Dismissed

State of Karnataka v. Ashok Ganapati Naik

Karnataka HC17 Aug 2020CRL.A/100146/2015

Case brief

AI extract

What is this about?

Appeals by the victim's father and the State against the acquittal of the accused of offences of murder and causing disappearance of evidence, the victim having been found dead with crush injuries to her head. The court held the circumstances—motive, lodge stay, test identification, call records, last seen and recoveries—not proved, found no perversity in the acquittal and dismissed the appeals.

What did the court decide?

Appeals dismissed; the acquittal of the accused-respondent of offences under Sections 302 and 201 IPC left undisturbed.

State of Karnataka Vs Ashok Ganapati Naik — Murder and Culpable Homicide | Karnataka HC (2020)

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IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH

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DATED THIS THE 17^TH DAY OF AUGUST 2020

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PRESENT

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THE HON’BLE MR. JUSTICE B.M. SHYAM PRASAD

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AND

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THE HON’BLE MR. JUSTICE V. SRISHANANDA

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CRIMINAL APPEAL NO.100097/2015 C/W. CRIMINAL APPEAL NO.100146/2015

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IN CRL.A.NO.100097/2015

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BETWEEN

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VISHNU BHEERAPPA NAIK AGE: 54 YEARS, OCC: TAILORING R/O. CHITRAGI, KUMTA, DIST: UTTARA KANNADA

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... APPELLANT

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(BY SRI.M B GUNDAWADE, ADVOCATE)

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AND

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ASHOK GANAPATI NAIK AGE: 28 YEARS, OCC: BUSINESS R/O. TALGUPPA, MARTUR SAGAR, DIST: SHIVMOGGA

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STATE OF KARNATAKA BY STATE PUBLIC PROSECUTOR HIGH COURT OF KARNATAKA DHARWAD BENCH, AT DHARWAD THROUGH KUMTA P S

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... RESPONDENTS

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(BY SRI.K L PATIL, ADVOCATE FOR R1, SRI.V.M.BANAKAR, ADDL. SPP FOR R2)

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THIS CRIMINAL APPEAL IS FILED U/S 372 OF CR.P.C. SEEKING TO PASS A JUDGMENT AND ORDER OF CONVICTION BY SETTING ASIDE THE JUDGMENT AND ORDER OF ACQUITTAL PASSED BY THE DIST. & SESSIONS JUDGE, UTTARA KANNADA, KARWAR, DATED 28.02.2015 IN S.C.NO.70/2011 BY ALLOWING THE PRESENT APPEAL AND PASS JUDGMENT OF CONVICTION AND ORDER ON SENTENCE AGAINST THE RESPONDENT NO.1/ACCUSED FOR THE OFFENCES P/U/S 302 & 201.

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IN CRL.A.NO.100146/2015

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BETWEEN

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STATE OF KARNATAKA R/BY THE POLICE SUB INSPECTOR KUMTA POLICE STATION, THROUGH THE ADDL. STATE PUBLIC PROSECUTOR ADVOCATE GENERAL OFFICE, HIGH COURT OF KARNATAKA DHARWAD

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... APPELLANT

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(BY SRI.V.M.BANAKAR, ADDL. SPP)

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AND

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ASHOK GANAPATI NAIK AGE: 28 YEARS, OCC: BUSINESS TALGUPPA, MARTUR, SAGAR SHIVAMOGA DISTRICT

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... RESPONDENT

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(BY SRI.K L PATIL, ADVOCATE)

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THIS CRIMINAL APPEAL IS FILED U/SEC.378(1) & (3) OF CR.P.C., PRAYING TO GRANT SPECIAL LEAVE TO APPEAL AGAINST THE JUDGMENT AND ORDER OF ACQUITTAL PASSED ON 28.02.2015 IN S.C. NO.70/2011 ON THE FILE OF DISTRICT AND SESSIONS JUDGE, UTTARA KANNADA, KARWAR AND TO SET ASIDE THE JUDGMENT AND ORDER OF ACQUITTAL DATED 28.02.2015 IN S.C. NO.70/2011 ON THE FILE OF DISTRICT AND SESSIONS JUDGE, UTTARA KANNADA, KARWAR AND TO CONVICT THE RESPONDENT / ACCUSED FOR THE OFFENCES PUNISHABLE U/SECS.302 AND 201 OF I.P.C.

