Karnataka High Court
Smt. Amitha @ Devaki vs The State Of Karnataka on 13 January, 2025
Author: K.Somashekar
Bench: K.Somashekar
-1-
NC: 2025:KHC:1317-DB
CRL.A No. 1156 of 2018
C/W CRL.A No. 1049 of 2018
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 13TH DAY OF JANUARY, 2025
PRESENT
THE HON'BLE MR JUSTICE K.SOMASHEKAR
AND
THE HON'BLE MR JUSTICE S RACHAIAH
CRIMINAL APPEAL NO. 1156 OF 2018 (C)
C/W
CRIMINAL APPEAL NO. 1049 OF 2018(C)
IN CRIMINAL APPEAL NO. 1156 OF 2018 (C)
BETWEEN:
RUDRESH T
S/O. TEJ NAYAK
AGED ABOUT 28 YEARS
R/AT: SIDDAPURA TANDA
NEAR SEVALAL TEMPLE
BADRAVATHI CITY, BADRAVATHI TALUK,
SHIVAMOGGA DISTRICT - 572 346.
...APPELLANT
(BY SRI. LETHIF B, ADVOCATE)
Digitally signed
by
SREEDHARAN
BANGALORE AND:
SUSHMA
LAKSHMI
Location: HIGH
COURT OF
THE STATE OF KARNATAKA
KARNATAKA BY UPPINANGADI POLICE
D.K.DISTRICT
REP. BY STATE PUBLIC PROSECUTOR
HIGH COURT COMPLEX BUILDING
BANGALORE - 560 001.
...RESPONDENT
(BY SRI. VIJAYAKUMAR MAJAGE, SPP-II)
THIS CRL.A. IS FILED U/S.374(2) CR.P.C PRAYING TO
SET ASIDE THE JUDGMENT OF CONVICTION AND ORDER ON
SENTENCE DATED 03.05.2018 AND 08.05.2018 PASSED BY
-2-
NC: 2025:KHC:1317-DB
CRL.A No. 1156 of 2018
C/W CRL.A No. 1049 of 2018
THE 1ST ADDITIONAL DISTRICT AND SESSIONS JUDGE AT D.K.
MANGALURU IN SESSIONS CASE NO.79/2014 FOR THE
OFFENCE PUNISHABLE UNDER SECTIONS 302, 120(A), 201,
203 R/W 34 OF IPC AND ACQUIT THE APPELLANT.
IN CRIMINAL APPEAL NO. 1049 OF 2018 (C)
BETWEEN:
SMT. AMITHA @ DEVAKI
W/O. ANNAYYA GOWDA
AGED ABOUT 41 YEARS
R/O. SHALE MANE, KALANJA VILLAGE
BELTHANGADI TALUK
D K DISTRICT - 574 241.
...APPELLANT
(BY SRI. ANIKETH, ADVOCATE FOR
SRI. B. S. SACHIN, ADVOCATE)
AND:
THE STATE OF KARNATAKA
THROUGH POLICE INSPECTOR
UPPINANGADY POLICE STATION
D K DISTRICT - 574 241.
REPRESENTED BY THE
STATE PUBLIC PROSECUTOR
HIGH COURT BUILDINGS
BANGALORE - 560 001.
...RESPONDENT
(BY SRI. VIJAYAKUMAR MAJAGE, SPP-II)
THIS CRL.A. IS FILED U/S.374(2) CR.P.C PRAYING TO
SET ASIDE THE JUDGMENT OF CONVICTION AND ORDER ON
SENTENCE DATED 03.05.2018 AND 08.05.2018 PASSED IN
S.C.NO.79/2014 ON THE FILE OF I ADDITIONAL DISTRICT
AND SESSIONS JUDGE, D.K., MANGALORE THEREBY
CONVICTING AND SENTENCING THE APPELLANT FOR THE
OFFENCE P/U/S 302, 120A, 201, 203 R/W 34 OF IPC.
-3-
NC: 2025:KHC:1317-DB
CRL.A No. 1156 of 2018
C/W CRL.A No. 1049 of 2018
THESE APPEALS HAVING BEEN RESERVED, COMING ON
FOR PRONOUNCEMENT THIS DAY, S RACHAIAH J.,
DELIVERED THE FOLLOWING:
CORAM: HON'BLE MR JUSTICE K.SOMASHEKAR
and
HON'BLE MR JUSTICE S RACHAIAH
CAV JUDGMENT
(PER: HON’BLE MR JUSTICE S RACHAIAH)
1. These Criminal Appeals are arising out of the judgment of
conviction dated 03.05.2018 and order on sentence dated
08.05.2018 passed in Sessions Case No.79/2014 on the
file of the I Additional District and Sessions Judge, D.K.
