Tulasareddi @ Mudakappa & Anr. v. The State of Karnataka & Ors.

(viii) The prosecution case mainly rested upon the deposition given by PW-5 so-called eye-witness as well as on the basis of circumstantial evidence. The alleged motive, last seen theory, recovery, and conduct of the accused were sought to be relied upon to establish the chain of circumstances.

(ix) Upon an exhaustive appreciation of the entire evidence on record, the learned Additional District and Sessions Judge, Gadag, by judgment dated 30.03.2019, acquitted all the accused of all charges. The Trial Court recorded findings that the prosecution had failed to establish a complete and unbroken chain of circumstances pointing only towards the guilt of the accused. The alleged motive was held to be weak and speculative; the theory of conspiracy was found to be unsubstantiated; and crucial links such as last seen together and recovery were not proved beyond reasonable doubt.

(x) The Trial Court specifically held that mere suspicion, however strong, could not take the place of proof, particularly in a case based solely on circumstantial evidence. Consequently, benefit of doubt was extended to all the accused.

HIGH COURT PROCEEDINGS AND IMPUGNED JUDGMENT

(xi) Aggrieved by the acquittal, the complainant and the State of

Karnataka preferred Criminal Appeal Nos.100190/2019 and 100284/2019 respectively before the High Court of Karnataka, Dharwad Bench.

(xii) By the common judgment and order dated 28.11.2023, the

High Court allowed both the appeals and thereby set aside the judgment and order of acquittal rendered by the Trial Court. The High Court convicted the accused nos. 1 to 4 for committing an offence punishable under Sections 302, 120- B, 201, 506 read with Section 34 of IPC. However, the High Court has confirmed the order of acquittal passed by the Trial Court qua original accused nos. 5 & 6. At this stage, it is relevant to note that during the pendency of the proceedings before the High Court original accused no. 4 died.

4. Against the impugned judgment and order rendered by the High Court, the original accused no. 2 and 3 have preferred Criminal Nos. 2120-2121 of 2024 whereas original accused no.1 has preferred Criminal Appeal Nos. 2542-2543 of 2024 before this Court.

5. Heard learned counsel appearing for the appellants-convicts, learned AAG on behalf of the State of Karnataka (respondent no.1) and learned counsel appearing on behalf of the original informant.

6. Learned counsel for the appellants-convicts would mainly submit that the only allegation against accused no. 1 is that he allegedly conspired with the other accused to commit the offence. There is no allegation of “last seen”, no allegation of participation in abduction or committing murder of the deceased. It is further submitted that there is no recovery at the instance of accused no. 1. There are no eye-witnesses who have alleged that accused no. 1 is connected with the incident in question.

7. Learned counsel further submits that conspiracy being a serious criminal charge, cannot be presumed. It requires proof of meeting of minds, a prior agreement, and concerted action towards the commission of an illegal act. Mere suspicion, association, or existence of civil disputes cannot serve as a substitute for proof. In the present case, the prosecution has failed to establish any of the foundational ingredients of conspiracy. At this stage, it has been pointed out from the record that PW-1 has admitted in cross-examination that the dispute between the deceased and accused no. 1 was purely civil in nature, arising from ancestral property matters and in fact no prior threat, violence, or criminal conduct ever occurred. It is also pointed out from the record that PW-4 admitted that the disputed land stands in the name of Melagirigouda and not in the name of accused no. 1 and, therefore, the prosecution has failed to establish the motive on the part of accused no. 1 to commit alleged offences. It has been further contended that PW-10 to PW-13 have turned hostile. At this stage, it has been contended that PW-21, the Investigating Officer had admitted that no material was found during investigation to establish any enmity between the deceased and accused no.1 or any agreement or concerted action suggesting conspiracy.

8. Learned counsel further submits that PW-5, the so-called sole eye-witness, did not attribute any active role to accused no. 1. Further the said witness did not speak of any planning or agreement involving the said accused.

9. Learned counsel appearing on behalf of the appellants in Criminal Appeal Nos.2120-2121 of 2024 mainly submits that PW-5 is projected as eye-witness. However, the statement of the said witness came to be recorded after a period of 21 days and that too after the arrest of the accused. In fact, the said witness contradicts his own statements recorded on 05.01.2012 and 28.01.2012. It is also pointed out that the said witness was declared hostile as per the theory of the prosecution, qua accused nos. 5 & 6. Learned counsel further submits that PW-5 admitted that a rope was in his car and it was not brought by the accused. Learned counsel, therefore, urged that PW-5 is not a reliable witness and simply relying upon deposition given by the said witness, conviction cannot be recorded. Learned counsel for the appellants further submits that PW-14, the doctor who conducted the post-mortem of the dead body of the deceased has specifically stated that the death might have been occurred 10 days ago (prior to the date of post-mortem). However, in fact the dead body was found 21 days after the incident in question. It is, therefore, urged that medical evidence does not support the theory of the prosecution, despite which the High Court has recorded the order of conviction qua the present appellants.

