Karnataka High Court
Keshavegowda @ Keshava vs The State Of Karnataka on 3 July, 2023
Author: K.Somashekar
Bench: K.Somashekar
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NC: 2023:KHC:23187-DB
CRL.A No. 1422 of 2017
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 3RD DAY OF JULY, 2023
PRESENT
THE HON'BLE MR JUSTICE K.SOMASHEKAR
AND
THE HON'BLE MR JUSTICE RAJESH RAI K
CRIMINAL APPEAL NO. 1422 OF 2017
BETWEEN:
KESHAVEGOWDA @ KESHAVA,
S/O LATE HANUMANTHEGOWDA,
AGED ABOUT 44 YEARS,
R/O M.THIMMANAHALLI VILLAGE,
SHANTHIGRAMA HOBLI,
HASSAN TALUK,
HASSAN DISTRICT PIN CODE: 573 220.
...APPELLANT
(BY SRI. C.H. JADHAV, SENIOR ADVOCATE FOR
SRI. H.S. SURESH, ADVOCATE)
Digitally signed
by VINUTHA M
Location: HIGH AND:
COURT OF
KARNATAKA THE STATE OF KARNATAKA,
BY GORUR P.S.,
HASSAN DISTRICT,
PIN CODE: 573 120.
HASSAN DISTRICT
(THROUGH THE SPP,
HIGH COURT PREMISES,
BANGALORE - 560 011)
...RESPONDENT
(BY SRI. VIJAYAKUMAR MAJAGE, ADDL. SPP)
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NC: 2023:KHC:23187-DB
CRL.A No. 1422 of 2017
THIS CRL.A. IS FILED U/S.374(2) OF CR.P.C PRAYING TO
SET ASIDE THE JUDGMENT OF CONVICTION AND SENTENCE
DATED 19.7.2017 PASSED BY THE PRINCIPAL SESSIONS
JUDGE, HASSAN, IN S.C.NO.93/2013 - CONVICTING THE
APPELLANT/ACCUSED FOR THE OFFENCE P/U/S 302 AND 201
OF IPC.
THIS APPEAL, COMING ON FOR HEARING, THIS DAY,
K.SOMASHEKAR, J., DELIVERED THE FOLLOWING:
JUDGMENT
This appeal is directed against the judgment of conviction and order of sentence rendered by the Court of Principal Sessions Judge at Hassan in S.C.No.93/2013 dated 19.07.2017 whereby, the accused was convicted for the offences punishable under Sections 302 and 201 of Indian Penal Code, 1860 (hereinafter referred to as 'IPC' for short) and directed to undergo imprisonment for life and sentenced to pay a fine of Rs.25,000/- with default clause to pay fine amount, he shall suffer imprisonment for five years for the offence punishable under Section 302 of IPC. The accused shall further suffer imprisonment for five years and sentenced to pay a fine of Rs.10,000/- with default clause to pay fine amount, he shall suffer imprisonment for five years for the offence punishable under Section 201 of IPC.
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2. Heard Sri C.H.Jadhav, learned Senior counsel for the appellant and so also Sri Vijaykumar Majage, learned Additional SPP for the respondent-State and perused the impugned judgment of conviction and order of sentence rendered by the trial Court in S.C.No.93/2013.
