(Prayer: This criminal appeal is filed under Section 374(2) of Cr.p.c. praying to call for the s.c. no.8025/2021 on the file of Honourable xii additional district and sessions judge, Belagavi sitting at Gokak and to allow this appeal by setting aside the judgment and order of conviction dated 24.08.2023 and order of sentence dated 31.08.2023 passed by the hon’ble xii additional district and sessions judge, Belagavi sitting at Gokak in s.c. no.8025/2021, convicting the appellant for the offences punishable under Section 302 and 201 of IPC, further acquit the appellant of the offences punishable under sections 302 and 201 of IPC in the interest of justice and equity.)

Cav Judgment:

H.P. Sandesh, J.

1. Heard the learned counsel for the appellant/accused and learned Addl. SPP for the respondent/State.

2. This appeal is filed by the accused praying this Court to set-aside the judgment of conviction dated 24.08.2023 and order on sentence dated 31.08.2023 for the offences punishable under Sections 302 and 201 of IPC passed in SC No.8025/2021 on the file of the learned XII Addl. District and Sessions Judge, Belagavi, sitting at Gokak (for short, ‘Trial Court’).

3. The factual matrix of the case of the prosecution is that the accused is a real son born to the former husband of Smt.Kannavva, who later eloped and married to the brother of the complainant namely Yallappa Irappa Sanadi about 9 years back. Hence, the accused developed ill-will and hatredness against the family members of the complainant. In pursuance of the said hatredness, on 02.03.2021 at about 5.20 p.m., in the land bearing Sy.No.33 belonging to the complainant situated at Shiltibhavi village within the limits of Gokak Rural Police Station, the mother of the complainant namely Basavva, wife of Ramachandra Sanadi, while cleaning in the land, found the accused moving by holding koyta in his hand. The mother of the complainant called and advised the accused to keep in good terms with his mother and his second father, which made the accused to get angry on her and with an intention to cause murder, assaulted on her neck with the very same koyta about 2 to 3 times, which resulted in taking the life of the mother of the complainant. In order to screen the evidence, the accused dragged the body of the deceased to the adjacent land of one Cholappa Shivappa Akki. Based on the complaint of PW1, the jurisdictional police have registered the case in Crime No.36 of 2021 and conducted the investigation and after recording the evidence and collecting the incriminating materials, have filed the charge sheet for the above offences. In view of filing of the charge sheet, the case was committed to the Sessions Court and the same is numbered as SC No.8025 of 2021. The accused was arrested on 08.03.2021 and he was enlarged on bail. Later he was absent and hence he was secured with NBW and bail bonds were forfeited and the accused did not plead guilty and claims trial.

4. The prosecution in order to prove the case against the accused relied upon the evidence PW1 to PW16 and marked Exs.P1 to P36 and also got marked the MOs.1 to 12. On closure of the prosecution evidence, the accused was subjected to 313 statement and the accused did not choose to lead any defence evidence. The trial Judge, having appreciated both oral and documentary evidence, convicted and sentenced the accused for both offences. Being aggrieved by the conviction and sentence, the present appeal is filed before this Court.

5. The counsel appearing for the appellant in his argument would vehemently contend that though the prosecution relies upon the evidence of PW4, who is an eyewitness to the incident, but he is not an eyewitness and the trial Judge also failed to consider the evidence of PW5 and PW6 and their evidence is contradictory to each other and the same supports the defence of the appellant/accused. But the trial Judge, by overlooking this aspect of the matter, committed an error in convicting the accused. He further submits that there is no clear and clinching evidence to point out the role of the accused in committing the murder. The counsel would vehemently contend that the witnesses, who have been examined before the Court, are all relative witnesses and were having cordiality with PW1-complainant, and the evidence of PW1 to PW16 is contradictory to each other and in spite of it, the trial Judge committed an error in convicting the accused/appellant, which has resulted in miscarriage of justice.

