Karnataka High Court
Moodalagiri Gowda K T vs State Of Karnataka on 31 January, 2022
Author: B. Veerappa
Bench: B. Veerappa
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 31ST DAY OF JANUARY, 2022
PRESENT
THE HON'BLE MR. JUSTICE B. VEERAPPA
AND
THE HON'BLE Mrs. JUSTICE M.G. UMA
CRIMINAL APPEAL NO.1649/2018
BETWEEN:
MOODALAGIRI GOWDA K T
@ MOODALAGIRI RAJA @ RAJA @ K T RAJA,
S/O K. T. THIMME GOWDA,
AGED ABOUT 37 YEARS,
R/O KARIGONDANAHALLI - 572 215.
DANDINASHIRA, HOBLI,
DAMBRAHALLI, TQ: TURUVEKERE,
DISTRICT TUMKUR.
PRESENTLY AT CENTRAL PRISION (CTP9814),
BENGALURU.
... APPELLANT
(BY SRI. B. ANAND, ADVOCATE)
AND:
STATE OF KARNATAKA
R/ BY CPI, KUNDAPURA P S,
NOW R/BY STATE
PUBLIC PROSECUTOR,
HIGH COURT BUILDING,
BENGALURU - 560 001.
... RESPONDENT
(BY SRI. K. NAGESHWARAPPA, HCGP FOR STATE/RESPONDENT)
2
THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374(2)
CR.P.C PRAYING TO SET ASIDE THE JUDGMENT AND ORDER OF
CONVICTION DATED 11.10.2017 AND SENTENCE DATED
13.11.2017 PASSED BY THE ADDITIONAL DISTRICT AND
SESSIONS JUDGE, UDUPI SITTING AT KUNDAPURA IN
S.C.NO.53/2013- CONVICTING THE APPELLANT/ACCUSED FOR THE
OFFENCE P/U/S 302, 201, 511, 392, 404 OF IPC.
THE APPELLANT/ACCUSED IS SENTENCED TO UNDERGO LIFE
IMPRISONMENT AND TO PAY FINE OF RS.40,000/- AND IN
DEFAULT OF PAYMENT OF FINE HE SHALL UNDERGO FURTHER
SIMPLE IMPRISONMENT FOR 2 YEARS FOR THE OFFENCE P/U/S 302
OF IPC.
FURTHER, THE APPELLANT/ACCUSED IS SENTENCED TO
UNDERGO RIGOROUS IMPRISONMENT FOR A PERIOD OF 7 YEARS
AND TO PAY FINE OF RS.10,000/- AND IN DEFAULT OF PAYMENT
OF FINE HE SHALL UNDERGO FURTHER SIMPLE IMPRISONMENT
FOR 2 MONTHS FOR THE OFFENCE P/U/S 201 OF IPC.
FURTHER, THE APPELLANT/ACCUSED IS SENTENCED TO
UNDERGO RIGOROUS IMPRISONMENT FOR A PERIOD OF 7 YEARS
AND TO PAY FINE OF RS.10,000/- AND IN DEFAULT OF PAYMENT
OF FINE HE SHALL UNDERGO FURTHER SIMPLE IMPRISONMENT
FOR 2 MONTHS FOR THE OFFENCE P/U/S 511 OF IPC.
FURTHER, THE APPELLANT/ACCUSED IS SENTENCED TO
UNDERGO RIGOROUS IMPRISONMENT FOR A PERIOD OF 10 YEARS
AND TO PAY FINE OF RS.10,000/- AND IN DEFAULT OF PAYMENT
OF FINE HE SHALL UNDERGO FURTHER SIMPLE IMPRISONMENT
FOR 2 MONTHS FOR THE OFFENCE P/U/S 392 OF IPC.
FURTHER, THE APPELLANT/ACCUSED IS SENTENCED TO
UNDERGO RIGOROUS IMPRISONMENT FOR A PERIOD OF 2 YEARS
AND TO PAY FINE OF RS.5,000/- AND IN DEFAULT OF PAYMENT OF
FINE HE SHALL UNDERGO FURTHER SIMPLE IMPRISONMENT FOR 1
MONTH FOR THE OFFENCE P/U/S 404 OF IPC.
EXCEPT DEFAULT SENTENCE, ALL THE SENTENCES SHALL
RUN CONCURRENTLY.
THE APPELLANT/ACCUSED PRAYS THAT HE BE ACQUITTED.
