Karnataka High Court
Ramesha B vs The State Of Karnataka on 19 November, 2020
Bench: B.Veerappa, K.Natarajan
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 19TH DAY OF NOVEMBER, 2020
PRESENT
THE HON' BLE MR. JUSTICE B. VEERAPPA
AND
THE HON'BLE MR. JUSTICE K.NATARAJAN
CRIMINAL APPEAL No.1326/2015
BETWEEN:
RAMESHA B
S/O BADA MUGERA,
AGED ABOUT 28 YEARS,
R/AT BANTHIMARU HOUSE,
KOKKADA VILLAGE AND POST,
BELTHANGADY TALUK,
D.K. DISTRICT, PIN 574198. ...APPELLANT
(BY SRI HASHMATH PASHA, SENIOR COUNSEL A/W
SRI KALEEM SABIR, ADVOCATE)
AND:
THE STATE OF KARNATAKA
THROUGH KADABA POLICE,
PUTTUR RURAL CIRCLE, D.K,
REPRESENTED BY THE
STATE PUBLIC PROSECUTOR,
HIGH COURT BUILDINGS,
BANGALORE 560001. ...RESPONDENT
(BY SRI VINAYAKA V.S., HCGP)
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THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374(2) OF
THE CODE OF CRIMINAL PROCEDURE, 1973, PRAYING TO SET
ASIDE THE JUDGMENT AND ORDER OF CONVICTION AND
SENTENCE DATED 29/31.8.2015 PASSED BY THE LEARNED V
ADDITIONAL DISTRICT AND SESSIONS JUDGE, D.K., MANGALURU
SITTING AT PUTTUR, D.K., IN SESSIONS CASE No.95/2012,
CONVICTING THE APPELLANT FOR THE OFFENCES PUNISHABLE
UNDER SECTIONS 302 AND 201 OF IPC AND CONSEQUENTLY
ACQUIT THE APPELLANT OF ALL THE CHARGES.
THIS CRIMINAL APPEAL IS COMING ON FOR HEARING THIS
DAY, B.VEERAPPA, J, DELIVERED THE FOLLOWING:
JUDGMENT
The appellant - accused filed the present appeal against the Judgment of conviction and order of sentence dated 29/31.8.2015 made in S.C. No.95/2012 on the file of the V Addl. District and Sessions Judge, D.K., Mangaluru, sitting at Puttur, D.K., convicting the accused for the offences punishable under Sections 302 and 201 of IPC and sentencing him to undergo imprisonment for life with fine of Rs.3,000/- for the offence punishable under Section 302 of IPC and simple imprisonment for seven years with fine of Rs.2,000/- for the offence punishable under Section 201 of IPC with default sentences.
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I. BRIEF FACTS OF THE CASE
2. It is the case of the prosecution that PW.1 (father of the deceased Kum. Pushpalatha) lodged a complaint - Ex.P2 on 28.3.2012 alleging that his daughter - Kum. Pushpalatha, aged about 21 years, was studying in the 2nd Year Degree at Subrahmanya Degree College and since three years prior to the date of incident, his daughter was loving the accused and the matter has been informed to him by her daughter. He assured her daughter that he would perform her marriage after completion of her studies. The complainant (PW.1) was aware of the fact that, accused frequently used to visit the house of his elder sister at Olakadame of Koila village, situated besides Kumaradhara river and at that time, Pushpalatha was also used to meet and talk with accused near the river and same has been informed by her to the complainant. It is further alleged that on 17.3.2012 from 8.00 p.m to 10.00 p.m., the accused called to the mobile No.9902048856 of daughter of the complainant and spoken and said fact has been informed by his daughter to the complainant. His daughter also stated that accused had asked her to come to the 4 bank of Kumaradhara river on the next day, as he wanted to talk with her. On 18.3.2012 since there was marriage engagement in the house of relatives of complainant at Bellare, due to which complainant had been to there along with his wife, by that time Pushpalatha was alone in the house. The complainant returned along with wife to the house at about 6.00 p.m., by that time his daughter Pushpalatha was not there. When he enquired with the neighbours, his daughter was not traced. When called to her mobile, it was switched off. The complainant was not having mobile number of accused to contact him. They searched for Pushpalatha throughout night, but not traced. It is further alleged that on 19.3.2012 complainant visited Olakadame, where the house of elder sister of accused is situated and through their mobile talked with accused - Ramesha to his mobile and at that time, he showed ignorance about the daughter of the complainant and talked carelessly. The complainant (PW.1) and his family members got information at about 7.00 p.m. that near Odadhabagilu, Olakadame of Koila village, dead body of one girl found besides the water of Kumaradhara river and then, he went there and found that dead body was that of his daughter Pushpalatha. In the complaint - 5 Ex.P1 lodged by PW.1 earlier to the Kadaba Police on 20.3.2012, he has stated that there was suspicion about the death of his daughter. Accordingly, the Kadaba Police registered UDR No.12/2012 under Section 174(c) of the Code of Criminal Procedure. The accused escaped from that day without being available for enquiry. It is further alleged that since about three months prior to the incident, there was ill-will between the accused and daughter of the complainant in respect of some matter and accused while talking with Pushpalatha in phone, she was not showing any interest to talk with him and also neglecting him and same has been observed by the complainant - PW.1 for some time. Therefore, accused somehow killed his daughter and to hide, released her dead body into water and there was suspicion on him. Accordingly, the jurisdictional Police registered the 2nd complaint - Ex.P2 on 28.3.2012 against the accused for the offences punishable under Sections 302 and 201 of IPC.
3. The learned JMFC committed the case to the Sessions Court. The learned Sessions Judge framed charges against the 6 accused on 11.10.2012 and read over and explained to him. The accused pleaded not guilty and claimed to be tried.
4. In order to prove its case, the prosecution examined in all PWs.1 to 20 and got marked Ex.P1 to Ex.P19 and the material objects - MOs.1 to 11. After completion of evidence of the prosecution witnesses, the learned Sessions Judge recorded the statement of the accused as contemplated under the provisions of Section 313 of the Code of Criminal Procedure. The accused denied all the incriminating evidence adduced by the prosecution against him and not lead any defence evidence.
5. The learned Sessions Judge considering the aforesaid material, formulated two points for consideration, which read as under:
1. Whether the prosecution is able to prove death of Pushpalatha is homicidal?
2. Whether the prosecution is able to prove beyond all reasonable doubt that accused and deceased Pushpalatha were loving each other, since 3 years prior to incident, and in some matter there was ill-will 7 between them, due to hatred with an intention to kill her accused by making call to the mobile No.9902048846 of her from his mobile No.9731747793 on 18.3.2012 after 10-00 a.m., made her to come near Kumaradhara River situated at Olakadame, Odadhabagilu of Koila Village, Puttur Taluk, quarreled with her and strangulated by means of vale, which was in her neck and by holding her pig-tail dragged her to the river and by drowning in the water, killed her and to destroy the evidence left her body in the water and thereby committed offences punishable under sections 302 and 201 of IPC?
6. Considering both the oral and documentary evidence on record, the learned Session Judge answered both the points in the affirmative holding that the prosecution proved that the death of Pushpalatha is homicidal death and further proved beyond reasonable doubt that the accused committed the offences punishable under Section 302 and 201 of IPC. Accordingly, the learned Sessions Judge convicted and sentenced the accused for the aforesaid offences. Hence, the present appeal is filed by the convicted accused.
