In the High Court of Karnataka Dharwad Bench

IN THE HIGH COURT OF KARNATAKA DHARWAD BENCH

ON THE 25 TH DAY OF JANUARY, 2017

BEFORE

THE HON’BLE MR.JUSTICE RAVI MALIMATH AND THE HON’BLE MR.JUSTICE K. SOMASHEKAR

CRIMINAL APPEAL No.2866/2012

BETWEEN:

PADMAKAR @ PADDU ABHAY UPADHEY @ PANDI AGE:25 YEARS, OCC:NIL, R/O:CHICHALI ROAD, RAIBAG NOW AT CENTRAL PRISON, BELGAUM. ... APPELLANT

(BY SRI. A.G.MULAWADMATH, ADVOCATE)

AND:

THE STATE OF KARNATAKA REP. BY STATE PUBLIC PROSECUTOR DHARWAD.

... RESPONDENT (BY SRI. V. M. BANAKAR, ADDL. SPP)

---- 2

THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374(2) OF THE CODE OF CRIMINAL PROCEDURE SEEKING THAT THE JUDGMENT OF CONVICTION AND ORDER OF SENTENCE DATED 10.04.2012 PASSED BY THE FAST TRACK & ADDL. SESSIONS JUDGE, HUKKERI, IN S.C.NO.149/2011 AND THEREBY CONVICTING THE APPELLANT AND SENTENCING HIM TO UNDERGO IMPRISONMENT FOR LIFE AND FINE OF RS.1,00,000/- FOR THE OFFENCES UNDER SECTION 302 OF IPC AND ETC.

RESERVED ON 04.1.2017

PRONOUNCED ON 25 .01.2017

THIS CRIMINAL APPEAL HAVING BEEN HEARD AND RESERVED FOR JUDGMENT ON 04.01.2017 COMING ON FOR PRONOUNCEMENT THIS DAY, K. SOMSHEKHAR J. DELIVERED THE FOLLOWING: JUDGMENT

This appeal is by the convicted accused against the judgment and order of conviction passed by the Fast Track and

Additional Sessions Judge, Hukkeri in S.C.No.149/2011 dated

10.04.2012.

2. The brief facts of the case of the prosecution is as under:

That the accused had made friendship with the deceased

Satish three months prior to the death of the deceased. There was a love affair between the accused and PW18-Amruta and the 3

accused intended to marry her but he was not having sufficient money to marry her. The accused found that deceased Satish was always having cash with him, wearing gold ornaments in his neck and fingers, mobiles and used to move with Bajaj Pulsor motorcycle. He made a plan to take away his life by assuring deceased Satish that he will provide driving licence to him and called him to Gadadbasti. On 29.01.2011, at about 15:30 hours, when the deceased Satish went near Gadadbasti, the accused assaulted him with spade on his head, left ear, right eye and caused grievous injuries to him. Further, he assaulted the deceased with punch and caused his murder. Subsequent to the murder, in order to cause destruction of the evidence of the murder he had put the dead body of the deceased Satish in a gunny bag and shifted the said dead body in Bajaj Pulsor motorcycle belonging to the deceased within the jurisdiction of

Hebbal village near Hiranyakeshi River on NH4 road and threw the said dead body in the open space on the side of the NH4 road by taking away the gold chain, rings, ear Bale, mobiles, cash 4

packet and so also Bajaj Pulsor motorcycle. CWs.16 to 20 searched for the deceased Satish and ultimately they telephoned to the complainant who was at Belgaum. The complainant, while coming from Belgaum in his car found gathering of people near

Hiranyakeshi river on the side of the road and found a gunny bag and when certain part of the gunny bag was opened he saw the dead body of his son. Subsequently, he went to Sankeshwar

Police Station and filed complaint before CW.47-PSI.

On the basis of the complaint-Ex.P1 lodged by the father of the deceased Satish, a case came to be registered by CW47 against the accused in Crime No.31/2011 and FIR was sent to the Court. Subsequently, he proceeded to the spot along with staff members where the dead body was lying. Later, it was handed over to CW.48-CPI, who had come to the spot for investigation.

Subsequently, the Investigating Officer has investigated the case and laid the charge sheet before the Committal Court. The charge was framed against the accused. The accused pleaded not guilty, but claimed to be tried. 5

In order to prove the guilt against the accused, the prosecution in all examined 37 witnesses and got marked

60 exhibits and 38 material objects. The trial Court, on evaluation of the entire material on record and after hearing, convicted the accused for the offences punishable under Sections 302, 201 and

404 of IPC.

On behalf of the defence, learned counsel for the accused has got marked Exs.D1 to D3. The statement of accused under

Section 313 of Cr.P.C. was recorded.

The Sessions Judge, on appreciation of the evidence on record has held that the appellant/accused is guilty of the offence punishable under Sections 302, 201 and 404 of IPC and he was sentenced to undergo imprisonment for life and to pay a fine of

Rs.1,00,000/- in default, to undergo imprisonment for a period of three years for the offence punishable under Section 302 of the

IPC. He was further sentenced to undergo rigorous imprisonment for period of three years and to pay a fine of

Rs.10,000/- in default, to undergo imprisonment for a period of 6

one year for the offence punishable under Section 201 of the IPC.

He was further sentenced to undergo rigorous imprisonment for a period of one year and to pay a fine of Rs.5,000/- in default to under go imprisonment for a period of three months for the offence punishable under Section 404 of the IPC and all the sentences shall run concurrently.

Aggrieved by that, the appellant/accused has preferred this appeal.

3. The learned counsel for the appellant, during the course of arguments, contended that the learned Sessions Judge has misread the evidence as well as misdirected the evidence placed by the prosecution to prove the guilt against the accused though there are discrepancies and inconsistencies found in the evidence of the prosecution putforth by examining PW1- complainant, PW2- wife of the complainant and PW3-brother’s son of the complainant whereas in the evidence of PW1 it reveals that after the receipt of the information about missing of his son

Satish, he left Belgaum. While he was on the eastern side of NH4 7

road, he found people gathered near Hiranyakeshri River towards the extreme side of NH-4 Highway. The evidence of PW1 is not reliable for the prosecution because as per Ex.P36, NH4 Highway is 4 way lane, out of that 2 lanes goes towards Mumbai and 2 lanes towards Bengaluru and having divider with thick bushes in the middle. The dead body was fallen near the service road which is about 4-5 ft. deep down to the main Highway. The complainant, practicing as an Advocate, has specifically stated in his complaint as well as in the evidence that Dr.Basavaraj

Yamakanmardi’s grand daughter was having love affair with his son and his followers have dashed motor cycle to his son and gave life threat to him. Based on the complaint-Ex.P1, the police have registered the criminal case against Dr.Basavaraj

Yamakanmardi but have not made any investigation to that effect and left the said Dr.Basavaraj Yamakanmardi scott-free.