3. The factual matrix of the appeal are as under:
It transpires in the case of the prosecution that on 29.12.2012 at about 9.30 p.m., in the limits of Thimmanahalli village, Hassan District which comes under the purview of Gorur Police Station, the accused namely Keshavegowda @ Keshava, keeping vengeance against the deceased Prakash @ Rangegowda in the matter of non-payment of damaged mobile price at Rs.2,000/- and the same was resolved to be payable by the deceased, when not paid, with an intention to commit the murder i.e., to eliminate the deceased near the tank of Mosale Village, the accused made him to consume Alcohol and told him to open net for getting fish. By saying so, the accused picked up quarrel with the deceased and assaulted on his face by means of fist and made him to fell inside the water and forcibly drowned him into the open tank. As a resultant, he caused his death.-4-
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4. In pursuance of the act of the accused, on filing of the complaint by the complainant, the criminal law was set into motion by registering the case in Cr.No.14/2013 for the offences punishable under Sections 302 and 201 of IPC. Prior to registration of the crime against the accused, the case in UDR No.1/2013 came to be registered on 01.01.2013 by Goruru Police Station at around 2.15 p.m. on the basis of the complaint given by PW.2-Parvathamma, who is none other than the wife of the deceased, as per Ex.P3. Subsequent to setting the criminal law into motion by registering the case in Cr.No.14/2013, the Investigation Officer has taken up the case for investigation and thorough investigation has been done. During the investigation, he recorded the statement of witnesses, drew the spot mahazar and also seizure mahazar in the presence of the panch witnesses and thereafter, dead body has been sent to mortuary and accordingly, the doctor-PW.17 conducted the autopsy over the dead body and issued post mortem report as per Ex.P16 and also noticed injuries which are reflected therein. The UDR FIR has been recorded as per Ex.P21 which bears the signature of PW.22 namely S.N.Jayaram. After receipt of the post mortem report as per -5- NC: 2023:KHC:23187-DB CRL.A No. 1422 of 2017 Ex.P16, PW.1 initiated the criminal case against the accused by filing the complaint as per Ex.P1 and the FIR was recorded as per Ex.P2. Subsequent to completion of the entire investigation, the Investigating Agency laid the charge sheet against the accused before the committal Court. Accordingly, the case was registered in C.C.No.397/2013 for the offences punishable under Section 302 and 201 of IPC. Subsequently, the committal Court passed an order under Section 209 of Cr.P.C. and committed the case to the Court of Sessions for trial. Accordingly, the case in S.C.No.93/2013 came to be registered and wherein, the accused has been secured for facing of a trial.
5. On prima-facie material find against the accused, learned Sessions Judge framed the charges against the accused for the offences punishable under Sections 302 and 201 of IPC whereby, the accused has declined the charges leveled against him. Accordingly, it was recorded.
6. Subsequent to framing of the charges against the accused for the aforesaid offences, the prosecution in order to prove the guilt of the accused, let in the evidence by subjecting -6- NC: 2023:KHC:23187-DB CRL.A No. 1422 of 2017 PW.1 to PW.22 for examination and got marked several documents at Exs.P1 to P22 and so also got marked Mos.1 to Mo.4. Subsequent to closure of the evidence on the parts of the prosecution, the incriminating statement as under Section 313 of Cr.P.C has been recorded by the trial Court wherein, the accused declined the evidence of the prosecution adduced so far. Subsequently, the accused was called upon to enter the defence evidence as contemplated under Section 233 of Cr.P.C., but the accused did not come forward to adduce any defence evidence. Accordingly, it was recorded.
7. Subsequent to closure of the entire evidence on the parts of the prosecution and so also on the parts of the defence counsel, the trial Court had appreciated the evidence relating to the contents of Spot mahazar at Ex.P5. Insofar as the evidence of PWs.2, 14, 15 and 21, the same has to be taken conjointly of PW.14-Kumara and PW.15-Shabbir Khan even though they have not supported the case of the prosecution, they have been around to the version of their statements and admitted their signatures found at Ex.P5. However, PW.2 in her evidence stated that the police drew the panchanama of scene of offence in the presence of two witnesses as per Ex.P5. The police -7- NC: 2023:KHC:23187-DB CRL.A No. 1422 of 2017 recovered MO.1-Shirt and Mo.2-Baniyan belongs to the deceased, who is none other than the husband of PW.2. PW.17, being the doctor, conducted the autopsy over the dead body and issued the post mortem report as per Ex.P16. The injuries found are external injuries. During the post mortem examination, the doctor found scalp and skull intact, meninges intact. He has opined that the death is due to asphyxia as a result of drowning and further opined as per Ex.P17 that if any person slaps with means of fist and push the deceased inside the water, the death can happened. These are all the evidence appreciated by the trial Court and recorded the conviction judgment based on the aforesaid evidence, which have been facilitated by the prosecution.