THIS CRIMINAL APPEAL COMING ON FOR FINAL HEARING
THIS DAY, THROUGH VIDEO CONFERENCE M.G. UMA J.,
DELIVERED THE FOLLOWING:
3
JUDGMENT
The appellant being the accused in S.C.No.53/2013 on the file of the learned Additional District & Sessions Judge, Udupi, sitting at Kundapura (herein after referred to as 'trial Court') is impugning the judgment of conviction dated 11.10.2017 and order of sentence dated 13.11.2017, convicting him for the offence punishable under Section 302 of IPC and sentencing to undergo life imprisonment and pay fine of Rs.40,000/- and in default to pay fine, to undergo further simple imprisonment for two years; under Section 201 of IPC, sentencing to undergo rigorous imprisonment for seven years with fine of Rs.10,000/- and in default to pay fine, to undergo further simple imprisonment for two months;
under Section 511 of IPC, sentencing the accused to undergo rigorous imprisonment for seven years and to pay fine of Rs.10,000/- and in default to pay fine, to undergo further simple imprisonment for two months; under Section 392 of IPC, sentencing to undergo rigorous imprisonment for ten years and to pay fine of Rs.10,000/- and in default to pay fine, to undergo further simple imprisonment for two months;
under Section 404 of IPC, sentencing to undergo rigorous 4 imprisonment for two years and to pay fine of Rs.5,000/- and in default to pay fine, to undergo further simple imprisonment for one month.
2. Brief facts of the case as made out by the prosecution is that on 07.03.2012, PW.1 found that there was a foul smell emitting from the canter lorry and peeped into it by lifting the tarpaulin and found a dead body of an unknown person. There were dried blood stains in the canter. PW.1 suspected that somebody must have murdered the unknown person about three days earlier. Therefore, he requested Kargal Police to register the case and to investigate into the same. Accordingly, the Kargal Police registered FIR in Crime No.121/2012 against unknown persons for the offences punishable under Sections 302 and 201 of IPC.
3. During investigation, it was found that on 03.03.2012, the accused had accompanied one Siddesh.A.N. alias Raju as the said Siddesh.A.N. was transporting paper load from Thandavapura of Nanjangudu, Mysuru District, which is to be delivered to Omkar Packaging Factory situated in Koteshwara of Kundapura Taluk. In the canter lorry bearing 5 Reg.No.KA 41-7206, both of them reached Koteshwara in the morning on 04.03.2012 and unloaded the paper and Siddesh received cash of Rs.20,000/- and kept it with him. The same was noticed by the accused who accompanied Siddesh and on the same day at about 11.00 p.m., when canter lorry was parked in the service road, adjacent to New Sangam Transport Company and when the owner-cum-driver, Siddesh was sleeping inside the canter lorry, the accused with an intention to rob the cash of Rs.20,000/- from Siddesh, assaulted him with a wheel spanner on his head and caused his death. After robbing Rs.20,000/- and the mobile phone of the deceased-Siddesh, accused has driven the canter lorry in question up to Thrasi Beach and with an intention to destroy the evidence of commission of the offence, thrown the mobile handset of the deceased and abandoned the canter lorry by the side of Kargal-Bhatkala road near the garden land belonging to one Sathyanarayana Bhat. Thereby, the accused committed the murder of Siddesh by assaulting on his head with a wheel spanner, robbed Rs.20,000/-, dishonestly misappropriated the amount, took the canter lorry and abandoned it by the side of the road covering the dead body 6 with a tarpaulin, took the mobile handset of the deceased and threw it separately. Thereby, the accused caused disappearance of evidence of the offence and committed the aforesaid offences. Accordingly, charge sheet came to be filed by the Investigating Officer against the accused. The learned Magistrate took the cognizance of the offence, secured the presence of the accused and committed the matter to the learned Sessions Court. The trial Court secured the presence of the accused, framed charges and read over to the accused in the language known to him, who pleaded not guilty for the charges leveled against him for the above said offences and claimed to be tried.
4. In order to prove the case of the prosecution, it has examined as many as 28 witnesses as PWs.1 to 28 and got marked Exs.P1 to P48 and material objects MO.1 to MO.22. The accused denied all the incriminating materials available on record in his statement recorded under Section 313 of Cr.P.C., but has not chosen to lead any evidence in support of his defence. The trial Court, after taking into consideration all these materials on record, came to the conclusion that the prosecution is successful in proving the 7 guilt of the accused beyond reasonable doubt and has accordingly passed the impugned judgment of conviction and order of sentence.
5. Being aggrieved by the impugned judgment of conviction and order of sentence passed by the trial court, the accused is before this Court.
6. We have heard the learned counsel for the parties.
7. Sri. B.Anand, learned counsel for the appellant/accused contended that the impugned judgment of conviction and order of sentence passed by the trial court is illegal, perverse and the same is liable to be set aside. The contention of the prosecution that the accused had made extra judicial confession with PW.12 cannot be accepted. The evidence of PW.14 who stated that he had last seen the deceased in the company of the accused is not believable as the same is artificial. The statement of this witness was recorded about a month after the date of the incident. The recovery of MO.14 and MO.15 at the instance of the accused is not proved. In fact, the mobile phone belonging to the 8 deceased was said to have been recovered from PW.4. There is absolutely no material to connect the accused to the offence in question. However, accused was apprehended about one month after the incident, that too at Bhadravathi Railway Station. Since there are no legal evidences placed before the Court to prove the guilt of the accused, he is entitled to be acquitted. The evidence produced by the prosecution is full of contradictions and the same cannot be relied on to convict the accused. Therefore, he prays for allowing the criminal appeal by setting aside the impugned judgment of conviction and order of sentence passed by the trial Court.