Mangaluru, wherein the accused Nos.1 and 2 are
convicted for the offences punishable under Sections
120-A, 302, 201, 203 r/w 34 of Indian Penal Code (for
short ‘IPC‘).
2. The rank of the parties in the Trial Court will be
considered henceforth for convenience.
Brief facts of the case:-
3. It is the case of the prosecution that, the accused Nos.1
and 2 had illicit relationship with each other. Accused
No.2 being the wife of Annayya Gowda had the said illicit
relationship even though she was married and having a
-4-
NC: 2025:KHC:1317-DB
CRL.A No. 1156 of 2018
C/W CRL.A No. 1049 of 2018
husband and children. Accused No.1 was working as the
Forest Officer attached to the said village.
4. It is alleged in the charge sheet that accused Nos.1 and 2
in furtherance of common intention and also with criminal
conspiracy, tried to kill Sri Annayya Gowda by giving
electric shock. However, he survived on obtaining the
proper treatment. Even then, accused Nos.1 and 2 did
not stop their common intention to commit murder of
Annayya Gowda.
5. On 19.04.2014, the accused Nos.1 and 2 in furtherance
of their common intention and conspiracy, assaulted
Annayya Gowda with an iron wheel box rod on his head
and chest portion and caused severe injuries and killed
him. Thereafter, in order to conceal their act, the
accused persons removed the tiles of the roof and also
caused damage to the backdoor of the house in order to
create as if someone might have killed the said Annayya
Gowda.
6. It is further stated in the charge sheet that the accused
No.2 on the same day had informed the relatives and
neighbours of the deceased about the incident to depict
-5-
NC: 2025:KHC:1317-DB
CRL.A No. 1156 of 2018
C/W CRL.A No. 1049 of 2018
that the incident was done by some unknown persons. In
addition to the information given to their relatives, she
had lodged a complaint before the jurisdictional police
against some unknown persons. The jurisdictional police
after registering the case, proceeded with the
investigation. During investigation, they found that the
accused Nos.1 and 2 were involved in the said incident,
arrested them, recorded their statements and filed the
charge sheet against both the accused.
7. In order to prove the case, the prosecution examined 36
witnesses as PWs.1 to 36, got marked 39 documents as
Exhibits P1 to P39 and also identified the material objects
M.O.1 to M.O.13. On the other hand, the defence
conducted the examination of one witness namely D.W.1
and got marked eight documents as Exhibits D1 to D8.
The Trial Court after considering the oral and
documentary evidence on record, convicted accused
Nos.1 and 2 for the offences stated supra. Hence, they
are before this Court.
8. Heard Mr. Lethif B, learned counsel for the appellant in
Criminal Appeal No.1156/2018, learned counsel
-6-
NC: 2025:KHC:1317-DB
CRL.A No. 1156 of 2018
C/W CRL.A No. 1049 of 2018
Mr. Aniketh for Mr. B. S. Sachin, learned counsel for the
appellant in Criminal Appeal No.1049/2018 and
Mr. Vijaykumar Majage, learned SPP-II for respondent –
State in both the appeals.
9. Learned counsel for the appellant / accused No.1 in
Criminal Appeal No.1156/2018 vehemently submitted
that the judgment of conviction and order on sentence
passed by the Trial Court is contrary to the evidence on
record. Therefore, the same is liable to be set aside.
10. It is further submitted that the Trial Court has not
appreciated the evidence on record properly. When the
case is based on circumstantial evidence, mere recovery
of certain materials alleged to have been recovered at the
instance of the accused are not sufficient to hold the
accused guilty of the offence unless it is established by
the prosecution properly.
11. The prosecution mainly relied on the recovery of material
objects namely M.O.9 and M.O.10 which were recovered
as per Exhibits P.11 and P.12 and also another recovery
of M.O.13 as per Ex.P13. However, these mahazars even
though alleged to have been proved, that itself is not
-7-
NC: 2025:KHC:1317-DB
CRL.A No. 1156 of 2018
C/W CRL.A No. 1049 of 2018
sufficient to hold the accused are guilty of the offences.
