Allowed

Manojkumar S/O Mallappa Walikar v. the State of Karnataka

Karnataka HC5 Sept 2024CRL.A/100283/2022

Case brief

AI extract

What is this about?

Appeal against conviction for murder, kidnapping and robbery of a shop owner based on circumstantial evidence. The High Court found last-seen evidence tenuous, recoveries doubtful, CDR inferences conjectural without corroboration, and motive weak; it acquitted all appellants.

What did the court decide?

Conviction and sentence set aside; appellants acquitted of offences under Sections 302, 364, 394, 397, 201 r/w 34 and 120-B IPC; first appellant to be released, bail bonds of others cancelled.

Manojkumar S/O Mallappa Walikar Vs the State… — Murder and Culpable Homicide | Karnataka HC (2024)

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IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH

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DATED THIS THE 5^TH DAY OF SEPTEMBER, 2024

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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 C M JOSHI

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CRIMINAL APPEAL NO. 100283 OF 2022 (C)

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BETWEEN:

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MANOJKUMAR

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S/O. MALLAPPA WALIKAR AGE. 32 YEARS, OCC. AGRICULTURE, R/O. SIDDESWAR NAGAR, GOKAK, DIST. BELAGAVI-591218.

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JOTIBHA

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Digitally signed by YASHAVANT NARAYANKAR Location: HIGH COURT OF KARNATAKA

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S/O. SHANKAR RAVALOJI AGE. 31 YEARS, OCC. AGRICULTURE, R/O. MARATHA GALLI GOKAK, DIST. BELAGAVI-591218.

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MANJUNATH S/O. IRAPPA KALLOLI, AGE. 27 YEARS, OCC. AGRICULTURE, R/O. MARATHA GALLI, GOKAK, DIST. BELAGAVI-591218.

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…APPELLANTS

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(BY SRI. RAM P. GHORPADE, ADVOCATE FOR APPELLANT NO. 1/ ACCUSED NO. 1;

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SRI. RAMESH S. GUDODAGI, ADVOCATE FOR APPELLANT NOS. 2 AND 3/ ACCUSED NO. 2 AND 4)

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AND:

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THE STATE OF KARNATAKA THROUGH MUDALGI POLICE, DIST. BELAGAVI. NOW REPRESENTED BY SPP, HIGH COURT OF KARNATAKA, BENCH AT DHARWAD-580002.

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…RESPONDENT

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(BY SRI. M.B. GUNDAWADE, ADDL. SPP.)

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THIS CRIMINAL APPEAL IS FILED U/S. 374(2) OF CR.P.C., SEEKING TO CALL FOR THE RECORDS IN SESSIONS CASE NO.322/2019 AND SET ASIDE THE JUDGMENT OF CONVICTION DATED 28.02.2022 AND ORDER OF SENTENCE DATED 02.03.2022 PASSED BY THE XII ADDITIONAL DISTRICT AND SESSIONS JUDGE, BELAGAVI, SITTING AT GOKAK IN SESSIONS CASE NO.322/2019 AND ACQUIT THE APPELLANTS.

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THIS APPEAL, COMING ON FOR ORDERS, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:

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CORAM: THE HON'BLE MR. JUSTICE B.M.SHYAM PRASAD AND THE HON'BLE MR. JUSTICE C M JOSHI

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ORAL JUDGMENT

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(PER: THE HON'BLE MR. JUSTICE B.M. SHYAM PRASAD)

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The appellants are the first, second and fourth accused in SC No.322/2019 on the file of the XII Addl. District and Sessions Judge, Belagavi sitting at Gokak [for short ‘the Sessions Court’]. The appellants are convicted for the offence punishable under Sections 302, 364, 394, 397, 201 R/w 34 of IPC and Section 120-B of IPC. They are sentenced to undergo life imprisonment as below:

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For the offence punishable under Section 302 r/w 34 of IPC : to rigorous imprisonment for life and pay a fine of Rs.5,000/- each with default rigorous imprisonment for a period of two months.

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For the offence punishable under Section 364 r/w 34 of IPC : to rigorous imprisonment for a term of 10 years and to pay fine of Rs.3,000/each with default rigorous imprisonment for a period of one month.

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For the offence punishable under Section 394 r/w 34 of IPC : to rigorous imprisonment for a term of 10 years and to pay fine of Rs.3,000/-

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each with default rigorous imprisonment for a period of one month.

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For the offence punishable under Section 120B r/w 302 of IPC : To life imprisonment and to pay fine of Rs.1,000/- each with default rigorous imprisonment for a period of 15 days.