8. Per contra, Sri. K.Nageshwarappa learned High Court Government Pleader supporting/justifying the impugned judgment of conviction and order of sentence passed by the trial Court, submitted that the case of the prosecution rests on circumstantial evidence. PW.12 deposed before the trial Court regarding extra judicial confession made by the accused after commission of the offence. PW.14 an independent witness categorically stated that he had last seen the deceased in the company of the accused. Moreover, under the 9 spot mahazar-Ex.P17, the incriminating materials i.e., MO.15 and MO.16 were recovered at the instance of the accused.
PW.19 supported the recovery of the incriminating materials at the instance of the accused. The MO.15-the iron wheel spanner and MO.16-the shirt produced by the accused were blood stained. PW.21-the Doctor who conducted postmortem examination opined that the death of the deceased was due to head injury sustained. Under such circumstances, the prosecution is successful in proving the entire chain of circumstances and connecting the accused to the offence in question. Thereby, it has proved the guilt of the accused beyond reasonable doubt. There are no reasons to interfere with the impugned judgment of conviction and order of sentence passed by the trial Court. Therefore, he prays for dismissal of the criminal appeal as devoid of merits.
9. In view of the rival contentions urged by learned counsel for the parties, the only point that would arise for our consideration in this appeal is:
"Whether the appellant/accused has made out a case to interfere with the impugned judgment of conviction and order 10 of sentence passed by the trial Court, in the facts and circumstances of the case?"
10. We have given our anxious consideration to the arguments advanced by the learned counsel for the parties and perused the entire materials on record including the Trial Court records carefully.
11. This Court being the Appellate Court, in order to re-appreciate the entire materials on record it is relevant to consider the evidence of the prosecution witnesses and the documents relied upon.
(i) PW.1-Rajendra is the informant who lodged the first information as per Ex.P1.
He had noticed the dead body of the deceased inside the canter lorry from which a foul smell was emitting and informed the police by filing the first information. This witness is also a witness to the spot mahazar-Ex.P2 and seizure of MO.1 to MO.11.
(ii) PW.2-Dhayananda.K.V., is the friend of the deceased-Siddesh who identified the dead body of the deceased-Siddesh.
11(iii) PW.3-M.N.Rakesh, is the relative of deceased-Siddesh had deposed that he had exchanged his MAXX mobile with the deceased and identified the said mobile handset as MO.12, which was with the deceased.
(iv) PW.4-Rajesh Devadiga, is a chance witness who deposed that on 05.03.2012, he found MO.12, the mobile handset near Thrasi Beach on the service road near NH.66 and he started using it. Later he came to know that the mobile handset belongs to the person who was murdered.
Ex.P4 is the spot mahazar drawn in presence of this witness where MO.12 was found.
(v) PW.5-Nagaraja Bettin, is the Managing
Director/owner of Omkar Packaging
Factory and stated that on 04.03.2012, a canter lorry loaded with paper had came from Mysuru and on that day he was not present in the Factory. On 05.03.2012, when he came to the Factory and saw some vouchers on the table and on enquiring the same with his Manager, he came to know about unloading of paper and payment of Rs.10,500/- made to the 12 driver of the canter lorry bearing Reg.No.K-47-726. The invoice issued in that regard is at Ex.P5 and receipt is Ex.P6.
(vi) PW.6-Dinesh is an employee working in Omkar Packaging Factory who stated that the canter lorry bearing Reg.No.KA-41-
7206 had came to the Factory on 04.03.2012. Since it was a Sunday, he refused to unload the papers. However, subsequently, he unloaded the papers and received Rs.10,500/- from the owner of the Factory and the same was paid to the driver of the canter lorry. Witness stated that the person who came in the lorry was fair and lean and was aged about 30-35 years, who was the driver of the lorry and another person was dark in colour, aged about 35-40 years. The voucher and the receipt are as per Exs.P5 and P6. This witness identified the accused as one of the person who had came in the lorry and unloaded the paper on 04.03.2012. During cross-examination, this witness stated that he cannot identify all the persons who visit the factory. Witness stated that he had stated before the police that one person was fair and thin and the other person was 13 dark and hefty. Witness admitted that the accused who was in the Court is not a hefty person. However, he denied the suggestion that he is deposing falsely.
(vii) PW.7-Pradeep is a coolie in Omkar Packaging Factory and stated that on 04.03.2012 the canter lorry bearing Reg.No.KA-41-7206 had came to the Factory with two persons in it. One person was hefty and other one was lean, aged about 25 years. They unloaded the paper. Witness identified the accused before the court and stated that he is one of the person who came in the canter lorry.
During cross-examination, witness admitted that the accused who was in the court is not a hefty person. However, he denied the suggestion that he is deposing falsely.
(viii) PW.8-Nirvana Swamy is the father of the deceased-Siddesh who identified the dead body of the deceased and stated that he got released the canter lorry, mobile and watch of the deceased from the court.
(ix) PW.9-Mariyaiah is the First Division Assistant in the Taluk Office, Byluru and 14 deposed that during first week of March- 2012, deceased-Siddesh had called him and enquired about his property.
Subsequently, he had not called him. Then this witness came to know that the deceased-Siddesh is murdered.
