharanappa Basappa Angadi is another panch witness same as PW.5. to Ex.P7 to 9 under which the police alleged to have drawn the spot mahazar and also seizure of recovery mahazar at the places where accused has shown and produced some incriminating articles. 18. On careful perusal of the above said evidence, the Court has to examine the material evidence with reference to the circumstances projected by the prosecution and whether the prosecution has proved those circumstance beyond reasonable doubt. 19. We remind ourselves that, it is the fundamental basic principle in circumstantial evidence case that, the prosecution must establish all the circumstances projected by it beyond reasonable doubt and further the proven circumstances should complete the chain of circumstances, then only the Court can draw an inference that, the accused has committed such an offence or if any one of the circumstances or any proven circumstance decisively establishes the guilt of the accused beyond reasonable doubt or not. We would consider the circumstances projected by the prosecution with reference to the material witnesses to establish those circumstances. 20. As rightly submitted by the learned counsel for the appellant and also not disputed by the learned S.P.P. there are as many as four circumstances in this case. (a) Homicidal death and identification of the deceased; (b) Accused and deceased last seen together; (c) Conduct of the accused; and (d) Lastly, motive for commission of the crime. 21. 20. As rightly submitted by the learned counsel for the appellant and also not disputed by the learned S.P.P. there are as many as four circumstances in this case. (a) Homicidal death and identification of the deceased; (b) Accused and deceased last seen together; (c) Conduct of the accused; and (d) Lastly, motive for commission of the crime. 21. Now we would discuss the above said circumstances one by one. (a) Homicidal death and identification: 22. There is no dispute with regard to the marriage between the accused and deceased. Accused has also not spelled out in his statement or during the cross-examination of any of the witnesses that he never married the deceased. He also never denied in the course of cross-examination that he never kept Kalavathi in the house of PW.16. The evidence of Parvathibai and also the evidences of PWs.2 and 4 clearly disclose that they found the dead body of Kalavathi in the land of PW.1, inquest was conducted as per Ex.P3. The inquest report also clearly disclose that, the body was half burnt. On perusal of the evidence of this witness, it is clear that the dead body was half burnt and further the evidence of the doctors who have conducted the post mortem examination i.e. by PWs.21 and 22 who have categorically stated that on thorough examination of the dead body of the deceased, they found that the death of the deceased was due to asphyxia as a result of compression on the neck, that itself presupposes that a person cannot strangulate himself, some other persons' intervention is necessary for the purpose of strangulation. Further added to that, there is no other material to establish before the Court in the course of cross-examination among all the witnesses including the doctors that death of the deceased was natural or accidental or suicidal. In the absence of any such material to draw any other inference, on the basis of the above said circumstances Court can definitely say that it was a homicidal death of the deceased which was established by the prosecution. 23. The next question who was actually responsible for the homicidal death of the deceased? The identification of the deceased was also much commented by the learned counsel for the appellant. 23. The next question who was actually responsible for the homicidal death of the deceased? The identification of the deceased was also much commented by the learned counsel for the appellant. Further, as could be seen from the evidence of PW.6, he has categorically stated that after lapse of about 40 days, the photograph of the deceased as well as half burnt clothes found on the dead body and also the ornaments of the deceased were shown to him and infact on the basis of the same, he identified the dead body in the photograph as that of the deceased Kalavathi. Though in a very casual manner, in the course of cross examination a suggestion was put that it was not the dead body of the deceased Kalavathi but there is no explanation offered in the course of cross examination by the accused and even in the course of statement under section 313 of Cr.P.C., he never stated that his wife is still alive and he never stated what happened to his wife. Accused did not deny in the course of cross-examination with regard to marriage with Kalavathi and he kept her some time in the house of PW.16. In fact PW.16 has stated about the last seen of the deceased and accused. She has also stated about relationship of the accused and deceased and accused kept the deceased in her house. Therefore, to some extent, it became the responsibility of the accused at least to say that whether his wife is dead or alive when the prosecution has placed sufficient material to show that, the dead body was identified by PW.6 as that of Kalavathi. Therefore, though there is some doubt expressed by the learned counsel for the accused with regard to identification of the dead body of the some other lady as that of Kalavathi, but under the above said circumstances, in the absence of any other evidence showing that Kalavathi is still alive or what happened to that lady, we are of the opinion