Research › Search › Judgment

Karnataka High Court · body

2019 DIGILAW 912 (KAR)

Ramesh v. State Of Karnataka

2019-04-16

P.B.BAJANTHRI, P.G.M.PATIL

body2019
JUDGMENT : 1. The appellants/accused Nos. 1 and 2 being aggrieved by the judgment of conviction and order of sentence dated 23.11.2011 passed in Session Case No. 81/2008 on the file of Presiding Officer, Fast Track Court-I/II, Bijapur have filed this appeal. 2. It is the case of the prosecution before the Trial Court that on 03.01.2008 accused Nos. 1 and 2 on seeing that CW 20 Shivamma giving amount of Rs.10,000/- to the deceased SharanabasavaS/o Venkappa Uppar in the commission agent shop of Neelappa S/o Basappa Dhavalagi R/o Muddebihal, with common intention of grabbing that amount by committing the murder of deceased Sharanabasava, persuaded the deceased to come with them on the motorcycle of accused No.2 stating that they would take him to his village on the motorcycle. Accused took the deceased on the motorcycle of accused No.2 to the jawar land situated within the jurisdiction of Talikoti police station of one Basanna CW 24 at about 17.00 hours. Both accused made the deceased to fall on the ground. Accused No.1 kicked on his thigh and accused No.2 removed waist thread of the deceased and strangulated him around the neck with waist thread and caused his death by suffocation and took away cash of Rs.10,000/- from him and further accused in order to screening themselves from the legal punishment buried the dead body of the deceased in the land of Basanna, thereby the accused have committed the offences punishable under sections 302 and 201 R/w section 34 of IPC. 3. One Timmanana S/o Amarappa Sindhanur lodged complaint and set the law into motion. The respondent police on the basis of said complaint registered the case and after completing the investigation CPI Siddanna filed charge-sheet against the accused for the offences punishable under sections 302 and 201 R/w section 34 of IPC. 4. The learned Magistrate took cognizance of the offences and registered the case and secured the presence of the accused. After complying with section 207 of Cr.P.C. committed the case to the Sessions Court since alleged offence punishable under section 302 of IPC is exclusively triable by the Court of Sessions. 5. On the receipt of the records S.C. No. 81/2008 was registered and secured the presence of the accused who were represented through their counsel. After complying with section 207 of Cr.P.C. committed the case to the Sessions Court since alleged offence punishable under section 302 of IPC is exclusively triable by the Court of Sessions. 5. On the receipt of the records S.C. No. 81/2008 was registered and secured the presence of the accused who were represented through their counsel. The learned Sessions Judge after hearing both the parties framed charge for the aforesaid offences and when the charge was read over and explained, they pleaded not guilty and claimed to be tried. Therefore, matter stood posted for trial. 6. In order to substantiate its case the prosecution in all examined 27 witnesses as PW 1 to PW 27 and got marked 38 documents and MOs 1 to 18. Thereafter statement of accused under section 313 of Cr.P.C. was recorded on their examination. The case of the accused is that of total denial. Accused have not chosen to lead any evidence in defence. The learned Sessions Judge after hearing learned public prosecutor and the learned counsel for the accused passed the impugned judgment convicting the accused Nos. 1 and 2 for the offences punishable under sections 302 and 201 read with section 34 of IPC and after hearing on quantum of sentence accused Nos. 1 and 2 were sentenced to undergo imprisonment for life and also to pay fine of Rs.25,000/- each and in default of payment of fine each accused shall undergo further simple imprisonment of one year. 7. Learned counsel for the appellants/ accused submitted that the accused have been convicted only on the basis of certain circumstances and that chain of circumstances was not complete. Admittedly, there are no eyewitnesses to the alleged incident. The prosecution relies only on extra judicial confession alleged to have been made by accused No. 1 in the presence of PW 2, PW 3 and PW 5 and recovery of the dead body at the instance of the accused. Learned counsel further submitted that both are weak piece of evidence and unless it is corroborated by other evidence conviction cannot be based only on the extra judicial confession and recovery of the dead body at the instance of accused. Learned counsel further submitted that both are weak piece of evidence and unless it is corroborated by other evidence conviction cannot be based only on the extra judicial confession and recovery of the dead body at the instance of accused. Learned counsel further submitted that extra judicial confession cannot be accepted unless it is proved to be voluntary and true and that in the present case the prosecution has failed to prove that the alleged extra judicial confession made by accused No.1 is voluntary. Learned counsel further submitted that absolutely there is no material against accused No.2 for his conviction for the alleged offences. 