Allowed

Balappa S/O Shankrappa Sunkanuru v. the State of Karnataka

Karnataka HC16 Apr 2025CRL.A/200016/2020

Case brief

AI extract

What is this about?

Criminal Appeal filed under Section 374 CrPC against conviction and sentence for murder under Section 302 IPC. High Court held prosecution failed to prove motive, extra-judicial confession, and recovery of evidence beyond reasonable doubt. Acquitted appellant.

What did the court decide?

Appellant acquitted, judgment of conviction set aside, released from jail.

Balappa S/O Shankrappa Sunkanuru Vs the State… — Murder and Culpable Homicide | Karnataka HC (2025)

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IN THE HIGH COURT OF KARNATAKA

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KALABURAGI BENCH

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DATED THIS THE 16^TH DAY OF APRIL, 2025

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PRESENT

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THE HON'BLE MR. JUSTICE K NATARAJAN

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AND

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THE HON'BLE MR. JUSTICE VIJAYKUMAR A. PATIL

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CRIMINAL APPEAL NO.200016 OF 2020

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(374(Cr.PC)/415(BNSS))

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BETWEEN:

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BALAPPA S/O SHANKRAPPA SUNKANURU, AGE: 54 YEARS, OCC: AGRICULTURE, R/O UDBAL (B) VILLAGE, TQ. MANVI, DIST. RAICHUR-584123.

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…APPELLANT

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(BY SRI. R. S. LAGALI, ADVOCATE)

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Digitally signed by NIJAMUDDIN JAMKHANDI Location: HIGH COURT OF KARNATAKA

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AND:

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THE STATE OF KARNATAKA THROUGH THE SHO., KAVITAL PS. REP. BY THE ADDL. STATE PUBLIC PROSECUTOR, HIGH COURT OF KARNATAKA KALABURAGI BENCH-588103.

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…RESPONDENT

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(BY SRI. SIDDALING P. PATIL, ADDL. SPP)

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THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374 (2) OF CR.P.C PRAYING TO ALLOW THIS APPEAL THEREBY SET ASIDE THE JUDGMENT OF CONVICTION DATED 27.11.2019 AND ORDER OF SENTENCE DATED 28.11.2019 PASSED BY THE

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I ADDL. SESSIONS JUDGE, RAICHUR, IN S.C.NO. 147/2017 AND ACQUIT THE APPELLANT OF ALL THE CHARGES.

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

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CORAM: HON'BLE MR. JUSTICE K NATARAJAN AND

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HON'BLE MR. JUSTICE VIJAYKUMAR A. PATIL

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ORAL JUDGMENT

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(PER: HON'BLE MR. JUSTICE K NATARAJAN)

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This appeal is filed by the appellant/accused under

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Section 374 (2) of Cr.P.C. for setting aside the judgment of conviction and sentence passed by the I Addl. Sessions Judge, Raichur in Sessions Case No.147/2017 dated 27.11.2019 for sentencing the appellant to undergo imprisonment for life and pay fine of Rs.25,000/- and in default of payment of fine, he shall further undergo simple imprisonment for a period of six months under Section 302 of IPC.

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We have heard the arguments of learned counsel for the appellant and learned Addl. SPP for the State.

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The appellant was the accused and the

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respondent was the complainant-prosecution before the Trial Court. Ranks of the parties are retained for the convenience.

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The case of prosecution before the Trial Court is that CPI of Manvi police station, District Raichur, filed charge sheet against the accused for the offence punishable under Section 302 of IPC. The Police registered the FIR based on the complaint filed by PW-1/Siddamma, who is the wife of deceased Shabangouda. She stated that her husband was in the Udbal village in the house along with PW-5. She had gone to the daughter’s house at Kushtagi and she got the information from the brother of the deceased that her husband was taken to hospital and he was in serious condition. She went to the hospital and saw that her husband was dead. The police also came to the hospital and she lodged the complaint alleging that some unknown persons said to have committed the murder of her husband on the midnight of 20.12.2016 and

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21.12.2016, when PW-5 and her husband were sleeping together.

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FIR was initially registered against unknown

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person and during the investigation the police recorded the statement of PW-18-Durgappa who said to have given information that the accused said to be given extra judicial confession before him, stating that he had committed the murder of deceased-Sabanagouda. Based upon the statement of PW-18, the police started investigation and apprehended the accused on 27.12.2016, who has confessed the crime and on the basis of his voluntary statement, the police recovered MO-7 to MO-9 the cloth of the accused said to be blood stained from the father-inlaw(wife of the accused) and after completion of the investigation, recorded the statement of the other accused witnesses and police have filed charge sheet against him.

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After receipt of charge sheet, the learned Magistrate took the cognizance of offence punishable under Section 302 of IPC and committed the case to the

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Court of Sessions. Accordingly, the Trial Court secured the presence of the accused, who was in custody from the date of his arrest and remanded to the judicial custody. The charges were framed against the accused for the offence punishable under Section 302 of IPC, he denied the charges and claimed to be tried.

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Accordingly, the prosecution was called upon to

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prove its case, the prosecution in support of its case in all examined 28 witnesses as PW-1 to PW-28 and got marked 28 documents and 9 material objects and during the cross-examination the learned counsel for the accused got marked Ex.D-1 to Ex.D-3 in the cross-examination of PW8, PW-11 & PW-12. At closing of prosecution evidence, the statement of the accused under Section 313 of Cr.P.C. has been recorded. The case of the accused is one of the total denial but not entered in any evidence. Hence, after hearing the arguments, the Trial Court found the accused guilty and sentenced him to undergo punishment under

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Section 302 of IPC as stated above. Being aggrieved by

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the same, the accused is before this Court.

