A murder prosecution resting on circumstantial evidence resulted in rejection of the State's and complainant's appeals against acquittal. The High Court held that guilt was not proved and found no perversity, illegality or infirmity warranting interference. The acquittal was confirmed.
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.
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R
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 15TH DAY OF NOVEMBER, 2022
PRESENT
THE HON’BLE MR.JUSTICE K.SOMASHEKAR
AND
THE HON’BLE MR. JUSTICE C M JOSHI
CRIMINAL APPEAL No.233 OF 2017
CONNECTED WITH
CRIMINAL APPEAL No.1940 OF 2016
IN CRL.A.No.233 OF 2017
BETWEEN:
THE STATE BY NEW EXTENSION POLICE STATION, TUMAKURU, REPRESENTED BY STATE PUBLIC PROSECUTOR, HIGH COURT BUILDING, BENGALURU-560 001.
...APPELLANT
(BY SRI ABHIJITH K S, ADVOCATE)
AND:
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2 . MOHAN KUMAR @ KUMARA S/O NARASIMHAMURTHY, 30 YEARS, R/O 1ST MAIN, 1ST CROSS, NETHAJI ROAD, VIDHYA NAGAR, TUMKURU-577 101.
3 . SUNIL GOWDA @ GOWDA S/O PRABHAKAR, 29 YEARS, R/O 10TH CROSS, S.S.PURAM, TUMAKURU, NATIVE PLACE, BESIDE P.L.D BANK, K.R.EXTENSION, MADHUGIRI-577 101.
...RESPONDENTS
(BY SRI A H BHAGAVAN, ADVOCATE & SRI A N RADHAKRISHNA, ADVOCATE FOR R3 V/O DTD. 3.11.2022, R1 & R2 ABATED)
THIS CRIMNAL APPEAL FILED U/S.378(1) AND (3) CR.P.C PRAYING TO GRANT LEAVE TO APPEAL AGAINST THE JUDGEMENT AND ORDER OF ACQUITAL DATED 27.08.2016 PASSED BY THE COURT OF VI ADDL. DIST. AND S.J., TUMKURU IN S.C.No.58/2011 ACQUITTING THE RESPONDENTS FOR THE OFFENCE P/U/S 302, 201 R/W 34 OF IPC AND SECTION 114 OF IPC.
IN CRL.A.No.1940 OF 2016
BETWEEN:
R PUTTARANGAIAH
S/O RANGAIAH AGED ABOUT 64 YEARS R/O 1ST LINK ROAD, 8TH CROSS, S I T EXTN, TUMAKURU - 572 101.
...APPELLANT
(BY SRI B VENKAT RAO, ADVOCATE)
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AND:
3 . P SUNIL GOWDA @ GOWDA S/O PRABHAKAR AGED ABOUT 23 YEARS R/O 10TH CROSS, S.S PURAM TUMAKURU - 572 101 NATIVE PLACE: BESIDE P L D BANK K R EXTENSION MADHUGIRI - 572 132.
4 . STATE OF KARNATAKA BY NEW EXTENSION POLICE STATION TUMAKURU REPRESENTED BY STATE PUBLIC PROSECUTOR HIGH COURT OF KARNATAKA BENGALURU - 560 001.
...RESPONDENTS
(BY SRI ABHIJITH K S, ADVOCATE FOR R4 SRI A H BHAGAVAN, ADVOCATE R3 V/O DTD. 3.11.2022, R1 & R2 ABATED)
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THIS CRIMINAL APPEAL FILED U/S.372 CR.P.C PRAYING TO SET ASIDE THE JUDGMENT OF ACQUITTAL DATED 27.08.2016 PASSED BY THE VI ADDL. DIST. AND S.J., TUMAKURU IN S.C.No.58/2011 VIDE ANNEXURE-A AND CONVICT THE RESPONDENT No.1 TO 3/ACCUSED No.1 TO 3 FOR THE OFFENCE P/U/S 302, 201 AND 114 R/W 34 OF IPC.
THESE CRIMINAL APPEALS COMING ON FOR DICTATING JUDGMENT THIS DAY, K. SOMASHEKAR .J DELIVERED THE FOLLOWING:
J U D G M E N T
The State has preferred Criminal Appeal No.233 of 2017 challenging the judgment of acquittal dated 27.08.2016 rendered by the VI Additional District and Sessions Court, Tumakuru in S.C.No.58 of 2011, whereby the Sessions Judge has acquitted accused Nos.1, 2 and 3 for the offences punishable under Sections 302, 201 read with Section 34 of the Indian Penal Code and so also for the offence under Section 114 of the Indian Penal Code, 1860 seeking reversal of the
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judgment of acquittal and to convict the accused for the
aforesaid offences.
The case in Criminal Appeal No.1940 of 2016 has been preferred by the complainant/victim challenging the aforesaid judgment of acquittal in S.C.No.58 of 2011 and the learned counsel, Shri B.Venkat Rao is appointed as a Special Public Prosecutor whereby this appeal is preferred by the appellant in that rank and seeking intervention by considering the grounds urged therein.
so also being the Counsel for Respondent No.3 in Crl.A. No.1940 of 2016; However, Crl.A.No.233 of 2017 has
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been preferred by the appellant being the
complainant/victim and Shri B.Venkat Rao has been appointed as Special Public Prosecutor to prosecute the case of the complainant who has also been appointed as Special Public Prosecutor in S.C.No.58 of 2011 before the Trial Court. The complainant who is a victim has narrated the complaint, whereby criminal law was set into motion. Therefore, the Prosecutor has conducted the case. Consequently, Crl.A.No.1940 of 2016 has been preferred on behalf of the appellant/aggrieved person.