8. Per contra learned Addl. SPP submitted that the prosecution has proved guilt of the accused beyond reasonable doubt on the production of evidence of PW 2, PW 3 and PW 5 before whom accused No.1 has made extra judicial confession and further recovery of body of the deceased at the instance of the accused No.1. Learned Addl. SPP further submitted that evidence of PW 16 medical officer and post mortem examination report are sufficient to prove that the death of deceased is homicidal death. Therefore, the appeal be dismissed. 9. We have heard learned counsel for the appellants and learned Addl. SPP. 10. After having heard, the following points arise for consideration before this Court. (1) Whether it is proved that the death of deceased is homicidal? (2) Whether the prosecution has proved beyond reasonable doubt that accused Nos. 1 and 2 in furtherance of their common intention committed murder of deceased Sharanabasava in order to snatch amount of Rs.10,000/- from him? (3) Whether the judgment of conviction and order of sentence under challenge is illegal and against the material on record and law and as such the same is liable to be set aside? (4) What order? 11. Point No.1: In a case where alleged offence is that of murder of deceased under section 302 of IPC, at the first instance the prosecution has to prove that the death of deceased is homicidal death. In the present case in order to prove that the death of deceased Sharanabasava is homicidal death, the prosecution has examined medical officer who conducted post mortem examination Dr. Satishkumar as PW 16 and post mortem examination report is produced at Ex.P-19. In the present case in order to prove that the death of deceased Sharanabasava is homicidal death, the prosecution has examined medical officer who conducted post mortem examination Dr. Satishkumar as PW 16 and post mortem examination report is produced at Ex.P-19. Further the opinion of the medical officer as to the waist thread produced in MO 6 is produced at Ex.P-20. 12. PW 16 Dr. Satishkumar has deposed that while he was working as medical officer in CHC Talikoti he received requisition on 07.01.2008 from CPI Muddebihal to conduct post mortem examination on the body of deceased Sharanabasava Venkappa Uppar. Accordingly on the same day at 01.15 p.m. he went to the spot where the dead body was found, in the land near to Doni. On the same day he conducted post mortem examination on the body of the deceased Sharanabasava aged 18 years. The dead body was of male, moderately built and nourished, height was 5.6 inches, body is distended, disfigured and discoloured, emitting foul smelling, cuticle peeling off at placed, exposing area of penis and scrotum distend with gas, bloodstains, frothy fluid oozing from mouth and nostrils. Maggots of 1 cm swelling of all over the body scrolling at places. There is semi circular horizontal ligature mark across the front of middle neck passing over thyroid cartilage measuring 18 cms x 0.3 cms. Neck on dissection shows diffused extra-versal of blood on either side of thyroid cartilage and stripe muscles above and below ligature mark thyroid cartilage intact. The ligature mark was ante mortem in nature. He has given his opinion as to cause of death, stating that it is due to asphyxia as a result of strangulation. Accordingly he has issued post mortem examination report Ex.P-19. He has also further stated that on 17.03.2008 CPI Muddebihal sent waist thread for examination and sought his opinion as to whether man if strangulate by means of said thread there is any possibility of death and also cause of ligature mark on the neck. On examination of the thread he has given his opinion that the said thread can be used for strangulation over the neck and also there will be ligature mark on the neck and man may die because of strangulation. Accordingly he has issued his opinion as per Ex.P-20. He identified waist thread MO 6 which was examined by him. 13. On examination of the thread he has given his opinion that the said thread can be used for strangulation over the neck and also there will be ligature mark on the neck and man may die because of strangulation. Accordingly he has issued his opinion as per Ex.P-20. He identified waist thread MO 6 which was examined by him. 13. In his cross-examination he has stated that there was no fracture to the thyroid bone. He has denied that in case of strangulation there will be fracture of thyroid bone. He has voluntarily stated that it all depends on the pressure used at the time of strangulation. He has denied that if man is strangulated through thin thread there will be cut injuries found on the neck. He has also stated that dead body was highly decomposed. He has denied that he is unable to say about the strangulation marks over the neck. He has further denied that without conducting post mortem examination he has issued false certificate. Therefore, the evidence of this witness is not much disputed, coupled with post mortem examination report produced at Ex.P-19 the prosecution has proved that the death of deceased Sharanabasava is of homicidal death. It is not the case of the accused that the death of deceased is either suicidal or accidental. Considering the evidence of medical officer and Ex.P-19 it can be safely held that the prosecution has proved that the death of deceased Sharanabasava is homicidal death. Accordingly this point is answered in the affirmative. 