Aravind Kumar, J.
1. Accused has preferred this appeal being aggrieved by judgment and order of sentence passed on 15-3-2011 in S.C. No. 23 of 2010 by I Additional Sessions Judge at Tumkur convicting the appellant for the offence punishable under Sections 498-A, 302 and 201 of Indian Penal Code, 1860 by sentencing him to undergo rigorous imprisonment for life and to pay a fine of Rs.20,000/- and in default to pay the fine amount to undergo further simple imprisonment for one year for the offence punishable under Section 302 of IPC; rigorous imprisonment for two years and to pay fine of Rs.10,000/- and in default to pay the fine to undergo simple imprisonment for six months for the offence punishable under Section 498-A of IPC; and further to undergo rigorous imprisonment for two years and to pay fine of Rs.10,000/- and in default to pay fine amount to undergo simple imprisonment for six months for the offence punishable under Section 201 of IPC. It is further ordered that out of the fine amount of Rs.20,000/- imposed, same is ordered to be paid to P.W.1-mother of the deceased as compensation.
2. Case of the prosecution is as under:
A complaint came to be lodged on 20-8-2009 at about 4.00 p.m. by Smt. Geetha, wife of the accused alleging that her marriage with the accused had been solemnised about four years back and she had initially lead a happy married life. She has further stated that she gave birth to a son, who was later named as Chandan alias Chandu and at the time of marriage, gold ornaments were given to her by her parents as per prevailing custom and dowry was also given to the accused. She further alleged that after her marriage, she was residing in the matrimonial home along with other members of her husband family and she was being harassed by her husband, in-laws and other relatives of her husband with a demand for dowry by alleging that what was given at the time of marriage was insufficient. She has further alleged that on this ground she was being physically assaulted and they demanded that her father who was possessing vast agriculture lands should give a portion of land to his son-in-law. She further states that eight months back there was a panchayath held and her father had paid Rs.80,000/- cash to accused and her father had also agreed to transfer 22 guntas of land to the name of his grandson i.e., Chandu alias Chandan and it was made clear that the land would not be transferred to the name of accused. Being enraged by this, accused was insisting that land should be transferred to his name and in this regard accused was assaulting her. She further alleged that about 15 days prior to the lodging of the complaint her brother-in-laws – Basavaraj, Basavaraj alias Kulla, her mother-in-law - Kempaboramma and husband - Nanjegowda (accused) had picked up quarrel with regard to transfer of 22 guntas of land and had threatened her that she would face consequences in the event of land not being transferred to the name of accused. She has also alleged that all the members of her husband’s family had scolded that transfer of land to the grandson would be made by her father only in the event of grandson being alive. She has also alleged that on 19-8-2009 at about 5.00 p.m. her son Chandan was playing near the school and she had been to fetch water from the nearby borewell and after fetching water, she went back to pick up her son, who was playing near school and did not find him and at that point of time she was panic and her neighbours, her parents, who were residing nearby including her husband together conducted search in the sugarcane fields, nearby pond, farm and nearby villages, which did not yield any result. She has further alleged that on 20-8-2009 at about 3.00 p.m. she was informed that her husband was standing near grass heap situated near waste pit located outside the village and crying and as such, she along with her sister Smt. Prema and neighbours went near the pit and found her son’s hand protruding from the pit. She has alleged that her husband on account of her animosity towards her father on account of his refusal to transfer the land to the name of accused, had murdered their son since he was under the impression that land would be transferred to the name of the boy only in the event of he being alive and for committing the said act, he was instigated by his family members. Hence, she sought for action being taken against the accused persons for having assaulted her for dowry and for murdering their son Chandan and other family members of her husband who had instigated him to commit such heinous act. Said complaint came to be registered in Cr. No. 132 of 2009 by Huliyurdurga Police for the offence punishable under Sections 498-A, 114, 302 and 201 of IPC read with Sections 3 and 4 of Dowry Prohibition Act, 1961 against the accused and three others. After investigation, charge-sheet came to be filed against the accused alone and others, who had been arraigned as accused 2 to 4; were dropped.
3. Prosecution in order to prove the guilt of the accused in all examined 29 witnesses as P.Ws.1 to 29 and got marked 24 documents as Exs.P.1 to P.24B and M.Os.1 to 4 also came to be marked. On completion of the evidence of prosecution the statement of the accused under Section 313 of Criminal Procedure Code, 1973 came to be recorded.