8. It is further observed that the entire case even though it is based upon the circumstances on record, the inference can be drawn that the accused made the deceased to consume alcohol and told him to open the net for catching the fishes and made him to fell into the Mosale Tank and forcibly drown him to that water tank and caused his death. These are the evidence which finds place on the parts of the prosecution and consequently, the prosecution has proved the guilt against -8- NC: 2023:KHC:23187-DB CRL.A No. 1422 of 2017 the accused under Sections 302 and 201 of IPC. Resultantly, the conviction held against the accused by drawing the inference even though the entire case is based upon the circumstances, whereas by urging various grounds, the judgment of conviction and order of sentence rendered by the trial Court has been challenged.
9. Sri C.H.Jadhav, learned Senior counsel for the appellant taken us to the role of the accused in causing the death of the deceased and mainly taken us to the circumstantial evidence. Even the circumstantial material collected by the prosecution, which are let in the aforesaid evidence by subjecting them to examination, wholly founds insufficient to establish the guilt against the accused with beyond reasonable doubt that the accused alone is responsible for causing the death of the deceased. However, there is three days inordinate delay in initiating the criminal proceedings against the accused by filing the complaint and there is no proper explanation as to why there was delay in filing the complaint by PW.2-Parvathamma, who is none other than the wife of the deceased. Although, the complaint came into existence after lapse of three days, it is the domain vested with -9- NC: 2023:KHC:23187-DB CRL.A No. 1422 of 2017 PW.2-Parvathamma to explain the delay in lodging the complaint. But, PW.2 has not stated in the complaint about making some enquiry about her husband with PW.11 or even the accused who is arraigned as the appellant in this appeal matter for tracing her husband. The conduct of PW.2- Parvathamma in not making enquiry on the date of incident or even on the following date on the parts of the prosecution is highly suspicious and doubtful. Therefore, viewed from any angle, her evidence is unacceptable.
10. The second limb of the arguments advanced by the learned Senior counsel is that of last seen theory. He submits that the last seen theory has to be established by legal evidence and acceptable evidence. Even PW.2-Parvathamma was subjected to examination, her evidence does not support the case of the prosecution in view of the delay in filing the complaint to initiate the prosecution case against the accused person.
11. PW.2-Parvathamma alleged in the complaint that at around 7.00 p.m. on 29.12.2004, the deceased Prakash went towards the Mosale tank, but PW.12 and PW.13 have deposed
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NC: 2023:KHC:23187-DB CRL.A No. 1422 of 2017 on the parts of the prosecution that around 6.15 p.m., the accused and the deceased were sitting and talking on the bank of the Mosale tank in the limits of Hassan District. The evidence that of the accused took the deceased or that the deceased went near the aforesaid tank voluntarily is also contradictory and unsustainable on the parts of the prosecution. Even certain witnesses have been subjected to examination for securing the conviction. The motive factor for commission of the murder is also not established by the prosecution by facilitating the worthwhile evidence and so also the acceptable evidence to secure the conviction. Therefore, in this appeal, it requires revisiting the judgment of conviction and order of sentence and more so, the evidence which has tendered by the prosecution to prove the guilt against the accused.
12. PW.8-Nagaraju on the parts of the prosecution has examined for establishing the motive factors. But his evidence is not absolutely supported on the parts of the prosecution in respect of the motive factor, but the motive is also not alleged in the complaint filed by PW.2-Parvathamma and it is introduced at a subsequent stage of investigation. Mere because the criminal law was set into motion by registering the
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NC: 2023:KHC:23187-DB CRL.A No. 1422 of 2017 crime, it cannot be taken place to root of conviction on the parts of the prosecution to secure the conviction.