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THESE CRIMINAL APPEALS COMING ON FOR HEARING THIS DAY, B.M. SHYAM PRASAD, J., DELIVERED THE FOLLOWING:

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JUDGMENT

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These appeals are filed calling in question the judgment dated 28.02.2015 in Sessions Case in S.C. No.70/2011 on the file of the District and Sessions Judge, Uttara Kannada, Karwar (for short, ’’ the Sessions Court ’). The Sessions Court by the impugned judgment has acquitted the accused – respondent of offences punishable under Sections 302 and 201 of the Indian Penal Code (for short, ‘ IPC’ ). The first of the appeals in Criminal Appeal No. 100097/2015 is filed by Sri.Vishnu Bheerappa Naik, a victim’s father. The victim is Kum. Divyashree who was found dead on 01.06.2011 at Goregudda, Kumta. The other appeal in Criminal Appeal No. 100146/2015 is filed by the State.

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The prosecution’s case is summarized thus:

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2.1 The accused-respondent and the deceased Kum. Divyashree, a resident of Chitragi village, Kumta taluk, were in love. The accused-respondent was residing in Thadi village about eight years prior to 2011,

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and he came in contact with the deceased Kum. Divyashree through his friend, Sri. Girish Naik. Though the accused-respondent had shifted from Thadi village and was residing as of 2011 in Holenarasipura, Hasan District (where he was running a canteen) he continued to be in contact with the deceased Kum. Divyashree.

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2.2 The accused-respondent purchased a mobile

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and a sim-card in his name which he handed over to the deceased Kum. Divyashree, and she was using the phone/ sim card to keep in touch with the accusedrespondent. The parents of the deceased Kum. Divyashree had called upon the accused-respondent and his family members at Holenarasipura to initiate matrimonial alliance, and the accused-respondent and his friend had also met the deceased Kum. Divyashree’s parents at Kaagal, Kumta, in the residence of Sri. Girish Nayak. The deceased Kum. Divyashree’s family members were reluctant to solemnize the matrimonial alliance but the deceased Kum. Divyashree was

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insisting upon the accused-respondent to marry her threatening him that if he could not take her in marriage she would commit suicide leaving behind a death note implicating him.

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2.3 On 30.05.2011, the deceased Kum.

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Divyashree and her parents traveled to their native place to attend her grandmother’s the 12^th day obsequies. The deceased Kum. Divyashree’s father, the appellant in Crl. Appeal No. 100097/2015 – hereafter referred to as the Appellant - returned to Chitragi, Kumta (their place of residence) in the early hours of 31.05.2011. But, the deceased Kum. Divyashree and her mother returned later but the same morning. Kum. Divyashree on reaching Chitragi bus stand left for Kumta saying that she would call on her employer and collect the salary dues and return home in the evening.

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2.4 The appellant called the accused-respondent to know why the deceased Kum. Divyashree had not

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returned though it was late in the evening. The accusedrespondent informed him that he was not in contact with the deceased Kum. Divyashree for about a month and he was not aware about her whereabouts. Later, on 01.06.2011 the accused-respondent himself called the appellant to verify whether the deceased had returned. The deceased’s father, who by then had come to know that Kum. Divyashree had died, informed the accused-respondent about her demise.

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2.5 Sri Krishna Naik, a resident of Kadekodi,

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Kumta lodged the first information with PSI, Kumta stating that while he was conversing on his mobile with one of his acquaintances, he learnt that an unidentified body of a woman was found at Goregudda. When he went to Goregudda, and looked around he found the dead body of a woman aged between 18-20 years. The body was half nude and it appeared that the head was crushed. He gathered an impression that someone had sexually assaulted the woman and crushed her head.

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On verification, he learned that the deceased was Kum. Divyashree, a resident of Chitragi and that she had gone up the Goregudda hill around 12.00 P.M. on 31.05.2011.

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2.6 The PSI, Kumta registered FIR in Crime No.132/2011 for the offences punishable under Sections 376 and 302 of IPC against unknown persons. The police, during the investigation, collated certain call records, and to ascertain whether any suspect could have stayed at a lodge in Kumta, verified with the lodges. The police inspected the register of M/s Vaibhav Lodge, Kumta and found that a guest, Sri.Shankar, resident of Shikaripura, Shivamogga had checked in to room No.706 on 30.05.2011 and had mentioned his mobile number as 8147947234.

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2.7 The police on 11.06.2011 came to know through informants that the suspect, Sri.Shankar was at Talaguppa Bus stand and therefore, they immediately

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rushed to Talaguppa Bus stand. The accused-

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respondent was apprehended there. The accusedrespondent’s voluntary statement was recorded. He stated that he had dumped the deceased’s mobile/sim card and her bag into Sharavati river at Honnavara and volunteered to show the place from where he had dumped these belongings.

