TMI Blog2015 (9) TMI 1450X X X X Extracts X X X X X X X X Extracts X X X X ..... tablished at all. The post-mortem report fails to specify any approximate time of death and in light of the recovery of the dead body on 20.01.2001, after 4 days, which is not a small gap since the deceased disappeared on 16.01.2001, it is not appropriate to convict the accused when his role is not firmly established. - CRL.A. 1547 OF 2011 - - - Dated:- 18-9-2015 - Pinaki Chandra Ghose and R.K. Agrawal, JJ. JUDGMENT This appeal, by special leave, has been directed against the judgment and order dated 1st March, 2007 passed by the High Court of Karnataka at Bangalore in Criminal Appeal No. 1047/2003, whereby the High Court allowed the criminal appeal filed by the respondent herein and acquitted him. 2. The brief facts necessary to dispose of this appeal are that one Ganesh, a daily-wage mason, went missing on 16.01.2001. On 20.01.2001, PW1 D. Ramu, Dhobi by profession, saw a dead body floating in a well near the Dhobi Ghat with hands tied at the back and the ankles were also tied. The police recovered the dead body, shifted it to Bowring Hospital Mortuary and thereafter published the photograph of the dead body in the newspaper. From this photograph, PW3 father of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ned counsel for the appellant has inter alia raised the following grounds as incriminating circumstances in this appeal. Firstly, the motive behind the murder of the deceased was consistently and cogently proved by the testimony of PW3 father of the deceased, and PW4 sister of the deceased. Agreeing to this submission, the High Court also held that motive can be successfully attributed upon the accused that he wanted to marry PW4 (sister of the deceased) which was vehemently disapproved by the deceased and PW3 (father). Secondly, the death was argued to be homicidal and there is already a concurrent finding of the courts below that the death was homicidal. Thirdly, the present case rests on the last seen theory, and by the consistent testimonies of PW5 (bar- boy), PW6 (owner of the bar), PW8 (shopkeeper) and PW12 (Appu), it was proved that on 16.01.2001 the deceased was last seen in the company of the accused. Lastly, the learned counsel for State rests her case on the recovery of the material objects at the voluntary instance of the accused. This recovery has itself been testified by independent witnesses. 6. Learned senior counsel appearing for the respondent rebutted the argu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d PW8 to prove the last seen theory . PW5 the bar boy claims to be the person who served the accused and one more person with 3 quarters of RR Brandi and 1 Knock-Out beer on 16.01.2001. PW6 is the owner of the bar who testified in his statement that the accused came along with one other person. These witnesses were first questioned by the Investigation Officer on 24.01.2001 and both deposed before the Court that their bar is usually crowded and they neither make personal interaction to each and every customer nor do they take details of each of their customers. PW 5 and PW6 also deposed that the two persons were also served 2 fried chicken. According to these witnesses, the two customers were served at about 8:30 PM. PW8 (shopkeeper) is another prosecution witness who testified that at about 10.00 PM on 16.01.2001, the accused along with one other person came to his shop and bought two cigarettes of ₹ 2/- each. This witness has also deposed that he does not personally know the accused or the other accompanying person. On careful examination of their depositions and cross-examination and also in light of the other medical evidence, some doubt is raised upon the chain of event ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . the deceased having another meal. 12. The High Court rightly rejected the two recoveries made as it seems artificial that the accused intending to kill the deceased will not prepare well. Having two shoe laces at his disposal, why will he cut a shoe lace into two to tie the hands of the deceased. Similarly, the piece of Saree which was recovered near the well is doubted as an accused intentionally committing a crime will not bother to cut a piece of cloth into two before tying. These evidences were sent to FSL on 25.2.2001 i.e. after 1 month of the alleged recovery. The recovery of these material objects seems more of an unnatural occurrence. The High Court also rightly ruled out extra- judicial confession as deposed by PW4. PW4 in her cross-examination deposed that she narrated the said extra-judicial confession of the accused to her father PW3. PW3 also came to know that his son (deceased) had gone with the accused to a wet party. There arises doubt upon the conduct of PW3 who knew that his son was missing since 16.01.2001 and he also heard of extra- judicial confession of the accused, yet he did not report to the police. 13 This Court in Bodhraj v. State of J K , (200 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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