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The learned counsel for the appellant

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vehemently contended that the case of the prosecution is based upon the circumstantial evidence, there were six circumstantial evidences was lead by the prosecution 1.Homicidal, 2.Motive, 3.Extra judicial confession, 4. Recovery of axe and cloth of the accused, 5. DNA test report and 6. Non-explanation of the accused regarding blood stains found on cloth of the accused. But none of the circumstantial evidence, have been proved by the prosecution by examining the witnesses by satisfactory explaining all the circumstance connecting the accused with crime, when the offences committed by the unknown person and based upon the circumstantial evidence, all the circumstantial shall be concluded without any break in the chain link to indicate that the accused alone committed the murder. And it is further contended that the motive is also not proved properly as per the case of the prosecution.

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The PW-14 said to be have illicit relationship with the daughter of the accused and the accused said to have intimated the same to the deceased to advice PW-14, but the deceased said to be not advised to PW-14. Therefore, accused have uttered above in presence of the PW-12 to PW-16 near the Tea hotel of PW-15 stating that ‘a bull will

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going to fall during yell amavasya day’ and this aspect was not properly proved by the prosecution as the accused uttered the word by looking to PW-14 whereas, death was caused to the deceased-Sabanagouda and the motive is illogical and none of the witnesses properly stated against

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the accused of perusing the motive of the accused to kill the deceased-Sabanagouda and who is nothing to do with the intimacy of the daughter with accused PW-14. Therefore, this aspect was not proved by prosecution.

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The learned counsel also contended that the extra judicial confession alleged by the prosecution for taking up the investigation and unfold the story of the commission of the murder from the statement of PW-18-

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Durgappa, before whom the accused said to be made extra judicial confession regarding committing the murder, but this witness turned hostile. Therefore, this circumstance is also not proved by the prosecution.

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The learned counsel also contended as regards of the recovery of MO-1 to MO-5-cloth of the deceased, MO-6-Axe, on the voluntary statement of the accused and MO-7 to MO-9 from the possession accused were not proved beyond reasonable doubt and as per the evidence of PW-4 in the cross-examination, he has admitted that, he has signed the Ex.P-6–seizure panchanama cloth of the deceased, MO-1 to MO-5 and Ex.P-7-seizure panchanama of the axe, Ex.P-10-seizure panchanma of cloth of the deceased, MO-7 to MO-10 which is signed by the PW-4 in the police station and he do not know the contents of the panchanama. Therefore, he contended that as per said panchanama, Ex.P-6 was prepared on 22.12.2016, whereas the Ex.P-7 & Ex.P-10 were prepared on 27.12.2016, after arrest of the accused but all those

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articles sent to the FSL report on 19.02.2017, after almost lapse of two months and the said articles were not packed and sealed on the spot and there is no evidence from the PW-4 and PW-26-Investgiation Officer.

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He further contended that MO-6 was seized from the open place accessible to the public and recovery is not proved and MO-7 to MO-9 were seized from the house of the father-in-law of the accused from the shelf ‘maada’, which is accessible to the family members of the father-in-law of accused and the seizure is also not proved. Therefore, the very seizure of the MO-6 to MO-9 is doubtful and there is manipulation of the articles in the police station for two months is not proved in supported of this case. The learned counsel for the appellant relied upon the judgment of the Hon’ble Supreme Court in the case of Manjunath Vs. State of Karnataka reported in AIRONLINE 2023 SC 890 2024 (2) KANT LJ 1 and Rahul Vs. State of Delhi, Ministry of Home Affairs & Anr. With Ravi Kumar Vs. State of NCT of Delhi reported in AIRONLINE 2022 SC 841 (SUPREME COURT).

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The learned counsel also contended that as per

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the DNA test report, all the articles are containing the human organ blood group and the articles were opened, which were sealed on one day i.e., on 30.12.2017, there is no specific identification mark to show it was seized on the spot either on 22.12.2016 or 27.12.2016, as per the report suspecting the case there is possibility of manipulation of the articles in the police station is not proved. Hence, the recovery also proved beyond the reasonable doubt.

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The learned counsel further contended merely the non-explanation of the blood stained found on the cloth of the deceased that itself cannot draw an adverse inference against the accused in committing the crime for the offence under Section 302 of IPC. Therefore, it is contended all the chain of circumstances has not been proved by the prosecution beyond reasonable doubt. Therefore, prayed for acquittal of the accused by reversing the judgment of conviction.

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Per contra, the learned Additional State Public

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Prosecutor supported the judgment and order of conviction passed by the Trial Court and contended that prima facie material placed on in respect of motive, uttered by the accused that ‘one bull will fall on the yell amavasya day’ has been spoken by PW-12 to PW-16 and accordingly, he assured himself confessed before the PW-18 that he has committed the murder of the deceased and thereafter, the investigation took place. The homicidal death is not disputed by the accused. The death of the deceased was due to homicidal death. As per Ex.P-15-PM report an opinion was given by Medical Officer as per Ex.P-16. It clearly shows that due to the assault with the axe the death was occurred. The recovery also proved by the prosecution from examining the PW-4 and PW-26Investigation Officer both of them evidence corroborates each other regarding seizure of MO-1 to MO-9 under the panchanama P-6, P-7 and P-10. All the articles were sent to the FSL and as per the FSL report, the human blood was found on MO-1 to MO-9, the blood stained on the

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cloth of the accused, the accused required to explain the same which within his special knowledge that how the blood found on his cloth. None explanation of the same, the adverse inference can be drawn against the accused and the accused has committed the murder. And further contended that the Trial Court after appreciating the materials on record, rightly held that accused was guilty for the offence punishable under Section 302 of IPC. Therefore, no interference is called for with the considered judgment of the Trial Court. He prays to dismiss the appeal.

