Karnataka High Court
Basavaraj S/O Rudrappa Madar vs The State Of Karnataka on 17 June, 2020
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS 17TH THE DAY OF JUNE 2020
R
PRESENT
THE HON'BLE MR.JUSTICE B.A.PATIL
AND
THE HON'BLE MRS.JUSTICE M.G.UMA
CRIMINAL APPEAL NO. 100323/2016
BETWEEN:
1. BASAVARAJ S/O RUDRAPPA MADAR
AGE: 36 YEARS, OCC: DRIVER,
R/O: UCHAGOAN, TQ &: DIST: BELAGAVI.
2. NINGOLI @ GILLAVVA @ DEEPA
D/O PRASHANT KAMBLE,
AGE: 26 YEARS, OCC: COOLIE,
R/O: #80/1, AMBEDKAR GALLI,
BACHI, DIST: BELAGAVI.
3. SANTOSH S/O RUDRAPPA MADAR
AGE: 29 YEARS, OCC: MASON,
R/O: UCHAGOAN, TQ & DIST: BELAGAVI.
... APPELLANTS
(BY SRI. SRINAND A. PACHHAPURE, ADVOCATE)
AND:
THE STATE OF KARNATAKA
THROUGH GARAG POLICE STATION,
NOW REP. BY SPP, HIGH COURT OF KARNATAKA,
BENCH AT DHARWAD.
... RESPONDENT
(BY SRI. V. M. BANAKAR, ADDL. SPP)
THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374(4)
OF CR.P.C., PRAYING TO CALL FOR THE RECORDS IN SESSIONS
CASE NO.57 OF 2015 AND SET ASIDE THE JUDGMENT OF
CONVICTION AND ORDER OF SENTENCE DATED 01.10.2016
PASSED BY THE PRINCIPAL DISTRICT AND SESSIONS JUDGE,
DHARWAD FOR THE OFFENCE PUNISHABLE UNDER SECTION 419,
364, 368, 342, 302, 201 120B R/W 34 IPC AND ACQUIT THE
APPELLANTS.
:2:
THIS APPEAL COMING ON FOR HEARING THIS DAY,
B.A.PATIL J., DELIVERED THE FOLLOWING:
JUDGMENT
We are in this case concerned with gruesome murder of deceased Laxmi, for which the trial was held by the learned Principal District and Sessions Judge, Dharwad in S.C.No.57/2015 and by order dated 01.10.2016, the learned Sessions Judge convicted the accused persons to undergo life imprisonment and to pay fine of Rs.5,000/- each for the offence punishable under Section 302 R/w. Section 34 of the IPC. The accused have been also convicted for the offence punishable under Section 201 R/w. Section 34 of the IPC and sentenced to undergo RI for six months and to pay fine of Rs.5,000/- each; so also they have been convicted for the offence punishable under Section 120B R/w. Section 34 of the IPC to undergo RI for five years and to pay fine of Rs.5,000/- each. Further, accused Nos. 2 and 3 were also sentenced to undergo RI for a :3: period of five years and to pay fine of Rs.5,000/- each for the offence punishable under Sections 364 and 368 R/w. Section 34 of the IPC and to pay fine of Rs.5,000/- each. Accused No.2 is also convicted and sentenced to undergo SI for a period of two years and to pay fine of Rs.5,000/- for the offence punishable under Section 419 of the IPC, in default to undergo SI for a period of six months.
2. We have heard the learned counsel Sri. Srinand A. Pachchapure for the appellants/accused No.1 to 3 and the learned Addl. SPP Sri. V. M. Banakar for the respondent-State.