7. We have heard the learned counsel for the parties. 8 II. ARGUMENTS ADVANCED BY SRI HASHMATH PASHA, LEARNED SENIOR COUNSEL FOR THE APPELLANT
8. Sri Hashmath Pasha, learned senior counsel for the appellant - accused contended with vehemence that the learned Sessions Judge proceeded to pass the impugned judgment convicting the accused for the offences punishable under Sections 302 and 201 of IPC without appreciating the entire material on record in the proper perspective and therefore the impugned judgment cannot be sustained. He further contended that the entire case of the prosecution is based on the circumstantial evidence and there is no chain of circumstances to connect the accused in the alleged offence and the prosecution has failed to prove the case beyond reasonable doubt and the allegations made against the appellant are not supported by cogent evidence. Learned counsel would further contend that the learned Sessions Judge while passing the impugned judgment, has not properly considered and appreciated the inconsistencies, contradictions and improvements in the evidence of the witnesses. On proper appreciation and consideration of the material evidence on record, it clearly depicts that the appellant has not committed any offence 9 alleged and therefore, the impugned judgment and order cannot be sustained. He would further contend that PW.1 (father of the deceased) filed the 1st complaint as per Ex.P1 on 20.3.2012 stating that on 19.3.2012 he came to know the death of the deceased. There is sufficient time to implicate the name of the appellant suspecting him as the cause for the death of the deceased, but the complainant did not mention the name of the appellant in the 1st complaint. After lapse of 8 days, the appellant has been falsely implicated in the 2nd complaint lodged on 28.3.2012 making allegations of murder of his daughter. The same is totally without any basis and the inconsistency cannot be accepted.
9. Learned senior counsel would further contend that when FIR was registered, the appellant was very much present in the Police Station as admitted by PW.1 in the cross-examination. He also contended that as per the final opinion in the post-mortem report - Ex.P15 and the evidence of the doctor, the cause of death of the deceased was due to asphyxia, due to drowning and there is no reference of any strangulation or violence. The learned Sessions Judge has not considered all these materials in the proper 10 perspective and therefore, the impugned judgment cannot be sustained. He further contended that the Court below has not considered the version of the witnesses, who did not support the prosecution case. He also contended that PW.4 turned hostile and not supported the case of the prosecution. The entire case is based on circumstantial evidence and the prosecution is unable to establish the motive against the appellant. He also contended that while lodging the 1st complaint on 20.3.2012 and the 2nd complaint on 28.3.2012 as per Ex.P1 and Ex.P2, there were two versions. He would further contend that the charge made against the accused contains the strangulation. The medical evidence do not support the case of the prosecution.
10. Learned senior counsel would further contend that PW.1, father of the deceased has stated in the examination-in-chief that when they went to engagement, his daughter was alone in the house, whereas in the complaint it was stated that after taking breakfast, she went out of the house. There is inconsistency with regard to the averments made in the complaint and in the evidence. He further stated that the evidence of PW.1 is contrary 11 to the averments made in the complaint and PW.1 has admitted in the cross-examination that he has not stated anything against the accused in Ex.P1, the 1st complaint. He further contended that from 19.3.2012 to 28.3.2012, PW.1 did not try to contact the accused and admitted that as per the directions of PW.9 - Kamalaksha and PW.10 - Devappa, he has lodged the 2nd complaint as per Ex.P2.
11. Learned senior counsel further pointed out that PWs.2 and 4 have infact supported the case of the defence. PW.2 - Jayaram Gowda of Olakadama, Koila village has stated that the accused has informed him that somebody has fallen in Kumaradhara river and when he went and verified, nobody was found. In the cross-examination, PW.2 has stated that the accused not known to him and he has seen him for the first time in the Court. In the chief-examination, PW.4 has supported the accused. Ultimately, PWs.2 and 4 have turned hostile to the prosecution case. Learned senior counsel would further contend that PW.5, the mother of the deceased stated that the deceased was in the home on the relevant day and that the deceased and the 12 accused were cordial and in good terms and ultimately, she also turned hostile and virtually supported the case of the accused. He further contended that PWs.7 and 8, who were witnesses to the inquest panchanama have not supported the case as alleged.
12. Learned senior counsel further contended that eventhough the prosecution produced the call details as per Ex.P12 and Ex.P13, the author who has issued the said call details has not been examined and in view of the provisions of Section 65B(4) of the Indian Evidence Act, the call details as per Ex.P12 and Ex.P13 cannot be relied upon.
13. Learned senior counsel would further contend that the entire case of the prosecution is based on the circumstantial evidence and absolutely there is no material produced by the prosecution to prove the homicidal death of the deceased and same is not proved and there is no last seen theory and there are no eye witnesses. Therefore, he sought to allow the appeal by setting aside the impugned Judgment and order of conviction and sentence passed by the trial Court.
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14. In support of his contentions, learned senior counsel for the appellant has relied upon the following judgments:
1. Tomaso Bruno and another -vs- State of Uttar Pradesh reported in 2015 (7) SCC 178
2. Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantyal others reported in 2020 (7) SCC 1
3. Anvar P.V -vs- P.K. Basheer and others reported in 2014 (10) SCC 473
4. Sharad Birdhichand Sarda v. State of Maharashtra reported in AIR 1984 SC 1622
5. Vijender v. State of Delhi reported in 1997 (6) SCC 171
6. Madhu v. State of Kerala reported in 2012 (2) SCC 399
7. Navaneethakrishnan v. State by inspector of police reported in 2018 (16) SCC 161
8. Sangili alias sanganathan v. State of Tamil Nadu, reported in 2014 (10) SCC 264 14
9. Mohd. Aman and another v. State of Rajasthan reported in AIR 1997 SC 2960 III. ARGUMENTS ADVANCED BY SRI VINAYAKA V.S., LEARNED HCGP FOR THE RESPONDENT - STATE
15. Per contra, Sri Vinayaka V.S., learned HCGP appearing for the respondent - State sought to justify the impugned Judgment and order of conviction and contended that there is a specific charge against the accused that there was a quarrel between the accused and the deceased and the accused has killed the deceased and pushed her to the Kumaradhara river. He further contended that the deceased Pushpalatha was studying in the II year B.A. in the KSS College and the accused was her friend and there was love affair between them and some differences of opinion arose between them and the accused with an intention to take revenge against the deceased Pushpalatha, called her to come to the bank of Kumaradhara river on 18.3.2012 and killed the deceased by strangulation with her duppata and drowned her in Kumaradhara river. He further contended that in case of strangulation, there 15 was no need of ligature mark as held by Modi's Medical Jurisprudence.
16. Learned HCGP would further contend that in view of the provisions of Section 106 of the Evidence Act, it is the duty of the accused who was with the deceased at the time of the incident to discharge the initial burden.
17. Learned HCGP would further contend that PW.1 in paragraph-5 of the examination-in-chief suspected the accused and PWs.3,7 and 8 also supported the prosecution case. He further contended that PWs.2 and 4 also supported the case of the prosecution. The prosecution has seized under Ex.P3 MOs.1 and 2 and under Ex.P4, MOs.3 to 7. PW.9 mahazar witness and PW.1 father of the deceased also supported the prosecution case. The learned Sessions Judge based on the oral and documentary evidence including the evidence of PW.17 - Doctor and Ex.P15 - post-mortem report justified in holding that the accused strangulated the deceased and drowned her in the Kumaradhara river. Therefore, he sought to dismiss the appeal. 16
18. In support of his contentions, learned HCGP relied upon the dictum of the Hon'ble Supreme Court in the case of State of Karnataka -vs- K. Gopalakrishna reported in AIR 2005 SC 1014 (paragraph-15).