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Having heard the arguments and perused the records the point that arise for the consideration is that;

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i) Whether the prosecution proves beyond all reasonable doubt that on 20.12.2016 at midnight the accused committed the murder of deceasedSabanagouda by using the MO-6-Axe and thereby he has committed offence under Section 302 of IPC.?

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ii) Whether judgment of the Trial Court convicting the appellant calls for interference?

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16. Stated above, to prove his case the prosecution

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in all examined 28 witnesses. Before appreciating the evidence on record, it is worth to mention the evidence adduced by the prosecution before the Trial Court.

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PW-1-Siddamma, who is the wife of the

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deceased, according to her evidence on 21.12.2016, she had been to her daughter house at Kustagi to meet her another daughter and one more daughter was staying in the same village along with the son-in-law. Her husband said to be stayed in their house along with PW-5Sangamesh. When she was in her daughter’s house, she received the information from the brother of the deceased that her husband was taken to Raichur hospital, immediately she went to there and saw her husband was died and there was injury on the face of her husband. Therefore, she lodged a complaint to the police alleging that on said night at 9.00 p.m., there was power cut and

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at the time some of unknown person came and committed murder of her husband and subsequently, after investigation she came to know that the accused, who has committed the murder of her husband, she also spokes about the motive that PW-14 having illicit intimacy with her daughter. Therefore, the husband requested to deceased to advice the PW-14, but he has not taken any care and not advised PW-14. Therefore, the accused felt to commit murder of deceased-Sabanagouda, in order to teach lesson to the PW-14 and she also identified the cloth of the deceased and MO-6-Axe said to be used to commit the murder of the deceased.

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PW-2-Sharanappa is a spot pancha witness to Ex.P-2. PW-2 is seen in the photograph as per Ex.P-3. Panchanama is prepared on the spot, which is not in dispute since the deceased was sustained injuries in the house and he was shifted to the hospital wherein, he died. Therefore, the spot panchanama and death of the deceased was not seriously disputed by the accused.

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PW-3 Hanumant, who is inquest pancha witness

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according to his evidence, he has seen this inquest panchanama prepared by the police in the hospital as per Ex.P-4, the death of the deceased and preparing of the inquest panchanama over the dead body is not in dispute.

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PW-4-Vijay, who is seizure of panchanama witness to the Ex.P-6, Ex.P-7 and Ex.P-10 and recovery of MO-1 to MO-9, according to his evidence, the police called him to police station, where the police have seized MO-1 to MO-5 in the police station and thereafter, the police along with him and the accused went to the spot where the accused shown him an in a bush, it was seized by the police under the panchanama as per Ex.P-7 and he has identified the MO-6-axe. Subsequently, the police took PW-4 along with accused to the house of father-in-law of the accused. He has took out blood stained three cloths namely, Banion, Panche and full shirt and same was seized and same has seized by the PW-10 and identified the MO7 to MO-9 in the Court. He also identified Ex.P-9 during

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the cross-examination and he has admitted all the panchanams EX.P-6, 7 and 9 signed in the panchanama in the police station and he do not know the contents of the panchanama.

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PW-5- Sangamesh, who is said to be the

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witness who stayed along with the deceased, he has deposed that he went to the house of the deceased, who is his uncle and both of them stayed at night at 9.30 p.m. after the dinner. At about 10.3 p.m. he said to be went out and came back and slept near the courtyard where the deceased was slept. During the midnight he said to be awaken by hearing different kinds of snoring noise of the deceased and he got up and saw with the help of the torch light, since there was electricity disconnection and he saw there was pool of blood, immediately he was alerted his relatives and with the help of brother of the deceased, he shifted the deceased to the local hospital Udbal, where they asked to take the deceased to Raichur Shivam Hospital. Accordingly, they have taken him to the hospital,

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where he is said to be declared as dead. According to him, the incident would have taken place at 3.00 a.m., in the midnight. Thereafter, the police conducted the panchanama he himself prepared the complaint as per Ex.P-1 and the same was filed by PW-1. He further deposed that there was ill-will between the PW-14 and the accused and when the Sanna Mallanagouda was drinking tea at that time, the accused said to be uttered that ‘a bull will fall on yell amavasya day’ and it is said that the daughter of the accused was instigated by PW-14 for having illicit intimacy with her, therefore, he has stated

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due to the ill-will between PW-14 and accused, the accused has committed the murder of her uncle.

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PW-6-Manjamma, daughter of the deceased she

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was staying in the Kustagi she came to know that her uncle has been hospitalized, then she along with her mother came to the hospital and saw the dead body of her father and she also speaks that the PW-14 is having illicit intimacy with her sister. And the deceased was not

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advising the PW-14. Therefore, the accused committed the murder of her father. According to her evidence, she is hearsay witness and speaks about the motive aspects.

