(Prayer: This criminal appeal is filed under Section 378(1) and (3) of Cr.p.c praying to file an appeal against the judgement and order of acquittal dated 14.08.2017 passed by the court of the principal district and sessions judge, D.K., Mangaluru in s.c.no.133/2013 acquitting the respondent/accused for the offences punishable under Sections 302, 392 and 201 r/w section 34 of IPC.)

Oral Judgment:

H.P. Sandesh, J,

1. Heard learned HCGP Smt. Rashmi Patel appearing on behalf of the appellant/State, learned counsels appearing on behalf of respondent Nos.1 to 3 and respondent Nos.5 and 6.

2. The factual matrix of case of the prosecution before the trial Court while invoking the offence against the accused persons is that based on the complaint of one C.W.1 Ashok Shetty, police registered the case in Crime No.71/2013 on 09.06.2013, alleging that his daughter Kum. Poornima was missing from his house since 03.06.2013. On 09.06.2013, C.W.2 Vasu Shetty has set the criminal law in motion before the SHO of Karkala Rural Police Station stating that Kum. Poornima, daughter of Ashok Shetty was missing since 03.06.2012 and he himself, Ashok Shetty and their relatives were searching for Poornima and he informed accused No.1 about missing of Poornima and said accused No.1 had met him at Belvai on 08.06.2013 and on an enquiry, accused No.1 made a confession statement before him that on 03.06.2013., himself and his friends committed the murder of Poornima and buried her dead body and sought for his excuse. Based on said confessional statement of accused No.1, he went and lodged the complaint and Crime No.71/2013 was registered and immediately accused No.1 was apprehended at 12.00 noon on 09.06.2013 and recorded his voluntary statement and on the basis of the voluntary statement, the dead body of Poornima was exhumed, from the place shown by accused No.1. The police also seized certain articles and conducted the inquest. Later on, at the instance of accused No.1, the Karkala police visited the spot where the incident had taken place and mahazar was drawn and seized four clothes at the instance of accused No.1. Later on, the police seized the gold chain from Mannapuram Finance, Moodbidre Branch, at the instance of accused No.1 and also apprehended other accused and seized the autorickshaw, in which the deadbody was transported and also seized two weapons at the instance of accused No.1 by drawing a mahazar based on his voluntary statement and the police prepared the video of the different places. The doctor conducted the post mortem over the dead body of Kum. Poornima. The clothes which were seized at the instance of accused No.1 and also the articles seized at the spot were subjected to chemical examination and report was also received. The police after investigation filed the charge sheet and the accused were produced before the Court. The accused persons did not plead guilty and claimed the trial and hence the prosecution examined 29 witnesses as PW.1 to PW.29 and got marked documents Exs.P1 to P56 and 36 material objects have been identified by the witnesses.

3. The accused persons were subjected to 313 Cr.P.C. statement and they did not give any explanation in 313 statement with regard to the recovery and MOs.

4. The trial Court however considering the material available on record comes to the conclusion that there is no incriminating material found against the accused persons and hence acquitted accused Nos.1 to 6 of the offences alleged against them. The trial Court after relying upon various decisions, in paragraph No.122, comes to the conclusion that PW.2 with whom extra judicial confession was made by accused No.1 has not informed either to PW.1-father of deceased Poornima or to the police and hence, it failed to understand why PW.2 did not inform either PW.1 or police on the same day or during night at least over the phone. The trial Court also discussed in paragraph Nos.123, 124 and 125 in respect of the extra judicial confessional statement of accused No.1 and in paragraph No.126 comes to the conclusion that the unnatural death of Kum.Poornima is not in dispute, however, the trial Court held, that fact alone cannot be the criteria to prove the guilt of the accused and according to the prosecution, accused No.1 has committed the murder of Kum. Poornima at his Amma Arts Shop, but none of the neighbours have been examined to show that they heard hue and cry from the shop of accused No.1 either on 03.06.2013 or on any subsequent date to prove that accused No.1 had committed the murder of Kum. Poornima in his Amma Arts Shop and hence comes to the conclusion that there is no link in the chain of circumstances and the prosecution has failed to establish the chain of circumstances to prove the guilt of the accused.

5. Per-contra, learned HCGP Smt. Rashmi Patel appearing for the appellant/State would vehemently contend that the body of deceased Poornima was exhumed at the instance of accused No.1 and apart from that, recovery was made at the instance of accused No.1 and PW.3 is the witness for recovery of dead body as well as gold chain belonging to the deceased, which was pledged in Manappuram Finance.