IV. POINT FOR DETERMINATION
19. In view of the rival contentions urged by the learned counsel for the parties, the only point that would arise for our consideration in the present criminal appeal is:
"Whether the appellant/accused has made out any prima facie case to interfere with the impugned judgment and order of conviction and sentence passed by the trial Court convicting the accused for the offences punishable under Sections 302 and 201 of IPC and sentencing him to undergo imprisonment for life with fine Rs.3,000/- for the offence punishable under Section 302 of IPC and simple imprisonment for seven years with fine of Rs.2,000/- for the offence punishable under Section 201 of IPC with default sentences, in the facts and circumstances of the case ?17
20. We have given our thoughtful consideration to the arguments advanced by the learned counsel for the parties and perused the entire material including the original records carefully. V. EVIDENCE OF THE PROSECUTION WITNESSES AND THE DOCUMENTS RELIED UPON
21. The sum and substance of evidence of the prosecution witnesses is as under:
(i) PW.1 - Sanku is father of the deceased Pushpalatha and he has lodged the 1st complaint as per Ex.P1 on 20.3.2012 at 00.30 hours stating that the dead body of his daughter - Pushpalatha was found in the river, upon which UDR FIR was registered in UDR No.12/2012. The 2nd complaint lodged on 28.3.2012 as per Ex.P2 making allegations against the accused that he killed her.
With regard to the motive, he has stated that both were loving each other. He supported the prosecution case.
(ii) PW.2 - Jayarama Gowda stated that on the relevant day at about 10.30 a.m., the accused came and told that one lady has 18 fallen in river. He along with his elder brother went and saw, but no one was found and returned back.
(iii) PW.3 - K. Honnappa Poojary is witness to the inquest report - Ex.P6. The inquest was conducted in the Government Hospital Mortuary. He supported the prosecution case.
(iv) PW.4 - Venkappa has stated on par with PW.2. He supported the prosecution case.
(v) PW.5 - Kora polu is mother of the deceased. She has stated that accused Ramesha was loving Pushpalatha since 2 ½ years prior to the incident and on the relevant day, the deceased Pushpalatha was alone in the house and they all had gone for engagement and when returned at 7 p.m, the deceased Pushpalatha was not in the house and on the next day, dead body was found in the river. She partly supported the prosecution case.
(vi) PW.6 - Shashikumar is younger brother of the deceased. He has stated that on 17.3.2012, he was in Ullala, Mangaluru. His elder sister Pushpalatha and accused Ramesha were loving each other since three years prior to the incident. On the relevant day, 19 his father told that Pushpalatha was not at home and on the next day, her dead body was found in the river. He supported the prosecution case.
(vii) PW.7 - Shivaram is panch to the inquest report - Ex.P6. He supported the prosecution case.
(viii) PW.8 is witness to Ex.P6 - inquest report. She identified chudidar, top, pant etc., which were found on the dead body of the deceased.
(ix) PW.9 - Kamalaksha @ Kaimala is witness to Ex.P3 - mahazar. He stated that accused led him near river, found duppata and chappal. He is also a witness to Ex.P4 - mahazar under which articles MOs.3 to 7 were seized. He supported the prosecution case.
(x) PW.10 - Devappa is panch witness to Ex.P3 and Ex.P4 and identified MOs.1 to 7. He supported the prosecution case.
(xi) PW.11 - Narayan Raku Naik is the Scientific Officer of the Forensic Science Laboratory. He conducted test of Vicera and 20 Ex.P11 is the report and he stated that no poison detected. He supported the prosecution case.
(xii) PW.12 - Rithesh is the Police Constable and he has furnished call details of mobile numbers of the deceased and the accused as per Ex.P12 and Ex.P13. He supported the prosecution case.
(xiii) PW.13 - Ramachandra is the Police Constable, who carried the complaint - Ex.P1 and UDR FIR - Ex.P14 on 21.3.2012 and delivered to the Sub-Divisional Magistrate. He supported the prosecution case.
(xiv) PW.14 - Venkatramana Gowda is the Head Constable and on 20.3.2012, he was deputed to watch dead body of Pushpalatha in Government Hospital, Puttur. After inquest, post- mortem was done and thereafter dead body was given to relatives. He supported the prosecution case.
(xv) PW.15 - Yogendra is the Head Constable, who registered and submitted UDR FIR No.12/2012. He identified the 21 complaint - Ex.P1 and FIR - Ex.P14. He supported the prosecution case.
(xvi) PW.16 - Rukaiah is the ASI, who on 19.3.2012 took up further investigation from PW.15 - ASI and went near Kumaradhara river, where dead body was found at 2 a.m. night and shifted the dead body to Mortuary of Government Hospital, Puttur. On the next day at 7.30 a.m., conducted inquest as per Ex.P6. He supported the prosecution case.
(xvii) PW.17 - Dr. Veena is the doctor who conducted post mortem examination on the dead body of the deceased on 20.3.2012 from 9.30 a.m to 11.00 a.m. and PM report is at Ex.P15. He has stated that cause of death was due to asphyxia as a result of drowning. He supported the prosecution case.
(xviii) PW.18 - Abdul Samad, who was working in a mobile shop, has examined mobile and given the report as per Ex.P17 that since mobile has fallen in water, it was not functioning. He turned hostile to the case of the prosecution.
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(xix) PW.19 - Nagaraj is the PSI of Kadaba Police Station. He received the 2nd complaint on 28.3.2012 at 10.00 a.m. from PW.1 and registered FIR in Crime NO.35/2002 for the offences punishable under Sections 302 and 201 of IPC. Ex.P2 is the complaint and Ex.P18 is the FIR. On the same day at about 1 p.m, he apprehended the accused and produced before CPI at 2 p.m. He supported the prosecution case.
(xx) PW.20 - Jagadish is the CPI, who took up further investigation on 28.3.2012 and investigated the matter and filed the charge sheet. He supported the prosecution case.
VI. FINDINGS OF THE TRIAL COURT
22. Based on the aforesaid material evidence on record, the learned Sessions Judge proceeded to convict the accused for the offences punishable under Sections 302 and 201 of IPC. The trial Court recorded a finding that PW.2 has deposed that the accused informed him on the relevant day that somebody had fell into Kumaradhara river, but he has not disclosed before him that daughter of PW.1 viz., Pushpalatha fell into the water. So also the 23 accused has not informed the said fact to PW.1 or his family members or to the Police. When the accused was able to inform falling of woman in the said river to PW.2, he could have stated the said fact to PW.1 and his family members or to the Police. In the statement recorded under Section 313 of the Code of Criminal Procedure, the accused has not disclosed that the deceased Pushpalatha fell into the water accidentally, while she was crossing the river on the bridge i.e, kalu sanka. Therefore, the trial Court held that there is sufficient oral and documentary evidence on record to believe that the death of the deceased is homicidal.
23. The trial Court further recorded a finding based on the call details between the accused and the deceased as per Ex.P12 and Ex.P13 that there was love and close intimacy between the accused and the deceased since three years prior to the incident. The trial Court further recorded a finding that the accused admitted strangulation of the deceased and pushing her into the river in the voluntary statement - Ex.P19. The trial Court further recorded a finding that MOs.1 and 2 were not kept in the open place, easily available or accessible to the common public. The hiding of MOs.1 24 and 2 near the boulders is within the personal knowledge of the accused. The trial Court further recorded a finding that the accused strangulated the deceased by using MO.1 around the neck of the deceased and by holding her pig-tail, he dragged to the deep water of the river and drowned Pushpalatha and thereafter, he informed PWs.2 and 4 that one woman fell in the river. The trial Court also recorded a finding that the accused betrayed the deceased, misused her love and friendship and committed barbaric act. From 18.3.2012, the accused kept silent without giving answer or proper response when contacted him through phone by PW.1. Therefore, the trial Court has come to the conclusion that the prosecution proved the case beyond reasonable doubt and proceeded to convict the accused.
VII. CONSIDERATION
24. In order to re-appreciate the entire material on record as an appellate Court, we have to consider the evidence of some of the important witnesses and the material documents relied upon by the prosecution.