Findings recorded by the learned Sessions Judge:
4. The Sessions Judge after evaluating the evidence tendered by the prosecution and after considering the arguments advanced by the respective learned Advocates appearing for the parties, has arrived at a conclusion that the prosecution had proved the guilt of-the accused and testimony of P.W.1 was held as having supported the case of the prosecution. In other words, the evidence of P.W.1, who is the wife of the accused and the mother of deceased boy, came to be accepted in toto.
5. The eye-witness to the incident namely, P.W.3 turned hostile. However, she had deposed in the cross-examination that accused had given mental and physical harassment to P.W.2 and as such, it was held by the learned Sessions Judge that prosecution had proved the offence under Section 498-A of IPC against the accused.
6. The prosecution had rested its case on circumstantial evidence and as such, the evidence of P.W.14 i.e., father-in-law of accused, P.W.21-an elderly person of the village who had participated in the panchayath, though had turned hostile, came to be accepted on the ground that he had initially admitted that father-in-law of accused was intending to transfer land to the name of his grandson and said evidence would corroborate the case of the prosecution.
7. The learned Sessions Judge has also held that motive for the accused having committed the murder of his son is on account of his father-in-law intending to transfer 22 guntas of land in the name of the deceased boy and not to the name of the accused. In this background, the learned Sessions Judge has held that it is the duty of the accused to explain the reason for the death of his son Chandan. It is further held by the learned Sessions Judge that on account of non-explanation about the cause of death of his son by the accused as one of the strong circumstances or strong reason to believe the evidence of the P.Ws. 14 and 22. It is further held by the learned Sessions Judge that when there is an allegation against the accused that he is responsible for the homicidal death of Chandan certainly it would be the duty of the accused to explain as to who is responsible for the death of the boy Chandan other than him.
8. It is further held by the learned Sessions Judge that though accused had set up a plea that his wife - Geetha-P.W.1 had an illicit relationship with one Lokesha and he was insisting that she should desert her husband and join him as otherwise he would eliminate the boy had remained as a plea without proof and there was not even suggestion in the cross-examination to any of the prosecution witnesses that Lokesha had committed the murder of said Chandan and had buried his dead body. Learned Sessions Judge has arrived at a conclusion that though no direct evidence with regard to murder committed by the accused is available, the circumstantial evidence was held to be sufficient to arrive at a conclusion that accused had committed the murder of deceased Chandan by relying upon the evidence of P.W.3, who is said to have last seen the boy in the company of the accused on 19-8-2009 between 5.00 p.m. to 5.30 p.m. (though she had turned hostile). The evidence of P.W.4-Raghu has also been relied upon by the learned Sessions Judge to arrive at a conclusion that said witness also had last seen the deceased. In order to hold that there was motive on the part of the accused to eliminate his son; the evidence of father-in-law of the accused i.e., P.W.14 has been relied upon. Likewise, the evidence of P.Ws.7, 15 and 20 who were alleged to be witnesses to seizure of M.Os.1 to 4 has been relied upon by the learned Sessions Judge to hold that accused had committed the murder of his son Chandan. On these amongst other findings recorded by the learned Sessions Judge, a conclusion has been arrived at that prosecution has proved the guilt of the accused beyond reasonable doubt and as such, has convicted him for the offences alleged and sentenced him as already noticed hereinabove.
9. We have heard the arguments of Sri Vishwanath Poojari, learned Counsel appearing for the appellant-accused and Sri Vijaykumar Majage, Additional Special Prosecutor appearing for respondent.
Contentions raised on behalf of appellant-accused:
10. It is the contention of Sri Vishwanath Poojari, learned Counsel appearing for the appellant-accused that chain of events leading to conclusion of guilt of accused has not been proved by the prosecution beyond reasonable doubt; material on record creates a doubt about the occurrence of the incident itself as alleged by the prosecution. He would draw the attention of the Court that on 19-8-2009 when P.W.1, the wife of the accused was panic on account of the boy Chandan not to be found in the vicinity of their house, they had conducted a search operation in which accused had undisputedly participated and this fact had been clearly ignored by the learned Sessions Judge. He would also draw the attention of the Court to the evidence of P.Ws.3 and 4, who have turned hostile and as such, the learned Sessions Judge could not have relied upon their evidence to arrive at a conclusion that they had last seen the deceased child in the company of the accused. He would also further submit that evidence of other witnesses namely, P.Ws.5, 7, 14, 15, 20, 21, 22 and 28 relied upon by Trial Court to arrive at a conclusion that they had stated about the motive on the part of accused to commit the murder of Chandan is unbelievable since P.Ws.5,7,21 and 22 had turned hostile. He would also elaborate his submission by contending that P.Ws.1 and 14 are interested witnesses, and independent witnesses have turned hostile and entire material on record if perused in proper perspective, the only irresistible conclusion which can be drawn is that prosecution had failed to establish the guilt of the accused. He would also draw the attention of the Court to the testimony of the witnesses examined by the prosecution for being compared with the statements made by the said witnesses before the police, which would clearly establish the contradictions. Hence, he contends that there is serious error committed by the learned Sessions Judge in appreciating the available evidence and ignoring the contradictions in the evidence of the witnesses and thereby conviction of the accused is on an erroneous assumption that accused has committed the offence. Hence, he prays this Court for reappreciating the evidence available on record in proper perspective and acquitting the accused by allowing the appeal.