(x) PW.10-Sarvotthali stated that he is doing transport business and deceased-Siddesh had introduced himself as the owner of canter lorry bearing Reg. No.KA-41-7206. Witness further stated that occasionally the deceased-Siddesh used to transport articles in his canter lorry. Later he came to know that deceased-Siddesh has been murdered.
(xi) PW.11-Manjunatha, the employee of Shreerama Transport Company, deposed that the accused was appointed as a driver in the said Company during the year 2009. Since the accused caused an accident, he left the job. However, the accused was in touch with him over phone. Accused had also requested for a rented house and had given Rs.500/- as advance. On 17.03.2012, the police informed that the accused has murdered one person and asked the details of the accused. On 15 16.03.2012, the accused had informed him that he has caused the murder of Siddesh on 04.03.2012 and robbed the cash from him. He also informed that he had received a call suspecting to be from the police and therefore, he destroyed the SIM card and purchased the new mobile number, he had also got back Rs.500/-
which he had paid as advance. This witness was treated partially hostile and during cross-examination by the learned prosecutor, witness denied the suggestion that he had given statement as per Ex.P10.
(xii) PW.12-Shivakumar Swamy is the star witness to the prosecution, who stated that he knows the accused since 10 years. Very frequently they used to party. During March-2012, the accused had invited him to Chamundeshwari Wines, which was situated at Gubbi. Accordingly, he had gone there from Thornahalli and had dinner with the accused. Accused repaid Rs.500/- which was due to him and informed that he has caused murder of his friend in a canter lorry at Mangaluru National Highway. Thereafter, he gave a lift to the accused in his two-wheeler. This 16 witness identified the accused before the Court.
(xiii) PW.13-S.M.Wasim is the Transporter in Kundapura. Witness deposed that during March-2012, the police have visited his transport office along with a person and enquired as to whether the said person had come to his office earlier. But he could not identify the said person.
Witness also stated that he cannot identify the accused before the Court. Therefore, the witness was treated hostile and the learned prosecutor cross examined the witness. During cross-examination, witness denied the suggestion that he has given statement as per Ex.P11.
(xiv) PW.14-Ramesh Kundar is also a
transporter in Kundapura. He has stated
that during the year 2012, two persons came to his office. One person was lean and fair whereas the other was dark and hefty. They enquired as to whether there is any load to be transported. They sat in his office for sometime watching TV and thereafter went away. Witness stated that about a month thereafter, the police have shown one of the person and asked 17 whether he can identify him. Witness stated that the said person was the same person who visited his office who was dark and hefty. He identified the said person as accused before the Court.
(xv) PW.15-Suresh Bettin is the owner of Omkar Packaging Factory. Witness stated that he prepares paper box and he purchased roll paper for packs from Nanjanagudu. During March-2012, the paper load from Mysuru had arrived to his office at Koteshwara. Since it was a Sunday, no coolies were available.
However, he arranged for unloading the paper load. The driver and another person had accompanied him and unloaded the paper load. He paid Rs.10,500/- to the Driver. Witness identified the delivery receipt as per Ex.P12 and the cash receipt as per Ex.P6 and the Tax Invoice is as per Ex.P13, which were issued by his office.
(xvi) PW.16-Mohan Naika is panch witness to Ex.P2-the spot mahazar where the dead body of the deceased was found. Witness stated that the police have seized tarpaulin, chappal and other belongings related to the dead body of the deceased.
18Witness stated that he was also present when the inquest mahazar as per Ex.P14 was drawn.
(xvii) PW.17-Huligowda is the relative of the deceased-Siddesh. Witness stated that he identified the dead body of deceased- Siddesh, which was found in the canter lorry. There was bleeding injury on his head. The inquest mahazar as per Ex.P14 was drawn in his presence and had taken the dead body to perform last rites.
(xviii) PW.18-Nagaraj is the mahazar witness to Ex.P4. Witness stated that the police had taken him to the spot where the mobile was found and PW.4-Raju Devadiga was also brought to that spot. Witness stated that the police took his signature to the document with regard to seizing of mobile through PW4 - Raju Devadiga. However, witness stated that he cannot identify the said mobile phone.
(xix) PW.19-K.A.Kumarswamy, the witness, who stated that he was summoned by the Investigating Officer to the police station. Witness further stated that the accused had given voluntary statement before the 19 police and he produced the driving licence relating to one Mahadeva and railway ticket. The same was seized by the police under seizure mahazar-Ex.P16. Later the accused led them to the industrial area in Koteshwara and showed the place where the paper was unloaded. He also showed the spot where he committed murder of Siddesh. Thereafter, the accused went towards a bush by the side of the road and produced a shirt and iron tool. The same was seized under Ex.P17. Witness identified the spanner produced by the accused as MO.15 and the blood-stained shirt as MO.16. Witness identified the mahazar drawn in his presence as Ex.P18. Witness also identified the photos at Exs.P21 to P33, which were taken in the police station where the canter lorry in question was parked.
(xx) PW.20-Shivananda, the police constable, Sagara police station. Witness stated that he carried 17 articles to the Davangere FSL, for examination. The report is as per Ex.P34.
