Vs. State of Karnataka  Insc 966 (21 September 2007)
Raveendran & B. Sudershan Reddy
APPEAL NO. 101 OF 2006 B.Sudershan Reddy, J.
appellant along with six others was tried by the Court of Sessions for the
offence punishable under Section 302 of the Indian Penal Code (hereinafter
referred to as 'IPC') and sentenced to undergo life imprisonment and to pay a
fine of Rs. 2,000/-. He was also convicted for the offence punishable under
Section 364 IPC and sentenced to undergo rigorous imprisonment for 5 years and
to pay a fine of Rs. 1,000/- and in default of payment of fine, to undergo
rigorous imprisonment for 3 months. Further, he was convicted for the offence
punishable under Section 201 IPC and sentenced to undergo rigorous imprisonment
for 1 year and to pay a fine of Rs. 1,000/- and in default of payment, to
undergo rigorous imprisonment for 3 months. All sentences were directed to run
concurrently. The Sessions Court acquitted accused Nos. 2, 3, 4 and 5. The
appeal of the appellant was dismissed by the High Court of Karnataka by the
impugned judgment, however, accused Nos. 6 and 7 were acquitted by the High
Court of all the charges leveled against them. In this case we are concerned
with the sole appellant (Accused No. 1).
conviction of the appellant is based on circumstantial evidence.
brief, the case of the prosecution is that the deceased-Yankanna Balakannavar
had illicit intimacy with the wife of the appellant Smt. Hanamawwa (PW19).
was working as the driver of the tractor of the appellant during 2001. The
appellant's suspicion about the deceased having illicit intimacy with his wife
led to serious misunderstanding between them because of which, deceased left
his job as the tractor driver. On 12.7.2001 at about 8.00 p.m., the appellant and accused Nos. 6 and 7 went in the car of
the appellant to the house of the deceased. He was not at home. The appellant
and accused Nos.6 and 7 told deceased Yankanna's mother Yallawwa (PW-10) that
they required the services of her son in connection with digging of a borewell
in the land of the appellant. When deceased Yankanna returned home within half
an hour, he was immediately taken by the appellant and accused Nos. 6 and 7
with them. On that night, deceased- Yankanna did not return home. On the next
day, Yallawwa (PW-10) went in search of her son but could not find him.
questioning, the appellant informed PW-10 that he had brought back deceased Yankanna
at about 11.00 p.m. on the same night and had left him
in the village. Not satisfied with the answer given by the appellant, PW-10
went to accused Nos. 6 and 7 and inquired about the whereabouts of her son but
they also did not give any satisfactory answer. Thereafter, PW-10 and her
nephew-Kamanna Parameshwar (PW-18) went in search of the deceased Yankanna and
in the process, made inquiries in nearby villages namely Dadanatti, Rugi, Chabbi
etc. but could not find him.
21.7.2001, Inspector of Bilagi Police Station (PW- 29) received information
that there was a dead body found floating in the Ghataprabha river.
Immediately, he rushed to the place and found the dead body of a person near
the pump house. The dead body was taken out from the river.
found that the head and rest of the portion of the body had been severed. The
body was highly decomposed and the bones were exposed. The legs of the dead
body were found folded and tied with a rope. The body was tied by another rope
at the place of neck also. Inspector of police (PW-29) lodged information with
regard to the same and the same was registered as Crime No. 91/2001 of Bilagi
Police Station for the offences punishable under Section 302 and 201 of the
IPC. The First Information Report is exhibit P-23 dated 21.7.2001. Thereafter,
PW-29 conducted inquest in the presence of PW-1 and 2 and sent for the medical
officer to conduct the post mortem examination.
Satihal, Medical Officer, KIMS, Hubli (PW-21) conducted the post mortem
examination. The Medical Officer could not confirm as to whether the body was
that of a male or female since the genital portion had been highly decomposed.
However, there was underwear found on the body which was taken out and the body
was preserved for two days for identification.
the meanwhile, PW-10 along with PW-18 had gone to Kaladgi police station and
lodged a complaint on 22.7.2001 inter alia alleging that her son was working as
a tractor driver for about 3-4 years with the appellant and about 3 months
back, her deceased son left the job on account of some disputes between them.