Contentions raised on behalf of prosecution:
11. Sri Vijay Kumar Majage, learned Additional State Public Prosecutor has supported the judgment and order of conviction passed by the learned Sessions Judge and contends that P.W.1 being none other than the wife of the accused has clearly supported the case of the prosecution and nothing has been elicited in her cross-examination to discredit her testimony and as such, he contends that there is no merit in the contention raised by the learned Counsel appearing for the accused. He would also contend that though there are some contradictions in the evidence of P.Ws.3 and 4, that by itself would not be sufficient to acquit the accused since the said inconsistencies are minor in nature and are to be ignored in the light of the evidence of the father of P.W.1 namely, the father-in-law of the accused-P.W.14 having stated in unequivocal words the motive on the part of the accused to murder his son, which, when read with the testimony of other witnesses would clearly establish the-motive and the accused having not explained his plea raised by way of defence namely, having raised a plea of alibi, the burden was on him to prove the said fact of he having not arrived at the village till 5.00 p.m. or in other words, he having been working elsewhere. Hence, in the absence of such defence being established, he would contend, learned Sessions Judge was justified in convicting the accused. He submits that there is no error committed by the learned Sessions Judge and as such, he prays for dismissal of the appeal.
12. Having heard the learned Advocates appearing for the parties and on perusal of the entire records secured from the Sessions Court and after bestowing our careful and anxious consideration to the evidence of prosecution witnesses and contentions raised at the bar, we are of the view that following points would arise for our consideration:
(i) Whether the learned Sessions Judge was justified in arriving at a conclusion that prosecution had established the guilt of the accused for the offence punishable under Section 498-A of IPC?
(ii) Whether the findings recorded by the learned Sessions Judge to arrive at a conclusion that accused was responsible for the homicidal death of Master Chandan and accused had buried the dead body of the child in the heap of dung as alleged by the prosecution, is just and proper?
(iii) Whether the learned Sessions Judge has considered the evidence tendered by the prosecution in proper perspective or there has been either improper or erroneous appreciation of evidence?
(iv) What order?
13. The facts in detail has already been delved upon by us hereinabove and as such, repeating the same would only burden the records. Hence, we desist from delving upon the facts in its entirety, except to the extent it is required for adjudicating the points formulated by us hereinabove.
Re: Point No. 1:
14. It is the specific case of the prosecution that marriage of the accused with the complainant came to be solemnised on 20-4-2006 and after birth of the child Chandan alias Chandu and accused started harassing his wife with a demand for dowry and as per the agreement arrived at the Panchayat held in the presence of C.W.18-Channaiah (P.W.14), C.W.3-Rajanna (P.W.21), C.W.4-Mariyappa (P.W.22), C.W.5-Kempaiah (P.W.2), it was agreed that 22 guntas of land would be transferred to the name of the accused by the father-in-law of the accused but later on, father-in-law-CW.18 insisted that land has to be transferred to the name of grandson Master Chandan alias Chandu and as such, accused was upset with this and started harassing his wife-P.W.1 to inform her father-C.W.18 to transfer said 22 guntas of land to his name only. It is also the case of the prosecution that mother of the accused-Smt. Kempagowramma, Sri Basavaraj - son of the first wife of P.W.14 and children of second wife-Sri Basavaraj alias Kulla and accused along with the sister-in-law of the accused were physically assaulting the complainant-Smt. Geetha-P.W.1 with a demand for dowry and thereby both physical and mental cruelty was meted out to P.W.1.
15. There is no dispute that complainant-P.W.1 being the wife of accused and their marriage having been solemnised on 20-4-2006 and a male child having been born out of the said wedlock. In order to drive home the guilt of the accused with regard to harassment of P.W.1 with a demand for dowry, prosecution relied upon the evidence of P.W.1 as well as P.W.14, apart from relying upon the evidence of Smt. Devamma-P.W.3 and Smt. Prema-P.W.20. Prosecution has partly relied upon the evidence of Sri Rajanna-P.W.21, who is an elderly person of the village and who is said to have participated in the panchayath.
