Criminal appeal by the State against an acquittal of the respondent accused for murder and atrocity under IPC and SC/ST Act. The High Court analyzed prosecution evidence, highlighting contradictions in witness testimony and lack of motive, ultimately upholding the acquittal and dismissing the appeal.
Criminal Appeal No.89/2015 is dismissed.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 18TH DAY OF MARCH, 2021
THE HON’BLE MRS. JUSTICE S.SUJATHA
AND
THE HON’BLE MR.JUSTICE P.N.DESAI
CRIMINAL APPEAL No.89/2015
BETWEEN:
STATE OF KARNATAKA BY GUDIBANDE POLICE STATION-561 209.
... APPELLANT
(BY SRI:VINAYAKA V.S., HCGP)
AND:
DYAVAPPA SON OF GANAPPA @ VENKATARAYAPPA AGE 45 YEARS, VOKKALIGA GIRAYITHI, KIMMATHANAHALLI VILLAGE CHIKKABALLAPURA TALUK-561 209.
…RESPONDENT
(BY SRI:SRINATHA B.V., FOR M.R.NANJUNDA GOWDA, ADVOCATE)
THIS CRIMINAL APPEAL IS FILED UNDER SECTION 378(1) AND (3) CR.P.C PRAYING TO GRANT LEAVE TO APPEAL AGAINST THE JUDGMENT AND ORDER OF ACQUITTAL DATED 30/07/2014 PASSED BY THE LEARNED ADDITIONAL DISTRICT & SESSIONS JUDGE,
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CHIKKABALLAPURA, IN SPECIAL SESSIONS CASE NO.4/2012, THEREBY ACQUITTING THE RESPONDENT/ACCUSED FOR AN OFFENCE PUNISHABLE UNDER SECTION 302 OF IPC AND SC/ST (POA) ACT, 1989 R/W SECTION 3(2)(V) OF THE ACT AND SET ASIDE THE JUDGMENT AND ORDER OF ACQUITTAL BY ALLOWING THIS CRIMINAL APPEAL DATED 30/07/2014 PASSED BY THE LEARNED ADDITIONAL DISTRICT & SESSIONS JUDGE, CHIKKABALLAPURA, IN SPL S.C.NO.4/12, THEREBY ACQUITTING THE RESPONDENT/ACCUSED FOR THE OFFENCES PUNISHABLE UNDER SECTION 302 OF IPC AND SC/ST (POA) ACT, 1989 R/W SEC 3(2)(V) OF THE ACT AND CONVICT AND SENTENCE THE RESPONDENT FOR THE AFORESAID OFFENCES PUNISHABLE UNDER SECTION 302 OF IPC AND SC/ST (POA) ACT, 1989 R/W SEC 3(2)(V) OF THE ACT.
THIS CRIMINAL APPEAL COMING ON FOR HEARING, THIS DAY, P.N.DESAI J., DELIVERED THE FOLLOWING:
J U D G M E N T
This appeal is filed by the State challenging the judgment dated 30.07.2014 passed by learned Addl. District and Sessions Judge, Chikkaballapura in Spl. Sessions Case No.4/2012, wherein the accused were acquitted for the offences punishable under Section 302 of Indian Penal Code (hereinafter referred as 'I.P.C.' for short) and Section 3(2)(v) of The Scheduled Castes and the Scheduled Tribes(Prevention of Atrocities) Act, 1989.(hereinafter referred as 'SC/ST Act' for short).
complainant that the body of his father has fallen near Kamathanahalli tank. In this regard, Manjunath - PW1 lodged a complaint with police. Then Dy.SP of Chikkaballapura took further investigation, visited the place of occurrence, conducted panchanama and recorded the statement of witnesses, sent the body for post-mortem. Then he arrested the accused. He collected the caste certificate of the accused and deceased. After completing the investigation, filed the charge sheet against the accused for the offences stated above.
is erroneous and perverse, which needs to be set aside by this Court.
Sessions Judge and the original records.