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PW-7-Mounesh who is the son-in-law of the deceased who stayed in the same Udbal village, he also came to know about the death of his father-in-law and he along with brothers of the deceased has shifted the deceased to the hospital at Raichur, but his father in law was declared as dead and he also speaks about the motive aspect and he is also a hearsay witness with respect to committing the offence.

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PW-8, Vijayakumar, who is the person accompanied the deceased along with the relatives taken the deceased to the Udbal hospital and thereafter, to the Shivam Hospital, Raichur, then speaks about the death of the deceased, sustained bleeding injuries on the face and head of the deceased and police came to the spot and prepared the panchanama of the deceased and considered

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the death of the deceased as homicidal death is not in dispute.

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PW-9-Shivaraju, who was accompanied the

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deceased to the hospital along with PW-8, he also speaks about the death of the deceased who shifted to the hospital.

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PW-10-Hanumangouda,brother of the deceased

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who also came to know about the death of his brother then he came to the hospital and saw the dead body and also speaks about the motive aspects, where the accused said to have committed murder of Sabanagouda. PW-14 having intimacy with his daughter and the deceased was not settled the dispute. He is also hearsay witness to the case.

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PW-11- Mallanagouda, who is another brother

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of the deceased and he speaks about the death of the deceased and says accused has committed the murder of his brother and further speaks about the motive aspects. At about 15 days back he went to Bangalore and came

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back while drinking tea at the tea stall of the PW-15, PW14 was passing through at that time he told that ‘a bull will fall on yell amavasya day’ and on next Tuesday night 11.30 p.m. the Sabanagouda was dead and he came to know that PW-14 was having illicit intimacy with Renukamma, who is daughter of the deceased and the accused said to be requested the deceased to advice PW14 but he has not settled the dispute. Therefore, the accused committed the murder of the deceased.

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PW-12, Dodda Dyamanna-who is also deposes

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that prior to the incident one day morning he along with CW-17, CW-19 to CW-21 were drinking tea at that time, the accused told them to drink alcohol at that time he said to be declared that ‘a bull will fall on yell amavasya day’ and subsequently, he came to know the death of the Sabanagouda and he has partly turned hostile and not supported the prosecution evidence in respect of the accused in uttering the word and committed the murder. Even otherwise he only speaks motive aspects.

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PW-13-Amaresh, another witness also drunk

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tea, on the said date and deposed that about 15 days prior to the incident at the time the accused said to be uttered word that ‘a bull will fall on yell amavasya day’ and very next day he came to know about the Sabanagouda got murdered and he do not know who has committed the murder. This witness also turned hostile and not supported the prosecution case.

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PW-14-Mudigouda, one of the star witnesses to the prosecution case, where the motive was attributed by the prosecution that this witness said to have illicit intimacy with the deceased daughter-Renukamma. This witness deposes that the accused said to be presumed that this witness having illicit intimacy with his daughter and he says having wife and children and there is no such, intimacy with daughter of the accused, but the accused was always complaining to the deceased that he having intimacy with daughter of the accused. Therefore, he requested the deceased to advise PW-14, but the

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deceased not supported the accused therefore, in order to teach lesson to the deceased, the accused said to have been committed murder of the deceased-Sabanagouda. Where he has also stated that about 10 days prior to the incident, one day when he was proceeding in front of the tea stall of PW-15 the accused and others were present while drinking tea. At that time, the accused said to be uttered the word that ‘a bull will fall on yell amavase day’. After 9th day he came to know the murder was committed with an axe, and death of the deceased who died in the hospital.

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PW-15-Eranna, who is the tea stall owner in whose tea stall the PW-12, PW-13 and 16 were drinking tea at the time PW-14 was passing in front of the tea stall, at the time the accused said to be uttered the word that ‘a bull will fall on yell amavasya day’. But this witness though stated the accused was told that ‘a bull will fall on yell amavasya day’. But all of them went back but he has not

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stated the PW-14 was passing though the tea stall and he

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has partly turned hostile.

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PW-16-Bhimanagouda, who is another brother

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of the deceased who speaks about the motive aspects that

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he came from Bangalore, when he was drinking tea in the tea stall of PW-15, at that time CW-9, CW-10 and CW-13 to CW-21 were also drinking tea, the accused were also there at the said time who told that ‘a bull will fall on yell amavasya day’ and very next day the accused said to be committed murder of the deceased and he saw the dead body in the hospital and he also speaks that there was a intimacy between the PW-14-Mudigouda and daughter of the deceased-Renukamma, therefore, the accused requested the deceased to advice to PW-14, but he has not done. Therefore, the accused committed the murder of the deceased-Sabanagouda.

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PW-17, Balappa, a villager who also said to

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have drunk tea in the tea stall of the PW-15 and he also speaks about the same to the accused who uttered the

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word that ‘a bull will fall on yell amavasya day’ and after 2-3 days he committed murder and he came to know about the death of the deceased.

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PW-18, Durgappa, who is a star witness to the prosecution as the accused said to made extra judicial confession before him, after the murder of the deceased and he said to be informed the police, that the accused told that he has committed the murder of the deceased and unfortunately, this witness totally turned hostile and not supported the prosecution case. Even after treating him as hostile nothing elicited from the mouth of his witness. Therefore, the evidence of PW-18 is not disputed to the prosecution case.

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PW-19,Y.B.Patil-Police Head Constable, who carried the cloth of the deceased and handed to the Circle Inspector of Police and he has also identified the MO-1 to MO-5.