Therefore, the investigation conducted by PW37 being an

Investigating Officer found to be partial for the prosecution and also defective found in the investigation done by him. Neither 8

PW1 nor PW2 or PW3 being the material witnesses for the prosecution have specifically stated that the deceased Satish was wearing gold items such as gold rings, ear baley, having bundle of money in his pocket while leaving the house at 2.30 p.m. on

29.01.2013, but their evidence are not consistent to each other, as there are discrepancies.

4. Learned counsel for the appellant has submitted in his written arguments wherein it is contended that;

PWs.4 and 5 have stated in their evidence they are good friends to each other and to whom the accused has made extra judicial confession. It is on record that the accused obtained the cell number of PW4 from PW6. If accused and PW4 were good friends to each other, question of collecting the cell number from

PW6 does not arise. Neither PW4 has stated in his evidence that he has seen the dead body on 29.01.2011 nor he has whispered about the commission of the offence by the accused till

04.02.2011. Therefore, how the police learnt that accused has made confession to PWs.4 and 5 and how the I.O. contacted 9

PWs.4 and 5 is not coming on record. Therefore, PWs.4 and 5 are concocted and planted witnesses. PWs.4 and 5 are being the strangers and the accused confessing to them does not arise.

PW6 has stated in his evidence that he saw the deceased

Satish and accused near Gadadbasti is not believable because he too have not stated this fact to anybody till 03.02.2011.

PW7 has stated in his evidence that he is a businessman and he had filled the water to the tank of the Gadadbasti and on next day there was a marriage at Basti and the accused has helped him in filling the water but he went hurriedly. The evidence of this witness is also not helpful for the prosecution.

PW8 has stated in his evidence that he is a businessman and he sells Radium and accused came to get affixed the Radium is a concocted story only to show that the accused had come with the Bajaj Pulsor motorcycle of the deceased. However, it is contradictory to the common sense as to how a person if he has really committed murder can he go to the Radium shop and affix 10

radium sticker to the motorcycle not belonging to him. The evidence of this witness is also not helpful for the prosecution.

PW9 has stated in his evidence that he is a mechanic. He has specifically stated that the accused lost key of the motor cycle.

Therefore, he assisted the accused by cutting the key portion of the motor cycle. This evidence of witness is created by the prosecution to show the presence of the accused with motor cycle. Hence, it is not helpful for the prosecution.

PW10 is a Manager of a Dhaba. He has stated in his evidence that he served the food to the accused. But, in the cross-examination he admits that because of rush in the evening the servers will serve the food and not he. This witness is also a planted witness. The evidence of this witness is also not helpful for the prosecution

PW12 is a mobile shop owner of Nasik. This witness is also created by the prosecution that he has link with PW13 to show that the accused sold the gold chain to PW13 and got an 11

amount of Rs.15,000/-. However, PW12 has not maintained any register for having given the new cell phone to the accused. The police have not recovered old phone from the shop of PW12.

Hence, the evidence of this witness is also not helpful for the prosecution

PW13 is a goldsmith of Nasik. He has not maintained any register for having taken gold chain from the accused and for having paid the money. The alleged god chain as per MO-18 is planted to implicate the accused in the alleged crime.

PW14 is a resident of Hospet and he knew the accused. It is stated in his evidence that the accused requested him to call the deceased Satish that he will provide driving licence. As such, he called him on 26.01.2011 and on 29.01.2011 and asked the deceased to come to RTO office along with the accused. As this evidence of PW14 for the prosecution is unreliable because the police have not collected any material to show that the accused and PW14 were friends to each other. 12

PW15 is the owner of MO-24 Punch (weapon). He gave the same to the accused on 28.01.2011. Till the arrest of the accused by the police on 17.02.2011, the accused was keeping the said weapon in his pocket measuring about 9.5 cm x 4.5 cm in length and having a sharp edged knife portion of 9.5 cm length appears to be unbelievable.

PW16 has stated in his evidence that he collected Mos.25 to 27 from the back water of Krishna river at the say of the police and accused, but the said MOs.25 to 27 were not belonging to the accused and there is no material to that effect to connect the said

MOs. to the accused.

PW17 being the employee in Shrivastha Lodge at Birur had maintained Ex.P5-register of the said Lodge. The prosecution claims that the accused stayed in the said lodge, met PW18 and left Bajaj Pulsor MO-14 at Birur, is totally a false story set up by the prosecution. In the said lodge, it is manipulated by the prosecution in order to implicate the accused in the alleged crime. 13

PW18 has stated in her evidence that she is the resident of

Birur and she met the accused on 30.01.2011 and had tea with him. She has admitted in her cross-examination that she do not have any mobile. Prosecution attempted to connect the accused with PW18 with a false story of love affair between them and attempted to establish that the accused wanted to marry her and due to shortage of fund, he murdered the deceased Satish and collected money and golden ornaments worn by him. This theory has been set up by the prosecution and the same has not been proved by placing the evidence beyond all reasonable doubt as in the evidence of PW18, she has not stated that she was loving accused and intended to marry him. If she was loving him there will be exchange of messages, exchange of calls/letters/ photographs and possibilities of repeated meetings. But, none of such things have been established by the prosecution. Therefore,

PW-18 is a concocted and created and planted witness to implicate the accused. 14

PW23 being the panch witness in respect of the inquest panchanama. He is a concocted witness and no inquest was conducted at the spot because he was expected to go to Belagavi to attend a meeting at KLE Society. Therefore, attending inquest panchanama by dropping to go to Belagavi is not correct and the same has been created by the prosecution.

PW24 is a panch witness to the scene of offence at

Gadadbasti. He was studying in MSW course at Mangalore and he will not be having holidays in the month of February.

Therefore, he coming to Raibag and participating as a panch witness is false. As this witness being the resident of Diggewadi and the complainant-PW1 is also resident of Diggewadi, he is made as planted witness by the prosecution.

