Represented by the Alwandi Police Station through the Addl State Public Prosecutor Advocate General Vs Mallikarjun S/O Somawwa Harijan

STATE OF KARNATAKA REPRESENTED BY THE ALWANDI POLICE STATION, THROUGH THE ADDL. STATE PUBLIC PROSECUTOR, ADVOCATE GENERAL OFFICE, HIGH COURT OF KARNATAKA, DHARWAD BENCH.

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…APPELLANT

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

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YASHAVANT NARAYANKAR

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Digitally signed byYASHAVANT NARAYANKAR Location: HIGH COURT OF KARNATAKA DHARWAD BENCH DHARWAD Date: 2025.06.06 16:53:24 +0530

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AND:

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MALLIKARJUN

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S/O. SOMAWWA HARIJAN, AGE: 32 YEARS, OCC: COOLIE, R/O. BUDIHAL, TQ AND DIST: KOPPAL.

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2. GAVISIDAPPA

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S/O. DURGAPPA HARIJAN, AGE: 29 YEARS, OCC: COOLIE, R/O. CHIKKA BAGANAL,

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TQ AND DIST: KOPPAL.

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HANAMAPPA S/O. KENCHAPPA HARIJAN, AGE: 27 YEARS, OCC: COOLIE, R/O. CHIKKA BAGANAL, TQ AND DIST: KOPPAL.

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…RESPONDENTS

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(BY SRI. HANUMESH M.DESAI, ADVOCATE FOR SRI. NEELENDRA D.GUNDE, ADVOCATE FOR R1; SRI. ANAND R.KOLLI, ADVOCATE FOR R2 AND R3)

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THIS CRIMINAL APPEAL IS FILED U/SEC. 378 (1) AND (3) OF CRPC SEEKING TO GRANT LEAVE TO APPEAL AGAINST THE JUDGMENT AND ORDER OF ACQUITTAL DATED 21.06.2022 PASSED BY THE PRL. DISTRICT AND SESSION JUDGE, KOPPAL IN SESSION CASE NO.42/2016 AND SET ASIDE THE JUDGMENT AND ORDER OF ACQUITTAL PRL. DISTRICT AND SESSION JUDGE, KOPPAL IN SESSION CASE NO.42/2016 AND CONVICT AND SENTENCE THE RESPONDENTS/ACCUSED FOR THE OFFENCES PUNISHABLE UNDER SECTIONS 363, 120(B), 302, 201 OF IPC, IN THE INTEREST OF JUSTICE AND EQUITY.

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THIS CRIMINAL APPEAL COMING ON FOR FINAL HEARING THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:

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CORAM:

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THE HON'BLE MR. JUSTICE R.NATARAJ

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AND

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THE HON'BLE MR. JUSTICE RAJESH RAI K

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ORAL JUDGMENT

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(PER: THE HON'BLE MR. JUSTICE RAJESH RAI K)

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The State has preferred this appeal against the judgment passed in Sessions Case No.42/2016 dated 21.06.2022 by the Principal District and Sessions Judge, Koppal (hereinafter referred to as ‘learned Sessions Judge’) acquitting the accusedrespondents for the offences punishable under Sections 363, 120B, 302 and 201 of the Indian Penal Code 1860 (for short ‘IPC’).

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The prosecution case, briefly stated, is that, respondent No.1 i.e., accused No.1 took the deceased (Kariyappa) on his motorcycle on 25.11.2015 at 06:30 pm from Budihal village for a drink. Thereafter, the deceased did not return and his phone was not reachable. Therefore, the complainant-PW.2-brother of the deceased, visited the house of accused No.1 to enquire about his brother. However, the family members of accused No.1 informed that accused No.1 had not returned to the house and his mobile phone was also switched off. Hence, the complainant made efforts to search his brother; but failed to trace him. Subsequent thereto on

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30.11.2015, PW.2 lodged a complaint-Ex.P.2 before the Alwandi Police alleging that the accused No.1 had kidnapped the deceased. On the strength of Ex.P.2, the Police registered a case against accused No.1 for the offence punishable under Section 363 of IPC in Crime No.115/2015 dated 30.11.2015 as per Ex.P15. Later, PW.12 took up further investigation. On 02.12.2015, the body of the deceased was found in an abandoned well at Kustagi-Koppal Road. PW.2 identified the body as his brother’s and lodged further complaint as per Ex.P3. Accordingly, the complainant-Police invoked Sections 302 and 201 of IPC in Crime No.115/2015. Later, PW.12 drew the inquest panchanama and also sent the body for postmortem and subsequently, apprehended the accused. On interrogation, the accused No.1 revealed that he and deceasedKariyappa were friends and deceased used to visit the house of accused No.1 and had developed intimacy with the sister of accused No.1 which was opposed by accused No.1. Despite the accused No.1 warning him, the deceased did not heed and continued the same. Ultimately the deceased expressed his desire to marry the sister of accused No.1. Enraged by the same, accused No.1 hatched a conspiracy with accused Nos.2

