- 1 - CRL.A No.100569/2023 IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE 2nd DAY OF MAY, 2025 PRESENT THE HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM AND THE HON'BLE MR. JUSTICE G BASAVARAJA CRIMINAL APPEAL NO.100569 OF 2023 (C) BETWEEN: SHRI GANESH S/O. BASAVARAJ BALLARY AGE: 32 YEARS, OCC: MASUM, R/O: MAILARNINGA NAGAR, TQ. AND DIST. DHARWAD-580007 (NOW HE IS IN JUDICIAL CUSTODY) …APPELLANT (BY SRI. J. BASAVARAJ AND SRI. T.R. PATIL, ADVOCATES) AND: THE STATE OF KARNATAKA DHARWAD VIDYAGIRI P.S. REPRESENTED BY STATE PUBLIC PROSECUTOR, THE HIGH COURT OF KARNATAKA, DHARWAD BENCH-580011. …RESPONDENT (BY SRI. M.B. GUNDAWADE, ADDL. SPP.) THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374(2) OF CODE OF CRIMINAL PROCEDURE, SEEKING TO SET ASIDE THE JUDGMENT AND ORDER OF SENTENCE DATED 08.09.2023 PASSED IN S.C.NO.101/2021 BY THE III ADDITIONAL DISTRICT AND SESSIONS JUDGE, DHARWAD (SPL. JUDGE FOR CBI/ACB/KLA CASES) AND ACQUIT THE APPELLANT/ACCUSED NO.1 FOR THE OFFENCES UNDER SECTION 302 AND 201 R/W. 34 OF IPC. THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR JUDGMENT ON 14.03.2025, COMING ON FOR PRONOUNCEMENT OF ORDERS THIS DAY, THE COURT DELIVERED THE FOLLOWING: CHANDRASHEKAR LAXMAN KATTIMANI Digitally signed by CHANDRASHEKAR LAXMAN KATTIMANI Location: High Court of Karnataka, Dharwad Bench Date: 2025.05.23 11:32:08 +0530 - 2 - CRL.A No.100569/2023 CORAM: HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM AND HON'BLE MR. JUSTICE G BASAVARAJA CAV JUDGMENT (PER: THE HON'BLE MR. JUSTICE G BASAVARAJA) The accused No.1/appellant who has been convicted for the commission of offences punishable under Sections 302 and 201 read with Section 34 of IPC, has preferred this appeal against the Judgment of conviction and order on sentence dated 08.09.2023, passed against him in Sessions Case No.101/2021 by the III Additional District and Sessions Judge, Dharwad (Special Judge for CBI/ACB/KLA Cases) (for short, ‘the trial Court’). 2. For the sake of convenience, the parties herein are referred to as per their ranking before the trial Court. 3. Brief facts leading to this appeal are that the Vidyagiri Police, Dharwad submitted the charge sheet against accused Nos.1 and 2 for the commission of offences punishable under Sections 302 and 201 read with Section 34 of IPC. It is alleged by the prosecution that accused Nos.1 and 2 were in illicit relationship and deceased got doubt about them and used to object for the same, for which accused No.1 pacified and - 3 - CRL.A No.100569/2023 consoled her. On 11.08.2021 between 12.00 and 3.00 p.m., accused Nos.1 and 2 went to an under-construction building of accused No.1 to have sexual intercourse. At that time, the deceased was present in the said building and started quarreling with accused No.2 stating that they have cheated her, accused No.1 intervened and assaulted with hands to the deceased, at that time, the deceased out of fear that they may kill her, was climbing the ladder and at that movement both accused Nos.1 and 2 out of fear that deceased may make illegal relationship public and also that she will come in the way of their illegal relationship, with a common intention, by chasing the deceased, accused No.1 assaulted with shovel to the head and accused No.2 assaulted with brick to her back and committed her murder. On the same day, after committing murder to conceal the evidence, the accused have washed the shovel and kept the said shovel and brick in the ground floor and accused No.1 washed his blood stained pant in the house of accused No.2 and kept his blood stained jerkin in the said house and destroyed the evidence. Therefore, the present complaint was filed and on the basis of the said information, the police registered a case in Crime No.129/2021 for the offences punishable under Sections 302 and 201 read with - 4 - CRL.A No.100569/2023 Section 34 of IPC and after investigation the Investigating Officer has submitted the charge sheet against the accused for the commission of offences punishable under Sections 302 and 201 read with Section 34 of IPC. After filing the charge sheet, the jurisdictional Magistrate took the cognizance for the alleged commission of offences and a case was registered in Criminal case No.4795/2021 and thereafter the case was committed to the Sessions Court, then the case was registered in Sessions Case No.101/2021. 4. On hearing the charge sheet the trial Court has framed the charges for the commission of alleged offences, same was read over and explained to the accused, having understood the same, the accused pleaded not guilty and claimed to be tried. 5. To prove the case of prosecution, in all 22 witnesses were examined as P.W.1 to P.W.22 and 41 documents were marked as Ex.P.1 to Ex.P.41 so also 10 material objects were marked as M.O.1 to M.O.10. On closure of prosecution evidence, the statement of accused under Section 313 of Cr.P.C. was recorded. Having understood the same, the accused Nos.1 and 2 have totally denied the evidence of - 5 - CRL.A No.100569/2023 prosecution witnesses appearing against them. It is stated by accused No.1 that on the date of incident he went to work in the morning, at 8.00 p.m. he came to place of incident and found the dead body of the deceased, immediately he informed the same to the Police and ambulance over phone. Accused No.2 has stated that she has no relationship with accused No.1, Police took her to the Police Station and threatened her to remove her saree, due to fear and compulsion she has stated before the Police that there is relationship with accused No.1. 