There is no evidence that deceased had received Rs.2,000/- under the Sandhya Suraksha Yojana scheme. Prosecution has not proved any motive. Therefore, the learned Sessions Judge on appreciating the evidence came to the conclusion that the prosecution has failed to prove the guilt of accused No.2 beyond all reasonable doubt and acquitted him.
We have reassessed the evidence in the light of the arguments advanced by learned counsels for both sides.
registered on 15.05.2012 at about 12.45 p.m. PW1 has not mentioned in his complaint, presence of any of the eye witnesses who have seen the incident. Only on suspicion, he lodged the complaint.
the company of deceased and they were last seen together. In his evidence before the Court, he has not stated that he has seen the accused in the company of deceased on that day. On the other hand, his evidence indicates that he was at Chikkaballapur on that day and his sister and mother informed him that his father did not return to the house on that day. Then PW1 came to village. He searched for his father at his relatives' house, in his land and around the said village, but he could not find him. On the next day morning at 6.00 a.m., one Thimmappa and Narayanappa informed him that the dead body of his father has fallen near Kamathanahalli tank water canal. Then PW1, his family members went there and villagers also accompanied him. They found the dead body of his father, then his elder sister and one Padamma
told him that the accused had taken his father on previous day in the afternoon at 2.00 p.m. with them.
evidence only sets the criminal law in motion, but does not show any evidence against the accused.
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deceased, then with the same stone, accused No.2 assaulted on the ear of the deceased. Then PW.2 lost consciousness. He has further deposed that coolie persons who were passing there informed Munegowda PW3 over phone about the accused assaulting deceased over phone. Then, Munegowda came in search of him at 7.00 p.m., then, PW2 went to the house of Munegowda and after dinner, he went to his house and slept. He has further stated that he has not informed the incident to anybody. But after 20 days informed the police. PW-2 never stated that PW-3 has also witnessed the incident.
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then went to the house of Ashwathappa. By that time, family member of PW1 were knowing about the death of Ashwathappa. He also went to the spot along with the police. He does not inform Munegowda or his family members or police about witnessing commission of crime by the accused. This evidence is totally contradictory and inconsistent with the prosecution case. It appears he being close relative of deceased some how tried to implicate these accused and he has not seen any incident.
presence of accused No.2 at the time of incident. He deposed that in the evening at about 6.30 p.m., he found PW.2 - Chikkagurumurthy on the way near Kamathanahalli. Then he went to attend the nature call. After return, he found PW.2 in a state of shock and he found the dead body of Ashwathappa near the tank. According to him, accused No.1 dropped a stone on the head of the deceased. Then PW.2 also came there, he consoled PW-2. Then PW.2 accompanied him to his house, had dinner and slept in the house of PW3. Next day, both
of them went to the place of incident. The villagers had already gathered there. After 20 days, he informed the police about witnessing the incident. His evidence is totally contradictory and inconsistent with the evidence of PW2. The prosecution has treated him partly as hostile witness and cross examined him at length, but nothing helpful against accused No.2 is elicited in his cross-examination.
running towards the village, but they did not see where he went. Next day, PW-3 went to the house of Chikkagurumurthy. But found that it was locked. He came to know that all his family members were near the tank where the dead body has fallen. He also went there. Villagers have already gathered there. Neither himself nor PW.2 informed the villagers about witnessing the incident. This is unnatural. When the police were present at the place of incident, they did not inform anybody. Even on the 11th day of ceremony of deceased, they went to the house of PW-1. There also, they did not inform anybody. Only after 20 days after the incident, PW-3 informed the family members of the deceased about witnessing the murder of Ashwathappa. The reason for not informing earlier is not forthcoming. This evidence and his conduct indicates that this witness is also planted as an eye witness and he has not seen the incident. PW-2 himself has not stated about this witness witnessing any incident.
last seen the accused in the company of the deceased. They have not supported the prosecution. It is prosecution case that deceased and accused purchased alcohol from the shop of PW-4 Munikrishnappa on that day. But he has denied having given such statement as per Exs-P5, P6, P7, P8 and P9. Nothing is elicited by the prosecution in the cross examination after treating him as hostile. Witness PW-5 has also denied any money with deceased and quarrel between deceased and accused. Nothing is elicited in his cross examination by prosecution. He has denied his statement before police as per Ex-P12.