However, the Trial Court has failed to appreciate the facts
properly. Consequently, the impugned judgment is
passed which is required to be re-looked.
12. It is further submitted that the evidence of PWs.6 and 8
who are the witnesses to the last seen theory, however,
their evidence was not to be considered for the reason
that, on reading of the evidence in its entirety, in fact
they have not supported the case. Despite they did not
support the case, the Trial Court wrongly appreciated the
evidence for the purpose of last seen theory, which is a
manifest error committed by the Trial Court.
13. It is further submitted that the Trial Court failed to
consider the previous conduct of some of the witnesses
namely, the brothers of the deceased. The defence has
been established by the accused that the brothers of the
deceased had enmity with the deceased in respect of
some properties and there was a complaint lodged
against the brothers of the deceased by the deceased
and his wife, who is arraigned as accused No.2. In the
said complaint, the deceased had made a statement that
-8-
NC: 2025:KHC:1317-DB
CRL.A No. 1156 of 2018
C/W CRL.A No. 1049 of 2018
he had a threat by his brothers. Even though those
documents have been marked as Exs.D1 to D4, the
contents thereof were not considered by the Trial Court
properly.
14. It is further submitted that on reading of the evidence of
some of the witnesses who are said to be the witnesses to
the motive namely, PWs.3 to 5 and 7 to 8, it would not be
sufficient to arrive at a conclusion that the motive has
been established. In fact, the deceased during his
lifetime, had not suspected the illicit relationship of his
wife with accused No.1 at any point of time.
15. It is further submitted that, when the deceased had
sustained injury alleged to have been caused by accused
Nos.1 and 2 by giving electric shock, the deceased did
not give any statement before the Doctor or any other
authority against accused Nos.1 and 2. In fact, the
accused No.2 being the wife, got him treated at different
hospitals, consequently, he survived. The Trial Court
ought to have considered these facts properly.
16. It is further submitted that the Trial Court recorded the
conviction on the basis of assumption and presumption
-9-
NC: 2025:KHC:1317-DB
CRL.A No. 1156 of 2018
C/W CRL.A No. 1049 of 2018
which is alien to the criminal jurisprudence. Hence, the
judgment of conviction is liable to be set aside. Making
such submissions, learned counsel for the appellant
/accused No.1 prays to dismiss the appeal.
17. Learned counsel for the appellant / accused No.1 has
relied on the following judgments which are as under:-
3. Sattatiya @ Satish Rajanna Kartalla v. State of
Maharashtra3
7. Yankappa & another v. State of Karnataka7
1
(1984) 4 SCC 116
2
(1989) 2 SCC 706
3
(2008) 3 SCC 210
4
CRL.A.1326 OF 2015 dated 19.11.2020
5
CRL.A.1540 OF 2015 dated 23.04.2021
6
AIR 2017 SC 1246
7
2020 SCC OnLine KAR 1649
– 10 –
NC: 2025:KHC:1317-DB
CRL.A No. 1156 of 2018
C/W CRL.A No. 1049 of 2018
18. In Criminal Appeal No.1049/2018 relating to accused
No.2 is concerned, the learned counsel for appellant /
accused No.2 adopted the arguments of accused No.1
and further, he submitted that, when the entire case was
based on circumstantial evidence, the Trial Court ought to
have appreciated the evidence with utmost vigilance.
Having failed to consider the evidence properly, resulted
in passing the impugned judgment, which is required to
be set aside.
19. It is further submitted that the complaint lodged by
accused No.2 was not considered by the Investigating
Officer properly and implicated her in the false case in
order to avoid the genuine investigation of the case.
There is no evidence collected by the Investigating Officer
or produced by the prosecution against accused No.2 to
show that she was involved in the commission of the
murder of her husband. None of the witnesses have
spoken about the presence of accused No.1 in the vicinity
of the house except some witnesses who are inimical to
accused No.2.
– 11 –
NC: 2025:KHC:1317-DB
CRL.A No. 1156 of 2018
C/W CRL.A No. 1049 of 2018
20. It is further submitted that the evidence of P.W.7 who
stated to have received the confession statement from
accused No.2 and the Trial Court acted upon it which is
unsustainable. In fact, the statement alleged to have
been made by the accused No.2 cannot be construed as a
confession statement. On reading of the entire evidence
of PW.7, the prosecution did not produce any document
to show that accused No.2 had traveled in the auto of
PW.7 on the date of the alleged confession statement said
to have been given to PW.7.