6. The counsel for the appellant would further submit that even though PW4 supported the case of the prosecution, his mother, who has been examined as PW16, has turned hostile. It is also contented that there is no dispute regarding the second marriage and during the course of cross-examination, it is elicited that there was no any hatredness on account of second marriage. The counsel also would submit that even the evidence of recovery witnesses i.e., PW3 and PW10, does not inspire the confidence of the Court and even though the clothes of the accused were seized at the instance of the independent witnesses, but their evidence also not inspires the confidence that there was a recovery at the instance of the accused. The counsel would submit that sickle as well as chopper were seized, but no blood stains were found on the pant, but according to the prosecution, blood stain was found only on the shirt. The counsel also submits that the accused was arrested on 03.03.2021 in the very same village, that too in the bus stand. The counsel would submit that even voluntary statement, which is marked as Ex.P27, also not proved with regard to the recovery. The counsel also would submit that the evidence is clear that there was no any ill-will and hence, question of taking the life of the deceased does not arise. The counsel would submit that when there is no any eye witness evidence and the case then rests upon the circumstantial evidence. There is no any motive for committing the murder also and other chain of circumstances are also not proved and therefore, the trial Court ought to have acquitted the accused, but committed an error in believing the case of the prosecution and hence it requires interference.

7. Per contra, learned Addl. SPP appearing for the respondent/State would submit that the evidence of PW4 is very clear that he is an eyewitness to the incident and apart from that, the evidence of PW5 and PW6 is very clear that both of them have last seen the accused having koyta in his hand moving near the land of the victim. The motive for committing the murder is that the accused was having an ill-will, since the mother eloped with a person and staying along with him. The learned Addl. SPP would submit that the recovery witnesses PW3 and PW10 though turned hostile but their evidence is very clear with regard to the seizure of the weapon as well as cloth and even though these witnesses have turned hostile with regard to the recovery of clothes, but in the cross-examination admitted the same.

8. The learned Addl. SPP would further submit that FSL report is also very clear that blood stains were of ‘B’ group blood and there was no any provocation and also no such provocative word was used by the deceased. It is further submitted that the doctor, who conducted the postmortem, has given the evidence that the weapon of Koyta could cause the injuries and Ex.P21 is the PM report and given the report that it is a case of homicidal. He further submits that the evidence of PW15, who speaks about the FSL report, also corroborates the case of the prosecution and the same has been properly appreciated by the trial Court and convicted and sentenced the accused, hence, it does not require any interference.

9. In reply to this argument, counsel appearing for the appellant would submit that the prosecution has not satisfied the trial Court with regard to the material available on record and in spite of it, the trial Court committed an error and the very case of prosecution is not proved and hence, it requires an interference of this Court.

10. Having heard the counsel appearing for the appellant and the learned Addl. SPP for the respondent/State and also on perusal of the oral and documentary evidence, the points that would arise for the consideration of this Court are:

                  1) Whether the trial Judge has committed an error in convicting the accused for the offence punishable under Sections 302 and 201 of IPC and whether it requires interference of this Court?

                  2) What order?

11. Having considered the grounds urged in the appeal memo and also the oral submissions of the respective counsel, this Court has to re-appreciate the material available on record. The law was set in motion in terms of Ex.P1-complaint given by PW1 and in a complaint, PW1 says that he went and enquired Yallappa Irappa Sanadi about his mother and he says that his mother was cleaning the land at about 03.00 p.m. and at around 05.00 p.m. found the accused, who was moving along with koyta in his hand near his land and having enquired the said Yallappa, both of them searched the mother and found the food particles, the vessels and also the blood stains. Hence, being afraid of the same, by using the torch, searched and on searching, they found the dead body in the land of Cholappa Shivappa Akki and it was around 10.30 p.m. and hence, the complaint was lodged and this accused might have been for some reason committed the murder and in order to screen the evidence, took the dead body and thrown the same in the land of Cholappa Shivappa Akki and suspected the role of the accused. Having perused these contents, it is very clear that the complainant had suspected the role of the accused and this complaint was given on 03.03.2021 in the early morning at 04.00 a.m. and the case was registered.