6. Having heard the arguments of both sides, the trial Court has acquitted the accused No.2 and convicted the accused No.1 for the offences punishable under Sections 302 and 201 read with Section 34 of IPC and sentenced to undergo rigorous imprisonment for life and to pay a fine of Rs.10,000/-, in default to pay the fine, he shall undergo further rigorous imprisonment for three months for the offence punishable under Section 302 of IPC. Further, accused No.1 is sentenced to undergo rigorous imprisonment for three years and to pay a fine of Rs.5,000/-, in default to pay the fine, he shall further undergo rigorous imprisonment for three months for the offence punishable under Section 201 of IPC. Being aggrieved by the Judgment of conviction and order on sentence passed - 6 - CRL.A No.100569/2023 against the accused No.1, appellant/accused No.1 has preferred this appeal. The State has not preferred any appeal against the acquittal of accused No.2. 7. The learned counsel appearing for the appellant/accused No.1 would submit that the impugned Judgment of conviction and order on sentence rendered by the trial Court is contrary to law, evidence, facts and probabilities of the case. The learned Sessions Judge has gravely erred in convicting the appellant/accused No.1 for the offences punishable under Sections 302 and 201 of IPC on the testimony of prosecution witnesses, which is highly interested, contradictory, unreliable and artificial. The trial Court has erred in giving much reliance that while the incident has taken place at 11.00 p.m. on Goods Shed road, on the other hand, there is no possibility of taking place of such incident in that spot because the witnesses have given the different timings and as such the prosecution has failed to prove the offences charged against the accused No.1. The name of accused No.1 was not at all mentioned in the FIR or in the complaint. Accused No.1 was not at all at the spot as was alleged in the complaint and FIR and without involvement in any case on the ground of suspicion, implicated him in the said offences. The prosecution - 7 - CRL.A No.100569/2023 has examined CW.1, 2, 4, 7 to 15, and 17 to 23 as P.W.1 to P.W.22 and CW.3, 5 and 6 were given up. It is submitted that no eyewitnesses come forward to state as to involvement of appellant in the offences nor it is witnessed by any person. All the witnesses whose statement was recorded, prima-facie exhibits hearsay and no statement of any person corroborates with alleged offences. Further, he was submitted that even complainant himself stated that he has not seen the person who beaten the deceased and accused No.2 was acquitted. No eyewitnesses have deposed or have given statement corroborating the allegation of the complaint which goes to show the false statement being adduced and created by the complainant. 8. Further, he would submit that CWs.13 to 20 the material witnesses, were examined as P.Ws.10 to 16 have not supported to the case of prosecution. The prosecution has failed to prove the presence of the complainant and presence of the deceased. So, their evidence is not having any much value in the eye of law. The Court below has gravely erred in coming to the conclusion that prosecution has proved the seizure although the panch and independent witnesses turned hostile. - 8 - CRL.A No.100569/2023 9. It is also submitted that though the material witnesses P.Ws.4, 8, 10 to 19 turned hostile and no strong motive for commission of offence is placed by the prospection in this case, still the court below gravely erred in coming to the conclusion that accused No.1 caused death of the deceased. The trial Court has failed to consider that the prosecution failed to establish the ingredients required in proof of charges leveled against accused No.1. The trial Court has erred in convicting accused No.1 on the basis of evidence of interested/partisan witnesses. The trial Court has erred in not considering the material contradictions and prosecution case suffers from infirmities. The trial Court has committed an error in holding that prosecution has proved the guilt of accused beyond all reasonable doubts. The trial court has not appreciated the evidence on record in accordance with law and facts. Absolutely that there are no cogent, convincing corroborative and believable evidence before the Court. However, the trial Court has convicted the accused No.1 which is not sustainable in law. On these grounds, he sought for allowing of this appeal. 10. As against this, learned counsel appearing for the respondent/accused No.1 would submit that the trial Court has appreciated the evidence on record in accordance with law and - 9 - CRL.A No.100569/2023 facts that there are no materials to interfere with the impugned Judgment of conviction. Accordingly, he sought for dismissal of this appeal. 11. Having heard the arguments of both sides and on perusal of the materials placed before us, the following points would arise for our consideration: (i) Whether the impugned Judgment of conviction and order of sentence passed by the trial Court suffers from any legal infirmities requiring this Court to intercede? (ii) What order? 12. Our answers to the above points are as under : Point No.(i) - In the affirmative. Point No.(ii) - as per the final order Regarding point No.