Karnataka High Court
Fayaz Pasha vs State Of Karntaka By on 11 September, 2020
Equivalent citations: AIRONLINE 2020 KAR 1815
Author: B. Veerappa
Bench: B. Veerappa
R
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 11TH DAY OF SEPTEMBER, 2020
PRESENT
THE HON'BLE MR. JUSTICE B. VEERAPPA
AND
THE HON'BLE MR. JUSTICE E.S. INDIRESH
CRIMINAL APPEAL NO.1013 OF 2015
Between:
Fayaz Pasha
S/o Babajan
Aged about 28 years
Autorickshaw Driver
Residing at Pyarusab Rent House
Begum Mohalla,
Sira Town
Tumkur 572 137
(Now in judicial custody
Central Prison, Bangalore)
...Appellant
(By Shri Hashmath Pasha, Senior Counsel
for Shri Santosh B., Advocate)
And:
State of Karnataka
Sira Police Station
Tumkur 572 137
...Respondent
(Shri Vijayakumar Majage, Addl. SPP)
2
This Criminal Appeal is filed under Section 374(2) of the
Code of Criminal Procedure praying to set aside the Judgment
and order of conviction and sentence dated 29.04.2015
passed by the Principal District and Sessions Judge,
Tumakuru in SC No.118/2014 convicting the appellant-
accused for the offence punishable under Sections 302 and
201 of Indian Penal Code sentencing the appellant/accused to
undergo Rigorous Imprisonment for life and pay fine of
Rs.5,000/- for the offence punishable under Section 302 of
IPC; and to undergo Rigorous Imprisonment for a period of
three years and pay fine of Rs.2,000/-, in default to pay fine,
to undergo simple imprisonment for three months for the
offence punishable under Section 201 IPC.
Arguments being heard through video conferencing,
judgment reserved, coming on for pronouncement this day,
INDIRESH J, delivered the following:
JUDGMENT
This criminal appeal is filed by the appellant-accused against the judgment of conviction and order of sentence dated 29th April, 2015 made in SC No.118 of 2014 on the file of the Principal District and Sessions and Judge, Tumakuru convicting the appellant-accused to undergo Rigorous Imprisonment for life and to pay fine of Rs.5,000/- for the offence punishable under Section 302 IPC and to undergo Rigorous Imprisonment for a period of three years and to pay 3 fine of Rs.2,000/-, in default to pay fine to undergo simple imprisonment for a period of three months for the offence punishable under Section 201 IPC.
I. BRIEF FACTS
2. It is the case of prosecution that the accused married Sadik Isha six years prior to her death i.e. on 30th June, 2014. It is a love marriage between Sadik Isha and the accused. They were residing at Begum Mohalla, Sira Town. They had two children, viz. Mohammed Hasanen aged about four years and Iman Sultana aged about two years. Accused is an autorickshaw driver. Complainant-Shakeela Banu w/o late Anwar (mother of late Sadik Isha) lodged complaint on 30th June, 2014 at 8.30 pm, stating that her husband Anwar died in a road traffic accident and out of the total compensation amount, an amount of Rs.85,000/- was paid to the accused. Despite the same, the accused was demanding additional amount of dowry and was quarrelling with his wife- Sadik Isha everyday. The complainant and her son have told the accused that they would give additional money after 4 releasing the bond. It is stated by the prosecution that, on 30th June, 2014 at about 3.00 pm, the accused strangulated his wife-Sadik Isha and pressed her face with pillow and murdered her and thereby, the complainant PW1, on receiving the information from her relative Dislhad Banu over phone, immediately went to the house of the deceased and found her dead and when she enquired with her grandson- Mohammed Hasanen (PW2), he informed complainant that the accused has pressed the neck of the deceased and as such, the complainant claims that her daughter Sadik Isha was done to death by her son-in-law (accused) and the said complaint came to be lodged by PW1-mother of the deceased as per Ex.P1 before the jurisdictional police. Sira Police registered the complaint in Crime No.194 of 2014 against the accused for offence punishable under Section 302 IPC and sent the First Information Report to the jurisdictional Court. PW12-Investigation Officer, visited the spot and drawn-up panchanama before the panchas and seized MO1 from the house of the accused under panchanama Ex.P7. The Investigation Officer-PW12 drawn up inquest panchanama as 5 per Ex.P9 on the dead body of the deceased in the presence of Taluk Executive Magistrate and Tahsildar, Sira (CW10) at Government Hospital, Sira and arrested the accused and on the basis of voluntary statement of the accused, visited the spot where the accused had burnt rope and drawn mahazar as per Ex.P8. After completion of investigation, PW12 filed charge sheet before the competent Court against the accused alleging the commission of offence under Section 302 and 201 IPC. Though the First Information Report was registered for the commission of offence under Section 302 IPC, however, charge-sheet was filed under Section 302, 201 IPC, as accused tried to destroy the evidence by burning the rope used by him for commission of the offence. As the offence was exclusively triable by the Sessions Court, the case was committed to the Sessions Court.
3. In order to prove the guilt of the accused, the prosecution has examined PW1 to PW12 and got marked documents as Exhibits P1 to P14 and Material Object (pillow)- MO1. After completion of evidence on behalf of the 6 prosecution, the statement of the accused was recorded, as contemplated under Section 313 of the Code of Criminal Procedure. The accused denied all the incriminating circumstances appearing against him and also the case set up by the prosecution. The accused neither led his defence evidence nor got marked any documents.
4. The Sessions Court, on considering both oral and documentary evidence on record, has recorded a finding that the prosecution proved that, on 30th June, 2014 at about 3.00 pm the accused had quarreled with his wife-Sadik Isha for insurance money and on the said date, time and place, in the presence of Mohammad Hasanen (PW2), pressed her neck with his hands and thereafter, with the help of rope strangulated her so as to arrest respiration and thereafter held pillow on her mouth and as a result of the same, Sadik Isha died and thereby, the accused has committed offence punishable under Section 302 and 201 IPC. Accordingly, the Sessions Court, by the impugned judgment of conviction and order of sentence dated 29th April, 2015, convicted the 7 accused for offence punishable under Section 302 and sentenced him to undergo Rigorous Imprisonment for life and to pay a fine of Rs.5,000/-. The accused was further sentenced to undergo Rigorous Imprisonment for a period of three years and to pay a fine of Rs.2,000/- for the offence punishable under Section 201 of the Indian Penal Code, in default to pay fine, to undergo simple imprisonment for a period of three months.
