Manjula Chellur, J.
1. This criminal appeal is filed by the appellants challenging the judgment of acquittal in S.C. No. 176 of 1996 on the file of the Principal Sessions Judge, Belgaum.
2. The first appellant is the wife of deceased-Krishnegouda. The second appellant is the mother-in-law of deceased-Krishnegouda and the 3rd appellant is the brother-in-law of Krishnegouda. They are arrayed as A1, A2 and A5 before the Trial Court. A case was registered by Murgod Police in Crime No. 148 of 1995 against the appellants along with two others for offences punishable under Sections 302 and 201 read with Section 34 of the IPC.
3. The deceased-Krishnegouda is the native of Mabanur Village and is the son of Hanumanthagouda. He married A1, the daughter of A2 from Jeevapur. They stayed in the matrimonial home for some time. As she could not adjust with the family of her husband they moved to Jeevapur Village and she was living with her mother. Accused and the deceased had a child out of the wedlock. They had gone to Goa to eke out livelihood. On two or three occasions he visited his father at Mabanur.
4. During 1995 prior to Moharam, Krishnegouda along with his wife after coming back from Goa were residing at Jeevapur with his mother. The uncle of complainant-Hanumanthagouda died, therefore, Krishnegouda and his wife visited that family. He also met his father and other relatives. He disclosed before his father that of late he was not happy with his wife as she is neglecting him very much. He also expressed doubts about her conduct and character. He further informed him that she refused to accompany him to Goa.
5. To ascertain the subsequent events the complainant-Hamiman-thagouda visited Jeevapur. He met A1 his daughter-in-law and her sister Bhagawwa. They could not inform anything about the deceased-Krishnegouda. He made inquiries as he suspected his daughter-in-law. He learnt that after the return of Krishnegouda and Savakka from Goa, Krishnegouda is not seen in the village. He also met one Ravi Dyamanaik Patil who revealed that he inquired Savakka about her husband and she did not reply. So also Panduranga Chandra Nails : Patil of Mabanur could not get any information from Savakka at Yeragatti Shandi. This was informed to Hanumanthagouda. He entertained doubts about the very person of his son Krishnegouda i.e., whether he is living or not. One Yamanappa Naikar also informed him, only Savakka was moving around in the village and her husband is not seen.
6. A day prior to lodging the complaint i.e., 19-9-1995 one Channappa Karigouda informed him that four days prior to that date A1 and her mother Mallawwa (A2) informed him that Krishnegouda was suspecting his wife Savakka and therefore all the five accused persons assaulted Krishnegouda with grinding stone and clubs. This has resulted in his death. Appellants 1 and 2 further informed him about the suspicion of complainant and requested him to protect them somehow. This has confirmed that the accused persons killed his son Krishnegouda.
7. On lodging a complaint a case was registered against all the accused persons. Investigation was done. One Pundalika Basanagouda was inquired. His inquiry revealed the involvement of five accused persons in the murder of Krishnegouda. He even showed the spot where he was murdered. A sketch was drawn and a place was shown as the place where the dead body was kept after the murder. They recovered bloodstained sample soil and lungi, which was identified by P.W. 1, the father of the deceased as belonging to the deceased-Krishnegouda. The statement of Channappa Karigouda confirmed the extrajudicial confession. A3 gave voluntary statement about the burning of the dead body and he showed where the dead body was thrown. Some bone pieces and ash were seized under a mahazar. Another two furlongs away from the place where the dead body was burnt was also shown as the place where the dead body was thrown. All the burnt bones could not be secured. After completing the investigation a charge-sheet was filed. During investigation iron patti was secured at the instance of A5 and they even saw the bullock cart in which dead body was transported. They secured property extract of the house of Mallawwa (A2).
8. According to the prosecution A1, A2 and A5 along with two friends of A3, A4 and A5 finished Krishnegouda, kept the dead body in the granary and later shifted the same to a land where the dead body was burnt and the burnt bones were thrown into a river.
9. In support of the case of the prosecution seventeen witnesses were examined. Exs. P. 1 to P. 38 are marked and M.Os. 1 to 6 are also marked.
10. On appreciating the evidence on record, though P.W. 3, the child witness to the incident and P.W. 14 before whom extrajudicial confession was made by A1 and A2 have turned hostile, the learned Judge convicted A1, A2 and A5 for offences punishable under Sections 302 and 201 read with Section 34 of the IPC. However, A3 and A4 were acquitted, as there was no material against them.