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the arguments/contentions taken in Crl.A.No.1940 of 2016 relating to the status of the parties.
are the parents of the deceased M.P.Raghunatha @ Raghu whereby their son used to play cards by consuming alcohol with his friends in his house, wherein he was residing with his wife who has arraigned as a
witness in the charge-sheet as CW-6, Smt.K.B.Rekha. The aforesaid CW-6 Smt.K.B.Rekha used to reside in her
brother's house, namely, CW-7 Ananthaiah and used to visit the house of her husband, M.P.Raghunatha @ Raghu once in a week. The deceased M.P.Raghunatha @ Raghu was suspecting that accused No.3-Sunil Gowda @ Gowda had developed illicit relationship with his wife, CW-6 Smt.K.B.Rekha. That about one month prior to the incident narrated by the complainant, the deceased M.P.Raghunatha @ Raghu used to commit murder of
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accused No.3 near his residential house. At that time, CW-19 had intervened and pacified the galata took in between accused No.3-Sunil Gowda @ Gowda and so also, the deceased M.P.Raghunatha @ Raghu. The second accused was the friend of the deceased M.P.Raghunatha @ Raghu, but he also used to play cards and consume alcohol and so also smoking cigarettes and watch T.V. in the residential house of the said M.P.Raghunatha @ Raghu. At that time, there was a galata in between them. Therefore, the said M.P.Raghunatha @ Raghu had abused accused Nos.1 and
2 by saying that they are Kuruba, Tigala etc., by caste. Therefore, accused Nos.1 and 2 thinking that the said M.P.Raghunatha @ Raghu may commit their murder, if he is alive. Therefore, accused Nos.1 and 2 took accused No.3 to the residential house of the said M.P.Raghunatha
@ Raghu and told to him that they are ready to compromise with him. At that time also, the said
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M.P.Raghunatha @ Raghu abused accused No.3 in filthy
language and told him that he will kill him if he again see him at Tumakuru. At that time, the said M.P.Raghunatha @ Raghu assaulted accused No.2 over his cheek. At that time, CW-2 had pacified the said galata. Therefore, accused Nos.1 to 3 developed ill-will against the said M.P.Raghunatha @ Raghu and they decided to kill him on
the ground that if they left him, he will not leave them. As on 21.12.2009 at about 10.30 p.m., accused Nos.1 to
3 went to the residential house of the deceased M.P.Raghunatha @ Raghu in a Hero Honda motor cycle bearing Registration No.KA-06-X-9518 with iron long prepared by CW-7. At that time, when accused Nos.1 and 2 went to the residential house of the said M.P.Raghunatha @ Raghu, accused No.3 stood near the
main door of the said house. In the meanwhile, accused Nos.1 and 2 told to the said M.P.Raghunatha @ Raghu that they are ready to compromise with him. But the
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said M.P.Raghunatha @ Raghu abused and insulted them by saying their caste name and picked up knife from the bottom of his bed. At that time, accused No.3 instigated accused Nos.1 and 2 to assault the said M.P.Raghunatha @ Raghu by saying that he will see the matter. At that time, accused No.2 with iron long had assaulted over the right hand, forearm, neck, stomach and over shoulder of M.P.Raghunatha @ Raghu. Therefore, fingers of right hand of M.P.Raghunatha @ Raghu have been severed and that he had sustained grievous injuries. When the said Raghunath with knife in his hand fell down, accused No.1 picked up the said knife and twisted it over his chest, back and hand fingers and caused grievous injuries, and that therefore, the said M.P.Raghunatha @ Raghu died. Thereafter, the accused picked up mobile phone of M.P.Raghunatha @ Raghu and ran away from the said house with weapons and motor cycle. Thereafter, they threw iron long and knife said to have
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used by them to commit the murder of the said M.P.Raghunatha @ Raghu to Devarayapatna Tank. Accused No.1 alleged to be in the possession of the mobile of M.P.Raghunatha @ Raghu and threw it to a road side during the night time when he was proceeding in a motor cycle. It is in this backdrop and also committing the murder of the deceased M.P.Raghunatha @ Raghu by the offenders being arraigned as accused and based upon the complaint filed by the complainant, criminal law was set into motion by recording FIR for the offences punishable under Sections 302, 201 read with Section 114 of the Indian Penal Code.
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seizure mahazar and so also securing the material objects relating to weapons for the offence used by the accused persons. After completion of the investigation, the I.O. has laid the charge-sheet against the accused persons before the Committal Court.
passed an order under Section 209 of Cr.P.C. for committing the case to the Sessions Court for trial. Accordingly, the case in S.C.No.58 of 2011 has been registered. Subsequently, the accused engaged the services of the counsel and whereby the Sessions Court heard the arguments of the learned Public Prosecutor and the defence counsel relating to framing of charges and prima-facie materials found against the accused and consequently, read out the charges relating to the offences under Section 302, 201 r/w Section 34 of IPC and so also under Section 114 of IPC, whereby the accused have not pleaded guilty but claims to be tried.
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Accordingly, the plea of the accused has been recorded separately.
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perused the evidence of PW-14 being the doctor wherein he has conducted the postmortem of the dead body of the deceased M.P.Raghunatha @ Raghu and has found 17 injuries on the person of the deceased and so also the it is stated in the report of the FSL. Ex.P1 is the mahazar and evidence of PW-1 to PW-4 and so also evidence of PW-16 and PW-19. The documents at Exs.63(a) to 63(d), Exs.64(a) to 64(c) and Exs.65(a) to 65(c) is as regards the voluntary statement of the accused persons relating to discovery as well as recovery of the weapons of an offence used by the accused persons. Even to the causing of the said principal evidence for the offences lugged against the accused persons.