5. Being aggrieved by the impugned judgment of conviction and order of sentence dated 29th April, 2015 passed in SC No.118 of 2014 by the Principal District and Sessions Judge, Tumakuru, the present appeal is preferred by the appellant-accused.
6. We have heard Shri Hashmath Pasha, learned Senior counsel appearing for Shri Santosh, learned counsel for the appellant and Shri Vijayakumar Majage, learned Additional State Public Prosecutor appearing for the respondent-State. 8 II. ARGUMENTS ADVANCED BY LEARNED COUNSEL FOR THE APPELLANT
7. Shri Hashmath Pasha, learned Senior Counsel for the appellant contended that the impugned judgment of conviction and order of sentence passed by the Sessions Court convicting the accused for the offence punishable under Section 302 and 201 IPC and sentencing him to undergo Rigorous Imprisonment for life and to pay a fine of Rs.5,000/- for the offence punishable under Section 302 IPC and also to undergo Rigorous Imprisonment for a period of three years and to pay a fine of Rs.2,000/-, in default, to undergo simple imprisonment for three months for the offence punishable under Section 201 IPC, is contrary to the material on record and the same is liable to set aside. He further contended that PW1 has lodged complaint on 30th June, 2014 at about 8.30 pm, stating that she had received a phone call from Dilshad Banu about the death of her daughter-Sadik Isha and immediately she rushed to the house of the deceased and she made an enquiry with her grandson Mohammed Hasanen (PW2)-son of the deceased and accused, about the cause of 9 death and her grandson (PW2) informed her that his father had committed murder by strangulating the deceased. Learned Senior Counsel further pointed out that the prosecution has failed to examine said Dilshad Banu during the trial with regard to prove the guilt of the accused. On the other hand, he drew the attention of the Court to the examination-in-chief of PW1, wherein PW1 has deposed that some auto person came and told her that the accused has killed her daughter and the dead body is lying in the house of the accused. He further contended that neither the said Dilshad Banu was examined nor any neighbours were examined by the prosecution to prove the guilt of the accused. He vehemently argued that, a close examination of the entire evidence of PW1 reflects that PW1 is only a hearsay witness to say about the cause of death of her daughter and nothing more than that and in that view of the matter, the entire basis of the case, resting upon the evidence of PW1, would go against the prosecution and therefore, the impugned judgment of conviction and order of sentence is liable to be set aside.
10
8. Learned Senior Counsel further pointed out that, PW3-Doctor who has conducted autopsy on the dead body, has not formed any opinion about the cause of death and also, not submitted any report with regard to cause of death before the trial Court. However, PW3-Doctor has issued Ex.P4 stating that "death is due to asphyxia as a result of ligature strangulation, however, pending production of ligature material". Further, adverting to the cross- examination of PW3, learned Senior Counsel contended that PW3 has deposed that in the case of hanging, there will be suspension of body and ligature will be oblique. In the case of strangulation, body will not be suspended, hence, ligature need not be oblique and it may be transverse also. PW3 further deposed that pulling of a "U" shaped ligature against the front and sides of the neck while standing at the back, can cause death and bleeding would be present in some cases. Referring to the aforesaid evidence of PW3-Doctor, learned Senior Counsel submitted that the perusal of Ex.P2 (postmortem report), Ex.P3 (histopathology report) and Ex.P4 (report of PW3), PW3 has opined that the death is due to 11 asphyxia and as a result of ligature strangulation, however, pending production of ligature material. In the instant case, the prosecution has not produced any ligature material before the trial Court to prove the guilt of the accused and therefore, the learned Sessions Judge failed to consider the said aspect of the matter in its right perspective, and has not properly appreciated the evidence as required under law and therefore, the impugned judgment of conviction and order of sentence is liable to be set aside.
9. Learned Senior Counsel, further, submitted that PW5 is the aunt of deceased-Sadik Isha. She deposed that since the marriage between the accused and the deceased is a love marriage and the deceased has left the house of PW1- Complainant and married the accused without their consent and as such, she is not in good terms with the accused. Referring to the aspect of borrowing of loan from someone to pay to the accused, PW5 deposed that, on the date prior to the date of incident, herself, deceased and her mother-PW1 had gone for a loan but could not get it and thereby, the 12 accused got wild against his wife and PW1 for not getting money and accordingly, PW5 further deposed that, accused has committed murder of his wife. Referring to evidence of PW5, Shri Hashmath Pasha, learned Senior Counsel contended that the evidence of PW5 is an improved version of the complaint (Ex.P1) and so also, as PW1-complainant has not stated about the same during her examination-in-chief and therefore, the evidence of PW5 is nothing but a hearsay evidence and the same could not be considered as a basis for conviction of the accused. PW5 has deposed that the insurance bond is in her custody. Referring to the same, learned Senior Counsel pointed out that though the Insurance bond is in the custody of PW5, the same was not produced before the trial Court for examination and hence it is a hearsay evidence and requires to be rejected, as same would not form basis for conviction as considered by the trial Court.
10. Referring to the evidence of PWs1, 5 and 6 (co- brother of the accused), the learned Senior Counsel submitted that all these material witnesses have deposed that 13 the accused was also present near the dead body when they reached the house of the deceased. He further submitted that the evidence of PW5 is nothing but improvement of the complaint as PW6 has deposed that PW2-Mohammed Hasanen has told him that his father (accused) had sent him to bring beedi and by the time he came back, his father had strangulated his mother to death and even Media people asked PW2 with regard to the cause of death, however, prosecution has not proved the said version of PW6 through evidence of PW2 nor examined any Media person, as deposed by PW6 and therefore, the prosecution has failed to prove guilt of the accused beyond reasonable doubt.