(i) 13. We have carefully examined the materials placed before us. It is the case of prosecution that the Vidyagiri Police, Dharwad submitted the charge sheet against accused Nos.1 and 2 for the commission of offences punishable under Sections 302 and 201 read with Section 34 of IPC. It is alleged by the prosecution that accused Nos.1 and 2 were in illegal - 10 - CRL.A No.100569/2023 relationship and deceased got doubt about them and used to object for the same, for which accused No.1 pacified and consoled her. On 11.08.2021 between 12.00 p.m. and 3.00 p.m., accused Nos.1 and 2 went to the under-construction house of accused No.1 to have sexual intercourse. At that time, the deceased was present there and started quarreling with accused No.2 stating that they have cheated her, at that time accused No.1 intervened and assaulted with hands to the deceased. At that time, the deceased out of fear that they may kill her was climbing the ladder, at that movement both accused Nos.1 and 2 out of fear that deceased may reveal their illegal relationship, and also that she will come in the way of their illegal relationship, with a common intention accused No.1 assaulted with shovel to the head and accused No.2 assaulted with brick to her back and committed her murder. On the same day, after committing murder to escape from allegation, the accused have washed the shovel and kept the said shovel and brick in the ground floor and accused No.1 washed his blood stained pant in the house of accused No.2 and kept his blood stained jerkin in the said house and destroyed the evidence. 14. To substantiate the case of prospection, in all 22 witnesses were examined as P.W.1 to P.W.22 and 41 - 11 - CRL.A No.100569/2023 documents were marked as Ex.P.1 to Ex.P.41 so also 10 material objects were marked as M.O.1 to M.O.10. 15. Before appreciating the evidence on record, it is necessary to mention here as to the gist of the complaint is that the father of the complainant and his grandmother Rudravva and his sister Shilpa were residing in Tejashwi Nagar since 08 years. He and his mother were residing in Kotabagi village. The accused-Ganesh used to come for Goundi work near the house of his father. His sister Shilpa developed love with him and she married with him. Hence, his father and grandmother were residing in their house. Shilpa and Ganesh were in cordial terms after marriage about 08 years, but there are no issues to them. At any point of time, Shilpa did not inform as to the harassment by her husband. They were residing in a rented house in Hattikolla. They were constructing two storey building in Rajiv Gandhi Nagar by purchasing site. Shilpa used to visit that constructing house for curing whenever the accused go for his work she used to sit in neighbor house. It is alleged that on 11.08.2021 at 8.30 p.m. his father has received phone call to his Mobile No.9380082159 from the accused-Ganesh Cell No.9945457120 and asked about Shilpa whether Shilpa has come to their village, then he answered - 12 - CRL.A No.100569/2023 that she has not come to their house, then he disconnected the phone and again he called to the accused through Mobile No.9739759178 at 12 O’ clock. Then Shilpa had stayed in the new house of her close friend at Rajiv Gandhi Nagar. At this juncture, it is relevant to extract the complaint at Ex.P.1, which reads as under: “UÉ, oÁuÁ¢üPÁjUÀ¼ÀÄ, «zÁåVj ¥Éưøï oÁuÉ, zÁgÀªÁqÀ. ªÀiÁ£ÀågÉ, £Á£ÀÄ PÀ¯ÉäñÀ vÀAzÉ §¸À¥Àà ªÀAiÀĸÀÄì 21 ªÀµÀð eÁw: »AzÀÄ °AUÁAiÀÄvÀ ªÀÈwÛ: SÁ¸ÀV PÀA¥À¤AiÀÄ°è PÉ®¸À ¸Á: PÉÆl¨ÁV, vÁ: zsÁgÀªÁqÀ, f: zsÁgÀªÁqÀ ªÉÆ. £ÀA: 9739759178 §gÉzÀÄPÉÆqÀĪÀ ¦ügÁå¢ K£ÉAzÀgÉ, £Á£ÀÄ ªÉÄïÁÌt¹zÀ «¼Á¸ÀzÀ ¤ªÁ¹¬ÄzÀÄÝ, ªÀÄ£ÉAiÀÄ°è £À£Àß vÀAzÉ, vÁ¬Ä ªÀĺÁzÉë CfÓ gÀÄzÀæªÁé F ¥ÀæPÁgÀ ªÁ¹¸ÀÄvÉÛêÉ. £À£ÀUÉ ±ÉÆèsÁ ºÁUÀÆ ²¯Áà F ¥ÀæPÁgÀ CPÀÌA¢gÀÄ EgÀÄvÁÛgÉ. ±ÉÆèsÁ EªÀ¼À£ÀÄß ²gÀÆgÀ UÁæªÀÄzÀ £ÀªÀÄä ¸ÀA¨sÀA¢üPÀgÀ ºÀÄqÀÄUÀ¤UÉ ®UÀß ªÀiÁrPÉÆnÖzÉÝêÀÅ. r¯ÉêÀj ¸ÀªÀÄAiÀÄ vÉÆAzÀgÉAiÀiÁV wÃjPÉÆArgÀÄvÁÛgÉ. £À£Àß vÀAzÉAiÀĪÀgÀÄ £ÀªÀÄä CfÓ gÀÄzÀæªÁ ºÁUÀÆ QjAiÀÄ CPÀÌ ²¯Áà EªÀgÉÆA¢UÉ PÀ¼ÉzÀ 8 ªÀµÀðzÀ »AzÉ vÉd¹é£ÀUÀgÀzÀ°è ªÁ¹¸ÀÄvÁÛ ªÁZÀªÀÄ£À PÉ®¸À ªÀiÁqÀÄwÛzÀgÀÄ. £Á£ÀÄ ªÀÄvÀÄÛ £À£Àß vÁ¬Ä PÉÆl¨ÁVAiÀÄ°è ªÁ¸ÀªÁVgÀÄwÛzÉݪÀÅ. 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CªÀgÀ E§âgÀÄ ºÀwÛPÉƼÀzÀ°è ¨ÁrUÉ ªÀÄ£É ªÀiÁrPÉÆAqÀÄ ªÁ¹¸ÀÄvÁÛgÉ. gÁfêÀUÁA¢üà £ÀUÀgÀzÀ°è eÁUÀ Rjâ¹ JgÀqÀÄ CAvÀ¹Ü£À ªÀÄ£É PÀnÖ¸ÀÄwÛzÁÝgÉ. ²¯Áà EªÀ¼ÀÄ DUÁUÀ D ªÀÄ£É ºÀwÛgÀ ºÉÆÃV ¤ÃgÀÄ ºÉÆqÉAiÀÄĪÀÅzÀÄ ªÀiÁªÀ UÀuÉñÀ EªÀgÀÄ PÉ®¸ÀPÉÌ ºÉÆÃzÁUÀ ºÉƸÀ ªÀÄ£ÉAiÀÄ ºÀwÛgÀzÀ ¥ÀjZÀAiÀÄzÀªÀgÉƧâgÀ ªÀÄ£ÉAiÀÄ°è PÀĽvÀÄ ¸ÀªÀÄAiÀÄ PÀ¼ÉAiÀÄÄzÀÄ ªÀiÁqÀÄwÛzÀÝgÀÄ. »ÃUÉ EgÀĪÁUÀ ¤£Éß ¢ªÀ¸À ¢£ÁAPÀ 11/8/2021 gÀAzÀÄ gÁwæ 8.30 UÀAmÉUÉ ªÀiÁªÀ UÀuÉñÀ £ÀªÀÄä vÀAzÉAiÀĪÀgÀ ªÉƨÉÊ® £ÀA§gï 9380082159 £ÉÃzÀÝPÉ vÀ£Àß ªÉƨÉÊ¯ï £ÀA§gÀ 9945457120 £ÉÃzÀjAzÀ ¥ÉÆãÀ ªÀiÁr ²¯Áà ¤ªÀÄä HjUÉ §A¢gÀĪÀ¼ÉÆà ºÉÃUÉ JAzÀÄ PÉýzÀgÀÄ? £ÁªÀÅ E®è JAzÁUÀ E¯É AiÀiÁgÀzÁzÀgÀÄ ªÀÄ£ÉUÉ ºÉÆÃVgÀ§ºÀÄzÀÄ «ZÁj¸ÀÄvÉÛÃ£É JAzÀÄ ¥ÉÆãï PÀlÖ ªÀiÁrzÀgÀÄ. ¥ÀÄ£ÀºÀ £Á£ÀÄ ªÉƨÉÊ® £ÀA§gÀ 9739759178 £ÉÃzÀjAzÀ ªÀiÁªÀ£À ¥ÉÆãïUÉ PÁ® ªÀiÁrzÁUÀ ªÀÄzÁåºÀß 12:00 UÀAmÉUÉ gÁfêÀUÁA¢üãÀUÀgÀzÀ°è£À ºÉƸÀ ªÀÄ£É ºÀwÛgÀzÀ ¥ÀjZÀAiÀÄzÀªÀgÀ ªÀÄ£ÉAiÀÄ°è ²¯Áà EzÀݼÀÄ. vÁ£ÀÄ CªÀ¼À£ÀÄß C°èUÉ ºÉÆÃV ªÀiÁvÀ£Ár¹ PÉ®¸ÀPÉÌ ºÉÆÃzÀ£ÀÄß ¸ÁAiÀÄAPÁ® 6:00 UÀAmÉUÉ £Á£ÀÄ PÉ®¸À¢AzÀ ªÀÄ£ÉUÉ ºÉÆzÁUÀ ²¯Áà ªÀÄ£ÉAiÀÄ°è EgÀzÀ PÁgÀt vÁ£ÀÄ ªÀÄzÁåºÀß 12:00 UÀAmÉUÉ ²¯Áà EzÀ ¥ÀjZÀAiÀĸÀÜgÀ ªÀÄ£ÉAiÀĪÀgÀ ¥ÉÆãÀUÉ ªÀiÁr «ZÁj¹zÁUÀ CªÀgÀÄ ¤£ÀÄß ªÀiÁvÀ£Ár¹ ºÉÆÃzÀ £ÀAvÀgÀ ¤£Àß »A¢¤AzÀ¯Éà ²¯Áà ºÉÆÃVzÁ¼É JAzÀÄ ºÉýzÀgÀÄ. ªÀiÁgÀPÀmÉUÉ ºÉÆÃVgÀ§ºÀÄzÀÄ JAzÀÄ zÁj PÁAiÀÄzÀÄ ¸ÀªÀÄAiÀÄ §ºÀ¼ÀªÁVzÀjAzÀ ¤ªÀÄUÉ ¥ÉÆÃ£ï ªÀiÁrzÁV ºÉýzÀ£ÀÄß. - 14 - CRL.A No.100569/2023 £ÀAvÀgÀ ¸ÀĪÀiÁgÀÄ 9:30 UÀAmÉUÉ UÀuÉñÀ£ÀÄ ¥ÀÄ£À: ªÀÄ£ÉUÉ ¥ÉÆÃ£ï ªÀiÁr eÉÆÃgÁV C¼ÀÄvÁÛ ¨ÉÃUÀ£É gÁfêÀUÁA¢üãÀUÀgÀ ªÀÄ£ÉAiÀÄ ºÀwÛgÀ ¨Á, CAvÀ ºÉý ¨ÉÃgÉ£ÀÄß ªÀiÁvÀ£ÁqÀ°è¯Á £Á£ÀÄ £À£Àß vÀAzÉ gÁfêÀUÁA¢üãÀUÀgÀPÉÌ §AzɪÀÅ. ªÀiÁªÀ UÀuÉñÀ ªÀÄ£ÉAiÀÄ ªÀÄÄAzÉ d£À ¸ÉÃjzÀgÀÄ. £Á£ÀÄ £À£Àß vÀAzÉ E§âgÀÄ ªÀÄ£ÉAiÀÄ ªÀ¼ÀUÉ ºÉÆÃUÀ®Ä ªÀiÁªÀ UÀuÉñÀ£ÀÄ £ÀªÀÄä£ÀÄß ªÉÄî CAvÀ¹ÜUÉ ºÉÆÃUÀ®Ä ºÁQzÀ PÀnÖUÉ jÃ¥À¢AzÀ vÀAiÀiÁj¹zÀ ¤ZÀѤPÉ ªÉÄðAzÀ M§âgÀÄ ªÀiÁvÀæ zÁl®Ä ¸ÁzÀå«gÀĪÀ QlQAiÀÄ ªÀÄÆ®PÀ ªÉÄÃ¯É PÀgÉzÀÄPÉÆAqÀÄ ºÉÆÃV vÉÆÃj¹zÀgÀÄ. ªÉÄî CAvÀ¹Ü£À°è ²¯Áà EªÀ¼À ±ÀªÀ ªÀÄÄR PɼÀUÉ ªÀiÁr zÀ¨ï ©zÀ¹ÜAiÀÄ°è EzÀÄÝ vÀ¯ÉUÉ AiÀiÁªÀÅzÉÆà MAzÀÄ ªÀ¸ÀÄÛ«¤AzÀ §®ªÁV ºÉÆqÉzÀ ¨Áj ºÉÆqÉzÀ UÁAiÀÄ«vÀÄÛ. gÀPÀÛªÀÅ £É®zÀ ªÉÄÃ¯É ZɯÁèrzÀÄ, CªÀ¼À PÉÊ PÁ®ÄUÀ¼ÀÄ ±ÉmÉ¢zÀݪÀÅ. ²¯Áà EªÀ¼À ±ÀªÀªÀ£ÀÄß £ÉÆÃrzÁUÀ ¨É¼ÀV£À 12:00 UÀAmɬÄAzÀ ªÀÄzÁåºÀß 1:00 AiÀÄ £ÀqÀÄ«£À CªÀ¢AiÀÄ°è ²¯Áà EªÀ½UÉ AiÀiÁªÀzÀÆ AiÀiÁgÀÆ GzÉÝñÀ ¸ÁzsÀ£ÉUÁV, AiÀiÁªÀzÀÆ DAiÀÄÄzÀ¢AzÀ vÀ¯ÉUÉ §®ªÁV ºÉÆqÉzÀÄ PÉÆ¯É ªÀiÁrgÀÄvÁÛgÉ £À£Àß CPÀÌ ²¯Áà PÉÆÃA UÀuÉñÀ §¼Áîj ªÀAiÀĸÀÄì: 25 ªÀµÀð, eÁw: »AzÀÄ °AUÁAiÀÄvÀ ªÀÈwÛ ªÀÄ£É UÉ®¸À ¸Á: ºÀwÛPÉƼÀî zÁgÀªÁqÀ EªÀ¼À£ÀÄß PÉÆ¯É ªÀiÁrzÀ DgÉƦvÀgÀ£ÀÄß ¥ÀvÉÛ ªÀiÁr PÁ£ÀÆ£ÀÄ PÀæªÀÄ dgÀÄV¸À®Ä «£ÀAw. PÉÆl¨ÁV¬ÄAzÀ MAzÀÄ ±ÀªÀ £ÉÆr £ÀªÀÄä »jAiÀÄgÉÆA¢UÉ zÀÆgÀ ¸À°¸À®Ä «¼ÀA§ªÁVgÀÄvÀÛzÉ.” 