21. It is further submitted that the Trial Court wrongly
assumed that accused Nos.1 and 2 had committed the
murder in furtherance of criminal conspiracy in order to
sustain the illicit relationship which is contrary to the
evidence on record and the said conviction is without any
basis. Therefore, the same is liable to be set aside.
Making such submissions, learned counsel for appellant /
accused No.2 prays to allow the appeal.
22. Per contra, learned SPP-II for respondent – State
vehemently justified the judgment of conviction and order
on sentence passed by the Trial Court and he further
– 12 –
NC: 2025:KHC:1317-DB
CRL.A No. 1156 of 2018
C/W CRL.A No. 1049 of 2018
submitted that the clothes of accused No.1, which are
marked as M.Os.9 and 10, have contained bloodstains.
However, he has not explained as to how his clothes
contained such bloodstains.
23. It is further submitted that accused No.2 has made a
confession statement to P.W.7 about the incident and also
she acted suspiciously which created doubt in the mind of
the Investigating Officer. When the Investigating Officer
thoroughly conducted the investigation, it revealed that
accused Nos.1 and 2 had committed murder in order to
sustain their illicit relationship. The evidence of P.W.6
would indicate that accused No.1 was coming from the
house of accused No.2 at the odd hours and it is
established that the murder had taken place on the same
day.
24. It is further submitted that the prosecution has
established all the circumstances namely last seen theory,
motive and recovery of material objects. However, the
accused had not explained as to how they were innocent
of the offences. Therefore, it can be gathered from the
facts and circumstances of the case that the accused had
– 13 –
NC: 2025:KHC:1317-DB
CRL.A No. 1156 of 2018
C/W CRL.A No. 1049 of 2018
committed the murder of the deceased Annayya Gowda.
Hence, the conviction recorded by the Trial Court has to
be sustained. Making such submissions, learned SPP-II
prays to dismiss the appeals.
25. After having heard learned counsel for the respective
parties and also perused the findings of the Trial Court in
recording the conviction, it is appropriate to consider all
the documents and also the evidence of all the witnesses
in detail as a matter of re-appreciation of facts and law.
26. P.Ws.1 and 2 are the daughters of accused No.2 and the
deceased. They did not support the case of the
prosecution.
27. P.W.3 is the relative of the deceased. He deposed that,
around three years ago, accused No.2 along with her last
son had visited his house and narrated to him that some
three unknown persons having masks on their faces,
intruded into the house and killed her husband. After
hearing the said news, he stated to have informed the
others and on their arrival, all of them went to the spot.
He further stated that he saw the scene of crime and
admitted that the tiles of the roof were taken off and the
– 14 –
NC: 2025:KHC:1317-DB
CRL.A No. 1156 of 2018
C/W CRL.A No. 1049 of 2018
backdoor of the house was broken. Further, he saw that
the deceased was lying on the floor in a pool of blood.
28. P.W.4 is also one of the hear-say witnesses. He
supported the case of the prosecution.
29. P.W.5 who is the relative of accused No.2. He speaks
about the illicit relationship of accused Nos.1 and 2.
However, there is no definite evidence regarding the
alleged murder.
30. P.W.6 is considered as a material witness. According to
him, on 19.04.2014 around 10.00 p.m., after completing
his work (construction of his new house) for the day, he
was going to his house which is situated at Kalanja and
he said to have seen the accused No.1, who was coming
from the house of the deceased around 11.00 p.m. on his
motorcycle and accused No.1 stated to have gone
towards Kalanja. The Trial Court considered him as a
witness to the last seen theory and acted upon his
evidence.
31. P.W.7 is stated to be the witness to the confession of
accused No.2. According to him, he stated to have taken
– 15 –
NC: 2025:KHC:1317-DB
CRL.A No. 1156 of 2018
C/W CRL.A No. 1049 of 2018
both Annayya Gowda and his wife in his auto to the
hospital for treatment. He further deposed that accused
No.2 stated to have made a confession statement
regarding the murder of her husband by herself and
accused No.1.
32. P.W.8 is the elder brother of the deceased. He stated to
have visited the house of the deceased and made a
statement before the police regarding the illicit
relationship between accused Nos.1 and 2.
33. P.W.9 is the witness to Exhibits P4, P5 and P6. He
supported the case of the prosecution.
34. P.W.10 is the sister of accused No.2. She has not
supported the case of the prosecution.