3. The genesis of the case of the prosecution in brief is that, the mother of the deceased filed the complaint alleging that the deceased Laxmi was given in marriage to accused No.1 - Basavaraj and their marriage was performed about 14 years prior to the date of incident. It is further alleged that, when her daughter was pregnant, accused No.1 ousted her from :4: his house and thereafter she came to her parental house and gave birth to a female child. Even after the birth of the daughter, accused No.1 did not take his wife and daughter back to his house and has also not provided any maintenance. The deceased Laxmi filed petition claiming maintenance for herself and her daughter and she has been granted monthly maintenance of Rs.3,000/- by order dated 25.07.2014. It is further alleged that, in spite of the order, the accused did not pay any amount. She filed an Execution Petition and on 26.12.2014 warrant was issued by the Court as against the accused No.1 for his failure of payment of arrears of maintenance to the extent of Rs.65,000/-. On that day, accused No.1 attended the Court and on the way he abused the deceased Laxmi in filthy language and threatened her with dire consequences. Subsequently, on 02.01.2015, accused No.2 on the instigation of accused Nos. 1 and 3 went to Rajesh Ginning Factory situated at Belur, where the deceased Laxmi was :5: working and took deceased with her, on a false pretext that she is the Vice President of Mahila Mandal at Belagavi. As her daughter did not return, the complainant, under the apprehension that accused No.1 might have kidnapped her, filed a complaint before the police. In this behalf, a case has been registered in Crime No.2/2015 by Garag Police Station. During the course of investigation, they apprehended accused No.2 who disclosed the fact that, at the instigation of accused No.1, accused Nos. 2 and 3 have taken the deceased to Amboli Ghat and there they have committed her murder. Thereafter, after investigation charge sheet has been filed. After filing of the charge sheet, learned Magistrate took cognizance and committed the case to the Sessions Court. After committal of the case, the learned Sessions Judge secured the presence of the accused. Thereafter charge was prepared, read over and explained to the accused. Accused pleaded not guilty :6: and they claim to be tried and as such the trial was fixed.
4. To prove the charge against the accused, the prosecution got examined 16 witnesses and got marked 33 documents and 9 material objects. Thereafter statement of the accused was recorded by putting incriminating evidence as against them. Accused denied the same and they have not chosen to lead any oral and documentary evidence. But however, they have filed their written statement. The same was placed on record. After hearing both the parties, the impugned judgment came to be passed.
5. In order to establish the motive and relation of the deceased with accused No.1 - husband of the deceased, prosecution has got examined the mother of the deceased, who is also the first informant about kidnapping of the deceased. In her evidence she has deposed that accused No.1 is the husband of his deceased daughter and about 14 years :7: back her deceased daughter Laxmi has been given in marriage to accused No.1. For four years she stayed in the matrimonial home and she has given birth to a female child by name Satyashree and thereafter she came back to the parental house and was residing along with her and she also used to come to work along with her. She has further deposed that, her daughter has filed a petition for maintenance for herself and her daughter and accused No.1 was working as a driver in 108 Ambulance vehicle. She has further deposed that the Court awarded maintenance of Rs.3,000/- per month and as the accused had not paid the said amount regularly, an amount of Rs.65,000/- was due to the deceased. She has also further deposed that, herself and her deceased daughter had been to Kittur Court and accused had also come there and he asked time for payment of arrears of maintenance and four or five days thereafter, accused No.2 came to her house and told that her superiors have sent her and she is a :8: leader of Mahila Mandal and she will set right the differences and she will see that her matrimonial life is settled. When accused No.2 asked the deceased to give her photo, she gave her photo and thereafter she had been to Belur Factory for work. After two days accused No.2 called over phone and asked whether the deceased is at home or gone outside. On suspicion she replied that her daughter had gone to the field to cut the crop. She further deposed that next day her deceased daughter went to factory work as usual along with Ameena, Shantavva, Iravva and others, but she did not return home. She waited for some time and when she asked Ameena about her daughter, she replied that somebody from Mahila Mandal had taken her daughter. Next day she went and made enquiry in the factory where the deceased was working and they revealed that one Deepa Patil has taken her daughter and gave one phone number. She tried to contact over the said phone number, but she could not get line and as such, she filed the :9: complaint as per Ex.P1. She has also further deposed that on 22nd police called her over phone and informed that they found the dead body of her daughter at Amboli Ghat at Maharashtra and thereafter she has seen the dead body in the hospital and identified the same. This witness has been cross-examined in length. During the course of cross-examination, nothing has been elicited so as to discard the evidence of this witness.
6. It is an admitted fact that the entire case rests on circumstantial evidence. Where the charge is sought to be proved only on circumstantial evidence then the motive plays an important part in order to tilt the scale. This proposition of law has been laid down by the Hon'ble Supreme Court in the case of Kuna @ Sanjaya Behera vs The State Of Odisha reported in (2018) 1 SCC 296. Para 20 of the said judgment reads as under:
"20. That in a case where the charge is sought to be proved only on circumstantial evidence, motive plays : 10 : an important part in order to tilt the scale was, amongst others underscored in Mohmadkhan Nathekhan Vs. State of Gujarat, reported in (2014) 14 SCC 589."