She suspected that there was some dispute between her son and the appellant,
accused Nos. 6 and 7 since they were frequently roaming around her house,
making inquiries about her son.
made inquiries with her deceased son in that regard who did not respond. She
apprehended that the appellant may cause harm to her son. It is further alleged
that about 11 days back i.e. on 12.7.2001, herself, the deceased and Lacchavva-wife
of the deceased (PW-11) were sitting in their house and at that time the
appellant, accused Nos. 6 and 7 came to her and stated that they required her
son in connection with digging of a borewell in the land of the appellant. The
deceased refused to go but they took her son forcibly and the same was noticed
by her neighbours. It was about 8.00 p.m. Thereafter, her son did not return to home. She made inquiries with the
appellant who stated that he had dropped her son in the village at 11.00 p.m.
accused also did not give any satisfactory explanation. She suspected that the
said three persons might have killed her son. On the basis of the said
information a case was registered by sub-Inspector(PW-28), Kaladgi Police
Station as Crime no. 50/01 for the offence under Section 364 read with 34 IPC.
Intimation of detection of dead body in Ghataprabha river was flashed to the neighbouring
police stations and the same was received by Kaladgi police station and in
furtherance of the same, PW 10 and PW-11 were taken to the place. PW-10
identified the body as that of her son Yankanna on the basis of the underwear
found on the body. On 26.7.2001, appellant and accused Nos. 2 and 3 were
arrested. In furtherance of the voluntary information given by the appellant,
PW 29 could ascertain the places where the deceased had been taken by the
appellant and other accused, who were involved in the incident as well as the
place where the dead body of Yankanna had been thrown into river. Weapons of
offence were also recovered on the basis of the voluntary information furnished
by the appellant. As it was revealed that the incident occurred within Kaladgi
limits, PW-29 submitted the entire papers on 8.8.2001 to Kaladgi Police Station
for further investigation. Police Inspector of Bagalkot police station (PW-26)
took up further investigation on 9.8.2001 and filed charge sheet against the
appellant and accused Nos. 2 to 7 for offences punishable under Sections 143,
147, 148, 354, 302, 201 read with 149 of the IPC.
accused pleaded not guilty of the charges and claimed to be tried. The
prosecution, in order to establish the case, examined in all 30 witnesses. No
witness was examined on behalf of the accused. The learned Sessions Judge found
that the materials were not sufficient and no case was made out as against
accused Nos. 2 to 5 and consequently, acquitted them of all the charges. The
remaining accused namely appellant and Accused Nos. 6 and 7 were convicted for
the offences punishable under Section 302 , 364, and 201 of the IPC. On appeal,
the High Court allowed the appeal of accused Nos. 6 and 7 and acquitted them.
The High Court dismissed the appeal of the appellant and confirmed the
conviction and sentences imposed as against the appellant.
have elaborately heard the learned counsel appearing for the appellant as well
as for the State.
Sushil Kumar, learned senior counsel for the appellant contended that the High
Court committed a serious error in holding that the burden shifted to the
appellant to show what happened to the deceased in view of the evidence of
PW-10 and PW-11 that he took the deceased and this amounts to requiring the
accused to prove his innocence. He pointed out another error committed by the
High Court in coming to the conclusion that the appellant with the help of some
others (not the other accused who had been acquitted) were responsible for
committing the murder of the deceased-Yankanna. The learned counsel submitted
that the chain of circumstances is not complete and, therefore, the conviction
of the appellant cannot be sustained. Further contention of the learned counsel
was that assuming that the prosecution has been able to establish the
circumstance of being last seen together, namely, the deceased having left with
the appellant on 12th July, 2001, that by itself, could not connect the
appellant with the commission of crime in the circumstances of the case.
the other hand, the learned counsel for the State submitted that the evidence
of PW-10 and 11 which is consistent and the circumstances in which the dead
body was found in the river clearly indicated that the dead body had been
thrown into Ghataprabha river after committing murder of the person and the
identification by PW-10 that the dead body was that of Yankanna, the chain of
events is complete and in the absence of any explanation by the appellant, only
conclusion to be arrived at is that the appellant was responsible and liable
for the murder of the deceased-Yankanna.