14. Point No.2: After having held that the death of deceased Sharanabasava is homicidal death, it is for the prosecution to establish beyond reasonable doubt that accused Nos. 1 and 2 are responsible for the homicidal death of deceased Sharnabasava. The prosecution has to prove by producing cogent and acceptable evidence that the accused Nos. 1 and 2 committed murder of deceased as alleged in the complaint. 15. The oral evidence of prosecution reveals that PW 1 Shankaragouda is a witness for the recovery of money from accused No.2, he has turned hostile. PW 2 Malkajappa is examined to prove that Shivamma availed amount of Rs.10,000/- in the presence of Neelappa and said amount was given to hands of deceased. He has also turned hostile. PW 3 Timmanna is the complainant in the case. He lodged complaint as per Ex.P-5. PW 2 Malkajappa is examined to prove that Shivamma availed amount of Rs.10,000/- in the presence of Neelappa and said amount was given to hands of deceased. He has also turned hostile. PW 3 Timmanna is the complainant in the case. He lodged complaint as per Ex.P-5. PW 4 Parvatamma is the mother of deceased. PW 5 Sharanappa is material witness. According to the prosecution in his presence accused No.1 made extra judicial confession and he pointed out the spot where the dead body was buried. PW 6 Subbanna is a panch for Ex.P-1 to P-3 panchanamas, he has turned hostile. PW 7 Yalagurdappa is another panch witness for recovery of Rs.190/- at the instance of accused. PW 8 Neelappa is owner of the Adat shop, he has turned hostile. PW 9 Adiveppa recommended Neelappa for giving money. PW 10 Shivamma is the witness who had given money to the hands of deceased. PW 11 Amaresh is examined as witness to depose about the last seen theory, he has turned hostile. PW 12 Iramma is wife of accused No.2, she has turned hostile. PW 13 Challappa head constable was on the duty at the time of post mortem examination and he produced the clothes of the deceased before Investigating officer. PW 14 Shivashankar HC 671 who carried FIR to the Court. PW 15 E. Kalikrishna PSI registered the case. PW 16 Dr. Satishkumar is the medical officer who conducted post mortem examination. PW 17 Mahanandayyavva is a witness from whom amount of Rs.100/- was recovered at the instance of accused, she has turned hostile. PW 18 Yellawwa and PW 19 Kantemma are the witnesses from whom amount of Rs.190/- and Rs.200/- respectively was recovered at the instance of accused, they have turned hostile. PW 20 Siddanna is CPI is the Investigating Officer in the case. PW 21 Muttappa is a witness for the spot panchanama and inquest panchanama. PW 22 Basappa is the owner of land from where the dead body was recovered. PW 23 Mallikarjun is the owner of TV shop and he has turned hostile. PW 24 Laxmibai is the wife of accused No.2. She has been examined for recovery of money at the instance of accused No.1. She has turned hostile. PW 25 Prakash is also examined as witness from whom amount of Rs.100/- was recovered at the instance of accused. He has turned hostile. PW 24 Laxmibai is the wife of accused No.2. She has been examined for recovery of money at the instance of accused No.1. She has turned hostile. PW 25 Prakash is also examined as witness from whom amount of Rs.100/- was recovered at the instance of accused. He has turned hostile. PW 26 Shankrappa is the Assistant Engineer, PWD who prepared sketch map as per Ex.P31. PW 27 Venkappa is the father of deceased and PW 28 Dr. Rajendrakumar treated said PW 27 Venkappa. 16. Among the witnesses examined by the prosecution reliance is placed on the evidence of PW 2, PW 3 and PW 5 before whom the accused No.1 allegedly made extra judicial confession. Admittedly there is no eyewitnesses to the incident alleged in question. Therefore, the prosecution has made an attempt to prove the offence against the accused through extra judicial confession and recovery of the dead body at the instance of accused. Therefore, it is necessary to refer the evidence of these material witnesses in little detail. 17. The evidence of PW 2, PW 3 and PW 5 goes to show that PW 27 Venkappa was admitted in Hutti Gold Mines hospital for treatment as he was suffering from hydro pneumo thorax and it is stated that he required a sum of Rs.20,000/- to undergo operation in the said hospital. It is further stated that when PW 10 Shivamma visited the said hospital she promised to provide an amount of Rs.10,000/- for his treatment and she asked him to send someone to take money from her. It is further case of the prosecution that when the accused saw PW 10 giving amount of Rs.10,000/- to the hands of deceased they in furtherance of their common intention of committing murder, took him on the motorcycle of accused No.2 and committed his murder in the land of Basappa PW 22. 