7. On perusal of the records, the prosecution has got produced Ex.P30 - court documents to show that the deceased had filed maintenance proceedings and an amount of Rs.65,000/- was due from accused No.1 and the same has not been paid. It is the case of the prosecution that, in the court there was some altercations between accused No.1 and the deceased with regard to payment of maintenance and in that light he instigated accused Nos. 2 and 3 to do away with the life of the deceased and as per his instigation, accused No.2 kidnapped the deceased. By analyzing all these evidences which have been produced by the prosecution, it clearly goes to show that there was some motive behind the act of accused. Though the said circumstance has been established by the prosecution but only on the basis of the motive it cannot be concluded that accused No.1 had : 11 : committed the murder of the deceased because of the said motive.
8. The second circumstance on which the prosecution is intending to rely upon is that the deceased was lastly seen with accused No.2 when she was working in the Rajesh Ginning Factory. In this behalf, the prosecution got examined PWs. 2 and 8. PW2 in her evidence has deposed that, about one year back they had been to Rajesh Ginning Factory along with the deceased Laxmi, Rukia, Sahira and others and during lunch hours accused No.2 came to the said factory and took away the deceased. The security guard told that somebody had came to see her and along with the deceased Laxmi he went up to gate and accused No.2 explained that she is from Mahila Mandal and her name is Deepa. She deposed that, thereafter the deceased did not return and after two days she came to know that the body of Laxmi has been traced in a Ghat. During the course of cross- : 12 : examination of this witness, nothing has been elicited so as to discard her evidence. PW8 is also a co- worker. She has also reiterated the evidence of PW2 and in the cross-examination nothing has been elicited so as to discard her evidence.
9. The prosecution has also intended to rely upon the last seen theory and in this behalf it got examined PWs.12 and 13. It is the case of the prosecution that, after kidnapping, the deceased, accused Nos.2 and 3 have taken her to Uchagaon and there the deceased had been confined in a house and these two witnesses have lastly seen the deceased along with accused Nos.2 and 3. But these two witnesses have totally turned hostile to the case of the prosecution.
10. The prosecution has also got examined PWs.5 and 6 who were the panch witnesses to the spot mahazer - Ex.P5, where the deceased had been confined by accused Nos. 2 and 3 and they have also : 13 : not supported the case of the prosecution and they have turned hostile. So also the witnesses for the spot mahazer - Ex.P2, from where the deceased has been kidnapped. They have also not supported the case of the prosecution. In that regard, except the evidence of PW2 and PW8 to the effect that the deceased has been lastly seen along with accused No.2 near the Ginning Factory, no other material is available before this Court.
11. It is the submission of the learned counsel for the appellants that, in order to prove the case, the prosecution has to establish in the first instance that the deceased died homicidal death. Section 299 of the IPC defines culpable homicide and Section 300 of the IPC defines when a culpable homicide will amount to murder. We feel that referring to the definition here itself is just and proper. Sections 299 and 300 of the IPC read as under:
" 299. Culpable homicide.--Whoever causes death by doing an act with the intention of causing death, : 14 : or with the intention of causing such bodily injury as is likely to cause death, or with the knowledge that he is likely by such act to cause death, commits the offence of culpable homicide.
300. Murder.--Except in the cases hereinafter excepted, culpable homicide is murder, if the act by which the death is caused is done with the intention of causing death, or--
Secondly --If it is done with the intention of causing such bodily injury as the offender knows to be likely to cause the death of the person to whom the harm is caused, or--
Thirdly --If it is done with the intention of causing bodily injury to any person and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death, or-- Fourthly --If the person committing the act knows that it is so imminently dangerous that it must, in all probability, cause death or such bodily injury as is likely to cause death, and commits such act without any excuse for incurring the risk of causing death or such injury as aforesaid.
Exception 1.--When culpable homicide is not murder.-- Culpable homicide is not murder if the offender, whilst deprived of the power of self-control by grave and sudden provocation, causes the death of the person who gave the provocation or causes the death of any other person by mistake or : 15 : accident. The above exception is subject to the following provisos:--
First.--That the provocation is not sought or voluntarily provoked by the offender as an excuse for killing or doing harm to any person. Secondly.--That the provocation is not given by anything done in obedience to the law, or by a public servant in the lawful exercise of the powers of such public servant.