that the prosecution has also established the identification of the dead body as that of Kalavathi. The next circumstance relied upon by the prosecution is with regard to last seen of the accused and deceased together in the house of PW.16 and thereafter the dead body was found in the land of PW.1. (b) Last Seen Theory 24. The next circumstance relied upon by the prosecution is with regard to last seen of the accused and deceased together in the house of PW.16 and thereafter the dead body was found in the land of PW.1. (b) Last Seen Theory 24. Learned counsel for the appellant has contended that, the evidence of PW.16, has to be appreciated with a pinch of salt along with the evidence of PWs.23, 24 and 15. In this background, as we could see that PW.16 of course has stated that accused has brought the deceased with him and kept her in the house of this witness for some days. On that particular day at about 7.30 a.m. or 8.00 a.m., accused took the deceased along with him on his motorcycle on the guise to go to Yelburga that is to say that he has already taken a house and he wanted to live with his wife in the said house by saying so, he took her on that particular day. PW.16 further stated that, thereafter the said lady did not return. She has also further stated that, about two days later at about 2.00 p.m. accused called this lady over phone and told her that he has given Rs.2,000/- to his wife whether she has returned to the house of PW.16. Except these aspects she has not stated anything more. In the course of cross-examination she has stated that, after long lapse of time, the police have brought the accused to her and she came to narrate that accused has committed murder of the deceased Kalavathi. It is suggested that the Kalavathi did not stay in the house of this lady at any point of time except that nothing has been elicited from the mouth of this witness. However, apart from the evidence of this witness, the prosecution has also relied upon the evidence of PWs.23 and 24. 25. Pws.23 and 24 have totally turned hostile to the prosecution case to this important circumstance. They were examined to establish that on 19.12.2009 at about 9.30 p.m. in the night, accused and deceased were together and purchased a water bottle from the shop of PW.23 and thereafter they went away from that place i.e. at Kudalsangam. 25. Pws.23 and 24 have totally turned hostile to the prosecution case to this important circumstance. They were examined to establish that on 19.12.2009 at about 9.30 p.m. in the night, accused and deceased were together and purchased a water bottle from the shop of PW.23 and thereafter they went away from that place i.e. at Kudalsangam. PW.24 is another witness who was also examined to establish the fact that on 19.12.2009 at about 9.30 p.m. accused and deceased went to the hotel of this witness and had some snacks and thereafter went away from the said place i.e. at Kudal Sangam. But these two witnesses have not in any manner supported the case of the prosecution. Therefore even accepting that he has taken his wife from the house of PW.16, on the guise that he was taking his wife to Yelburga to live there with her, but according to prosecution he took her to Kudal Sangam and went to the shop and Hotel of these two witnesses. But very peculiarly enough, there is no material to show that, he has taken his wife to Kudal Sangam on that particular day. Therefore, in the absence of these two witnesses, it is very difficult to believe the evidence of PW.16 alone so far as that particular aspect is concerned. 26. In this background, the evidence of PW.6 also play a dominant role. PW.6 Ashok S/o Kalakappa Menasinakai the brother of the deceased, has stated in his evidence that, after missing of Kalavathi he along with his family members and relatives searched for Kalavathi. In fact he has categorically stated that, accused also searched for Kalavathi and accused gave a missing complaint before the police and in spite of they searching for Kalavathi they could not able to locate her. Thereafter, he went to Kukanoor police and lodged a missing complaint and in fact the police directed the accused to bring his wife back within five days and thereafter they suspected the conduct of the accused and lodged a complaint against the accused. This particular conduct of the accused, in our opinion, play an important role in this case. If at all, he committed the murder of his wife and knowing well that deceased is no more why he went in search of Kalavathi for five days along with PW.6. This particular conduct of the accused, in our opinion, play an important role in this case. If at all, he committed the murder of his wife and knowing well that deceased is no more why he went in search of Kalavathi for five days along with PW.6. Further it is evident from the evidence of PW.6 that accused also gave a missing complaint but the police have warned him to bring his wife back within five days and thereafter on suspicion a regular complaint was registered by PW.6 suspecting the conduct of the accused. 27. Pw.15 is also to some extent, deposed that accused is none other than his close relative i.e. the sister of the accused is the mother of this witness. He also supported virtually the case of the accused that, the accused told him that he has taken a house at Yelburga and he wanted to go to Yelburga along with his wife and he says that accused told this witness that the deceased went from the house but she did not return. But later he came to know that accused has committed murder of his wife. Therefore, this also creates a serious doubt actually from which place deceased has left the conjugal company of the accused. Therefore, last seen together of the accused and deceased, in fact, has to be proved beyond reasonable doubt. If there arise any doubt with regard to this fact, the Court cannot solely rely upon such circumstance to draw an inference to bring home the guilt of the accused. 