6. Learned HCGP would also submit that PW.8 is the witness for recovery of gold chain of deceased Poornima and PW.19 and PW.21 are the employees of Manappuram Finance, wherein also they have categorically deposed that accused No.1 used to visit Manappuram Finance earlier also and had pledged the very article i.e., gold chain on the very day of committing the murder i.e., on 03.06.2013. The CCTV footage also discloses that accused No.1 had come to pledge the gold ornaments and his movements is also recorded in CCTV, which is marked as Ex-P13. The evidence of PW.19 and 21 is also consistent with regard to the pledging of the same and recovery is also made and with regard to pledging of gold ornaments, documents Exs.P24 and 25 were also seized. She further submits that the body of deceased Poornima was shifted in an autorickshaw belonging to accused No.4 and accused No.4 is no more and hence the case against accused No.4 stood abated, however, the autorickshaw was seized at the time of conducting the investigation. PW12 is also the witness for recovery of chain from Manapuram Finance and MOs.24 to 26 are the clothes and mobile belonging to the accused and the same were seized; that PW.9 is the salesman of Akshaya Traders, in whose shop, the accused No.1 had purchased an iron bar as well as pickaxe- MOs.11 and 12 and his evidence is also very clear to the effect that both MOs i.e., M.O.11 and 12 was purchased from their shop. PW.16 is the owner of shop 'Amma Arts', wherein deceased Poornima was murdered. Learned H.C.G.P further submits that PW.17 Doctor, who conducted the post-mortem of deceased Poornima as per Ex.P17 has categorically deposed that a broken piece of knife was found inside the body and as per the opinion of the Doctor, the cause of death of deceased was due to complication of cut throat injury; the Investigating Officer sought the opinion of RFSL, Mangalore and the opinion is given in terms of Ex.P18 that the injuries found on the dead body of the deceased could be caused by use of said knife. PW.18 is the Doctor, who examined the accused and PW.20 is the photographer and videographer, who has taken the photos and video during these processes. Learned counsel would submit that Ex.P53 is the FSL report and Ex.P55 is the serology report and the same disclosed that the clothes, which were seized in the shop were used for cleaning the blood stains in the shop. Apart from that, the shirt of the accused was stained with human blood and all these materials clearly discloses the involvement of accused No.1 in committing the murder of the deceased. Learned counsel also would submit that there is no explanation under Section 313 Cr.P.C. by the accused and there is no explanation when the incriminating evidences put to accused No.1 that the other accused persons aided him in screening the evidence of destruction of the dead body and burying the same; that evidence of PW.11 is very clear that accused No.5 has shown the place, where the murder was committed and his mobile was also seized and PW.15 also deposes with regard to helping accused No.1 in destruction of the dead body and accused Nos.2 to 6 were booked for the offence under section 201 IPC.

7. Learned counsel appearing for respondent Nos.5 and 6 would submit that except relying upon the evidence of PW.11 and PW.15 wherein they too pointed out the place, where the murder was committed, the same was already disclosed by accused No. 1 while conducting the spot mahazar and the same is not any incriminating evidence. Learned counsel would submit that these accused persons were booked only based on the voluntary statement of accused No.1. Though mobile was seized from accused No.5, the same was not subjected to any CDR and no CDR was also produced before the Court and hence in order to connect accused Nos.5 and 6, there are no materials.

8. Learned counsel appearing for accused Nos.1 to 3 would vehemently contend that the trial Court while acquitting the accused particularly in paragraph No.126 discussed in detail as to none of the neighbours were examined to show that they heard the hue and cry from the shop of accused No.1 either on 03.06.2013 or on any subsequent date to prove that accused No.1 has committed the murder of Kum. Poornima in his Amma Arts shop. Learned counsel also would submit that the incident has taken place in broad daylight and when such being the case, the neighbours, who were in the surrounding area ought to have been examined and they have not been examined. The counsel also would contend that the trial Court in detail discussed in paragraph Nos.122, 123, 124 that the very evidence of PW.2 is doubtful with regard to the extra judicial confession, since the same was not informed to PW.1 and also the police, immediately on the previous day, when the extra judicial confession was made. The trial Court has taken note of the evidence of these witnesses regarding recovery of gold chain as well as the knife and also would contend that though PW17 doctor deposes that broken knife piece was found in the body, but in order to connect the accused, there are no material before the court and the mahazar Ex.P17 and Ex.P18 will not come to the aid of the prosecution and also the evidence of PW.19 and PW.21 and the evidence of PW.8 with regard to the recovery of gold chain and pledging the same with Manappuram Finance does not inspire the confidence of the Court and in view of inconsistent evidence before the Court, the trial Court rightly acquitted the accused.