Thirdly. --That the provocation is not given by anything done in the lawful exercise of the right of private defence.
Explanation.-- Whether the provocation was grave and sudden enough to prevent the offence from amounting to murder is a question of fact. xxxxxxxxxxxxxxxxxxxxxxxxxx"
12. On close reading of these two sections, culpable homicide will amount to murder if the offender with an intention to cause the death causes such fatal injuries as the offender knows it to be likely to cause the death of the person to whom he is going to cause the harm. In that light, a duty is cast upon the prosecution to establish the fact that the deceased died homicidal death.
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13. It is the contention of the learned Addl. SPP that the body has been traced in Amboli Ghat and that itself shows that it is an unnatural death. It is his further submission that accused No.2 has confessed for having committed the murder of the deceased at Amboli Ghat and there the body has been traced at the instance of accused No.2. That itself is sufficient to establish the fact of murder. It is his further submission that, if the dead body is recovered at the instance of the accused on the basis of their voluntary statement, that itself is sufficient to bring home the guilt of the accused. Though it is not sufficient to bring home the guilt of the accused, but the statement so made and recovery of the dead body would be admissible as "conduct" under Section 8 of the Evidence Act. In that light, he has relied upon the decision of the Hon'ble Apex Court in the case of Dharam Deo Yadav Vs. State of U.P. reported in (2014) 5 SCC 509. Para 21 and 22 of the said judgment reads as under:
: 17 :
"21. Section 27 of the Evidence Act explains how much of information received from the accused may be proved. Section 27 reads as follows:
"27. How much of information received from accused may be proved.- Provided that, when any fact is deposed to as discovered in consequence of information received from a person accused of any offence, in the custody of a police-officer, so much of such information, whether it amounts to a confession or not, as relates distinctly to the fact thereby discovered, may be proved."
22. The expression "custody" which appears in Section 27 does not mean formal custody, which includes any kind of surveillance, restriction or restraint by the police. Even if the accused was not formally arrested at the time when the accused gave the information, the accused was, for all practical purposes, in the custody of the police. This Court in State of A.P. v. Gangula Satya Murthy (1997) 1 SCC 272 held that if the accused is within the ken of surveillance of the police during which his movements are restricted, then it can be regarded as custodial surveillance. Consequently, so much of information given by the accused in "custody", in consequence of which a fact is discovered, is admissible in evidence, whether such information amounts to a confession or not. Reference may also : 18 : be made to the Judgment of this Court in A.N. Venkatesh v. State of Karnataka (2005) 7 SCC 714. In Sandeep v. State of U.P (2012) 6 SCC 107, this Court held that:
"52...... it is quite common that based on admissible portion of the statement of the accused, whenever and wherever recoveries are made, the same are admissible in evidence and it is for the accused in those situations to explain to the satisfaction of the Court as to nature of recoveries and as to how they came into the possession or for planting the same at the places from where they were recovered."
Reference can also be made to the Judgment of this Court in State of Maharashtra v. Suresh (2000) 1 SCC 471, in support of the principle. Assuming that the recovery of skeleton was not in terms of Section 27 of the Evidence Act, on the premise that the accused was not in the custody of the police by the time he made the statement, the statement so made by him would be admissible as "conduct" under Section 8 of the Evidence Act. In the instant case, there is absolutely no explanation by the accused as to how the skeleton of Diana was concealed in his house, especially when the statement made by him to PW14 is admissible in evidence."
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14. We have given our thoughtful consideration to the submissions made by the learned counsel appearing for the parties.
15. On perusal of the records including the evidence, in order to establish the fact that the deceased is the daughter of the complainant, the prosecution got examined PW14 - the Scientific Officer of DNA Centre Bengaluru. In his evidence he has deposed that, at the time of post mortem sternam bone has been collected and the same has been compared with the sample of the daughter of the deceased Satyashree. After analyzing the bone samples, he deposed that the analysis reveals that there is resemblance and the deceased is a biological mother of the living Satyashree and he has also given the report as per Ex.P23. In the cross-examination he has admitted that in Ex.P23 he has not mentioned what analysis and tests have been conducted. Other suggestions have been denied.
