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KARNATAKA HIGH COURT
B. Veerappa and V. Srishananda, JJ.
Revanesha @ Ravi and Anr. – Appellants
versus
State of Karnataka – Respondent
Criminal Appeal No.127 of 2015(C)
Decided on 23.7.2021
(A) Indian Penal Code, 1860 – Sections 115, 120(B), 328, 302 and 201 read with Section 34 – Indian Evidence Act, 1872 – Section 27 – Conspiracy, murder of step-son and disappearance of evidence – Conviction and sentence – Unequivocal admissions of natural father of deceased coupled with oral testimony of other prosecution witnesses is sufficient enough to infer that accused No.2 had motive to take away life of deceased – In a matter of this nature especially when case of prosecution is based on circumstantial evidence, prosecution is unable to place positive evidence on record in respect of motive as motive is a circumstance which has to be deduced or inferred from totality of circumstance – In case on hand, accused No.2 being step mother, having two children, she was ill-treating and harassing deceased – Prosecution is successful in establishing motive by placing cogent and convincing evidence on record, is based on sound and logical reasons – Prosecution has also established circumstance of last seen theory with cogent evidence on record – Acting under powers vested in Court under Section 27 of Evidence Act, prosecution in case on hand is able to prove discovery of fact and article i.e. empty Tablet sheet and other articles – Materials available on record and on re-appreciation, clearly and categorically point out guilt of accused and none else – However, there is no evidence on record to attract offence under Section 115 IPC – When Section 34 IPC is invoked by prosecution and Trial Judge convicted accused by resorting to Section 34 IPC, conviction of accused persons under Section 115 IPC cannot be countenanced in law inasmuch as Section 34 IPC and 115 IPC would not go hand in hand – As such, to that extent impugned judgment needs interference – Impugned judgment of conviction and order of sentence for offence punishable under Section 115 read with Section 34 of IPC, set aside – Impugned judgment of conviction and order of sentence for offences punishable under Sections 302, 120-B, 328 and 201 read with Section 34 of IPC, confirmed. (Paras 26, 27, 30, 31, 38, 39 and 40)
(B) Criminal Law – Appreciation of evidence – Evidence is raw material which Judge or Adjudicator uses to reach a finding of fact – It is easy for Courts to analyze oral testimony of eye witness in reaching such a finding but in case of circumstantial evidence, it is a onerous responsibility of cast on Courts to critically analyze material available on record and deduced or infer that a fact must have occurred in a particular manner – Courts can record order of conviction even in a case where case of prosecution completely rests on circumstantial evidence – However, before reaching such a conclusion, all facts must be consistent with hypothesis of guilt of accused – Circumstance must be conclusive nature and tendency – Circumstantial evidence available on record should be of moral certainty and actually exclude every alternate hypothesis. (Paras 33 and 37)
Result: Criminal Appeal allowed-in-part.
JUDGMENT
V. Srishananda, J.—Accused persons convicted for the offences punishable under sections 115, 120(b), 328, 302 and 201 read with Section 34 of IPC and sentenced to undergo substantive sentence of life imprisonment by judgment dated 09.12.2014 passed in SC No.74/2013 on the file of Fast Track Court, Sagara have challenged the validity of the said judgment in this appeal.
2. Brief case of the prosecution in brief are as under:
Upon complaint lodged by Sri B. Ganapathy Gowda, Sagara police registered a case in crime No.289/2012 initially for the offences punishable under Section 306 read with Section 34 IPC on 30.10.2012 at about 9.30 am. In the complaint, it is contended that about 16 years earlier to the complaint, he married his second daughter Anusuya to one Musali Narayana Gowda and a male child was born from their wedlock, who was named as Jayantha @ Jayaram. Aafter 11th day of the delivery, Anasuya died and up to 2 ½ years, the said child was reared in his house. Thereafter, father of the child Narayana Gowda took the child to his house. As on the date of incident, he was 13 years old and studying in 8th Standard in Ikkeri High School. Narayana Gowda married one Saraswathi, who is the resident of Kerekoppa and from the said wedlock, Narayana Gowda got daughter aged about 6 years and son aged about 4 years.
Complaint averments further reveals that Jayantha @ Jayaram was not looked after in proper way by second wife of Narayana Gowda and he was harassed by the Narayana Gowda and second wife Saraswathi by directing him to clean the vessels, sweeping the house and washing the clothes, etc. They also restrained him to visiting other houses, which he came to know from the relatives. When he had been to house of Narayana Gowda, he had conversation with Jayantha @ Jayaram and he revealed that his step mother (accused No.2) and his father Narayana Gowda and his senior uncle Manjappa was torturing him and used to provoke him that he should die so that property would remain for themselves. He took up the matter with Narayana Gowda and told that send Jayantha to his house but Narayana Gowda refused to do so.
Complaint averments further revealed that on 24.10.2012 on Vijayadashami festival day, Jayantha left his house without informing anybody around 12’o clock in the noon and he did not return home. The same was intimated to complainant from the relatives of Narayana Gowda namely Eshwara. Being anxious, complainant enquired in the relative house about Jayantha but he was not traced. Narayana Gowda lodged a missing complaint on 26.10.2012 with Rural Police of Sagara. On 29.10.2012 at about 7.00 p.m., when he was proceeding near Varadalli Circle, he received the information that Jayantha was found dead in KoteKaanu Forest near Majjigere from his son Manjunataha. Immediately, himself and president of panchayath namely Sydhur Mahabalesh visited Kotekaanu Forest and found dead body of Jayantha in supine position and the body was bloated and ants and other insects were found on the body and tongue was protruded; he noticed white and grey color T-shirt and a faded black color pant and face and body were disfigured. It is also found from the complaint that deceased unable to tolerate the harassment imparted to him by Narayana Gowda, Manjappa and second accused, deceased had died in Kotekaanu Forest. He noticed that bread pieces, a juice bottle and few snacks within the vicinity of the dead body and he entertained doubt about death of Jayantha and he specifically explained Narayana Gowda, Manjappa are responsible for death and thus, sought for action against them.
3. Jurisdictional police after thorough investigation, filed charge sheet against the appellants herein for the offences punishable under Sections 115, 120-B, 328, 302 and 201 read with Section 34 of IPC.
4. On receipt of the charge sheet, the jurisdictional magistrate committed the matter to the Sessions Court.
5. On such committal, the Sessions Court secured the pr
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