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and 3 to take away the life of deceased. Accordingly on 25.11.2015, he took the deceased on his motorbike to a place called Hiresindhogi Village and made him consume alcohol, thereafter took him to the farm of one Layakali at Kustagi road, Koppal village. There the accused Nos.2 and 3 joined accused No.1. Later, accused No.1 picked up quarrel with deceased and assaulted him with a club on his head and chest with multiple blows and committed the murder of deceased. Further, in order to wipe off the evidence, all the accused Nos.1 to 3 threw the body into an abandoned well in the said land. Based on this voluntary statement of accused, the Investigating OfficerPW.14 conducted further investigation and laid the chargesheet before the Committal Court for the offences punishable under Sections 363, 120B, 302 and 201 of IPC.

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After committal of the case before the Sessions Court, the learned Sessions Judge after securing the presence of the accused, framed charges against accused for the aforementioned offences and read over the same to the accused. However, they denied the charges and claimed to be tried.

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In order to prove the charges leveled against the accused before the Sessions Court, the prosecution in all examined 15 witnesses as PW.1 to PW.15 and got marked 21 documents as Ex.P1 to Ex.P.21 and identified 9 material objects as MO.1 to MO.9. The accused neither examined any witness nor marked any documents on their behalf.

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On completion of the prosecution evidence, the learned Sessions Judge read over the incriminating portion and evidence of the material witnesses to the accused as contemplated under Section 313 of Cr.P.C, however, the accused denied the same. The defence of the accused was one of denial and that he was falsely implicated.

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On assessing the oral and documentary evidence, the learned Sessions Judge acquitted the accused of the charges leveled against them. Aggrieved by the same, the State has preferred this appeal to set-aside the impugned judgment and also to convict the accused for the charges leveled against them.

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We have heard the learned Addl. SPP for the State,

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learned counsel Sri.Hanumesh M. Desai for respondent No.1

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and learned counsel Sri.Anand R. Kolli for respondent Nos.2 and 3.

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The primary contention of the learned Addl. SPP is that the learned Sessions Judge has grossly erred while acquitting the accused for the charges leveled against them without appreciating the evidence on record in right perspective. He contended that it was clear from the evidence of PW.2-complainant i.e., the brother of the deceased that the accused No.1 took the deceased from his house on 25.11.2015. He contends PW.10 clearly deposed that he saw the deceased and accused No.1 riding on the motor bike towards Hiresindhogi village and that at 8:30 pm he saw accused No.1 alone returning on the bike. Therefore he contends that PW.10 is a crucial witness to prove that the deceased was last found in the company of the accused No.1. He contends that it was incumbent upon accused No.1 to state in his statement under Section 313 of Cr.P.C. as to what happened after he took deceased from his house. He contends that the motive for the murder of the deceased is explicit and the witnesses to the recovery Mahazar (i.e.PW.1 and PW.8) have supported the case

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of the prosecution. He further contended that the prosecution also proved the scientific evidence by examining PW.15-the FSL Officer and placing his report as per Ex.P21, which establishes that the weapon could have been used for commission of the crime and also the clothes of the deceased and accused No.1 were stained with human blood of ‘O+’ Group. In such circumstance, the prosecution has proved each link in the chain of circumstance to point out the guilt of the accused. In such circumstance, the judgment passed by the trial Court is liable to be set-aside. Accordingly, he prays to allow the appeal.

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(i) Refuting the above submission put forth by the learned Addl. SPP, the learned counsel for respondentsaccused contended that the Sessions Court after meticulously examining the entire evidence on record passed a well reasoned judgment which does not call for any interference at the hands of this Court.

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(ii) He contended that the entire case rests on circumstantial evidence and the prosecution miserably failed to prove any of the circumstance to prove the guilt of accused beyond reasonable doubt. According to the learned counsel,

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the deceased was allegedly taken by accused No.1 from the house of PW.2 on 25.11.2015 but he lodged a complaint after 5 days i.e., on 30.11.2015. The inordinate delay in lodging the complaint is not properly explained by the prosecution. Further PW.10 who last saw the deceased in the company of accused No.1 though deposed that he saw deceased in the company of accused No.1 on 25.11.2015, but he failed to reveal the same to PW.2 or to PW.6 till 08.12.2015 even when PW.2 had enquired him about the deceased. In such circumstance, no credence can be attached to the evidence of PWs.2 and 10.