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PW-20-Timmareddy, Junior Engineer, GESCOM,

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according to his evidence on 20.12.2016 from 9.30 p.m. to

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21.12.2016 till 6.30 a.m. there is no electricity connection and he has received certificate as per Ex.P-14. It is not seriously disputed by the learned counsel for the appellant-accused states that there a problem in supply of electricity on the said day there is no power.

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PW-21-Doctor, Mallikarjuna Reddy, who conducted the post mortem on the dead body of the deceased as per Ex.P-15 and he has collected the cloth of the deceased and sent to the police and thereafter, he received the MO-6-axe from the police and he has given opinion as per Ex.P-16, the injury was found on the deceased might be caused, if a person assaulted by the MO-6-axe and he also stated that death was due to homicidal death. Due to the head injuries sustained death.

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Though the learned counsel for the appellantaccused states that the head injuries to the deceased is

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not in dispute and homicidal death is also not in dispute.

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PW-22-Padmanabh Joshi, Junior Engineer, who

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prepared the sketch of the spot of the incident as per Ex.P-17, since death of the deceased in the house is not in dispute.

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PW-23-Laxman Swamy, who carried 9 articles to the FSL to Bangalore, and given report to the Investigating Officer.

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PW-24-Husenappa, another Police Constable of Kowthal Police Station, who took the photograph during panchanama as per Exs.P-5, P-8 and P-9.

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PW-25-Eranna-Assistant Sub-Inspector of Police, who received the complaint from PW-1 as per Ex.P1, he registered the FIR in Crime No.140/2016 as per Ex.P-24 and he send the FIR to the Court and also stated he found the dead body with the injury and handed over the investigation to the CBI.

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PW-26-Investigating Officer, who conducted the further investigation, visited the spot and prepared the

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spot panchanama as per Ex.P-4, took the photograph as per Ex.P-5, thereafter, on the same day at about 4.00 to 5.00 p.m., he reported the spot panchanama as per Ex.P52 and on the same day at 8.00 p.m., the PW-19 produced the cloth of the deceased and he secured PW-4 and CW-6 prepared the panchanama as per Ex.P-6 and seized the cloth of the deceased as per MO-1 to MO-5. He recorded the statement of the other witnesses and thereafter, he further says on 27.12.2016, the PSI arrested the accused and produced before the Judicial Magistrate and recorded the voluntary statement of the accused, where the accused said to be confessed the crime and informed that he will show the place where the axe and cloth were hidden in the house. He further states that again he secured the PW-4 and CW-6 along with the accused he went to the spot, where the accused took them near a bush and took out the axe and produced same before the witness. He seized under the panchanama as per Ex.P-7, he identifies the axe as per P-6.

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He further deposes that on the same day, the

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accused also took them to the house of his father-in-law and while crossing the room he took out the shirt, baniyan and dhoti and produced before the Investigation Officer and he seized the same under the panchanama as per Ex.P-10 in the presence of PW-4 and CW-6 and he has identifies the above MO-7 to MO-9, which is cloth of the deceased, he further says on 21.01.2017, he sent all the articles to the FSL and later he completed the investigation and he was appointed to election duty, he has handed over to another Investigating Officer-Srinivas Rao.

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PW-27-Sharanappa, is the official witness i.e., Police Constable, who carried FIR to the Court.

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PW-28-Anjaneya D.S.-Police Sub-Inspector, who arrested the accused on 27.12.2016, and produced before the Investigating Officer and give the report as per Ex.P-28.

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We have carefully scrutinized the evidence of the prosecution witnesses on record.

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Admittedly, the case of the prosecution is based

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upon the circumstantial evidence where the prosecution

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relied upon the following circumstances as under:

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Homicidal death of the deceased-Sabanagouda.

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Motive for the offence.

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Extra judicial confession made before PW-18.

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Recovery of the axe-MO-6 and recovery of cloth of

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the deceased MO-7 to MO-9.

¶159

The DNA test report states that the blood stain of the deceased was found on the cloth of the deceased MO.1 to 5 as well as on the cloth of the accused MO-6 to MO-9 as per the scientific evidence.

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Non-explanation of accused on the fact as to how the blood stain of the deceased was found on the cloth of accused.

¶161

As we stated above, the prosecution case rests upon the circumstantial evidence. It is well settled by the Hon’ble Supreme Court in the catena of decisions that when the prosecution relied upon the circumstantial

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evidence, all the circumstances should be linked with each other without breaking any of the chain link as against the accused and if there is any break, it leads to extending the benefit of doubt to the accused.

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Now, coming to the circumstances relied by the prosecution, the same are discussed as under:

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Homicidal Death:

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As regards the homicidal death, the deceased Sabanagouda was said to be found dead in the house with homicidal injury on his head and face. The same was noticed by PW.5 – Sangamesh and the deceased was shifted to the hospital where he was declared as dead. The body was subjected to the postmortem examination where PW.21 – Dr. Mallikarjuna Reddy conducted autopsy as per the Ex.P15. He found various external injuries along with the bleeding and fracture injuries on the corpse of the deceased. He has opined that the injury is sufficient to cause death of the deceased in ordinary course. The Ex.P15 is the postmortem report. The death of the

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deceased due to the injury was not seriously disputed by the learned counsel for the accused and the evidence of PW.21 also shows that the death was due to hemorrhage and on account of injuries sustained by the deceased on his face and head which are fracture injuries. Therefore, we are of the opinion that the prosecution proved that the death of the deceased Sabanagouda was a homicidal death.

