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2020 DIGILAW 1309 (KAR)

Shivappa @ Shivanand v. State Of Karnataka

2020-07-02

B.A.PATIL, M.G.UMA

body2020
JUDGMENT B.A.Patil, J. - The appellant is seeking intervention of this Court in the judgment of conviction and order of sentence dated 12.06.2017 passed by the I Addl. District and Sessions Judge, Bagalkot, sitting at Jamakhandi, in S.C.No.47/2012, whereunder the appellant/accused was convicted and sentenced for the offence punishable under Section 302 of IPC. 2. We have heard the learned counsel Sri. K. L. Patil, for the appellant/accused and the learned Addl. SPP Sri. V. M. Banakar for the respondent-State. 3. The case of the prosecution in brief is that, deceased Shiddavva was given in marriage to one Kashappa about 11 years back. Out of the said wedlock, they have begotten two sons and one daughter and her husband had two wives. The deceased quarreled with her husband without any reason and started residing with her parents at Dadanatti village along with her children. It is the further case of the prosecution that, the deceased used to go for work at lime kiln along with one Laxmibai. Since two years the accused was having close relationship with the deceased. Though all have advised the accused and the deceased, but in stead of stopping the same, they used to meet and developed illicit relationship. It is further alleged that, three days prior to the filing of the complaint, accused abused the relatives of the complainant and on 02.01.2012 at about 8.00 am, the deceased had gone for coolie work at lime kiln, but she did not return. Though search was made, but it went in vain and when they made an enquiry with her friend Laxmibai, she told that they worked up to 3.00 pm and thereafter the deceased went saying that she will go to the village and as the accused often used to meet the deceased, she suspects that he might have taken her on motorbike. On 13.01.2012, they came to know that at J. K. Road of Hebbal village, in the land of Govindappa, body of a female was lying dead in a decomposed position. Immediately the complainant went there and on suspicion he filed the complaint as per Ex.P1. On the basis of the complaint, a case has been registered in Crime No.6/2012. Thereafter, after investigation charge sheet came to be filed. 4. The learned Magistrate committed the case to the Sessions Court. Immediately the complainant went there and on suspicion he filed the complaint as per Ex.P1. On the basis of the complaint, a case has been registered in Crime No.6/2012. Thereafter, after investigation charge sheet came to be filed. 4. The learned Magistrate committed the case to the Sessions Court. The learned Sessions Judge took cognizance and secured the presence of the accused and after hearing, charge was framed. Accused pleaded not guilty. He claims to be tried and as such, the trial was fixed. 5. To prove the case of the prosecution, the prosecution got examined PWs. 1 to 25 and got marked Exs. P1 to P22 and also M.Os. 1 to 7. Thereafter statement of the accused was recorded by putting incriminating material as against him. He denied the same and he has not led any evidence on his behalf nor got marked any documents. On hearing the learned counsel appearing for the parties, the trial Court came to the conclusion that the prosecution has proved the guilt of the accused and convicted him for the offence punishable under Section 302 of IPC. Challenging the legality and correctness of the same, the appellant is before this Court. 6. It is the submission of the learned counsel for the appellant/accused that the entire case rests on circumstantial evidence and there are no eyewitnesses. The prosecution in order to establish its case has to establish all the chain of events. But in the case on hand, though the chain of events were not connected with each other, by overlooking the basic tenets of the law, the trial Court has wrongly convicted the accused. It is his further submission that, though it is the allegation of the prosecution that the accused, who was suspecting that the deceased was also having some intimacy with one Basavaraj Yallappa Mammatageri and in that light the alleged incident has taken place, but none of the witnesses have stated the said motive for the alleged offence. It is his further submission that the prosecution is intending to rely upon the circumstances of last seen theory. In order to substantiate the said fact, it has relied upon the evidence of PWs.8, 14 and 17 and the evidence of the said witnesses is not going to substantiate the fact that they have lastly seen the accused and the deceased prior to the alleged incident. In order to substantiate the said fact, it has relied upon the evidence of PWs.8, 14 and 17 and the evidence of the said witnesses is not going to substantiate the fact that they have lastly seen the accused and the deceased prior to the alleged incident. It is his further submission that the complaint was also not filed immediately after the missing of the deceased and only after the body being traced i.e, after ten days, the present complaint came to be filed. That itself creates doubt in the case of the prosecution. Though there is no clinching evidence as against the accused, the trial Court has erroneously convicted the accused. On these grounds he prayed to allow the appeal and to set aside the judgment of conviction and order of sentence. 