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For the offence punishable under Section 120B r/w 364 of IPC and Section 120B r/w 394 of IPC : To rigorous imprisonment for a period of 10 years and pay fine of Rs.1,000/- with default rigorous imprisonment for a period of 15 days.

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For the offence punishable under section 397 of IPC : The first appellant is sentenced to rigorous imprisonment for 7 years.

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The appellants have stood trial along with Sri. Rahul S/o Virupaksi Ontigoudar and Sri. Sagar Tanaji Yaragatti, the third and fifth accused respectively, and they have been acquitted of all the offences. The appellants, for convenience, are referred to as they are arraigned before the Sessions Court.

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The prosecution’s case is that the deceased Sri. Jagadish Tippana Karale was a small-time shop owner, and on 15.04.2019 he called up Sri. Ravi Pundalik Khangavi [PW1] for supply of certain tobacco product stating that he had run out of stock, but he must send such product in the morning as he has nobody to assist him in the shop at that time. Sri. Ravi Pundalika Khanagavi thereafter closed his shop and went near the bus stand and later near Car Gadi Circle when PW1 saw the deceased stepping out of a liquor bar and talking to the first accused who was sitting in his rickshaw. After some time, the first accused along with the second to fourth accused forced the deceased into the auto rickshaw and drove away with the fifth accused following on the bike.

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The accused intended to rob the deceased

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of the cash on his person [Rs.5,501/-] and so they assaulted him with knife. The deceased has succumbed to the injuries caused by the accused. The accused dropped the body into the Ghataprabha canal, which is at a certain distance from Car Gadi Circle . The accused later washed the auto rickshaw

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of the bloodstains. The first accused who had taken on hire the rickshaw to drive at Rs.1,110/- per day from Sri. Dilawar Sab Churikana [PW.3], parked this auto rickshaw at the designated place stating that he was going on tour but he did not return later.

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The prosecution’s case is that during the investigation the call records of the mobile used in the places where the body was found were secured, and on analyzing these details, the Investigating Officer could ascertain the accused are involved. The accused’s culpability is ascertained based on the accused’s voluntary statement, recoveries of knife, bloodstained shirt of some of the accused and the original driving license of the deceased. On the recovery and the proceedings drawn, the prosecution contends that the original of the deceased’s driving licence is recovered from the first accused’s residence and mahazars are drawn at the places where the accused kidnapped the deceased, committed his murder, where the dead body was dumped, and the auto-rickshaw was washed of stains [ Ex. P17 & Ex. P16 ].

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The Investigating Officer has filed the

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charge sheet, and with the appellants pleading not guilty, the Sessions Court has framed charges against them for the different offences that would be in tune with the prosecution’s case. The prosecution to bring home the guilt of the accused has examined the following witnesses.

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[i] Sri. Ravi Pundalik Khanagavi [PW1], the complainant who is cited as an eyewitness to the kidnap of the deceased.

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[ii] Sri. Kiran Annappa Wali [PW2] to whom the accused have allegedly confessed to committing the crime.

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[iii] Sri. Dilawarsab Saradarsab Churikan [PW3], the owner of the auto-rickshaw allegedly used in kidnap in commission of the offence.

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[iv] Sri. Dundayya Basayya Hukkerimath [PW4] and other alleged eyewitnesses to the act of kidnapping.

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[v] Sri. Chandrakant Rajaram Ghorpade [PW5], whose bike the fifth accused allegedly used to follow the auto-rickshaw after the deceased was pushed into.

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[vi] Sri. Anand Balappa Badayi and Sri. Prakash Fakeerappa Metri [PW6 and PW7] as pancha witnesses,

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[vii] Dr. Preeti S Gaddikeri [PW8] on the postmortem report filed, and [vii] Sri. Channamallappa Thippanna Karale, [PW9].

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The prosecution, apart from these witnesses, has examined the Nodal Officers with M/s Airtel and M/s Vodafone, who, apart from filing certificates [Ex.P37 and Ex.P59] under the provision of Section 65B of the Indian Evidence Act,1872 as regards the Call Detail Records¹ [Ex.P39, Ex.P58 and Ex.P38], have spoken about the call records. The prosecution’s case but for the two witnesses cited as eyewitnesses to kidnapping is essentially based on circumstantial evidence.

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The Sessions Court has first listed the circumstances against the accused and analyzed the evidence to ascertain whether these circumstances are proved to bring home the guilt of the accused. The Sessions Court has listed the following circumstances:

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1 Hereafter referred to as ‘CDR’

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a) Homicidal death of the deceased.