16. In the process of answering Point No. 1 formulated by it appreciating the evidence in that regard, Trial Judge seems to have got confused with regard to appreciation of evidence of these witnesses. We say so for the reason that, learned Sessions Judge after having examined the evidence of the witnesses as noticed hereinabove, has proceeded to hold that there is motive on the part of the accused to commit the murder of his son and there being no explanation forthcoming from the accused for the death of his son, there are strong circumstances or strong reasons to believe that prosecution has established physical and mental harassment given by accused to P.W.1 and thereby it has connected said evidence to convict the accused for the offence punishable under Section 498-A of IPC vide paragraph 11 of the judgment. However, as to how this connection or nexus is there or established has not at all been discussed or a finding is recorded by the Trial Judge in that regard.
17. Be that as it may. The fact remains that P.W.1 is the complainant who is also the wife of the accused. In her complaint-Ex.P.2 she has not only stated that she was residing happily in her matrimonial home after the marriage and even after the birth of the child, but has also stated that about 1 years back prior to the incident of her son being murdered, she was being harassed by her husband and his members of the family on the ground that dowry given by them at the time of marriage was insufficient and on account of her father being unable to meet their demand, she was assaulted both physically and mentally by the accused and his family members. She has also deposed that there was a panchayath held in which P.Ws.21, 22 and 2 had participated and tried to resolve the dispute relating to transfer of 22 guntas of land to the name of accused. A perusal of the deposition of these witnesses would clearly disclose that P.W.21 had turned hostile. He has denied his statement-Ex. P. 18 made before the police, which came to be recorded under Section 161 of Code of Criminal Procedure, 1973. However, in his examination-in-chief he admits that a panchayath was held on account of accused having demanded that father of complainant (P.W.14) should transfer 20 guntas of land in favour of accused. P.W.22, who is also an elderly person of said village, has deposed that there was a dispute between the accused and his father-in-law (P.W.14) with regard to transfer of 22 guntas of land, which had been agreed to be transferred to the name of accused and in that regard a panchayath having been held. The evidence of P.W.2 would also indicate that there was an agreement between the accused and her father- P.W.14 for transfer of 22 guntas of land in favour of son of the accused. Likewise, P.W.21-Rajanna, who had participated in the panchayath, has stated in his examination-in-chief itself that said panchayath was held to resolve the issue relating to transfer of 20 guntas of land in favour of the accused. He has also deposed that a demand for the said land had been made by the accused. So also P.W.22-Mariyappa, one of the panchayathdars, has clearly deposed that accused had made a demand for transfer of 22 guntas of land to his name for marrying P.W.1. He has admitted to the statement-Ex.P.19 made by him before the Investigating Officer. P.W.28 has also spoken about transfer of 20 guntas of land to the name of the accused by the father-in-law of the accused.
18. The evidence of above referred witnesses would clearly establish two facts namely: (1) at the time of marriage between accused and the complainant-P.W.1, the father of P.W.1 i.e., P.W.14 had agreed to transfer 22 guntas of land to the name of accused; and (2) a panchayath having been held in this regard in which these witnesses had participated. However, none of these witnesses have stated of any harassment having been meted out by the accused to the complainant-P.W.1 in that regard. In fact, none of these witnesses have deposed about alleged Rs.80,000/- having been paid to the accused by P.W.14 except the self-serving testimony of P.Ws.2 and 14 viz., complainant and father of the complainant, who are interested witnesses. On the other hand, P.W.1 has clearly admitted in her cross-examination dated 11-9-2010 that she was leading a happy married life with the accused for two (2) years. The independent witness-P.W.20-Smt. Prema, who is also a good friend of the complainant-P.W.1, has stated both accused and the complainant were in cordial and good terms and he was taking good care of his wife and son. She being a good friend of the complainant and having stated in her examination-in-chief as well as in her cross-examination, about on-goings in the family of the accused and complainant being discussed between them, she would not have failed to state about any harassment, if any, being meted out by the accused to the complainant-P.W.1. In fact, none of the witnesses have spoken about the alleged payment of Rs.80,000/- by P.W.14 to the accused except P.W.1 (wife). There are no earlier complaints about any alleged harassment of P.W.1 by the accused for harassing her with a demand for dowry. Undisputedly, the house where the accused and the complainant-P.W.1 were residing is just located about 200 mtrs. away from the house of P.W.14 i.e., father of the complainant and if there were any incidents of harassment of alleged dowry by the accused, either the neighbours would have stated so or at least there would have been a complaint filed by P.W.1 or her father-P.W.14 in this regard to the jurisdictional police or they would have complained to the elders of the village. However, none of these events had happened. In fact, in the inquest panchanama-Ex. P. 13 to which P.W.14-father of P.W.2 is a witness has clearly stated that his daughter was happy at her matrimonial home. He does not state about any dowry having been given at the time of the marriage to the accused. The complainant namely, wife of the accused has also not stated about any dowry having been demanded or being paid at the time of her marriage to the accused.
