State appeal under Section 378 Cr.P.C. and victim's foster mother's appeal challenged acquittal of a couple for murder and destruction of evidence. The High Court found the last-seen theory unreliable due to contradictions with prior statements and medical evidence discounting the seized weapon, and dismissed both appeals, confirming the acquittal.
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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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 9TH DAY OF FEBRUARY 2024
PRESENT
THE HON'BLE DR. JUSTICE H.B.PRABHAKARA SASTRY
AND
THE HON'BLE MR JUSTICE UMESH M ADIGA
CRIMINAL APPEAL No.242 OF 2018 (A) CONNECTED WITH CRIMINAL APPEAL No.1904 OF 2017 (A)
IN CRIMINAL APPEAL No.242 OF 2018:
BETWEEN:
The State by Rural Police Station Harihara Represented by State Public Prosecutor High Court building Bengaluru - 560 001 ... Appellant
(By Shri. P.Thejesh, HCGP)
AND:
W/o Benakesha Aged about 47 years, Labour
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r/o Echagatta village Davanagere taluk – 577 001
… Respondents
(By Shri. D.P. Mahesh, Advocate)
This Criminal Appeal is filed under Sections 378(1) and (3) of Cr.P.C. praying to grant leave to appeal against the Judgment and Order dated 16.08.2017 passed by the I Additional District and Sessions Judge, Davanagere in S.C.No.152/2015 acquitting the respondent /accused for sections 302, 201 read with Section 34 of IPC.
IN CRIMINAL APPEAL No.1904 OF 2017:
BETWEEN:
Smt. Anjanabai S. Aged about 62 years W/o. Basappa Hullumani, R/at 548/19 Matrushree Nilaya, Near Dhurgambika School Davanagere – 577 002
... Appellant
(By Shri. Sanath Kumar A., Advocate)
AND:
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W/o Benakesha, R/o Echagatta Village, Davanagere Taluk.
… Respondents
(By Shri. P.Thejesh, HCGP for R1 Shri. D.P.Mahesh, Advocate for R2 and R3)
This criminal appeal filed under section 372 of Cr.P.C. praying to set aside the order dated 16.08.2017 passed by the I Additional District and Sessions Judge, Davanagere in S.C.No.152/2015 acquitting the respondent/accused for the offences punishable under Sections 302 and 201 read with Section 34 of IPC.
These Criminal Appeals coming on for Further Arguments having been heard through physical hearing/video conference and reserved for judgment on 23.11.2023, coming on for pronouncement, this day, Umesh M Adiga J., delivered the following:
JUDGMENT
Both these appeals arises out of judgment passed in Sessions Case No.152 of 2015 dated 16.08.2017 on the file of I Additional Sessions Judge, Davanagere (for short ‘Trial Court’). State has filed Criminal Appeal No.242 of 2018 and foster mother of deceased (victim) has filed Criminal
Appeal No.1904 of 2017 challenging the above said judgment acquitting accused for the offence punishable under Section 302 and 201 of IPC.
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Kumari Vanitha in a college at Davanagere, for studying Pre-University course and she has paid college fees.
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“both were still very young to have love affairs and after completion of their education, he would think of the same.”
It appears inspite of advise of PWs-8, 9 and 11, deceased Akash Kumar and Kumari Vanitha used to meet in the Parks and loving each other.
not be possible to arrange their marriage, therefore, told them, if he continue contacting Kumari Vanitha, then he has to face serious consequences”.
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thought that deceased Akash Kumar might be gone to the house of one of his friends, to study and also thought that he might come on the next day. However, on the next day also, deceased Akash Kumar did not return.
over phone that a dead body was found in the land of PW-1 at Hanagawadi Cross and the said body appears to be of
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Akash Kumar, therefore, asked PW-6 to see the body and identify the same. PW-6 informed this fact to PWs-8, 9 and 11. All of them went to the said place and identified the body as of Akash Kumar.
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is triable by Court of Sessions. Hence, the learned Magistrate committed the case to the Sessions Court.
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materials and evidence on record, answered both the points in the ‘negative’ and by impugned judgment dated 16.08.2017 acquitted both the accused of the alleged charges levelled against them. The same is challenged both by the State as well as mother of the deceased, in these appeals.
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daughter. Therefore, they warned Akash Kumar as well as told PWs-6, 8, 9 and 11 to advise Akash Kumar properly and directed deceased not to contact their daughter, Kumari Vanitha, failing which, Akash Kumar had to face serious consequences. That was motive for the accused to kill him.