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2.8 The police based on the accused-

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respondent’s voluntary statement could recover the stones used by him to smash the deceased’s head but they could not recover the deceased’s mobile, sim card and bag. The police could also later record the statements of relevant witnesses who have spoken about the circumstances that establish the accusedrespondent’s culpability.

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The police filed charge-sheet against the

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accused-respondent. The learned Magistrate, after due compliance with the provisions of Section 207 of the

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Code of Criminal Procedure (for short, ‘Cr.P.C.’ ),

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committed the case for trial by the Sessions Court. On committal, the Sessions Court secured the presence of the accused who was in judicial custody. Upon hearing the learned Public Prosecutor and the leaned counsel for the accused-respondent, the Sessions Court, being of the view that there was material to proceed against the accused-respondent for the offences punishable under Sections 302 and 201 of IPC, framed Charges against the accused-respondent for such offences. The accused-respondent pleaded not guilty and claimed trial.

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The prosecution has examined 24 witnesses to establish that the accused-respondent and the deceased Kum. Divyashree were in a relationship; that the accused-respondent and the deceased Kum. Divyashree conversed regularly over their mobile phones and they were conversed on 30.5.2011 and 31.5.2011; that the accused-respondent reached Kumta on

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30.5.2011 and stayed in a lodged there; that the accused-respondent and the deceased Kum. Divyashree were last seen together in the afternoon of 31.5. 2011 at Kadekodi Bus Stand going towards Goregudda; that the police is able to recover incriminating material at the instance of the accused-respondent.

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5. The prosecution has examined Sri. Krishna

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Naik, the first informant as PW1, and from amongst the deceased Kum. Divyashree’s relatives/ acquaintance, the prosecution has examined her father, Sri.Vishnu Naik as PW.5 , her cousin, Sri. Girish Nayak (who is also a police personnel) as PW 7, her former co-employee, Sri. Giridhar Venkatesh Kumta as PW.9, her acquaintance, Sri.Raghavendra Naik, as PW.15. The prosecution has also examined the accusedrespondent’s friends, Sri Ravi Nayak, and Sri Srikanth, as PW 10 and PW 12.

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6. The prosecution, amongst the official

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witnesses, has examined Dr Deepak, who examined the accused respondent for injuries, as PW 13, Dr Vinod, who has conducted the post-mortem as PW 14 and the Asst Engineer, Sri Manjunath Vishnu Hegde, who has drawn a rough sketch of the place of occurrence, as PW 8; amongst the police personnel, the prosecution has examined the constables who have received the first information, registered the FIR and carried the FIR to the magistrate as PW 17, PW 18 PW 19 and PW 20, the Inspector who has taken the dead body for post-mortem as PW 16, the constable who has secured (over emails) the mobile details such as the application for purchase of the Sim card and the call records details as PW 21 and the investigating officers as PW 22 and PW 23. The prosecution has examined the incumbent Tahasildar, Sri Vittal, in whose presence the test identification parade was conducted, as PW 24.

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The prosecution to establish that the

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accused-respondent travelled to Kumta on 30.5.2011 and stayed in M/s Vybhav Lodge, has examined it’s Accountant, Sri Raghunath, as PW 3 and its receptionist, Sri Yashwant Honappa Nayak, as PW11. Lastly, the prosecution to prove the drawing up of spot mahazar, a spot sketch and mahazar for seizure of material objects found on the body of the deceased as per M.O. 1 to M.O. 7 has relied upon the evidence of the complainant, Sri Krishnan Narayan Nayak, PW1, and insofar as drawing up of the inquest report and seizure mahazar for seizure of the material objects from where the dead body was found such as blood stained stones, a pair of slippers and hair clips, the prosecution relies upon the evidence of Sri Suresh who is examined as PW 3. The prosecution, as regards the recovery at the instance of the accused-respondent, relies upon the evidence of Sri Dattatreya Ananth Bhatt who is examined as PW 4, and this witness has spoken about

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the police recovering certain stones pursuant to the accused-respondent’s voluntary statement.