11. Shri Hashmath Pasha, learned Senior Counsel, further contended that the best witnesses to prove the guilt of the accused under the circumstances of the case, are the evidence of neighbours of the accused. However, none of the neighbours of the accused were examined by the prosecution to prove the guilt and therefore, the impugned judgment of conviction and the order of sentence is liable to be set aside. 14 The prosecution has examined PWs7 to PW11 who are nothing but the panchas to the Mahazar (Ex.P5 and Ex.P6), pancha to the recovery of pillow-MO1 and Inquest Report (Ex.P6), and therefore, the investigation made by the prosecution is shabby and are unconnected with the facts as alleged through the complaint (Ex.P1) by PW1 and therefore, the prosecution failed to prove the guilt of the accused beyond reasonable doubt. He further, submitted that PW12- Investigation Officer has deposed that he has seized the pillow as per MO1 and also deposed that the inquest mahazar was conducted by Taluk Executive Magistrate on 01st July, 2014 at Government Hospital, Sira as per Ex.P9, however, the Taluk Executive Magistrate was not examined by the prosecution and the same would clearly reflect that the Investigation Officer has conducted shabby enquiry and unfair investigation in the matter and the prosecution has tried to prove the guilt of the accused without any cogent materials and therefore these aspects of the matter were not considered by the learned Sessions Judge while passing the impugned judgment of conviction and order of sentence. 15 Learned Senior Counsel further contended that PW12, after completing the arrest formalities of the accused, has recorded voluntary statement of the accused and as per the version of the accused, visited the place at manure pit, Madhugiri Road near Sriraksha Vidyaniketan School, where the accused alleged to have burnt the rope and accordingly, drawn-up mahazar as per Ex.P8. Referring to the evidence of PW12- Investigation Officer, learned Senior Counsel further submitted that if the rope is burnt as per the prosecution case, as per Ex.P8, ashes must have been sent for chemical examination to the Forensic Science Laboratory and also the Investigation Officer ought to have sent the lump containing the ashes to Forensic Science Laboratory. In the instant case, no such examination has been made by the prosecution and therefore, the prosecution fails to prove the guilt of the accused. He further submitted that all the witnesses are either interested, relatives of the deceased and official witnesses, and no independent witness has been examined to prove the guilt of the accused, so also, no incriminating question pertaining to the alleged incident was asked to the 16 accused, while recording the statement under Section 313 of the Code of Criminal Procedure, and therefore, the impugned judgment of conviction and order of sentence is erroneous and liable to be set aside.
12. Nextly, referring to the question No.22 posed during the recording of statement under Section 313 of the Code of Criminal Procedure, the learned Senior Counsel submitted that, the accused has answered in the affirmative. However, the prosecution has failed to counter the said statement of the accused with cogent and reliable evidence and therefore, the prosecution has failed to prove the guilt of the accused and thereby, there are material omissions and contradictions in the evidence of prosecution witnesses. He therefore, contended that the learned Sessions Judge proceeded to pass the impugned judgment of conviction and order of sentence, based on assumptions and presumptions and hence the same cannot be sustained. Learned Senior Counsel, therefore, sought to allow the appeal filed by the 17 accused and set aside the impugned judgment and order of conviction.
13. In support of his contentions, the learned Senior Counsel relied upon the following judgments:
i. TAKHT SINGH AND OTHERS V. STATE OF M.P [(2001)10 SCC 463]; ii. MURALIDHAR AND OTHERS v. STATE OF RAJASTHAN [(2005)11 SCC 133]; iii. SOHEL MEHABOOB SHAIKH v. STATE OF MAHARASHTRA [(2009)12 SCC 588]; iv. ARVIND SINGH v. STATE OF BIHAR [(2001)6 SCC 407]; and v. ASHOK V. STATE OF MAHARASHTRA [(2015)4 SCC 393]. III. ARGUMENTS ADVANCED BY LEARNED ADDITIONAL SPP:
14. Per contra, Shri Vijaykumar Majage, learned Additional State Public Prosecutor contended that PWs.1, 2 and 5 to 10 have categorically deposed about the harassment meted out by the deceased-Sadik Isha from the accused with regard to making the claim of insurance amount. He further submitted that the evidence of Doctor-PW3 with regard to the 18 cause of death had remained unchallenged by the accused. Learned Additional SPP further submitted that the perusal of the evidence of PWs.3 and 4 would clearly establish the case of the prosecution that the death of the deceased is on account of strangulation made by the accused and the ligature material, as per Ex.P4, is the rope and the same was burnt by the accused, and therefore, the learned Additional SPP sought for dismissal of the appeal. He further submitted that the involvement of the accused in the incident is corroborated with the evidence of PW2. He vehemently contended that the learned Sessions Judge has passed the impugned order of conviction based on the material available with cogent reasons, which does not call for interference by this Court.
IV. POINTS FOR DETERMINATION:
15. In view of the aforesaid rival contentions urged by the learned Senior Counsel appearing for the appellant and the learned Additional State Public Prosecutor appearing for 19 the respondent-State, the points that arise for our consideration in the present appeal are:
(i) Whether the learned Sessions Judge is justified in convicting the accused for the offence punishable under Section 302 of the Indian Penal Code and sentencing him to undergo Rigorous Imprisonment for life with a fine of Rs.5,000/- in view of the specific complaint (Ex.P1) and the evidence of PWs1, 5 and 6, in the facts and circumstances of the case?
(ii) Whether the learned Sessions Judge is correct in holding that the accused has destroyed the evidence by burning the rope, as urged by the prosecution and thereby convicted the accused under Section 201 IPC?
(iii) Whether the impugned judgment of conviction and order of sentence calls for interference in this appeal?
V. WITNESSES EXAMINED ON BEHALF OF PROSECUTION:
16. In order to re-appreciate the entire material on record including the oral and documentary evidence, it is 20 relevant to consider the evidence of the prosecution witnesses and the circumstances relied upon.
17. PW1-Shakeela Banu, who is the mother of the deceased Sadik Isha, has deposed that she had gone to Park Mohalla, Sira and some auto person came and told her that the accused has killed her daughter and the dead body is lying in the house of the accused at Begum Mohalla, Sira. She further deposed that the neighbours of the accused have informed her that the accused was in the habit of quarrelling with her daughter and also she deposed that, her sister Dilshad Banu-CW6 had informed her that the accused has murdered her daughter. She further deposed that her daughter had informed about the demanding of the insurance compensation amount by the accused. She has further deposed that her sister knows how the accused killed her daughter and as such, she has gone to the police station at 7.00 pm from the house of the accused and lodged complaint to the police as per Ex.P1. She further deposed that the accused was present when she went to see the dead body. 21 She deposed that the marriage between the accused and her daughter was love marriage and it was not liked by her family and marriage was against their wish and she had not given any document regarding insurance compensation to the police.