13. PW.2 and PW.6 are the material witnesses on the parts of the prosecution. When PW.11-Rajanna who taken the mosale tank on lease by paying a sum of Rs.1,00,000/- to the complainant, which creates a serious doubt on the entire case of the prosecution. Even the opinion expressed by the doctor for cause of death is due to asphyxia as a result of drowning. There was no correspondence noticed by PW.17-doctor who conducted the autopsy over the dead body and issued the opinion report. But the doctor attributed that the injuries inflicted over the person of the deceased is with the sharp edge weapon, however, no weapon was seized at the instance of the accused. The entire theory of prosecution alleging that the accused has committed the murder of the deceased-Prakash by giving a fist blow and pushed him into the tank, but it is not based on any evidence but the same is only surmise or conjecture.
14. Even if the accused has committed the alleged offence, PW.11 was also arrested initially and after payment of
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NC: 2023:KHC:23187-DB CRL.A No. 1422 of 2017 Rs.1,00,000/-, he has been released and the innocent appellant is fixed in the instant case without any evidence and acceptable material collected by the Investigating Officer during the course of investigating. However, viewed from any angle, the evidence let in by the prosecution wholly insufficient to convict the accused for the offences under Sections 302 and 201 of IPC. Consequently, learned Senior counsel seeks intervention of the judgment of conviction and order of sentence, if not, certainly the accused would be sufferer and also causing miscarriage of justice to the accused.
15. In support of his contention, learned Senior counsel placed reliance on the judgment of the Hon'ble Supreme Court in the case of Shankar vs. State of Maharashtra reported in 2023 SCC OnLine SC 268 wherein, the Honb'ble Supreme Court referred the case of Sarbir Singh v. State of Punjab reported in (1973) 2 SCC 793 and held in paragraph 5 as under:
"5. In the decision in Sarbir Singh v. State of Punjab, this Court observed and held thus:--
"5. ...But in a case based on circumstantial evidence neither the accused nor the manner of occurrence is known to the persons
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NC: 2023:KHC:23187-DB CRL.A No. 1422 of 2017 connected with the victim. The first information report is lodged only disclosing the offence, leaving to the investigating agency to find out the offender.
16. But in the instant case, initially the case in UDR No.1/2013 has been registered based upon the complaint-Ex.P3 given by PW.2-Parvathamma But later on, on the basis of the complaint-Ex.P1, the criminal law was set into motion and then, the Investigation Officer taken up the case for investigation and thoroughly investigated the case and laid the charge sheet. Merely because laying of the charge sheet by the Investigation Officer against the accused, it cannot be said that the entire case of the prosecution founds to be gospel truth and the accused deserved for conviction. On these premises also, it requires interference, if not, the accused would be the sufferer and also miscarriage of justice would be caused. On all these premises, learned Senior counsel seeking for intervention and to set aside the judgment of conviction and order of sentence rendered by the trial Court as the prosecution has failed to establish the guilt against the accused by facilitating the worthwhile evidence and more so, the evidence beyond reasonable doubt for securing the conviction.