12. In order to prove the contents of the complaint and charge sheet allegation, the prosecution mainly relies upon the evidence of PW1-complainant, who is not an eye witness, but in his evidence, he reiterates the contents of the complaint and he identifies signature in Ex.P1 and so also spot panchanama at Ex.P2 and photo was taken in terms of Ex.P3 and except the said place, he has not shown any other place and also witness says that photo was taken in terms of Ex.P4 in the land of Cholappa Shivappa Akki and it was at around 06.00 a.m. This witness was also treated as hostile by the learned Public Prosecutor, wherein he got elicited with regard to the accused having ill-will against the deceased, since she eloped and married the said Yallappa and also having ill-will against Yallappa and his family members and the accused was not in good terms with the family members. It is also suggested to PW1 that on the advice of the deceased, he became angry and hence he inflicted the injury and taken the life, and also speaks about the seizure of MO1 to 6 and identifies the same and so also, photo was taken in terms of Ex.P4 and conducted the inquest and seized the cloth of the deceased and identifies Ex.P5 and P6- photographs, so also MO7 to MO9. This witness was subjected to cross examination. In the cross examination, he admits that he had studied upto SSLC and also he used to sign in English. But he was under grief and hence he did not write the complaint. He further says that he met Yallappa around 07.30 p.m. and also there was a maize crop in the place of incident and also in the surrounding land. However, he categorically admits that there was no any quarrel between him and the accused till date and on that day, except meeting Yallappa, he did not meet anyone. But his categorical admission was given that the complaint was given on suspicion. But in the cross-examination, he admits that he searched his mother from 07.00 to 10.00 p.m. alone. But in the complaint-Ex.P1, he says that he himself and Yallappa searched and the same is contrary to the contents of Ex.P1. It is also important to note that he categorically admitted that there was no any quarrel or ill-will till the date of the incident between the accused and their family members and also he categorically says that he did not meet anybody else except this Yallappa. It is also clear that the complaint was given only on suspicion, suspecting the role of the accused. It is also important to note that PW1 categorically admits that there was a good cordial relationship between the accused and their family members and he says that he gave the complaint in the early morning at 4 a.m. and says that on his instruction, the complaint was written by Yallappa. However, he categorically admits that Yallappa Sanadi, Hanamantha Toklara and Parasuram Toklara are his relatives. It is also important to note that he says that police have not recorded his statement and categorically admits that all charge sheet witnesses are very cordial to him i.e. CW2, CW3, CW4, CW5, CW6 and CW7. It is also his evidence that CW6 and CW7 are his relatives and they are cordial with him. It is important to note that in the further cross-examination also, PW1 categorically admits that police have not given any notice to him and he cannot tell the description of the spot, where the dead body was found and the police took the photographs that they are in need of the photographs.

13. Now this Court has to take note of the evidence of PW4, for the reason that the prosecution mainly relies upon this witness as an eyewitness. But this witness says that at around 05.30 p.m. on the date of the incident, the deceased advised the accused that he must be cordial with his mother and also with the second father and hence, the accused inflicted the injury on her neck and Basavva started screaming at the spot and being afraid of this incident, he left the spot by himself and his mother, but did not inform the same to anybody else. This witness was subjected to cross-examination. PW4 admits in the cross-examination that he belongs to the very same community as that of the complainant and having good relationship with him and at the time of the incident, he was in his land and he was there throughout from morning till evening. However, PW4 admits that if any person stands in the maize crop land, nobody can see the said person. It is suggested that he did not witness anything and falsely deposing before the Court and the same was denied. He admits that near the place of incident, there is a tar road and number of cart and people used to move in the said place and also there is a kacha road near the place, where the body was found and there was difficulty to inform the said person, but only informed the same in the next day morning. It is suggested that he did not witness anything and he is positively deposing before the Court.