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counter arguments advanced by the defence counsel for the accused that PW-27 relating to the documents at Exs.P58 and P57 whereby supporting the circumstances which is indicated in the case of the prosecution. But the defence counsel for the accused has vehemently contended, counter to the arguments addressed by the learned Public Prosecutor contending that burden of proof is always vested with the prosecution to prove the guilt of the accused and also facilitating the worthwhile evidence for securing the conviction. But proof beyond reasonable doubt is a guideline and not a fetish and a guilty man cannot get over from the truth as narrated in the theory of the prosecution, merely because sufferance from some infirmities when projected through the human process. These are all the contentions made by the learned Special Public Prosecutor for the State and also the counter arguments advanced by the defence counsel.
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By narrating the evidence, the Trial Court has observed that there is a chain of circumstances or events pointing out towards the accused. On all these premises, the learned Spl.P.P. for the State has sought to convict the accused for all the charges lugged against them. In support of his contention, the learned Spl.P.P. has facilitated some decisions, which is also indicated in the impugned judgment of acquittal rendered by the Trial Court.
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further arguments that the evidence of the I.O. as well as the witnesses relating to recovery of the material objects are not corroborative in nature arriving for rendering the conviction judgment. But there is a lot of contradiction, inconsistence, even omission and commission by looking into the evidence as facilitated by the prosecution. The relatives of the deceased M.P.Raghunatha @ Raghu have not specifically stated in their evidence relating to the murder of the deceased by the persons being arraigned as accused. On all these premises, the learned counsel for the defence specifically submitted and also sought that the principle theory has been found on the part of the prosecution and consequently, sought to acquit the accused for the alleged offences.
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deceased. By avocation, she was a teacher and was residing in the house of her brother. Similarly, the evidence of PW-25, Darshan who is none other than the brother of PW-24. PW-27 who also stood for examination but nothing worthwhile has been elicited through his evidence but was examined on behalf of the prosecution. But PWs-1 to 12 have been subjected to examination but PW-1 Ramachandra Rao and PW-2 J.R.Kiran and PW-3 Ravi who are the panch witnesses have been secured in respect of Exs.P1, P2 and P3 being the mahazar conducted in their presence and they did not withstood the fulcrum of the said mahazar but PW-1 who has given a go-by to the portions of the statements and the portions of the statement have been marked as Exs.P4, P5 and P6. PW-2 to PW-12 have been subjected to examination and they have been given a go-by to the certain portions in their statement, which are marked as Exs.P11 to P21 respectively. Ex.P23 is the Postmortem
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Report; Ex.P24 is the medical report; Ex.P25 i s a sketch of long and knife; Ex.P26 is the diagram relating to the knife alleged to be used by the persons being arraigned as accused. Ex.P42 is the inquest mahazar held over the dead body by the I.O. in the presence of the panch witnesses. Ex.P43 is the seizure mahazar, which has been conducted by the I.O. in presence of the panch witnesses. The statement of the inquest which is marked at Exs.P45 to 49 and criminal law was set into motion on receipt of the complaint as per Ex.P44 and this complaint has been made by the father of the deceased who is arraigned as CW-1 in the charge-sheeted copy. Ex.P59 is the FIR said to have been recorded by the Investigating Agency but during investigation, the I.O. has recorded the voluntary statement of accused No.1, accused No.2 and accused No.3, portions of their disclosure statement has been marked as Exs.P63, P64 and P65. The call detail records have also been collected
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and the same has been marked as Ex.P69, Ex.P70 and Ex.P71 relating to the mobile numbers, which are indicated in the report. Even MO-1 Iron long, MO-2 Knife alleged to be used by the accused persons who are facing up the trial. The entire case rest upon the circumstantial evidence and the arguments have been heard by the Trial Court advanced by the learned Spl.P.P. and so also, the defence counsel. PW-24 Rekha who is none other than the wife of the deceased M.P.Raghunatha @ Raghu did not spell about the incident narrated in the complaint at Ex.P44 and so also, she turned around her statements. Therefore, the doubt which arose in the mind of the Court relating to accused Nos.1 to 3 who have been alleged to commit the murder of the deceased M.P.Raghunatha @ Raghu. That the deceased M.P.Raghunatha @ Raghu was a rowdy sheeter as per the contention made by the defence counsel for the accused and the same was also observed by the Trial
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Court. But the prosecution has failed to show that the deceased has suspicion about accused No.3, namely Sunil Gowda @ Gowda having illicit relationship with PW24. The said accused No.3 alleged to be in collusion with co-accused Nos.1 and 2 hatched a conspiracy to eliminate the deceased M.P.Raghunatha @ Raghu. But, no evidence is forthcoming on the part of the prosecution. But accused Nos.1 to 3 are facing up the trial. But the deceased being the husband of PW-24 Smt.B.K.Rekha wherein PW-24 did not support the case of the prosecution relating to the murder of her husband. But PW-22 has been subjected to examination and he has mentioned the names of accused Nos.1 to 3 in the complaint made by him stating that he has suspicion about accused Nos.1 to 3 relating to elimination of his son, M.P.Raghunatha @ Raghu. Whereas, the theory of the prosecution and even in the eye of the prosecution, it is in the totality of the circumstances as observed and
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also judicial observation made by the Trial Court and formed an opinion that the prosecution has failed to prove the guilt against the accused even though it is a circumstantial evidence and even to the extent of recovery of weapons used by the accused persons and even at the instance of accused Nos.1 to 3 have been recovered MO-1 and MO-2 but the prosecution has failure to prove the case against the accused beyond all reasonable doubt that accused Nos.1 to 3 alone have committed the murder of the deceased. On all these premises, the Trial Court has specifically formed an opinion that it cannot accept the arguments advanced by the learned Special P.P. for the State that accused Nos.1, 2 and 3 alone have committed the murder of the deceased as alleged. In view of the failure of the prosecution to prove the guilt against the accused, the Trial Court has rendered the acquittal judgment, even by looking into the ratio of reliance facilitated by the
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prosecution, the case has ended in acquittal of the offences under Sections 302, 201 r/w Sections 34 and 114 of the IPC, 1860. It is this judgment, which is challenged under the appeal by urging various grounds.