7. Per contra, learned Addl. SPP vehemently argued and submitted that the evidence produced clearly goes to show that the accused was having a grievance against the deceased as she was also having relationship with one Basavaraj Yallappa Mammatageri and even the said aspect has also been elicited during the course of cross-examination of PWs. 8, 9 and 10. It is his further submission that the prosecution has clearly established the fact that the accused is in the habit of visiting the J. K. Cement Factory, where the deceased used to attend for lime stone kiln and the evidence of PW8 - Laxmibai also goes to show that it is the accused who has taken the deceased on the motorbike. When the prosecution clearly established the fact that the accused and the deceased were last seen together and subsequently the deceased was found dead, then the accused has to explain when and where he departed the company of the deceased. In the absence of any such material, the only inference which can be drawn is that, it is the accused who has committed the offence. It is his further submission that the motive is also clear and last seen theory has been established and the trial Court by taking into consideration these circumstances, has rightly held that there is evidence as against the appellant/accused and has rightly convicted the accused. The appellant/accused has not made out any good grounds so as to interfere with the judgment of the trial Court. The judgment of the trial Court deserves to be confirmed. The appellant/accused has not made out any good grounds so as to interfere with the judgment of the trial Court. The judgment of the trial Court deserves to be confirmed. On these grounds he prayed to dismiss the appeal. 8. We have carefully given our thoughtful consideration to the submissions made by the learned counsel appearing for the parties and perused the records including the trial Court records. 9. To establish the case of the prosecution, the prosecution got examined as many as 25 witnesses. P.W.1 is the brother of the deceased, who had filed the complaint, as per Ex.P-1 and he has also spoken with regard to the alleged motive for the accused to commit the murder of the deceased. 10. P.W.2 is the panch witness, the accused has shown the scene of the offence in this behalf and inquest mahazar drawn, as per Ex.P-4 and recovery of M.Os.1 to 6 under the said mahazar. 11. P.W.3 is the inquest mahazar pancha to Ex.P-4. P.W.4 is the panch witness to Ex.P-6 and he is also a witness to the seizure mahazar Ex.P-7, whereunder the motorcycle has been seized. P.W.5 is the mother of the deceased. She has spoken with regard to the deceased that after leaving her husband, she came and started residing in their house along with her children and she has also spoken with regard to the motive and the relationship of the accused with the deceased. P.W.6 is the younger brother of the deceased. He has reiterated the evidence of P.W.5. P.W.7 is the material witness with whom deceased used to go for limestone kiln. He has deposed before the Court that after coming to know the illicit relationship of deceased Siddavva with accused, the members of the family of Siddavva advised the accused and accused did not heed to the said advise and accused used to take the deceased on his motorcycle and even though the deceased was also told not to do so, she continued the said act. 12. 12. P.W.8 has deposed that everyday at about 08:00 a.m. to 08:30 a.m. she used to go to work and used to return at 03:00 p.m. and one day, the accused who is present before the Court has taken the deceased Siddavva on his motorcycle and after one day, when she came back to the house after finishing her work, the deceased told that she intends to go to Dadanatti and on the same day, the members of her family came and asked her that the deceased has not come to the house and she told that she has left at 03:00 p.m. to go to the house and she used to move on the motorcycle of Shivappa. Except that she has not deposed anything. 13. P.Ws.9 and 10 speak with regard to the motive. P.W.11 is the adjacent land owner where the body of the deceased was lying. P.W.12 is the scribe of the complaint. He is the person who saw the dead body lying in the land and informed the same to the villagers, but he has not supported the case of the prosecution. P.W.13 is the owner of the limestone kiln. He has not supported the case of the prosecution. P.W.14 is the cousin brother of the deceased, who has lastly seen the accused and the deceased together coming on the motorcycle. P.W.15 is the owner of footwear shop. He has also not supported the case of the prosecution and he has been treated as hostile. P.W.16 has spoken with regard to the motive is concerned and he has also not fully supported the case of the prosecution. P.W.17 is a witness, who has last seen the deceased and the accused together. P.W.18 is the Head Constable, who went along with the Investigating Officer for apprehension of the accused and after apprehending the accused, who was coming on a motorcycle, he brought back the motorcycle by riding it. P.W.19 is the Head Constable, who carried the complaint and the FIR to the Jurisdictional Court. 14. P.W.21 is the Engineer who prepared sketch as per Ex.P-15. P.W.22 is the Police Inspector, who registered the case and apprehended the accused and has partly investigated the case. P.W.23 is also the Investigating Officer, who investigated the case and filed the charge sheet. 15. 14. P.W.21 is the Engineer who prepared sketch as per Ex.P-15. P.W.22 is the Police Inspector, who registered the case and apprehended the accused and has partly investigated the case. P.W.23 is also the Investigating Officer, who investigated the case and filed the charge sheet. 