14. Having considered the evidence of PW4, though he claims that he witnessed the incident of inflicting the injury on the neck of the deceased, but the very complaint Ex.P1 is contrary to the same and in the complaint stated that on enquiry of this witness, PW1 came to know that the accused was moving with Koyta near the land. But nothing is stated on enquiry by PW4 that he had witnessed the accused inflicting the injury on the deceased and when such evidence is available before the Court, the very presence of PW4 and also that too, he is an eye witness cannot be accepted. If really he had witnessed the same, he would have informed the same to PW1-complainant and he also categorically says that he had lodged the complaint only on suspicion not based on any positive information and hence, the evidence of PW4 cannot be relied upon and so also, PW4 did not inform anything to anybody having witnessed the incident or the accused moving with Koyta near the land of the accused. It is also important to note that in the complaint, PW1 says that both of them have searched. But in the cross-examination, PW1 says that he searched alone not along with PW4 and there are material contradictions with regard to having found the dead body and also regarding receiving of the information and the evidence of these two witnesses cannot be relied upon.

15. Now the case rests upon the circumstantial evidence. PW3 in his evidence, says that the police called him and seized MO Nos.7 to 9 and also drawn the mahazar in terms of Ex.P8 and so also, he says that the accused made the statement that he is going to take them to the place, where he had committed the murder and thrown the dead body and also where he kept the weapon and led the police along with him in a police vehicle and he pointed out the place. He further says that the police have also drawn the mahazar about the place of committing the murder and throwing the dead body and the accused led further and produced koyta and mahazar was drawn in terms of Ex.P9. So also it is his evidence that Koyta is identified as MO10 and photos were taken in total 6 i.e. Exs.P10 to P15 and thereafter, they came back to the police station and in the police station, they did not seize any cloth. However, PW4 admits the signature in Ex.P16. This witness was also treated as hostile in part. But in the cross examination, the suggestion was made that the cloths of the accused were also seized and he admits the same. But in the cross-examination, he admits that his caste and the complainant’s was one and the same and also he is a relative of the complainant. He further admits that no notice was given by the police, however, they took 2 to 3 signatures. But he categorically admits that PW1 only brought him to the police station at around 10 a.m. and he cannot tell the description of the spot, where the murder took place and at around 12.30 to 01.00 p.m., he visited the place of incident and police were also there and he came to know about the place of incident and also the place where the body was found through PW1 and went to recover the weapons at around 02.30 to 03.00 p.m. and he cannot give the description and he says that one Satteppa accompanied him and at around 04.00 to 05.00 p.m., he came back to the police station and the accused was also there and mahazar was drawn in between 06.00 to 07.00 p.m. In the cross examination, the suggestion was made that he is falsely deposing before the Court and the same was denied. It is clear that PW1 did not speak anything about seizure of the cloth of the accused, but only in the cross examination, he admits the same. Thus, it is very clear that he was not called to the police station by giving any notice, but he categorically says that he came along with PW1 and though he speaks about the place of incident and the place, where the body was found, but the same was known to each and every person prior to visiting of the spot. With regard to the recovery of the cloth is concerned, the evidence of PW3 will not come to the aid of the prosecution, since he accompanied PW1 to the police station. But in the chief evidence, he says that no clothes were seized in the police station and hence, the evidence of PW3 does not inspire the confidence of the Court regarding recovery of the clothes.

16. Now this Court has to take note of the evidence of PW10, who is also a witness to the recovery. PW10 reiterates the evidence of PW3 with regard to the accused led the place, where murder was committed and where the body was thrown and also producing of the weapon and he is a signatory to Ex.P9-Mahazar and when he came back to police station, his signature was taken to Ex.P16. PW10 also says that in his presence, nothing was seized, however, he identified the signature in Ex.P8 and this witness also turned hostile to the case of the prosecution. During the cross-examination, PW10 also says that the accused produced his T-shirt, pant and the same was seized, but the timings, what he has given is 02.30 to 03.00 p.m. But according to PW3, it was 06.00 to 07.00 p.m. and they came back to the police station at around 05.00 to 06.00 p.m. But in the cross-examination, this witness says that he was not called over the phone, but he was called through some other person. PW10 claims that at around 10 to 11 a.m., he went to the spot alone and at that time, no one was accompanied with him. But he denies the seizure of the weapon. The evidence of PW10 also not inspires the confidence of the Court. According to PW3 and PW10, both of them were not summoned to the police station by giving any notice. But PW10 claims that he was not called by the police but someone was called him and timings also not tallies with each of the evidence. Hence, this Court cannot believe the evidence of PW3 and PW10 with regard to the recovery is concerned and both evidence are inconsistent, particularly with regard to the seizure of the clothes of the accused.