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the face of the disclosure of the statements of the accused Nos.1, 2 and 3, recovery of MO-1 and MO-2 Iron long and knife said to have been used by the accused persons. The remaining material objects have been seized by the I.O. in presence of the panch witnesses in respect of the mahzar has been drawn by the I.O. PW29 has clearly stated in his evidence of the recovery of the material objects used by the accused persons for commission of the offence and also in the presence of PW-1 to PW-3 and on the basis of the voluntary statement of accused Nos.1 to 3, Exs.P63 to P65 were marked. The case is based upon the circumstantial evidence and not on direct evidence. In this case, PW-1 who is the mahazar witness and also stood for seizure mahazar conducted, which contents turn around to the facts in the mahazar and it cannot brush aside the entirety of the evidence. PW-29 has stated in his evidence which has supported the case of the
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prosecution but the Trial Court has not properly appreciated this material evidence to accept the contents in the mahazar conducted by the Investigating Agency. In so far as the evidence of PW-21, PW-22 and PW-23 were suffice to hold relating to the preparation of the mahazar, in the presence of the accused persons and also in presence of the mahazar witnesses and so also the motive factor behind committing the murder of the deceased M.P.Raghunatha @ Raghu. PW-21 and PW-22 have stated in their evidence that accused No.3 having an illicit relationship with PW-24, Smt.B.K.Rekha. But the
motive behind the commission of an offence and also eliminating the deceased and the same can be seen in the evidence itself. But the Trial Court has not appreciated the evidence in a proper perspective despite of facilitating the worthwhile evidence. Moreover, the evidence of PW-16, PW-18 and PW-19 corroborates with the evidence of PW-29 being an I.O. and also recording
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the voluntary statement of accused Nos.1, 2 and 3, which were marked as Exs.P63 to P65. And more so, Section 27 of the Indian Evidence Act, 1972 relating to how much of information has been secured and also to proceed for discovery and recovery of material objections said to have been used by the accused persons. These are all the evidence let in on the parts of the prosecution even forming strong circumstances, which goes against the accused persons relating to eliminate the deceased M.P.Raghunatha @ Raghu. This is the evidence established by the prosecution through the evidence of PW-27 in respect of Ex.P58 but in totality of the circumstances of the prosecution whereby the learned HCGP for the State appearing in both these appeals, similar contentions have been urged by him for challenging the acquittal judgment rendered by the Trial Court to demonstrate that the Trial Court has not properly appreciated the evidence of these material
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witnesses and rendering the acquittal judgment by giving more potentiality to the minor omission and contradiction in their evidence. On all these premises, the learned HCGP for the State in Crl.Appeal No.233/2017 and so also contending whatever contentions made in Crl.Appeal No.1940/2016 be considered for setting aside the acquittal judgment rendered by the Trial Court in S.C.No.58/2011 dated 27.08.2016 and to convict the accused for the offences punishable under Sections 302, 201, 114 r/w 34 of IPC.
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the father of the deceased M.P.Raghunatha @ Raghu. However, the document, Ex.P41 discloses that the said spot mahazar was prepared in between 4.00 pm to 5.00
pm on the aforesaid date, i.e., on 21.12.2000. Even during the course when the spot mahazar has been conducted, the materials such as, gold pack label King Cigarette pack stained with blood, three empty old Tavern Whisky bottles, one empty plastic tin of old Tavern Whisky stained with blood, one glass empty Amruth Silver cup Brandy 180 ml bottle, one empty glass kingfisher beer bottle, two glass cups, one empty half liter water bottle stained with blood, one aluminum box which contained rice, four orange pieces, five star gutka packet, one pair hawai chappals, empty Whisky bottle, empty bottle, plastic cover, newspaper, playing cards, matchbox, blue led pen, gold flake cigarettes and empty drinks packets. These are all the materials said to have been seized by the I.O. in the presence of the panch
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witnesses and also having submitted in the property form. Inquest held over the dead body of the deceased M.P.Raghunatha @ Raghu has been drawn in the presence of PW-17 T.G.Murthy and one N.Anil Kumar and one Umesh having been secured, it was drawn in between 5.30 pm to 8.00 pm, and the same is marked as Ex.P42. These are all the mahazars that has been conducted by the I.O. in the presence of the panch witnesses. But PW-28 B.S.Dinesh Kumar who is a PSI and I.O. in part, but on 22.12.2009 at around 3.00 p.m. when he was working as SHO of NEPS, Tumakuru, at that time, CW-1 Puttarangaiah who is none other the father of the deceased had come to the police station and lodged a complaint, which is marked as Ex.P44. Based on the said complaint, criminal law was set into motion by recording an FIR as per Ex.P59. Subsequent to the criminal law was set into motion, securing the finger print experts and also dog squad to the scene of
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crime and to prepare the spot mahazar in the presence of T.G.Murthy and one Anil Kumar. The spot mahazar at Ex.P41 has been prepared in their presence and also recovered certain objects which were lying at the scene of crime. PW-17 T.G.Murthy wherein he has given evidence and even subjected to cross-examination. He has identified his signatures on Exs.P41 to P43, which were marked as Ex.P41(a), Ex.P42(a) and P43(a) respectively. But this witness did not withstood the versions of the facts in the aforesaid mahazar said to have been conducted by the Investigating Agency in his presence.