16. CW.1-Kalmesh Basappa Shirur, the complainant examined as P.W.1. He has deposed in his evidence that CW.11 and 12 are his parents. He has three siblings, his elder sister’s name is Shobha, the second is Shilpa, and he is the third. He stated that they were all residing together with his paternal grandmother-Rudramma at Kotabagi, his elder sister Shobha got married ten years ago and passed away during childbirth. He stated that eight years ago, his father, grandmother, and - 15 - CRL.A No.100569/2023 sister-Shilpa were working as Watchman in the Tejaswinagar, Dharwad. He has further stated that the 1st accused was residing in Gandhinagar and he had previously been married, but his wife had left him. Further, he deposed that eight years ago, when his sister-Shilpa was around 14–15 years of age, the 1st accused lured her and, despite having been previously married, contracted into a love marriage with her, as a result, his father felt dishonoured and returned to their native village along with the grandmother. He further deposed that after one year, his father resumed his work as a Watchman at Suvarna Petrol Bunk, Dharwad. He further stated that his sister-Shilpa did not have any children, both of them lived together peacefully for 6–7 years. He submitted that on 11.08.2021, his sister-Shilpa passed away. He also stated that about one year prior to this, the 1st accused had become acquainted with the 2nd accused and an illicit relationship existed between them. He further stated that on 11.08.2021 at around 8:30 p.m., the 1st accused made a phone call to his father and enquired whether Shilpa had come to their native village. At that time, his father responded by saying that she had not come home all these days and questioned why she would come now. The 1st accused then stated that he would search for her locally. He stated that - 16 - CRL.A No.100569/2023 he mentioned his father's mobile number was 9380082159 and the 1st accused phone number was 9945457120. After approximately 15 minutes, he himself called the 1st accused from his own mobile number 9739759178 and asked about the whereabouts of his sister. The 1st accused replied that he had seen her last at 12:00 noon and that she had not been seen thereafter. At around 9:15 p.m., the 1st accused again called him and weeping, requested him to come urgently to Rajiv Gandhi Nagar. Further, he deposed that he and his father left Kotabagi on a bike and proceeded to the location where the 1st accused was constructing a house. They reached there by 10.00 p.m. At the location, a Police jeep was present and the 1st accused along with other people had gathered. When the complainant and his father questioned the 1st accused, he did not respond and kept crying. The Police were present on the upper floor of the under-construction house. The complainant stated that he went upstairs, where he found the dead body of his sister lying on the floor. Her head had been struck with a hard object, causing the fracture to skull. There was blood clot around the area. The complainant and his father stood near the body and the Police took photographs. Thereafter, they went to the Vidyagiri Police Station, then he lodged a complaint to the - 17 - CRL.A No.100569/2023 Police at around 12.45 a.m. as per Ex.P.1 and complaint was written by him. He further stated that thereafter Police took dead body to the Civil Hospital for conducting inquest proceedings, during which, photographs were taken. The complainant stated that he has seen five of the photographs taken at that time, and as they were produced in response to the objections raised by the defence counsel, they were collectively marked as Ex.P2. 17. He has further deposed that the body of his sister is visible in those photographs and in the said photographs, himself, his father, Madivalappa, Basappa, two police personnel and an officer from the Women’s Welfare Association can be seen. He affirmed that he could identify his sister’s clothes, which were marked as M.O.1 and 2. Further, he has deposed that his mother had informed him that accused No.1 used to harass his sister severely and that his sister herself used to inform his mother about it over the phone, but his mother had not initially informed about this harassment fearing that he might go and confront the accused. Further, he has deposed that accused No.1 had maintained illicit relationship with the accused No.2 and his sister had quarrelled with accused No.1, in this regard this matter was disclosed by his sister in the - 18 - CRL.A No.100569/2023 presence of their mother during one such quarrel, the accused No.1 had assaulted his sister. The complainant further deposed that after the deceased was cremated, his mother informed him about all these incidents. Later, approaching the Police, he informed them of these facts. At that time, Police told him that it was possible that accused No.1 had assaulted and murdered his sister in the same building, where she was found under the pretext of re-conciliation. Further, he has deposed that while accused No.1 and 2 were engaged in a romantic relationship in that building, his sister, who had climbed a small staircase in the building, might have caught them red handed, fearing that she would reveal the matter to her father and brother, the accused No.1 might have struck her on the head and murdered her, during the commission of the murder, the 2nd accused is alleged to have restrained the deceased by holding her hand. Further, he has stated that the Police have recorded his statement in this regard. At this stage, this witness has been treated as partly hostile witness and cross-examined by the Public Prosecutor. 