Having heard learned counsel for the parties and on perusal of the record, we
find that the prosecution miserably failed to establish the charge against the
is required to notice that most of the witnesses namely, PW Nos. 1 to 9, 13,
14, 15, 6, 17, 19, 23 and 30 had turned hostile and did not support the
whole case of the prosecution rests on the evidence of the mother and wife of
the deceased (PW Nos. 10 and 11) and the police officers ( PW Nos. 28 and 29).
We may proceed now to consider the evidence of PW Nos. 10 and 11 in somewhat
PW-10, in her evidence, stated that the appellant along with accused Nos. 6 and
7 came to her house at about 8.00 p.m. and
took her son Yankanna as his assistance was required in connection with digging
of a borewell in the land of the appellant. Thereafter, her son has not returned.
She had searched for her son in neighbouring villages but could not find him.
The appellant and accused No. 6 came along with her and also searched for the
she and her relatives demanded the appellant to produce the deceasedYankanna.
Having waited for about 5-6 days, she filed a written complaint, written
through PW- 18 addressed to Kaladagi Police Station marked as exhibit P-6. The
police traced the dead body of Yankanna. It was found in Anagwadi river. She
specifically states that "I saw the body and his head was chopped off and
hands and legs were cut-off and the rope was tied to the body. I saw and
identified the underwear (M.O.1) and identified the body as it belongs to my
son." she suspected the appellant had committed the murder of her son. She
further stated that when she insisted the appellant to produce her son, the
appellant told her deceased Yankanna had illicit connection with his wife - Hanamawwa
(PW-19) - "because of that he killed my son".
the cross-examination, she stated in categorical terms that at the time of
arrival of the appellant at her house, her son Yankanna was not present at home
and only half an hour later he returned home and immediately the appellant took
him away. Prior to the arrival of the deceased, she and the appellant and PW-11
were present in the house. The appellant took the deceased and went away.
accepted that on receipt of information about floating of a dead body in the Ghataprabha
river, she went there and identified the dead body as that of her son. She did
not file any complaint to the Bilagi Police Station. Bilagi Police Station took
her to Kaladgi Police Station in the police jeep where she lodged Exhibit P-6.
Exhibit P-6 (FIR), it is stated by PW-10 that her deceased son Yankanna left
his job about 3 months prior to the date of the incident. It is further stated
in the Exhibit P-6 that on 12.7.2001 in the evening she was sitting in her
house along with the deceased and his wife-Lacchavva (PW- 11) and that time the
appellant, accused nos. 6 and 7 came to her house and she invited them inside.
She did not state that her son was not present when the appellant along with
other accused came to her house and her son returned home only after half an
hour. In exhibit P-6 there is no mention of her coming to the Ghataprabha river
and anything about the identification of the dead body of her son. Had she
really identified the dead body of her son on 21.7.2001 nothing prevented her
from referring to it in exhibit P-6. In her evidence, she stated that she did
not claim the dead body of her son nor the police told her to take away the
body of the deceased. She did not attend the funeral of her son.
PW-11 is none other than the wife of the deceased. She stated in her evidence
that about 3 years ago at 8.00 p.m., appellant with two others came to her
house and took away her husband with them. Thereafter, her husband did not
return home. That after 7-8 days having received the information about a dead
body floating in the Ghataprabha river, PW-10 and herself went and saw the dead
body and found it to be of her husband. PW-10 filed the complaint to the
police. According to her, appellant suspected that her deceased husband had
illicit intimacy with his wife because of that, appellant and accused No.2 took
her husband and committed the murder. Looking at M.O.1 first time in the court,
she identified the same as underwear of her husband.
admitted by her in the cross-examination while she was waiting in Bilagi police
station, her mother-in-law (PW- 10) went and saw the dead body of her husband
and she came and told her that it was the dead body of her husband Yankanna. On
the next day, she along with PW-10 went to Kaladagi police station where PW-10
filed the complaint Exhibit P-6. She did not see the body of her husband. She
did not perform the funeral. She further stated in her evidence, it is the
police who told her that there was illicit relationship between deceased and Hanamawwa,
wife of the appellant.