(xxi) PW.21-Dr.Chidananda.P.S. who conducted postmortem examination of the deceased-
20Siddesh. Witness stated that on 08.03.2012 between 10.30 a.m. to 11.30 a.m., he conducted such examination. The dead body was decomposed and was emitting foul smell. The clothes which were found on the dead body was packed, sealed and labeled individually. Then the same were handed over to the police. He noticed five external injuries as noted in the postmortem report marked as Ex.P35. He opined that the death of the deceased was due to head injury sustained. Witness further stated that the Investigating Officer had sent a spanner rod on 11.07.2012 and sought his opinion as to whether the death of the deceased could be caused if he was hit by the said spanner rod. Witness also sated that he verified the spanner rod and gave his opinion as per Ex.P36. Witness identified the said spanner rod as MO.15 and stated that if the deceased was hit with the same, the injuries mentioned in the postmortem report could be caused.
Witness also identified MO.18 to MO.21 as the clothes of the deceased.
(xxii) PW.22-Gajendra Banakar is the police constable, who was deputed to look after 21 the dead body of the deceased in Shivamogga Medical Hospital. Witness stated that it was requested to the head of forensic medicine in KIMS, Shivamogga to subject the dead body of the deceased for postmortem. Accordingly, witness stated that on 08.03.2012, the postmortem examination was held and after completion of the same, the dead body of the deceased-Siddesh as well as one titan gold colour watch along with clothes and other belongings found on the dead body was received and the body was handed over to one Huligowda and took endorsement from him. Witness identified MO.14 as the wrist watch belonging to the deceased.
(xxiii) PW.23-Prakasha is the police constable who was deputed to trace the accused. Witness stated that he along with other staff found that the mobile handset belonging to the deceased was active near Thrasi Village near Kundapura.
Accordingly, they went in search of the person who was in possession of the said mobile handset. On 13.03.2012, they traced PW.4-Rajesh Devadiga who was using the said mobile handset in question and he was apprehended and the mobile 22 handset was seized, which is seen in the photo-Ex.P3. On verification, it was found that the messages relating to the deceased were received in the said mobile. The said messages led the Investigation team to Omkar Packaging Factory and found that the lorry in question had came to Omkar Paper Factory on 04.03.2012. Thereafter, they searched for the accused and apprehended him in Bhadravathi Railway station and produced him before the Investigating Officer.
(xxiv) PW.24-Dr. Bhargavi, the Scientific Officer, Regional Forensic Science Laboratory, Davanagere, deposed before the court that she had examined the articles sent to her and she issued the report as per Ex.P38.
(xxv) PW.25-Sundara, who was the head constable of the Sagara Rural Police Station, handed over the case file along with the seized articles to the station house officer of Kundapura Police Station on 19.04.2012 as the investigation was transferred to the said police station on the basis of the jurisdiction.
23(xxvi) PW.26-Madhappa, the police inspector deposed that on 07.03.2012, when he was proceeding to Shivamogga court to give his evidence in a criminal case, on the way he received phone call from ASI, Kargal Police Station and informed that an unidentified dead body is said to have been found in a canter. Accordingly, he directed the said ASI to visit the spot. Subsequently, he also went to the spot and inspected the canter lorry bearing Reg.No.KA-41-7206 and noticed the dead body of a male who died unnaturally. The inquest mahazar was drawn as per Ex.P14, the clothes and other articles found therein were seized as per MO.1 to MO.11, the canter lorry was also seized. Statements of witnesses were recorded, spot sketch was drawn, the photos was taken at the spot at Exs.P40 to P45. Spot mahazar was drawn as per Ex.P2, the seized articles were forwarded to Regional Forensic Science Laboratory (RFSL). Witness further stated that he enquired PW.4 on 13.03.2012 as he was using the mobile handset belonging to the deceased and the SIM card was seized in the presence of CW.35 and PW.18 under the 24 mahazar Ex.P4. He enquired several witnesses and recorded their statements and received opinion from the Doctor about the cause for death. Witness also stated that on 04.04.2012, the accused was produced before him and his voluntary statement was recorded as per Ex.P47 and on the basis of the voluntary statement, the accused lead him along with PW.19 and CW.38 to the Sangam Transport and had showed the place where he assaulted the deceased.
Mahazar as per Ex.P17 was drawn, the accused took out a Jack Lever-MO.15. Accused has also shown the place where he thrown the mobile handset and the place where he abandoned the canter lorry as there was no diesel in the canter lorry to drive further. A detailed mahazar was drawn and thereafter, the accused was produced before the learned Magistrate.
(xxvii) PW.27-Madan Gaonkar is the Police Inspector, Kundapura Police Station. Witness stated that he took up further investigation in the matter after the same was transferred from Kargal Police Station and registered the FIR in Crime.No.121/2012. The accused was 25 taken into police custody. Witness further stated that the accused again showed the places which he has shown to the Investigating Officer and mahazars were drawn. The accused was produced before the learned Magistrate. He received the RFSL report as per Ex.P38. Since there were sufficient materials to connect the accused to the offence in question, he filed charge sheet against the accused.