circumstantial witness has not supported the prosecution. The prosecution has treated her as hostile, but nothing has been elicited in her cross examination by the prosecution.
was sitting in front of her house, she saw accused and deceased Ashwathappa going together at about 3.00 p.m.. On the next day, she came to know about the death of Ashwathappa. She has stated that she does not know who has murdered Ashwathappa. Her evidence is general and vague one. There is no evidence to show that she is having any house in that road. Why she was present there, how
she know them? Nothing is forthcoming. Such vague evidence will not help the prosecution.
has admitted that he met Ashwathappa at 12 noon near temple, but said Ashwathappa was alone. Again he changed his version, he states that accused and Ashwathappa were proceeding towards Bommanahalli at 3.00 p.m. when he was sitting in the house of Kulme Achari. This is contradictory to his statement Ex-D3. It is evident that PW-1 is his uncle's son. So, he being close relative of PW-1, it is not safe to believe his evidence which does not inspire any confidence in him about last seeing accused and deceased together on the previous day of the incident.
cross-examination, he has admitted that they were not in talking terms with accused Nos.1 and 2. He deposed that he do not get any suspicion as to why his father went along with the accused, when they were not in talking terms. He is also an interested witness. Therefore, his evidence will have to be scrutinized carefully and it is not safe to rely only on his evidence.
witness whose name is also mentioned in Ex.P1 - complaint, as a witness who has last seen the accused in
the company of the deceased - Ashwathappa. He has not stated anything about accused going along with deceased - Ashwathappa. The prosecution has treated him as hostile witness and cross examined him at length. But nothing helpful to the prosecution is elicited. He has denied that he has given statement before police as per Ex-P22 to Ex-P27.
accused No.1 was in his home. Her
cross-examination reveals that it is not safe to believe her evidence as it is totally contradictory and inconsistent with other witnesses and not in corroboration with charge against accused. Chikkaavulakondappa PW-17 has not supported the prosecution. Therefore, she being an interested witness, it is not safe to rely on her evidence.
having any house near the house of the deceased. His evidence appears to be highly interested one.
According to him, the death is due to cardio respiratory arrest, secondary to injury to vital organs such as brain following smashing head of deceased with stone boulder. PW.23 Doctor in his evidence has not stated whether there was any alcohol contents present in the stomach of the deceased. According to him, he has not taken blood sample nor opened the stomach, but it was
separated from the body, then it was stitched at two sides of stomach and sent to FSL. Contents of the stomach were not collected. The evidence of this witness shows that the death of the deceased is homicidal. But the Doctor has not stated the presence of alcohol contents in the stomach of deceased. In the cross-examination, he has stated that no intoxicating substance was found in his body. This creates doubt about the prosecution case that deceased was fully drunk and he was under the influence of intoxication.
receiving the complaint and registering the case in Crime No.165/2012 and arresting the accused at bus stand at 5.00 p.m. He acted only as per directions of his higher officers. His evidence about arrest of accused is contradictory to the evidence of wife of deceased PW-18 Chikkalakshamma.
has not properly investigated the case against the accused. None of the independent witnesses have supported the prosecution case. Therefore, investigation done by him creates doubt about the charge levelled against the accused.
Chikkagurumurthy and PW3 - Munegowda were the eye witnesses. In Ex.P1, the name of Avalkondappa and Nanemma is mentioned as the persons who have last seen the deceased and accused together. They have not supported the case of the prosecution. Though according to the prosecution, the incident took place on 14.05.2012
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in the evening, but the FIR came to be lodged only on the next day in the afternoon at 12 noon. PW1 stated that in the morning at about 7.00 a.m. itself, he has given the complaint to the police. This creates doubt about the genuineness and truthfulness of Ex.P1. PW3 never stated any overt act of accused No.2. PW-2 has not stated presence of PW-3 at the time of incident. When the accused and deceased Ashwathappa were not in talking terms, then why and how this deceased Ashwathappa could go along with them to consume alcohol is not forthcoming. It appears not probable and cannot be believed also. It is in the evidence of prosecution witness that deceased Ashwathappa was fully drunk and had lost control over his body. It appears that he is a habitual drunkard. There is no evidence that he received an amount of Rs.2,000/- under Sandhya Suraksha Scheme and it was with him. PWs.10 and 11 before whom accused No.1 stated to have made extra judicial confession have not supported the prosecution case. The other witnesses are all close relatives of deceased and are interested
witnesses. Their evidence will not inspire any confidence in them.