17. Now this Court has to take note of the evidence of PW15, who is FSL witness. PW15, no doubt, gives the evidence that blood stains detected in Item Nos.1, 3 to 8, 10 and 11 were stained with human blood, which was ‘B’ group blood. This witness was subjected to cross-examination and in the cross-examination, he admits that he has not mentioned the colour of bangles in his report. He also admits that both sickle and koyta are different weapons and relies upon the Report at Ex.P34 and no doubt, Ex.P34 is clear with regard to the blood stains found in the articles including the cloth of the accused and when the seizure of the cloth of the accused was doubtful and the evidence of PW3 and PW10 is not consistent and both of them have turned hostile partly with regard to the seizure of the cloth, but only learned Public Prosecutor got elicited the answer, treating the witness as hostile with regard to the seizure. The evidence of PW15 also will not come to the aid of the prosecution considering the report at Ex.P34.

18. Now with regard to the motive is concerned, the prosecution mainly relies upon the evidence of PW1, PW4, PW5 and PW6. This Court has already discussed the evidence of PW1, PW3 and PW4, as to whether it comes to the aid of the prosecution. PW5, according to him, he himself and his wife were in the land and his wife was cleaning the land. He further says that at around 5.00 p.m., he found the accused along with Koyta and stared all of them and his wife also left the land. But he says that at around 05.30 to 06.00 p.m., PW1 came and enquired him. But PW1 says that he met PW5 at around 07.30 p.m. not in between 05.30 to 06.00 p.m. and only he informed that his mother was cleaning the land. But this witness says that both of them searched and found two kurpis, chappal, food vessels and blood stains and went towards Cholappa’s land and body was found at around 10.30 p.m. and no doubt, with regard to the timing is concerned at 10.30 p.m., the evidence of PW1 and PW5 is consistent and also he identifies Ex.P1 and his signature that he only wrote the complaint. But speaks about the accused was having grudge against the deceased. This witness was subjected to cross-examination and in his cross-examination, when the question was put as to what time, he went to the police station to give the complaint, he claims that it was 06.00 p.m. and he himself, his wife Kannava, PW1 and Kenchappa, all of them went to the police station and complaint was written at 07.00 p.m. But the case of the prosecution is that the complaint was given at 04.00 a.m. in the early morning and the evidence of PW5 is contrary to the very case of the prosecution with regard to the timings and lodging of the complaint. It is also important to note that when the suggestion was made that he wrote the complaint as per the police, but he claims that he wrote the complaint in terms of his brother and he had seen the deceased Basavva about 03.00 p.m. and the timings of having found the accused is also at 02.00 p.m., but not 05.00 p.m. as deposed by PW1. The evidence of PW5 is also inconsistent having considered the evidence of PW1. Further, he categorically admits that there was no any ill-will between himself and the accused till date and this evidence corroborates each other with PW1 that there was no any ill-will and hence, the question of motive for committing the murder not supported by any evidence.

19. Now this Court has to consider the evidence of PW6, who is none other than the mother of the accused and she speaks about she eloped and married with the present husband and the accused was having grudge against her, since she was staying along with the present husband. This witness also says that the deceased was cleaning the land and the accused was found with koyta at around 05.00 to 05.30 p.m. and was staring at them. PW6 further says that she came to know about the dead body was found after search and the accused enraged by the words of deceased, assaulted the deceased with koyta. But in the cross-examination, she admits that she left her earlier husband 9 to 10 years ago and there was no any galata between herself and her earlier husband. However, she claims that the accused was having hatredness and this witness also categorically admits that till date, the accused did not quarrel with them. Hence, it is very clear that there was no any ill-will having considered the evidence of PW1, PW5 and PW6. PW6 also says that the accused was threatening her, but no such complaint was given. This witness also says that when cleaning the land, nobody can see inside the maize crop and this evidence also will not come to the aid of the prosecution and the evidence of this witness is not consistent.