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b) The deceased being last seen in the company of the accused.

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c) Recovery of incriminating materials from the first to forth accused.

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d) Recovery of bloodstains on Ghataprabha left bank canal.

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e) Conduct of the accused, opining that such conduct is incompatible with their innocence and only compatible with their guilt.

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f) The motive of the accused.

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The Sessions Court has opined that the

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deceased’s homicidal death is established as also the deceased being last seen with the accused, but the Sessions Court has not believed the recovery of incriminating materials except the recovery of knife and deceased’s driving licence at the instance of the first accused. The Sessions Court, while opining that the motive is established, has opined that as could be seen from CDR [Ex.38, Ex.39 and

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Ex.58], the accused were seen going about in the middle of the night at the time of murder and near the places where the body was dumped and the auto-rickshaw was washed of bloodstains.

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Sri. Ram Ghorpade and Sri. M. B. Gundawade, the learned counsel for the appellants-accused and the learned Additional SPP for the respondent-State respectively, are heard for final disposal. Sri. Ram Ghorpade, taking this Court through the evidence, contends that the prosecution has failed to establish an unbroken chain of events and that that the chain of circumstances demonstrates only the culpability of the accused. M.B. Gundawade submits that the Sessions Court’s finding that the accused were last seen with the deceased and that the accused’s culpability is established by the recovery of very incriminating material such as the murder weapon [knife] and the deceased’s driving licence along with their conduct [as demonstrated by CDR] are overwhelming and that they show a chain of circumstances which establishes that the accused are guilty.

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The evidence on record is considered in the light of these rival submissions and the question for

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consideration is as follows:

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“Whether this Court can opine that the Sessions Court has examined the evidence on record to reasonably opine that the prosecution has established all the links of the chain of circumstances which is consistent only with the accused’s guilt, and if the Sessions Court has not, the order that must be?”

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The deceased has died a homicidal death is an undisputed fact and that with this commences the chains of circumstances of deceased with the accused. This Court must opine that it is a settled law that in an appeal against conviction, the Appellate Courts must consider the evidence and reason why such evidence must be accepted as is accepted by the trial Court and that this exercise would be necessary because the confirmation of conviction would result in curtailing the personal liberty of an accused. This Court must also state the trite position in law that when conviction is based only upon circumstantial evidence, it is

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imperative for the prosecution to establish cogent and coherent circumstances and that these circumstances must be consistent only with the hypothesis that the accused are guilty and not be inconsistent with the hypothesis that they could be innocent. In other words, the circumstantial evidence must point only to the accused’s guilt without any room for doubt.

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The first circumstance that is considered against the accused is that the deceased was last seen with them and in this regard the prosecution relies upon the testimony of Sri. Ravi Pundalik Khanagavi [PW1]. This witness has stated that the deceased called him on his mobile at 8.00 p.m. on 15.04.2019 stating that there was nobody to assist him in the shop and this witness must supply certain tobacco products to him in the morning. This witness has also stated that when he was on his way home along with another [PW4], he saw the deceased coming out of liquor Bar and engage in conversation with the first accused and others in the immediate vicinity of such liquor bar.

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The Sessions Court, relying upon this evidence and the CDR of the deceased’s mobile number [Ex. P41], has opined that this witness’s testimony that the deceased called him at 8.00 p.m. on 15.04.2019 is established. Sri Ravi Pundalik Khanagavi’s testimony insofar as the deceased engaging in conversation with the first accused after he stepped out of liquor bar is also found to be consistent. This witness’s evidence that the deceased called him asking for supply of tobacco products and he saw the deceased talking to first accused may be formidable, but then the Sessions Court ought to have seen that this circumstance alone would not have suffice unless the prosecution establish all the circumstances to connect the accused to the crime.

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This Court must make an immediate reference to the decision of the Apex Court in Kanhaiya Lal v. State of Rajasthan, (2014) 4 SCC 715² wherein it is held as follows:

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“It has been consistently laid down by this Court that where a case rests squarely on circumstantial evidence, the inference of guilt can be justified only when all the

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2 2014 (4) SCC 715

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incriminating facts and circumstances are found to be incompatible with the innocence of the accused or the guilt of any other person. The circumstances from which an inference as to the guilt of the accused is drawn have to be proved beyond reasonable doubt and have to be shown to be closely connected with the principal fact sought to be inferred from those circumstances.”