19. It is trite law that charges made against the accused must be proved by the prosecution beyond all reasonable doubts and the requirement of proof would not lie in the realm of surmises and conjectures. Keeping this principle in mind, the evidence tendered by the prosecution has been evaluated by us and noticed that, except the self-serving testimony of P.Ws.1 and 14 namely, the wife and father-in-law of the accused, no other substantial evidence has been placed by the prosecution to prove the guilt of the accused for the offence punishable under Section 498-A of IPe. None of the independent witnesses have stated about any harassment meted out by the accused to his wife-P.W.1 at any point of time. In fact, it requires to be noticed at the cost of repetition that close friend of complainant namely, Smt. Prema-P.W.20 has clearly admitted in her cross-examination dated 22-9-2010 that accused was taking good care of his wife and son which is also the statement made by the father-in-law of accused-P.W.14 as recorded in the inquest panchanama-Ex.P.13. In the absence of any positive evidence tendered by the prosecution about harassment meted out by the accused to the complainant-P.W.1, Court cannot draw any presumption of such harassment having been inflicted by the accused on P.W.1 so as to attract the provision of Section 498-A of IPC.
20. As already discussed hereinabove, the learned Sessions Judge while considering the purported motive on the part of accused namely, to obtain 22 guntas of land from his father-in-law had committed murder of his son, has jumped to a conclusion of P.W.1 having been harassed mentally and physically in that regard, though there is no such iota of evidence available on record. Hence, we are of the considered view that Point No. 1 formulated hereinabove deserves to be answered against prosecution and in favour of the accused. In other words, prosecution has failed to establish that P.W.1 having been harassed by the accused so as to attract Section 498-A of IPC.
Re: Point Nos. 2 and 3:
21. Since discussion on Point Nos. 2 and 3 would overlap, these points are taken up together for adjudication.
22. As could be seen from the discussion made by the learned Sessions Judge, he has proceeded on the footing that when there is an allegation made against the accused that he is responsible for the homicidal death of his son Master Chandan, a duty is cast on the accused to explain as to who is responsible for the homicidal death of Chandan other than him and accused having failed to discharge said burden, order of conviction came to be passed. Learned Sessions Judge has virtually held that accused has to prove his innocence, which cannot be accepted at the threshold, for the simple reason that burden of proving the guilt of the accused always rests on the prosecution and not otherwise. Even in a case where the burden is on the accused, it is well-known that the prosecution must prove the foundational facts as held by the Hon’ble Apex Court in State of Maharashtra v Dnyaneshwar Laxman Rao Wankhede (VI(2009) SLT 439: 2009 AIR SCW 5411), 2009 Cri. L.J. 4425 (sq. Burden of proof cannot be shifted on the accused as held by Hon’ble Apex Court in Dhanapal v State by Public Prosecutor, Madras (2009(82) AIC 160 (SC) : VII(2009) SLT 413), 2009 Cri. L.J. 4647 (SC).
23. In this background, we have examined the records and considered the evidence in threadbare tendered by the prosecution witnesses which has been relied upon by the learned Sessions Judge to convict the accused for the offence punishable under Section 302 of IPC.
24. At the outset, it requires to be noticed that the motive which has been alleged against the accused is that, he had demanded his father-in-law to transfer 22 guntas of land to name of accused as dowry and on account of his father-in-law-P.W.14 having stated that it would be transferred to the name of the son of the accused, same had enraged the accused to commit the murder of his son, since accused alone intended to enjoy said property. It is but common that property standing in the name of a minor son would be enjoyed by the parents during the period of minority of a child. Likewise, on son attaining majority the property belonging to the father would be enjoyed by his son, which is the normal situation prevalent in the Indian society. This fact cannot be lost sight of. Hence, at the first instance, it has to be noticed that motive alleged by the prosecution against the accused for committing the murder of his son is quite unnatural and even otherwise, accepting for a moment that there was a demand made by the accused for transferring 22 guntas of land belonging to his father-in-law to his name and father-in-law had not agreed to transfer the same to the name of the accused but to the name of minor son of the accused, same cannot be attributed as a motive for committing the murder of his own son by the accused, particularly when the father-in-law-P.W.14 had already agreed for transferring the land to the name of his grandson i.e., Chandan who was then aged about 2 years. 25. In this background, the evidence of prosecution witnesses will have to be analysed to find out, as to whether the circumstances prevailing in the instant case would establish the guilt of the accused and all such circumstances surrounding the death of the child would pinpoint the guilt to the accused alone.