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25. It is the specific case of the prosecution that PW.1 lodged the complaint - Ex.P1 on 20.3.2012 at about 00.30 hours before the jurisdictional Police stating that on 18.3.2012 at about 9.00 a.m., his daughter after finishing breakfast went outside, but not returned till evening. Though he tried to search her on the next day i.e., 19.3.2012, he could not trace her and thereafter, he came to know that some dead body of female was found on the bank of Kumaradhara river. Thereafter, he went and identified the dead body as that of his daughter and suspected with regard to cause of death of his daughter and therefore, requested to take action in accordance with law. In the complaint - Ex.P1, no overt act is attributed against the accused. Whereas, the evidence of PW.1 (complainant) is contrary to the averments of the complaint - Ex.P1. In his evidence, PW.1 has stated that when he and his wife went to engagement on 17.3.2012, his daughter deceased alone was in the house. In the evidence of PW.1, it is specifically stated by him that he is aware of the fact that his daughter and accused were in love for more than 3 years and he has assured his daughter that after completion of her degree, he will arrange for her marriage. PW.1 further stated in the examination-in-chief that 26 after finishing of the engagement, when they returned at 6 p.m., at that time his daughter was not in the house and thereafter when they tried to contact her through mobile, her mobile phone was switched off. When he enquired about the whereabouts of his daughter with the accused through mobile phone, the accused has given evasive answer and switched off the mobile and thereafter he alongwith others searched for his daughter and could not be traced. PW.1 has further stated that on 17.3.2012 between 8 p.m. and 10 p.m., the accused has spoken with his daughter and the same was informed by her daughter to him. Hence, he suspected the accused might have killed his daughter. Therefore, he lodged the 2nd complaint on 28.3.2012 as per Ex.P2. He further stated that on the basis of the complaint, the Police apprehended the accused and thereafter he went to the Police Station. The accused has made statement before the Police that he will show the place of murder and accordingly, he led the Police and him to the Kumaradhara river where near the boulder, the chudidar, duppata and one pair of chappals shown by the accused. PW.1 identified the same as that of his daughter. Accordingly, the Police recovered the same as per MOs.1 and 2.
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26. In the cross-examination, PW.1 has admitted that when he lodged the 1st complaint on 20.3.2012 as per Ex.P1, he has not suspected the accused and also admitted that when he contacted the accused through mobile, he has given evasive answers and switched off the mobile and the same has not been mentioned in Ex.P1. He further admitted in the cross-examination that from 19.3.2012 to 28.3.2012, he has not made any efforts to contact or trace the accused and after consultation with PW.10 - Devappa and PW.9 - Kamalaksha, as per their directions, 2nd complaint was lodged. He also admitted that there was love affair between the accused and the deceased since three years prior to the incident. He also admitted that though he has stated in the 2nd complaint that on 17.3.2012 his daughter was in discussion with the accused from 8.00 p.m to 10.00 p.m. in the mobile, the same has not been stated in the 1st complaint. He also admitted in the cross- examination that he is not aware of what Police have mentioned in Ex.P3. He also admitted that MO.2 is the new chappals and such chappals are available in the shops. He has also admitted that prior to one week of the incident, he has purchased the said chappals to 28 his daughter and there are no specified marks on MOs.1 and 2 that they were belonging to his daughter and they were found near the boulder at the river. He further admitted that if MOs.1 and 2 are left outside for more number of days, it will get dusted.
27. A careful reading of the examination-in-chief and cross- examination of PW.1, it clearly depicts that there are certain improvements in his evidence and also there are certain inconsistencies between the complaint averments and the evidence of PW.1. The said aspect of the matter has not been considered by the learned Sessions Judge in the proper perspective while passing the impugned judgment and order of conviction.
28. PW.2, who is the resident of Olakadam, Koila village, Puttur taluk stated that on the relevant day at about 10.30 a.m. the accused came before his house and informed that somebody fallen in Kumaradhara river. Immediately himself and his brother went to the side of Kumaradhara river. After verification, they did not find anything and thereafter when they enquired with the accused, he told that one lady had fallen in the river. PW.2 admitted in the cross-examination that the river which is near to his house is deep 29 and force and there were deaths earlier in the said place and the same was not informed to the Police by him. He further admitted that the person who has informed that somebody has fallen in the river, is not known to him and he also not informed the said matter to neighbours. Though they have searched for the body near the river, they did not found. He further stated that on the next day when the Police searched, they found the female dead body in the river. He has further admitted that he has not informed to the Police about the information given to him by one person about the fall of the female in the river. He has further admitted that he has seen the accused for the first time before the Court. In fact PW.2 supported the case of the defence and not supported the case of the prosecution and his evidence is of no help to the prosecution to convict the accused.
29. PW.3, who is the panch witness to Ex.P6 - inquest panchanama has stated that the inquest was conducted in the Government Hospital Mortuary on 20.3.2012. He also identified the clothes of the deceased. Nothing has been elicited in his cross- 30 examination and the said evidence of PW.3 is of no help to the case of the prosecution.
30. PW.4, who is the brother of PW.2 has stated in the examination-in-chief on par with PW.2. He has stated that he did not know the love affair between the deceased and the accused and also did not know that when the deceased refused to marry the accused, the accused had killed the deceased by strangulation using her duppata. He admitted that in the chief-examination, he has stated that he has seen the accused earlier once and spoken with him. He further admitted that prior to that, accused was not known to him. Though he knows swimming, he has not entered into the river to search as there were no signs of unnatural happening at the place. In fact, he has supported the case of the accused rather than the prosecution.
31. PW.5, the mother of the deceased Pushpalatha stated that PW.1 is her husband and she has two children. When PW.1 and herself went to engagement for Bellari, at that time, her daughter was alone in the house. She knows the accused and that her daughter and accused were in love for more than 2 ½ 31 years prior to the incident. The said fact has been revealed by her daughter to her. Therefore, she assured her daughter that after completion of degree, she will arrange for marriage. In the cross- examination, she has admitted that either she or her daughter did not know swimming and as per her information, one day before the death, the accused and her daughter were in conversation for long time and therefore, there was cordial relationship between them. She has admitted that she has seen the accused for the first time before the Court. She further stated that her husband told to her at the time of lodging the 1st complaint that the complaint was lodged against the accused. The evidence of PW.5, who is the mother of the deceased is also contrary to the averments made in the complaint. There are contradictions in her evidence and the complaint - Ex.P1. She further stated that there was good relationship between the accused and the deceased as they were lovers. Nothing has been elicited in her cross-examination to prove that the accused was responsible for the death of the deceased. In fact mother of the deceased supported the case of the accused rather than the prosecution case.
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32. PW.6, the brother of the deceased has stated that on 17.3.2012, he was working in Ullal. On that day, when his father and mother (PWs.1 and 5) went to the engagement to Bellari, at that time, his sister - Pushpalatha was alone in the house. He has stated that he knew the accused and the accused was in love with her sister for more than three years. The said matter has been informed to him by his father, mother and his sister and the family members of the deceased assured her that after completion of the degree, they will arrange the marriage. He further stated that his father has lodged a complaint before the Kadaba Police suspecting the death of his sister. He came to know from his father that before one day of death, there was a phone conversation between the accused and the deceased from 8.00 p.m. to 10.00 p.m. He has admitted that he has seen the photo of the accused prior to the incident. He further admitted that his memory was fade because the matter is of 2 ½ years old. Ultimately, PW.6 turned hostile and he made a general statement and not supported the prosecution case. The said material aspects have not been considered by the learned Sessions Judge.