11. Aggrieved by the said judgment of conviction, the present appeal is filed contending that except the evidence of P.Ws. 2, 12 and 1 that the deceased-Krishnegouda was not seen and Al-Savakka informed them that he had gone to Goa no other facts contended by the prosecution is established.
12. The learned Prosecutor in reply argued that the very suspecting behaviour of Savakka led to the discovery of murder of deceased-Krish-negouda and the evidence on record brought by the prosecution establishes the case beyond all reasonable doubt.
13. So far as the relationship is concerned, there is no dispute that the deceased-Krishnegouda is the husband of the first appellant, son-in-law of the second appellant and brother-in-law of the third appellant. It is also not in dispute that after the marriage they lived for some time at Mabanur and later went to Jeevapur. Thereafter, Krishnegouda and Savakka seems to have gone to Goa to eke out their livelihood for some time. At the time of death of uncle of the complainant before Moharam they visited Mabanur and the family members of deceased had seen him for the last time at that time. After attending the rites they left to Jeevapur. To ascertain whether his son and daughter-in-law had gone to Goa according to the prosecution, P.W. 1- Hanumanthagouda went to Jeevapur. P.W. 2-Panduranga and P.W. 12-Ravi Patil informed him that Savakka alone is moving around in the village and Krishnegouda was not seen. They also informed him that Savakka told them that Krishnegouda had gone to Goa and is staying there. According to him his son never stayed alone without his wife, therefore, he suspected some foul play. P.W.5-Yamanappa also informed about Savakka moving alone in the village.
14. On perusal of the evidence of P.W. 2 he also speaks about the marriage of the deceased with Savakka and their visit to Goa to eke out their livelihood. Panduranga’s wife is from Jeevapur. He says two days prior to the death of Krishnegouda he saw Krishnegouda and five accused sitting and talking in the house of A2-Mallawwa. But on the same day he saw them quarrelling. Subsequently, he did not see Krishnegouda. According to him, Krishnegouda and his wife never stayed away from each other and they were cordial with each other. In a shandy he met Savakka and she informed him that Krishnegouda had gone to Goa. Same thing was informed to P.W. 1 who is no other than his uncle. The rest of the evidence is hearsay evidence.
15. In the evidence of P.W. 12 he speaks about the relationship between the deceased and the accused. He also speaks about the deceased-Krishnegouda and his wife Savakka visiting Goa for their livelihood. He reveals visiting of the deceased to Jeevapur at the time of death of his uncle. Four months after the death of uncle of Krishnegouda, the murder of Krishnegouda was talked in the village. When he went to shandy
near the bus stand at Yeragatti he met Savakka and inquired the whereabouts of her husband. She replied that he had gone to Goa and had not returned. In the cross-examination it was elicited that one Mohan is the younger brother of the deceased. He was murdered in a quarrel between Mohan and Vasu. Later Vasu was also murdered. In that case Mohan and Hanumanthagouda were arrayed as accused. After the acquittal of Mohan he was also murdered. He admits that in connection with theft of buffalo the name of deceased-Krishnegouda was also in the crime number. He does not speak about any misunderstanding between the deceased-Krishnegouda and his wife during his lifetime. He suspected, her when she gave an evasive answer. On the same day when he met P.W. 1 he revealed that information. He was also present when the complaint was lodged and the inquest was done. He admits he did not see the dead body. According to him the confession made by the accused before the police made him to believe Krishnegouda was murdered. During recovery proceedings bloodstained iron rod, 5-6 small bone pieces were recovered. But the bone pieces were not recovered. From the evidence of these two persons at the most the prosecution is able to establish that the deceased-Krishnegouda is related to these two witnesses through his father, P.W. 1 and they were aware that A1 and the deceased were living at Jeevapur, the native place of A1-Savakka. Four months after the death of uncle of P.W. 1 the news about the murder of Krishnegouda had spread in those villages. As normally the deceased was not in the habit of going to Goa alone to eke out livelihood, they suspected Savakka when she was moving around in the village all alone. This itself cannot be a ground, pointing out the guilt of the accused unless the other connecting circumstances are established.