18. PW2-Mohammed Hasanen, aged about four years, is the son of the deceased and accused. He has deposed that he has not seen the accused hitting or attacking the deceased and his father-accused has gone out taking the auto for hire. He further deposed that he is residing with his father- accused. He further deposed that CW3, CW4, CW10 and CW1(PW1) have asked him to tell before the police against his father. He further deposed that when his father-accused was in judicial custody, he was residing with his paternal grand father. PW2 was treated partly hostile and was cross- examined by prosecution.
19. PW3-Doctor S. Rudra Murthy, RMO and Senior Specialist, Forensic Medicine and Toxicology at District Hospital, Tumkur has deposed that he has conducted autopsy 22 on the body of the deceased Sadik Isha between 1.20 to 2.20 pm on 01st July, 2014 and the post-mortem report was marked as Ex.P2. He deposed that he has found faint oblique ligature mark measuring 15 cms. to 1.5 cms. present over front and sides of neck situated above the level of thyroid cartilage running upwards, backwards and towards left being placed 4 cms. below left ear lobule and 8 cms. below right ear lobule. The skin over the ligature mark was reddish brown in colour and not parchamentised. He deposed that the ligature material was not produced at the time of autopsy and on dissection of neck hyoid bone and thyroid cartilage appears to be normal and sent for histopathology examination, and as such, kept pending the report of cause of death of deceased. He further deposed that except the ligature mark, no other injury was found on the dead body. During the cross- examination, he deposed that in the case of hanging, there will be suspension of the body and the ligature will be oblique. In case of strangulation, body will not be suspended, hence ligature need not be oblique and it may be transverse also and accordingly, he has produced postmortem report (Ex.P2) 23 pending clarification issued by him as per Ex.P14. At Ex.P14, PW3 has opined that the cause of death is by a ligature material.
20. PW4-Doctor Srilakshmi, Professor in the Department of Pathology at Bangalore Medical College, Bangalore, has deposed that she has examined the neck structure on 07th August, 2014 and furnished histopathology report as per Ex.P3. She deposed that there was antemortem injury on the body in the form of extensive heamorrhage and during her cross-examination, she deposed that the said antemortem injury was prior to death.
21. PW5-Hasan is the Aunt of the deceased and the sister of PW1-complainant. She deposed that since the marriage between the deceased and the accused was a love marriage and the deceased has left the house on her own volition, they were not in good terms with them. She further deposed that on the day prior to the date of the death of the deceased, herself, deceased and the mother of the deceased had gone for securing loan, however, they could not get it 24 and as such, the accused got wild against the deceased and the mother of the accused for not getting money. During her cross-examination she deposed that when she went to the house of the deceased after the incident at 4.00 pm, accused was also present at the spot and accused was taken by the police around 7.00 pm pursuant to the lodging of the complaint (Ex.P1). She further deposed that she had seen the insurance bond and it is in her custody.
22. PW6-Jeelan Pasha is the son-in-law of PW1 and co- brother of the accused. He has deposed that the deceased had developed love affair with the accused and he took her away and married about six years back at Sira. He deposed that the accused was an autorickshaw driver and was in financial crisis and on 30th June, 2014 between 4.30 and 5.00 pm he received a phone call from PW1 regarding the death of the deceased and accordingly, came to the house of the deceased. He deposed that the dead body was in the father's house of the accused, and accused and his parents have told him that the deceased committed suicide by hanging. He 25 further deposed that he along with PW5 have enquired PW2- Mohammed Hasanen and PW2 told them that the accused had sent him to bring beedi and by the time he come back, his father (accused) had strangulated his mother. He further deposed that Media people have asked PW2 about the cause of death and PW2 has told them that the accused caused the death of the deceased by suffocating her with pillow and the said statement was video graphed as well. During the cross- examination, he deposed that the marriage between accused and deceased-Sadik Isha was without the consent of the parents of the deceased and their relationship was strained.
23. PW7-Sabiha Banu is the panch witness to Ex.P5. During her cross-examination she has deposed that the neighbour of the accued are Afsar and Mahaboob Jan.
24. PW-8 Nazir Ahamed is the panch witness to Ex.P6. He deposed that he has signed Ex.P5, however, do not know the contents of Ex.P5. He was treated hostile and cross- examined by the prosecution.
26
25. PW9-Syed Yasin, is a Taxi driver, who deposed that the accused showed the place and is witness to the mahazar Ex.P7 and MO1.
26. PW10-Ansar is a lorry driver who is witness to Ex.P8. He deposed that he has signed the document Ex.P8 and do not know the contents of the same. He also deposed that he was summoned by the police to Government Hospital, Sira when inquest mahazar on the dead body of the deceased was conducted and it is as per Ex.P9. He denied that Ex.P8 was conducted at a place shown by accused that he has burnt the rope used for strangulation.
27. PW11-Siddeshwara, has deposed that one PSI Ramakrishnappa has informed him that accused has burnt rope and as such they are conducting mahazar near Raksha Vidya Mandira, and accordingly, mahazar was drawn as per Ex.P8 and he was pancha to Ex.P8.