35. P.Ws.11 and 12 are the witnesses to Ex.P8. Under this
mahazar, the bike of accused No.1 was seized and the
same is marked as M.O.5. Both have supported the case
of the prosecution.
36. P.W.13 is a witness to Ex.P9. Under this mahazar, an
iron rod, nighty and an electrical coil were recovered and
– 16 –
NC: 2025:KHC:1317-DB
CRL.A No. 1156 of 2018
C/W CRL.A No. 1049 of 2018
seized at the instance of accused No.2 in her house. He
supported the case of the prosecution.
37. P.W.14 is a witness to Ex.P11 which is considered as
seizure mahazar under which the clothes of accused No.1
were seized at his instance in his house. Those clothes
are identified as M.Os.9 and 10. He supported the case
of the prosecution.
38. P.Ws.15 and 16 are the witnesses to Ex.P13. P.W.15 is
the younger brother of accused No.2. Both have not
supported the case.
39. P.W.17 is the Forest Guard. He was working under
accused No.1. He said to have given the sim card, which
was purchased by him, to the accused No.1. Except that,
he has not stated anything about the overt act of the
accused.
40. P.W.18 was working as a Police Constable of respondent
– Police. He carried the FIR and handed over the same to
the Magistrate.
41. P.W.19 to P.W.23 are the Police Officials who were
working at the respondent – police station at the relevant
– 17 –
NC: 2025:KHC:1317-DB
CRL.A No. 1156 of 2018
C/W CRL.A No. 1049 of 2018
time and they stated to have discharged their respective
duties in the investigation.
42. P.W.24 was working as Head Constable. He said to have
received a complaint lodged by accused No.1 on
30.08.2013 about the mischief caused to his bike by
unknown persons.
43. P.W.25 – Dr. Geethalakshmi was working as Scientific
Officer and she stated to have subjected the articles
which were sent by the police for chemical analysis and
submitted her report as per Ex.P22. According to her, the
items contained ‘O’ Blood Group.
44. P.W.26 – Sri Shivaprasad was working as an Assistant
Engineer stated to have prepared a sketch of the house
where the incident had taken place and submitted his
report as per Ex.P25.
45. P.W.27 – Sri Purushothama was the Panchayath
Development Officer who submitted the Assessment
Register of the house of the deceased as per Ex.P27.
46. P.W.28 – Sri Ravindra, Head Constable of the respondent
– police. He said to have visited the house of the
– 18 –
NC: 2025:KHC:1317-DB
CRL.A No. 1156 of 2018
C/W CRL.A No. 1049 of 2018
deceased and secured the information about the incident.
Further, he stated that after receiving the complaint from
accused No.2/wife of the deceased, handed over the
same to the SHO of the concerned police station.
47. P.W.29 – Sri.Dhanesh was working as a Police Constable
at the jurisdictional police. He is stated to have
accompanied P.W.28 and he had been to the place of
occurrence along with P.W.28.
48. P.W.30-Sri.Shivakumar K.R., was working as a Police
Sub-Inspector. On 20.04.2014 around 1.00 p.m., he is
stated to have received information regarding the incident
through a wireless message. He had been to the house
where the incident had taken place and noted that the
tiles of the route were taken off and the back door of the
house was broken etc. Further, he deposed that he
conducted the part of investigation, arrested the accused
and produced him before C.W.45.
49. P.W.31-Dr. Raghavendra Babu Y.P., was working as an
Associate Professor at Government District Wenlock
Hospital, Mangaluru said to have conducted a
– 19 –
NC: 2025:KHC:1317-DB
CRL.A No. 1156 of 2018
C/W CRL.A No. 1049 of 2018
postmortem of the dead body of the deceased and
submitted a report as per Ex.P.31.
50. P.W.32-Dr. Sheshagiri Chandra was running a clinic viz.,
Vijaya Clinic. On 07.04.2014, he is stated to have
received a patient namely Annayya Gowda having a
history of burn injuries. After treating the said patient,
stated to have issued a prescription as per Ex.P.33.
51. P.W.33-Sri. Harsha D.N. was working as a Range Forest
Officer at Uppinangadi Range. He endorsed that accused
No.1 was working with him and also produced relevant
documents relating to accused No.1 to the Investigating
Officer.
52. P.W.34 – Sri. Sridhar Rai was working as an Assistant
Police Sub-inspector. He deposed that on 30.08.2013, he
received a complaint from accused No.1 that his bike was
burnt by some unknown persons. After receiving the said
complaint, he registered a case as N.C.No.88/2013.