PW25 is also a panch witness for having seen the MOs.15,

24 and 30 in the police station which were shown to PWs.1 and 2 and also the pancha of scene of offence at Gadadbasti and other panchanamas. As this witness is being created by the prosecution to prove the guilt against the accused. 15

PW30 being the medical officer who conducted the autopsy over the dead body as per Ex.P23. According to the prosecution, the deceased died at about 3.30 p.m., and the post mortem was conducted at 3.00 p.m. on 30.01.2011. Therefore, the existence of Rigor Mortis all over the dead body appears to be against the evidence of PW30.

PW31 is the seller of SIM and he in his evidence has stated that he has sold SIM of Vodafone No.9620187322 to one Sanju

Shandage, who in turn sold to PW36. Therefore, the cell

No.9620187322 does not belong to the accused but the same has been created by the prosecution to prove the guilt of the accused.

PW25 being the PSI has registered a criminal case bearing

Sankeshwar P.S.Crime No.31/2011 and also recovered MO-14

Bajaj Pulsor by PWs.37 and 35 being I.Os. who conducted investigation by recording the statement of the witnesses and conducted mahazars and laid charge sheet, appears to be concocted since nobody explained to them regarding the parking 16

of MO-14 at Birur. This has been created by the prosecution to implicate the accused.

5. Based on the oral as well as written arguments it is submitted that the entire case of the prosecution is based on the circumstantial evidence. The prosecution has not been able to putforth cogent, corroborative and positive evidence to probabalise that the accused committed the murder of the deceased, who is none other than his friend. The alleged motive is that the accused intended to marry PW18-Amruta. Since there was shortage of money he wanted to take away the life of the deceased Satish as he was wearing gold ornaments, having sufficient cash in his pocket, mobile phones etc. The prosecution has failed to establish the motive for the commission of the offence. When the case rests squarely on the circumstantial evidence, the inference of guilt can be justified only when all the incriminating facts and circumstances are found to be incompatible with the innocence of the accused or guilt of any other persons. None of the circumstances have formed a 17

complete chain of circumstances to hold that the accused has committed the offence. It is further contended that the prosecution has failed to establish the motive to prove the commission of the alleged offence and have falsely implicated the accused. It is further contended that there are no eye witnesses to the alleged incident and the prosecution is relying only on the circumstantial evidence to prove the guilt of the accused.

During the course of his arguments he contended that there are discrepancies and inconsistencies found in the case of the prosecution despite of it, the learned Sessions Judge believing the version of the prosecution held conviction against the accused under Sections 302, 201 and 404 of IPC. Therefore, this appeal is filed to consider the grounds urged therein and also written arguments in detail based upon the evidence of the prosecution putforth and prayed for to acquit the accused for the charges leveled against him. In support of his contention, he placed reliance on the following judgments of the Hon’ble Supreme

Court: 18

1. (2015) 11 SCC 378- Daulat Ram alias Daulti vs. State of Haryana “Para-16: No doubt, Zile Singh appears to have been brutally murdered and his dead body was found in the well, but as to the role of the appellant Daulat Ram, in our opinion, in the above facts and circumstances, it cannot be said that complete chain of circumstances is proved to hold him guilty of commission of murder of Zile Singh or as to the fact that he caused disappearance of evidence by throwing the dead body of Zile Singh into the well. There is nothing on record to suggest that the appellant had any enmity with the deceased or that he had any motive to commit the crime. No doubt, motive is not required to be proved for commission of a crime but in a case of circumstantial evidence, it cannot be altogether ignored where the other accused with similar role have been acquitted, from the charges of murder.”

2. (2015)4 SCC 393 - Ashok vs. State of Maharashtra

“Para15: Now, it may be noted that the following lackings in the case of prosecution cannot be overlooked:

(1) The FIR was lodged after a delay of one month and no explanation has been given for such delay. 19

(2) There has been no previous incident of any physical cruelty committed by the accused against any of the deceased.

(3) The motive as alleged by the prosecution, even if accepted does not explain how will the accused get the money which is in the bank account of Shalinibai by killing Shubhangi. Shubhangi was merely a nominee in that account and did not own the money. Her death would not have made accused a rightful claimant of that money. In any case, this motive is completely irrelevant for explaining the death of the daughters.

(4) The prosecution has not given its own story at all with respect to what things transpired on 26.8.2008.”

3. (2016)1 SCC 501-State of Karnataka vs. Chand Basha

4. (2015)12 SCC 644 -Vijay Shankar vs. State of Haryana “Para 16: If the prosecution establishes the last seen theory, an inference can be drawn against the accused which may lead to the finding of his guilt. Considering the evidence of PW11 and the improbabilities, evidence of PW11 neither inspires confidence nor does it lead to a 20

conclusion that the appellant was last seen with the deceased. As noticed earlier, PW10 and Satish Kumar had three servants; two were sleeping in the adjoining room where deceased Satish Kumar was sleeping and the third one was sleeping in the truck parked at some distance from the farm. From the post-mortem certificate Ext.PS, it is seen that the deceased has sustained number of injuries on the neck, chest and upper arm. From the post-mortem certificate it is also seen that deceased Satish Kumar was well-built and nourished. Probably, the deceased might have resisted and raised alarm, it is quite improbable that the farm servants never heard the noise and that none of the servants came to the rescue of deceased Satish Kumar which again raises serious doubts about the prosecution case.

Para 19: Extra-judicial confession is a weak piece of evidence and the Courts are to view it with greater care and caution. For an extra-judicial confession to form the basis of conviction, it should not suffer from any material discrepancies and inherent improbabilities. In the case on hand, extra-judicial confession allegedly made to PW12 does not inspire confidence and cannot form the basis of the conviction.” 21

5. (2015) 15 SCC 754 - Ratan Lal vs. State of Rajasthan “Para 15: Conviction based on circumstantial evidence must be such that only one hypothesis is possible, namely, that Ratan Lal and Smt. Prem Devi committed the murder of Nandu. As indicated above, there are many gaps in the case of the prosecution and there is a strong possibility that the murder of Nandu was committed by someone other than Ratan Lal and Smt.Prem Devi.”

6. (2016)4 SCC 96 Shahid Khan vs. State of Rajasthan

7. (2016) 3 SCC 135 Pooja Pal vs. Union of India and others.

He prayed that as the ratio of reliance are applicable to the facts and circumstances of the case and the same may be considered and sought for acquittal of the appellant.

