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   REPORTABLE

 IN THE SUPREME COURT OF INDIA  CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NOs.  1428-1429 OF 2013

STATE OF KARNATAKA                                ...APPELLANT(S)

                               VERSUS

P.RAVIKUMAR @ RAVI ETC.                          ...RESPONDENT(S)

J U D G M E N T  

R. BANUMATHI,J.

1. Challenging the acquittal of respondent nos. 1

and 2 (accused 2 & 3) respectively for the offence

under  Section  302,  IPC  the  State  of  Karnataka  has

preferred these appeals.

2. Case of the prosecution is that respondent no.

2 (A-3) D.B. Savitha - wife of the deceased - Mohan

Kumar was allegedly having illicit relationship with

accused no. 1. On account of such motive, Accused No.

1 and respondent nos. 1 and 2 herein (Accused Nos. 2 &

3)  are  alleged  to  have  hatched  a  conspiracy  in

committing  the  murder  of  deceased   Mohan  Kumar-

husband  of A-3 (D.B. Savitha) on the ground that he

used to harass her on the  illicit relationship of A-1

and A-3. On  07.07.2003, the deceased Mohan Kumar left

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the house in the morning for his fertilizer shop and

did not return back. At about 9.30 p.m., the mother of

the  deceased came to know through PW-6 (Basavaraju)

that the body of her son is lying on the side of the

road and that he had allegedly fallen from the bike.

The  deceased  was  taken  to  the  hospital  where  he

declared dead. The law was set in motion and all the

three accused were held under Section 302 IPC read

with 120(B),IPC.

3. The trial court convicted all the accused under

section 302 IPC read with 34 IPC and 120(B),IPC. On

appeal, the High Court maintained the conviction of

accused  no.  1  and  acquitted  respondent  nos.  1  &  2

(Accused nos. 2 and 3).

4. we  have  heard  Mr.  Joseph  Aristotle,  learned

counsel appearing for the state of Karnataka.

5. Though the respondents have entered appearance

through counsel but at the time of hearing the matter

none appears on behalf of the respondents. We have

carefully perused the impugned judgment, evidence and

materials on record.

6. Insofar as respondent no. 1 (accused No. 2) -

P. Ravi Kumar @ Ravi is concerned, the prosecution

relies upon the extra judicial confession made to PW-2

(Auto  Driver)  who  is  stated  to  be  the  friend  of

accused nos. 1 and 2. PW-2 has stated that about 20

days  prior  to  the  date  of  incident,  when  he  was

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sitting in the auto, A-1 was with him and that accused

no. 1 asked him to chase the deceased who was going on

his motorcycle.  PW-2 further stated that about 20

days later accused nos. 1 and 2 approached him and

said to have made extra judicial confession that they

had committed the murder of deceased Mohan Kumar to

whom on earlier occasion they chased. Though PW-2 in

his chief examination stuck to his version, when he

was  cross  examined,  he  resiled  from  his  earlier

version  and  consequently  PW-2  was  treated  hostile.

When  PW-2  resiled  from  his  earlier  statement,  his

statement   recorded  by  PW-22  (Judicial  Magistrate)

under Section 164 Crl.PC may not be of any relevance;

nor can it be considered as substantive evidence to

base the conviction.

7. So far as the evidence of PW-3 is concerned, it

is only confined to the extra judicial confession made

by the first accused.

8. Yet another piece of evidence relied upon by

the prosecution is that the evidence of PW-4 who is

stated to be the friend of A-2.

9. Case of the prosecution is that on the night of

occurrence A-1 and A-2 went to the residence of PW-4

(M.G. Rajashekher @ Raju) and A-2 clothes were blood

stained and A-1 wearing sweater. Both A-1 and A-2 said

to have made extra judicial confession to PW-4. But

when PW-4 was examined in the court, PW-4 stated that

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accused nos. 1 and 2 came to his residence on the

night of 07.07.2003 and cloth of accused no. 2 was

blood  stained.  PW-4  further  stated  that  when  he

questioned accused No. 1, he stated that they were

travelling in an auto towards Karthikere, it toppled

and in that process they sustained injuries. The above

said evidence of PW-4 explaining the blood stains on

the cloth of accused no. 2 due to toppling of auto

does  not  advance  case  of  the  prosecution  that  A-1

conspired  with  A-2  who  committed  the  murder  of

deceased  Mohan  Kumar.  In  any  event  extra  judicial

confession is a weak piece of evidence,  which cannot

form  basis  for  conviction  and  unless  supported  by

other substantive evidence, which is lacking in this

case.

10. Insofar  as  accused  no.  3  is  concerned,

prosecution  relies  upon  exhibit  P-8  and  P-9.

Photographs were recovered on the disclosure statement

of  accused  no.  3.  In  this  regard,  prosecution  has

examined  PW-12  (photographer)  who  has  stated  that

accused nos. 1 and 3 came to his studio and took joint

photographs (Exhibit P-8 & P-9). The said photographs

at the most may only show that A-1 and A-3 has illicit

relationship. There is no evidence adduced to prove

that A-3 had hatched conspiracy with A-2 to commit the

murder of Mohan Kumar.

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11. Upon appreciation of the evidence adduced by

the prosecution in particular PW-2 , PW-20 and PW-4,

the High Court has held that the guilt of A-2 and A-3

has not been established beyond reasonable doubt. We

do not find any ‘compelling reason’ or ‘substantial

infirmity’ warranting interference with the order of

acquittal of respondent nos. 1 and 2 (Accused Nos. 2

and 3).

12. The appeals are, accordingly, dismissed.

….......................J. [R. BANUMATHI]

…......................J. [VINEET SARAN]

NEW DELHI 16TH AUGUST, 2018