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17. On the other hand, learned Additional SPP for the respondent-State taken us through the evidence of PW.1 relating to complaint-Ex.P1 and PW.2-Parvathamma, who is none other than the wife of the deceased-Prakash and in her evidence, she reveals that the accused and the deceased were not in good terms and also there was some ill-will developed in between them relating to the damage of his mobile. However, the same was resolved despite of the which, there was some ill-will found in between the accused and the deceased. PW.1, is the author of the complaint at Ex.P1 and based upon the said complaint, the criminal law was set into motion by referring an FIR as per Ex.P2. Subsequently, Investigation Officer has taken up the case for investigation and drew the spot mahazar as per Ex.P5 in the presence of PW.2, PW.14 and PW.15 and the said spot mahazar was drawn by PW.21, who Investigated the case in part. The Investigation Officer has secured the voluntary statement of the accused as per Ex.P19 and the entire investigation has been done and later, the charge sheet has been laid against the accused inclusive of securing the post mortem report as per Ex.P16 and this report issued by PW.17, being the doctor, who conducted autopsy over the dead body
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NC: 2023:KHC:23187-DB CRL.A No. 1422 of 2017 and also noticed the injuries inflicted over the person of the deceased relating to abrasion and also on the nose. These are all the evidence finds place on the parts of the prosecution and that the evidence has been appreciated by the trial Court inclusive of MO.1 to MO.3. But the entire case even though rests upon the circumstantial evidence, the main evidence are PW.2, PW.14, PW.15 and PW.16. These evidence have been appreciated by the trial Court for arrival of a conclusion that the prosecution proved the guilt against the accused persons by rendering the conviction judgment for the offence punishable under Sections 302 and 201 of IPC. Therefore, in this appeal, the judgment of conviction and order of sentence passed by the trial Court does not call for any intervention and there is no warranting circumstance to interfere.
18. But the entire case is based upon the circumstantial evidence and also the last seen theory in the company of the accused with the deceased. Merely because there shall be some discrepancies and also inconsistencies, it cannot be justifiable to seek intervention relating to conviction judgment rendered by the trial Court for the heinous offences under Sections 302 and 201 of IPC. On these premises, learned Additional SPP for
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NC: 2023:KHC:23187-DB CRL.A No. 1422 of 2017 the respondent-State in this matter seeking dismissal of this appeal being devoid of merit and confirm the judgment of conviction and order of sentence rendered by the trial Court.
19. It is in this context of the contention made by Sri C.H.Jadhav, learned Senior Counsel for the appellant and so also the learned Additional SPP for the respondent-State, but the entire case rests upon the circumstantial evidence so also the last seen theory. PW.17, being the doctor, issued the post mortem as per Ex.P16. But post mortem report indicates the injuries such as (1) Abrasion 3 x 3 cms, front of neck, antemortem in nature. (2) Nose is depressed antero-posterioly and (3) Teeth 2 incisors and one canine is missing, antemortem in nature. The doctor, who conducted the autopsy over the dead body and issued the post mortem, opined that the death is asphyxia as a result of drowning. The doctor also observed that the injuries caused by scuffle on assault could have been caused by hand or wooden stick. These are all the observations made by the trial Court to arrive at a conclusion relating to the offence under Sections 302 and 201 of IPC.
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20. PW.6-Kanthamma and PW.7-Jayalakshmi have been subjected to examination on parts of the prosecution. Their evidence reveals that they came to know that one month prior to the incident, the accused along with one Revanna and Nagamma and her son went near the Tank to consume alcohol and as there was altercation, the accused video graphed the entire altercation in his mobile. Hence, the deceased snatched his mobile and broken it. This issue has been resolved by compensating Rs.2,000/- to the accused towards the damage of his mobile phone and on the date of the incident, the accused taken the deceased near the Mosale Tank in the limits of Hassan District with an intention to take away his life by pushing him inside the tank. They came to know that the accused made the deceased to consume alcohol and pushed him inside the Mosale Tank with an intention to take away his life. Their evidence is nothing but only hearsay evidence. However, the prosecution has even set up that this is the motive for the accused to kill him. It is elicited in their evidence that one fisher man namely Raja, the lease holder of Mosale Tank was taken to the police station on suspicion and he was released on deposit of Rs.1,00,000/- in the name of minor
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NC: 2023:KHC:23187-DB CRL.A No. 1422 of 2017 children of PW.2-Parvathamma and elicited that the police told that the offence was committed by the accused person. These are all the evidence finds place on the parts of the prosecution. But the entire case rests upon the circumstantial evidence and the vital witnesses namely PW.3-Revanna, PW.4-Yogeesh, PW.5-Krishnegowda, PW.8-Nagaraja, PW.9-Sundresha and PW.10-Gopi have been subjected to examination on the parts of the prosecution but they did not support the case of the prosecution to any extent. Mere because voluntary statement of the accused has been recorded by the Investigating Officer and based upon his voluntary statement, Investigating Officer has taken up the case for investigation and even conducted the spot mahazar as per Ex.P5 in the presence of PW.2- Parvathamma and PW.14-Kumara, it cannot be said that the entire prosecution theory appears to be gospel truth and also prove the guilt against the accused beyond all the reasonable doubt. PW.10 has been subjected to examination and contradictory statement at Ex.P10 has been got marked. Similarly, PW.11, PW.12 and PW.13 have been subjected to examination and their voluntary statements have been marked at Exs.P12, P13 and P14. PW.3, PW.4, PW.5 and PW.8 have
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NC: 2023:KHC:23187-DB CRL.A No. 1422 of 2017 been subjected to examination and they did not withhold the version of their statements. Consequently, the contrary statements were got marked as per Exs.P6 to P9.