Witness stated that he received chemical analysis report as per Ex.P46 and the opinion of the Doctor as per Ex.P36.
(xxviii) PW.28 is the Dr. N.L.Lingegowda, the Scientific Officer. Witness stated that he has received 14 seized articles from the Investigating Officer in Crime No.21/2012 of Kargal Police Station and subjected the articles for an examination. He issued Ex.P46.
12. The trial Court on the basis of these materials on record, proceeded to convict the accused for the offences punishable under Sections 302, 201, 511, 392 and 404 of IPC and sentenced him as stated above.
2613. Even though the prosecution examined as many as 28 witnesses in support of its contention, it is not in dispute that the case of the prosecution rests on circumstantial evidence as there are no eye-witnesses to the incident. Initially, the FIR was came to be registered against an unknown person after finding the dead body in decomposed stage, inside the canter lorry, beneath the tarpaulin, emitting foul smell. The inquest mahazar and postmortem report substantiates the contention of the prosecution that the death of the deceased was a homicidal death.
14. To connect the accused to the offence in question, the prosecution will have to prove the circumstances relied on by it. The first lead found by the Investigation Officer is the mobile handset said to be belonging to the deceased and the same was being used by the PW.4. This witness categorically stated that he found the said mobile by the side of the service road attached to NH.66 near Thrasi Beach. During cross-
examination, this witness stated that he had not informed about this fact to the police and admitted that he signed Ex.P4 in the police station.
2715. PW.6-Dinesh is an important witness to the prosecution, who is the Manager of Omkar Packaging Factory and stated about unloading of the paper load from the canter lorry in question and payment of Rs.10,500/- made to the lorry driver. Witness stated that he had given the description of two persons who were in the canter lorry but during cross-
examination, witness stated that since several vehicles and persons visit his factory on daily basis, it is not possible for him to identify any such person. Witness further stated that he had given the description of the person who accompanied the deceased as he was dark and hefty. Witness admitted that the accused before the court is not hefty and he is not in a position to identify him.
16. PW.7-Pradeepa is a coolie working in Omkar Packaging Factory, who has deposed similarly as deposed by PW.6. During cross-examination, this witness also stated that the accused who is before the court is not hefty and he cannot identify all the persons who visit the Factory.
17. PW.12-Shivakumar Swamy, who is the friend of the accused with whom the accused said to have made extra 28 judicial confession about causing the death of the deceased.
During cross-examination, this witness stated that immediately after the accused making extra judicial confession about causing the death of the deceased, he had not informed the police nor he informed the police when they called him over phone. Witness stated that about 3-4 days thereafter, the police have apprehended him but denied the suggestion that he is deposing falsely as the police have threatened him.
18. PW.14-Ramesh Kundar, who is also running Transport Company said to have seen the deceased and the accused together and identified the accused as he accompanied the deceased when they both visited his Company. During cross examination, witness admitted that accused who is present before the court is not hefty as described by him and also stated that he cannot identify each and every person who visits his office and when he read the news of unnatural death of unknown person in the canter lorry, he suspected whether the said news is about two persons whom he had seen in his office. But, he never expressed his suspicion before the police or his friends.
2919. PW.15-Suresh Bettin is the other witness who identified the accused as he was running the Omkar Packaging Factory and deposed that he had paid Rs.10,500/-
to the deceased-Siddesh after unloading the paper and issued the Tax Invoice as per Ex.P13 and receipt as per Ex.P6. Even this witness during cross-examination, categorically stated that none of the transaction with the accused or unloading of the material took place in his presence.
20. Under these circumstances, the evidences of none of the above witnesses lead by the prosecution to prove that the accused was last seen in the company of the deceased is not proved by the prosecution.
21. PW.19-K.A.Kumarswamy is the witness to the recovery mahazar Exs.P16 to P18. Witness stated that the accused had given voluntary statement and lead the Investigating Officer and the mahazar witnesses to various places and stated that he had assaulted the deceased with an iron spanner and caused his death. Witness also stated that the said iron spanner and the blood-stained shirt were identified as per MO.15 and MO.16, which were seized in his 30 presence under Ex.P17. The documents relating to the deceased were seized under Ex.P16 those documents are as per Ex.P19 and P20. During cross-examination, witness stated that the accused had produced the material objects on the basis of his voluntary statement. But denied the suggestion that since he was the member of Sagara Panchayath his signatures were taken on the mahazars. Even though recovery of the incriminating materials at the instance of the accused will be a strong piece of circumstantial evidence to link the accused to the offence in question, the evidence of PW.19 is not sufficient to establish this link in the chain of circumstances. Moreover there is no corroboration of the evidences of this witness.
22. The next material witnesses are PW.4 and PW.23 who have spoken about the seizure of the mobile handset -
MO.12 under the mahazar of Ex.P4, the same would not link the accused to the offence in question.
23. Even though the prosecution examined PW.21 and 24, their evidence is helpful only to prove the contention that 31 the death of the deceased was unnatural and it was a homicidal death.