18. CW.11-Basappa Shirur and CW.12-Mahadevi Shirur, parents of the deceased examined as P.W.2 and 3, both - 19 - CRL.A No.100569/2023 witnesses have deposed as to the death of their daughter as deposed by P.W.1. 19. CW.2-Manjunath Kalvad stated to be the attestor of mahazar, examined as P.W.4. He has deposed in his evidence as to the mahazar conducted by the Police as per Ex.P.3. This witness also treated as partly hostile witness and cross- examined by the Public Prosecutor. 20. CW.4-Basavaraj Pagad, the inquest panchanama witness examined as P.W.5. He has deposed as to the inquest panchanama conducted by the Police as per Ex.P.5. 21. CW.8-Arun Salunke, stated to be the attestor to the seizure mahazar examined as P.W.7. He has deposed as to the mahazar conducted by the Police as per Ex.P.6. This witness also treated as partly hostile witness and cross-examined by the Public Prosecutor. Even in his cross-examination, he has categorically denied the seizure of mobile phone, T-shirt and jeans pant stated to have been produced by accused No.1. 22. CW.9-Ashok Turayidar stated to be the attestor to the seizure mahazar examined as P.W.8. He has deposed in his evidence as to the mahazar conducted by the Police as per - 20 - CRL.A No.100569/2023 Ex.P.8 also the rough sketch Ex.P.9 and Ex.P.10-photos. This witness also partly treated as hostile witness and cross- examined by the Public Prosecutor. 23. CW.10-Parashuram Sakre, stated to be the attestor to the mahazar examined as P.W.9. He has deposed in his evidence as to the mahazar conducted by the Police as per Ex.P.8 and rough sketch prepared by the Police as per Ex.P.9 and also deposed as to the photographs Exs.P.10 and 11 and also seizure of M.O.6 and 7, seizure of shovel (salike) and brick piece. 24. CW.10-Prashuram Sakre, CW.11- Basappa Shirur, CW-13-Rakesh Talawar, CW.14-Raemsh Kattimani, CW.15- Arati Asmaleka, CW.17-Renuka Chimmalagi, CW.18-Dheeraj Kasale, CW.19-Parashuram Yalavatti, CW.20-Jyoti Valmiki, CW.21-Laxmi Valmiki, CW.22-Maruti Ballari stated to be the neighbours and also relatives of accused No.2, examined as P.W.10 to 19 respectively. All these witnesses have not supported to the case of prosecution. Even in their cross- examination made by the Public Prosecutor, after treating them as hostile witnesses, they have categorically denied the statement and further statement stated to have been recorded - 21 - CRL.A No.100569/2023 by the Investigating Officer under Section 161 of the Cr.P.C., which are marked as Ex.P.12 to 29. 25. CW.28-Dr.Girijatai G.H., Medical Officer, Government Hospital examined as P.W.20. She has deposed in her evidence as to the postmortem conducted as per Ex.P.30. She has also deposed in her evidence as to the certificate given by her as per Ex.P.31. 26. CW.29-Mahantesh Bassapur and CW.30-Sachin Dasaraddi, the Police Inspector and PSI examined as P.W.21 and 22 respectively. In their evidence, they have deposed as to the conducting of their part investigation respectively conducted by them. 27. On careful scrutiny of the entire materials on record, it is crystal clear that the alleged incident took place on 11.08.2021 at 8.30 p.m. P.W.1-Kalmesh Basappa Shirur, who is the younger brother of deceased-Shilpa has lodged the complaint to the Police as per Ex.P.1 on 12.08.2021 at 00:45 hours. On the basis of the said complaint, Vidyagiri Police Dharwad have registered the case in Crime No.29/2021 for the offence punishable under Section 302 of IPC against the unknown accused and submitted the FIR to the Court on - 22 - CRL.A No.100569/2023 12.08.2021 as per Ex.P.32 on 3.05 a.m. in column No.3(C) of the FIR Ex.P.32. It is stated that complainant came from Kotabag village to the Rajiv Gandhi Nagar, Dharwad and witnessed the spot of crime, discussed with elders then he lodged the complaint. Hence, there was a delay in filing the complaint. As per the story of the prosecution only after the arrest of accused, the Investigating Officer has interrogated the accused and during the course of interrogation the Investigating Officer came to know that the accused No.1 had illicit relationship with accused No.2, when accused Nos.1 and 2 went to under construction house said to have been constructed by accused No.1, accused Nos.1 and 2 were in romantic position, the deceased came near newly constructing house and witnessed them, then she started to cry that they have cheated her, at that time, accused No.2-Manjula had started to assault her, then he rescued the deceased from Manjula and she gave two blows with hands on Shilpa. Manjula was standing near the door, then all of a sudden Shilpa went to the first floor with the assistance of ladder, then under apprehension that the deceased may reveal the illicit relationship with accused No.2 before the villagers, so also she may object to the relationship with accused No.2, he chased - 23 - CRL.A No.100569/2023 the deceased and gave four blows on the head of the deceased with shovel (salike). Accused No.2-Manjula gave blow to Shilpa with bricks on her back as a result of which Shilpa fell on the floor and they fled the scene. 