The presence of circumstantial evidence is essential to prove common intention in a murder case, whereas the lack of such evidence absolves one from conviction.

ORAL JUDGMENT

(PER: HON'BLE MR. JUSTICE H.P.SANDESH)

1. Heard Sri Venkatesh R. Bhagat, learned counsel for appellant Nos.1 and 2, Sri Lethif B., learned counsel for appellant No.3, Smt. Rashmi Jadhav, Additional State Public Prosecutor for the respondent-State and perused the material on record.

2. This appeal is filed by accused Nos.1 to 3 against the judgment of conviction and sentence for the offence punishable under Section 302 read with Section 34 of the Indian Penal Code , 1960 (for short, ' IPC ') and sentencing them to undergo imprisonment for life with fine of Rs.20,000/- each.

3. The factual matrix of the case of the prosecution is that P.W.17-Chandramma, who is a resident of Davanagere, had gone to Chennai, Tamil Nadu, about 2-3 years back and stayed there for some period and at that time, she had developed illicit relationship with Ashok (hereinafter referred to as 'deceased') and both of them had lived together for about one and half-a-year as tenants in Changalpet. About 5-6 months prior to the complaint, P.W.17 returned from Chennai and stayed in Davanagere, but never returned to Chennai. P.W.17 and the deceased were in phone contact and the deceased was forcing P.W.17 to come back to Chennai and to meet him. P.W.17 did not go back to Chennai even after the request made by the deceased and their relationship was known to her son, accused No.1, and her nephew, accused No.2. On 11.09.2017, the deceased came from Chennai to Davangere and knowing about this, accused Nos.1 and 2 with their common intention to commit murder of the deceased, took the help of accused No.3, owner of autorickshaw, bearing Registration No.KA-17 A-3646, from Railway Station, Davangere, along with P.W.19, driver of autorickshaw, and went to a Wine Shop to take drinks and then proceeded to Karnataka Bank ATM and from the ATM card of the deceased, they withdrew Rs.1,000/- and thereafter, accused Nos.1 to 3 along with P.W.19 went to Naganur Village and near the channel beside the road, they took the deceased and abused him for having illicit relationship with his mother, due to which, the image of accused No.1 in the society has tarnished and also scolded the deceased for making frequent phone calls to his mother and assaulted him by hands on his face and pushed him on the ground. At that time, accused No.2 caught hold of the deceased, accused No.1 took a stone and assaulted on the face, mouth and forehead of the deceased and with the same stone, accused No.2 also assaulted the deceased on face. Though P.W.19 called them back, accused Nos.1 and 2 did not yield to his words, but they assaulted the deceased by means of stone and murdered him. Thereafter, accused No.1 has taken the mobile phone and ATM card of the deceased and all of them went away in the autorickshaw of accused No.3.

4. P.W.1-Ravindranath, who found the dead body of the deceased, lodged a complaint. On the basis of the complaint, Hadadi Police, Davanagere, registered a case in Crime No.158 of 2017 and thereafter, accused Nos.1 to 3 were apprehended, investigation was conducted by recording the statement of the witnesses and ultimately, filed the charge-sheet. These accused were secured, they did not plead guilty and claims to be tried. Hence, the prosecution examined P.W.s.1 to 42, got marked Exs.P1 to P65 and