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Motive:

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As per the prosecution case, the accused had two daughters, out of which one daughter is married, where PW.14 – Mudigouda said to had illicit intimacy with her and he was always insisting her to come and join with him for sexual affairs. The same came to the notice of the accused. Therefore, the accused approached the deceased Sabanagouda who is the relative of PW.14 and requested the deceased to advise PW.14 that he should not trouble his daughter. It is further alleged that the deceased Sabanagouda has not advised PW.14 rather he has

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advised the accused to settle the dispute among themselves. Due to which, the accused had grudges against both PW.14 and the deceased, as the deceased did not support him but supported the PW.14. To prove the said motive, the prosecution has relied upon the evidence of PWs.11 to 13, 15 to 17. All these witnesses have stated that about 15 days prior to the incident, when they were drinking tea in the tea-stall of PW.15, the two brothers of the deceased were also drinking tea in the morning hours. At that time, by seeing PW.14 – Mudigouda who was passing in front of the tea-stall, the accused said to have uttered words that “a bull will fall on the yell amavasya day”. It is the indication of the accused that he is going to commit a murder of the bull that is the PW.14 who is having enmity with the accused. But all the witnesses have spoken about uttering the words by the accused while seeing PW.14 who was passing through the tea-stall. Though the tea-stall owner PW.15 and PW.16 turned partly hostile, but PW.14 – Mudigouda also deposes before the Court that when he was passing near the tea-stall, the

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accused uttered the words that “a bull will fall on the yell amavasya day”. Most of the witnesses have said that these words were uttered by the accused, which indicates that there is an enmity between the accused and PW.14. By seeing PW.14, the accused has uttered the words, but none of the witnesses have stated that the accused was indicating to commit murder of the deceased Sabanagouda as bull will fall on the yell amavasya day. There is no matching with the motive aspect adduced by the prosecution witnesses that though the enmity was between the accused and PW.14, who is having illegal intimacy with the daughter of accused, but there is no question of committing the murder of the deceased Sabanagouda, merely who has not advised the PW.14.

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The very logic of the prosecution regarding motive aspect is not sufficient to hold that the accused uttered the words fifteen days prior to the incident that “a bull will fall on the yell amavasya day” after looking at PW.14. But the offence was committed against the

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deceased Sabanagouda who has nothing to do with the affair of PW.14 with the daughter of the accused.

¶178

That apart, the first information report was lodged by the wife of the deceased when PWs.12, 13, 14

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to 16 were all present at the hospital to look the dead body of the deceased. They could have mentioned in the first information that the accused has uttered the said words and nourished the enmity as against the deceased indicating that a bull will fall in the yell amavasya day. All this story was stated by the prosecution witnesses only after the information given by the PW.18 – Durgappa before whom the accused said to have made extra judicial confession. Therefore, we are of the opinion that the motive aspect relied by the prosecution is not proved beyond the doubt. As it is well settled that the motive plays a vital role in a case of the circumstantial evidence, such being the case, the motive is a weak piece of evidence in this case, where the prosecution is not able to prove the enmity between the accused and the deceased

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to conduct a murder. Since the case was registered against the unknown person, none of the witnesses suspected the accused that he could have committed the murder, as fifteen days prior to the incident he has nourished the enmity against the deceased or PW.14.

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Extra judicial confession:

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As regards to another circumstantial evidence led by the prosecution that is extra judicial confession, where the accused said to have informed PW.18 – Durgappa that he himself has committed the murder and he requested PW-18 to save him by obtaining bail. The PW.18 said to have informed the same to the police and in turn the police unfold the story of the commission of murder and came to the conclusion that the accused has committed the murder. Unfortunately, PW.18 – Durgappa turned hostile by not supporting the case of the prosecution and he being treated as hostile, the prosecution was unable to bring any truth from the mouth of this witness. Therefore, the evidence of PW.18 is not

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useful to the prosecution case and the circumstance of extra judicial confession, though it is a weak piece of evidence, but the prosecution failed to prove the same. Thereby, one of the chain link is broken.

¶186

Recovery of cloth of the deceased MOs.1 to 5, recovery of weapon MO.6 and recovery of cloth of the accused MOs.7 to 9:

¶187

Another circumstance led by the prosecution is the recovery of cloth of the deceased, recovery of MO.6 - axe and recovery of MOs.7 to 9 that is the cloth of the accused. The cloth of the deceased MOs.1 to 5 including the waist thread which was handed over by PW.21 – Doctor to the police constable who brought the same and handed over to the Investigation Officer. In turn, the Investigation Officer-PW.26 called PW.4 and seized the MOs.1 to 5 under panchanma as per Ex.P6. The PW.4 also identified MOs.1 to 5 in the Court apart from the Police Constable who carried the cloth to the police station. Admittedly, PW.23 - Police Constable also identifies MOs.1 to 5 which clearly reveals that the cloth MOs.1 to 5 were

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not packed and sealed by the PW.21 - Doctor who collected the cloth of the deceased before going to the postmortem examination on the dead body. The same was brought to the police station by PW.23 and the same was seized by PW.26 in the presence of PW.4 in the police station. Admittedly, the PW.4 who was an independent witness for seizure of the cloth of the deceased has stated that he do not know about the contents of Ex.P6 and he has signed the same in the police station. However, the blood stain found on the cloth of the deceased was matched with the blood stain found on the other material objects.