26. Two important witnesses, who have been examined by the prosecution to explain the circumstances which had led to the death of the child are - Smt. Geetha-P.W.1-wife of the accused and mother of the deceased child and Sri Channaiah-P.W.14-father-in-Iaw of the accused and father of the complainant-P.W.2.
27. A perusal of the deposition of P.W.1 would disclose that she has admitted that after marriage she was residing with her husband (accused) in her matrimonial home, which is at a distance of about 200 mtrs. from her father’s house. She has also admitted that her husband was working as a driver in a tractor. She further states one week prior to the death of her son there was a dispute between her and the accused and accused had assaulted her and her son. She further deposes her eo-sister had resolved the said dispute. However, the eo-sister of the complainant has not been examined. She has further deposed that on 19-8-2009 at about 4.30 p.m. she went to her father’s house to have bath and had taken her son with her and she had paid one rupee to her son to purchase shampoo from the nearby shop and her son had been to the shop to purchase the shampoo and had purchased it and given it to her. She has also deposed that her deceased son was playing in front of her father’s house viz., while she was having her bath. She has further deposed that she saw her husband sitting in the temple located in front of her father’s house. She categorically states in her examination-in-chief that when she returned after bathing, she was asked by her mother who had just then returned from the agricultural field as to whereabouts of the child and could not find the child near the house and as such, they searched in all nearby places and in the search operation, her husband was also involved. She has further deposed that on the next day she was informed by Sri Channegowda-P.W.7 that accused had taken the child from the nearby shop on the pretext of getting him eatables-snacks and had killed him. She has also deposed that Sri Mariyappa-P.W.22 had informed her that her child had been dumped in a waste heap. She states that she immediately along with Smt. Prema-P.W.20 rushed to the spot where the dead body of her son was said to be buried and saw the hand of the child protruding from the pit and body being inside the pit/heap, she identified it to be that of her son. She further deposes that a flat stone had been kept over the pit and on seeing the protruding hand, she identified the said body as that of her child.
28. Her evidence raises not only suspicion but also the circumstances she has explained does not tally or inspire confidence for being accepted for reasons more than one. Firstly, it is to be noticed that statement made on oath is at variance with the contents of the complaint-Ex.P.2. In the complaint lodged byP.W.2 on 20-8-2009- Ex.P.2 she has not even whispered about she having gone to her father’s house for the purpose of bathing or having sent her son to buy shampoo and these facts have been stated by her for the first time in her evidence on 17-9-2010. Thus, it would give rise to suspicion.
Secondly, Sri Chennegowda-P.W.7 who is said to have informed P.W.2 about accused having taken the deceased child to the nearby shop on the pretext of getting eatables, also has been examined. He has turned hostile and has denied seizure of M.Os.1 to 4 in his presence. He has specifically denied of having seen the accused along with the child on 19-8-2009. Though he has been cross-examined, it does not disclose anything worthwhile having been elicited from this witness. In fact, he has clearly admitted that accused was taking good care of P.W.1. Likewise, when evidence of Sri Mariyappa-P.W.22 is also perused, it would disclose that he has also turned hostile and his statement-Ex.P.19 said to have been recorded by the Investigating Officer which has been relied upon by the prosecution has been disowned by him. He does not state anything about having informed P.W.1 about the death of the child or the place where dead body of the child having been found. He has admitted that he had not seen the dead body of the child or having found the same in the pit/heap. On the other hand, he states that he had seen the dead body of the child when it had been laid on the mat. Thus, the evidence of P.Ws.7 and 22 would not disclose about P.W.2 having been informed about dead body of the child being found or the seizure of MoOs.1 to 4. Thus, circumstances leading to deceased child absconding from the company of P.W.2 has not been proved by prosecution.