28. P.W.21-Mahantesh Kallappa Basapur, the Police Inspector has arrested the accused No.1 and interrogated him and recorded the voluntary statement of accused No.1 as per Ex.P.35. Thereafter, the Investigating Officer has secured panchas and at the instance of accused, the Investigating Officer has seized the properties under seizure mahazar. 29. After trial, the trial Court has acquitted accused No.2- Manjula on the ground that involvement of accused No.2 is not proved, though, she was present with accused No.1. The State has not filed any appeal against the acquittal of accused No.2. 30. The motive of accused No.1 to commit the murder of his wife Shilpa is that when the deceased-Shilpa had witnessed the romantic position of accused Nos.1 and 2 in the newly under constructing house, under the apprehension that she may reveal as to their illicit relationship to the elders, accused No.1 has assaulted with M.O.-6 shovel (salike) and accused No.2 assaulted with M.O.7 piece of brick. The trial Court has - 24 - CRL.A No.100569/2023 clearly held that the prosecution has failed to prove the involvement of accused No.2. However, the trial Court has held that accused No.1 has committed the murder of his wife by accepting the story of the prosecution that accused No.1 had illicit relationship with accused No.2. 31. A perusal of the complaint Ex.P.1, P.W.1 has clearly stated that her elder sister Shilpa and accused-Ganesh were cordial and further stated that accused No.1, the husband of deceased-Shilpa has not ill-treated his elder sister-Shilpa at any point of time. The deceased has not disclosed as to the ill- treatment/harassment stated to have been given by accused No.1. Only after recording voluntary statement of accused Nos.1 and 2, the Investigating Officer came to know about the extra-marital relationship with accused No.2, and then the Investigating Officer has informed same to P.W.1. Thereafter, Investigating Officer recorded the further statement of P.W.1- Kalmesh Shirur. 32. During the course of cross-examination, P.W.1 has clearly admitted that deceased used to tell as to the quarrel with accused No.1 to her mother. Only after burial of deceased, her mother has intimated same to P.W.1. Further, he has - 25 - CRL.A No.100569/2023 clearly admitted that Police have informed him as to the murder committed by accused with shovel (salike) and brick piece. It is also admitted by the P.W.1 that her elder sister has got mobile and knows mobile number and used to talk with her over mobile phone. She also used to talk with their parents. Further, he has admitted that Police have not recorded his further statement on the next day of incident. He has also admitted that he has not stated as to the extra marital relationship of accused No.1 with accused No.2. Further, he has admitted that he has not seen as to the extra marital relationship of accused No.1 with accused No.2. 33. P.W.2-Basappa Mallappa Shirur and P.W.3-Mahadevi Basappa Shirur have clearly stated in their evidence that the deceased used to tell them that she was in cordial relationship with accused No.1, and accused No.1 and deceased used to visit their house frequently. The deceased has not disclosed as to the harassment/ill-treatment by the accused No.1 and both have clearly admitted that they have not given statement to the Police. Further, they have clearly admitted that Police have informed them that accused Nos.1 and 2 have committed the murder of their daughter-Shilpa. If really accused No.1 had extra marital relationship with accused No.2, and accused No.1 - 26 - CRL.A No.100569/2023 ill-treated the deceased, the deceased could have intimated the same to his younger brother P.W.1 or her parents P.W.2 and 3, but she has not done so. P.W.1 has specifically stated in Ex.P.1 that her elder sister-Shilpa was in cordial relationship with accused No.1 and he has not ill-treated the deceased at any point of time. P.W.1 has not stated anything against accused No.1. However, only at the instance of Police, P.W.1 to 3 have deposed before the Court that accused Nos.1 and 2 have committed the murder of deceased-Shilpa, which is not believable for the reason that the evidence of P.W.1 and 3 is quit unnatural and contrary to the conduct of ordinary prudent man. Only after thought to implicate accused Nos.1 and 2 at the instigation of the Police, they have deposed before the Court that accused Nos.1 and 2 have committed the murder of deceased. The prosecution has examined the other material witnesses P.W.10 to 19. All these witnesses have not supported to the case of prosecution. The prosecution has not placed any cogent, clinching, corroborative and believable evidence to show that prior to the alleged incident the accused No.1 had extra marital relationship with accused No.2. The trial Court has also not assigned any reasons to come to the conclusion that accused No.1 had illicit relationship with accused No.2. The trial - 27 - CRL.A No.100569/2023 Court has not properly appreciated the evidence on record in accordance with law. Accordingly, the prosecution has failed to prove that accused No.1 had extra marital relationship with accused No.2. 