18. PW 2 Malkajappa is neighbour of Shivamma PW 10 and accused No.1 is none other than son of PW 10 Shivamma. PW 2 has deposed that brother of Shivamma was admitted in the hospital and for the purpose of his medical treatment Shivamma had to collect amount of Rs.10,000/- from the shop of one Adiveppa and he accompanied her and arranged for Rs.10,000/- as hand loan and the said amount was given to the hands of deceased. PW 2 has deposed that brother of Shivamma was admitted in the hospital and for the purpose of his medical treatment Shivamma had to collect amount of Rs.10,000/- from the shop of one Adiveppa and he accompanied her and arranged for Rs.10,000/- as hand loan and the said amount was given to the hands of deceased. Therefore, the evidence of PW 2 is only to the extent of arranging Rs.10,000/- to Shivamma and that said amount was given to the hands of deceased Sharanabasava. In his cross examination he has denied that he had not arranged amount of Rs.10,000/- and it was not given to the hands of deceased Sharanabasava. 19. PW 3 Timmanna is complainant in the case. His son-in-law Venkappa was admitted in the hospital for treatment. Further he has stated that Shivamma PW 10 is sister of Venkappa and his niece. Accused No.1 is son of Shivamma. He has further stated about the treatment of Venkappa in Hutti Gold Mines hospital and Shivamma had promised to give him Rs.10,000/- and for that purpose deceased Sharanabasava was sent to PW 10 Shivamma and she arranged amount of Rs.10,000/- handed over to Sharanabasava. He has further stated that even after two days Shranabasava did not return. Therefore, they made search for him. Himself and others went to Shivamma PW 10 and inquired her and further they expressed suspicion about accused No.1 son of Shivamma in missing of Sharanabasava. Shivamma told them to inquire her son. When they inquired accused No.1, initially he expressed that he is not aware about the deceased Sharanabasava. Thereafter this complainant and others took accused No.1 to Nelogal village and further induced him to disclose about the deceased and at that time accused No.1 disclosed that with an intention of taking away the amount of Rs.10,000/- from the deceased, himself and accused No.2 took him to the land of Basappa committed his murder and buried the dead body in the said land. Thereafter this complainant went to police station and lodged his complaint and accused No.1 was arrested by the police and at his instance the body of the deceased was recovered. In his cross examination he has denied that accused No.1 has not at all disclosed before him stating that himself and accused No.2 took the deceased and committed his murder and buried his body in the said land. In his cross examination he has denied that accused No.1 has not at all disclosed before him stating that himself and accused No.2 took the deceased and committed his murder and buried his body in the said land. He has denied the suggestion that he is deposing falsely about the alleged extra judicial confession. 20. PW 4 Parvatamma is wife of Venkappa Uppar. Her husband Venkappa was admitted in the hospital and for the purpose of his medical expenses the deceased was sent to the house of Shivamma to get the amount. She has also deposed about the extra judicial confession made by accused No.1. She has admitted that Shivamma mother of accused No.1 is sister of her husband. 21. PW 5 Sharanappa is stated to be resident of Nelogal village and in his presence accused No.1 was inquired and he made extra judicial confession. In his chief examination he has stated that himself and others inquired accused No.1 about Sharanabasava. Initially he told them that he does not know about him and thereafter they induced accused No.1 to speak about the Sharanabasava. Thereafter accused No.1 disclosed that alleged incident in which himself and accused No.2 committed murder of deceased. In his cross examination he has denied that accused No.1 has not made any confession statement before him and that he is deposing falsely. 22. PW 10 Shivamma is also material witness. It is alleged by prosecution that she arranged amount of Rs.10,000/- and the same was given to the hands of deceased Sharanabasava and that accused No.1 who is none other than son of this witness along with accused No.2 committed murder of deceased. However, PW 10 Shivamma has not supported the case of prosecution. She has deposed that accused No.1 is her son. She does not know about accused No.2. She do not know whether Sharanabasava is alive or not. Sharanabasava had never come to her and she did not give any amount to him and that accused No.1 has not made any statement in her presence about committing murder of deceased with the help of accused No.2. Therefore, this witness has not at all supported the case of prosecution to any extent. 23. The panch witnesses in order to prove spot panchanama, inquest panchanama and various recovery panchanamas under which the Investigating Officer has recovered some amount at the instance of accused Nos. Therefore, this witness has not at all supported the case of prosecution to any extent. 