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Agriculture about five years back, murder of her son, M.P.Raghunatha @ Raghu said to have been committed. Their son M.P.Raghunatha @ Raghu was residing at his own house situated at SIT Extension, Tumkuru with his wife, Rekha and his child. At the time of murder of their son M.P.Raghunatha @ Raghu, his wife Rekha and his child were not residing with him in the said house, i.e., the scene of crime. But two to three months prior to the incident, i.e., the murder of their son, M.P.Raghunatha @ Raghu, their daughter-in-law, Rekha had applied divorce seeking dissolution of her marriage with her husband, M.P.Raghunatha @ Raghu. These are all the family disputes emerged in between the deceased, M.P.Raghunatha @ Raghu and his wife, Smt.Rekha who has been subjected to examination on the parts of the prosecution. That their son, M.P.Raghunatha @ Raghu and his wife Rekha used to quarrel with each other oftenly, which developed into quarrelling nature with
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each other frequently, and which is a social dispute. Accordingly, their son informed about quarrelling nature and also about character of his wife to them. This is not acceptable, but her grand-daughter told to her that accused No.3 Sunil Gowda @ Gowda, Rekha and mother of Rekha were talking one day in the house of Rekha's mother. However, the suspicion was kept in the mind of the deceased relating to his wife, Smt.B.K.Rekha, PW-24 having some illicit relationship with the accused No.3.
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is the brother of the deceased has specifically stated that Sunil Gowda @ Gowda came to his house when he was not present in his house. Therefore, there was some enmity developed in between the accused No.3 and the deceased and hence, a conspiracy has been hatched by accused Nos.1, 2 and 3 to eliminate the deceased, M.P.Raghunatha @ Raghu. Whereby, there was some exchange of animosity between them relating to the illicit relationship developed between accused No.3 and wife of the deceased, M.P.Raghunatha @ Raghu. The evidence of PW-23, Rakshit, indicates that his brother gave a message to him and requested him to call to his mobile phone. Therefore, he telephoned to his brother at 11.00 p.m. on 20.12.2012 and at that time, one Dheeraj received the phone call and told him that he will tell to M.P.Raghunatha @ Raghu to call him. Further, he has stated that when he was studying PUC, he saw that Sunil Gowda @ Gowda and wife of M.P.Raghunatha @ Raghu
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were coming in a Karishma Motor Cycle. His brother, M.P.Raghunatha @ Raghu told to PW-23 that he had applied for divorce of his marriage with consent of his wife, Rekha. Because of that reason, there was some illwill developed between the spouse and also some animosity developed in between the accused No.3 Sunil Gowda @ Gowda as he was having some illicit relationship with PW-24 Smt.Rekha, and her statement is at Ex.P45. Even though she has disclosed the incident but she has not given evidence in support of her statement, which recorded by the I.O. during the course of the investigation. But in Ex.P46, PW-24, Rekha has made further statement to PW-29 who is an I.O. wherein she has stated that her husband deceased, M.P.Raghunatha @ Raghu suspected her fidelity on the ground that why she used to come to home at late. She has further stated that her daughter, Jeeva talked with accused No.3, Sunila Gowda alias @ Gowda near one
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HMT factory and therefore, her husband suspected and told her that she is having some illicit relationship with accused No.3, Sunil Gowda @ Gowda and hence, there was exchange of some altercation took between them. These are all the contentions made by the learned counsel for the respondents being arraigned as accused in both these appeals. PW-24, Rekha who has given evidence on the parts of the prosecution has not supported the case of the prosecution to any extent. But, PW-24, Rekha gave birth to a female child, namely, Jeeva and was residi along with her husband, M.P.Raghunatha @ Raghu and her child in the house of his parents situated at SIT Extension, Tumkuru. But PW24, Rekha even though has given a statement before the I.O. that she was residing with her husband, but she was working as a teacher in the School of Rajendrapura village, Kunigal Taluk. After the murder of her husband, she along with her brother had visited her husband's
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house and thereafter, she has gone near the mortuary of the District Hospital, Tumkuru to see the dead body of her husband, M.P.Raghunatha @ Raghu. During that time, she had given a statement before the Police that she did not visit her husband’s house, i.e., the scene of crime. But when she was residing with her husband, M.P.Raghunatha @ Raghu, whereby her husband used to consume alcohol and also all food prepared by her and commit some rubbishness in his house. She had asked him not to do all these things, and also informed him that she will resign her job. Therefore, she had applied for divorce seeking dissolution of her marriage with the deceased, M.P.Raghunatha @ Raghu. PW-24, Rekha who has been subjected to examination did not support the case of the prosecution when given a go-by to some portions of her statements, which is contrary to the Ex.P58 and Ex.P44 and so also Ex.P59 said to have been
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substances narrated in the complaint made by the complainant as per Ex.P44.