34. The case of prosecution is based on the circumstantial evidence. It is the case of prosecution that after recording the voluntary statement, the Police have recovered M.O.6 and other properties under mahazar-Ex.P.6 and inserted the same under P.F.No.124/2021 dated 13.08.2021. The Investigating Officer has conducted this Ex.P.6-mahazar on 12.08.2021 between 19:30 and 21:00 hours. The arrest memo produced by the prosecution reveals that the Investigating Officer has arrested this accused No.1 on 12.08.2021 at 18:30 hours. 35. The pancha witnesses, P.W.6-Manjunath Ghanti and P.W.7-Arun Salunke said to be the attestors to the seizure mahazar have not supported to the case of prosecution. It is the case of prosecution that accused No.1 has produced M.O.6 under seizure mahazar-Ex.P.6. It is evident from Ex.P.35 voluntary statement of accused No.1 that accused have thrown away the shovel (salike) and brick piece on the spot and ran away. The Investigating Officer has conducted the spot - 28 - CRL.A No.100569/2023 panchanama-Ex.P.3 on 12.08.2021 at 5.30 early morning, in which, the Investigating Officer has not whispered anything as to M.O.6 and M.O.7 at the time of conducting this mahazar. The Investigating Officer has not found M.O.6 and 7 on spot. At the time of conducting spot panchanama Ex.P.3, the Investigating Officer has seized the blood stained cement piece, without blood stained cement piece and piece of bangles which are marked as M.O.3 to 5. After seizure of these M.O.3 to 5, the Investigating Officer inserted the same in PF.No.123/2021 dated 12.08.2021. 36. The Investigating Officer has recorded the voluntary statement of accused No.1 on the same day, but time is not mentioned in the voluntary statement. However, the records reveal that within one hour from the time and date of accused No.1 Investigating Officer has recorded his voluntary statement as per Ex.P.35 and he has seized (i) Vivo company smart mobile phone, (ii) Blend company “V” collar T-shirt, (iii) Driftwood company cotton jeans under Ex.P.6. On the next day, Police have seized the brick piece and shovel (salike) under the mahazar-Ex.P.8. When the accused has produced the same and also jerkin worn by the accused at the time of commission of offence on 13.08.2021 between 9:30 hours to 12:00 hours as - 29 - CRL.A No.100569/2023 per Ex.P.8. The Investigating Officer has inserted these properties in PF.No.124/2021 dated 13.08.2021. The Police have also seized the clothes worn by the deceased under Ex.P.36 and inserted these properties in PF No.123/2021. None of panch witnesses have supported to these mahazars. Though, the Investigating Officer has seized these properties at the instance of accused, the Investigating Officer has not submitted the seizure panchanama along with PF to the Magistrate at the earliest point of time. The property forms submitted by the prosecution reveal that only on 17.08.2021 after lapse of 5 days from the date of seizure of the properties, Investigating Officer has submitted the report to the Court, which is clear violation of Section 102 of Cr.P.C. The Investigating Officer has not offered any explanation as to the delay in submitting the seizure mahazars to the Court. Additionally, though the Investigating Officer has conducted the spot panchanama on 12.08.2021, but he has not submitted to the Court. 37. It is pertinent to note that the Investigating Officer conducted the inquest panchanama marked as Ex.P.5 on 12.08.2021. However, the said document was not submitted to the Court immediately or within a reasonable period thereafter. Instead, it was produced only at the time of - 30 - CRL.A No.100569/2023 filing the charge sheet against the accused. This significant delay in submission of a critical piece of evidence casts serious doubt on the authenticity and reliability of the inquest proceedings. The failure to promptly produce such documents before the Court raises a reasonable suspicion regarding the genuineness of the seizure of the properties alleged by the prosecution. This omission on the part of the Investigating Officer is contrary to the expectations of promptness and procedural propriety, thereby impairing the credibility of the prosecution’s version. 38. Accused No.1, in his statement recorded under Section 313 of the Code of Criminal Procedure, has provided a consistent version of events. He has stated that on the date of the alleged incident, he had left for work in the morning and returned to the site around 8:00 p.m., where he discovered the deceased Shilpa lying dead. Upon making this discovery, accused No.1 immediately contacted the Police and the ambulance services over the phone to report the incident. This behavior, as asserted by the accused, is reflective of his non- involvement in the alleged crime and supports the defence theory that he was not present at the time of the incident and that he acted responsibly upon finding the deceased. - 31 - CRL.A No.100569/2023 39. The contents of Ex.P.5, the inquest panchanama, indicate that the body of the deceased was witnessed by three individuals: the complainant and younger brother of the deceased, P.W.1–Kalmesh Shirur; the father of the deceased, P.W.2–Basappa Mallappa Shirur; and Accused No.1– Ganesh S/o. Basavaraj Ballari, who is the husband of the deceased. Further, Ex.P.1, the complaint lodged by P.W.1, corroborates that Accused No.1 had informed P.W.1 and P.W.2 about the death of Shilpa by calling them on the phone and crying loudly, urging them to come to the spot. This account is reaffirmed by the deposition of P.W.1. It is also noteworthy that upon their arrival at the scene, Accused No.1 was found weeping and did not utter anything to the people who had gathered there. The consistent defence put forth by Accused No.1 is that he has not committed the murder of Shilpa. It is