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As regards the exhibits, the complaint is

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marked as Exhibit P.1. The spot panchanama drawn at the place of occurrence is marked as Exhibit P.2. A Rough sketch is marked as Exhibit P.3. The Inquest panchanama is marked as Exhibit P.4. The clothes seizure panchanama is marked as Exhibit P.5. The Ledger of hotel Vaibhav is marked as Exhibit P.7, and the mahazar for seizure of this Ledger is marked as Exhibit P.6. The accused-respondent’s Voluntary Statement is marked as Exhibit P.8. The Seizure panchanamas are marked as Exhibit P.9 and Exhibit P.10. The deceased’s Photograph is marked as Exhibit P.11. The FSL report and another Spot sketch are marked as Exhibits P.12 and 13. The Test Identification Parade Report is marked as Exhibit P.14. The Accused – respondent’s Medical certificate is marked as Exhibit P.15. A copy of letter of PSI to the Medical Officer to

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examine the accused - respondent is marked as Exhibit P.16. The P.M. report is marked as Exhibit P.17. The Final Forensic Opinion is marked as Exhibit P.18. A report to produce the deceased’s jewellery handed over at the time of the Post Mortem Report is marked as Exhibit P.19. The First Information Report and Report on carrying the FIR are marked as Exhibit P.20 and P 21. The Call details of the mobile No. 8147947234 and 9844977992 are marked as Exhibits P.22 and P.23.

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Further, the Cell ID and tower ID

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information of 973976225 and 9844977992 are marked as Exhibits P.24 to P.26. A copy of the application and the copies of the document submitted at the time of purchasing SIM-Card such as driving license and voter ID card are marked as Exhibits P.27 and P.28. A photo of the dead body is marked as Exhibit P.29. A Letter of Taluka Executive Magistrate, Kumta is marked as Exhibit P.30. The FSL reports are marked as Exhibits P.31 to P.33. The Reports by the police personnel are

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marked as Exhibits P.34 to P.36 and C.D. of photo is marked as Exhibit P.37. Material Objects are also marked as MOs.1 to MO.17.

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The accused-respondent did not lead any evidence but he got certain portions of the appellant’s statement recorded under Section 161 of Cr.P.C. marked as Exhibit D.1 and D.2. The accusedrespondent in his statement recorded under Section 313 of Cr.P.C. has denied the incriminating material against him, and in fact, he has filed a detailed statement in writing under Section 313 of Cr.P.C.

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The accused-respondent in his statement has stated that he is a resident of Martur village, Sagar Taluk. About 7-8 years prior to the alleged incident he was working under Sri. Jayant Naik, a resident of Gokarna. During this time he came in contact with Sri. Girish Naik (P.W.7), a police constable with whom he attended a temple festival during the year 2009. The

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deceased had accompanied Sri. Girish Naik,. When she was attending computer classes at Kumta she would call him on his mobile, and both of them developed affection for the other: overtime she informed him and her parents that she was keen to marry him. Later, in the year 2010 he shifted to Holenarasipura from Thadi and set up a canteen there. The deceased’s father and her relatives visited Holenarasipura to speak about the marriage alliance and he had also traveled to Bada (where Sri Girish Nayak – PW7) resided.

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The accused respondent continues to detail

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that about 3-4 months prior to the incident, the deceased Kum. Divyashree informed him that her parents were not convinced about solemnizing their marriage and were keen on getting her married to someone else. She would call on his mobile repeatedly and insist on him to take her away from her maternal place. He was also calling her back. But each time he would tell her that he was certain that they could not

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marry without her parents’ consent. However, she would continue to insist stating that he must call on her at Kumta at least once, otherwise she would put to an end to her life by committing suicide.

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The accused-respondent has also detailed that because of her insistence, he traveled to Kumta on 30.05.2011 carrying with him for her a new pair of chappals and a sweet box. When he called her on mobile she informed him that she had traveled to attend the obsequies ceremonies for her grandmother and she would meet him next day morning at 10.00 o’clock at Kumta bus stand. She called him repeatedly even in the morning on 31.05.2011. He spent the night intervening between 30.05.2011 and 31.05.2011 in Kumta bus stand. Kum. Divyashree met him at Kumta bus stand next day morning around 10.00 o’clock and they spent an hour talking to each other when he gave her a pair of chappals and the sweet box that he had carried with him.

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The accused-respondent has further detailed

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that she informed him that her parents are finalizing her marriage to someone else and he must take her with him to Holenarasipura immediately and marry her; otherwise, she would commit suicide. He counseled her

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and left her saying that he was going back and she, feeling rejected, started to go to her gas agency office. She left around 11.15 A.M. He caught a bus at around 11.30 A.M., and around 12.00 o’clock, when he was near Honnavara, he called the deceased Ku. Divyashree once or twice but she did not respond. He has further stated that he called the deceased’s parents on 01.06.2011 to know about the deceased, but they did not respond. The Kumta police apprehended him in Holenarasipura on 10.06.2011 and brought into Kumta police station on 11.06.2011. He has not given any voluntary statement or taken the Kumta police to any place. He never had any intention of committing the

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murder of Kum. Divyashree. He is innocent and Kum. Divyashree could have hurt herself.