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commission and there was some improvement. But PW21 had been subjected to cross-examination, wherein she has specifically stated in her evidence that she did not know that PW-25 had relationship with others. But PW-21 and PW-22 have been subjected to examination, whereby they have specifically declined that the deceased, M.P.Raghunatha @ Raghu always used to consume alcohol or playing cards with his friends, i.e., accused Nos.1, 2 and 3 in his house. Even on careful perusal of the evidence led in by the prosecution, even to the documents, which are facilitated by the prosecution, the entire case rest upon the circumstantial evidence that accused Nos.1, 2 and 3 are alleged to have committed the murder of the deceased, M.P.Raghunatha @ Raghu but the evidence of the prosecution did not inspire confidence of the Court relating to the motive factor and also the ‘last seen theory’ together with the deceased, M.P.Raghunatha @ Raghu and so also accused
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Nos.1, 2 and 3 and even the illicit relationship developed between PW-24 Rekha and accused No.3, Sunil Gowda @ Gowda. But Ex.P68 has not been proved by the prosecution in respect of the FSL report, issued by the chemical examiner inclusive of the contents of Exs.P69, P70 and P71 relating to the call detail records. MO-1 and MO-2 said to be the iron long and knife alleged to have been used by the accused to eliminate the deceased, M.P.Raghunatha @ Raghu. That PW-24, Smt.Rekha who is none other than the wife of the deceased, M.P.Raghunatha @ Raghu did not withstood the versions of her statements. Hence, the prosecution has failure to prove that accused Nos.1, 2 and 3 alone have committed the murder of the deceased and so also the wife of the deceased having some illicit relationship with accused No.3 and because of that reason, there was some enmity developed in between the deceased, M.P.Raghunatha @ Raghu and accused No.3 inclusive of accused Nos.1 and
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2, which lead in hatching a conspiracy to eliminate the deceased, M.P.Raghunatha @ Raghu. There is no acceptable evidence placed by the prosecution relating to some altercation that took prior to 21.12.2009 in between accused No.1 and accused No.2 and M.P.Raghunatha @ Raghu and the deceased abused accused No.1 and accused No.2 in a filthy language and insulting them by taking their caste name Kuruba, Tigala, etc., No evidence has been placed by the prosecution to prove the guilt against the accused that the accused persons have committed the murder of M.P.Raghunatha @ Raghu. The Trial Court has appreciated the evidence in a proper perspective whereby the prosecution has miserably failed to prove the charges lugged against the accused by facilitating proper evidence even though the case stands on circumstantial evidence that the accused persons alone have committed the murder of M.P.Raghunatha @ Raghu
41
on the aforesaid date, time and place, which is indicated in the FIR said to have been recorded by the Investigating Agency. The evidence placed on record does not inspire confidence of the Court and it is quite natural that a prudent man can infer that the prosecution has failure to establish the guilt of the accused. But it is the domain vested with the prosecution to prove the guilt of the accused by facilitating cogent, corroborative and positive evidence which probablizes that the accused persons alone have committed the murder of the deceased. But in the instant case, the Trial Court has appreciated the evidence and there is no perversity, illegality, absurdity inclusive of infirmities found in the impugned judgment of acquittal rendered by the Trial Court. On all these premises, the learned counsel appearing for accused Nos.1, 2 and 3 and being arraigned as respondents in these two appeals in their rank sought for dismissal of these appeals being devoid
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of merits and maintain the judgment of acquittal rendered by the Trial Court.
this appeal has been preferred on behalf of the appellant/victim, in view of Section 301 of Cr.P.C., even though the Spl.P.P. has conducted the case but the contentions made in this appeal are as per the contentions made in the connected appeal Crl.A.No.233 of 2017 whereby the learned HCGP has challenged the judgment of acquittal on a similar footing and also requested for re-appreciation of the evidence inclusive of re-visiting the impugned judgment of acquittal rendered by the Trial Court.
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murder, if it is committed without premeditation in a sudden fight in the heat of passion upon a sudden quarrel and without the offender having taken undue advantage or acted in a cruel or unusual manner”. This concept has been addressed by the Hon’ble Supreme Court in the case of (RAJPAL SINGH Vs. STATE OF UTTAR PRADESH & FOUR OTHERS) reported in 2010 SCC 134 .
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turned around to support the case of the prosecution relating to the contents of the inquest mahazar at Ex.P42 and so also the postmortem report at Ex.P23 whereby infliction of injuries over the person of the deceased. Ex.P44 is the complaint made by the complainant and based upon the complaint, criminal law was set into motion by recording the FIR at Ex.P59 but the substances in the FIR and so also the allegations made in the complaint at Ex.P44 and moreso, it requires to be established by the prosecution to prove the guilt against the accused securing the conviction.
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thorough investigation and during the investigation, he has recorded the statement of the witnesses, so also drew the mahazar at Exs.P1 to P3 and so also the inquest mahazar at Ex.P42, even the seizure mahazar at Ex.P49 dated 21.12.2000. These are all the mahazars that has been conducted by the I.O. in the presence of the panch witnesses, i.e., PW-1, PW-2 and PW-3. These witnesses did not withstood the versions of the contents in the mahazars, Ex.P1, Ex.P2 and Ex.P3 respectively. Similarly, PW-2 to PW-12 have been subjected to examination and also during the course of the investigation, their statement have been recorded. These witnesses have been thoroughly subjected to examination-in-chief on parts of the prosecution and even though stood for cross-examination but nothing worthwhile has been elicited. Therefore, their contradictory portions in their statement were got marked as Exs.P11 to P21. But one can infer that their
46
statements are contrary to the contents of the complaint, Ex.P44 and so also, the evidence of PW-29 being an I.O. who lead the charge-sheet against the accused persons. But PW-14 being a doctor who conducted autopsy over the dead body had issued the postmortem report. Even the injuries No.1 to 17 inflicted over the person of the deceased were made by MO-1 iron long and MO-2 knife, i.e., MOs said to have been used by the accused and caused for infliction of the injuries. But nothing worthwhile has been elicited by the prosecution to prove the guilt against the accused persons though the injuries on the vital and even on the non-vital parts of the deceased. But infliction of injuries on vital parts of the body of the deceased by means of MO-1 and MO-2, i.e., iron long and knife and these two MOs-1 and 2 said to have been seized as per the disclosure statement given by the accused persons. Even the injuries inflicted over the person of the deceased and the intention of the
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accused requires to be established by the prosecution. But as per the disclosure statements at Exs.P63, P64 and P65, based upon the voluntary statement of accused Nos.1, 2 and 3 that MO-1 iron long and MO-2 knife said to have been seized by the I.O. Keeping in view of Section 27 of the Indian Evidence Act, 1872, even though the knife has been recovered at the instance of the accused persons from Devarayapatna open tank but stained with blood even though recovered at the instance of the accused persons from deepened water of the open tank. At a cursory glance of the FSL report and even the weapons used by the accused for commission of the offence, even the knife, MO-2 has been used by the accused persons alleged to commit the murder of the deceased, M.P.Raghunatha @ Raghu and the same has been discovered and recovered at the instance of the accused. But the doubt has kept in the mind relating to the blood stain on MO-2 knife which has been recovered
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from Devarayapatna open tank whereby, the accused has lead CW-29, being an I.O. to the aforesaid place and indicating that after committing the murder of the deceased, M.P.Raghunatha @ Raghu that MO-1 and MO2 said to have been used to commit the offence have been thrown into Devarayapatna open tank. But these aspects are concerned, the doubt which has kept in the mind of the Court relating to the recovery concept as given under Section 27 of the Indian Evidence, Act, 1872. But in a given peculiar facts and circumstances of this case is concerned, it is relevant to refer Section 27 of the Indian Evidence Act, 1872 relating to how much of information received from the accused may be true, applicability of Section 27, the statement must be split into its component and also it must be split into separate admissibility portion. Even an accused statement as relating to the provisions under Section 27 of the Indian Evidence Act, 1872 even to the extent of discovery of the
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fact that here the witnesses were related to the deceased
and even residents of another place. Even then, their evidence have been recorded for recovery of weapons and disclosure. But it has to discover as and when the information given by the accused persons, it is in terms of the disclosure statement even though it is a relevant fact that is only an admissible portion of certain extent in the statements if something is supposed to be discovered or recovered from the accused, even which was not within the knowledge of the police before recording of the disclosure statement. This is the entitlement of Section 27 of the Indian Evidence Act, 1872 relating to the information received from the accused to what extent it may be.