28. PW12-Ramakrishnappa was working as Police Inspector, Sira and is Investigation Officer in this criminal proceedings. He has deposed that on 30th June, 2014 around 27 8.30 pm, PW1 lodged complaint as per Ex.P1 and accordingly he registered First Information Report for the offences punishable under Section 302; on the same day he visited the place of the accused and conducted mahazar of the place shown by PW1 and drawn mahazar as per Ex.P5 and since the dead body of the deceased was kept in the house of the father of the accused, he went there and conducted mahazar between 10 and 11 pm as per Ex.P6. Thereafter, the dead body was shifted to the Government Hospital for postmortem and since the death of the deceased was within six years from the marriage and accordingly, he requested the Taluk Executive Magistrate to conduct inquest mahazar on the dead body on 01st July, 2014, and as such, inquest mahazar was done by Taluk Executive Magistrate as per Ex.P9. He further deposed that Constables CW27 and CW28 have produced the accused before him around 11.00 pm and thereafter he completed arrest formalities, interrogated the accused and recorded the voluntary statement of the accused as per Ex.P1. He further deposed that the accused has disclosed the place where he burnt the rope used for the offence and also 28 stated that the pillow is in the house and accordingly the same was seized as per MO1. He further deposed that he visited the place where the accused has burnt the rope and conducted mahazar as per Ex.P8. He further deposed that he recorded the statement of PW1 on 01st July, 2014 and on the very same day recorded the statements of CWs2 to 9 and 13. Along with Public Works Department Engineer, sketch of place of offence was drawn as per Ex.P12, and he requested the Corporation authorities to provide property extract of the place of offence as per Ex.P13. He further deposed that he received postmortem report of the deceased from the Government Hospital as per Ex.P12 and thereafter, he sent viscera to pathology section. He further deposed that he has received the opinions from the Department of Histopathology, Bangalore as per Exhibits P3 and P4 and conducted the entire investigation in the matter and submitted the charge sheet to the jurisdictional court; alleging that the accused has committed offence under Section 302 and 201 IPC. 29
VI. FINDINGS RECORDED BY THE LEARNED SESSIONS JUDGE:
29. Based on the aforesaid oral and documentary evidence, learned Sessions Judge recorded a finding that the prosecution has proved that on 30th June, 2014 at 3.00 pm, the accused pressed the neck of Sadik Isha with his hands for not securing the insurance money, in the presence of his son-
Mohammed Hasanen (PW2) and thereafter, with the help of rope strangulated her and to arrest her respiration held pillow to her mouth, as a result of the same, Sadik Isha died and thereby the accused had committed offence punishable under Section 302, 201 IPC. Learned Sessions Judge convicted the accused for the offence punishable under Section 302 IPC on the ground that the theory of committing suicide by Sadik Isha is absolutely ruled out, as the accused was residing in the house and used his son (PW2) as a tool to come out of the case. The learned Sessions Judge held that it is a homicidal death of Sadik Isha and the accused was present at the spot and the circumstances speak volumes. More than the evidence, it is established that the death has taken place 30 at his instance and accordingly convicted the accused to Rigorous Imprisonment for life and to pay fine of Rs.5,000/- for the offence punishable under Section 302 IPC and also the accused was further sentenced to undergo Rigorous Imprisonment for a period of three years and to pay fine of Rs.2,000/-, in default to pay the fine to undergo simple imprisonment for a period of three months under Section 201 IPC, as he has burnt the rope and accordingly destroyed the evidence after commission of offence.
VII. CONSIDERATION:
30. We have carefully re-appreciated the evidence of the witnesses and perused the entire records.
31. It is the bounden duty of the prosecution to prove the fact that the death of Sadik Isha is a homicidal death. In this behalf, the prosecution got examined PWs1, 3 and 4 and also got examined PW10-Ansar inquest mahazar pancha.
PW3-Doctor, who has conducted autopsy on the dead body of the deceased, opined that the cause of death is due to asphyxia as a result of ligature strangulation subject to 31 production of material of ligature, as per Ex.P4. On going through the evidence of these witnesses along with the Histopathology report Ex.P3, it would make it clear that the Doctor has deposed that there was injuries on the neck structure as well as ligature mark was antemortem and fresh in the nature. On the basis of the said evidence, PWs3, 4 and PW12-panch witness and the inquest mahazar as per Ex.P9, it could be safely held that the death of deceased-Sadik Isha is not homicidal. In order to establish the case of prosecution, prosecution got examined PW1-mother of the deceased to prove the guilt of the accused. PW1 deposed that on 30th June, 2014 some Autorickshaw person has informed her that accused has killed her daughter and the body is lying in the house of the accused at Sira and accordingly, she went there and the neighbours have informed her that the accused was in the habit of quarrelling with his wife (deceased Sadik Isha); and also her Sister Dilshad-CW6 had informed PW1 that the accused killed her daughter. She further deposed that her sister knows how the accused killed his wife-Sadik Isha. In her cross-examination, she deposed that the marriage 32 between the accused and Sadik Isha was against their wish and further deposed that she noticed the presence of the accused when she visited the house of the accused to see the dead body. She further deposed that the accused was in the habit of ill-treating his wife and frequently enquiring about the insurance compensation amount which was awarded on account of death of her husband Mohammed Anwar, she deposed that she has not given any documents relating to the insurance to the Police.
32. The entire case of the prosecution rests upon the deposition of PW1-complainant. Perusal of the evidence of PW1 would make it clear that she has stated some autorickshaw person has informed her about the death of her daughter, however, no such autorickshaw driver has been examined by the prosecution nor produced any material before the Court. She further deposed that her sister knows how the accused killed the deceased and also her sister Dilshad Banu-CW6 has informed her about the death of her daughter and also she further deposed that the accused was 33 demanding the deceased to procure money out of the insurance compensation. A careful perusal of Ex.P1- complaint and the evidence or PW1 is nothing but improvement of the case. PW1 has stated in her complaint Ex.P1 that out of the compensation amount secured in the road traffic accident, she has paid Rs.85,000/- to her daughter Sadik Isha and thereafter, being not satisfied with the same, accused was ill-treating the deceased to get some more additional amount from her mother. She has further stated in her complaint that she made enquiry with her grandson Mohammed Hasnen-PW2 with regard to the factual aspects and PW2 has informed her that the accused has pressed the neck of the deceased by using pillow and accordingly the accused has killed his wife. Interestingly, the perusal of the complaint would reveal that the complainant- PW1 has not stated anything about the statement made to her by her sister Dilshad Banu-CW6 and hence her sister Dilshad Banu cannot be considered as an eye-witness to the incident and the same is not forthcoming in the complaint Ex.P1. Perusal of Ex.P1 and the evidence of PW1 would 34 reveal that the cause of death of the deceased was due to illegal mind set of the accused as he had an intention to secure entire compensation amount from PW1. However, very strangely, the prosecution has not produced any such document, much less the insurance documents, nor the judgment and award passed by the competent court awarding compensation on account of death of husband of PW1 in the road traffic accident, and therefore, the version of PW1- complainant cannot be a basis with regard to bring home the guilt of the accused.
33. The version of the PW1 is quite contrary to that of PW6 and PW5. In fact, PW5 deposed that, deceased, PW1 and herself tried to secure loan on the previous day of the incident, however, neither in the complaint Ex.P1 nor in the evidence of PW1, narrate the said story of securing loan, would go against the case of the prosecution. Admittedly, PW2 is the son of the deceased, who is aged four years at the time of recording evidence by the Sessions Court. He deposed that he has not seen the accused hitting or attacking 35 his mother on the date of the incident. He specifically deposed that on the date of incident, his father had taken autorickshaw for hire and was not at home. He further deposed that CW3, CW4, CW10 and CW1 (PW1), had informed him to tell before the police against his father and pursuant to the unfortunate incident, he is residing along with his paternal grandfather. The prosecution has examined PW2 and thereafter he has turned hostile. The cross-examination made by the prosecution is a part of deposition of PW2, who is aged about four years at the time of recording of evidence and it is appropriate to refer question and answer elicited from PW2, which is extracted hereunder:
"2. Accused is my father.