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The Sessions Court while concluding that the Kum. Divyashree’s demise is homicidal has concluded that the prosecution’s case is not consistent and the evidence on record does not inspire confidence to reasonably conclude that the accused-respondent is guilty of having committed the murder of Kum. Divyashree by crushing her head with stones, and in order to evade all consequences, tried to create an impression that the deceased was sexually assaulted by pulling her lower garments to her knee and destroying her personal belongings. The Sessions Court has opined that the prosecution’s case against the accusedrespondent being circumstantial, the prosecution has failed to establish circumstances such as motive or the accused-respondent being last seen with the deceased Kum. Divyashree, or the recovery of incriminating material.

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The learned Additional State Public

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Prosecutor and the learned counsel for the appellant have argued in support of the appeals contending that the prosecution is able to establish, and in fact the accused-respondent has not disputed that the accusedrespondent and the deceased Kum. Divyashree remained in contact through out though the accusedrespondent had shifted to Holenarasipura; that there were talks of matrimonial alliance between them with the deceased Kum. Divyashree’s parents meeting the accused-respondent at Holenarasipura and the accused-respondent also meeting them along with his friend (PW 10); that the deceased Kum. Divyashree’s parents were not inclined in favour of the alliance but the deceased Kum. Divyashree was insisting upon the accused-respondent to marry her against the wishes of her family; that the accused-respondent was under duress because the deceased Kum. Divyashree threatened to commit suicide leaving behind a death

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note mentioning his name; that the accused-respondent was in Kumta from the evening of 30.5.2011 till the afternoon of 31.5.2011; that during this period the accused-respondent was not only in touch with the deceased Kum. Divyashree over mobile but had also met her and given certain gifts such as slippers that were found at the place of occurrence. As such, the prosecution’s case as regards motive for the accusedrespondent and he having met the deceased Kum. Divyashree in the immediate proximity of her homicidal demise is undisputed and is also established beyond any doubt.

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The learned Additional State Public Prosecutor and the learned counsel for the appellant emphasised that it is also established, and undisputed by the accused-respondent, that the deceased Kum. Divyashree died homicidal death because of the injuries to her head caused by crushing with a stone. The prosecution is able to establish that the accused-

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respondent was last seen with the deceased Kum. Divyashree at Kadekodi Bus stand. They were seen walking together towards the Goregudda Hill where the dead body was found at around 12 o’clock on 31.5.2011 and the accused-respondent returning alone to Kadekodi Bus Stand. The prosecution’s case in this regard based on the evidence of PW 6 and the call records marked as Exhibit P 22-P 24 is credible. The Sessions Court has erred in concluding that the evidence of PW 6 is unbelievable and the call records as per Exhibit P 22-P 26 cannot be accepted.

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The learned Additional State Public

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Prosecutor and the learned counsel for the appellant argued that the prosecution is also able to establish that the accused-respondent stayed at M/s Vybhav Lodge, Kumta during the night intervening 30.5.2011 and 31.5.2011 under an alias and he did not spend that night at the Kumta Bus Stand. The prosecution’s evidence in this regard based on the testimony of the

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receptionist of this Lodge (PW 11) and the Ledger of registration (Exhibit P7) is unimpeachable. The prosecution is also able to establish that, at the instance of the accused-respondent as per his Voluntary Statement (Exhibit P8), and as spoken to by an independent Panch witness (PW 4), stones used to cause the crush injuries were recovered though the deceased Kum. Divyashree’s mobile and bag were not recovered because they were dumped into the river. The prosecution, which is thus able to establish that the accused-respondent was last seen with the deceased Kum. Divyashree in the immediate proximity of her demise, the motive for the accused-respondent to cause her demise, the accused-respondent staying in Vaibhav Lodge under an alias and the presence of the accusedrespondent in the vicinity of the place of occurrence as per the call records, has been able to establish completely, without any room for reasonable doubt, the chain of circumstances which inculpate the accused-

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respondent. The only reasonable hypothesis could be that the accused-respondent is guilty. Therefore, the accused-respondent must be convicted and appropriately sentenced.