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16. By analyzing the evidence of PW14, it only clarifies the fact that the body found at Amboli Ghat is that of the mother of Satyashree. Admittedly, in the instant case on hand, the prosecution has not produced any material to show that the body found at Amboli Ghat has been subjected to post mortem and even the doctor has also not been examined. To prove the offence of murder the death should be homicidal, of which onus in criminal trial is upon the prosecution. The absence of legal proof of the death being homicidal appears to be a serious lacunae and when the report of the doctor to prove the homicidal death is not obtained, the benefit will go to the accused and not to the prosecution. The same issue came up before the Madhya Pradesh High court in the case of Shobhau alias Shubhau Vs. State of M.P. reported in 1998 Cri.L.J. 3934. At para No.7 of the said judgment, it has been observed as under:
"7. To prove an offence of murder the death should be homicidal of which onus in a criminal : 21 : trial is upon the prosecution. In the absence of legal proof of the death being homicidal, because of the serious lacuna of not obtaining the report of Anatomy Expert to prove homicidal death, the benefit will go to the accused and not to the prosecution, as this seals the fate of the prosecution and on this ground the accused cannot be held to legal criminality of the offence under Section 302 of the Indian Penal Code."
17. At this juncture, learned Addl. SPP contended that the Investigating Officer was unable to find the cause of death because the dead body was in a decomposed state. It is well settled principle of law that the prosecution has to establish that the death of the deceased was homicidal death and in the absence of any such material, it could not be said that the person whose body was recovered, died a homicidal death. This proposition of law has been laid down by the Hon'ble Apex Court in the case of State of Punjab Vs. Bhajan Singh & Others reported in AIR 1975 SC 258. At para 13 of the said judgment, it has been observed as under:
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"13. We have heard Mr. Sharma on behalf of the appellant-State and are of the opinion that no case has been made for interference with the judgment of the High Court. There is no eye witness of the occurrence and the conviction of the accused is sought to be secured on the basis of circumstantial evidence. We, however, find that the evidence which has been adduced in this case is far from satisfactory and that it suffers from a number of infirmities. In the first instance, there is no evidence on record to show that the two dead bodies which are alleged to have been recovered in pursuance of the disclosure statement of Bhajan Singh were those of Bachan Singh and Harbans Singh deceased. The evidence of Dr. Saluja is clear on the point that the features of the persons on whose dead bodies the doctor performed post mortem were unrecognisable. Question then arises as to whether the death of the two persons whose dead bodies were recovered was homicidal. So far as this aspect is concerned, we find that Dr. Saluja has deposed that he found no marks of ligature on either of the two dead bodies. According further to the doctor, he could not find the cause of death because the two dead bodies were in a de-composed state. In the face of the above evidence of the doctor, it is not possible to hold that the death of the two persons, whose bodies were recovered, was homicidal."
18. In the case on hand, in the first instance there is no material to show whether the doctor has : 23 : visited the place and has tried to conduct the post- mortem over the body of the deceased which has been traced at Amboli Ghat. The moot question which remains for consideration of us is, whether the dead body which is said to have been recovered was of a person who died homicidal death. Merely because the body is decomposed that will not take away the burden of the prosecution to establish the fact that the death of the deceased, whose body has been recovered was a homicidal death. When there is no medical evidence to show that the deceased died homicidal death, the prosecution cannot establish its case only on suspicion.
19. It is a trite proposition of law that suspicion however grave, it cannot take the place of proof and that the prosecution in order to succeed on a criminal charge cannot afford to lodge its case in the realm of "may be true" but has to essentially elevate it to the grade of "must be true". In a criminal prosecution, the : 24 : court has a duty to ensure that mere conjectures or suspicion do not take the place of legal proof and in a situation where a reasonable doubt is entertained in the backdrop of the evidence available, to prevent miscarriage of justice, benefit of doubt is to be extended to the accused. Such a doubt essentially has to be reasonable and not imaginary, fanciful, intangible or non-existent but as entertainable by an impartial, prudent and analytical mind, judged on the touch stone of reason and common sense. It is also a primary postulation in criminal jurisprudence that if two views are possible on the evidence available, one pointing to the guilt of the accused and the other to his innocence, the one favourable to the accused ought to be adopted. This proposition of law has been laid down by the Hon'ble Apex Court in the case of Jose alaia Pappachan Vs. Sub-Inspector Of Police, Koyilandy, reported in AIR 2016 SC 4581. At para 53 of the said judgment, it has been observed as under:
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"53. It is a trite proposition of law, that suspicion however grave, it cannot take the place of proof and that the prosecution in order to succeed on a criminal charge cannot afford to lodge its case in the realm of "may be true" but has to essentially elevate it to the grade of "must be true". In a criminal prosecution, the court has a duty to ensure that mere conjectures or suspicion do not take the place of legal proof and in a situation where a reasonable doubt is entertained in the backdrop of the evidence available, to prevent miscarriage of justice, benefit of doubt is to be extended to the accused. Such a doubt essentially has to be reasonable and not imaginary, fanciful, intangible or non-existent but as entertainable by an impartial, prudent and analytical mind, judged on the touch stone of reason and common sense. It is also a primary postulation in criminal jurisprudence that if two views are possible on the evidence available, one pointing to the guilt of the accused and the other to his innocence, the one favourable to the accused ought to be adopted".