16. We have the evidence of P.W. 14 who speaks about the confession of A1 and A2 before him about the murder of Krishnegouda. According to the prosecution on 16-9-1995 at about 5.00 p.m. appellants 1 and, 2 visited his house and appellant 1-Savakka informed that as her husbaitd suspecting her character and conduct was intending to finish her off, therefore she along with her mother and two persons from Bandrolli committed the murder of her husband-Krishnegouda. It is the further case of the prosecution that when father of P,W. 1 suspecting them was trying to get them arrested, these two accused approached P.W. 14. Unfortunately, this witness has turned hostile and even denies his acquaintance with A1 and A2 prior to the incident in question. He says A1 and A2 came to their house requesting him to send them to Sholapur to eke out livelihood. Except this, he does not know anything else about A1 and A2, During the cross-examination of this witness the prosecution was not able to elicit anything in support of the case of the prosecution.
17. The prosecution relied upon the evidence of P.W. 3, the grandson of A2-Mallawwa and son of Smt. Bhagawwa. He admits that deceased-Krishnegouda was living at Jeevapur. He has stated that he never made statement about the knowledge of death of Krishnegouda. The prosecution intended to establish that when the deceased and A1 were living in the house of A2-Mallawwa, the deceased used to suspect her character and quarrelled with her. He even threatened to finish her. After they
returned from Goa they went to Mabanur to attend the funeral of brother of P.W. 1 and came back. The prosecution further tried to bring out fact of this witness, that on 4-6-1995 at 12.00 noon when he was in the house along with Mallawwa, A1 and A3-Bhojappa, A4 and A5-Hanu-mantha came there. At about 3.00 p.m. they had lunch. A1 pulled the left hand of deceased and A2 pulled the right hand of deceased. When the deceased fell on the ground on his back A4 sat on both the legs and 3rd accused gave 7 or 8 blows with chilly grinding stone on the chest. A5-Hanumantha also hit him with iron scale on the head. Head was broken and there was heavy bleeding. The dead body was pushed into a gunny bag and kept in the granary of the house. The granary was covered with stones. He was frightened. A3 to A5 left the house. A1 and A2 were moving around stealthily. According to the prosecution the above information was given by this P.W. 3 when they visited the house of A2-Mallawwa. It further contended that he showed the place where Krishnegouda was murdered and pointed out the chilly grinding stone which was seized. In the cross-examination by the Prosecutor the above statement is totally denied except admitting the relationship between him and others. He even denies collection of bloodstained mud and sample mud at his instance in the house.
18. P.W. 11, the P.S.I. at the relevant time speaks about P.W. 1 visiting the police station and lodging the complaint. He says several persons accompanied P.W. 1 but he does not know who they were? P.W. 17 is the I.O. who completed the investigation. He is the one who recorded the statement of P.W. 3. Though this witness says P.W. 3 gave such statement, P.W. 3 himself has denied the said statement. According to this witness spot mahazar was drawn as shown by Pundalika. But however, the witnesses for the spot mahazar have turned hostile except P.W. 12. According to this witness at the instance of P.W. 3 several articles were seized i.e., bloodstained mud, sample mud, lungi from granary. He further says A3 gave voluntary statement as per Ex. P. 32 and showed the spot where the dead body was burnt. The said mahazar is at Ex. P. 32. It was land of P.W. 7-Bheemasheppa. Ex. P. 24 is the second spot mahazar. At a distance of two furlongs the river Malaprabha is situated where the burnt bones and ashes were thrown. Nothing was seized. Ex. P. 25 is the other mahazar. A4 and A5 were arrested on 2-10-1995. According to him, Exs. P. 33 and P. 34 are the voluntary statements. At Bandrolli A1 pointed out bloodstained iron scale which was seized under mahazar Ex. P. 20. A4-Suresh showed the bullock cart and two bullocks. They were seized under Ex. P. 21. However, bullocks and bullock cart were not at all produced before the Court. No doubt the RTC extract of land of Bheemasheppa was obtained. The Chemical Examiner Report at Ex. P. 38 says bones were not suitable for examination. It is pertinent to note that in the investigation report the Investigation Agency never thought of going to Goa to enquire whether Krishnegouda visited after Moharam. To go to Bandrolli to Jeevapur one has to go through the main road covering a distance of 25 kilometres. It was elicited through this witness that P.W. 2 had never stated that on
one afternoon he saw Krishnegouda and five accused talking and quarrelling with each other.