33
33. It is relevant to consider at this stage that the doctor - PW.17 stated that on 20.3.2012 between 9.35 a.m. and 11.00 a.m., he conducted the post-mortem examination on the dead body of the deceased Pushpalatha alongwith his colleague CW.17 - Dr. Deepak. He stated that according to the Police as written in 146(ii), the body of the deceased was found drowned in the water. On examining the deceased, doctor stated that both the hands extended at shoulder joint and flexed at elbows and rigor mortis absent. In stomach, there was 50 ml clear fluid present. Small and large intestines were intact and filled with gas. He further opined that the cause of death could be asphyxia due to drowning. Accordingly, he issued post-mortem report - Ex.P15. He has further stated that if a person is strangulated from duppata around the neck and pushed into water and drowned, the cause of death for murder as mentioned in Ex.P15 could be possible. He further stated that he has given opinion that there can be chances of killing her by strangulation by rolling duppata around the neck leading to death due to asphyxia.
34
34. Admittedly, Dr. Deepak, the colleague of PW.17 has not been examined to believe the statement of PW.17. In the cross- examination, PW.17 admitted that it is true that he is having original book of post-mortem report in his office and in the said book, there is some correction of date. The witness volunteers that after noticing the mistake, the same has been corrected. He has also admitted that it is true in the original book of the post- mortem report, he has not made any note with regard to correction pertaining to date. He also admitted in the cross- examination that "It is true that I have given two opinions, one in P.M. report and another in Ex.P16. It is true that the two opinions given in Ex.P15 and Ex.P16 are contradictory to each other." Though, he has admitted that as per the Medical Jurisprudence, if there was strangulation and death by tying duppata around the neck, ligature marks must be there around the neck, but according to him, body was putrefied and therefore, ligature marks were absent. He denied the suggestion that if a person strangulated from duppata around the neck and killed, the signs mentioned in Ex.P15 cannot be found. He further admitted that it is true that if strangulated from duppata around the neck and person died due to 35 asphyxia, there cannot be any water going into the stomach and minimal fluid exudation. It is further denied that only to facilitate prosecution, he is deposing falsely that there were no ligature marks around the neck of the deceased Pushpalatha. He further denied the suggestion that though deceased Pushpalatha died due to drowning in the water as stated in the P.M. report, but to facilitate the prosecution subsequently changed his opinion as stated in Ex.P16. He has further stated that he has not mentioned anything in the column relating to ligature marks in Ex.P15.
35. The evidence of PW.17 is contrary to the post-mortem report - Ex.P15. In Ex.P15, doctor has specifically stated that in view of FSL report dated 15.5.2012, which indicates that residues of volatile poisons, pesticides, barbiturate, benzodiazepines, toxic metal ions and anions were not detected in the specimen, the cause of death could be asphyxia due to drowning. The evidence of the doctor and the documents - Ex.P15 and Ex.P16 do not prove that it is homicidal death, but it indicates that the cause of death is due to asphyxia due to drowning. The said material has not been considered by the learned Sessions Judge in the proper perspective 36 and proceeded to come to the conclusion that the accused strangulated the deceased by using MO.1 around her neck and by holding her pig-tail, he dragged her to the deep water of the river and drowned Pushpalatha and thereafter, he informed to PWs.2 and 4 that one woman fell in the river. The same is without any basis. Therefore, the said finding of the learned Sessions Judge is contrary to the material on record.
36. Ex.P6 - panchanama was supported by PWs.7 and 8 and in paragraph-3 of Ex.P6 as to who has seen the dead body of the deceased first time, where and when, it was recorded that on 19.3.2012 PW.7 - Mr. Shivaram (uncle of the deceased) and others at about 6 p.m. identified the dead body as that of Pushpalatha. In Ex.P6 at paragraph-4 as to who has last seen the deceased Pushpalatha when she was alive, it was stated that on 18.3.2012 at about 9 a.m., when the deceased Pushpalatha had her breakfast and went outside the house, her father - PW.1, her mother - PW.5 and her brother - Prasad have last seen the deceased.
37. In the inquest panchanama, the statement of one Prasad, the brother of the deceased and son of PW.1 was recorded, 37 who stated that on 18.3.2012 at about 9.00 a.m after finishing the breakfast, his sister - deceased Pushpalatha went out, but has not returned till evening. Thereafter, he himself and his father enquired with the neighbours and kept quite. On 19.3.2012 they received the information that the dead body of one female was found on the bank of Kumaradhara river and then, he went there and found that dead body was that of his sister - Pushpalatha and it was decomposed. He further stated that when his sister was studying in the 2nd year B.A in K.S.S. College, she has developed friendship with the accused - Ramesha and they used to do conversation in the phone. Accordingly, they might have gone to tank bed of Kumaradhara river. He suspected the deceased Pushpalatha might have slipped or jumped in the water and died. Admittedly, the said Prasad has not been examined. The said statement is contrary to the averments made in the 1st complaint.
38. In the inquest report - Ex.P6, the statement of one Harishgowda, who was working as an auto driver at Shantigodu village was also recorded. He identified the dead body of the deceased Pushpalatha, who is the daughter of PW.1 and at item 38 No.13 as to whether any suspicion is there on anybody, it was recorded that the deceased Pushpalatha was studying in the II year B.A. in the K.S.S. college and the deceased has developed friendship with the accused - Ramesha and used to do conversation in the phone. But, the said Harishgowea has not been examined.
39. In the inquest report - Ex.P6, the Panchayathdars have opined that on 18.3.2012 at about 9.00 a.m., the deceased Pushpalatha went from the house after finishing breakfast, but she did not come back till evening. When the brother of the deceased and others enquired with the neighbours, they could not able to trace the deceased. Thereafter, they came to know that the dead body of one female was found on the tankbed of Kumaradhara river. It is specifically stated that when the deceased went out from the house and reached the river, accidentally she might have slipped into the river and died. Therefore, the Panchayathdars opined that the dead body of the deceased to be subjected to post- mortem examination to know the exact cause for death of the deceased. The said material aspects of enquiry in the inquest 39 report - Ex.P6 have not been considered by the learned Sessions Judge in the proper perspective.
40. It is relevant to state at this stage that the charge was framed by the trial Court on 11.10.2012 that there was love affair between the accused and the deceased since three years prior to the incident and when the deceased started neglecting the accused, differences of opinion arose between them and the accused with an intention to take revenge against the deceased, called the deceased on 17.3.2012 over the mobile and asked her to come to the bank of Kumaradhara river on 18.3.2012 at about 10.00 a.m. and when the deceased came to the bank of Kumaradhara river on 18.3.2012 at 10.00 a.m, he asked her to promise that she has no affair with any other persons and when she refused to do so, the accused started quarrel with her and stating that she has cheated him, in anger strangulated her by using duppata around her neck and then by holding her pig-tail, he dragged her to the deep water and drowned her and caused her death. The charge framed by the trial Court is without any basis and contrary to 1st complaint - Ex.P1 and second complaint - Ex.P2.
40
41. Admittedly the entire case of the prosecution is based on the circumstantial evidence. The prosecution has not set up any last seen theory nor there are any eye witnesses and the medical evidence on record clearly depicts that the prosecution failed to prove the homicidal death of the deceased. The oral and documentary evidence on record does not depict the involvement of the accused in causing the death of the deceased due to asphyxia by drowning in water. The said material has not been considered by the learned Sessions Judge while passing the impugned judgment of conviction.
42. It is relevant to consider at this stage that the learned Sessions Judge proceeded to convict the accused mainly on the basis of evidence of the interested witnesses viz., PW.1 (father of the deceased), PW.5 (mother of the deceased) and PW.6 (brother of the deceased) and in the absence of any corroborative evidence, the evidence of these witnesses cannot be considered. Ex.P12 and Ex.P13, the call details alleged to have been produced cannot be relied upon as the author who issued the call details has not been examined. The missing of the articles is also not proved by the 41 evidence of the prosecution witnesses. The learned Sessions Judge proceeded to convict the accused mainly on the basis of the voluntary statement made by the accused as per Ex.P19. It is well settled that based on the voluntary statement of the accused, the judgment of conviction cannot be passed. Only recovery of MOs. can be relied upon. Admittedly, MOs.1 and 2 were seized at the instance of the accused under the mahazar - Ex.P3 and MOs.3 to 7 were seized under the mahazar - Ex.P4 and PW.9 is the panch, but he has not supported the case of the prosecution.