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Crucially, Sri Ravi Pundalik Khanagavi [PW1] witness is not consistent in his evidence as regards whom he saw with the deceased near the auto-rickshaw. He has stated in his evidence that he can state that the deceased was in conversation with the first accused and that he drove the auto-rickshaw with the deceased, but he is not able to identify any of the other accused. This witness has stated that the deceased left in the auto-rickshaw only with the first accused driving the same and the other accused followed the auto-rickshaw on motorbikes. The prosecution’s admitted case is that the deceased was forced into the auto-

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rickshaw by the first to fourth accused, and the fifth accused followed on motor bike. As aforesaid, the last seen by itself will not lead to an inference that the accused are

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culpable of the crime, but in the present case the last seen is also rendered rather tenuous.

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The next set of circumstances relied upon by the prosecution is drawing of mahazars at certain places at the accused’s instance. This Court must observe that the prosecution contends that it has drawn mahazars as per Ex. P9, Ex. P15, Ex. P16 and Ex. P17 at the instance of the accused. The mahazar in Ex. P19 is the purportedly drawn at the place of murder, Ex. P15 is the mahazar supposedly drawn at the place where the body of the deceased was dumped in the Ghataprabha left canal, Ex. P16 is the mahazar allegedly drawn at the place where the accused allegedly washed of the bloodstains in the auto-rickshaw and Ex. P17 is the mahazar said to be drawn at the place of kidnap. The Sessions Court has entirely disbelieved these mahazars for the reasons, amongst others, that these do not distinctly relate to the accused or reveal accused’s culpability. Thus, the second circumstance is not proved.

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The next set of circumstances is the recovery of the blood-stained clothes and the murder weapon [a knife]. The prosecution contends that it has recovered the knife used in murder, the bloodstained clothes from the first and the fourth accused and the deceased’s driving licence from the first accused. The Sessions Court has disbelieved the recovery of bloodstained clothes opining that it is purportedly recovered from the respective residence either being hung on the wall or kept under a chair and that it would be improbable to believe that bloodstained clothes would be displayed on a wall or kept under a chair for over a month without being washed.

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This Court must opine that the reason offered to disbelieve the recovery of blood-stained clothes will also extend to the prosecution recovering the murder weapon. The prosecution contends that the knife is recovered from the backside of auto-rickshaw and again after a period of one month. The recovery of the bloodstained clothes of the accused after one month of the incident is doubtful because

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of the time. The prosecution’s case is that the first accused had taken on hire the auto-rickshaw from PW3 on a certain daily arrangement and that he parked the auto-rickshaw at designated place on 16.04.2019 and did not use vehicle thereafter.

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The prosecution’s case is not that this autorickshaw was not plied any time after 16.04.2019 or that the knife was concealed within the auto-rickshaw in a place which is not commonly seen. The owner of this autorickshaw did not own just this auto-rickshaw but he also multiple autorickshaws, and it was his business to let out these vehicles. These circumstances create a doubt about the recovery of the murder weapon. Further, the fact that the recovery is in the presence of a pancha [PW7], who is admittedly closely associated with police and cited by the police in difference circumstances, further exaggerates the doubt.

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This Court must opine that the prosecution’s case that the deceased’s driving licence is recovered from the

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first accused in the presence of this witness is made doubtful, because the pancha is a person upon whom the police has relied upon in many cases. Further, this witness states that the police led him and the accused at the time of recovery. This Court must, therefore, opine that the recovery is also doubtful.

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The next circumstance alleged against the accused is their conduct as seen in the night intervening 15.04.2019 and 16.04.2019. The Sessions Court has relied upon the call detail records of the mobile phones seized from the appellants. The details of the phones seized from the appellants and the relevant CDR are as follows:

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*Rank of the* *Accused*	*Mobile Number*	*Corresponding* *call details* *record*
_Accused No.1 _	7829115540	Ex.P39
Accused No.2	9945479015	Ex.P59
_Accused No.4 _	9535692619	Ex.P38

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The Sessions Court’s consideration of CDR reads thus.