“40. The prosecution has relied upon the evidence of PW-8 to show that the accused and victims were last seen together. It is settled that the circumstance of last seen together cannot by itself form the basis of holding accused guilty of offence. If there is any credible evidence that just before or immediately prior to the death of the victims, they were last seen along with the accused at or near about the place of occurrence, the needle of suspicion would certainly point to the accused being the culprits and this would be one of the strong factors or circumstances inculpating them with the alleged crime purported on the victims. However, if the last seen evidence does not inspire the confidence or is not trust worthy, there can be no conviction. To constitute the last seen together factor as an incriminating circumstance, there must be close proximity between the time of seeing and recovery of dead body.”
Shailendra Rajdev Pasvan and Others v. State
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of Gujarat Etc., [Crl.A.Nos.333-334/2017, D.D.
13.12.2019], at para No.14 held as under:
“14. Another important aspect to be considered in a case resting on circumstantial evidence is the lapse of time between the point when the accused and deceased were seen together and when the deceased is found dead. It ought to be so minimal so as to exclude the possibility of any intervening event involving the death at the hands of some other person. In the case of Bodh Raj Alias Bodha v/s State of Jammu and Kashmir [(2002) 8 SCC 45], Rambraksh v/s State of Chhattisgarh [(2016) 12 SCC 251, Anjan Kumar Sharma v/s State of Assam [(2017) (6) SCALE 556, following principle of law, in this regard, has been enunciated:-
“The last seen theory comes into play where the time gap between the point of time when the Accused and deceased were seen last alive and when the deceased is found dead is so small that possibility of any person other than the accused being the author of crime becomes impossible. It would be difficult in some cases to positively establish that the deceased was last seen with the accused when there is a long gap and possibility of other persons coming in between exists. In the absence of any other positive evidence to conclude that accused and deceased were last seen together, it would be hazardous to come to a conclusion of guilt in those cases”.
of PW-2 and PW-3 does not inspire any confidence in them. Their conduct in not informing either the family of the deceased or police or any person in the village for nearly 20 days after the incident itself create doubt as to whether actually they have seen any incident. Their evidence appears to be a concocted story which cannot be believed. Their conduct is not of a ordinary human being in a given set of circumstances. There are inherent inconsistencies and improbabilities in their evidence which shows it is not safe to rely on their evidence.
beyond all reasonable doubt and if two views are possible from the evidence, then the view favourable to the accused will have to be accepted.
“14.1. In the case of Babu V/s. State of Kerala [2010] 9 SCC 189, this Court had reiterated the principles to be followed in an appeal against acquittal under Section 378 Cr.P.C. In paragraphs 12 to 19, it is observed and held as under:
12. This Court time and again has laid down the guidelines for the High Court to interfere with the judgment and order of
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acquittal passed by the trial court. The appellate court should not ordinarily set aside a judgment of acquittal in a case where two views are possible, though the view of the appellate court may be the more probable one. While dealing with a judgment of acquittal, the appellate court has to consider the entire evidence on record, so as to arrive at a finding as to whether the views of the trial court were perverse or otherwise unsustainable. The appellate court is entitled to consider whether in arriving at a finding of fact, the trial court had failed to take into consideration admissible evidence and/or had taken into consideration the evidence brought on record contrary to law. Similarly, wrong placing of burden of proof may also be a subject-matter of scrutiny by the appellate court.