43. As already stated above, the charge is not proved by oral and documentary evidence including the medical evidence that it was strangulation. It is not the case of the prosecution in the 1st complaint that the accused killed the deceased by strangulation. Only in the second complaint lodged by PW.1, he suspected the accused, but no corroborative evidence produced by the prosecution.
44. It is relevant to state at this stage that from the beginning, there were two complaints and two different versions and PWs.1, 5 and 6 gave one version and PWs.2 and 4 and other 42 witnesses gave other version. The doctor also given two opinions as per Ex.P15 and Ex.P16 and categorically admitted in the cross- examination that two opinions given by him as per Ex.P15 and Ex.P16 are contrary to each other.
45. On meticulous examination of evidence on record, it clearly depicts that there are so many omissions and commissions in the evidence of the prosecution witnesses, that the entire fabric of the prosecution case appears to be ridden with gaping holes. It is true that due to passage of time, witnesses do deviate from their police statements as their memory fades to some extent. Reasonable allowance can be made for such discrepancies. But when such discrepancies make the foundation of the prosecution case shaky, the Court has to take strict note thereof. By careful reading of the evidence of the prosecution witnesses, the discrepancies are located and the witnesses have discredited themselves. Therefore, the evidence of the prosecution witnesses cannot be relied upon. 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 43 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 another towards 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 of justice which may arise from acquittal of the guilty is no less than from the conviction of an innocent.
46. It is also relevant to state at this stage that admittedly the deceased was missing from 18.3.2012 9.00 a.m. and dead body was found on 20.3.2012. The 1st complaint - Ex.P1 lodged regarding unnatural death on 20.3.2012 at 00.30 hours was registered as UDR No.12/2012 under Section 176(c) of the Code of Criminal Procedure. The 2nd complaint - Ex.P2 lodged only on 28.3.2012 after 8 days from the date of death of the deceased attributing overt acts against the accused. Absolutely no explanation is offered by the prosecution in respect of delay in lodging and registering the 2nd complaint. The said aspect of the matter has not at all been considered by the learned Sessions 44 Judge in the proper perspective while passing the impugned judgment and order of conviction against the accused.
47. Though the learned HCGP sought to justify the impugned judgment and order passed by the trial Court, he is not able to disprove the circumstances which are in favour of the accused. Absolutely, there is no circumstantial evidence, no last seen theory, no eye witnesses to the case of the prosecution to prove the homicidal death of the deceased. In the absence of any material for the homicidal death and when there is abundant material on record that the deceased might have slipped accidentally and fell into the Kumaradhara river and drowned in the water, by mere allegation by PW.1 in the 2nd complaint contrary to the original complaint, case of the prosecution cannot be accepted. The evidence of the prosecution witnesses is inconsistent and not corroborated with one another and there are contradictions and improvements in their evidence and the same has not been considered by the learned Sessions Judge in the proper perspective. In view of the above, the impugned judgment and order of 45 conviction passed by the learned Sessions Judge cannot be sustained.
VIII. REGARDING JUDGMENTS RELIED UPON
48. The entire case of the prosecution is based on the circumstantial evidence, but there is no chain of circumstances to connect the accused in the commission of the offence. The evidence of the doctor - PW.17 is contrary to the two opinions as per Ex.P15 and Ex.P16 and the doctor also admitted that two opinions are contrary to each other. Therefore, the report of the doctor is not the conclusive one to come to the conclusion. Our view is fortified by the dictum of the Hon'ble Supreme Court in the case of Tomaso Bruno and another -vs- State of Uttar Pradesh reported in (2015)7 SCC 178, wherein the Hon'ble Supreme Court at paragraph-40 held as under:
40. The courts, normally would look at expert evidence with a greater sense of acceptability, but it is equally true that the courts are not absolutely guided by the report of the experts, especially if such reports are perfunctory and unsustainable. We agree that the 46 purpose of an expert opinion is primarily to assist the court in arriving at a final conclusion but such report is not a conclusive one. This Court is expected to analyse the report, read it in conjunction with the other evidence on record and then form its final opinion as to whether such report is worthy of reliance or not. As discussed earlier, serious doubts arise about the cause of death stated in the post-mortem reports.
49. Learned HCGP has relied upon the call details of mobile phones as per Ex.P12 and Ex.P13. Admittedly, the prosecution has not examined the author, who issued the call details and no certificate has been produced which is required under Section 65-B(4) of the Indian Evidence Act. In the absence of the same, the said material cannot be accepted. Our view is fortified by the dictum of the Hon'ble Supreme Court in the case of Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantyal others reported in (2020) 7 SCC 1, wherein the Hon'ble Supreme Court held at paragraphs 51, 52, 73.1, 73.2, 73.3 as under:
51. On an application of the aforesaid maxims to the present case, it is clear that though Section 65-B(4) is mandatory, yet, on the facts of this case, the 47 respondents, having done everything possible to obtain the necessary certificate, which was to be given by a third party over whom the respondents had no control, must be relieved of the mandatory obligation contained in the said sub-section.
52. We may hasten to add that Section 65-B does not speak of the stage at which such certificate must be furnished to the Court. In Anvar P.V., this Court did observe that such certificate must accompany the electronic record when the same is produced in evidence. We may only add that this is so in cases where such certificate could be procured by the person seeking to rely upon an electronic record. However, in cases where either a defective certificate is given, or in cases where such certificate has been demanded and is not given by the person concerned, the Judge conducting the trial must summon the person/persons referred to in Section 65-B(4) of the Evidence Act, and require that such certificate be given by such person/persons. This, the trial Judge ought to do when the electronic record is produced in evidence before him without the requisite certificate in the circumstances aforementioned. This is, of course, subject to discretion being exercised in civil cases in accordance with law, and in accordance with the requirements of justice on 48 the facts of each case. When it comes to criminal trials, it is important to keep in mind the general principle that the accused must be supplied all documents that the prosecution seeks to rely upon before commencement of the trial, under the relevant sections of the CrPC.
73.1. Anvar P.V. as clarified by us hereinabove, is the law declared by this Court on Section 65-B of the Evidence Act. The judgment in Tomaso Bruno, being per incuriam, does not lay down the law correctly. Also, the judgment in Shafhi Mohammad [Shafhi Mohammad v. State of H.P., and the judgment dated 3-
4-2018 reported as Shafhi Mohd. v. State of H.P. do not lay down the law correctly and are therefore overruled. 73.2. The clarification referred to above is that the required certificate under Section 65-B(4) is unnecessary if the original document itself is produced. This can be done by the owner of a laptop computer, computer tablet or even a mobile phone, by stepping into the witness box and proving that the device concerned, on which the original information is first stored, is owned and/or operated by him. In cases where the "computer" happens to be a part of a "computer system" or "computer network" and it becomes impossible to physically bring such system or 49 network to the court, then the only means of providing information contained in such electronic record can be in accordance with Section 65-B(1), together with the requisite certificate under Section 65-B(4). The last sentence in para 24 in Anvar P.V. which reads as "... if an electronic record as such is used as primary evidence under Section 62 of the Evidence Act ..." is thus clarified; it is to be read without the words "under Section 62 of the Evidence Act,...". With this clarification, the law stated in para 24 of Anvar P.V. does not need to be revisited.
73.3. The general directions issued in para 64 (supra) shall hereafter be followed by courts that deal with electronic evidence, to ensure their preservation, and production of certificate at the appropriate stage. These directions shall apply in all proceedings, till rules and directions under Section 67-C of the Information Technology Act and data retention conditions are formulated for compliance by telecom and internet service providers.