6. On controvertible to the arguments advanced by the learned counsel for the appellant, learned Additional State Public

Prosecutor for the State during the course of arguments contended that the prosecution has proved the guilt against the 22

accused by examining in all 37 witnesses and got marked 60 exhibits and 38 material objects and also material witnesses

PWs.1, 4, 5, 6 and 7. The accused gave extra judicial confession before PWs.4 and 5 coupled with the evidence of PW37 being an

I.O. who conducted the entire investigation and laid the charge sheet, consisting the statements of witnesses as well as mahazars conducted by him in the presence of the panch witnesses.

Inquest panchanama at Ex.P11, spot panchanama at Ex.P14 and also another Spot panchanama at Ex.P12 where the dead body was found. As these evidences were analysed by the learned

Sessions Judge has rightly come to the conclusion that the prosecution has proved the guilt against the accused in committing the murder of the deceased by causing disappearance of the evidence and dishonestly misappropriating the properties of the deceased Satish and using the same for his own use with an intention to get married with PW18-Amrutha. Therefore, the impugned judgment of conviction and sentence does not call for interference as there are no justifiable grounds urged by the 23

learned counsel for the appellant by urging various grounds in the appeal as well as in the written arguments. Though learned

Additional SPP addressed arguments orally and also submitted written arguments which as under:

7. In the written arguments it is stated by the prosecution that when there are no eyewitnesses, motive has to play important role and the case rests on the circumstantial evidence. That the accused was in need of money as he had taken Rs.2,000/- from his friend deceased Satish for providing him driving licence as promised by him. But, the accused spent all the said amount for his personal use. That the deceased Satish was after him to provide his driving license.

PW4 in his evidence has stated that the accused was in love with PW18-Amruta and she was pressing him to marry early, but he had no amount and his father who also unable to provide the same. 24

PW18-Amruta has stated in her evidence that she is acquainted with accused Padmakar and they are in habit of talking on mobiles and further on 30 th January 2011, the accused met her at Birur town and both of them together taken tea at Birur.

The friendship of accused with PW18 is fortified by the evidence of PW35-PSI who had recorded the statement of father of PW18 and deposed before the trial Court that the accused was in continuous mobile talks with his daughter-PW18 hours together and also chatting and exchanging the photos through mobiles and identified the photos of accused. That the combined reading of evidence of PWs.2, 4, 5, 14, 18, 35 and 37 certainly goes to show that the accused had fell in love with

PW18-Amruta.

PW6 Ramesh is a common friend of deceased Satish, accused and PW4. He has stated in his evidence that at about

9.00 a.m. on 29.01.2011 the accused contacted him on mobile phone and asked the mobile number of PW4 and again on the same day about 2.00 p.m. the accused again enquired the phone 25

number of PW4 and PW6 provided the same to the accused.

That on the same day at about 03.05 p.m. when PW6 was proceeding from his farm house to his shop via Gadadbasti road, he saw the deceased Satish sitting on his new motor cycle on the road in front of Basti and calling the accused who was in front of

Basti by blowing the horn of his motor cycle. PW6 proceeded to his shop under the guise that the accused and the deceased have become good friends and they were moving together.

PW2 in her evidence has stated that on 29.01.2011 at about

3.00 p.m. the deceased received a missed call and immediately the deceased called the person who gave missed call and immediately informed his mother that D.L.Saheb has come for giving driving licence and he asked me to come with accused thereby deceased left the house on his motor cycle for collecting driving licence after taking the accused.

The evidence of PWs.4, 5 and 14 being the close friends of the accused. PWs.4 and 5 being adjacent neighbourers of accused and were meeting every day. PW14 is also a friend of accused and 26

he was in touch with the accused and they used to contact on mobiles and the same is found in the evidence of PW4.

PW5 who being the close friend of the accused and they used to take meals jointly. He has stated in his evidence that on

29.01.2011 at about 4.00 p.m. to 4.30 p.m. accused called him from his mobile and asked PW5 to come immediately as he is having some work with him. But, PW5 had expressed his inability to come as he was in the classroom and informed him that he will come only after the college hours as he is going to Raibag to see his mother. Again, accused called him at about 5.30 p.m., 6.00 p.m., 6.45 p.m. Thereafter, PW5 came to Ankali and contacted the accused through public booth by giving call to mobile number of the accused. PW5 took the accused to Raj Radium shop and both asked the owner to prepare radium in the name of “A

Dummi” in red colour. Then, PW5 asked the accused what is the urgent work and he told him that he murdered Satish S/o

Chougule, Advocate. As such, the accused gave extra judicial confession before PW5 and he, therefore, needed his help in 27

shifting the dead body of the deceased Satish and requested him to provide vehicle. As such, PW5 who went nearby motor cycle of the deceased, which was kept in front of guarage nearby

Ankali-Miraj road and accused removed the word “Chougule brothers” appearing on the motor cycle and at that time PW5 saw two hand glosses are kept by the accused near the head light of motor cycle. He being frightened, proceeded to Raibag and informed the accused that he will meet in the night. The accused made many calls to PW5 and requested him to help in shifting of the dead body of the deceased.

PW12 has stated in his evidence that on 04.02.2011 the accused came to his mobile shop and thereby sought for exchanging of his old mobile with new mobile. Since the accused had no money, he offered gold chain to him and in turn he took the accused to PW13, who is having jewellery shop. After verifying the golden chain he paid Rs.15,000/-. As such, there was a evidence for the prosecution that the accused took the gold chain from the deceased Satish by committing murder of him. 28

PW15 is a panch witness. In his presence, Ex.P15- material objects were recovered. During the course of the investigation, seized MO24- iron Punch, MO15-ear bale from the pocket of the accused and MO30-spade under panchanama Ex.P15. All the articles have been seized by the I.O. in the presence of the panch witness by conducting mahazar at Ex.P16. MOs.25 to 28 were also seized in the presence of the panch witnesses under panchanama Ex.P16. MOs.14 to 19 have been seized at the instance of the accused. MO14-Bajaj Pulsor Motorcycle of the deceased Satish was found at Birur town and the same has been seized by the I.O. conducting mahazar as per Ex.P20.

PW27 being the panch witness to the seizure of blood stained mud-MO20 wherein he has supported the case of the prosecution.

PW30 being the medical officer who conducted autopsy over the dead body and issued post mortem report at Ex.P23 and he has also supported the case of the prosecution by examining the spade and punch, which has used by the accused at the time 29

of committing the murder of the deceased and issued opinion report.