53. P.W.35-Sri. Basavaraj was working as a police constable
at jurisdictional police. He is stated to have carried items
– 20 –
NC: 2025:KHC:1317-DB
CRL.A No. 1156 of 2018
C/W CRL.A No. 1049 of 2018
and reached those items to FSL and obtained the
endorsement.
54. P.W.36-Sri.Suresh Kumar P was working as a Police
Inspector stated to have conducted investigation and
submitted charge sheet.
55. D.W.1-Sri. was working as Asst. Sub-inspector, has been
examined by the Court after issuance of summons. Some
documents have been marked through him viz.,
Exs.D.3 to 8.
ANALYSIS
56. After having analyzed the evidence of all the witnesses, it
is evident that the entire case is based on circumstantial
evidence. Before adverting to the facts of the case, it is
appropriate to refer the judgment of the Hon’ble Supreme
Court relating to the cases which are dealt with
circumstantial evidence. The Hon’ble Supreme Court in
the case of LAXMAN PRASAD @ LAXMAN v. STATE OF
MADHYA PRADESH8, held in paragraph Nos.3 and 4
which read as under:
8
(2023) 6 SCC 399
– 21 –
NC: 2025:KHC:1317-DB
CRL.A No. 1156 of 2018
C/W CRL.A No. 1049 of 2018
“3. We do not find such conclusion of the High
Court to be strictly in accordance with law. In a
case of circumstantial evidence, the chain has to be
complete in all respects so as to indicate the guilt of
the accused and also exclude any other theory of
the crime. The law is well settled on the above
point. Reference may be had to the following cases:
(i) Sharad Birdhichand Sarda v. State of
Maharashtra [Sharad Birdhichand Sarda v. State of
Maharashtra, (1984) 4 SCC 116 : 1984 SCC (Cri)
487] ;
(ii) Shailendra Rajdev Pasvan v. State of Gujarat
[Shailendra Rajdev Pasvan v. State of Gujarat,
(2020) 14 SCC 750 : (2020) 4 SCC (Cri) 856 : AIR
2020 SC 180].
4. Thus, if the High Court found one of the links to
be missing and not proved in view of the settled
law on the point, the conviction ought to have been
interfered with.”
57. In another case, in the case of SHARAD BIRDHICHAND
SARDA v. STATE OF MAHARASHTRA9, paragraph
No.153 of the said judgment which reads as under:
“153. A close analysis of this decision would show
that the following conditions must be fulfilled9
(1984) 4 SCC 116
– 22 –
NC: 2025:KHC:1317-DB
CRL.A No. 1156 of 2018
C/W CRL.A No. 1049 of 2018
before a case against an accused can be said to be
fully established:
(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 where the observations
were made: [SCC para 19, p. 807: SCC (Cri) p.
1047]
“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.”
(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 guilty,
(3) the circumstances should be of a conclusive
nature and tendency,
(4) they should exclude every possible hypothesis
except the one to be proved, and
(5) there must be a chain of evidence so complete
as not to leave any reasonable ground for the
– 23 –
NC: 2025:KHC:1317-DB
CRL.A No. 1156 of 2018
C/W CRL.A No. 1049 of 2018
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.”
58. On careful reading of the above said judgments of the
Hon’ble Supreme Court, it would indicate that, initially,
the burden lies on the prosecution to prove the case
beyond reasonable doubt without leaving any links in the
chain of circumstances. If one of the circumstances is
missing, the benefit of doubt would be given to the
accused.
59. Having regard to the principles laid down by the Hon’ble
Supreme Court in the above-said judgments, it is
appropriate to deal with the case on hand. In order to
re-appreciate the case, the following points are required
to be considered, they are:
a) Last seen theory;
b) Motive; and
c) Recovery.
a) LAST SEEN THEORY:
– 24 –
NC: 2025:KHC:1317-DB
CRL.A No. 1156 of 2018
C/W CRL.A No. 1049 of 2018
60. This is one of the circumstances that has to be proved by
the prosecution in order to establish the case. The
prosecution, in the present case, examined P.W.6 as the
witness to the last seen theory. According to P.W.6, he
was proceeding to Kalanja Village from Hathyadka on
19.04.2014 around 10.00 p.m., after finishing his
construction work. He stated to have seen accused No.1
who was coming from the house of the deceased around
11.00 p.m. However, in the cross-examination, he did
not specifically mentioned the colour of the motorcycle
and the clothes of the deceased. Further, in the cross-
examination, he admitted that he did not give his
statement immediately after the incident, however, he
said to have given his statement before the police
belatedly which in fact would be fatal to the case of the
prosecution. In fact, the prosecution did not produce
any evidence to show that the house of PW.6 was being
constructed in the Hathyadka village.