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knowledge of the witness believe him to be unworthy of credit; (2) by proof that the witness has been bribed, or has accepted the offer of a bribe, or has received any other corrupt inducement to give his evidence; (3) by proof of former statements inconsistent with any part of his evidence which is liable to be contradicted. But keeping in view the above said provisions of the Indian Evidence Act, 1872, whereby indicating and also in a stricto senso to say that the deceased M.P.Raghunatha @ Raghu, friend of accused Nos.1, 2 and 3 and they were developing some bad vices by consuming alcohol and so also, playing cards in the scene of crime of the house of the deceased and also the deceased has also been a rowdy sheeter in the limits of the Police Station at Tumakuru. Therefore, impeaching credit of a witness not only to witnesses cited but also equally to assess and also credibility of the accused role is also to be taken into consideration. In the instant case, the deceased
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M.P.Raghunatha @ Raghu who is not away from the containment of provisions of Section 155 of the Indian Evidence Act relating to impeachment. But the entire case to some extent it is relating to the even motive factors and even the entirety of the circumstantial evidence. But evidentiary value of the hostile witnesses have also to be taken into consideration. But the statement of hostile witnesses can be extended to the extent that it supports the case of the prosecution. It was addressed in a judgment of (MOHANLAL VS. STATE OF PUNJAB) reported in AIR 2013 SC 2408 .
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in the case of (RAMESH HARIJAN VS. STATE OF UTTAR PRADESH) reported in AIR 1970 SC 1979.
it is the settled position of law that the evidence of the hostile witnesses also can be relied upon to the extent which it supports the prosecution version. Evidence of such witnesses cannot be treated as washed away of the record, it remains admissible in the trial and there is no legal bar to raise a conviction upon its testimony, which corroborated by the other reliable evidence. This issue was also extensively addressed by the Hon’ble Supreme Court in the case of (KOTI LAKSHMAN RAI Vs. STATE OF GUJARAT) reported in (AIR 2000 SC 210) . Whereas, in the given peculiar facts and circumstances of the case, and even the entirety of the evidence of the prosecution witnesses, even whereby turned hostile and even crossexamination stood by the prosecutor with the leave of the Court is not be discarded altogether is a matter of
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law. This was also addressed in the judgment of
(PANDAPPA HANUMAPPA HANAMAR & ANOTHER Vs.
STATE OF KARNATAKA) in (1997)3 SC . These are all
the citations even though has been referred, in the given facts and circumstances of the case, that too, eliminating the deceased, M.P.Raghunatha @ Raghu who is none other than the son of CW-1 and CW-2. CW-1, Puttarangaiah is the author of the complaint and based upon his complaint, criminal law was set into motion. CW-2 Ambikamma who is none other than the mother of the deceased and that the deceased who used to play cards and had developed the habit of consuming alcohol with his friends when he was residing with his wife, Smt.Rekha who has been cited as a witness in the charge-sheet. But the deceased, M.P.Raghunatha @ Raghu had developed some sort of suspicion about his wife, Smt.Rekha that she is having illicit relationship with his friend, who is arraigned as accused No.3 and there
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was some altercation took in between them prior to the incident also and the same was pacified by intervention of CW-19 being the witness as cited in the charge-sheet. The entirety of the prosecution case can be looked into even on re-appreciation of the evidence and so also revisiting of the impugned judgment of acquittal rendered by the Trial Court but it is relevant to refer the judgment of (SHARAD BIRDHI CHAND SARDA VS STATE OF MAHARASHTRA) reported in (1984) 4 SCC 117 . In this judgment, the concept of circumstantial evidence in a criminal trial has been observed and held as under:
"Circumstantial evidence in so far as cardinal principles for conviction on the basis of, at early stage, falsity of a defence plea in a circumstance against the accused, held on facts, circumstances not sufficient to inclusively establish the guilt of the accused, the circumstances of last seen together and the other circumstances examined in the light of the facts of the case, but the circumstances not put to the accused under Section 313 of Cr.P.C. cannot be
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held against him, when suffice it to criminal trial, mainly on the circumstantial evidence even the incriminating statement under Section 113 of Cr.P.C. it is also to be looked into on closely scrutinizing the answer given by the accused persons. Circumstantial evidence relating to the 'last seen together' where it was natural for the deceased to be with the accused. But the material point, other possibilities, even must be excluded before an adverse inference may be drawn.
the above said judgment by the Hon’ble Supreme Court by referring plethora of the reliances. But in the criminal trial relating to benefit of doubt, when can be given, where two possibilities, one of commission of crime and the other of innocence or reasonably possible the accused are entitled for the benefit of doubt. Whereas in the criminal trial, the concept of benefit of doubt when any fact asserted by the prosecution, turns doubtful, the benefit should go to the accused and not the
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prosecution. The same has been addressed in detail in para 121 and para 142 of the said judgment.