PW29 being the panch witness to Ex.P22. In his presence, obtained dry blood stain removed from the motor cycle and they are marked as Mos.34 to 38. He has supported the case of the prosecution in his evidence so also the report at Ex.P60. These are sufficient to hold that the accused had shifted the dead body of the deceased on his motor cycle and the evidences of PWs.4,

5,14, 18, 31 and 32 for the prosecution. It reveals that mobile

No.9620187322 is the number which was used by the accused from the evidence of these witnesses. It is crystal clear that it is a pre-planned murder of the deceased Satish by the accused. The contacts prior to and after the incident by the accused reveals that he himself has asked PW14 to give missed call to the deceased thereby securing the presence of the deceased, murdered him with pre-plan made by the accused.

8. In support of his contention, he placed reliance are: 30

1. AIR 1975 SC 1320 - Maghar Singh vs. State of Punjab

2. 1998 Crl.L.J. 1638 - Ronny alias Ronald James Alwaris, vs. State of Maharashtra 3. 2005 Crl.L.J. 3950 - State (N.C.T. of Delhi) vs. Navjot Sandhu.

9. Learned Additional SPP prayed that as the ratio of reliance are applicable to the facts and circumstances of the case and the same may be considered and sought for dismissal of the appeal by confirming the impugned judgment of conviction and sentence passed by the learned Sessions Judge.

10. Heard the arguments advanced by learned counsel for the appellant and learned Additional State Public Prosecutor and perused the entire material on record including the written arguments submitted by both counsel.

11. In the instant case, PW14-Ayyappa Kumar, who is a friend of the accused has stated in his evidence that the accused was in need of money and he has taken Rs.2,000/- from deceased

Satish for providing him driving licence. But, the accused spent 31

the said amount for his personal use. When the deceased Satish was after him to provide driving licence as promised by the accused, accused was put in trouble. Hence, the accused requested PW14 to inform the deceased Satish to wait for some days as if PW14 is working in RTO office. It reveals that accused being a poor person and was badly in need of money.

The same is evident for the prosecution to prove the motive to eliminate the deceased by the accused.

PW4 being the friend of the accused has specifically stated in his evidence that the accused fell in love with PW18-Amruta and she was pressing him to marry early but the accused did not have money and his father was also unable to provide the amount.

PW18-Amruta has stated in her evidence that she is acquainted with the accused and they are in habit of talking to each other on mobiles and on 30.01.2011, the accused met her at Birur Town and both of them together took tea at tea stall at Birur. The friendship of the accused with PW18 is fortified by the evidence of PW35-PSI, who recorded the statement of the father of PW18, 32

which reveals that the accused was continuously talking over the mobile with his daughter-PW18 hours together and also chatting and exchanging photos through mobiles and identified the photos of accused. The portion of this evidence has not been controverted by the defence. However, the combined reading of evidence of PWs.2, 4, 5, 14, 18, 35 and 37 would certainly go to show that the accused was in love with PW18-Amruta. Ex.P55 is the call details. It discloses the same as there are sufficient calls in between accused and PW.18. PW4 in his evidence has stated that the deceased Satish used to wear gold ornaments always, having money and new motor cycle and thereby he murdered Satish for getting the same from him. The prosecution proved the motive for murder in the instant case beyond all reasonable doubt as it reveals from the evidence of the witnesses PWs.2,4,5,14, 18, 35 and 37. As their evidence were to be read in combined in respect of the motive for the prosecution to prove the guilt against the accused. Motive always locks up in the mind of the accused and sometime it is difficult to unlock. For the same, the prosecution 33

has relied on paragraph-17 of the judgment of the Supreme Court

(1992) 3 SCC 43 (Mulakh Roy and others v. Satish Kumar and others). It is further contended that PW6 being a common friend of deceased Satish and PW4. Whereas, PW6 has stated in his evidence that at about 9.00 a.m. on 29.01.2011 the accused contacted him on mobile phone and asked the mobile number of

PW4 and again on the same day about 2.00 p.m., the accused again enquired phone number of PW4 and PW6 provided the same to the accused. On the same, at about 03.05 p.m. when he was proceeding from his farm house to his shop via Gadad Basti road, at that time the deceased Satish was seen by him and he was sitting on his new motor cycle on the road in front of Basti and calling the accused who was in front of Basti by blowing the horn of his motor cycle. PW6 proceeded to shop under the guise that the accused and the deceased Satish being good friends and they were moving and they may be having some work. PW2 being the complainant’s wife has stated in her evidence that on

29.01.2011 at about 3.00 p.m. the deceased received missed call 34

and immediately the deceased called the person who gave missed call and immediately informed his mother that D.L.Saheb i.e.,

PW14 has come for giving driving licence and he has asked me to come with the accused and thereby deceased left the house on his motor cycle for collecting driving licence after taking accused. She has also stated that the accused was having love with a girl.

The evidence of PWs.4, 5 and 14 being the close friends of the accused. PWs.4 and 5 being adjacent neighbourers of accused and were meeting every day. PW14 is also a friend of accused and he was in touch with the accused and they used to contact on mobiles and the same is found in the evidence of PW4.

chain from the deceased Satish by committing murder of him.

The I.O. has seized MO-18 gold chain under Ex.P17 of the mahazar as conducted by him. The prosecution, very much placed reliance on the evidences of PWs.4, 5, 6 and 14 as they have stated in their evidence that the accused contacted them through his mobile. As these witnesses, in their evidence, have given their mobile numbers along with the accused mobile number as regarding to the conversation took between them.

The same reveals at Exs.P55 to P58, which is seized by the I.O. during the course of the investigation.

PW27 being the panch witness to the seizure of blood stained mud-MO20 wherein he has supported the case of the prosecution.

of committing the murder of the deceased and issued opinion report.

5,14, 18, 31 and 32 for the prosecution. It reveals that mobile

friend Satish. After analyzing the evidences put forth by the prosecution, the learned Sessions Judge has rightly come to the conclusion that the prosecution has proved the guilt of the accused in committing the murder of the deceased Satish.