21. At a cursory glance of the entire evidence, it appears that the case on hand rests upon the circumstantial evidence so also the last seen theory. Therefore, it requires to refer to the judgment rendered by the Hon'ble Supreme Court in the case of Chandrapal vs. State of Chhattisgarh (Earlier M.P.) reported in 2022 SCC OnLine SC 705. In this judgment, the Hon'ble Supreme Court addressed the issue relating to last seen together theory - Held, conviction cannot be based solely on the basis of last seen together theory when possibility of suicidal death is not ruled out - Accused convicted in honour killing case acquitted. In this judgment, the Hon'ble Supreme Court referred the case of Sharad Birdhichand Sarda vs. State of Maharashtra reported in (1984) 4 SCC 116 laid down in paragraph 152 and it also referred to a close analysis of this decision would show that the following conditions must be fulfilled before a case against an accused can be said to be fully established: (1) the circumstances from which the conclusion of guilt is to be drawn should be fully
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NC: 2023:KHC:23187-DB CRL.A No. 1422 of 2017 established. It may be noted here that this Court indicated that the circumstances concerned "must or should" and not "may be" established. There is not only a grammatical but a legal distinction between "may be proved" and "must be or should be proved" as was held by this Court in Shivaji Sahabrao Bobade v. State of Maharashtra reported in (1973) 2 SCC 793, "Certainly, it is a primary principle that the accused must be and not merely may be guilty before a court can convict and the mental distance between 'may be' and 'must be' is long and divides vague conjectures from sure conclusions." (2) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty. (3) the circumstances should be of a conclusive nature and tendency, (4) they should exclude every possible hypothesis except the one to be proved, and (5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused. It is also needless to reiterate that for the purpose of proving the charge for the
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NC: 2023:KHC:23187-DB CRL.A No. 1422 of 2017 offence under Section 302, the prosecution must establish "homicidal death" as a primary fact. In order to convict an accused under Section 302, the Court is required to first see as to whether the prosecution has proved the factum of homicidal death.
22. So far as the facts of present case are concerned, PW-17, being the doctor, conducted autopsy of the dead body of deceased and issued post-mortem report as per Ex.P16. Mere because issuance of post-mortem report, it cannot be said that the accused caused the injuries inflicted over the person of the deceased. The causing of the death and the death taken place appears to be the theory set up by the prosecution and the complaint, lodged by PW.2-Parvathamma, after lapse of three days was to set the criminal law into motion. However, she was not in a position to explain for delay in lodging the complaint. When there is a theory set up by the prosecution, there appears to be some doubt and also inconsistence, the benefit is accrued to the accused alone. But the entire case rests upon the circumstantial evidence. It was imperative for the prosecution to prove the case beyond reasonable doubt.