his case that Shilpa, who used to regularly visit the under- construction house to oversee the progress of construction work, had an accidental fall from a height of approximately five feet while curing the brick walls in the absence of workers. This fall allegedly caused her to sustain fatal injuries. Supporting this contention, P.W.20, the medical expert, admitted during cross-examination that the external injuries documented - 32 - CRL.A No.100569/2023 in Ex.P.30 could have been sustained due to contact with any hard and blunt object resulting from a fall. Specifically, the skull fracture mentioned in the report could be consistent with a scenario where a person falls from a height and their head hits a hard surface or objects such as cement, brick, or iron rod. 40. The spot panchanama-Ex.P.3 unequivocally indicates that the location of the incident was a house under construction. The photographs produced as part of the record visually corroborate this fact. From the testimonies of P.W.1 to P.W.3, all material witnesses, it emerges that the relationship between Accused No.1 and the deceased was cordial and that they were jointly involved in the construction of the house. It is therefore plausible that the deceased had come to the construction site to supervise the work, and in the course of doing so, suffered an accidental fall resulting in the injuries reflected in the postmortem report. Additionally, while the prosecution has attempted to attribute specific acts of assault to Accused No.2, particularly the allegation that she assaulted the deceased with a brick on her back, this assertion is not supported by any conclusive evidence. In fact, the postmortem report Ex.P.30 does mention injuries on the back, but there is - 33 - CRL.A No.100569/2023 no definitive evidence to establish that these injuries were inflicted by Accused No.2. The inconsistencies among the injuries recorded in the postmortem report, the inquest panchanama, the photographs of the scene, and the description of weapons in the forensic opinion Ex.P.31, collectively generate a reasonable doubt regarding the true nature and cause of the injuries sustained by the deceased. 41. Further, if Accused No.1 had indeed committed the offence as alleged by the prosecution, his conduct in the immediate aftermath of the incident is highly improbable. A person guilty of such a crime is unlikely to inform the Police and the deceased’s family members as promptly as he did, nor would he remain at the scene or participate in the inquest and spot panchanama proceedings. Despite the absence of any specific allegations against Accused No.1 at the initial stages, he was swiftly taken into custody by the Investigating Officer shortly after the registration of the FIR (Ex.P.32). Based on his alleged voluntary statement, a recovery of M.O.1 to M.O.9 was effected and included in the charge sheet. However, the prosecution’s case suffers from a lack of corroboration, none of the panch witnesses or seizure mahazar witnesses have supported the prosecution’s version during their examination before the - 34 - CRL.A No.100569/2023 Court. Moreover, there is no independent witness testimony substantiating the recovery or the events surrounding the seizure. The prosecution’s reliance on the voluntary statement of Accused No.1, which itself lacks corroboration, further weakens its case. The seizure of M.O.6, in particular, appears to be unnatural and procedurally suspect. 42. A critical procedural lapse that undermines the credibility of the investigation is the manner in which the seizure panchanamas, inquest panchanamas, and spot panchanama were handled by the Investigating Officer. Although these documents were prepared on different dates, none were submitted to the Court promptly. Instead, they were all collectively produced only at the time of filing the charge sheet, in contravention of the mandate under Section 102 of the Code of Criminal Procedure, which requires that such seized articles and records be submitted to the Magistrate without unnecessary delay. Furthermore, the delay in registering the FIR—Ex.P.32 also casts a shadow of doubt, as it appears to have been filed only after discussions and deliberations with elders, rather than being a spontaneous or immediate complaint. Taken cumulatively, these procedural irregularities, lack of corroborative evidence, contradictions in medical and - 35 - CRL.A No.100569/2023 ocular evidence, and the absence of reliable witness support all contribute to a consistent and reasonable doubt surrounding the prosecution’s case. Hence, upon evaluation of the evidence and applying the cardinal principles of criminal jurisprudence, it must be held that the prosecution has failed to prove the guilt of the accused beyond reasonable doubt. Therefore, the point No.(i) is answered in the affirmative, and the benefit of doubt must be extended to the accused. Answer to point No.(ii) 43. For the reasons discussed above, we proceed to pass the following : ORDER (i) Appeal is allowed. (ii) The Judgment of conviction and order of sentence passed on 08.09.2023 by the III Additional District and Sessions and Special Judge, Dharwad in Sessions Case No.101/2021 is set aside. (iii) The appellant/accused No.1 is acquitted for the offences punishable under Sections 302 and 201 of IPC. - 36 - CRL.A No.100569/2023 (iv) Registry is directed to send intimation to the Superintendent of Prisons, Dharwad Central Jail, Dharwad to release the appellant/accused No.1 forthwith, if he is not required in any other cases. Sd/- (SACHIN SHANKAR MAGADUM) JUDGE Sd/- (G. BASAVARAJA) JUDGE CKK CT-CMU