28. It is worth to refer a decision of this Court reported in between Raja @ Nagaraja Vs. State of Karnataka, (1999) 6 KarLJ 235 (DB) wherein dealing with circumstantial evidence case, the Court has observed that even a sole circumstance of accused and deceased last seen together even it is established beyond reasonable doubt, that sole circumstance is not sufficient to convict the accused. Therefore, in our opinion, in the above said circumstances, there is some doubt expressed by PW.6 and hostility of PW.23 and 24 and doubtful evidence of PW.15, it is not sufficient to draw an inference that the prosecution has proved the last seen of the accused and deceased together beyond all reasonable doubt. (c) Recovery 29. Another circumstance is with regard to recovery of the incriminating article at the instance of the accused. (c) Recovery 29. Another circumstance is with regard to recovery of the incriminating article at the instance of the accused. It is the case of the prosecution that after arrest of the accused, Investigating Officer has recorded the voluntary statement of the accused and the accused has shown the various places particularly where he has taken his wife and where he had actually committed the murder of the deceased and where he actually thrown the ornaments of the deceased and thereafter where he has parked his motorcycle and also the place where he got the ornaments of the deceased. On the basis of which, the police have collected the panch witnesses PW.5 and 31. In order to establish the recovery of the articles, i.e. MOs.8 to 11, that is two gold tali, three gold type studs, two silver toe rings and a ladies watch. Prosecution has relied upon the evidences of PWs.5 and 31. It is worth to refer the evidence of these two witnesses, whether they are trustworthy and reliable for acceptance. PW.5 Mallayya has infact stated that accused has actually led them and he has stated that how he has committed murder of his wife, which is not relevant for consideration of this circumstance. It is further stated that, accused has shown the place where he committed the murder and also burnt the clothes of the deceased and further parked his motorcycle and particularly this witness has stated that the accused has shown that the golden tali, golden studs of earrings of the deceased were thrown near the bridge of Krishna River at Tangadagi village on Kudal Sangam road. He has also further deposed that the said person has shown the place where these articles were thrown. In the course of cross-examination, he further deviated from his version stating that accused has stated before the police that he has thrown those articles in a canal but the police did not make any efforts to search for them. Very peculiarly enough, this witness has not been treated as hostile by the prosecution and even in the course of crossexamination , when he deviated from his examination-inchief , the prosecutor has not taken care to cross examining this witness, to elucidate whether actually these ornaments were recovered at the instance of the accused. On the other hand, the prosecution itself has created a doubt. On the other hand, the prosecution itself has created a doubt. When this witness was not cross examined on the above facts there is no reason as to why the evidence of this witness cannot be believed by the Court. In this background, the evidence of PW.31 required to be appreciated. of course he has to some extent supported the case of the prosecution. This witness has deposed that, the accused on that particular day after his arrest has taken them to various places as noted above which are not so significant except the recovery which is stated by him. He deposed that the accused took them to Mandalgeri village and went to the house of his brother and he brought two golden talis and a watch and golden studs and police have recovered the same and drawn mahazar at Ex.P8. The same has been denied in the course of cross-examination by the accused. Though this witness has actually turned hostile only to the extent that the accused also produced one toe ring before the police. The last suggestion was agreed during the course of cross examination. So from the above said evidences, there are two versions available to the prosecution. Firstly, those ornaments were actually not recovered from the accused but were actually thrown in a canal at Kudal Sangam road according to PW.5. According to PW.31, it was recovered from the house of the brother of the accused. When two versions are available in the prosecution with regard to its relevance, it is the basic principle of law that the version which is favorable to the accused always be preferred, because of the presumption of innocense always run in favour of the accused, if this presumption is not rebutted by the prosecution beyond reasonable doubt. Therefore, in our opinion, the recovery is also not fully established before the Court by the prosecution beyond reasonable doubt. The doubt which is created in the mind of the Court is not removed by cross-examining PW.5 with reference to recovery of the ornament particularly at the instance of the accused in his house. (d) Conduct of the accused and motive: 30. The