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23. On totality of the circumstance of the entire case, it founds that the prosecution has miserably failed to prove the guilt against the accused. But in the instant case, it is relevant to refer the judgment of Ram Niwas vs. State of Haryana reported in 2022 SCC OnLine SC 1007 in this judgment, the Hon'ble Supreme Court has been addressed the issues relating to scope of Sections 302 and 201 of IPC inclusive of Sections 3 and 27 of the Indian Evidence Act, 1872. In this judgment, it is indicted that certainly, it is a primary principle that the accused must be and not merely may be guilty before a court can convict and the mental distance between 'may be' and 'must be' is long and divides vague conjectures from sure conclusions. The aforesaid five golden principles, if we may say so, constitute the panchsheel of the proof of a case based on circumstantial evidence. This Court has held that there has to be a chain of evidence so complete so as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused. It has been held that the circumstances should be of a conclusive nature and tendency. This Court has held that the
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NC: 2023:KHC:23187-DB CRL.A No. 1422 of 2017 circumstances should exclude every possible hypothesis except the one to be proved. It has been held that the accused 'must be' and not merely 'may be' guilty before a Court can convict. It is settled law that the suspicion, however strong it may be, cannot take the place of proof beyond reasonable doubt. An accused cannot be convicted on the ground of suspicion, no matter how strong it is.
24. In the instant case, the trial Court held conviction for the offences punishable under Sections 302 and 201 of IPC. That merit of the statement is an important aspect. It is well known principle of law that the reliance can be based on the solitary statement of the witnesses if the Court come to the conclusion that the said statement is true version and correct version of the case of the prosecution. This issue was extensively addressed by the Hon'ble Supreme Court in Raja vs. State reported in (1997) 2 Crimes 175 (Del).
25. The plurality of witnesses concept has been extensively addressed by the Hon'ble Supreme Court in the case of Laxmibai (Dead) through LRs. vs. Bhagwanthbura (Dead) through LRs. reported in AIR 2013 SC 1204. In the
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NC: 2023:KHC:23187-DB CRL.A No. 1422 of 2017 matter of appreciation of evidence it is not the number of witnesses but quality of their evidence which is important, as there is no requirement in law of evidence that any particular number of witnesses is to be examined to prove/disprove a fact. It is time honoured principle, that the evidence must be weighed and not counted. The test is whether the evidence has a ring of truth, is cogent, credible and trustworthy or otherwise. The legal system has laid emphasis on value provided by each witness, rather than the multiplicity or plurality of witnesses. It is quality and not quantity, which determines the adequacy of evidence as has been provided under Section 134 of the Evidence Act.
26. The trial Court rendered the conviction under Sections 302 and 201 of IPC even though the prosecution failed to establish the guilt against the accused by facilitating the worthwhile evidence. Therefore, in this appeal, it requires to be intervened, if not, certainly the accused would be the sufferer and also there shall be some miscarriage of justice. Therefore, the evidence which are let in by the prosecution are founds to be suffered from infirmities and perversities. Consequently, it requires intervention and accordingly, we opined that in terms
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NC: 2023:KHC:23187-DB CRL.A No. 1422 of 2017 of the aforesaid reasons and finds, we are of the opinion that the appellant/accused deserves for acquittal for the aforesaid offences. Accordingly, intervened.
27. Therefore, in view of the aforesaid reasons and findings, we proceed to pass the following:
ORDER i. The appeal preferred by the appellant/accused respectively, under Section 374(2) of Cr.P.C. is hereby allowed.
ii. Consequent upon allowing the appeal, the judgment of conviction and order of sentence rendered by the trial Court in S.C.No.93/2013 dated 19.07.2017 is hereby set aside.
iii. Consequent upon setting aside the judgment of conviction stated supra, the appellant/accused is hereby acquitted for the offences punishable under Sections 302 and 201 of IPC, 1860 for which, he held charged.
iv. If the appellant/accused has executed any bail bond, the same shall stand cancelled.
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NC: 2023:KHC:23187-DB CRL.A No. 1422 of 2017 v. If the appellant/accused has deposited any fine amount, the same shall be ordered to be refunded to him on due identification.
Accordingly ordered.
Sd/-
JUDGE Sd/-
JUDGE VM List No.: 1 Sl No.: 12