23. The panch witnesses in order to prove spot panchanama, inquest panchanama and various recovery panchanamas under which the Investigating Officer has recovered some amount at the instance of accused Nos. 1 and 2, have turned hostile and they have not supported the case of prosecution. Similarly the witnesses from whom the Investigating Officer has recovered the amount of Rs.100/-, Rs.190/-, Rs.200/- and another Rs.100/- at the instance of accused No.1 have not at all supported the case of prosecution. 24. The evidence of PW 15 E. Kalikrishna PSI goes to show that he received complaint from PW 3, registered the case and handed over investigation to PW 20 Siddanna CPI. The evidence of PW 20 CPI goes to show that in the course of investigation he arrested accused No.1 and recorded his voluntary statement as per Ex.P-24 and that accused No.1 led himself and panchas to the land of Basappa and identified the spot where the dead body was buried and that the body was recovered from the said place. He conducted inquest panchanama, spot panchanama and arranged for post mortem examination of the dead body in the spot. He also got prepared sketch of scene of offence from PWD engineer. He has further stated that after arrest of accused No.2, both accused Nos. 1 and 2 volunteered and took himself and panchas to the house of PW 17 Mahanandawwa, PW 18 Yellawwa, PW 19 Kantemma and PW 25 Prakash and at their instance he recovered amount of Rs.100/-, Rs.190/-, Rs.200/- and Rs.100/- respectively by drawing panchanamas. It is stated that accused Nos. 1 and 2 had given the amount to these witnesses out of the amount snatched from the deceased. However none of these witnesses have supported the case of prosecution. 25. The other witnesses examined by the prosecution are the police official witnesses who were on duty while conducting post mortem examination and other official who carried FIR to the Court. PW 26 Shankreppa, Assistant Engineer PWD has prepared sketch of offence as per Ex.P-31 and he has deposed to this fact. PW 22 Basappa has turned hostile. He has deposed that he was not aware of the burial of dead body of deceased in his land and that it was recovered. 26. PW 26 Shankreppa, Assistant Engineer PWD has prepared sketch of offence as per Ex.P-31 and he has deposed to this fact. PW 22 Basappa has turned hostile. He has deposed that he was not aware of the burial of dead body of deceased in his land and that it was recovered. 26. On the basis of the material on record the learned counsel for the appellants/accused submitted that absolutely there is no evidence against accused No.2, he has been involved in the case only on the basis of alleged voluntary statement of accused No.1 which is not admissible in law. 27. The learned Addl. SPP has relied on the decision in the case of Ram Lal v. State of Himachal Pradesh reported in AIR 2018 Supreme Court 4616. Honble Supreme Court in the said case considered the evidentiary value of extra judicial confession in para No. 13, the Honble Supreme Court has held as follows; "13. Extra-judicial confession is a weak piece of evidence and the Court must ensure that the same inspires confidence and is corroborated by other prosecution evidence. In order to accept extra-judicial confession, it must be voluntary and must inspire confidence. If the Court is satisfied that the extra-judicial confession is voluntary, it can be acted upon to base the conviction. Considering the admissibility and evidentiary value of extra-judicial confession. Further the Honble Supreme Court has referred to previous decision in the case of Balwinder Singh v. State of Punjab reported in 1995 Supp (4) SCC 259, in which it is held as under; "10. An extra-judicial confession by its very nature is rather a weak type of evidence and requires appreciation with a great deal of care and caution. Where an extra-judicial confession is surrounded by suspicious circumstances, its credibility becomes doubtful and it loses its importance." To prove the said facts in the case of State of Rajasthan v. Raja Ram reported in (2003) 8 SCC 180 is also referred which reads as under: "19. An extra-judicial confession, if voluntary and true and made in a fit state of mind, can be relied upon by the Court. The confession will have to be proved like any other fact. The value of the evidence as to confession, like any other evidence, depends upon the veracity of the witness to whom it has been made." 28. An extra-judicial confession, if voluntary and true and made in a fit state of mind, can be relied upon by the Court. The confession will have to be proved like any other fact. The value of the evidence as to confession, like any other evidence, depends upon the veracity of the witness to whom it has been made." 28. Therefore, for accepting the admissibility of the extra judicial confession the prosecution has to prove that the same inspires confidence and is corroborated by other prosecution witnesses. In order to accept it must be voluntary and inspire the confidence. In the present case the evidence on record goes to show that the alleged extra judicial confession made by accused No.1 is not voluntary. PW 3 and PW 5 have stated that when they inquired accused No.1 at Muddebihal about the deceased Sharanabasava he told that he does not know anything about him. Thereafter accused No.1 was taken to the place of these witnesses namely Nelogal and in the complaint itself PW 3 has stated that they induced and inquired accused No.1 to disclose about missing person namely deceased Sharanabasava and only after said inducement it is stated that accused No.1 has made the alleged confession before PW 3 and PW 5. This itself is sufficient to hold that the alleged extra judicial confession made by accused No.1 is not voluntary and as such it does not inspire the confidence and the same cannot be basis for convicting the accused. 