Qn. What happened to your mother?
Ans. I do not know and I have not seen the accused hitting or attacking my mother.
My father had gone for auto."
The aforesaid evidence of PW2 would establish that the accused was not present in the house at the time of death of the deceased and though the prosecution has projected in 36 investigation that PW2 is the eye-witnesses to the incident, the perusal of the entire evidence of PW2 indicates about the shabby investigation, as rightly pointed out by the learned Senior Counsel for the appellant in the matter.
34. PW5 is the sister of PW1. She deposed that the marriage between the accused and deceased was against the wish of parents of the deceased, and on the day prior to the date of the incident, deceased, her mother and herself had gone for securing the loan, however, the said testimony is not forthcoming through PW1 in her examination nor has been stated with regard to same in the complaint Ex.P1. She further deposed that the accused was present when she visited the house of the accused to see the dead body and the insurance bond is in her custody. However, the prosecution failed to examine and produce the insurance bond before the Sessions Court during the proceedings. Though PW5 has narrated the improved version of PW1, but the same has no basis since PW5 is not an eye-witness to the incident. It is equally notable that though PW1 had stated that her sister 37 Dilshad Banu-CW6 has informed her about the death of her daughter and claims to be as eye-witness to the incident, but very strangely, the prosecution has not examined the said Dilshad Banu-CW6 before the Sessions Court and as such, the prosecution has failed to prove the guilt of the accused beyond reasonable doubt. In order to prove the case of the prosecution, they have examined PW6-Jeelan Pasha, the son- in-law complainant PW1. He is not an eye-witness to the incident. He deposed that the deceased left the house and married the accused six years back and was residing with the accused. He further deposed that the accused was autorickshaw driver and was in financial crisis and he has reiterated the deposition of PW1 with regard to PW2. PW1, PW5 and PW6 are interested witnesses and are the relatives of PW1-complainant and the perusal of their evidence would clearly indicate that there are contradiction about the factual aspects of the case and they have not produced any documentary evidence to prove that the accused was pestering his wife Sadik Isha to secure the compensation amount. Neither the insurance bond nor the copy of the 38 award passed by the competent court awarding compensation, was produced by the prosecution to prove the motive of the accused to commit the offence under Section 302, 201 IPC. It is also essential to note that PW2 the son of the deceased and accused, has deposed that at the time of incident, the accused had gone out taking his auto for hire and was not present in the house.
35. On perusal of the entire evidence of these related witnesses, we are fortified with our conclusion that if at all the accused had committed the offence as per the version of the prosecution, he would not have be present at the place of incident and on the other hand, the accused has waited till the family members of the deceased have come to the spot. That apart, the accused has affirmatively answered to Question No.22 while recording his statement under Section 313 of Code of Criminal Procedure, and therefore, the arguments advanced by the Additional Special Public Prosecutor with regard to Section 106 of the Evidence Act is without any basis and not applicable to be case on hand. On 39 the other hand, the contention advanced by the learned Senior Counsel is to be accepted. In this regard, learned Senior Counsel places reliance on the judgment of the Hon'ble Supreme Court in the case of Dasari Shivaprasad Reddy v. public prosecutor reported in (2004)11 SCC 282 wherein at paragraph 24 of the Judgment, the Hon'ble Supreme Court has observed thus:
"A strong suspicion, no doubt, exists against the appellant, but such suspicion cannot be the basis of conviction, going by the standard of proof required in a criminal case. The distance between 'may be true' and 'must be true' shall be fully covered by reliable evidence adduced by the prosecution."
36. We have also carefully examined and re-
appreciated the evidence of PWs3 and 4 and also perused the medical records Exhibits P2, P3 and P4. PW3-Doctor deposed about the nature of the injury on the neck of the deceased and he has opined in Ex.P2 (postmortem report) that the "ligature mark was antemortem and fresh in nature". However PW3 reserved his opinion pending histopathology 40 examination report. Ex.P3 is the histopathology report, which reads as under:
"Extensive hemohhrage in the soft tissue of neck structures suggests antemortem injury."
Therefore, PW3 has issued report about the cause of death as follows:
"Final Opinion: Death is due to antemortem as a result of ligature strangulation, however pending production of ligature material."
37. Though PW3 has opined that the death of deceased was due to asphyxia, as a result of ligature strangulation, however for the reasons best known to the prosecution, no such ligature material was produced before the trial Court for examination and in that view of the matter, the said ground alone was available to the learned Sessions Judge to acquit the accused, however, learned Sessions Judge failed to appreciate the material on record in its right perspective and appreciation of evidence is based on presumptions. The medical evidence as elaborated hereinabove also does not decisively establish the case of the prosecution and therefore, 41 the reasons assigned by the learned Sessions Judge while passing the impugned judgment of conviction and order of sentence is without any cogent reasons and not based on any material on record and therefore, the impugned judgment of conviction and order of sentence is liable to be set aside.
38. We have carefully re-appreciated the evidence of prosecution and also perused the impugned order, particularly, with regard to the reasons assigned by the learned Sessions Judge to convict the accused. The Investigating Officer-PW12 has deposed that he has visited the place at the instance of accused through his voluntary statement where the accused had burnt the rope, i.e. the manure pit on Madhugiri Road, near Sriraksha Vidyaniketan School, but strangely, neither ash nor the mud containing ash were sent for examination to the Forensic Science Laboratory. In that view of the matter, the prosecution case revolves around the suspicious circumstances, and as such, the prosecution has failed to prove the guilt of the accused, and therefore, the finding recorded by the Sessions Judge that the 42 accused was residing in the house at the time of the incident is without any basis and so also the prosecution has not made out a case for convicting the accused and therefore, the impugned judgment and order of sentence is liable to be set aside.
