Point of Law: When other evidence are available, non-examination of witness is inconsequential.

JUDGMENT :

These appeals filed by the convicted accused Nos.1 and 3 are directed against the judgment of conviction and order of sentence passed in S.C.No.215/2012 dated 25.04.2017 by the II Additional District and Sessions Judge, Hassan for the offence punishable under Sections 302, 120(B), 201 r/w Section 34 of IPC wherein, accused No.1 was directed to undergo rigorous imprisonment for a period of two years and to pay a fine of Rs.10,000/-for the offence punishable under Section 120(B) r/w Section 34 of IPC in default of payment of fine, he shall undergo further simple imprisonment of three months. Further, accused No.1 was directed to undergo imprisonment for life i.e., till his last breath and to pay a fine of Rs.50,000/-in default of payment of fine, he shall undergo imprisonment for a period of 2 years for the offence punishable under Section 302 r/w Section 34 of IPC. Accused Nos.1 and 3 were directed to undergo rigours imprisonment for a period of three years and to pay a fine of Rs.10,000/-each in default of payment of fine, they shall undergo three months simple imprisonment for the offence punishable under Section 201 r/w Section 34 of IPC. It is also ordered that accused No.1 shall pay sum of Rs.3,00,000/-to both the children of deceased under the provisions of 357 Cr.P.C., in default, they are entitled to recover the said amount from accused No.1 under Section 357(2) of Cr.P.C. Further, it directed to run the entire sentence concurrently.

2. The brief facts of the prosecution case are that on 29.03.2012, one Radha/accused No.2, who is the wife of the deceased-D.R.Kumar in this case, lodged a complaint before the respondent-police alleging that on 16.02.2012 around 9.00 p.m., her husband-D.R.Kumar had been to the field near Chollemarada village and from that relevant point of time, her husband was not returned to the home and was missing. Based on the said complaint, FIR has been registered for man missing in Crime No.44/2012. During the course of investigation, the respondent-police arrested accused No.1 on 13.06.2012 and recorded his voluntary statement as per Ex.P43 wherein, accused No.1 revealed that he and accused No.2 i.e., wife of deceased had illicit affair and the same was opposed by her husband i.e., the deceased and as such, in order to eliminate the deceased, himself and accused No.2 hatched a conspiracy and accordingly, on 16.02.2012 at about 8.00 p.m., while the deceased was working near Chachatanna Village road in Sy.No.121, accused No.1 assaulted him with the wooden rod (MO.5) on his head and thereby, the deceased fell down and at that time, accused No.1 kicked on his neck and chest and committed his murder. Thereafter, he called his brother accused No.3 to bring the goods auto rickshaw bearing registration No.KA-18-A-526 and they both shifted the dead body in the said auto from Devappanahalli village to the land of Rathnamma bearing Sy.No.155 and buried the dead body of the deceased in the pit which already dugged in the JCB. Later, accused No.2 gave the missing complaint that her husband was missing from 29.03.2012 in order to mislead the investigation. Based on the same, the dead body of the deceased recovered by exhumation proceedings vide Ex.P7-Mahazar and subsequently, another FIR was registered for the offence punishable under Sections 120 (B), 302, 201, r/w Section 34 IPC against accused Nos.1 to 3 based on the suo moto complaint lodged by the Deputy Superintendent of police as per Ex.P35. Later, the respondent-police investigated the matter, drew up the spot mahazar as per Ex.P7, conducted the inquest proceedings over the dead body as per Ex.P27 and after recording the statement of witnesses, the investigation officer laid the charge sheet against accused Nos.1 to 3 for the offence punishable under Sections 120(B), 302, 201 r/w Section 34 IPC before the committal Court. On committal of the case to the Sessions Court, the learned Sessions Judge framed the charges against the accused and read o