doubt which is created in the mind of the Court is not removed by cross-examining PW.5 with reference to recovery of the ornament particularly at the instance of the accused in his house. (d) Conduct of the accused and motive: 30. The above said circumstance, conduct and motive on the part of the accused, of course, the prosecution has placed certain materials, from the evidence of father and brother of the deceased and some other witnesses to establish that the deceased was given in marriage to some other person and on the very next day of the marriage, she went along with accused to Gadag. It is evident from the evidence of PW.6 and it appears the trial Court also accepted the said story of the prosecution that the accused and deceased fell in love with each other and therefore, they went together to Gadag and stayed there for some time. It is also the case of the prosecution that, after the marriage of accused with deceased, the parents of the accused did not allow the deceased to live with them. This in fact irritated the accused and it is also the case that accused has suspected the fidelity of the deceased. 31. In this context, it is worth to refer the evidence of PW.16 once again. PW.16 has never stated anything about the conduct of the accused with regard to the accused suspecting the fidelity and conduct of the deceased. The prosecution case is that as father and family members of the accused did not allow the deceased to stay with them, accused shifted the deceased to the house of PW.16 and for long time, they stayed there in the house of PW.16. She is the best witness to say about the conduct of the accused, who is none other than her own brother. It is not that she turned hostile to the prosecution, it is not the case of the prosecution that she did not know anything about the conduct of the accused and deceased, but it is not elicited from her mouth what was the conduct of the accused because accused and deceased stayed in the house of PW.16 and she would be knowing the intricate relationship between the deceased and accused. When this lady PW.16 is the proper person to say about the conduct of the accused. When this lady PW.16 is the proper person to say about the conduct of the accused. In our opinion somebody who has not acquainted with the deceased and accused not residing with them speaking about the conduct of the accused, in our opinion, not so advisable to have that evidence for the purpose of drawing an interference that there was a strong motive to do away with the life of the deceased, particularly, when it was a love marriage between them. Though the prosecution has elicited from the evidence of PW.6 that as the accused has committed rape on the deceased and their marriage was conducted at the instance of elders of deceased, but other evidences which have also fully establish the fact that, deceased was not willing to marry any other person perhaps there was a forcible marriage of that lady with some other person therefore she willingly went with the accused to Gadag for some time and thereafter they came back to the village. This aspect also counts because the accused and the deceased got themselves married due to their love affair. When such being the case, whether still it can be believed that the accused has committed the murder without there being any strong motive. Therefore, the prosecution in fact has also not established such a strong motive in the mind of the accused to do away with the life of the deceased. 32. As we have already stated, the conduct of the accused that he never absconded himself even after alleged commission of murder and he searched for the deceased along with PW.6 and infact the police have directed him to search for her and bring her back within five days. This conduct of the accused favors the defence of the accused. Therefore, we are of the considered opinion that prosecution has also not proved this conduct and motive on the part of the accused that the said motive is strong enough to remove the deceased from the universe. 33. For the above said reasons, we are of the opinion though the prosecution has placed certain material with regard to above said circumstances, they are not sufficient and inadequate to come to a definite conclusion that the prosecution has proved the case beyond all reasonable doubt. 33. For the above said reasons, we are of the opinion though the prosecution has placed certain material with regard to above said circumstances, they are not sufficient and inadequate to come to a definite conclusion that the prosecution has proved the case beyond all reasonable doubt. The trial Court in fact has not bestowed its attention to appreciate the evidence meticulously in detail, but on over all looking to the case of the prosecution, inference was drawn that accused has committed the murder of the deceased. Therefore, such judgment in our opinion, is not sustainable. Hence, the same is liable to be set aside. With these observations, we proceed to pass the following: ORDER The appeal is allowed. The judgment of conviction and sentence passed by the trial Court in Sessions Case No.150/2010 of Muddebihal Police Station, dated 08.02.2012 for the offences punishable under Sections 302 and 201 of IPC is hereby set aside. It is submitted that the accused is already on bail. Hence the bail and surety bonds are hereby cancelled, if any amount of fine is deposited by the accused, the same shall be ordered to be refunded on proper identification and acknowledgement. Office to send back the records to trial Court with a copy of this judgment.