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The learned counsel for the accused-

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respondent, on the other hand, argued that the Sessions Court on proper appreciation of the evidence has concluded that the prosecution’s case is inconsistent and the evidence does not inspire confidence. Therefore, the presumption of innocence which was available to the accused-respondent during trial is affirmed by the Sessions Court’s finding. It is settled law that in the case of an appeal against an acquittal, because of the affirmation of innocence of an accused after trial, there cannot be interference unless some perversity or infirmity is pointed out in the order of acquittal. None of the grounds urged either by the learned Additional State Public Prosecutor or the

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learned counsel for the appellant point to any such perversity or infirmity.

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The learned counsel canvassed that the

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witness, who speaks about seeing the accusedrespondent with the deceased Kum. Divyashree at Kadekodi Bus Stand and going towards Goregudde hill in the morning of 31.5.2011 (PW 6), is indisputably a planted witness. The call records do not further the prosecution’s case in any manner whatsoever. The prosecution’s case that the accused-respondent stayed overnight in a room with M/s Vybhav Lodge is not established by cogent and credible evidence. The evidence placed on record by the prosecution demonstrates that the deceased Kum. Divyashree was in contact with Sri Diwakar Jatappa Naik and she had called on his mobile around the time the prosecution contends that the deceased Kum. Divyashree was done to death, but this person has not been examined. In the aforesaid circumstances, the session Court’s finding

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that the prosecution has failed to establish the accusedrespondents culpability is unexceptionable.

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The question that arises for consideration is:

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Whether the Sessions Court’s finding that the evidence placed on record by the prosecution to substantiate it’s case that the accused-respondent is guilty of committing the murder of the deceased Kum. Divyashree by causing fatal crush injuries on her head and causing the disappearance of evidence to mask his guilt, is either perverse or suffers from legal infirmit y.

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The prosecution wants to establish that the accused-respondent met the deceased Kum. Divyashree at Kadekodi Bus stand around 11 o’clock on 31.5.2011, and walked with her towards Goregudda Hills, Goregudda, Kumta and did her to death by causing fatal crushing head injuries, while the accusedrespondent’s defence, as mentioned in his written statement under section 313 of Cr.P.C., is that at the instance of the deceased Kum. Divyashree he met her on 31.5.2011 at Kumta Bus Stand, spoke to her over an

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hour convincing her that they cannot marry against the wishes of her family members and they parted ways at the bus stand. It is also the accused-respondent’s defence that the deceased Kum. Divyashree could have committed suicide. Therefore, the evidence will have to be examined to assess whether the prosecution, which relies upon a set of circumstances, is able to establish completely such circumstances and those circumstances would be consistent only with the conclusion that the accused-respondent is guilty of committing the murder of the deceased Kum. Divyashree and destroying evidence. If the prosecution is not able to establish such circumstances or the circumstances do not point to the guilt of the accusedrespondent alone, given the settled law as regards the interference by an appellate court in an appeal against order of acquittal, this Court cannot interfere with the Sessions Court’s finding.

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The prosecution relies upon (a) the motive for

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the accused-respondent to commit the murder of the deceased Kum. Divyashree, (b) the accused-respondent checked-in to M/s Vybhav Lodge in the evening of 30.05.2011 under an alias but correctly mentioning his mobile number, (c) a staff of the lodge has identified him during the investigation in a Test Identification Parade and in the Court, (d) the call records and location details collated during the investigation, and (e) the recoveries made including the recovery at the accusedrespondent’s instance.

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The prosecution’s case as regards motive is that though the deceased Kum. Divyashree’s parents had met the accused-respondent at Holenarasipura to initiate talks of marriage and the accused-respondent had also met them at the residence of Sri Girish Nayak (PW 7)-a cousin of the deceased Kum. Divyashree, they were unwilling to solemnise the marriage because they were not convinced with the accused-respondent’s

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conduct and the accused-respondent committed the murder of the deceased Kum. Divyashree because she was forcing him to marry her threatening that she would commit suicide. The deceased Kum. Divyashree ‘s father, Sri Vishnu Bheerappa Nayak (PW 5) has stated in his evidence that he and his family members had not yet decided on the matrimonial alliance between the accused-respondent and the deceased Kum. Divyashree.

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The deceased Kum. Divyashree’s cousin, Sri Girish Devappa Naik - it is contended on behalf of the accused-respondent that he has been falsely implicated in the case at this person’s instance - while admitting that the accused-respondent and his friend had visited his residence to meet the family members of the deceased to finalise the matrimonial alliance after her parents had been to Holenarsipura states that the parents of the deceased Kum. Divyashree, had refused to agree to the matrimonial alliance.