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“77. In the cross examination of PW.15 it is elicited that the range of each tower is 800 to 1000 meters. When the cell ID site address mentioned in Exs.P.39, 38 and 58 are compared

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with site address furnished in Exs.P.85 and 87 it shows that when accused No.1 called accused No.4 between 23:35 to 25:54 hrs on 1542019 they were near the cell ID near Riddi Siddi falls road. When accused No.1 called accused No.4 on 1642019 between 00.47 to 01.17hrs the location of accused No.1 and 4 at 00.47 hrs is Dhupdal village, at 01.15hrs the location of accused No.1 is Ghataprabha, whereas the location of accused No.2 is Gokak Falls, at 01.17hrs the location of accused No.1 is Shindikurbet. When accused No.1 called accused No.2 on 16.04.2019 at 02:54:33 his location was Handignal village. When accused No.2 called accused No.4 at 02:41:58 the accused No.2 was near Gokak Municipal tower range whereas accused No.4 was in the Arabhavi mobile tower range. That shows movement of these accused in collaboration with each other about the place where the blood stains were found on the Ghataprabha left bank canal near the land of Siddappa Magadum and the route leading to it as projected by prosecution.

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78. The pattern of calls indicate that accused Nos.1 and 2 were in auto, whereas accused No.4 was in separate vehicle. This is for the reason that if all were in the same vehicle question of calling among themselves with

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phone does not arise. The absence of any call between accused Nos.1 and 4 from 23:54:15 to 00:47:54 in the light of locations revealed in Ex.P.85 indicates that they were at same place. The phone call by accused No.1 to accused No.2 at 02.54hrs on 1642019 would indicate accused No.1 calling him after they separated. The accused No.2 calling accused No.4 at 02.41 and 02.46hrs on 1642019 would also mean that after departing from accused No.1 he called to accused No.4 may be take stock of situation. This also indicates that accused No.2 accompanied accused No.1 during all material time.”

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The Sessions Court, in analyzing the CDR as afore, has relied upon the proposition that if requisite facts are proved, it would be permissible in law to draw appropriate inferences from such proven facts.

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This proposition is redoubtable but then the inferences cannot be in the realm of conjectures. The caution when the prosecution relies upon circumstantial evidence to bring home the guilt of the accused is that the circumstances must be proved and that those circumstances must be consistent only with the guilt of the

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accused and not give room to doubt the accused’s culpability. The learned additional SPP cannot point out any particular evidence to justify these inferences or that the accused were seen around the locations. With the last seen circumstance being doubtful and the recovery not being established beyond reasonable doubt, the Sessions Court could not have drawn conclusions from the CDR by themselves, in the absence of corroborative evidence.

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The last of the circumstances held against the appellants-accused is the FSL Report and motive. This Court must opine that though the prosecution relies upon the FSL Report and the testimony of the expert [PW12] that such evidence is inconclusive as against the appellants inasmuch as the report only indicates blood group and nothing more. The Sessions Court’s reasoning reads as under:

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“88. Supra I have held the complicity of accused No:1, 2 and 4 in the crime is proved. The deceased being merchant and at the time of closing his shop he carrying the proceeds of business on that day constitutes adequate

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motive to rob him. The fact that the deceased was in inebriated condition provides an occasion to commit crime. Thus I hold that motive is established.”

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This conclusion is again not based on any established fact and in any event the motive by itself is a weak link. In the light of the above analysis, this Court must opine that the Sessions Court notwithstanding being elaborated in its discussion on the evidence has failed to consider the entire evidence.

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In the light of the afore, the question for consideration must be considered to opine that the Sessions Court despite elaborately considering the evidence on record has overlooked the material circumstances and relied upon conjectures to fill in the gaps in the prosecution’s case and as such, the appellants’ conviction cannot be sustained, and they must be acquitted. Hence, the following:

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ORDER

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[i] The appeal is allowed.

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[ii] The judgment of conviction dated 28.02.2022 and order on sentence dated 02.03.2022 in S.C.No.322/2019 on the file of the XII Additional District and Sessions Judge, Belagavi, sitting at Gokak are set aside and the appellants [the first, second and fourth accused] are acquitted of the offences punishable under sections 302, 364, 394, 397, 201 r/w 34 of IPC and Section 120-B of IPC.

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[iii] The concerned Jail Authorities are directed to set at liberty the first appellant [the first accused] if he is not required in any other case.

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[iv] The bail and surety bonds offered by the second and third appellants [the second and fourth accused] are cancelled.

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Sd/(B.M.SHYAM PRASAD) JUDGE

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Sd/(C M JOSHI) JUDGE

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HMB- paragraphs 1 to 5 YAN – paragraphs 6 till end. LIST NO.: 1 SL NO.: 2

Manojkumar S/O Mallappa Walikar v. the State of Karnataka

Case brief

What is this about?

What did the court decide?

Manojkumar S/O Mallappa Walikar v. the State of Karnataka

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

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