20. Keeping in view the trite proposition of law as discussed above, in the instant case on hand, the prosecution has failed to establish that the body which has been traced is that of the deceased Laxmi who died homicidal death.
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21. Under the circumstances, as discussed above, the ratio laid down in the case of Dharma Deo Yadav quoted supra by the learned Addl. SPP is not applicable to the facts of the present case on hand and the said contention is rejected.
22. Be that as it may, the prosecution has also relied upon the evidence of recovery of the body at the instance of the accused. In that light, the learned Addl. SPP has relied upon the decision in the case of Dharma Deo Yadav quoted supra. It has also relied upon the evidence of PW9 and PW16.
23. PW16 - Investigating Officer in his evidence has deposed that on 23.01.2015, he visited Bachi village and apprehended the suspected accused No.2 Ningoli @ Gillava with the help of a woman PC and collected the material. He deposed that he has recorded the voluntary statement of accused No.2 as per Ex.P28 and in her voluntary statement she has stated about they throwing the dead body of missing : 27 : Laxmi in Amboli Ghat. It is trite of the law that, if the fact is exclusively within the knowledge of the accused and if the accused disclosed the said fact and leads to discovery, then the same is admissible in the evidence. In Ex.P28, accused No.2 has stated that she will show the place where the body of the deceased Laxmi has been thrown in the Hillock and she explained how they assaulted the deceased Laxmi with stones and have committed the murder.
24. PW9 is the panch witness to corroborate the evidence of PW16 - Investigating Officer. In his evidence also he has deposed that on 23.01.2015 himself and one more witness has been called to Amboli Ghat and there they have drawn the mahazer as per Ex.P2. He has also further deposed that accused Nos. 2 and 3 were in the police custody and they have taken them to Amboli Ghat where the dead body was lying.
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25. The evidence of the Investigating Officer does not corroborate with the evidence of PW9 - panch witness and it is not going to help the case of the prosecution. But we are conscious of the fact that, merely because the panch witness has turned hostile and has not given correct picture, the evidence of the Investigating Officer cannot be brushed aside. If his evidence is trustworthy and credible, then the court can also rely upon the same. But if the evidence and other documents are taken into consideration, in the evidence of PW1 - the complainant, she has deposed that on 22nd the police called her over the phone and informed that the dead body of her daughter has been traced in Amboli Ghat at Maharashtra and she has seen the body in the hospital and has identified the same. As per the evidence of PW16, he apprehended accused No.2 on suspicion on 23.01.2015 at about 6.45 pm and if we peruse Ex.P32
- acknowledgement, the father of the deceased has given an acknowledgement that he has received the : 29 : dead body of the deceased Laxmi Com Basavaraj Madar and the police have taken the clothes over the body of the deceased for the purpose of investigation. The said acknowledgement possesses the date 21.01.2015.