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river. Due to the flow of water, the said clothes were not available in the river. However, prosecution was able to prove that in the said place, accused have thrown their blood-stained clothes.
the case and nothing was brought out in the crossexamination of the said witnesses to disbelieve their evidence. The evidence of PW-13/ Dr.Raju.G.M., who had conducted the post-mortem to prove that death of Akash Kumar was homicidal and it was not seriously disputed. PW-2 in his evidence has stated that on 10.03.2015, he had seen accused and deceased going together on the motorcycle. PW-11 in her evidence has stated that on 10.03.2015 accused No.1 came to their house and took deceased along with him, informing that he had some work with the deceased and thereafter, Akashkumar did not return home. PWs-6, 8, 9 11, 16, 17 and 21 have stated about love affair of deceased Akashkumar with Kumari Vanitha. PWs-18 and 22 have stated about investigation done by them. All the witnesses have supported the case of
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the prosecution and in their cross-examination, nothing was brought out to discard their evidence. The learned Sessions Judge did not appreciate the evidence properly. The learned Sessions Judge, on the basis of presumptions and assumptions, rejected the evidence of the prosecution and acquitted the accused. The said judgment is arbitrary and perverse. With these grounds, the learned advocate for the appellant and the learned HCGP prayed to allow the appeal by convicting both the accused for the offences punishable under Section 302, 201 read with Section 34 of IPC.
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Kumar till 12.03.2015. The complaint was filed for the first time on 12.03.2015 by unknown person, who had seen the dead body nearby his land. Normally, when any person goes missing, members of the family would normally file a complaint to trace him out. But in this case, no such complaint was filed and no explanation is offered by the PWs-6, 8, 9 and 11 in their previous statement or before the Court. Therefore, there is a delay of two days in lodging the complaint, which indicates that there were lot of discussion and deliberations, thereafter, complaint was lodged.
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had taken him.” It appears on 14.03.2015, the accused were said to be arrested and on the basis of alleged confession, a story was fabricated to falsely implicate accused in this case.
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Kumar. Thereafter, PWs-6, 8, 9 and 11 went to the said spot and identified the dead body. But during evidence, PW-2 has made out a new case stating that “on 10.03.2015, when he was going on the motorcycle, he saw both accused and deceased were going on motor cycle towards Harihara side.” In his cross-examination, he has stated that police not enquired him and recorded his statement. PW-22 has stated that PW-2 had not given such statement before him. Therefore, the improvement made by PW-2 during course of the evidence is at the instance of PWs-6, 8, 9 and 11 and it is not reliable.
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that accused assaulted Akash Kumar with MO-4 and caused his death is believed. The prosecution has miserably failed to prove that the accused had any motive to commit the said crime. With these reasons, the learned advocate for respondents prayed to dismiss both the appeals.
i) Whether prosecution proved beyond reasonable that on 10.03.2015 at about 5.00 p.m., the accused Nos.1 and 2 in furtherance of their common intention to murder Akash Kumar, had taken him from his house and went to Hanagawadi village coming within the jurisdiction of Harihara Rural Police station, assaulted him, when he fell
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down, accused with an intention to murder him threw big size stone on his head and murdered him and thereby accused have committed an offence punishable under section 302 read with Section 34 of IPC?
ii) Whether prosecution proved beyond reasonable doubt that on above said place, date and time, the accused to destroy or disappear the evidence available against them, threw the blood stained clothes worn by them in the river and thereby destroyed the evidence and committed an offence punishable under Section 201, read with Section 34 of IPC?
iii) Whether the findings of the learned Trial Judge is perverse and arbitrary and interference by this court is required?
iv) What order?
Point Nos.1 and 2 are interconnected, therefore we discuss them together.
to the incident and the Police charge-sheeted accused Nos.1 and 2 on the basis of circumstantial evidence. To prove the guilt of the accused, prosecution has to prove following circumstances:
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(i) Deceased Akash Kumar fell in love with daughter of accused Nos.1 and 2 Kumari Vanita.
(ii) That in spite of warning given by accused Nos.1 and 2, late Akash Kumar continued his love affair with Kumari Vanita.
(iii) On 10.03.2015 in the evening, accused No.1 came to the house of PWs-9 and 11 and took him stating that he had some work with Akash Kumar and thereafter Akash Kumar did not return home.
(iv) Accused were last seen together in the company of deceased and thereafter, he did not return.
(v) The death of Akash Kumar was homicidal death.
(vi) The accused and the accused only have committed the said crime.