29. In the case of Mani v. State of Tamil Nadu reported in 2008(1) Crimes 174 (SC), the Honble Supreme Court in para No. 21 held as follows: "21.The discovery is a weak kind of evidence and cannot be wholly relied upon on and conviction in such a serious matter cannot be based upon the discovery. Once the discovery fails, there would be literally nothing which would support the prosecution case. We have already held that the prosecution has failed to prove that the house where alleged bloodstains were found belonged exclusively or was possessed exclusively by the appellant, we have further pointed out that the discovery was absolutely farcical. There is one other very relevant factor ignored by both the courts that the prosecution never made any attempts to prove that the clothes belonged to the appellants. There is literally no evidence to suggest anything to that effect. There is one other very relevant factor ignored by both the courts that the prosecution never made any attempts to prove that the clothes belonged to the appellants. There is literally no evidence to suggest anything to that effect. Therefore, even if we accept the discovery, it does not take us any where near the crime. Both the courts below have ignored this very important aspect. Once these two important circumstances are disbelieved, there is nothing which would remain to support the prosecution theory. We also fail to understand the finding of the High Court in respect of the motive. In our opinion, there was no motive whatsoever much less entertainable by the present appellant. He had nothing to do with the straying cattle nor was he a party to subsequent altercation between PW 1 Arunachalam and the accused No.2 Moyyasamy. Lastly, there is nothing on record to show that he was a henchman set up to take revenge by accused No.2 Moyyasamy and he was set up by the accused No.1 to revenge. We also did not understand that if there was no motive for Moyyasamy, how could there be any motive entertainable by the appellant. Therefore, even for that circumstance has to go." 30. Therefore, in the present case the discovery of the dead body of the deceased at the instance of accused cannot be accepted in order to convict the accused, since the same is not corroborated by other witnesses. Admittedly the panch witnesses in whose presence the inquest panchanama and recovery panchanamas were drawn have not at all supported the case of prosecution. Therefore, in view of principles laid down in the above referred cases, the case of the prosecution relying only on the evidence of PW 3 and PW 5 as to the alleged extra judicial confession and recovery of the dead body at the instance of accused cannot be held as sufficient to prove the alleged offences against the accused beyond reasonable doubt. Involvement of accused No.2 in the alleged offence is not at all made out by the prosecution. Impleading accused No.2 in this case only on the basis of alleged voluntary statement of accused No.1 which is not permissible in law. Under these circumstances considering entire material on record we hold that the prosecution has miserably failed to prove that accused Nos. Impleading accused No.2 in this case only on the basis of alleged voluntary statement of accused No.1 which is not permissible in law. Under these circumstances considering entire material on record we hold that the prosecution has miserably failed to prove that accused Nos. 1 and 2 committed murder of deceased Sharanabasava and that in order to screen themselves from the punishment they buried the dead body of deceased in the land of PW 22 Basappa. Therefore, the impugned judgment of conviction and order of sentence are liable to be set aside. Accordingly point No. 2 is answered in the negative and point No.3 in the affirmative. 31. Point No.4: In the result, we proceed to pass the following: ORDER 1. Criminal Appeal filed under section 374(2) of Cr.P.C. is hereby allowed. 2. The judgment of conviction and order of sentence dated 23.11.2011 passed in Sessions Case No. 81/2008 on the file of Fast Track Court-I/II, Bijapur is hereby set aside. 3. The appellants/accused Nos. 1 and 2 are acquitted of the offence punishable under sections 302 and 201 R/w section 34 of IPC. 4. Accused Nos. 1 and 2 are set at liberty forthwith if they are not required in any other case. 5. Fine amount if any deposited by the accused Nos. 1 and 2 before the Trial Court shall be refunded to them.