20. The Court can rely upon only if the evidence of the prosecution witnesses is reliable and then Court can come to a conclusion that the accused only committed the murder. But in the case on hand, having perused the evidence of PW4, though claims to be an eye witness to the incident, the same does not inspire the confidence of the Court.

21. The other witness is PW7, who is not an eye witness, PW8 is an Engineer and PW9 is an interested witness. No doubt, having considered the evidence of PW11-Doctor, it is a case of homicidal and PM report is also marked as Ex.P21 and the injuries were also found and only because the death is on account of homicidal, the Court cannot come to a conclusion that the accused only committed the murder and this Court in detail considered the evidence of the prosecution witnesses. No doubt, PW12 is the Police Inspector, who conducted the investigation and the recoveries are also made at the instance of the accused. But in the cross-examination, he admits with regard to the location of the place, where the incident was taken place and there is a kacha road and people also used to move in that place. He further says that he did not record any further statement of any of the witnesses and did not mention the jeep number, in which they went and also he did not collect any RTC and the same is not defective.

22. PW13 is the photographer, who took the photographs and PW14 is the ASI. PW14, in his evidence, categorically deposes that the complaint was received in the early morning at 04.00 a.m. But the evidence of PW5 is very clear that the complaint was written in the previous day itself and the complaint was written before 07.30 p.m. There are material contradictions with regard to the evidence of prosecution. Having considered all these prosecution evidence, we are of the considered view that the trial Court has committed an error in convicting the accused. We have already pointed out that there was no any direct evidence and though claims that PW4 is direct evidence, but his evidence is not consistent nor credible. The law is well settled with regard to consideration of the material in a case of circumstantial evidence in view of the judgment of the Hon’ble Apex Court in the case of Sharad Birdichandra Sarda Vs. State of Maharashtra reported in 1984 Cr.L.J., 1738, and also recent judgment of the Apex Court in Subramanya v. State of Karnataka reported in (2023) 11 SCC 255, wherein also it is reiterated the Panchasheela while considering the case of circumstantial evidence, that means, all circumstances should point out the role of the accused in coming to a conclusion that the accused person only committed the crime and if any chain link is not established, the benefit of doubt has to be extended in favour of the accused.

23. In the case on hand, the motive is not proved and also case is registered only on suspicion and the same is admitted by PW1 and recovery evidence of PW3 and PW10 also not inspires the confidence of the Court and particularly with regard to the seizure of the cloth is concerned, there is no any cogent evidence. Hence, FSL report at Ex.P34 also would not come to the aid of the prosecution and even with regard to the last seen theory, as contented by the learned Addl. SPP for the respondent/State, the evidence of PW5 and PW6 is also not consistent and there are material contradictions in respect of each of the circumstances. When such being the case, we are of the opinion that the trial Court committed an error in convicting and sentencing the accused and hence it requires interference of this Court. The trial Court has committed an error in relying upon the evidence of PW4 and also the other circumstantial evidence. Hence, it is a fit case to reverse the judgment of conviction having reassessed the material i.e. both oral and documentary evidence and hence, we answered point No.1 in the “affirmative”.

24. In view of the discussions made above, we pass the following order:

                  ORDER

                  i) The present appeal filed by the accused is allowed.

                  ii) Consequently, the judgment of conviction dated 24.08.2023 and order on sentence dated 31.08.2023 passed by the learned XII Addl. District and Sessions Judge, Belagavi, sitting at Gokak in SC No.8025/2021 against the accused-Maruti S/o Paramanand Madamageri, for the offences punishable under Sections 302 and 201 of IPC is set aside.

                  iii) The accused, who is in custody, is set at liberty forthwith in view of his acquittal.

                  iv) Fine amount, if any, deposited by the accused shall be refunded to the appellant-accused on proper identification.