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found on the dead body are mentioned in Paragraph No.7 of Ex.P6. He had injuries on right side forehead and middle of the forehead measuring 1 inch each and due to the said injury, entire face was blood stained. He had boils all over the body. During the evidence, PW-2 has stated that he went to Bapuji Hospital, Davanagere wherein inquest was conducted in the presence of PW-6. He signed on Ex.P6 at the time of inquest. In his cross-examination, he has stated about drawing of the Mahazar and also contents of the said Mahazar. In his cross-examination, identity of the dead body or injuries found on the dead body are not seriously disputed.
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about cause of death as per Ex.P17 and according to the report, death was caused due to head injury as a result of blunt force impact over the head. He has also stated that on 06.04.2015, he received a requisition from the CPI along with an article, that is, a stone and on verification of the same with the injuries mentioned in the post-mortem report, he gave his report as per Ex.P18. In examinationin-chief, PW-13 has stated that the said weapon (stone) being moderately heavy stone with an uneven rough surface, is not capable of producing the injuries mentioned in the post-mortem report. He identified the stone shown to him as MO-4.
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and hence, prosecution has proved that death of Akash Kumar was a homicidal death.
Kumar on his motorcycle, by informing her that he had some work with deceased. However, during trial, PW-2 has stated that two days prior to, he saw the dead body of Akash Kumar, when he was going on his motorcycle, he saw both accused and deceased Akash Kumar were going on a motorcycle. He has identified both accused in the Court and has stated that on that day, the accused No.1 was riding the motorcycle and both Akash Kumar and accused No.2 were pillion riders on the said motorcycle.
In his cross-examination by the learned advocate for accused, PW-2 has stated that he has not given any statement before the investigating officer. Therefore, he has not informed the above said fact to the investigating officer. However, records reveal that the investigating
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officer has recorded his statement. PW-22 in his evidence has stated that PW-2 while recording his statement under Section 161 of Cr.P.C., has not given such information. It clearly indicates that it is an improvement during the evidence of PW-2, which is not the case of prosecution. Therefore, the said improvement is not reliable. It appears he is an interested witness and to help relatives of the deceased, he has stated that he saw deceased in the company of accused. His evidence about seeing deceased in the company of accused do not inspire confidence in the mind of Court.
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telephoned to PW-6 and informed him that Akash Kumar did not return home and PW-6 told her that he might be gone to his friend's house to study, since his exam would commence from 12.03.2015. She telephoned to the house of accused to enquire about deceased but daughter of the accused, Kumari Vanitha picked up the telephone and she told her that her parents were not at home. Therefore, PW11 has last seen the accused in the company of the deceased. As stated by her in her evidence, she had not informed to PWs-6, 8 and 9 that on 10.03.2015, deceased went outside along with accused around 5.30 p.m.
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them believed that he might have gone to some of his friends house and he might return home at late hours.
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to contact his friends to know whereabouts of Akash Kumar, but they could not get any information. Therefore, they believed that Akash Kumar had gone to some of his friends’ house to study. During the evidence, PW-11 has stated that she tried to contact accused by making call to his house and his daughter picked up telephone and told that her parents were not at home. These facts were not at all mentioned in her previous statement recorded by the police either in Ex.P6 or statement recorded under Section 161 of Cr.P.C.
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around 5.30 p.m., then why PWs-6, 8, 9 and 11 did not inform this fact to police or tried to take help of police to ascertain whereabouts of Akash Kumar? Therefore, the submission of learned advocate for respondents that after arrest of the accused and the so called confession of the accused, the story of accused No.1 had taken deceased Akash Kumar from the house of PW-11 was fabricated cannot be ruled out. Till then there is no mention anywhere in the prosecution papers about this fact that creates serious doubt about the said story.
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in a school and PW-11 is staff nurse in a hospital. They are educated and residing in Davanagere Town. They did not lodge missing complaint till case was registered on the statement of PW-1. There is no explanation for not lodging
a missing complaint. These facts also add doubt in the ‘theory of last seen’ of accused in the company of the deceased on 10.03.2015 around 5.30 p.m.
Exs.D1 and D2 i.e., statement of PW-11 recorded during the inquest, is material contradiction/omission. In the cross-examination of PW-22, he has stated that PW-11 has given statement before him as per Exs.D1 and D2. Therefore, the evidence of PW-11 that she had last seen deceased in the company of accused is not believable. Therefore, another material circumstance which connect the accused with guilt is not established beyond reasonable doubt.