15. P.W.24 is the Doctor, who conducted autopsy over the body of the deceased and issued postmortem report as per Ex.P-20. P.W.25 is the Investigating Officer, who partly investigated the case. 16. In order to bring home the guilt of the accused, in a circumstantial evidence, the prosecution has to first establish the fact that the deceased died a homicidal death. On perusal of the evidence of P.W.24 - Doctor, who has conducted autopsy over the body of the deceased. He has clearly deposed that he has conducted autopsy over the body of the deceased from 04:30 to 06:30 p.m. and the body was fully decomposed and the skull was crushed and the bones were in pieces and he has opined that the death is due to assault, as a result of injury to the head and chest and he has issued postmortem report, as per Ex.P-20. During the course of cross-examination, the death of the deceased has not been disputed. Under such circumstances, it can be safely held that the deceased died a homicidal death. 17. The next circumstances on which the prosecution is intending to rely upon is that of motive. It is the case of the prosecution that the deceased was having illicit relationship with the accused and subsequently she also developed illicit relationship with one Basavraj Mammatageri and the same was objected by the accused and the deceased did not heed to the said advise, in that light he quarrelled with her and has committed the offence. But on perusal of the evidence of all the witnesses, who are relevant and have been got examined before the Trial Court, none of the witnesses have whispered with regard to the said aspect, but they have only deposed with regard to the illicit relationship of the deceased with Basavaraj Mammatageri and about the advise not to continue the illicit relation, to both the deceased and the accused. 18. 18. Even as could be seen from the evidence of P.W.14, he has also deposed with regard to advising the accused and the deceased not to have the said relationship and that the accused and the deceased have neglected the advice. In that light, we are of the considered opinion that the motive which is alleged as against the accused is very weak and even it has not been substantiated with any evidence. Though learned Additional S.P.P. submitted that deceased had illicit relationship with Basavaraj Mammatageri. The same has been suggested in cross-examination. The same substantiates the case of the prosecution, but it is well settled proposition of law that prosecution to win or loose on its own strength and it cannot take advantage of the accused. In that light, the motive has not been established. 19. Be that as it may, the motive which has been alleged appears to be strange. When the deceased Siddavva is having illicit relationship with one Basavraj Mammatageri, then under circumstances, it is natural that the accused could have been eliminated the said Basavraj Mammatageri rather than the deceased. In that light, the motive which has been suggested, creates suspicion and even it is not acceptable. In this behalf, the prosecution has not clearly come up with a specific motive, but only evidence which has been produced is with regard to the relationship with the accused and the deceased. In that light, the evidence is not sufficient to bring home the guilt of the accused. 20. The one more circumstance on which prosecution is intending to rely upon is that of last seen theory. For the said purpose, the prosecution has relied upon the evidence of P.Ws.8, 14 and 17. 21. P.W.8 is the witness, who is friend of the deceased. On perusal of her evidence, she has deposed that one day, the accused has taken the deceased on his motorcycle but the said evidence is not going to substantiate the fact that before the alleged incident, the accused has taken the deceased. Such evidence cannot be considered as last seen and that evidence is not acceptable. 22. On perusal of her evidence, she has deposed that one day, the accused has taken the deceased on his motorcycle but the said evidence is not going to substantiate the fact that before the alleged incident, the accused has taken the deceased. Such evidence cannot be considered as last seen and that evidence is not acceptable. 22. On perusal of the evidence of P.W.14, he has also deposed that about four years back, one day at about 04:00 to 05:00 p.m., he was grazing the sheep and at that time, the accused has taken his sister on motorcycle and thereafter, her sister was missing. Similar evidence has also been stated by P.W.17 to the effect that at about 06:00 p.m., when he was standing near Yadawad cross, at that time accused and deceased went on a motorcycle towards G.K. Factory. On perusal of such evidence, it creates doubt in the case of prosecution. If really they have seen the accused and the deceased going on a motorcycle, then definitely when they came to know that the deceased is missing on 02.01.2012, immediately they could have informed the said fact to P.W.1. Even in the evidence of P.W.14, he himself has deposed in the examination-in-chief that he also searched for her. At that time, he did not disclose that the accused had taken the deceased on his motorcycle and even on suspicion, no complaint has been lodged. Under such circumstances, the evidence of P.Ws.14 and 17 in this behalf creates a doubt to the effect that they have seen the accused taking the deceased on his motorcycle. 