MADHU Vs. STATE OF KARNATAKA

JUDGEMENT

(1.) The above said two appeals are arising out of common judgment passed by the V Additional District and Sessions Judge, Mysuru, in Sessions Case No. 303 of 2012, dated 18-3-2016. Accused 1 has preferred an appeal before this Court in Criminal Appeal No. 845 of 2016 challenging the judgment as he was convicted for the offences punishable under Sections 302 and 201 of the Indian Penal Code, 1860 (for short, "the IPC"). However, the appellant in Criminal Appeal No. 597 of 2006 originally filed before the learned Single Judge as accused 2 was convicted for the offence punishable under Section 201 of the IPC and acquitted for the offence punishable under Section 302 of the IPC. As both the cases are arising out of common facts and also legal aspects, they are taken up together for disposal.

(2.) The learned Sessions Judge has convicted accused 1 for the offence punishable under Section 302 of the IPC and sentenced him to undergo imprisonment for life and to pay a fine of Rs. 25,000/- and also convicted him for the offence punishable under Section 201 of the IPC and sentenced him to undergo imprisonment for 2 years and to pay a fine of Rs. 5,000/-. Accused 2 was convicted for the offence punishable under Section 201 of the IPC and sentenced him to undergo imprisonment for 2 years and to pay a fine of Rs. 5,000/- with default sentences. Aggrieved by the judgment of conviction and order of sentence, both the appellants have preferred the appeals.

(3.) Sri Hashmath Pasha, learned Senior Counsel for the appellants, has submitted before the Court that, almost all the witnesses examined on behalf of the prosecution have turned hostile including the mother and the brother of the deceased. There is no recovery at the instance of the accused. The circumstantial witnesses, as projected by the prosecution, have also turned hostile to the prosecution. The only link, relied upon by the Sessions Judge is that, the deceased and accused 1 and 2 were ordinarily residing together. Therefore, they have not explained how the death has occurred on the particular date, when particularly the death of the deceased was due to smothering and strangulation. Therefore, taking series of non-explanation by the accused, the Trial Court has convicted the accused persons for the above said offences. Even the Trial Judge has acquitted accused 2 for the offence punishable under Section 302 of the IPC. The same yardstick has not been extended in so far as accused 1 is concerned. Therefore, there is absolutely no evidence to connect the accused persons to the case. There is absolutely no evidence to show that any of the accused persons were present at the relevant date, time and place of the incident. Therefore, the prosecution itself has not established its case beyond reasonable doubt. Therefore, the Trial Court could not have relied upon Section 106 of the Indian Evidence Act, 1872, for the purpose of drawing an inference without any proof therein. It is only a moral conviction recorded by the Trial Court drawing some inference which is illegal and therefore, the observation made by the Trial Court deserves to be set at naught. Hence, he prays for acquittal of the accused.