39. On careful perusal of the deposition of PW2-son of the deceased and the accused, who is aged four years. The evidence of PW2 remains unshakable by the prosecution and accordingly, he was treated hostile by the prosecution. The entire basis of the complaint (Ex.P1) and the evidence of PW1 stands on the version of PW2. PW1-complainant has not only stated in the complaint Ex.P1 alleging that the accused caused death of her daughter as well as she has deposed before the Court that she came to know about the cause of death of her daughter through PW2, but very strangely, the evidence of PW1 and PW2 is totally in contradiction and deposition of PW1 do not support the case of the prosecution to prove the guilt of the accused. In fact, the prosecution felt that PW2 and PW5(CW6) are the eye-witnesses to the 43 incident. However, PW2 has not supported prosecution case and has deposed that the accused was not present at the time of the incident and so also, the prosecution has not examined CW6-Dilshad Banu, who is apparently considered to be eye-witness to the incident as per the deposition of PW1. On an overall consideration of the evidence available on record, in our view, it would be wholly unsafe to hold the appellant-accused guilty of charge of murder of his wife strangulating her with pillow MO1, and in that view of the matter, the finding recorded by the learned Sessions Judge while passing the impugned judgment and order of sentence is liable to be set aside. Our view is fortified by the law declared by Hon'ble Supreme Court in the case of TOMASO BRUNO AND ANOTHER v. STATE OF UTTAR PRADESH reported in (2015)7 SC 178 wherein at paragraph 39 of the judgment, the Hon'ble Supreme Court observed as under:
"39. It is a settled proposition of law recently reiterated in the following cases viz. Dayal Singh And Ors. vs. State of Uttaranchal (2012) 7 SCALE 165, Radhakrishna Nagesh vs. State of Andhra Pradesh, (2013) 11 SCC 688, Umesh Singh vs. State 44 of Bihar (2013) 4 SCC 360 that there is possibility of some variations in the exhibits, medical and ocular evidence and it cannot be ruled out. But it is not that every minor variation or inconsistency would tilt the balance of justice in favour of the accused. Where contradictions and variations are of a serious nature, which apparently or impliedly are destructive of the substantive case sought to be proved by the prosecution, they may provide an advantage to the accused."
In the instant case, the perusal of the evidence of PW1, PW2 and PW7 contradicts and distinct with each other. That apart, the contents of Ex.P1 is not forthcoming in the evidence of PW1 in totality of the facts and circumstances of the case and in that view of the matter, the submission made by the learned Senior Counsel be accepted.
40. In the case of JAGDISH PRASAD v. STATE OF MADHYA PRADESH reported in AIR 1994 SC 1251 the Hon'ble Supreme Court has held that where the testimony of witnesses is clouded with grave suspicion and discrepancy, particularly, recording of statement of witnesses and conviction based on such testimony is not safe and in the 45 instant case, the statement of the PW1, PW5 and PW7 with that of PW12 contradicts regarding death of deceased and conducting investigation and creates a suspicion about the involvement of the accused.
41. The aforesaid principle was reiterated by the Hon'ble Supreme Court in the case of RAJ KUMAR SINGH V. STATE OF RAJASTHAN reported in AIR 2013 SC 3150. At paragraph 17 it is observed thus:
"17. Suspicion, however grave it may be, cannot take the place of proof, and there is a large difference between something that `may be' proved and `will be proved'. In a criminal trial, suspicion no matter how strong, cannot and must not be permitted to take place of proof. This is for the reason, that the mental distance between `may be' and `must be' is quite large and divides vague conjectures from sure conclusions. In a criminal case, the court has a duty to ensure that mere conjectures or suspicion do not take the place of legal proof. The large distance between `may be' true and `must be' true, must be covered by way of clear, cogent and unimpeachable evidence produced by the prosecution, before an accused is condemned as a convict, and the basic and golden rule must be 46 applied. In such cases, while keeping in mind the distance between `may be' true and `must be' true, the court must maintain the vital distance between conjectures and sure conclusions to be arrived at, on the touchstone of dispassionate judicial scrutiny based upon a complete and comprehensive appreciation of all features of the case, as well as the quality and credibility of the evidence brought on record. The court must ensure, that miscarriage of justice is avoided and if the facts and circumstances of a case so demand, then the benefit of doubt must be given to the accused, keeping in mind that a reasonable doubt is not an imaginary, trivial or a merely probable doubt, but a fair doubt that is based upon reason and common sense."
42. After going through the entire records and deposition of the prosecution witnesses, mainly PW1, PW5 and PW7, it is relevant to mention the law declared by the Hon'ble Supreme Court in the case of SUJIT BISWAS v. STATE OF ASSAM reported in AIR 2013 SC 3817 wherein it is observed as follows:
"In a case of circumstantial evidence, the judgment remains essentially inferential. Inferences are drawn from established facts, as the circumstances lead to particular inferences. The 47 Court must draw an inference with respect to whether the chain of circumstances is complete, and when the circumstances therein are collectively considered, the same must lead only to the irresistible conclusion, that the accused alone is the perpetrator of the crime in question. All the circumstances so established must be of a conclusive nature, and consistent only with hypothesis of the guilt of the accused. If the circumstances proved in case are consistent either with innocence of accused or with his guilt then the accused is entitled to the benefit of doubt. When it is held that a certain fact has been proved, then the question that arises is whether such a fact leads to the inference of guilt on the part of the accused person or not, and in dealing with this aspect of the problem, benefit of doubt must be given to the accused, and a final inference of guilt against him must be drawn only if the proved fact is wholly inconsistent with the innocence of the accused, and is entirely consist with his guilt. An adverse inference can be drawn against the accused only and only if the incriminating material stands fully established, and the accused is not able to furnish any explanation for the same. However, the accused has the right to remain silent, as he cannot be forced to become a witness against himself."48
43. As regards drawing of conclusion with regard to guilt is concerned, the Hon'ble Supreme Court, in the case of BRAJENDRASINGH v. STATE OF MADHYA PRADESH, has observed that there must be a chain of events so complete, so as not to leave any substantial doubt in the mind of the Court. At paragraph 16 of the Judgment, it observed as follows:
"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 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 49 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...."
44. With regard to sustain the conviction on the basis of circumstantial evidence, the Hon'ble Supreme Court, in the case of DIGAMBER VAISHNAV v. STATE OF CHHATTISGARH reported in (2019)4 SCC 522, laid down that the following three conditions which must be satisfied:
i) the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established;
ii) those circumstances should be of a definite tendency unerringly pointing towards the guilt of the accused; and
iii) the circumstances, taken cumulatively, should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else, 50 and it should also be incapable of explanation on any other hypothesis than that of the guilt of the accused.
45. Further, the Hon'ble Supreme Court, in the case of VARKEY JOSEPH v. STATE OF KERALA reported in 1993 Supp (3) SCC 745 has held that, suspicion is not the substitute for proof. There is a long distance between 'may be true' and 'must be true' and the prosecution has to travel all the way to prove its case beyond reasonable doubt.