29. Yet another circumstance which the prosecution has relied upon to drive home the guilt of the accused is, the evidence of the shop owner Smt. Devamma-P.W.3. It would not detain us for too long to brush aside her evidence, for reasons more than one. Firstly, she has turned hostile and has disowned statement. Secondly, she clearly states in her examination-in-chief itself that deceased child had visited her shop and had paid Re. 1/- for purchasing eatable and her statement would disclose that accused had not accompanied the child. Her statement reads as under:
She has not deposed about the child having been accompanied by accused or the child having purchased shampoo packet from her shop as claimed by P.W.2. She has specifically denied suggestion made to her in the cross-examination that accused had accompanied deceased child. It reads as under:
Though in the cross-examination, she admits to have given a statement before the police about accused having treated the complainant-P.W.1 with cruelty and accused having committed murder of the child with an intention to enjoy the property, if the land is transferred to the name of child, she clearly admits in her cross-examination that she is not aware as to what was written by the police in the statement recorded by them. In fact, jurisdictional police, during the course of investigation, have not recorded statement of P.W.3 at all, though P.W.1 states that she was informed by P.W.7 about accused having taken the child to the shop of P.W.3. In fact, the prosecution has relied upon the statement of P.W.7 and his statement-Ex.P.10 recorded on 26-8-2009. Said statement i.e., Ex.P.10 and deposition of P.W.7 does not disclose about P.W.7 having informed P.W.1 about accused having taken or accompanying e child to the shop of P.W.3 on the date of the incident. In fact, suggestion made to P.W.22 in this regard has also been denied by him. As already noticed hereinabove, statement of P.W.22 as recorded by the police as per Ex. P. 19 has been denied by P.W.22. In the statement -Ex.P.19 it is recorded as under:
When the complainant-P.W.1 has categorically stated in her statement that she had handed over Rupee 1/- to her deceased son to purchase shampoo from the nearby shop and she had permitted him to buy eatables from the nearby shop, the intriguing question which has remained unanswered is, as to why the prosecution had not recorded the statement of P.W.3 namely, owner of the said shop during the course of investigation. Thus, prosecution has failed to discharge the initial burden cast on them.
30. Prosecution has relied upon the evidence of P.Ws.4 and 5 namely, residents of the village from which accused and complainant hail from. A perusal of the deposition of P.W.4 would disclose that he has been examined to prove the circumstance of last seen theory namely, the deceased child was last seen in the company of the accused. P.W.4 has turned hostile and has disowned the statement-Ex.P.6 recorded by the police. So also, P.W.5 has disowned his statement-Ex.P.7. There is no other corroborative evidence placed by the prosecution to accept the evidence of P.Ws.4 and 5.
31. The mere fact that accused and deceased were together prior to the occurrence of the incident does not by itself lead to an inference that accused must have murdered the deceased. Hon’ble Apex Court in the case of Malleshappa v State of Karnataka (2007(60) AIC 185 (SC) : VIII(2007) SLT 383: 2007 AIR SCW 6100 : 2007(11) Scale 347: 2007(8) SCJ 689), AIR 2008 SC 69 has held that in case of circumstantial evidence relied upon by prosecution pressing into service 'last seen together' theory and if there is no proximity of time and place between 'last seen' evidence and recovery of dead body, then singular circumstance of 'last seen' evidence would not be sufficient to base the conviction. It was held:
'24. In the present case also, of the appellant. This singular piece of circumstantial evidence available against the appellant, even if the version of P.W.10 is to be accepted, is not enough. It is fairly well-settled that the circumstantial evidence in order to sustain the conviction must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused. It is true as has been held by this Court in Lakshmi and Others v State of Uttar Pradesh, (2002)7 SCC 198 that it is not an inflexible rule that the identification of the body, cause of death and recovery of weapon with which the injury may have been inflicted on the deceased though are factors to be established by the prosecution but it cannot be held as a general rule and broad proposition of law that where these aspects are not established, it would be fatal to the case of the prosecution and in all eventualities, it ought to result in acquittal of those who may be charged with the offence of murder provided the charges against the accused otherwise can be established on the basis of the other reliable and trustworthy evidence.'
32. Where there is variance in the evidence of the witnesses who are said to have last seen the deceased in the company of accused, the conviction of the accused under Section 302 of IPC would not be proper. For this proposition, judgment of the Hon’ble Apex Court in the case of Tipparam Prabhakar v State of Andhra Pradesh (V(2009) SLT 94), 2009 Cri. L.J. 3032 (SC) can be looked up.