163, we can pass on to another important point, which seems to have been completely missed by the I.O. It is well settled that where on the evidence, two possibilities
are available or open, one which goes in favour of the prosecution and other which benefits an accused, the accused is undoubtedly entitled to the benefit of doubt. Referring the judgment of (KALIRAM VS. STATE OF HIMACHAL PRADESH) reported in SCC Crime Page 1060 . Another golden thread which runs through the web of the administration of justice in criminal cases is that if two views are possible on the evidence adduced in the case one pointing to the guilt of the accused and the other to his innocence, the view which is favourable to the accused should be adopted. This principle has a special relevance in cases where in the guilt of the
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accused is sought to be established by circumstantial evidence.
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deceased wife, Smt.Rekha having some illicit relationship with accused No.3, Sunil Gowda @ Gowda @ Gowda. Because of illicit relationship developed between them, accused Nos.1, 2 and 3 hatched a criminal conspiracy to eliminate the deceased. But there is no direct evidence adduced by the prosecution to secure conviction but the entire case rest upon the circumstantial evidence and even though there is a circumstantial evidence, and several witnesses have been subjected to examination, nothing worthwhile evidence has been facilitated by the prosecution to prove the guilt against the accused persons. But it is relevant to refer Section 134 of the Indian Evidence Act, 1872 relating to the number of particular witnesses. But it is well known principles of law that the reliance can be placed on the solitary statements of the witnesses and therefore, the Trial Court comes to the conclusion that the said statements is the true version and correct version of the case of the
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prosecution. It was also addressed in a judgment of (RADHA VS. STATE) reported in Crimes 1997 page 175 of Delhi. Even it is referred to the judgment of (STATE OF UTTAR PRADESH VS. KISHANPAL AND OTHERS) reported in (2008) 8 JT 650. It is the quality of the evidence and not the quantity of the evidence which is required to be judged by the court to place credence on the statement. These are all the reliances and on closely scrutinized and also even on looking into keeping in view of the aforesaid provisions of the Indian Evidence Act, it is deem it appropriate to state that even the entirety of the prosecution and in totality of the prosecution, a prudent man can infer that the prosecution has failed to prove the guilt of the accused by facilitating the worthwhile evidence. It goes without saying, keeping in view the evidence of the prosecution, the Trial Court has appreciated the evidence and we have noticed that there is no perversity, absurdity or illegality and any infirmities
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found in the judgment of acquittal rendered by the Trial Court. Even though keeping in view the contentions made by the learned HCGP, in these appeals, even dwelling in detail, the concept of re-appreciation of evidence, even re-visiting the impugned judgment of acquittal, there is no bone of contention raised to call for interference by this Court. The appeal preferred by the appellant/State respectively in these appeals, being devoid of merits, deserves to be rejected.
ORDER
i) The appeal in Crl.A.No.233/2017 and Crl.A.1940 of 2016 as preferred under
Section 378(1) and (3) of Cr.P.C are hereby rejected.
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iii) Consequently, the judgment of acquittal rendered by the VI Additional District and Sessions Judge, Tumakuru dated 27.08.2016 in S.C.No.58 of 2011 is hereby confirmed.
Sd/JUDGE
Sd/JUDGE
DH
2 issues framed by the court
Did the circumstantial evidence establish guilt beyond reasonable doubt and warrant interference with the acquittal?
Was the weapon recovery pursuant to the accused's disclosure statements reliable under Section 27 of the Evidence Act?
Colour shows how this judgement treated each authority
RAJPAL SINGH Vs. STATE OF UTTAR PRADESH & FOUR OTHERSReferred¶156
2010 SCC 134 · Who else cites this
MOHANLAL VS. STATE OF PUNJABRelied on¶176
AIR 2013 SC 2408 · Who else cites this
RAMESH HARIJAN VS. STATE OF UTTAR PRADESHRelied on¶179
AIR 1970 SC 1979. · Who else cites this
KOTI LAKSHMAN RAI Vs. STATE OF GUJARATRelied on¶181
(AIR 2000 SC 210) · Who else cites this
PANDAPPA HANUMAPPA HANAMAR & ANOTHER Vs. STATE OF KARNATAKARelied on¶185
(1997)3 SC
SHARAD BIRDHI CHAND SARDA VS STATE OF MAHARASHTRARelied on¶188
(1984) 4 SCC 117 · Who else cites this
RADHA VS. STATERelied on¶206
Crimes 1997 page 175
STATE OF UTTAR PRADESH VS. KISHANPAL AND OTHERSRelied on¶206
(2008) 8 JT 650. · Who else cites this
6 provisions across 4 enactments
THE STATE BY NEW EXTENSION POLICE STATION, TUMAKURU
DHEERAJ KRISHNA @ DHEERI
MOHAN KUMAR @ KUMARA
SUNIL GOWDA @ GOWDA
R PUTTARANGAIAH
STATE OF KARNATAKA BY NEW EXTENSION POLICE STATION TUMAKURU
K.SOMASHEKAR
C M JOSHI
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
