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2015 Supreme(Kar) 100
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
MOHAN M. SHANTANAGOUDAR AND P.S.DINESH KUMAR, JJ.
Sri Hosamanera Prakash & Ors., - Appellants
Versus
State Of Karnataka - Respondent
Criminal Appeal No.1207/2011
Decided On : 24th February, 2015
Advocate Appeared:
Mr. R.B. Deshpande, Adv. For Appellant No.1 Mr. Chandrashekar, Adv., For Mr. C.H. Hanumantharaya, Adv., For Appellant Nos.2 To 4
Mr. Chethan Desai, HCGP
Headnote:INDIAN EVIDENCE ACT, 1872 - Section 3: [Mohan Shantanagoudar & P.S. Dinesh Kumar, JJ] Circumstantial evidence - Last seen together - Accused allegedly caused death of husband of co-accused with help of two other accused - Evidence of sister-in-law of deceased who stated of seeing deceased with accused just prior to incident - Said version was not controverted by defence - Held, Circumstantial evidence of last seen together proved by prosecution beyond reasonable doubt.
INDIAN EVIDENCE ACT, 1872 - Section 65-B: [Mohan Shantanagoudar & P.S. Dinesh Kumar, JJ] Electronic evidence - Call records relating to cellular phones - Admissibility - None of the officers of service providers were examined to depose about call details - Not even certificate issued by said companies evidencing that call details furnished to Investigating Officer was by responsible Officer of companies - Held, In absence of such material on record, same is hit by provisions of Section 65B of Evidence Act and is not admissible.
INDIAN PENAL CODE, 1860 - Section 300: [Mohan Shantanagoudar & P.S. Dinesh Kumar, JJ] Murder - Accused persons allegedly helped co-accused in commission of murder of deceased -Material on record to show accused persons seen along with deceased in evening of incident -However no further connecting link against them -Held, Merely on suspicion, person cannot be convicted for offence of murder. Conviction of accused, not proper.
INDIAN PENAL CODE, 1860 - Section 300: [Mohan Shantanagoudar & P.S. Dinesh Kumar, JJ] Murder - Accused having illicit relation with co-accused had killed husband of co-accused - Evidence on record amply disclosed illicit relationship between both accused which continued even after panchayats were held in village - Both accused had eloped from village about one year prior to incident - Witnesses deposed about continuance of said relationship and deceased having threatened accused with dire consequences - Prosecution proved that accused had pledged gold ornaments of wife of deceased and generated funds just three days prior to incident - Said ornaments were recovered at instance of accused - Unnatural conduct of wife in not attempting to admit deceased to hospital nor intimating brother of deceased about deceased sustaining injuries - No explanation given by wife in respect of dead body with injuries found in bedroom of house - Held, Motive for commission of offence of murder is established. Adverse inference has to be drawn against wife of deceased
The judgment and order of conviction dated 18.11.2011 passed by the I Addl. District and Sessions Judge, Davanagere, in S.C. No.29 of 2011 is appealed against by the convicted accused.
The accused were tried, convicted and sentenced for the offences punishable under Sections 120B, 302, 201 r/w Sec.34 of IPC.
2. Case of the prosecution in brief is that the deceased Uday, is the husband of accused No.3 – Halamma; accused No.1 had illicit relationship with accused No.3 and in that background all the accused with a common intention said to have committed murder of the deceased Uday during night hours intervening between 7.8.2010 and 8.8.2010. It is further case of the prosecution that accused No.1 owned a mobile shop and was also doing money lending business at Danihalli Village; accused No.2 was working in the mobile shop of accused No.1, he was also attending pigmy collection work and accused No.4 was a milk vendor; accused Nos.1, 2 and 4 were friends and residents of Danihalli Village; accused Nos.1 and 3 had illicit sexual relationship; they had run away from the Village and were brought back; Panchayaths were held and they were suitably advised; the deceased – Uday had resisted illicit relationship between accused Nos.1 and 3; despite the advice of panchayathdars, illicit relationship between accused Nos.1 and 3 continued; they planned to do away with the life of the deceased with the help of accused Nos.2 and 4; accused No.4 took the deceased to Nyamathi Village in the evening of 7.8.2010 on his motor cycle and made the deceased to consume liquor at his cost; accused No.4 intimated accused Nos.1 and 2 to come to the spot of incident; accordingly, they came to the said spot and all of them committed murder of the deceased; thereafter, all of them took the deceased to the house of the deceased and laid his body on the cot in the presence of accused No.3, who in turn did not intimate about the incident to anybody till morning; however, death of the deceased came to light only at 6.00 a.m. on 8.8.2010; thereafter PW24 Rajendrappa, elder brother of the deceased, went to Nyamathi Police Station on 8.8.2010 at 12.30 p.m. and lodged a complaint, which came to be registered in Crime No.147/2010.
It is further case of the prosecution that accused No.3 had permitted accused No.1 to pledge her gold thali (mangalasutra) and another gold chain for generating funds for commission of murder of the deceased.
3. In order to prove its case, the prosecution in all has examined 28 witnesses and got marked 37 documents as Exhibits and 15 Material Objects. On behalf of the defence, 9 documents were got marked as Ex.D1 to D9. The trial Court on evaluation of the material on record convicted all the four accused for the offences punishable under Sections 120B, 302, 201 r/w Section 34 of IPC.
4. The learned counsel Sri Chandrashekar, appearing on behalf of accused No.2 to 4 and the learned counsel Sri R.B. Deshpande appearing for accused No.1 taking us through the material on record, submitted that the Court below is not justified in convicting the accused merely on assumptions and presumptions; prosecution has not proved its case beyond reasonable doubt; none of the circumstances relied upon by the prosecution is proved beyond reasonable doubt; the entire chain of circumstances would not prove the guilt of the accused; accused No.3 has not at all participated in commission of the offence; there is nothing on record to show as to how the incident took place; the version as found in the complaint – Ex.P26 is given a go bye by the prosecution during the course of investigation by generating a different theory altogether; if really PW.24 had seen the deceased at 11.30 p.m. on 7.8.2010 he would not have missed to lodge the complaint or intimate to third parties; the complaint at Ex.P26 is silent about the role of accused Nos.3 and 4; the circumstance of motive is not proved by the prosecution, inasmuch as, there is nothing on record to show tha