26. If all these materials are perused, it discloses the fact that, before the arrest of accused No.2, already on 21.01.2015 itself the body has been traced by the police and already the said fact was within the knowledge of the police and other witnesses, including the father of the deceased. Under these circumstances the provisions of Section 27 of the Evidence Act does not apply and even it can not be considered to be a recovery as contemplated under Section 27 of the Evidence Act. In that light, the evidence educed to rely upon the circumstance, that the body has been recovered at the instance of the accused is also not acceptable and reliable. : 30 :
27. It is the trite of law that, whenever the case is based on circumstantial evidence, the motive plays an important role. Apart from that, the prosecution has to establish that the circumstances proved should lead to one and only one conclusion towards the guilt of the accused. This proposition of law has been laid down by the Hon'ble Apex Court in the case of Rukia Begum Vs. State of Karnataka reported in AIR 2011 SC 1585. Para 10 of the said judgment reads as under:
"10. No doubt it is true that for bringing home the guilt on the basis of the circumstantial evidence the prosecution has to establish that the circumstances proves lead to one and the only conclusion towards the guilt of the accused. In a case based on circumstantial evidence the circumstances from which an inference of guilt is sought to be drawn are to be cogently and firmly established. The circumstances so proved must unerringly point towards the guilt of the accused. It should form a chain so complete that there is no escape from the conclusion that the crime was committed by the accused and none else. It has to be considered within all human probability and not in fanciful manner. In order to sustain conviction : 31 : circumstantial evidence must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused. Such evidence should not only be consistent with the guilt of the accused but inconsistent with his innocence. No hard and fast rule can be laid to say that particular circumstances are conclusive to establish guilt. It is basically a question of appreciation of evidence which exercise is to be done in the facts and circumstances of each case. Here in the present case the motive, the recoveries and abscondence of these appellants immediately after the occurrence point out towards their guilt. In our opinion, the trial Court as also the High Court on the basis of the circumstantial evidence rightly came to the conclusion that the prosecution has been able to prove its case beyond all reasonable doubt so far as these appellants are concerned."
28. It is also the trite of law that all the circumstances are to be linked up with one another and if the Court will be in a position to see the chain of events and if all the chain of events and important links have been established by the prosecution, then it is said to have proved its case. Though the prosecution has tried to rely upon the motive, : 32 : recovery of the body at the instance of the accused and the deceased was last seen along with accused No.2, but there is break in the chain of events. In the first instance the prosecution has utterly failed to prove the fact that the deceased died homicidal death. That itself is fatal to the case of the prosecution. Apart from that, the recovery of the dead body has also not been established coupled with the deceased was last seen at Uchagaon along with accused Nos. 2 and 3.
29. Taking into consideration the above said facts and circumstances, we are of the considered opinion that the evidence produced by the prosecution is not acceptable so as to prove the guilt of accused Nos. 1 to 3. When the links in the chain of circumstances have not been completely established and there are doubts in the case of the prosecution, then the benefit of doubt has to be given to the accused and accused alone.
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30. We have carefully and cautiously gone through the judgment of the learned Principal Sessions Judge. Surprisingly, the learned Sessions Judge has relied upon the voluntarily statement of accused No.2 at Ex.P28, whereunder accused No.2 has stated that she met the deceased Laxmi on 02.01.2015 near Rajesh Ginning Factory and on the basis of the said voluntary statement, the learned Sessions Judge has come to the conclusion that the prosecution has established the said fact and the accused have not rebutted the fact about when she has been departed.
31. It is well settled proposition of law that the voluntary statement said to have been given by the accused though amounts to confession, but it can be only used under Section 27 of the Evidence Act for discovery of a fact which is exclusively within the knowledge of the accused. The rest of the confessional statement is hit by Article 20(3) of the : 34 : Constitution of India that the accused cannot be a witness for himself. The Indian Constitution provides immunity to an accused against self-incrimination under Article 20(3) i.e., 'No person accused of an offence shall be compelled to be a witness against himself'. It is based on the legal maxim "nemo teneteur prodre accussare seipsum", which means "No man is obliged to be a witness against himself."
32. In that light, the learned Sessions Judge has wrongly applied the proposition of law and has come to a wrong conclusion and convicted accused Nos. 1 to 3. Even the basic principle of the criminal law, that the prosecution has to establish the fact that the deceased died homicidal death itself is not proved. Without there being any iota of evidence to establish the said fact, the trial Court has wrongly convicted the accused. The judgment of the trial Court is perverse : 35 : and it is unlawful and not justifiable. In that light, it is liable to be set aside. Hence we pass the following:
ORDER The appeal is allowed. The judgment of conviction and order of sentence dated 01.10.2016 passed by the learned Principal District & Sessions Judge, Dharwad in S.C. No. 57/2015 is set aside. The appellants-accused Nos.1 to 3 are acquitted of the charges leveled against them. The surety bonds and bail bonds stand cancelled.
The trial Court is directed that, if any fine amount has been deposited by the appellants -
accused Nos.1 to 3, the same may be refunded to them on proper identification and acknowledgement.
Registry to send back the trial Court records forthwith.
Sd/-
JUDGE Sd/-
JUDGE gab