23. Be that as it may, even the last seen theory itself is not acceptable in the context of the facts in the present case on hand. Deceased got missed on 02.01.2012. The evidence which has been produced does not specifically say that these witnesses have seen the accused and the deceased going on a motorcycle on 02.01.2012. When a specific allegation has not been made by these witnesses, then under such circumstances, no inference can be drawn that on the alleged date of incident itself the accused has taken the deceased. The evidence which has been produced does not specifically say that these witnesses have seen the accused and the deceased going on a motorcycle on 02.01.2012. When a specific allegation has not been made by these witnesses, then under such circumstances, no inference can be drawn that on the alleged date of incident itself the accused has taken the deceased. The evidence produced by the prosecution clearly goes to show that earlier also deceased and accused used to move on their motorcycle and in that light, the evidence which has been produced to substantiate the last seen theory is not cogent and acceptable and it will not stand to any reason so as to presume that it is the accused lastly taken the deceased and has committed the murder. In that light, the prosecution evidence is lacking. 24. On perusal of the evidence of the other witnesses we find there is no basis for motive and even there is no connectivity in the prosecution evidence. Even in order to substantiate the fact that the accused was grinding an axe against the said Basavraj Mammatageri, neither he has been cited as witness nor he has been examined before the Court and his name is also not appearing in the complaint. Under such circumstances, the motive itself is not substantiating the case of the prosecution. 25. It is well settled proposition of law that where the charge sought to be proved is only on the basis of circumstantial evidence. The motive plays an important role in order to tilt the scale. This proposition of law has been laid down by the Hon'ble Apex Court in the case of Kuna @ Sanjay Behra vs. State of Odisha, (2018) 1 SCC 296 . At para 20 it has been observed as under: "20. That in a case where the charge is sought to be proved only on circumstantial evidence, motive plays an important part in order to tilt the scale was, amongst others underscored in Mohmadkhan Nathekhan Vs. State of Gujarat, (2014) 14 SCC 589 ." 26. It is also well settled proposition of law that if there is lack of clinching evidence in the chain of circumstances, only on the circumstance of last seen together and absence of satisfactory explanation, cannot be the basis for the purpose of conviction. State of Gujarat, (2014) 14 SCC 589 ." 26. It is also well settled proposition of law that if there is lack of clinching evidence in the chain of circumstances, only on the circumstance of last seen together and absence of satisfactory explanation, cannot be the basis for the purpose of conviction. This proposition of law has been laid down by the Hon'ble Apex Court in the case of Anjan Kumar Sarma and others vs. State of Assam, (2017) 14 SCC 359 . At para 19, it has been observed as under: "19. The circumstance of last seen together cannot by itself form the basis of holding the accused guilty of the offence. In Kanhaiya Lal vs. State of Rajasthan, this Court held that: 12. The circumstance of last seen together does not by itself and necessarily lead to the inference that it was the accused who committed the crime. There must be something more establishing connectivity between the accused and the crime. Mere non-explanation on the part of the appellant, in our considered opinion, by itself cannot lead to proof of guilt against the appellant. 15. The theory of last seen - the appellant having gone with the deceased in the manner noticed hereinbefore, is the singular piece of circumstantial evidence available against him. The conviction of the appellant cannot be maintained merely on suspicion, however strong it may be, or on his conduct. These facts assume further importance on account of absence of proof of motive particularly when it is proved that there was cordial relationship between the accused and the deceased for a long time. The fact situation bears great similarity to that in Madho Singh vs. State of Rajasthan." 27. It is well settled proposition of law that when a case is based on circumstantial evidence, the prosecution has to establish the circumstances proved leading to one and only conclusion towards the guilt of the accused. Such evidence must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused. In that light, when the evidence is looked into, it is very scanty and scattered and it will not point out the guilt of the accused. Though such evidence is produced before the Court, the Trial Court without looking into the said aspect, has erroneously convicted the accused. 28. We have carefully perused the judgment of the Trial Court. In that light, when the evidence is looked into, it is very scanty and scattered and it will not point out the guilt of the accused. Though such evidence is produced before the Court, the Trial Court without looking into the said aspect, has erroneously convicted the accused. 28. We have carefully perused the judgment of the Trial Court. It failed to consider the trite of law and has not properly appreciated the evidence and has come to a wrong conclusion. It requires interference at the hands of this Court. 29. In that light, it requires interference at the hands of this Court. In the light of the discussions held by us above, we pass the following order: ORDER The appeal is allowed. The judgment of conviction and order of sentence passed by the I Additional District and Sessions Judge, Bagalkot, sitting at Jamakhandi in S.C. No.47/2012 dated 12.06.2017 is set aside. The Appellant - accused is acquitted of all the charges levelled against him. Bail bonds and surety bonds stand cancelled. The learned District Judge is directed to return the fine amount, if he has deposited, on proper identification and acknowledgement. Registry is directed to send back the Trial Court records forthwith.