10. Learned counsel for the appellants further submits that the prosecution has failed to prove the motive on the part of the accused to commit the alleged offences. In fact, the recovery and discovery were also not duly proved. It has been pointed out that two persons (CW-22 and CW-23) who have brought the body from the canal have not been examined. Thus, the prosecution has failed to examine crucial witnesses.

11. It is also contended by the learned counsel for the appellants that the Trial Court has rightly appreciated the entire evidence on record and, thereafter, acquitted all the accused. The said view taken by the Trial Court was a plausible view and, therefore, while considering the acquittal appeal filed by the State or the informant, the High Court ought to have considered the aforesaid plausible view taken by the Trial Court and ought not to have interfered with the order of acquittal recorded by the Trial Court.

12. Per contra, learned AAG appearing on behalf of the respondent- State as well as learned counsel for the informant have vehemently opposed the present appeals. Learned counsel would mainly submit that the prosecution has proved the case against the appellants-accused beyond reasonable doubt by leading cogent evidence. As the Trial Court has committed grave error while acquitting all the accused, the High Court has rightly passed the impugned judgment and order of conviction qua present appellants. Learned counsel for the respondents further submits that the voluntary disclosures made by accused No. 2 to 4 leading to the discovery of the dead body at a site near canal was within their special knowledge and hence admissible under Section 27 of the Indian Evidence Act, 1872. It is also contended that accused no. 2 to 4 made disclosure statements in which they disclosed that they took Martandagouda (deceased) in the car driven by PW-5, later killed him and then tied the dead body with cement slabs using bedsheet and dumped into the canal water. It is contended that of course the aforesaid disclosure statement falls within the purview of Section 27 of the Indian Evidence Act,1872, as they led to the discovery of facts. It is also contended that the dead body was recovered on 04.01.2012 and it is not explained by the accused as to how they came to possess the knowledge that the dead body was concealed in the canal. Learned counsel would mainly place reliance upon the deposition given by the sole eye-witness, PW-5. It is submitted that merely because the statement of the said witness was recorded after 21 days, the said statement cannot be discarded solely on this ground. It is also contended that PW-5 was treated as hostile as he did not disclose further facts in respect of accused Nos. 5 & 6 and, therefore, simply because he has been treated hostile, his evidence cannot be brushed aside in toto.

13. Learned Advocates also submit that PW-14, Doctor who conducted the post-mortem, has categorically opined that the death was due to manual strangulation. Thus, it is contended that the evidence of PW-14 also corroborates the evidence of PW-

5.

14. Learned counsel for the respondents further contend that there is sufficient evidence on record in the form of evidence of PW-1, PW-4, PW-10 & PW-11 who have proved the motive on the part of accused no. 1 to commit the alleged offences with the help of the other co-accused. It has been contended that the deceased filed a suit for partition and obtained an order of stay on 07.12.2011. Thereafter, the deceased went missing on 11.12.2011. Immediately after the deceased went missing, accused No.1 had executed a sale deed on 16.12.2011 in favour of his mother. The signatory to the sale deed is accused no. 2. The accused no. 3 was tenant of the lands of the deceased and enmity against him because he was removed from cultivation of his lands. Thus, it has been contended that the prosecution has proved the motive on the part of the accused to commit the alleged offences.

15. Learned counsel, therefore, urged that despite the aforesaid evidence on record, the Trial Court has failed to appreciate the same and thereby acquitted the accused and therefore, while the appeals were filed by the present respondents before the High Court, the High Court after reappreciating the entire evidence on record has rightly taken the view which is the only plausible view. Learned Advocate, therefore, urged that the High Court has not committed any error while convicting the present appellants and therefore both these appeals be dismissed.

16. Having heard learned Advocates appearing on behalf of the parties and having gone through the entire material placed on record as well as evidence led by the prosecution before the Trial Court, it would emerge that the occurrence took place on 11.12.2011 at about 6.30 p.m., when the deceased had gone missing. A complaint was lodged with the jurisdictional Police Station, Gadag on 16.12.2011 at 15:45 hours. PW-1, complainant was the son of the deceased whose statement was recorded by PW-18. Thereafter, further statement was given by informant on 03.01.2012 suspecting the involvement of accused nos. 1 to 4 due to land disputes between accused no. 1 and the deceased. In the said further statement the accused nos. 1 to 4 were named. It is pertinent to note that relying upon further statement alleging involvement of accused, accused nos. 2 to 4 were arrested on 04.01.2012 whereas accused nos. 5 & 6 were arrested on 05.01.2012. It is also relevant to note that after the arrest of accused nos.[2] to 4, their confession statements were recorded on the very same day by the Investigating Officer and it is the case of the prosecution that relying upon the said confession statements, the dead body was recovered near the canal. From the record, it transpires that two persons took out the dead body from the canal. Though said two persons (CW-22 and CW-23) are the important witnesses, they have not been examined by the prosecution. It also transpires from the record that after the arrest of the accused on 04.01.2012 the statement of the so-called eyewitness PW-5 came to be recorded. It is surprising that though PW-5 is projected as eyewitness, he did not inform the police about the incident in question for a period of 21 days. The only explanation given by him for such delay is the threat given by the accused to him.