50. The Hon'ble Supreme Court in the case of Anvar .V -vs- P.K. Basheer reported in (2014) 10 SCC 473 while considering the 50 provisions of Sections 65-A, 65-B, 62 and 65-B(4) of the Evidence Act, held at paragraphs 14, 15, 16, 17 and 18 as under:
14. Any documentary evidence by way of an electronic record under the Evidence Act, in view of Sections 59 and 65-A, can be proved only in accordance with the procedure prescribed under Section 65-B. Section 65-B deals with the admissibility of the electronic record. The purpose of these provisions is to sanctify secondary evidence in electronic form, generated by a computer. It may be noted that the section starts with a non obstante clause. Thus, notwithstanding anything contained in the Evidence Act, any information contained in an electronic record which is printed on a paper, stored, recorded or copied in optical or magnetic media produced by a computer shall be deemed to be a document only if the conditions mentioned under sub-section (2) are satisfied, without further proof or production of the original. The very admissibility of such a document i.e. electronic record which is called as computer output, depends on the satisfaction of the four conditions under Section 65-
B(2). Following are the specified conditions under Section 65-B(2) of the Evidence Act:
51
(i) The electronic record containing the information should have been produced by the computer during the period over which the same was regularly used to store or process information for the purpose of any activity regularly carried on over that period by the person having lawful control over the use of that computer;
(ii) The information of the kind contained in electronic record or of the kind from which the information is derived was regularly fed into the computer in the ordinary course of the said activity;
(iii) During the material part of the said period, the computer was operating properly and that even if it was not operating properly for some time, the break or breaks had not affected either the record or the accuracy of its contents; and
(iv) The information contained in the record should be a reproduction or derivation from the information fed into the computer in the ordinary course of the said activity.52
15. Under Section 65-B(4) of the Evidence Act, if it is desired to give a statement in any proceedings pertaining to an electronic record, it is permissible provided the following conditions are satisfied:
(a) There must be a certificate which identifies the electronic record containing the statement;
(b) The certificate must describe the manner in which the electronic record was produced;
(c) The certificate must furnish the particulars of the device involved in the production of that record;
(d) The certificate must deal with the applicable conditions mentioned under Section 65-B(2) of the Evidence Act; and
(e) The certificate must be signed by a person occupying a responsible official position in relation to the operation of the relevant device.53
16. It is further clarified that the person need only to state in the certificate that the same is to the best of his knowledge and belief. Most importantly, such a certificate must accompany the electronic record like computer printout, compact disc (CD), video compact disc (VCD), pen drive, etc., pertaining to which a statement is sought to be given in evidence, when the same is produced in evidence. All these safeguards are taken to ensure the source and authenticity, which are the two hallmarks pertaining to electronic record sought to be used as evidence. Electronic records being more susceptible to tampering, alteration, transposition, excision, etc. without such safeguards, the whole trial based on proof of electronic records can lead to travesty of justice.
17. Only if the electronic record is duly produced in terms of Section 65-B of the Evidence Act, would the question arise as to the genuineness thereof and in that situation, resort can be made to Section 45-A--opinion of Examiner of Electronic Evidence.
18. The Evidence Act does not contemplate or permit the proof of an electronic record by oral evidence if requirements under Section 65-B of the Evidence Act are not complied with, as the law now stands in India. 54
51. The Hon'ble Supreme Court while considering the provisions of Section 32(1) of the Evidence Act in the case of Sharad Birdhichand Sarda v. State of Maharashtra reported in AIR 1984 SC 1622, held at paragraph-175 as under:
175. This now brings us to the fag end of our judgment. After a detailed discussion of the evidence, the circumstances of the case and interpretation of the decisions of this Court the legal and factual position may be summarised thus:
(1) That the five golden principles enunciated by this Court in Hanumant [AIR 1952 SC 343 :
1952 SCR 1091 : 1953 Cri LJ 129] decision have not been satisfied in the instant case. As a logical corollary, it follows that it cannot be held that the act of the accused cannot be explained on any other hypothesis except the guilt of the appellant nor can it be said that in all human probability, the accused had committed the murder of Manju. In other words, the prosecution has not fulfilled the essential requirements of a criminal case which rests purely on circumstantial evidence 55 (2) That, at any rate, the evidence clearly shows that two views are possible -- one pointing to the guilt of the accused and the other leading to his innocence. It may be very likely that the appellant may have administered the poison (potassium cyanide) to Manju but at the same time a fair possibility that she herself committed suicide cannot be safely excluded or eliminated.
Hence, on this ground alone the appellant is entitled to the benefit of doubt resulting in his acquittal.
(3) The prosecution has miserably failed to prove one of the most essential ingredients of a case of death caused by administration of poison i.e. possession of poison with the accused (either by direct or circumstantial evidence) and on this ground alone the prosecution must fail.
(4) That in appreciating the evidence, the High Court has clearly misdirected itself on many points, as pointed out by us, and has thus committed a gross error of law.
(5) That the High Court has relied upon decisions of this Court which are either inapplicable or which, on closer examination, do 56 not support the view of the High Court being clearly distinguishable.
(6) That the High Court has taken a completely wrong view of law in holding that even though the prosecution may suffer from serious infirmities it could be reinforced by additional link in the nature of false defence in order to supply the lacuna and has thus committed a fundamental error of law.
(7) That the High Court has not only misappreciated the evidence but has completely overlooked the well established principles of law and in view of our findings it is absolutely clear that the High Court has merely tried to accept the prosecution case based on tenterhooks and slender tits and bits.
(8) We entirely agree with the High Court that it is wholly unsafe to rely on that part of the evidence of Dr Banerjee (PW 33) which shows that poison was forcibly administered by the process of mechanical suffocation.
(9) We also agree with the High Court that there is no manifest defect in the investigation made by the police which appears to be honest 57 and careful. A proof positive of this fact is that even though Rameshwar Birdhichand and other members of his family who had practically no role to play had been arrayed as accused but they had to be acquitted by the High Court for lack of legal evidence.
(10) That in view of our finding that two views are clearly possible in the present case, the question of defence being false does not arise and the argument of the High Court that the defence is false does not survive.
52. The Hon'ble Supreme Court while considering the provisions of Sections 27 and 32(1) of the Evidence Act in the case of Vijender v. State of Delhi reported in (1997) 6 SCC 171 held at paragraph-17 as under:
17. Another elementary statutory breach which we notice in recording the evidence of the above witnesses is that of Section 27 of the Evidence Act. Evidence was led through the above three police witnesses that in consequence of information received from the three appellants on 30-6-1992 they discovered the place where the dead body of Khurshid was thrown. As already noticed, the dead body of Khurshid was 58 recovered on 27-6-1992 and therefore the question of discovery of the place where it was thrown thereafter could not arise. Under Section 27 of the Evidence Act if an information given by the accused leads to the discovery of a fact which is the direct outcome of such information then only it would be evidence but when the fact has already been discovered as in the instant case -- evidence could not be led in respect thereof.
53. The Hon'ble Supreme Court while considering the provisions of Sections 392 and 302 r/w 34 of IPC in the case based on the circumstantial evidence in the case of Madhu v. State of Kerala reported in (2012) 2 SCC 399 held at paragraph 64 as under:
64. In view of the aforesaid evaluation of the statements of witnesses examined by the prosecution, to establish the presence of the accused, in close vicinity of the place of occurrence, there remains no proved connection of the accused with the accusations levelled against them. Even otherwise, in our view the presence of the accused close to the residence of Padmini Devi is inconsequential, because according to the statement of Ayyappa Kurup PW 2 (husband of the 59 deceased Padmini Devi) both the accused Madhu and Sibi were known to him as they were his neighbours.