61. When the evidence of PW.6 did not inspire the
confidence of the Court in relation to the last seen theory,
the Trial Court ought not to have acted upon the evidence
– 25 –
NC: 2025:KHC:1317-DB
CRL.A No. 1156 of 2018
C/W CRL.A No. 1049 of 2018
of PW.6. However, the Trial Court acted on his evidence
and re-appreciated the evidence in the absence of cogent
evidence. Therefore, the evidence of PW.6, in our
considered view, is not sufficient to hold that the
prosecution has established the last seen theory.
b) MOTIVE:
62. The prosecution has tried to establish the motive for the
murder. As per the version of the prosecution, the said
murder had taken place due to an illicit relationship
between the accused Nos.1 and 2. The prosecution has
further tried to establish that accused No.2, being the
wife of the deceased, had illicit relationship with accused
No.1. In order to sustain the said illicit relationship, both
accused Nos.1 and 2 stated to have committed the
murder of the deceased. In order to establish the motive,
the prosecution has relied on the evidence of PWs.3, 4, 5,
7 and 8.
63. P.W.3 is the relative of deceased. He deposed in his
evidence that, around 3 years and 3 months ago, when
he was at his home, accused No.2 along with her son
– 26 –
NC: 2025:KHC:1317-DB
CRL.A No. 1156 of 2018
C/W CRL.A No. 1049 of 2018
visited his house around 12.00 in the midnight and asked
him to open the door. When he opened the door, she
narrated the incident that some unknown persons had
killed her husband with weapons. After hearing the sad
news, he intimated the said fact to other friends and
relatives and all of them went to the house of the
deceased and saw that the deceased was lying in a pool
of blood and the tiles of the roof were taken off and the back
door was broken etc. He is the hearsay witness. On going
through his evidence, he did not depose that the accused
No.1 was present in and around the place of occurrence.
Therefore, his evidence in respect of motive loses its
significance.
64. P.W.4 is another witness who deposed in support of
P.W.3 and also deposed about the illicit relationship of
accused Nos.1 and 2. Similarly, P.W.5 also deposed in
support of the evidence of P.W.3 in respect of the illicit
relationship of accused Nos.1 and 2. However, the
evidence of PWs.4 and 5 is not sufficient to arrive at a
conclusion that the motive has been established through
their evidence.
– 27 –
NC: 2025:KHC:1317-DB
CRL.A No. 1156 of 2018
C/W CRL.A No. 1049 of 2018
65. P.W.7 was an auto driver. He has been examined for the
purpose of establishing the extra-judicial confession.
According to him, accused No.2 stated to have confessed
about the murder of her husband and also involvement of
accused No.1 and herself. However, on going through
the evidence of P.W.7, it can be gathered that the
prosecution has failed to establish that accused No.2 had
traveled in the said auto on the date of the alleged
statement said to have been given by her. Therefore, the
evidence of PW.7 also loses its significance.
66. P.W.8 is the brother of the deceased. Though he deposed
about the illicit relationship between accused Nos.1 and 2,
the defence has established that he had deposed against
accused Nos.1 and 2 on the strength of enmity. In fact,
PW.8 admitted in his cross-examination that he was
summoned by the jurisdictional police in respect of
mischief stated to have caused to the bike of accused
No.1 when it was parked in front of the house of the
deceased. He further admitted that his statement was
recorded by the police in respect of the said incident.
When such being the fact, evidence of PW.8 relating to
– 28 –
NC: 2025:KHC:1317-DB
CRL.A No. 1156 of 2018
C/W CRL.A No. 1049 of 2018
the motive, in our considered view, loses its significance.
In fact, Exs.D1 to D4 would indicate that there were a
number of disputes existed between the brothers in
respect of immovable properties.
67. In fact, the Trial Court should have appreciated the
averments of the complaint lodged by accused No.2.
Making allegations against the innocents are quite
common. However, the said allegations are required to
be proved by the prosecution beyond reasonable doubt.