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Another recovery is MO.6 – axe at the instance

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of the accused. In this regard, the evidence of PW.4 and PW.26 reveals that accused was arrested by PW.28 and produced before the PW.26 on 27.12.2016. After the arrest, the accused has given confession statement confessing the commission of murder and he has informed that he would take them to the place where he has

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dumped the axe after commission of the offence and the cloth material worn by him at the time of offence which was hidden in the house of his father-in-law. Therefore, PW.26 took the PW.4 and the accused said to have led them to a lonely place near a bush and the accused said to have took out an axe-MO.6 and gave it to the Investigation Officer. Accordingly, the Investigation Officer seized the axe under panchanama as per Ex.P7. The photographs were also taken as per Ex.P8. However, the PW.4 independent witness to the panchanama has stated that he do not know about the contents of the panchanama Ex.P7 and he has signed the same in the police station which reveals that Ex.P7 has been prepared by the police in the police station but not on the spot. Even on perusal of Ex.P8 – photographs, it does not reveal that panchanama was prepared on the spot and signed by the PW.4 and along with PW.6 and the I.O., on the spot where the discovery of MO.6 was alleged to be recovered at the instance of the accused.

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Learned counsel for the appellant-accused has vehemently contended that it is brought in the cross examination that the weapon was seized in the open place accessible to the public and it is not seriously disputed by the prosecution. It is not a hidden place where no one can access to the said place and admittedly, it was an open place accessible to the public. The seizure of MO.7 was also not proved with satisfactory evidence of PW.4 as he do not know about the contents of the panchanama and signed the same in the police station.

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Another recovery relied by the prosecution is recovery of MOs.7 to 9, the cloth of the accused. The accused said to have took the police as well as PW.4 and CW.6 to his father-in-law’s house and took out three clothes – a shirt, banian and a dhothi which had blood stains and the same was seized by the I.O. under the panchanama Ex.P10. It is brought in the evidence that the house belongs to the father-in-law of the accused where there is a room belonging to his father-in-law and

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accessible to the other family members of the father-inlaw of the accused. Admittedly, it is not a lonely place or exclusive house of the accused, but it is the house of his father-in-law accessible to the other members of the house. Therefore, the learned counsel for the appellant has contended that this very seizure of the cloth of the accused in the house of the father-in-law, is the house accessible to the other members of the family and no sanctity can be relied upon on the alleged recovery. In support of his contention, the learned counsel for the appellant has relied upon the judgment in the case of Manjunath vs. State of Karnataka referred supra, wherein

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the Hon’ble Supreme Court has held at para - 25 to 27 as under:

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“25. The next aspect is the recovery of the alleged weapons, we have noted the particulars thereof while discussing the findings of the Trial Court. Such recoveries were discarded by the trial court stating that the clubs were recovered from a place accessible to the public and, the chopper and the rods were recovered from a house where

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other persons were also residing which compromises the sanctity of such recovery and takes away from the veracity thereof.

¶203

Further discovery made, to be one satisfying the requirements of Section 27, Indian Evidence Act it must be a fact that is discovered as a consequence of information received from a person in custody. The conditions have been discussed by the Privy Council in Pulukuri Kotayya v. King Emperor38 and the position was reiterated by this court in Mohd. Inayatullah v. State of Maharashtra39, in the following terms:-

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“12….. It will be seen that the first condition necessary for bringing this section into operation is the discovery of a fact, albeit a relevant fact, in consequence of the information received from a person accused of an offence. The second is that the discovery of such fact must be deposed to. The third is that at the time of the receipt of the information the accused must be in police custody. The last but the most important condition is that only “so much of the information” as relates distinctly to the fact thereby discovered is admissible. The rest of the information has to be excluded. The word “distinctly” means “directly”, “indubitably”, “strictly”, “unmistakably”. The word has been

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advisedly used to limit and define the scope of the provable information. The phrase “distinctly relates to the fact thereby discovered” is the linchpin of the provision. This phrase refers to that part of the information supplied by the accused which is the direct and immediate cause of the discovery…” (Emphasis supplied)

¶207

Prima facie, in the present facts, the 3 conditions above appear to be met. However, the Trial Court held, given that the discoveries made were either from a public place or from an area where other persons also resided, reliance thereupon, could not be made. We find this approach of the trial court to be correct.”

¶208

60. In view of the judgment of the Hon’ble Supreme

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Court at para – 25, seizure of the weapon or any material which is accessible to the other members of the house and

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public, has no sanctity on the recovery of the said weapons. Accordingly, we are of the opinion that the very seizure of MO.6 i.e., axe from the open public place and MOs.7 to 9 in the house of the father-in-law, is also accessible to the family members and the family members were also present at the time of recovery. Such being the

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case, the very recovery itself is not proved satisfactorily by the prosecution.

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DNA test report:

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Another circumstance led by the prosecution is

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the DNA test report issued by the Scientific Officer as per Ex.P27, wherein the Scientific Officer tested MOs.1 to 5 the cloth of the deceased, MO.6 – axe and MOs.7 to 9 cloth of the accused and said to have found same human blood group which is identical one. Therefore, the prosecution has contended that the blood belongs to the deceased which is also found on MO.6 weapon and MOs.7 to 9 the cloth of the accused. Therefore, the scientific evidence connects the accused with the crime that the accused was the assailant who committed the murder of the deceased on the said day.