19. The prosecution is to establish the deceased-Krishnegouda, his wife Savakka after returning from Goa went to Mabanur to attend the funeral of uncle of Krishnegouda and later they came back to Jeevapur. According to the witness for the prosecution when A1 was seen moving alone in the village, on inquiry she informed them that the deceased-Krishnegouda had gone to Goa. P.W. 1 suspects her. No one visits Goa to know the whereabouts of Krishnegouda. The learned Public Prosecutor argued that at least the wife of the deceased i.e., A1-Savakka should have lodged the missing complaint if Krishnegouda was not seen. Ac-, cording to the defence after returning to Jeevapur the deceased-Krishnegouda went to Goa. It is also on record that P.W. 1 learnt from his deceased son that of late A1 was not looking after his son properly. Probably this must have made the deceased to leave A1 at Mabanur and go to Goa. If A1 was under the impression that deceased visited Goa, the question of lodging missing complaint will not arise.
20. The prosecution is not able to establish, any quarrel or misunderstanding between the husband and wife except from the evidence of P.W. 1. He does not have personal knowledge of such fact. They are not able to establish that the deceased-Krishnegouda was quarrelling with A1 to A5 at the relevant point of time in the house of A2-Mallawwa. The prosecution is not able to establish that in the house of A2 the deceased was done to death and he was secretly kept in granary and thereafter the dead body was removed to the land of Bheemasheppa at Bandrolli which is 25 kilometres away from Jeevapur where it was burnt. The dead body is not at all found. Even burning of the dead body in the land of P.W. 7 is not established. The bone pieces recovered were not suitable for chemical examination. Therefore, the important links of evidence are not established. The only established facts at the most in this case are that P.W. 1 suspected some foul play and visited his daughter-in-law and found her moving alone in the village. This will not lead us to anywhere in the absence of any connecting evidence. The learned Judge on imagination and surmises, mainly on the ground that she ought to have lodged a missing complaint as a dutiful wife when her husband was missing, has convicted A1, A2 and A5. Mere finding of some burnt bones will not definitely lead to the conclusion that the dead body of Krishnegouda was burnt there. According to the Trial Court P.W. 3 has not at all supported the case of the prosecution but strangely he convicts A5 against whom nothing is said. The seizure mahazar witness P.Ws. 6 and 13 have also not supported the case of the prosecution. Based on the evidence of P.W. 1-Hanumanthagouda, P.W. 2-Panduranga and P.W. 12, relative of P.W. 1 comes to the conclusion that, their evidence establishes beyond all reasonable doubt the guilt of the accused.
21. As already stated above except the fact that A1 was moving alone in the village no other incriminating circumstance is established against her much less against the other accused. If at all the deceased was last seen in the company of his wife, A1 ten days prior to Moharam, it
definitely does not mean she is guilty of any offence. It is quite natural for her, being the wife to move around with him. It is quite possible she was left alone in the village by her husband as he went to Goa. Just because she does not lodge missing complaint it would definitely not connect her to the murder of her husband. The important witnesses P.Ws. 3 and 14 have not supported the case of the prosecution. Just because A5 was living in the house of A2 when A1 and her husband visited the house of A2 we cannot connect the offence to A2 and A5. Though the Trial Court do not believe the case of the prosecution about the involvement of A3 and A4 while acquitting them surprisingly based on the same, evidence comes to the conclusion that A1, A2 and A5 are involved in the case. The Trial Court accepts that the recoveries were not proved. It has strangely come to the conclusion that it may be a fact that A1 and A2 confessed before P.W. 14 though P.W. 14 did not support the case of the prosecution. On surmise and imagination no one can be accused of guilty of an offence.
22. Viewed from any angle we are unable to agree and accept with the conclusions arrived at by the Trial Court in convicting A1, A2 and A5 i.e., the appellants herein.
23. This Court being the Court of first appeal has gone into the material placed before us in detail meticulously. The case of the prosecution as brought out does not establish the case of the prosecution. The so-called incriminating facts and circumstances brought on record by the prosecution are neither cogent nor reliable. At the most a case of strong suspicion against the accused could be made but it is well-established that the suspicion however strong, cannot take place of proof of a fact.
24. Under these circumstances, the judgment of conviction of the Trial Court deserves to be set aside and it is set aside. The appellants 1 to 3 i.e., A1, A2 and A5 are acquitted of the charges levelled against them.
25. It is directed that appellants 1 to 3 shall be set at liberty forthwith.