PW-29, Inspector of Police, Bilagi police station stated in his evidence that
on receiving information on 21st July, 2001 about floating a dead body at the
Northern bank of Ghataprabha river near the pump house, went there and found
one unknown dead body was floating in the Ghataprabha river near the pump
house. He returned to the Bilagi police station and lodged information exhibit
that basis he registered the case as Crime No. 91/01 for the offence under
Section 302 & 201 IPC and dispatched the first information report to the
court at 1430 hours and again proceeded to the spot where the dead body was
found. The dead body was taken out of the river. It was in a highly decomposed
condition. He summoned the Medical Officer (PW-21) to conduct post mortem examination
at the spot and thereafter buried the body there itself. He also says that he
got the photos of the body taken prior to 'cremation'. Post mortem examination
was conducted at the spot itself by PW-21 between 4.45 p.m. to 6.15 p.m. It is
on 24th July, 2001, PW-10 to 12 came to the police station Bilagi and he had
shown M.O. 1 (underwear), M.O. 6 (Waist thread) and photos to PW-10 to 12 based
on which they identified the dead body as that of Yankanna. He undertook
further investigation and arrested the accused. He claims to have made certain
recoveries. It is on 8th August, 2001 he made over the case for further
investigation to the C.P.I of Bagalkot, Rural Circle through Kaladgi police
The evidence of PW-10 is full of contradictions apart from being at variance
with exhibit P-6 (FIR) lodged by her before the Kaladgi police station and the
evidence of the Investigating Officer (PW-29). In Exhibit P-6 she stated that
her deceased son was taken away forcibly by the appellant, accused nos. 6 and
7. In the FIR, PW-10 does not say that the deceased-Yankanna was working with
the appellant as tractor driver but in her evidence she stated that deceased- Yankanna
was working with the appellant. In the first information report she does not
say anything about the illicit relationship of deceased-Yankanna and
appellant's wife- Hanamawwa(PW-19). She merely stated that there was some
dispute between the appellant and the deceased but in evidence, she stated that
the appellant told her that deceased-Yanakanna had illicit connection with his
wife- Hanamawwa (PW-19) because of that he killed her son.
Lacchawa-wife of the deceased admitted in her cross-examination that she learnt
that there was illicit relationship between the deceased and the wife of the
appellant only when the police told her. She asserted that PW-10 filed a
complaint to the police "as we came to know about the illicit relationship
between the deceased and Hanamawwa-wife of the appellant through police."
an analysis of the evidence referred to herein above, we find it very difficult
to believe the evidence of PW- 10 and PW-11. They are not trustworthy
witnesses. It is doubtful as to how and in what circumstances exhibit P-6 came
into existence. If PW-10 had seen the dead body and identified it as that of
her son there is no reason why she could not have stated about it in exhibit
P-6. If one goes by the contents of exhibit P-6 it becomes clear that she knew
nothing about the dead body found in the Ghataprabha river. The question of
identifying the dead body as that of her son does not arise. PW-29, in his
evidence, stated that PW-10 to 12 identified the body as that of deceased- Yankanna
only on the basis of M.O. 1 (underwear) and M.O. 6 (Waist thread) and some
photos on 24.7.2001. No photographs are marked as material objects. It is
difficult to believe that one could identify the highly decomposed and
mutilated dead body as that of deceased-Yankanna when the Medical Officer
(PW-21) was not even in a position to say whether the dead body was that of a
male or female. It is only the Forensic Expert (PW-22) who stated the body as
that of a male after examining the bones. PW-10 and 11 assert that dead body
was identified by PW-10 even on 21st July, 2001 but PW-29 says that dead body
was buried immediately after the post mortem examination. Exhibit P- 6 is
obviously got into existence may be after prolonged consultation with the
police. The dead body remained unidentified.