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continue education of Kumari Vanitha and got her admitted to Pre-University course by paying fees.
love affairs and after completion of their education, let them decide on this issue. Till then, not to continue love affairs”. About two three months thereafter, both accused came to her house and told that “Akash Kumar was loving their daughter Kumari Vanitha. Both of them were very young and their caste were different. Therefore, requested her to advise Akash Kumar not to contact her or continue love affair with Kumari Vanitha; failing which, he has to face consequences.” In her cross-examination, accused
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denied all the said evidence given by her. PW-8 admits that Akash Kumar and Kumari Vanitha were studying in different colleges. However, she denied the suggestion that Akash Kumar and Kumari Vanitha had no connection at all.
Vanitha was studying in the school wherein PW-8 was a teacher. She had ill-treated and harassed her. Therefore, accused requested PW-8 not to ill-treat Kumari Vanitha or harass her. However, she did not care to his request and because of the said reason, PW-8 was very much angry against accused. Conduct of Akash Kumar was not good, he was quarrelsome boy and fighting with others. Deceased quarrelled with them also. He had enemies and the said enemies might have committed his murder. However, due to earlier enmity, PW-8 lodged a false case against them. The said defence were suggested to PWs-6, 8, 9 and 11 and all of them have denied the said suggestions.
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facts before the Court. They have also stated that accused came to their house and requested them to advise Akash Kumar not to have love affair with Kumari Vanitha and inspite of that if he continued to contact Kumari Vanitha, then, he has to face severe consequences. The evidences given by them were denied in their cross-examinations.
PWs-16, 17 and 21 were examined by the prosecution to prove that Akash Kumar and Vanitha were loving each other. But they are also hear-say witnesses. They are friends of late Akash Kumar and during his lifetime, he said
to be informed them that “he fell in love with Kumari Vanitha.” It is not the evidence of PWs-16, 17 and 21 that they had seen deceased and Vanitha were meeting often in the college or park or other places. Except the evidence of PW-8, there is no reliable evidence to prove love affair between the deceased Akash Kumar and Kumari Vanitha and they were planning to marry.
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believe that they had love affair. Deceased was familiar to the family of accused and he was said to be visiting their house as per evidence of PW-8. Therefore, once or twice Akash Kumar was seen in the company of Vanitha cannot be sufficient to hold that they had love affair. In the absence of strong evidence, it is difficult to believe that deceased Akash Kumar was fell in love with Kumari Vanitha and they decided to marry, inspite of advise by PWs-6, 8, 9, 11 and the accused. The said adamant behaviour of Akash Kumar provoked accused to murder him is not proved.
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the said fact then he could have informed to police in this regard. But PW-22 says that PW-2 has not given any such statement to him. As discussed in above paras the improvement made by PW-2 is not believable. Hence said evidence of PW-2 is not credit worthy.
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Investigating officer has sent a letter dated 06.07.2015 questioning specifically about MO-4 to PW-13.
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Investigating officer by the letter dated 06.07.2015, asked a question “(i) as to whether MO-4 sent to him was the instrument used to cause of death of Akash Kumar?” In answer to the said questions, PW-13 had sent a report as
per Ex.P17 and Ex.P18, stating that “MO-4 was not capable of producing the injuries mentioned in the postmortem report. It is also mentioned that the weapon being a moderately heavy stone with an uneven rough surface is not capable of producing the injuries mentioned in the post-mortem report”. From the expert evidence of PW-13, it is clear that MO-4 was not used to murder Akash Kumar. There is no eye-witness to the incident. Hence medical evidence also do not support the case of prosecution regarding possibility of causing injury by MO-4. The investigating officer has not further investigated in this regard after receipt of the Ex.P.16 and Ex.P.18, to ascertain whether accused had used any other weapons than MO-4, to cause injuries to the deceased, which resulted in his death. Lapses of investigation office on this aspect is fatal to the case of prosecution. Therefore, seizure of MO-4 is of no consequence.
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incident as per Exs.P20 and P31. Place wherein dead body was found is not in dispute. Hence Exs.P20 and P31 do not help prosecution to prove the charge.
Rural Police Station who received a complaint and registered FIR on the basis of said complaint on unknown persons. Evidence of PWs.14 to 20 are not of much importance to prove the guilt of accused.
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PW-2 in his evidence stated new facts that he had seen accused in the company of the deceased on the evening of 10.03.2015 is also not reliable. Therefore, the material link to connect the accused with the guilt, i.e., “last seen theory” is not proved.
reasonable doubt that deceased fell in love with daughter
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of accused - Kumari Vanitha and inspite of caution/warning of accused he continued to contact her that enraged the accused to murder Akash Kumar. Prosecution has utterly failed to prove that by assaulting with MO-4 to Akash Kumar, his death was caused. The learned Sessions Judge considered all these facts and came to right conclusion that prosecution had failed to establish guilt of the accused beyond reasonable doubt. We do not find any reasons to interfere in the said findings.