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In the background of the admitted fact that

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the accused-respondent and deceased Kum. Divyashree were in love with each other and they had remained in contact over the mobile phone right till the demise of the deceased Kum. Divyashree, this divergence in the testimony of the father and the cousin, in the considered opinion of this Court, creates serious doubt about the prosecution’s case as regards the motive for the accused-respondent to cause the demise of the deceased Kum. Divyashree.

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The prosecution next relies upon what is canvassed as a crucial circumstance viz ., the accusedrespondent staying overnight at M/s Vybhav Lodge and checking out of the Lodge in the morning of 31.5.2011 before heading to meet the deceased Kum. Divyashree at Kadekodi Bus Stand. The prosecution relies upon the testimony of PW 3 and PW 11, the Test Identification Parade conducted in the presence of the jurisdictional Tahasildar (PW 24) and the Ledger-register maintained

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at the reception of the Lodge to register the name of the guests or check-in (Exhibit P7) to establish this crucial circumstance.

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The testimony of PW 3, Sri Raghunath, an

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accountant with the lodge, is not helpful to the prosecution because he is categorical that he has not seen the accused-respondent. The receptionist at the Lodge, Sri Yashwant (PW 11) has stated that on 30.05.2011, the accused-respondent checked-in to the lodge as ‘Shankar’ and mentioned his mobile number as 8147947234 and when he was summoned by the Tahasildar (PW 24) to participate in Test Identification Parade to be held on 7.7.2011, he had been to the Tahasildar’s office on 7.7.2011 and he identified the accused-respondent from amongst four persons as the person who had checked-in on 30.5 2011 as ‘Shankar’.

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The Tahasildar (PW 24) deposing in similar lines has stated that this witness, Sri Yashwant (PW 11), was able to identify the accused-respondent, but the Tahasildar

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says the witness identified the accused-respondent from amongst five persons.

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It would be significant to consider that Sri

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Yashwant (PW 11) has stated in the cross-examination that about 100-150 persons check-in as guests each day and the management of the Lodge subscribed to multiple local dailies. He generally reads the local dailies. The evidence that the accused checked-in to the Lodge on 30.5.2011 and he identified the accusedrespondent in a Test Identification Parade conducted by the Tahasildar will have to be examined in the light of this evidence as well as the evidence as regards the date on which the dead body was found, the date on which the accused-respondent was apprehended and the date on which the Test Identification Parade was conducted.

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It is settled law that the Test Identification

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Parade should be held at the earliest, and if there is delay in conducting the Test Identification Parade, the

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authorities must ensure the delay is sufficiently explained and that all measures are taken to ensure that the delay has not lead to the witness being exposed to the circumstances of the case leading to mistakes on

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the part of the witness. The identification of the accused by a witness in the Test Identification Parade is only a corroborative piece of evidence. A useful reference in this regard could be made to the decision of the Hon’ble Supreme Court in Mulla v. State of Uttar Pradesh reported in (2010) 3 Supreme Court Cases 508¹ .

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Sri Yashwant (PW 11) has deposed that he identified the accused-respondent from amongst 4 persons and the Tahasildar (PW 24) has deposed that

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Sri Yashwant identified from amongst 5 persons including the accused-respondent. The dead body of the deceased Kum. Divyashree was found on 1.6.2011, and

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1 The Hon’ble Supreme Court has reiterated this proposition in the recent decision in State of Uttar Pradesh v. Wasif Hyder reported in (2019) 2 Supreme Court Cases 303

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according to the prosecution, the accused-respondent was apprehended on 11.6.2011. The Test Identification Parade is held on 7.7.2011 after the orders of the learned Magistrate on 30.6.2011. The notice to the witness, Sri Yashwanth to participate in the Test Identification Parade is also issued on 7.7.2011. The discrepancy in the evidence of the aforesaid two witnesses, the delay in the conduct of Test Identification Parade, which is not at all explained, the evidence that there was wide reporting in the dailies about the dead body being found and the investigation and the witness (Sri Yashwanth) being familiar about the circumstances of the case create serious doubt not only about the identification of the accused- respondent in the Test Identification Parade but also the identification of the accused-respondent by this witness in the Sessions court at the time of his evidence.

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The solitary circumstance is that the accused-respondent’s mobile No. 8147947234 is

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mentioned in Exhibit P7 a Ledger of M/s Vybhav Lodge. But in the light of the other evidence discussed, even this circumstance cannot be held against the accusedrespondent. Therefore the prosecution has failed to establish even this crucial link in its chain of circumstances relied upon it to prove its case against the accused-respondent.