9. Having heard learned H.C.G.P counsel appearing for the appellant/State and also learned counsel appearing for respondent Nos.5 and 6 and also accused Nos.1 to 3, the point that would arise for the consideration of this Court are:

                  1) Whether the trial Court committed an error in acquitting all the accused, for the offences invoked against them?

                  2) Whether the said finding of trial Court requires interference of this Court?

                  3) What order?

10. The case of the prosecution is that accused No.1 was having relationship with deceased Poornima and the motive for committing the murder was that the relationship between the accused and deceased was strained and she was insisting to marry him and hence accused No.1 committed the murder of the deceased in the shop 'Amma Arts' belonging to him. Accused No.1 after committing the murder took the help of accused Nos.2 to 6 for screening the evidence and to bury the dead body. No doubt, the prosecution booked accused Nos.2 to 6 invoking Section 201 of IPC. In order to substantiate that they have also played the role along with accused No.1 in disposal of the dead body and burying the same, except relying upon the evidence of PW.11 and PW.15, nothing is brought out to substantiate the same.

11. It is also important to note that PW.11 says that mobile of accused No.5 was seized. But, it is unfortunate that the Investigating Officer, who conducted the investigation, even though seized the mobile from accused No.5 did not collect any CDR and if he had collected the CDR, he could have found out the location of the area where the dead body of deceased was disposed of, which was exhumed from the place. No such material is collected and none of the witnesses also speaks about that the other accused persons helping accused No.1 in digging the pit and burying the dead body and no piece of evidence is place before the Court. Accused Nos.2 to 6 were implicated only on the basis of voluntary statement of accused No.1. The voluntary statement, unless there is any recovery, the same cannot be relied upon. With regard to helping of accused Nos.2 to 6 in disposal of the body by accused No.1, no such material which is admissible before the Court is produced before the Court and hence we do not find any ground to come to the other conclusion that the trial Court committed an error in acquitting accused Nos.2 to 6.

12. In respect of accused No.1 is concerned, the case of the prosecution is that based on his voluntary statement, subsequent to his arrest, the body of deceased was exhumed, but the witness-PW-20 videographer, who has been examined has destroyed the case of the prosecution with regard to exhumation of the dead body at the instance of accused, as he says that 100 to 200 persons were already there at the spot during exhumation of the dead body and when such being the case, the very exhumation of the body at the instance of accused No.1 is insignificant and the same is also found in the evidence of PW.1 and PW.2 and even though the said circumstance is not pointing out accused No.1, this Court has to examine the other circumstantial evidence. The first circumstance is extra judicial confession made by the accused No.1 with PW.2. PW.2 in his evidence says that when he enquired accused No.1, he revealed that he did a mistake in committing the murder of Poornima and seeks for his excuse. But, evidence of PW.2 is very clear that he tried to contact PW.1 to inform the same on the previous night, but he could not and the extra judicial confession was also made in the previous late night. But the evidence of PW.1 is very clear that he himself and PW.2 both went to the police station and lodged the complaint and law was set in motion based on the complaint of P.W.2 and the Trial Court committed an error in coming to the conclusion that P.W.2 did not inform either the police or P.W.1 in the previous night, but P.W.2 has explained in his evidence that he could not contact in the previous day, but the fact is that immediately on the very next day, he himself went to the police station and informed the police as well as accompanied with P.W.1. When such evidence is available before the Court, law is set in motion at the instance of P.W.2, when the extra judicial confession is made with P.W.2. No doubt there is a minor discrepancies in the evidence of P.W.2 with regard to the extra judicial confession is concerned and the same will not go into the very root of the case since it is made it clear that he could not contact the accused or police in the previous night and explanation is also given and when such being the material on record and also it is very clear that the extra judicial confession is not the substantive piece of evidence and the same is a weak piece of evidence. However, this Court has to take note of the material available on record, immediately after his arrest, the accused had taken the panch witnesses that is P.W.8 and also the P.W.12 to the spot where he committed the murder and pointed out the spot. It is important to note that when blood stains were found at the spot and the same was cleaned by using the cloth and seized at his instance and apart from that he also took the panch witnesses and Police and produced his cloth and the clothes which were seized at the spot contains the blood stains as well as the shirt of the accused also contains the blood stains and the same was seized and sent to the FSL. The FSL report is very clear in terms of Ex.P.3 and so also serological report as per Ex.P.55. No explanation is given by the accused in 313 statement regarding bloodstains is concerned.