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But on the other hand, learned counsel for the accused has seriously contended that the Scientific Officer was not examined before the Court and the MOs.1 to 5 were seized by the police in the police station on

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21.12.2016 and the MO.6 was seized by the police under Ex.P7 on 27.12.2016 and MOs.7 to 9 were also seized on the same day in the evening and all the materials were not sealed and packed on the spot. Whereas, even if it is seized by the police, but it was belatedly sent to the Forensic Science Laboratory only on 19.02.2017. There is

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a delay of more than nearly two months in sending the materials to the FSL for scientific analysis. Therefore, there is every possibility of manipulating or fabricating the material objects by the police in the police station is not ruled out. In support of his contention, he has relied upon the judgment of the Hon’ble Apex Court in the case of Rahul vs. State of Delhi, Ministry of Home Affairs and Another and connected matter stated supra, wherein at para -32 of the judgment, the Hon’ble Apex Court has held as under:

¶220

“32. It is true that PW-23 Dr. B. K. Mohapatra, Senior Scientific Officer (Biology) of CFSL, New Delhi had stepped into the witness box and his report regarding DNA profiling was exhibited as Ex.PW-23/A, however mere exhibiting a

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document, would not prove its contents. The record shows that all the samples relating to the accused and relating to the deceased were seized by the Investigating Officer on 14.02.2012 and 16.02.2012; and they were sent to CFSL for examination on 27.02.2012. During this period, they remained in the Malkhana of the Police Station. Under the circumstances, the possibility of tampering with the samples collected also could not be ruled out. Neither the Trial Court nor the High Court has examined the underlying basis of the findings in the DNA reports nor have they examined the fact whether the techniques were reliably applied by the expert. In absence of such evidence on record, all the reports with regard to the DNA profiling become highly vulnerable, more particularly when the collection and sealing of the samples sent for examination were also not free from suspicion.”

¶223

63. In view of the judgment of the Hon’ble Apex

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Court, in the said case the materials were seized by the police on 14.02.2012 and 16.02.2012, but it was sent to CFSL on 27.02.2012 within 11 days of the seizure and the Hon’ble Apex Court has suspected the very seizure of the materials and sending those materials to the DNA analysis.

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Whereas, in the present case, MOs.1 to 5 were seized on 21.12.2016, MO.6 and MOs.7 to 9 were seized in different times on 27.12.2016, but the same were sent to the FSL only on 19.02.2017 and the same was opened by the Scientific Officer on 20.02.2017 and took up for analysis. As we have already held above that the MOs.1 to 5 were not seized and sealed by the Doctor – PW.1 immediately at the time of conducting postmortem examination, while handing over to the police constable PW.23 and it was seized by PW.26 and at that time it was in a opened packet with no sealed cover. Apart from that, MO.6 was also not sealed and packed on the spot. Likewise, MOs.7 to 9 were also not packed and sealed in the house of the father-in-law of the accused while preparing Ex.P10. All these material objects were seized in the police station and thereafter, packed and obtained the signature of the panchas. As per the evidence of PW.4, the very Ex.P6, P7 and Ex.P9 are the three panchanamas signed by him in the police station which clearly collaborates with the contention of the learned counsel for the accused that all

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the materials were not seized on the spot, but it was seized subsequent to the date of each seizure stated in the panchanama and there is every chances of manipulating and fabricating by the police which was lying in the police station for nearly two months before sending to the FSL. Therefore, we are of the opinion that the very evidence of DNA test report connecting the blood samples from the cloth of the accused and cloth of the deceased and MO.6, is viewed with suspicion and benefit of doubt should be extended to the accused, where the very seizure itself is doubtful and the result there upon is not sufficient to prove the guilt of the accused.

¶229

The Hon’ble Supreme Court has held that the contents of the FSL report also to be proved by examining the Scientific Officer. But in the present case, the Scientific Officer is not examined before the Court and not subjected to the cross examination. Such being the case, the very scientific report Ex.P27 is not useful to the prosecution to

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prove the circumstantial evidence to link the accused with

¶232

the crime.

¶233

As regards to the other circumstances, the

¶234

norm explanation of the blood sample or blood stain of the deceased on the cloth of the accused MOs.7 to 9, we have already discussed in the above judgment that there is every chances of manipulating or fabricating by the police which was lying in the police station for almost two months. Merely, the accused has not explained the blood stain on the cloth of the accused that itself is not a ground to draw an adverse against the accused to bring him under the circumstances to hold that the prosecution has proved the guilt of the accused. It is well settled that all the circumstances of the chain link should be connected with each other without any hypothesis that the accused alone was the culprit of the crime and none else. If any breaking of the chain link, the benefit of doubt shall be extended to the accused.

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In this case, though the prosecution able to prove the homicidal death, but other circumstances has not satisfactorily proved beyond reasonable doubt including the motive, recovery of the blood stained cloth of the accused MOs.7 to 9 to connect the accused with the crime. Therefore, we are of the opinion that the prosecution has failed to prove beyond the reasonable doubt that on 20/21.12.2016, the accused has committed murder of the deceased due to the grudges between himself and PW.14. Hence, the benefit of doubt shall be extended to the accused and the accused is entitled for acquittal.

¶237

The trial Court without proper appreciation of the evidence, accepted the examination-in-chief and wrongly given finding that the prosecution has proved the guilt of the accused beyond the reasonable time. Therefore, the judgment of the conviction and sentence passed by the trial Court calls for interference of this Court. Accordingly, we proceed to pass the following:

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ORDER

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(a) The appeal is allowed.

¶241

(b) The judgment of conviction and the order on sentence dated 27.11.2019 passed in Sessions Case.No.147/2017 by the I Additional Sessions Judge, Raichur, is hereby set aside.

¶242