33. The theory of last seen together is extremely a weak piece of evidence and in the event of such circumstances could not be proved sufficiently by the prosecution, conviction based on such weak evidence cannot be upheld. In the instant case, prosecution has relied upon the statement of P.W.22 which came to be marked as Ex. P.19 which statement has been disowned by P.W.22 as already noticed hereinabove. Even otherwise, statement of P.W.22 recorded by the police as per Ex. P. 19 does not inspire confidence for being accepted, inasmuch as, P.W.22 states that at about 5.30 p.m. he saw deceased taking the child on the pretext of getting him eatables. He states at that time he was sitting near the school located at the village. However, no other person who were sitting nearby school have been examined by the prosecution. Though prosecution has made an attempt to corroborate this piece of evidence by relying upon the statement made by P.W.7 as per Ex.P.10, it has not been successful. Though in his examination-in-chief, P.W.22 has stated that P.W.7 received a phone call from police informing that accused had surrendered before them. P.W.7 has not stated so in his evidence. Thus, inconsistencies in the evidence of P.Ws.7 and 22 are atlarge.
34. Further, P.W.1-complainant herself admits that between 5.00 p.m. and 6.00 p.m. of 19-8-2009 that accused had joined her in the search operation of the missing child. Thus, chain of events to connect the accused
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to the murder is missing. Only in the event of prosecution being able to establish that accused was last seen with the deceased, the burden was upon the accused to prove as to what happened thereafter since it can be easily inferred that it was the accused alone who was present along with the deceased child and facts would have been within his personal knowledge and failing to discharge said burden, a presumption could have been drawn against the accused. Thus, chain of circumstantial evidence without any missing link alone can be the reason for convicting the accused for the offence punishable under Section 302 of IPC and not otherwise. 35. Apart from the above discussed aspects, some inconsistencies in the evidence of the prosecution witnesses will also have to be highlighted, which has been completely ignored by the learned Sessions Judge. 36. P.W.23-Tahsildar who conducted the inquest panchanama as per Ex.P.13 has stated that he had seen the body of the child after the same was extracted from the pit where it had been dumped. He has deposed to the following effect: (LANGUAGE) 37. The above statement of P.W.23 would clearly disclose that he saw the dead body of the child which had been kept in a plastic cover. He states only after the stone which had been closed over the pit was removed, dead body of the child which had been dumped in the pit could be extracted. Whereas, P.W.22-Mariappa states by the time he went near the pit/heap, the dead body of the child had already been extracted from the pit. His statement reads as under: (LANGUAGE) 38. Thus, there is inconsistency between the statements of P.Ws.22 and 23. The evidence of P.W.22 would also disclose it is a hearsay evidence and as such, it cannot be relied upon. This evidence of P.W.22 when juxta posed with the deposition of the complainant-P.W.1, it would clearly indicate that inconsistencies in their statements is too wide or at variance and it is difficult to be believed. On the one hand, P.W.1 states when she went near the pit along with P.W.20-Ms. Prema where she saw the hand of the child protruding from the pit i.e., even before dead body of the child could be retrieved. Whereas, contents of inquest panchanama-Ex.P.13, statement of P.W.22 as recorded under Ex. P. 19, deposition of P.Ws.22 and 23 does not reflect this factual aspect. That apart, perusal of photograph-Ex.P.11 does not corroborate with the statement of complainant-P.W.1. In the absence of such corroboration, reliance cannot be placed on their evidence to convict the accused. 39. P.Ws.1 and 20 both have stated that Sri Mariappa-P.W.22 informed them about the dead body of the child found in the pit/heap on 20-8-2009. However, the statement of Sri Mariappa-P.W.22 recorded by the police as per Ex.P.19 is silent on this aspect. In fact, P.W.22 also does not state of having informed the complainant-P.W.1 about the dead body having been found in the agricultural field of the accused. One important factor which cannot go unnoticed by us is, witnesses examined on behalf of the prosecution namely, P.Ws.1, 14 and 22 have all admitted that on 19-8-2099 and 20-8-2009 during the search operations that was being conducted to find the missing child, accused had also taken active part in said search operation. It has also remained on record that accused was present at the village on both these days. Hence, the learned Sessions Judge was in error in convicting the accused based on circumstantial evidence. Hence, we are of the considered view that Point Nos. 2 and 3 formulated hereinabove deserves to be answered in favour of the accused. 40. For the reasons aforestated, we are of the considered view that judgment and order of sentence convicting the accused for the offence punishable under Section 302 read with Section 498-A of IPC cannot be sustained. Hence, we proceed to pass the following: JUDGMENT (i) Criminal appeal is hereby allowed. (ii) Judgment and order of sentence dated 15-3-2011 passed in SC No. 23 of 2010 by I Additional Sessions Judge, Tumkur and sentencing the accused for the offence punishable under Sections 498-A, 302 and 201 of IPC is hereby set aside and appellant-accused is acquitted of the said offences. (iii) Appellant is ordered to be released from imprisonment forthwith if his presence is not required in any other case.