13. It is important to note that when the broken knife was seized at the instance of the accused and the evidence of the Doctor-P.W.7 is very clear that the half broken portion even it was there in the body itself and the same is shown in the P.M report itself and remaining half broken knife was seized at the instance of the accused and mahazar was drawn in terms of the Ex.P.2. The evidence of P.W.3 is also consistent with regard to the recovery of the MO.11 and MO.12, MO.13 to 19 and MO.20 and 21 and his evidence is consistent and the FSL report also supports the case of prosecution with regard to the recovery of his cloth as well as the knife which was used for committing the murder.

14. The other circumstances relied upon by the prosecution is the evidence of P.W.8 and the witness P.W.19 and P.W.21 who are the employees of Manapuram Finance wherein the accused pledge the gold chain belongs to the deceased on the very day and availed an amount of Rs.20,000/- and these two witnesses P.W.19 and P.W.21 categorically deposed and even CCTV also given as Ex.P.13, but the evidence of P.W.19 and P.W.21 as well as the evidence of P.W.8 is very clear with regard to the recovery of gold chain which was pledged with the Manapuram Finance and the other circumstances also proves the case of prosecution since the document Ex.P.24 and Ex.P.25 are seized documents from the Manapuram Finance that the accused No.1 had pledged the gold chain.

15. The other circumstances is for burial of the dead body, he had purchased the iron bar and also the pickaxe from the shop of P.W.9 and evidence of P.W.9 is very clear that MO.11 and MO.12 are purchased by the accused No.1 from his shop and hence, it is clear that in order to screen the evidence of dead body, he had purchased the MO.11 and MO.12 from his shop and also used the same for to dug the pit and bury the dead body.

16. The other witness is P.W.16 who is the owner of the room in which he was running New Amma Art Shop wherein murder was committed and the accused is the tenant of the said premises and all circumstances even though the burial of dead body is not only at the exclusive information of the accused and cannot be invoked Section 27 with regard to the disclosure of the dead body since there were number of persons were already gathered at the spot, but other chain circumstances and link establishes with regard to committing of the murder and also the disposal of the dead body as well as the recovery of the chain and also the pledging of the same with the Manapuram Finance and also the purchase of the MO.11 and MO.12 from the shop of P.W.9 and he was also running the shop wherein he committed the murder and the same is spoken by P.W.16 that he was a owner and the accused is the tenant of the said shop and medical evidence which is available before the Court is clear that half broken knife which was inside the dead body and they recovered the remaining portion of the knife was seized at the instance of the accused and his cloth also stained with blood and FSL report also goes against the accused and all these materials were not discussed by the Trial Court and Trial Court passed a cryptic order only carried away with the minor contradictions found in the evidence of P.W.2 particularly relying upon extra judicial confession and recovery of all incriminating materials were not discussed in the judgment of the Trial Court and erroneously committed an error in making the discussion in paragraph No.122 to 125 that the chain link is not established but not discussed anything about recovery at the instance of the accused and fails to consider both oral and documentary evidence particularly the evidence of P.W.3, P.W.8, P.W.12 and medical evidence available on record and committed an error and the discussion made by the Trial Court is nothing but a miscarriage of justice in not considering the material available on record against accused No.1 and hence, it requires interference of this Court to reverse the judgment of the Trial Court and Trial Court committed an error in not relying upon the evidence available on record and hence, we answer the point accordingly.

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

                  ORDER

                  i) Criminal appeal is allowed in part.

                  ii) The judgment of acquittal passed against accused No.1 is set-aside and the accused No.1 is convicted for the offence punishable under Section 302 and 201 of Indian Penal Code.

                  iii) The accused No.1 is sentenced to suffer the life imprisonment and also directed to pay the fine of Rs.1,00,000/-, the said amount of fine of Rs.1,00,000/- is payable equally to P.W.1 and P.W.4 on proper identification.

                  iv) The bail bond executed by the accused No.1 is cancelled.

                  v) The accused No.1 is directed to surrender before the Trial Court within one week from today. If he is not surrendered, the Trial Court is directed to secure him and send him to prison with conviction warrant.

                  vi) The acquittal of accused No.2 to 6 is upheld and confirmed.