24. Since the prosecution is relying on three circumstances i.e., extra judicial confession said to have been made by the accused regarding causing of the death of the deceased with PW.12; the deposition made by PW.14 that the deceased was last seen in the company of the accused and recovery of MO.15 and MO.16 i.e., spanner and blood-stained shirt of the accused at the instance of the accused under Ex.P17. The extra judicial confession spoken to by PW.12 do not inspire confidence in the mind of the court. Similarly, the evidence of PW.14 to the effect that he has last seen the deceased in the company of the accused also cannot be believed as all these witnesses specifically stated that the description of the person who accompanied the deceased is not tallying with the accused who is before the court and none of these witnesses have identified the accused with certainty as the person who accompanied the deceased.
25. The last circumstance relied on by the prosecution is the recovery of the incriminating materials i.e., MO.15 and 32 MO.16 at the instance of the accused. Ex.P17, the seizure mahazar describes that the accused had stated that the shirt worn by him at the time of incident was blood-stained and the wheel spanner used for assaulting the deceased was also blood stained, both these articles were thrown by him in a gutter and the same were seized at his instance. These articles are identified as MO.15 and MO.16 and were sent for chemical examination to RFSL, Davanagere and the report from the lab is as per Ex.P46. Strangely as per this report, the shirt is identified as article-13 and iron wheel stunner is identified as article-14, which were not stained with blood.
Article Nos.1 to 12 were only stained with blood and those articles were seized from the spot where the dead body was found. There is absolutely no explanation as to how these MO.15 and MO.16 were not stained with blood even when it is the specific contention of the prosecution that they were stained with the blood when the accused committed the offence.
26. It is the settled proposition of law that when the prosecution case is based on circumstantial evidence, the prosecution has to prove all such circumstances so as to fully 33 establish the guilt of the accused and enable the court to come to the conclusion regarding the guilt of the accused.
Such circumstances from which the conclusion of the guilt is to be drawn should be fully established and it should be consistent only with one hypothesis that is the guilt of the accused. Such circumstance should be conclusive and there should not be any room for a reasonable suspicion. We are supported by the decision of the Hon'ble Supreme Court in the case of BRAJENDRASINGH v. STATE OF MADHYA PRADESH reported in AIR 2012 SC 1552, wherein, the Hon'ble Supreme Court has held in Paragraphs-16 and 17, which reads as under:
"16. There is no doubt that it is not a case of direct evidence but the conviction of the accused is founded on circumstantial evidence. It is a settled principle of law that the prosecution has to satisfy certain conditions before a conviction based on circumstantial evidence can be sustained. The circumstances from which the conclusion of guilt is to be drawn should be fully established and should also be consistent with only one hypothesis, i.e. the guilt of the accused. The circumstances should be conclusive and proved by the prosecution. There must be a chain of events so complete so as not to leave any substantial doubt in the mind of the Court. Irresistibly, the evidence should lead to the conclusion inconsistent with the innocence 34 of the accused and the only possibility that the accused has committed the crime. To put it simply, the circumstances forming the chain of events should be proved and they should cumulatively point towards the guilt of the accused alone. In such circumstances, 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 the guilt of any other person. Furthermore, the rule which needs to be observed by the Court while dealing with the cases of circumstantial evidence is that the best evidence must be adduced which the nature of the case admits. The circumstances have to be examined cumulatively. The Court has to examine the complete chain of events and then see whether all the material facts sought to be established by the prosecution to bring home the guilt of the accused, have been proved beyond reasonable doubt. It has to be kept in mind that all these principles are based upon one basic cannon of our criminal jurisprudence that the accused is innocent till proven guilty and that the accused is entitled to a just and fair trial. [Ref. Dhananajoy Chatterjee v. State of W.B. [JT 1994 (1) SC 33 : (1995 AIR SCW 510)]; Shivu & Anr. v. R.G. High Court of Karnataka [(2007) 4 SCC 713 : (AIR 2007 SC (Supp) 556 : 2007 AIR SCW 1808)]; and Shivaji @ Dadya Shankar Alhat v. State of Maharashtra [AIR 2009 SC 56 : (2008 AIR SCW 6925)].
17. It is a settled rule of law that in a case based on circumstantial evidence, the prosecution must 35 establish the chain of events leading to the incident and the facts forming part of that chain should be proved beyond reasonable doubt. They have to be of definite character and cannot be a mere possibility".
27. To base the conviction of the accused on circumstantial evidence, the circumstances proved by the prosecution should be of sterling quality and all the links in the chain of circumstances should be established to form a complete chain. The Hon'ble Apex Court while considering the proof of the guilt of the accused on the basis of the circumstantial evidence in the case of LOCHAN SHRIVAS v.