1 (2006) 2 SCC 450
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laid down in the aforesaid judgment is not applicable to the facts of the present case. In this case, it is not in dispute that each and every particulars were not furnished in the inquest report, but there is a specific reference in the inquest report i.e., statement of PWs-6 and 11, that on 10.03.2015, deceased Akash Kumar left home around 5.30 p.m. without any information as to where he was going. They have not stated anywhere in the said statement that accused took him from the house of PW-11; and thereafter, they did not see Akash Kumar till his death. There was no hindrance for PWs-6 and 11 to disclose this fact before the investigating officer on 13.03.2015. Failure of PWs-6 and 11 to disclose said fact to PW-22 creates serious doubt about evidence of PW-11. That is fatal to the case of prosecution. Therefore, law laid down in the above said judgment do not help the case of the prosecution.
2 Criminal Appeal No.1587 of 2008
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have gone through the said judgment. The facts of the said case are different from the facts in the present case. There is no dispute regarding proposition of law laid down in the said case. Merely there is contradiction in the previous statement of witness recorded by the investigating officer and evidence recorded in the Court, cannot be a reason to discard or disbelieve the evidence of the said witness in its entirety. But the contradictions which are given has to be considered very carefully. In the present case, the contradictions in the previous statement of PWs-6 and 11 pertaining to ‘last seen theory’ that was not stated before the investigating officer on 13.03.2015. But said facts were stated while recording the evidence of the said witnesses before the Court. According to case of prosecution, on 10.03.2015, accused took deceased from house of PW-11 at 5.30 pm. This fact was very well within knowledge of PW-11. Inquest was drawn on 13.10.2015 after four days from missing of deceased. On that day, she did not inform to the investigating officer that on 10.03.2015, accused
C/W Criminal Appeal No.1588 of 2008
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came to her house and has taken deceased. On the contrary, in Ex.P6, PW-11 has stated that on 10.03.2015, around 5.30 p.m., deceased left her house to attend some work. It appears, even deceased did not inform her where he was going. She denied the said statement, which were marked as Exs.D1 and D2. It was confronted to investigating officer, who has stated that no such statement was given by PW-11 before him while drawing Ex.P6. However, PW-6 fairly admitted that he had stated before the police as mentioned in his previous statement while drawing of the inquest.
with the guilt, mainly on the “last seen theory” which was not stated by PWs-6 and 11 before investigating officer on 13.03.2015 and both of them within two days, after recording statement in Ex.P.6 remembered all these things and given further statement before the investigating officer, stating that they had last seen the deceased in the company of the accused and accused had taken him from her home. These contradictions needs to be considered carefully.
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Looking to the other circumstances, the said facts appears to be highly doubtful. Therefore, law laid down in the aforesaid judgment is not applicable to the facts of the present case. For the aforesaid discussion, we answer Point Nos.1 and 3 in the ‘negative’;
were discussed elaborately in the above said paras. The Trial Judge has also discussed the evidence of prosecution witnesses. Ofcourse, the reasons assigned by the Trial Court is different from the reasons assigned by us. However, both the Courts have come to conclusion that the prosecution failed to connect the accused with the murder of Akash Kumar. When the commission of murder itself is not proved beyond reasonable doubt, the question of accused tried to destroy the evidence available against them does not arise. Therefore, the findings of the learned Trial Judge is also possible view and hence, it is not perverse or capricious and hence, there is no need to interfere in the said findings of the Trial Court. Therefore, we answer Point No.2 in the ‘negative’.
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ORDER
Sd/JUDGE
Sd/JUDGE
DH
3 issues framed by the court
Whether prosecution proved the accused murdered Akash Kumar on circumstantial evidence, including the last-seen theory, beyond reasonable doubt?
Whether prosecution proved the accused destroyed evidence by throwing blood-stained clothes in a river?
Whether the trial court's acquittal was perverse or arbitrary and warranted interference?
Colour shows how this judgement treated each authority
Birbal Nath Vs. State of RajasthanDistinguished¶64
Criminal Appeal No.1587 of 2008 C/W Criminal Appeal No.1588 of 2008
6 provisions across 2 enactments
The State by Rural Police Station Harihara
Smt. Anjanabai S.
Benakesha/Benakaesha S/o Siddappa
Shobha W/o Benakesha
The State of Karnataka through Rural Police Station Harihara
H.B.Prabhakara Sastry
Umesh M Adiga
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