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(iii) Further, the prosecution also failed to prove the motive for the incident by examining the sister of accused No.1.

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(iv) He also contended that the recovery of the incriminating articles were not proved within the ambit of Section 27 of the Indian Evidence Act as law laid down by the Hon’ble Apex Court in catena of judgments. Hence, according to the learned counsel, the prosecution miserably failed to prove the guilt of the accused and therefore the trial Court rightly acquitted the accused and hence interference with the

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judgment is not called for. Accordingly, he prays to dismiss the appeal.

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Having heard the learned counsel for the respective parties, so also, having perused the entire evidence on record, the only point that would arise for our consideration is:

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“Whether the judgment under this appeal suffers from any perversity or illegality and interference in the acquittal order passed by the Sessions Court is called for by this Court?”

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On careful analysis of the evidence and documents

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placed on record, to prove the homicidal death of the deceased, the prosecution has relied on Ex.P16-Postmortem Report and Ex.P14-Inquest Panchanama. The Doctor-PW.13 who conducted the autopsy on the body of the deceased categorically stated that the cause of death cannot be ascertained as the vital organs were missing. Even at the time of Inquest PanchanamaEx.P14 , PW.13 had opined that the cause of death cannot be ascertained. However, admittedly the body of the deceased was recovered from an abandoned well in a decomposed state.

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Thus, it could be held that the deceased died in mysterious circumstances.

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To connect the accused to the mysterious death of the deceased, the prosecution predominantly relied on the evidence of PWs.2, 6 and 10. Among these witnesses, PW.2 the complaint being the brother of the deceased reiterated the contents of his complaint in his evidence and deposed that on 25.11.2015, the accused No.1 took the deceased on his motorbike and thereafter, both of them did not return. However, he lodged the complaint on 30.11.2015 that his brother was kidnapped by accused No.1. It is his specific evidence that, after 3 to 4 days from 25.11.2015, he had called PW.10 who is his distant relative and enquired about the deceased (Kariyappa). However, PW.10 did not whisper anything about the deceased accompanying the accused No.1 on his motorcycle and that he saw accused No.1 returning alone in the night of 25.11.2015. As rightly contended by the learned counsel for the respondents, PW.2 was bound to properly explain the reason for not lodging any complaint for 5 days. The learned Addl. SPP vehemently contended that PW.10

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being the star witness supported the case of the prosecution and stated that he had last seen the deceased in the company of accused No.1 and therefore, the accused No.1 had to explain where he left the company of deceased. However, on careful analysis of evidence of PW.10, he being the relative of PW.2 and deceased, failed to inform either PW.2 or to the wife of deceased-PW.6 that he had seen the deceased in the company of accused No.1 on 25.11.2015. It is pertinent to mention at this juncture, according to PW.2 he had called PW.10 after 3-4 days from 25.11.2015. However, PW.10 failed to disclose the events to PW.2 or PW.6 the wife of deceased. PW.10 who was very much present at the time of conducting the inquest panchanama on the corpse of the deceased on 02.12.2015 did not inform the above aspects to PW.2. In such circumstance, a doubt arises about the credibility of the testimony of PW.10. It is equally important to note that PW.10 was a distant relative of PW.2. The conduct of PW.10 makes it more than probable that he is a chance witness to suit the case of the prosecution. The other circumstance relied by the prosecution is the recovery of MO.9-shirt of the accused worn at the time of commission of crime under mahazar-Ex.P13 based on the voluntary statement

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of the accused No.1. The said MO.9 was sent for FSL for chemical examination. PW.15-Scientific Officer was examined and his report-Ex.P21 depicts that ‘no blood stain was detected on item No.7 i.e., MO.9-Shirt’. Further, the witnesses for the recovery of M.O.9-shirt i.e., PWs.1 and 8 have not fully supported the case of the prosecution. As rightly contended by the learned counsel for the respondents-accused, the prosecution failed to examine the material witness i.e., the sister of accused No.1 to prove the motive for the commission of the alleged offence by accused. Hence, on a collective reading of the evidence of the material witnesses discussed supra, in our considered opinion the prosecution has failed to prove the charges leveled against the accused beyond reasonable doubt.