PW-11's evidence is also not trustworthy. She states, in her evidence, that Bilagi
police came in a jeep and informed her and PW-10 that a dead body was found in
the river and thereafter, she and PW-10 went to Bilagi police station but she
did not see the dead body of her husband. She was waiting in Bilagi police
station but PW-10 and her father-in- law went to saw the dead body of her
husband. But her father-in-law (PW-12) does not say that he saw the body of his
son. Next day they went in police jeep to Kaladagi police station where PW-10
lodged first information report (exhibit P-6). The version given by PW-11 is
also highly artificial and cannot be accepted. It is difficult to believe that
she did not go to the spot where the body was found. It is difficult to
reconcile the statements of PW-10 and PW-29. It is doubtful that PW-10 at all
had seen the dead body of her son. PW-29, in his evidence, stated that he could
not trace the relatives of the dead person since it was highly decomposed and
had therefore got buried the body on 21.7.2001 itself. Thus in effect no one
identified the body buried on 21.7.2001 as that of Yankanna.
Yet another aspect of the matter is that there is no explanation as to why no
complaint has been made ever since 12th July, 2001 when Yankanna was forcibly
taken away till lodging the first information report on 22nd July, 2001 at 1900
There is no convincing evidence placed by the prosecution to show that there
was motive and that the deceased Yankanna had illicit relationship with Hanamawwa
(PW-19) wife of the appellant. Be it noted, PW-19 also turned hostile and did
not support the prosecution case. In this regard, the evidence of PW-11 gains
some significance wherein she admitted that the complaint was filed only after
they were informed by the police about the illicit relationship of the
deceased-Yankanna and Hanamawwa (PW-19). No witness has spoken about the
alleged illicit relationship between the deceased and PW-19 except PW-10 and 11
who got the information from the police.
Next, we shall refer to the evidence of PW-21 who conducted the post mortem
examination. It is in his evidence that the body was highly decomposed, head
was missing, both legs were flexed and tied with rope over the abdomen. Hands
were missing. Survival bone was exposed, external genitalia was highly
decomposed and unable to make out sex organs. He could not make out as to
whether the body was of a male or female, age and cause of death, time of death,
he accordingly preserved the samples and sent to the Forensic Expert. The
Forensic Expert examined as PW-22 stated that he received a sealed box
containing bones from PW-21 and on opening the box, he found 8 human bones as
mentioned in his report. They were of male body. He admitted that by examining
the bones, exact age of the deceased cannot be given. Even the time of death
cannot be given exactly.
the light of the evidence available on record, can it be said that the
circumstances of last seen together by itself and necessarily lead to the
inference that it was the appellant who committed the crime? The High Court
took the view that accused Nos. 6 and 7 are entitled to the benefit of doubt
though, PW-10 stated in her evidence that the appellant, accused Nos. 6 and 7
took her son Yankanna on the fateful day. No motive was shown with regard to
accused Nos. 6 and 7 for their involvement in the crime. It is under those
circumstances, the High Court said that the burden shifts to the appellant to
show as to what happened to the deceased-Yankanna. In our considered opinion,
the High Court committed serious error in arriving at such conclusion. The
first information report lodged by PW-10 itself is highly doubtful. PW-10's
evidence itself does not reveal any circumstances to hold that the prosecution
has established the charge against the appellant. The appellant's failure to
offer any explanation in his statement under Section 313 Cr.P.C. is not a
circumstance to hold appellant guilty of the charge. The prosecution has failed
to establish as to when the death of Yankanna took place, it could be at any
time between 12th July, 2001 to 21st July, 2001. There is nothing on record to
show as to what transpired between 12th July, 2001 to 21st July, 2001. Mere
non-explanation on the part of the appellant, in our considered opinion, by
itself cannot lead to proof of guilt against the appellant. Learned counsel for
the State relied of Assam [ (2002) 6 SCC 715] which in fact
is in support of the defence and nor the prosecution.
circumstance of last seen together does not by itself and necessarily lead to
the inference that it was the accused who committed the crime. There must be
something more establishing connectivity between the accused and the crime.