Therefore, it does not hold any substances in the contention of the learned counsel for the appellant to call for interference in the impugned judgment of conviction and sentence held against the accused for the charges leveled against him. Therefore, considering the arguments advanced by the prosecution in detail by submitting the written arguments and pray for dismissal of the appeal by confirming the impugned judgment of conviction and sentence. In support of his contention, he relied on the judgment of Supreme Court in the case of Maghar Singh vs. State of Punjab. Paragraph-7 reads as under:

“7 . Lastly, there is the evidence of extra-judicial confession made by Maghar Singh to Kartar Singh Sarpanch and Jit Singh, PW12, which has been proved by PW12. Even Smt. Surjit Kaur made a clear breast of the whole story in her statement to Bachan Singh. PW4, when he enquired as to 38

how the deceased had been murdered. To crown it all, there was the question of the motive. Surjit Kaur has clearly admitted that the deceased had made a Will in favour of her Pichhlag son Baldev Singh. It was also admitted that previous to that the deceased had made a Will in favour of his brother Sarwan Singh and the accused thinking that the deceased might change his mind again planned the murder of the deceased so that he may not be in a position to change his mind and make a Will of his property in favour of Sarwan Singh. This provided a sufficient motive for the murder. This Court in an appeal by special leave does not go into the evidence, but even after going through the evidence in this case we are satisfied that the prosecution case has been proved against the two accused beyond any reasonable doubt.”

12. Having regard to strenuous contention taken by the learned counsel for the appellant as well as learned Additional

State Public Prosecutor for the State, it is necessary to state that the alleged incident has taken place on 29.01.2011. That the accused has committed the murder of the deceased Satish by hitting him with the means of MO33-Spade and also MO23-

Punch on the vital parts of the body wherein the injuries were 39

inflicted as indicated at Ex.P23 of the PM report. On the basis of the complaint-Ex.P1 given by the father of the deceased Satish, a crime came to be registered by PW35-PSI by recording the FIR as per Ex.P27. Subsequently, that PW35 apprehended the accused on 17.02.2011 and produced before PW37 being the CPI.

PW37 took up investigation and drew the spot panchanama in which the dead body was found and seized the gunny bag, two plastic bags and two hand glues along with blood stained mud and simple mud and took photo and also drew the map-spot panchnama as per Ex.P14 in the presence of PW24 and so also he conducted the spot panchanama where the dead body was found as per Ex.P12. The said panchanama was conducted in the presence of PW23. Ex.P11-inquest panchanama was conducted by PW37 in the presence of PW23. Ex.P15-seizure panchanama was also conducted by PW37 i.e., objects seizure from the accused. Ex.P16-Seizure and spot panchanama was conducted by PW37 in the presence of PW25 at the instance of the accused.

Ex.P17-seizure panchanama (gold chain) was conducted by PW37 40

in the presence of PW25. Ex.P18-mobile seizure panchanama,

Ex.P20-Motorcycle seizure panchanama. Ex.P22-mahazar was conducted by collecting the blood stains which was on the motor cycle by PW37 in the presence of PWs.23, 24, 25, 26, 27, 28. But there are discrepancies and inconsistencies which were found in their evidence. This contention was taken by learned counsel for the appellant during the course of the arguments wherein he submitted the written arguments apart from the oral arguments.

13. The entire case of the prosecution rests upon the circumstantial evidence. The learned Sessions Judge, having gone through the evidence of PW1 to PW37 and also Ex.P1-complaint given by PW1 and also mahazars-Exs.P12, 13, 14, 15, 16, 17, 18,

20 and 22, has come to the conclusion that though the case of the prosecution is circumstances in nature, based on the evidence of the prosecution that the accused alleged to have committed murder of the accused by grabbing gold items worn by him, Bajaj pulsor motor cycle and cash found with the deceased in order to get married with PW18-Amruta as the accused fell in love with 41

her. The motive behind the case of the prosecution is that the accused was having love affair with PW18. The very documentary evidence does depict the alleged motive whereas PW18 who has specifically stated in her evidence that he had contacted her in mobile and he belongs to Raibag. He intimated her in mobile that he will come to Birur and she met him in a Tea Shop at Birur and the accused went to Hospet. As close scrutiny of evidence of

PW18 coupled with the complaint given by the father of the deceased son, there are discrepancies and contradictions arise in their evidence as regards the accused had love affairs with PW18 and the accused who had developed friendship with his son in order to grab the gold articles which were worn by the deceased, cash, mobile phones and motor cycle in order to get married with

PW18 as he had love affairs with PW18. As such there is no evidence to prove for the prosecution as the accused has requested the deceased to give some money. When the deceased refused to give the amount the accused had developed some enmity with the deceased. As such there is no evidence 42

forthcoming on the part of the prosecution prove that the accused had intention to eliminate the deceased. PW2 and PW3 have given in their evidence that since prior to three months of the incident the accused had assured to get driving licence but they have denied the same in their evidence itself.

14. The prosecution has relied upon the circumstantial evidence in regard to extra judicial confession made by the accused before PWs.4, 5 and 14. PW14 who has stated in his evidence that on 29.01.2011 at about 3.45 p.m. the accused made a mobile call to him and asked him to come to Gadad Basti.

PW14 went near Gadad Basti and accused was filling water. The accused asked him to help in transporting the dead body of the deceased and also showing the dead body of the deceased Satish and the place of offence but in the cross-examination he has stated that he has not told the said fact before anybody till saying the same to the police during the course of investigation.

15. PW5 who has also stated in his evidence that the accused is his friend. That on 29.01.2011, at about 4.00 p.m. or 43

4.30 p.m. the accused made a call through his mobile and called him to come to Raibag. Again, the accused made calls at 5.30 p.m. and 6.00 p.m., 6.30 p.m., 6.45 p.m., asking PW5 to come to

Ankalagi and he did not find the accused. Further, in his evidence he has stated that he did not have currency and as such he made call through coin box to the mobile of accused and accused instructed him to come near bus stand urinals place. He went there and met the accused. But, he has denied the suggestion made at Ex.P55-call details of the mobile of the accused. It reveals that on 29.01.2011 after 6.45 p.m. PW5 has met the accused near Ankalagi bus stand. Having gone through the evidence of PW5 coupled with the evidence of PWs.4 and 14 and the author of the complaint, their evidence runs contrary to each other whereas the prosecution placed reliance on the mobile call details of the accused as per Ex.P55 and also call details of the deceased as per Ex.P56. Then, call details of PW4 at Ex.P57 and also call details of PW14 at Ex.P58. The call details-Exs.P55 to

58 did not found signature of any authorities. As there is a clouds 44

of doubt in the theory putforth by the prosecution in regard to call details secured by the I.O. during the course of investigation.

16. PW30 being the doctor who conducted autopsy over the dead body and issue post mortem report as per Ex.P23 and also noticed the injuries 1, 2, 5 and 7 and it may be caused with

MO33-spade and injury No.3 may be caused with MO24-punch and issued opinion certificate as per Ex.P24 on going through the weapons used by the accused.