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The prosecution next relies upon the testimony of Smt.Geeta Krishna Patgar (PW 6) to establish that the deceased Kum. Divyashree was last seen with the accused-respondent at around 11:30 AM on 31.5.2011 at Kadekodi bus stand and walking towards the Goregudda Hills with the accusedrespondent being seen alone at Kadekodi bus stand around 1:00 PM at the Kadekodi bus stand. Smt.Geeta Krishna Patgar has stated that she saw the accusedrespondent at the Kadekodi bus stand around 11:30 AM on 31.5.2011, and at about 12 PM the deceased Kum. Divyashree joined the accused-respondent after

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alighting from a tempo. Both the accused-respondent and the deceased Kum. Divyashree walked towards the Goregudda Hills. She has also stated that the accusedrespondent returned alone from Goregudda Hills and she could see him being very frightened and sweating. She has identified the deceased Kum. Divyashree stating that she was wearing dress of a particular colour and design.

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However, in her cross-examination she has admitted that she had not seen either the accusedrespondent or the deceased Kum. Divyashree prior to 31.5 2011. She also admits that her land, where she was working when she allegedly saw the accusedrespondent and the deceased Kum. Divyashree, is almost at distance of about a kilometer from the Kadekodi Bus stand. She has also stated that she was in the land from 8 AM in the morning. She cannot state how many people had come to the bus stand or how many vehicles had come to the bus stand or how many

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persons she can indentifying as seeing them on that day, but she is able to identify the accused- respondent and the deceased Kum. Divyashree. These statements are material in assessing the probative value of this witness’s testimony. As observed by the Sessions Court, the witness does not appear to be a natural witness. If this witness cannot be believed, there is no other material on record to conclude that the prosecution is able to establish that the deceased Kum. Divyashree was last seen with the accused-respondent in the immediate vicinity of her demise.

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The prosecution relies upon the call records of the mobile numbers 8147947234, 984407992 and 9739796225. There is no dispute that the first two mobile numbers belong to the accused-respondent and the third number belongs to the deceased Kum. Divyashree. The call records are not accompanied by any certificate as required under the amended provisions of the Indian Evidence Act, 1872: even

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otherwise, the call records and the location details by themselves, given the admitted fact that the accusedrespondent and the deceased Kum. Divyashree were in constant touch over their mobiles and they met in Kumta, would not be significant unless there is specific evidence to corroborate a specific piece of evidence on record.

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It must be observed that none of the

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witnesses have explained the significance of these call records or the location details howsoever. Further, there is no dispute that the deceased Kum. Divyashree had called, from her mobile number 9739796225, Sri Diwakar Jatappa Nayak who was using mobile number 9480449522 in the immediate vicinity of her demise. Sri Raghavendra (PW 15), in whose name this mobile number is 9480449522 is purchased as a prepaid connection, has stated that he knew both the accused-respondent and the deceased Kum. Divyashree and he had handed over the mobile number to Sri

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Diwakar Jatappa Nayak in confidence. This person, Sri Diwakar Jatappa Nayak, has not been examined by the prosecution. Therefore, neither the call details nor the location details collated help the prosecution in proving its case against the accused-respondent.

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The prosecution lastly relies on the

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recoveries made, and given the circumstances of the case, materials amongst them are the recovery of the slippers at the place of incident and recovery of stones at the instance of the accused. The recovery of the slippers at the place of incident is not significant because the accused-respondent has explained in his statement under Section 313 of Cr.P.C. that he handed over a pair of slippers as gift when he met the deceased Kum. Divyashree. This recovery by itself, in the context of the accused-respondent’s defence, would not be of any use to the prosecution’s case. The recovery of stones, as spoken to by Sri. Dattatreya Ananth Bhat (P.W.4) is very doubtful essentially because, admittedly,

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the stones were not even blood stained. As such, the prosecution’s case based on recovery is also very tenuous.

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In the light of the above discussion, this Court is of the considered opinion that the prosecution has not proved the chain of circumstances to establish its hypothesis that the accused-respondent and he alone is guilty of committing the murder of the deceased Kum. Divyashree. The Session Court’s conclusion that the prosecution’s case against the accused-respondent is not consistent and the evidence on record does not inspire confidence is neither perverse nor suffers from

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any infirmity. As such, there is no reason for interference in these appeals and accordingly, the appeals are dismissed.

Sd/-

JUDGE

Sd/JUDGE

State of Karnataka v. Ashok Ganapati Naik

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State of Karnataka v. Ashok Ganapati Naik

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