25. Considering the aforesaid facts and circumstances of the case, the findings recorded by the learned trial Court, which were based on appreciation of the entire evidence on record cannot be said to be either perverse or contrary to the evidence on record and/or it cannot be said that the trial court did not consider any material evidence on record. The trial court was justified in recording the acquittal by observing that prosecution has failed to complete the entire chain of events. Therefore, we are of the opinion that in the facts and circumstances of the case, the High Court is not justified in reversing the order of acquittal passed by the learned trial court. Under the circumstances, the impugned judgment and order passed by the High Court cannot be sustained and the
same deserves to be quashed and set aside.”
739] , the Hon'ble Apex Court has held thus:
“8. With regard to the powers of an appellate court in an appeal against acquittal, the law is well established that the presumption of innocence which is attached to every accused person gets strengthened when such an accused is acquitted by the trial court and the High Court should not lightly interfere with the decision of the trial court which has recorded the evidence and observed the demeanour of witnesses. This Court in the case of Chandrappa & Ors. v. State of Karnataka laid down the following principles: [(2007) 4 SCC 415]“42. From the above decisions, in our considered view, the following general principles regarding powers of the appellate court while dealing with an appeal against an order of acquittal emerge:
(1) An appellate court has full power to review, reappreciate and reconsider the
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evidence upon which the order of acquittal is founded.
(2) The Code of Criminal Procedure, 1973 puts no limitation, restriction or condition on exercise of such power and an appellate court on the evidence before it may reach its own conclusion, both on questions of fact and of law. (3) Various expressions, such as, “substantial and compelling reasons”, “good and sufficient grounds”, “very strong circumstances”, “distorted conclusions”, “glaring mistakes”, etc. are not intended to curtail extensive powers of an appellate court in an appeal against acquittal. Such phraseologies are more in the nature of “flourishes of language” to emphasise the reluctance of an appellate court to interfere with acquittal than to curtail the power of the court to review the evidence and to come to its own conclusion.
(4) An appellate court, however, must bear in mind that in case of acquittal, there is double presumption in favour of the accused. Firstly, the presumption of innocence is available to him under the
fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent court of law. Secondly, the accused having secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the trial court.
(5) If two reasonable conclusions are possible on the basis of the evidence on record, the appellate court should not disturb the finding of acquittal recorded by the trial court.”
no evidence to show any motive for accused No.2 to commit the murder of Ashwathappa. Therefore, the trial court rightly acquitted the accused by giving benefit of doubt.
Hence, the appeal being devoid of merit, it is liable to be dismissed. Accordingly, we pass the following:
ORDER
Appeal is dismissed.
Sd/JUDGE
Sd/JUDGE
LL/mn/-
3 issues framed by the court
Whether the High Court can interfere with the judgment of acquittal by the trial court in a murder case where the prosecution evidence is contradicted by interested witnesses.
Whether the evidence of eye-witnesses creates a complete chain of circumstances to sustain a conviction for murder.
Whether the last seen theory is established beyond reasonable doubt in cases of long time gap between the incident and discovery of the deceased.
Colour shows how this judgement treated each authority
Digamber Vaishnav and Another v. State of ChhattisgarhReferred¶120
Digamber Vaishnav and Another v. State of Chhattisgarh [(2019) 4 SCC 522] · Who else cites this
Shailendra Rajdev Pasvan and Others v. State of GujaratReferred¶125
Shailendra Rajdev Pasvan and Others v. State of Gujarat Etc., [Crl.A.Nos.333-334/2017, D.D. 13.12.2019]
Anwar Ali and Another v. State of Himachal PradeshReferred¶138
Anwar Ali and Another v. State of Himachal Pradesh [(2020) 10 SCC 166] · Who else cites this
Babu v. State of KeralaReferred¶139
Babu V/s. State of Kerala [2010] 9 SCC 189 · Who else cites this
Chandrappa & Ors. v. State of KarnatakaReferred¶148
Chandrappa & Ors. v. State of Karnataka [(2007) 4 SCC 415] · Who else cites this
Sampat Babso Kale and Another v. State of MaharashtraReferred¶146
Sampat Babso Kale and Another v. State of Maharashtra [(2019) 4 SCC 739] · Who else cites this
5 provisions across 3 enactments
State of Karnataka
Dyavappa
S.SUJATHA
P.N.DESAI
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