Even on a conjoint reading of the last seen theory and
motive, in our considered view, the prosecution has failed
to establish these two circumstances against accused
Nos.1 and 2.
c) RECOVERY: 68. The Investigating Officer stated to have conducted
seizure mahazars as per Exs.P9 and 11. Ex.P9 is relating
to the recovery of wheel box rod, nighty and electric coil
and the same items were seized and recovered in the
presence of PW.13. The evidence of PW.13 would also
indicate that the recovery was effected at the instance of
– 29 –
NC: 2025:KHC:1317-DB
CRL.A No. 1156 of 2018
C/W CRL.A No. 1049 of 2018
accused No.2 and the same items were seized in the
house of deceased. Despite the cross-examination having
been done, nothing has been elicited to discredit his
evidence relating to recovery.
69. Similarly, the evidence of P.W.14 would also indicate that
recovery of material objects namely M.Os.9 and 10 were
effected at the instance of accused No.1 in his house.
However, the recovery of bloodstained clothes of accused
No.1 itself is not sufficient to hold that he is guilty of the
offence, for the reason that the blood group of the
deceased has not been properly established by the
prosecution.
70. In this context, it is relevant to refer the judgment of the
Hon’ble Supreme Court in the case of RAJA NAYKAR v.
STATE OF CHHATTISGARH10. The Hon’ble Supreme
Court in paragraph Nos.26, 28 and 30 held as under:
“26. As per the FSL report, the bloodstains found
on the dagger were of human blood. However, the FSL
report does not show that the blood found on the
dagger was of the blood group of the deceased. Apart
from that, even the serological report is not available.
10
(2024) 3 SCC 481
– 30 –
NC: 2025:KHC:1317-DB
CRL.A No. 1156 of 2018
C/W CRL.A No. 1049 of 2018
28. Another circumstance relied on by the trial
Judge is with regard to recovery of bloodstained
clothes on a memorandum of the appellant. The said
clothes were recovered from the house of the
appellant’s sister-in-law. The alleged incident is of 21-
10-2009, whereas the recovery was made on 25-10-
2009. It is difficult to believe that a person committing
the crime would keep the clothes in the house of his
sister-in-law for four days.
30. As already discussed hereinabove, merely on
the basis of suspicion, conviction would not be tenable.
It is the duty of the prosecution to prove beyond all
reasonable doubt that it is only the accused and the
accused alone who has committed the crime. We find
that the prosecution has utterly failed to do so.”
71. On careful reading of the dictum of the Hon’ble Supreme
Court, it makes it clear that “It is settled law that the
suspicion, however strong it may be, cannot take the
place of proof beyond reasonable doubt. An accused
cannot be convicted on the ground of suspicion, no
matter how strong it is.”
72. After having considered the facts and circumstances of
the case, in this present case, though the recovery of
bloodstained clothes was effected at the instance of
accused No.1 and also the recovery of iron rod, nighty
– 31 –
NC: 2025:KHC:1317-DB
CRL.A No. 1156 of 2018
C/W CRL.A No. 1049 of 2018
and electric coil were recovered at the instance of
accused No.2 in her house, that itself is not sufficient to
hold that accused Nos.1 and 2 had committed murder of
the deceased in order to sustain their illicit relationship.
In our considered opinion, the Trial Court has committed
grave error in considering the evidence of witnesses who
have deposed about the motive for the murder.
Therefore, the findings of the Trial Court in recording the
conviction have to be set aside.
73. In the light of the observations made above, we proceed
to pass the following:-
ORDER
(i) The Criminal Appeals are allowed.
(ii) The judgment of conviction dated 03.05.2018
and order on sentence dated 08.05.2018 passed
in Sessions Case No.79/2014 on the file of the
I Additional District and Sessions Judge, D.K.
Mangaluru are set aside.
– 32 –
NC: 2025:KHC:1317-DB
CRL.A No. 1156 of 2018
C/W CRL.A No. 1049 of 2018
(iii) The accused Nos.1 and 2 are acquitted for the
offences punishable under Sections 120-A, 302,
(iv) The bail bonds of accused Nos. 1 and 2, if any,
stand cancelled.
(v) The fine deposited, if any, shall be returned to
the appellants after proper identification by the
Trial Court.
(vi) Registry is directed to transmit the original
records along with the judgment of this Court to
the Trial Court forthwith.
Sd/-
(K.SOMASHEKAR)
JUDGE
Sd/-
(S RACHAIAH)
JUDGE
Bss
List No.: 1 Sl No.: 1
[ad_1]
Source link