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On perusal of the entire evidence on record, except the voluntary statement of accused No.1, absolutely there is no other evidence placed by the prosecution to connect the accused Nos.2 and 3 to the alleged crime. The material witnesses i.e., PWs.2 and 10 have also not deposed about the involvement of accused Nos.2 and 3 in the alleged crime.

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The panchasheela/golden principles laid by the Hon’ble Apex Court in order to prove the guilt of the accused in a case based on circumstantial evidence, in the case of Sharad Birdhichand Sarda v. State of Maharashtra reported in (1984) 4 SCC 116 which was re-iterated by the Hon’ble Apex Court in the recent judgment i.e., Shankar v. State of Maharashtra reported in 2023 SCC OnLine SC 268 held as

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under:

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“(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established. It may be noted here that this Court indicated that the circumstances concerned ‘must or should’ and not ‘may be’ established. There is not only a grammatical but a legal distinction between ‘may be proved’ and ‘must be or should be proved’ as was held by this Court in Shivaji Sahabrao Bobade v. State of Maharashtra [(1973) 2 SCC 793] where the following observations were made: 19.…“Certainly, it is a primary principle that the accused must be and not merely may be guilty before a court can convict and the mental distance between ‘may be’ and ‘must be’ is long and divides vague conjectures from sure conclusions.”

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(2) The facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is

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guilty.

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(3) the circumstances should be of a conclusive nature and tendency,

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(4) they should exclude every possible hypothesis except the one to be proved, and

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(5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.”

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Nevertheless, this being an appeal against acquittal,

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the Hon’ble Apex Court in the case of H.R.Sundara And

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Others Vs. State Of Karnataka reported in (2023) 9 SCC

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581 , summarized the principles to exercise the power by the Appellate Court to interfere in the order of the Sessions Court in paragraph No.9 as under:

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“ 9. Normally, when an Appellate Court exercises appellate jurisdiction, the duty of the Appellate Court is to find out whether the verdict which is under challenge is correct or incorrect in law and on facts. The Appellate Court normally ascertains whether the decision under challenge is legal or illegal. But while dealing with an appeal against acquittal, the Appellate Court cannot examine the

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impugned judgment only to find out whether the view taken was correct or incorrect. After re- appreciating the oral and documentary evidence, the Appellate Court must first decide whether the Trial Court's view was a possible view. The Appellate Court cannot overturn acquittal only on the ground that after re-appreciating evidence, it is of the view that the guilt of the accused was established beyond a reasonable doubt. Only by recording such a conclusion an order of acquittal cannot be reversed unless the Appellate Court also concludes that it was the only possible conclusion. Thus, the Appellate Court must see whether the view taken by the Trial Court while acquitting an accused can be reasonably taken on the basis of the evidence on record. If the view taken by the Trial Court is a possible view, the Appellate Court cannot interfere with the order of acquittal on the ground that another view could have been taken.”

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Further, the Hon’ble Apex Court in the case of Mallappa And Others v. State Of Karnataka reported in (2024) 3 SCC 544 while summarizing the principles in dealing with the appeal against acquittal in paragraph No.42 held as under:

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“ 42. Our criminal jurisprudence is essentially based on the promise that no

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innocent shall be condemned as guilty. All the safeguards and the jurisprudential values of criminal law, are intended to prevent any failure of justice. The principles which come into play 9 AIR 1961 SC 715 while deciding an appeal from acquittal could be summarized as:

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(i) Appreciation of evidence is the core element of a criminal trial and such appreciation must be comprehensive – inclusive of all evidence, oral or documentary;

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(ii) Partial or selective appreciation of evidence may result in a miscarriage of justice and is in itself a ground of challenge;

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(iii) If the Court, after appreciation of evidence, finds that two views are possible, the one in favour of the accused shall ordinarily be followed ;

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(iv) If the view of the Trial Court is a legally plausible view, mere possibility of a contrary view shall not justify the reversal of acquittal;

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(v) If the appellate Court is inclined to reverse the acquittal in appeal on a reappreciation of evidence, it must specifically address all the reasons given by the Trial Court for acquittal and must cover all the facts;

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(vi) In a case of reversal from acquittal to conviction, the appellate Court must demonstrate an illegality, perversity or error of law or fact in the decision of the Trial Court.”

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Hence, on collocation of the principles summarized in the above judgment and applying it to the facts and circumstances of this case, we are of the considered view that the prosecution has failed to place sufficient evidence to prove the charges leveled against the accused beyond all reasonable doubt.

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