17. MOs.14 to 19 i.e., Bajaj Pulsor motorcycle, ear baley, red stoned finger ring, blue stoned finger ring, golden neck chain and Nokia mobile N97 were seized by PW37 being an I.O. at the instance of the accused. All the said articles belonged to the deceased Satish and the said articles have been dishonestly misappropriated by using the same for his own use by committing the murder of the deceased Satish. But, the prosecution did not place evidence beyond all reasonable doubt that the accused committed the murder of the deceased in order to grab the articles MOs.14 to 19. The entire case of the prosecution is 45

based upon the circumstancial evidence which, required to be proved by the prosecution with full chain of circumstances to infer the guilt of the accused in respect of causing murder of the deceased by the accused on 29.01.2011 at about 15.30 hours causing disappearance of the evidence by grabbing MOs.14 to 19 in order to get married with PW18-Amruta.

18. The vivid details are that the accused committed the murder of the deceased Satish with the means of spade and punch in order to take away his life. The post mortem report indicates the injuries at Ex.P23. The accused being the friend of the deceased Satish since three months prior to the alleged incident, the accused was in need of money in order to marry PW18-

Amruta. He knew that the deceased Satish was possessing gold ornaments, cash and motorcycle. In order to grab the same, he assured him that he will provide driving licence. This theory was putforth by the prosecution to prove the guilt against the accused.

But, on filing of the complaint by PW1 as per Ex.P1 as he being the father of the deceased Satish and also being the author of the 46

complaint has stated in his evidence that the deceased was in love with one Mahalaxmi, the grand daughter of Dr.Basavaraj

Yamakanmardi, who does not belong to his caste. As such, there were talks between the deceased and his parents. When the fact came to know to Dr.Basavaraj Yamakanmardi, he warned

Mahalaxmi. Further, it is stated that about 1-2 years back, when the deceased Satich had been to Sirasi with one Satish Pujari of

Chinchali, some gundas gave life threat to deceased Satish by dashing a motor cycle. As this fact was told by Satish to his father, he advised him that he will arrange his marriage with some other girl after he attains the age of 20 years. These are the evidences which were to be brought by the prosecution through examination of PW1 as he being the father of the deceased. But, on suspecting the appellant being the accused and friend of the deceased Satish and on the basis of the complaint-Ex.P1, a crime has been registered and proceeded for investigation on the premise that the accused has committed the murder of the deceased by assaulting with the means of MO-24 punch and MO- 47

33 spade. It is further seen in the evidence of the prosecution that subsequent to committing of the murder of the deceased

Satish by the accused, the accused alleged to have kept the dead body in a gunny bag and the same had been carried by him in

MO14-Bajaj Pulsor motorcycle, which belongs to the deceased himself and the dead body had been thrown into the nearby

Hiranyakeshi river on NH4 road for disappearance of the evidence of the prosecution. But, the entire case of the prosecution rests upon circumstantial evidence. The learned

Sessions Judge who found that the prosecution has proved full chain of circumstances and also sufficient evidence has been established by the prosecution that the accused alleged to have committed the murder of deceased Satish and also dislodged the corps in such a manner to escape from the clutches of law in order to destruction of the evidence.

19. In this case, we have no doubt that the deceased

Satish was murdered on 29.01.2011 by inflicting injuries over his person alleged by the accused as he being the friend of the 48

deceased and also the dead body was kept in a gunny bag and carried from the scene of crime to the nearby Hiranyakeshi river at NH road wherein the dead body was found lying and the same has been viewed by some publics. When PW1-complainant came near Hiranyakeshi river, he found lying of a dead body in a gunny bag and when certain part of the gunny bag was removed he saw his son’s dead body. This evidence had also been brought by the prosecution to prove the guilt against the accused. But the sole question in this instant case is whether the appellant is an accused is seriously disputed in the cross-examination of PW1 being the author of the complaint at Ex.P1. PWs.4, 5 and 14 as they being the prime witnesses for the prosecution allege that the accused who had made extra judicial confession before them that he committed the murder of the deceased Satish as he being his friend and requesting PWs.4 and 5 to help him to carry the dead body of the deceased Satish. But, having gone through the evidence of these prime witnesses for the prosecution there found to be discrepancies and inconsistencies to each other. In so far as 49

the facts at Ex.P1-complaint and so also the mahazar at Exs.P11,

P12 and P16 as wherein this mahazar has been conducted by

PW37 being an I.O. who laid the charge sheet against the accused and the same has been conducted in the presence of the panch witnesses PW23 and PW25. Having gone through the evidence of the prosecution to prove the guilt against the accused appears to be clouds of doubt as there are discrepancies and inconsistencies to each other that the accused being the friend of deceased Satish who alleged to have committed the murder by inflicting injuries which indicated at Ex.P23 of post mortem report as issued by the doctor –PW30 who conducted autopsy over the dead body and so also the injuries inflicted over the person of the deceased alleged to have been used by MOs.24 and

33 (punch and spade) in order to substantiate the case of the prosecution. The prosecution in all examined 37 witnesses and got marked 60 exhibits and 38 material objects. The statement of accused was recorded by PW37 being an I.O. and also it appears the signature of the accused and so also PW37 who got subjected 50

to the photo during the course of investigation which is at

Exs.P38 to P45 and it does repose confidence of the theory put forth by the prosecution.

20. We have gone through the evidence of PW1, who is the author of the complaint-Ex.P1 and so also the prime witnesses to the incident PWs.4, 5, 12, 13 and 14 apart from

PWs.17 and 18. They have been examined by the prosecution in detail and also cross-examined them in detail and the same has been seen in their evidence itself that the accused who alleged to have committed the murder of the deceased Satish as he being his friend and in order to get married with PW18-Amruta as the accused who had fell in love with her and also the accused was in need of money and therefore he called the deceased Satish to

Gadadbasti to provide driving licence to him and the accused went to the said place and waited for him and thereafter the alleged incident took place by assaulting the deceased Satish with the means of MOs.24 and 33 punch and spade by inflicting injuries over the person, but it appears to be clouds of doubt. 51

21. By the evidence of all these witnesses as stated supra it appears that there are discrepancies and contradictions to each other as the same has been seen in their evidence itself. Similarly, this contention is taken by the learned counsel for the appellant during the course of arguments that the entire case of the prosecution rests upon the circumstancial evidence. That the accused who alleged to have committed the murder of the deceased was greedy of the gold items which were worn by him and cash, which needed him to get marry PW18. The circumstances putforth that only to commit the murder of the deceased, the accused secured him at the scene of crime. As such, the deceased came in his motor cycle and the accused committed the murder of the deceased and took away the articles belonging to the deceased. But, this theory has been putforth by the prosecution to prove the guilt against the accused found to be in clouds of doubt. The prosecution has relied on the evidence of

PWs.4, 5 and 15 regarding extra judicial confession of the accused, which is unnatural and unbelievable but the chain of 52

circumstances proved by the prosecution gives room for clouds of doubt.