There may be cases where on account of close proximity of place and time
between the event of the accused having been last seen with the deceased and
the factum of death a rational mind may be persuaded to reach an irresistible
conclusion that either the accused should explain how and in what circumstances
the victim suffered the death or should own the liability for the homicide. In
the present case there is no such proximity of time and place. As already noted
the death body has been recovered about 14 days after the date on which the
deceased was last seen in the company of the accused. The distance between the
two places is about 30-40 kms. The event of the two accused persons having
departed with the deceased and thus last seen together (by Lilima Rajbongshi,
PW6) does not bear such close proximity with the death of victim by reference
to time or place. According to Dr. Ratan Ch. Das the death occurred 5 to 10
days before 9.2.1991. The medical evidence does not establish, and there is no
other evidence available to hold, that the deceased had died on 24.1.1991 or
soon thereafter. So far as the accused Mohibur Rahman is concerned this is the
singular piece of circumstantial evidence available against him. We have
already discussed the evidence as to recovery and held that he cannot be
connected with any recovery. Merely because he was last seen with the deceased
a few unascertainable number of days before his death, he cannot be held liable
for the offence of having caused the death of the deceased. So far as the
offence under Section 201 IPC is concerned there is no evidence worth the name
available against him. He is entitled to an acquittal."
the present case also, there is no proximity of time and place. We have already
noted that the dead body, even if it is to be accepted, was that of the
deceased-Yankanna, had been recovered after 10 days after the date of which the
deceased was last seen in the company of the appellant.
singular piece of circumstantial evidence available against the appellant, even
if the version of PW-10 is to be accepted, is not enough. It is fairly well
settled that the circumstantial evidence in order to sustain the conviction
must be complete and incapable of explanation of any other hypothesis than that
of the guilt of the accused. It is true as U.P. [ (2002) 7 SCC 198] that it is
not an inflexible rule that the identification of the body, cause of death and
recovery of weapon with which the injury may have been inflicted on the
deceased though are factors to be established by the prosecution but it cannot
be held as a general rule and broad proposition of law that where these aspects
are not established, it would be fatal to the case of the prosecution and in
all eventualities, it ought to result in acquittal of those who may be charged
with the offence of murder provided the charges against the accused otherwise can
be established on the basis of the other reliable and trustworthy evidence.
There is no reliable and trustworthy evidence in the present case. The High
Court in the present case took the view that as to what happened to the
deceased-Yankanna was within the knowledge of the appellant and he having
failed to explain, and mutilated body of Yankanna having been found, having
shown that Yankanna had been murdered, the only conclusion one can arrive at is
that the appellant with the help of some others committed the murder of Yankanna,
cut off head and some part of the body and threw the body in Ghataprabha river.
Too many surmises and conjectures! it is highly dangerous to convict any
accused on the basis of which the High Court has chosen to do so.
is not the case of the prosecution that the appellant together with some
unidentified persons kidnapped the deceased-Yankanna and killed him. The
specific case of the prosecution is that the appellant along with accused Nos.
2 to 7 committed the crime of kidnapping and murder of the deceased. The trial
court as well as the High Court gave the benefit of doubt to the rest of the
accused. The High Court in the circumstances could not have propounded a new
theory that the appellant with the help of some others may have committed the
murder of Yankanna. Neither there are any circumstances nor any evidence
available on record to take such a view in the matter in order to convict the
of Madhya Pradesh [ (1991) 3 SCC 627] upon which, the
reliance has been placed by the learned counsel for the State to sustain the
conviction of the appellant has no application whatsoever to the facts and
situation in the present case. It was the case where this Court on an
independent appreciation of the evidence of the three eye- witnesses came to
the conclusion that several persons had participated in the commission of the
crime including the appellant but for some reasons all other accused except the
appellant therein were acquitted of the charge under Section 302 read with 149
IPC. This Court took the view that in the absence of the State appeal, it is
not possible to interfere with their acquittal but this Court was not bound by
the facts found proved on the appreciation of evidence by the courts below and
is, in law, entitled to reach its own conclusion different from the one
recorded by the courts below on a review of the evidence. It is under those
circumstances, this Court sustained the conviction of the appellant under
Section 302 IPC with the aid of Section 34 and 149 IPC and maintained the
sentence awarded to him. In the present case, there is no evidence available on
record to arrive at any conclusion that accused Nos. 2 to 7 were also involved
in the commission of the crime though they were acquitted by the trial court.
We, accordingly, hold that the judgment have no application to the present case
For all the aforesaid reasons, we hold that the prosecution did not establish
the charges framed against the appellant under Sections 302, 364 and 201 IPC.
The conviction and sentence awarded against the appellant is, accordingly, set
aside and he is acquitted of all the charges.
ordered to be released forthwith unless required in any other case.
The appeal is, accordingly, allowed.