Surely, presence close to one's own residence cannot be the basis for drawing an adverse inference. We are therefore satisfied, that the statements of PW 6 to PW 9, do not in any manner, further the case of the prosecution.
54. The Hon'ble Supreme Court while considering the case based on circumstantial evidence in the case of Navaneethakrishnan v. State reported in (2018) 16 SCC 161 held at paragraph 27 as under:
27. The law is well settled that each and every incriminating circumstance must be clearly established by reliable and clinching evidence and the circumstances so proved must form a chain of events from which the only irresistible conclusion about the guilt of the accused can be safely drawn and no other hypothesis against the guilt is possible. In a case depending largely upon circumstantial evidence, there is always a danger that conjecture or suspicion may take the place of legal proof. The court must satisfy itself that various circumstances in the chain of events must be such as to rule out a reasonable likelihood of the 60 innocence of the accused. When the important link goes, the chain of circumstances gets snapped and the other circumstances cannot, in any manner, establish the guilt of the accused beyond all reasonable doubt.
The court has to be watchful and avoid the danger of allowing the suspicion to take the place of legal proof for sometimes, unconsciously it may happen to be a short step between moral certainty and legal proof. There is a long mental distance between "may be true"
and "must be true" and the same divides conjectures from sure conclusions. The Court is mindful of caution by the settled principles of law and the decisions rendered by this Court that in a given case like this, where the prosecution rests on the circumstantial evidence, the prosecution must place and prove all the necessary circumstances, which would constitute a complete chain without a snap and pointing to the hypothesis that except the accused, no one had committed the offence, which in the present case, the prosecution has failed to prove.
55. The Hon'ble Supreme Court time and again held that in the absence of the circumstances established to prove the involvement of the accused, mere recovery of the material objects would not be a ground to convict the accused. Admittedly in the 61 present case, it is not the case of the prosecution either in the 1st complaint or in the 2nd complaint that MOs.3 to 7 were missing. In the circumstances, the mere recovery of MOs. 3 to 7 on the basis of the voluntary statement made by the accused before the Police would not in any way assist the case of the prosecution. Therefore, the contention of the learned Addl. SPP that the articles MOs.3 to 7 recovered at the instance of the accused is of no consequence and cannot be a ground for conviction.
56. Our view is fortified by the dictum of the Hon'ble Supreme Court in the case of Mohd. Aman v. State of Rajasthan reported in AIR 1997 SC 2960, wherein the Hon'ble Supreme Court held that paragraph-9 as under:
9. xxx xxxx To persuade the court to hold that the above circumstance stood established the first and the foremost fact which the prosecution was required to prove was that those articles belonged to the wife of the deceased and that they were stolen at the time of the commission of the murder. Having gone through the evidence on record we are constrained to say that the prosecution has not been able to establish those two facts and, therefore, we need not go into the question 62 whether the evidence led by the prosecution relating to their recovery is reliable or not. The first information report that was lodged by Sabir Hussain (PW.10) did not give any list of articles that were stolen. He, however, claimed to have later on given a written statement containing such a list to the IO and this statement was exhibited. In our view, the trial Court was not justified in entertaining the statement as an Exhibit xxx xxx."
57. It is settled position of law that suspicion however strong cannot be a substitute for proof. In a case resting completely on the circumstantial evidence, the chain of circumstances must be so complete that they lead only to one conclusion, that is, the guilt of the accused. Admittedly in the present case, the entire case of the prosecution is based on the circumstantial evidence. But, there is no chain of circumstances from beginning till the end to connect the accused in the commission of the offence.
58. Our view is fortified by the dictum of the Hon'ble Supreme Court in the case of Sangili v. State of T.N. reported in (2014) 10 SCC 264, wherein the Hon'ble Supreme Court while 63 considering the provisions of Section 302 of IPC in the case based on the circumstantial evidence observed that - Evidence of last seen together not established - Motive based on the hearsay - Recovery of the dead body, murder weapon, held not enough where the chain of events incomplete. In the said judgment, the Hon'ble Supreme Court held at paragraphs 17 and 18 as under:
17. Likewise, in Mustkeem v. State of Rajasthan [(2011) 11 SCC 724 : (2011) 3 SCC (Cri) 473] this Court observed as under: (SCC p. 731, paras 24-25) "24. In a most celebrated case of this Court, Sharad Birdhichand Sarda v. State of Maharashtra [(1984) 4 SCC 116 : 1984 SCC (Cri) 487] in para 153, some cardinal principles regarding the appreciation of circumstantial evidence have been postulated. Whenever the case is based on circumstantial evidence the following features are required to be complied with. It would be beneficial to repeat the same salient features once again which are as under:
(SCC p. 185) '(i) The circumstances from which the conclusion of guilt is to be drawn 64 must or should be and not merely "may be" fully established;
(ii) 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;
(iii) The circumstances should be of a conclusive nature and tendency;
(iv) They should exclude every possible hypothesis except the one to be proved; and
(v) 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.' 65
25. With regard to Section 27 of the Act, what is important is discovery of the material object at the disclosure of the accused but such disclosure alone would not automatically lead to the conclusion that the offence was also committed by the accused. In fact, thereafter, burden lies on the prosecution to establish a close link between discovery of the material object and its use in the commission of the offence. What is admissible under Section 27 of the Act is the information leading to discovery and not any opinion formed on it by the prosecution."
18. It is settled position of law that suspicion however strong cannot be a substitute for proof. In a case resting completely on the circumstantial evidence the chain of circumstances must be so complete that they lead only to one conclusion, that is, the guilt of the accused. In our opinion, it is not safe to record a finding of guilt of the appellant and the appellant is entitled to get the benefit of doubt. We, therefore, allow the appeal and set aside the conviction and sentence of the appellant. The appellant be set at liberty unless required in any other case.
66
59. Learned HCGP for the State relied upon the dictum of the Hon'ble Supreme Court in the case of State of Karnataka -vs- K. Gopalakrishna reported in AIR 2005 SC 1014 with regard to strangulation. It was a case where the doctor opined that the death was on account of asphyxia by throttling and that hyoid bone can be fractured only if it is pressed with great force. In the present case, the evidence and the medical records do not establish the case of strangulation. But, the oral and documentary evidence clearly depicts that the deceased died because of drowning in Kumaradhara river. Therefore, the said judgment has no application to the facts and circumstances of the present case.
IX. CONCLUSION
60. On re-appreciation of the entire oral and documentary evidence on record and considering the totality of the facts and circumstances of the case and in the light of the principles enunciated in the judgments of the Hon'ble Supreme Court stated supra, we are of the considered opinion that the prosecution has failed to prove beyond reasonable doubt the involvement of the 67 accused in the commission of the offences punishable under Sections 302 and 201 of IPC.
61. Accordingly, the point raised in the present criminal appeal is answered in the affirmative holding that the appellant - accused has made out a case to interfere with the impugned judgment and order of conviction passed by the trial Court convicting the accused for the offences punishable under Sections 302 and 201 of IPC, in the facts and circumstances of the case.
X. RESULT
62. For the reasons stated above, we pass the following order:
(i) The criminal appeal is allowed.
(ii) The impugned judgment and order of conviction and
sentence dated 29/31.8.2015 made in S.C.
No.95/2012 convicting the appellant - accused for the offences punishable under Sections 302 and 201 of IPC and sentencing him to undergo imprisonment for life with fine of Rs.3,000/- for the offence punishable under Section 302 of IPC and simple 68 imprisonment for seven years with fine of Rs.2,000/- for the offence under Section 201 of IPC, is hereby set aside. The accused is acquitted for the said offences.
(iii) The appellant - accused is set at liberty forthwith, if he is not required in any other case.
(iv) The bail bonds, stand cancelled.
(v) The fine amount, if any paid shall be refunded to the
appellant - accused.
Sd/-
JUDGE
Sd/-
JUDGE
Gss*