22. In the instant case, the circumstantial evidence regarding the dead body of the deceased Satish found lying near the Hiranyakeshi river at NH road and people were gathered. On seeing the gathering of people, PW1-father of the deceased Satish went there and saw the dead body of his in a gunny bag. But, in the extra judicial confession made by the accused before PWs.4, 5 and 14 are concerned, the prosecution did not place clinching evidence to believe that the accused alleged to have given extra judicial confession before them that he committed the murder of the deceased Satish in order to grab the gold items which was worn by the deceased Satish, cash from the pocket of the deceased Satish found to be in possession in order to get married with PW18-Amruta as the accused had love affairs with her. But, the evidence of PW18 so far as this aspect is concerned, the evidence of prosecution rests contrary to the evidence of PW1, who is the author of Ex.P1-complaint and also evidence of 53

PWs.4, 5 and 14 coupled with the evidence of PW37, who being an I.O. laid charge sheet against the accused by conducting almost all investigation by recording the statement of the witnesses, mahazars in the presence of panch witneses for having seized gold items and also motor cycle which belonged to the deceased Satish so also the clothes belonged to the accused, blood stain found on the motor cycle as the dead body of the deceased was carried by the accused; kept it on the patrol tank of the motor cycle. This aspect of the evidence for the prosecution founds to be discrepancies and inconsistencies to each other. Therefore, it is held that there is clouds of doubt in the theory as put forth by the prosecution to prove the guilt against the accused as where the case of the prosecution rests entirely on circumstantial evidence.

23. As already stated, PW30 being the doctor, who conducted autopsy over the dead body and issued post mortem report as per Ex.P23 and also issued opinion report for having subjected to examine MOs.24-punch and 33-spade which alleged to be used by accused and inflicted injuries 1, 2, 5 and 7 would be 54

caused with MO.33 and injury No.3 would be caused with

MO.24. But, his evidence appears to be inconsistency and discrepancy with the evidence of PWs.4, 5, 14 and 37 being an

I.O. by conducting spot mahazar as per Exs.P12 and 16 at the instance of the accused, seizure mahazar at Exs.3, 14, 15, 17, 18,

20 and 22. But, having gone through the evidence of PWs.23, 24,

26, 27, 28 and 29 it appears to be discrepancies as well as inconsistencies to each other.

24. In the instant case, the prosecution has not set up strong motive in the commission of the offence. PW1 being the author of the complaint at Ex.P1 and he being the father of the deceased in his evidence he has stated that while coming from

Belgaum in his car he found people gathering near Hiranyakeshi river on NH road and he went there and saw lying of a dead body in a gunny bag found to be his son, he lodged a complaint as per Ex.P1.

25. We have gone through the entire contents of the complaint at Ex.P1. Nowhere, he has specifically stated that the 55

deceased was the friend of the accused and also his son was in the company of the accused. Since three years, prior to the commission of the alleged offence, the accused and the deceased were friends to each other. He had seen that the deceased was always wearing gold items and having cash in his pocket, in order to get married with PW18-Amruta as he had love affair with her, the accused alleged to have committed murder of his friend Satish in order to grab the articles of the deceased Satish.

26. The circumstances on which the prosecution has placed reliance in respect of recovery of the gold items which were worn by the deceased and also cash found from the possession of the accused at his instance under Ex.P37. But the evidence of the panch witnesses for the prosecution as stated supra is not free from infirmities. There is inconsistencies between the evidence of panch witnesses with the evidence of

PW37 being an I.O. who conducted the mahazar and also laid the charge sheet against the accused for such circumstances, we are of the opinion that it has to be held that the prosecution has not 56

placed the evidence which is free from infirmities by cogent, corroborative and consistency to each other and positive evidence to probabilise that the accused alleged to have committed murder of the deceased with the means of MO.24-punch and MO.33- spade and infliction of injuries over the person as indicated at post mortem report with the intention of grabbing the gold items, cash etc., in order to get marry with PW18-Amrutha. The learned

Sessions Judge was required to appreciate the evidence placed on record in its proper perspective regarding the motive behind in committing the murder of the deceased and also the circumstances put forth by the prosecution to prove the guilt against the accused that the accused alleged to have committed murder of the deceased Satish in order to grab the gold items, cash etc., in order to get married with PW18 but erroneously has come to the conclusion that the prosecution has proved the guilt of the accused with beyond reasonable doubt and convicted the accused. 57

27. Be that as it may, since none of the circumstances relied upon by the prosecution are proved beyond reasonable doubt, in our considered opinion, the trial Court is not justified in convicting the accused. On going through the judgment of the trial Court and the evidence on record, we are of the clear opinion that the judgment of the trial Court is based on assumptions.

Since the burden is on the prosecution to prove the chain of circumstances against the accused and as we find that none of the circumstances are proved much less beyond reasonable doubt, the benefit of doubt should enure to the accused. It is by now well settled, the chain of circumstances to be proved by the prosecution.

28. Since we find that none of the circumstances are proved by the prosecution to the satisfaction of the Court, the impugned Judgment and order of conviction dated 10.04.2012 passed by the Fast Track and Additional Sessions Judge, Hukkeri, in S.C.No.149 of 2011 is liable to be set aside. Accordingly, we pass the following: 58

ORDER

The appeal is allowed .

The impugned Judgment of conviction and sentence dated

10.04.2012 passed by the Court of Fast Track and Additional

Sessions Judge, Hukkeri, in S.C.No.149 of 2011 is set aside.

The appellant-Padmakar @ Paddu Abhay Upadhey @

Pandit is acquitted of all the charges leveled against him. He shall be released forthwith in case if he does not require in any other case. Accordingly directed to the concerned Jail Authorities.

The operative portion of this judgment shall be communicated to the concerned jail authorities immediately.

Sd/- JUDGE