46. Our view is fortified by the dictum of the Hon'ble Supreme Court in the case of STATE OF UTTAR PRADESH v. RAMESH PRASAD MISRA AND ANOTHER reported in (1996)10 SCC 360, wherein it has been held that even if material witnesses do not speak the truth, the circumstantial evidence should be scanned having regard to the ordinary human conduct and probabilities. Even after extending doubts in favour of the accused, circumstantial evidence can conclusively establish the commission of offence by the accused.
51
47. In the case of SHARAD BIRDHICHAND SARDA v. STATE OF MAHARASHTRA, at paragraphs 153 and 154, it has been observed as under:
"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:
(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 following 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 52 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.
154. These five golden principles, if we may say so, constitute the panchsheel of the proof of a case based on circumstantial evidence."
48. In VIJAY SHANKAR v. STATE OF HARYANA reported in (2015) 12 SCC 644, it has been held that in a case based on circumstantial evidence, the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established; that these circumstances should be of a definite tendency, unerringly pointing towards the guilt of the accused; that the circumstances taken cumulatively should form a chain so complete that there is no escape from the conclusion that within all human probability, the crime was 53 committed by the accused and they should be incapable of explanation of any hypothesis other than that of the guilt of the accused and inconsistent with their innocence. The aforesaid observations are based on the judgment in SHARAD BIRDHICHAND SARDA (supra) and the same view was reiterated in BABLU v. STATE OF RAJASTHAN reported in (2006) 13 SCC 116.
49. In the case of NIZAM AND ANOTHER v. STATE OF RAJASTHAN reported in (2016) 1 SCC 550, it has been held that though "last seen theory" is an important link in the chain of circumstances that would point towards the guilt of the accused with some certainty and to shift the burden of proof of the accused and the accused to offer a reasonable explanation as to the cause of death of the deceased, but it is not prudent to base the conviction solely on "last seen theory". The "last seen theory" should be applied taking into consideration the case of the prosecution in its entirety and keeping in mind the circumstances that precede and follow the point of being so last seen.
54
50. In the context of the 'last seen theory', Section 106 of the Evidence Act states that when any fact is especially within the knowledge of any person, the burden of proving that fact is upon him. Thus, if a person is last seen with the deceased, he must offer an explanation as to how and when he parted company. If he does so, he should be held to have discharged his burden. In a case based on circumstantial evidence, if the accused fails to offer a reasonable explanation in discharge of the burden placed on him, that itself provides an additional link in the chain of circumstances proved against him. But, Section 106 of the Evidence Act does not shift the burden of proof in a criminal trial on the accused as it is always on the prosecution. But, the Court can consider the failure of the accused to adduce any explanation of facts which are especially within his knowledge, as an additional link which completes the chain. In this regard, it is necessary to refer to the law declared the Hon'ble Supreme Court in the case of JOSE ALIAS PAPPACHAN v. SUB-INSPECTOR OF POLICE, KOYILANDY AND ANOTHER reported in (2016)10 SCC 519. In the said case, it is held that it is impermissible 55 to cast any burden on the accused under Section 106 of Evidence Act. Circumstances brought forth by prosecution do not rule out hypothesis of evidence of accused-husband in absolute terms, and accordingly, the facts and circumstances admit of reasonable doubt in favour of the accused and, as stated, links in the chain of circumstances are not established, and accordingly, the Hon'ble Supreme Court set aside the order of conviction passed by the High Court under the provisions of Section 302 IPC.
51. It is well settled that there is no embargo on the Appellate Court reviewing the evidence upon which an order of conviction is based. The golden thread which runs through the web of administration of justice in criminal cases is that if two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and the other to his innocence, the view which is favourable to the accused should be adopted. The paramount consideration of the Court is to ensure that miscarriage of justice is prevented. A miscarriage 56 of justice which may arise from acquittal of the guilty is no less than from the conviction of an innocent.
52. It is further noted by us that, as far as the statements of the witnesses recorded in the case are concerned, they are not identical and found major contradictions. In this case, the written complaint was silent about the corroboration of entire evidence to prove the guilt of the accused. Though it is settled principle of law that merely because the prosecution witnesses are interested witnesses, their testimony cannot be discarded on said ground alone, but the evidence of the interested witnesses must be identical and there should be no major contradictions among them. In the instant case, the complaint does not depict as to what actually happened.
53. After referring to the aforesaid principles enunciated by the Hon'ble Supreme Court, we find that the reasoning of the trial court is very casual with scant regard to the principles of appreciation of evidence in a criminal case and also is against the principle of proof beyond reasonable 57 doubt. Thus, the trial court was not justified in convicting the accused under Section 302 and 201 of IPC in the face of evidence being conspicuous by its absence or total lack of evidence.
VIII. CONCLUSION
54. We have carefully and cautiously gone through the judgment of the trial Court. The learned Sessions Judge, without properly appreciating the evidence available on record, only on surmises, presumption and assumption, has come to a wrong conclusion and has wrongly convicted the accused. In that light, the judgment of the trial Court is not sustainable in law. It requires interference at the hands of this Court. Keeping in view the discussion made by us above, the appellant-accused has made out a case to set aside the judgment of the trial Court, and accordingly, points for determination made above, are answered in favour of the accused, under the circumstance of the case. 58
55. For the foregoing reasons, the appeal preferred by the accused deserves to be allowed. Hence, we proceed to pass the following:
IX. ORDER/RESULT:
(i) Appeal is allowed;
(ii) The judgment of conviction and order of
sentence dated 29th April, 2015 passed by the Principal District and Sessions Judge, Tumakuru in SC No.118/2014, is hereby set aside.
(iii) Consequently, the appellant-accused is acquitted from the charges for the offence punishable under Sections 302, 201 IPC;
(iv) The appellant-accused is set at liberty forthwith, if he is not required in any other case;
(v) Registry is directed to communicate the operative portion of this judgment to the concerned jail authorities to release the accused, if he is not required in any other case after following Standard Operating Procedure and in accordance with law;59
(vi) Registry is also hereby directed to send back the records to the trial court along with a copy of this judgment;
(vii) If the appellant-accused has deposited any fine amount, the same is ordered to be refunded, on proper identification and acknowledgement.
Sd/-
JUDGE Sd/-
JUDGE lnn