STATE OF CHHATTISGARH, 2021 SCC ONLINE SC 1249, referred to its several decisions, to highlight the law with regard to conviction in cases based on circumstantial evidence held that unless the circumstances are fully established and such circumstances unless consistent only with the hypothesis of the guilt of the accused and further unless the chain of circumstances is complete, referred to its earlier decision in SHARAD BIRDHICHAND SARDA v. STATE OF MAHARASHTRA (1984) 4 SCC 116, where five golden principles were laid down to be followed to record a conviction 36 on the basis of circumstantial evidence and observed in Paragraphs-13, 14, 15 and 16 as under:
"13. The law with regard to conviction in cases based on circumstantial evidence has been very well crystalised in the celebrated case of Hanumant, son of Govind Nargundkar v. State of Madhya Pradesh1. A three-Judge Bench of this Court, speaking through Mehr Chand Mahajan, J., observed thus:
"It is well to remember that in cases where the evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should in the first instance be fully established, and all the facts so established should be consistent only with the hypothesis of the guilt of the accused. Again, the circumstances should be of a conclusive nature and tendency and they should be such as to exclude every hypothesis but the one proposed to be proved. In other words, there must be a chain of evidence so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show 37 that within all human probability the act much have been done by the accused."
14. It is thus clear that for resting a conviction in the case of circumstantial evidence, the circumstances from which the conclusion of guilt is to be drawn, should be fully established, and all the facts so established should be consistent only with the hypothesis of the guilt of the accused. The circumstances should be of a conclusive nature and tendency, and they should be such as to exclude every hypothesis, but the one proposed to be proved. There must be a chain of evidence so complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused, and it must be such as to show that within all human probabilities, the act must have been done by the accused.
15. Subsequently, this Court in the case of Sharad Birdhichand Sarda v. State of Maharashtra2, observed thus:
"153. 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:38
(1) the circumstances from which the conclusion of guilt is to be drawn should be fully 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 [(1973) 2 SCC 793 : 1973 SCC (Cri) 1033 :
1973 Crl LJ 1783] where the observations were made : [SCC para 19, p. 807 : SCC (Cri) p. 1047] "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, 39 (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.
154. These five golden principles, if we may say so, constitute the panchsheel of the proof of a case based on circumstantial evidence."
16. As has been held by this Court, in a case of circumstantial evidence, before the case can be said to be fully established against an accused, it is necessary that the circumstances from which the conclusion of guilt is to be drawn, should be fully established, and all the facts so established should be consistent only with the hypothesis of the guilt of the accused. They should not be explainable on any other hypothesis except that the accused is guilty. The circumstances should be 40 of a conclusive nature and tendency. They should exclude every hypothesis except the one to be proved. 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 probabilities, the act must have been done by the accused.
28. Thus, the position of law with regard to conviction of the accused based on the circumstantial evidence is very well settled. Higher duty is cast on the prosecution to establish the circumstances with certainty, which is consistent only with the hypothesis of the guilt of the accused, it should be conclusive in nature and the chain of such circumstances should be complete. Unless the five golden principles referred to as panchsheel of the proof of the case, based on circumstantial evidence are satisfied, conviction of the accused for the offence may not be recorded.
29. If the above principle - panchsheel is applied to the case on hand, we have to conclude that the said golden principles are not satisfied by the prosecution to record the conviction of the accused. Mere probabilizing the guilt of the 41 accused is not sufficient to convict the accused. It is also well settled proposition of law that the suspicion, however grave it may be, cannot take the place of proof beyond reasonable doubt.
30. We have gone through the impugned judgment of conviction and order of sentence passed by the trial Court. It has proceeded to convict the accused solely on the basis of evidences of PW.12 and PW.14 i.e., extra judicial confession made by the accused and the last seen theory put forth by the prosecution. The evidence of these witnesses would not lead to a conclusion which is consistent only with the hypothesis of the guilt of the accused. There is no corroboration of the evidence of these witnesses. Under such circumstances, it cannot be said that the prosecution is successful in proving the guilt of the accused beyond reasonable doubt. The golden Rule of criminal justice system is that when the prosecution is not successful in proving the guilt of the accused beyond reasonable doubt or in other words if the case is made out by the prosecution gives rise to a reasonable doubt, the benefit of such doubt is to be extended to the accused. When two views are possible, from 42 the materials placed before the court; one in favor of the prosecution and the other in favour of the accused, the view favoring the accused is to be taken by the Court. That being the position of law, we are of the opinion that the prosecution has failed to prove the guilt of the accused beyond reasonable doubt. The benefit of doubt has to be extended to the accused and he is to be acquitted. The trial Court has committed an error in convicting the accused for the above said offences on the basis of shabby materials that are placed before the Court. Hence, the impugned judgment of conviction and order of sentence is liable to be set aside and the accused is entitled to be acquitted.
In view of the discussions held above, we answer the above point in the affirmative and pass the following:
ORDER
(i) The above Criminal Appeal is allowed.
(ii) The impugned judgment of conviction and order of sentence dated 11.10.2017 made in S.C.No.53/2013 on the file of the Additional District and Sessions Judge, Udupi, sitting at Kundapura, is hereby set-aside.43
(iii) The appellant/accused is hereby acquitted for the offences punishable under Sections 302, 201, 511, 392 and 404 of the Indian Penal Code.
(iv) The jail authority concerned, is directed to release the appellant/accused immediately, if he is not required in any other case, after following the existing Standard Operating Procedure.
(v) The fine amount, if any, deposited by the accused person shall be refunded to him.
(vi) Registry is directed to return the Trial Court Records, forthwith.
Sd/-
JUDGE Sd/-
JUDGE SMJ