17. As per the case of the prosecution, PW-5, the driver of the tempo trax vehicle is the sole eye-witness projected by the prosecution. From the statement given by this witness under section 161 of the code, it is revealed that accused nos. 2 to 6 got into his vehicle in different stages. In the first stage, accused nos.[4] and 6 along with Martandagouda (deceased) boarded the vehicle, accused no.6 sat next to him in the front seat. The vehicle moved towards Gadag and after covering a distance of around 1½ KMs, accused no.2 and 3 boarded the vehicle. When the vehicle was moving further, accused no.2 directed him to take the vehicle towards Asundi and when accused nos.[2] and 3 boarded the vehicle, accused nos.[4] and 6 who were sitting on the either side of Martandagouda (deceased), they sat in the rear portion of the vehicle. It is further stated by PW-5 that during the course of journey accused no.2 told the deceased as to why he is interfering in the sale of land and thereafter, accused no.6 told to Martandagouda (deceased) that he is having an eye on the accused no.6 whereas accused no.4 told to Martandagouda (deceased) that is it not enough that she is available for him and thereafter all of them started beating deceased by hands.

18. PW-5 has given the statement under section 164 of Code of Criminal Procedure,1973, before the FCJM on 28.01.2012, as per the case of prosecution. The said statement is produced vide Exhibit P-18. As per the statement given under Section 164 of the Code, PW-5 has stated that accused nos. 2 to 6 boarded his vehicle on 11.12.2011. We have gone through both the statements given by PW-5 before the police as well as the learned Magistrate.

19. PW-5 has specifically deposed that only accused nos. 2 to 4 boarded his vehicle at different stages. At the first stage, accused no. 4 and Martandagouda (deceased) who boarded the vehicle and after some distance accused nos. 2 and 3 got into the vehicle. During the course of his deposition, PW-5, has given complete go-by to accused nos. 5 & 6. PW-5 has been partially treated as hostile by the prosecution and certain suggestions are also made to him. It is relevant to observe that PW-5 has specifically stated that statement given under Section 164 given by him before the Court has not been read over to him. During the crossexamination this witness also further admitted that he does not know accused nos. 2 to 4 personally. Similarly, he does not know even accused no. 1 personally.

20. Thus, from the aforesaid deposition of PW-5 it can be stated that the accused nos. 1 to 6 are complete strangers to him. It is also relevant to observe that when the accused got down from the vehicle and dumped the body in the canal during that time PW- 5 could have informed to the police about the incident by making telephone calls. The said witness did not raise an alarm. It has also come on record that PW-5 has accepted that there are criminal antecedents against him. Thus, looking to the aforesaid aspects, it can be said that PW-5 can be said to be a planted witness.

21. Further, in the present case, no cogent reason for the silence on the part of PW-5 is forthcoming except the allegation that there was a threat. However, after 11.12.2011, how the so-called threat continued and persisted has not been brought to light. Further, statement of PW-5 was recorded after the post-mortem of the dead body of the deceased was conducted on 04.01.2012.

22. At this stage, it is also relevant to observe that PW-14, doctor who conducted the post-mortem of the dead body of the deceased, has specifically stated that the death might have been occurred 10 days ago. However, it is the case of the prosecution that the deceased was missing on 11.12.2011 and killed by the accused on the same day. Thus, we are of the view that the medical evidence also does not fully support the case of the prosecution and raises doubt.

23. Learned counsel appearing on behalf of the respondents have mainly placed reliance upon confessional statements of the accused and, thereafter, the discovery of the dead body of the deceased from the canal. We are of the view that simply relying upon the so-called confessional statements of the accused, and discovery of dead body which is also not duly proved, conviction cannot be recorded. Thus, looking to the overall facts and circumstances of the present case the sole so-called eyewitness, PW-5, cannot be said to be reliable and the other circumstances upon which the prosecution has placed reliance are insufficient to conclude that the accused have committed the alleged offences. The prosecution has failed to complete the entire chain of circumstances from which it can be established that the accused had committed the alleged offences. We are of the further view that the view taken by the Trial Court was a plausible view based upon the evidence led by the prosecution.

24. It is the case of the prosecution that all the accused hatch the conspiracy for killing Martandagouda (deceased). As per the case of prosecution, one civil suit is filed by Martandagouda (deceased) with regard to the land bearing survey nos. 332 and 329 of a particular village. It is the case of the prosecution that injunction was granted in favour of Martandagouda (deceased) and restraining the defendant (accused no.1) from alienating the suit property. As per the case of the prosecution, accused no. 2 is also interested in selling the land belonging to his mother. Whereas the accused no. 3 was cultivating the land of Martandagouda (deceased) on sharing basis. However, the deceased did not allow accused no. 3 to cultivate the land. So far as accused no. 4 is concerned, it is the case of the prosecution that she had illicit relationship with Martandagouda (deceased). So far as accused no. 6 is concerned, she is the paternal aunt of accused no. 1 whereas accused no. 5 is the paramour of accused