Karnataka High Court
Ankush S/O Bheemsha Atnooru vs State By Afzalpur on 14 August, 2018
Bench: L.Narayana Swamy, K.N.Phaneendra
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IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 14th DAY OF AUGUST 2018
PRESENT
THE HON'BLE MR.JUSTICE L.NARAYANA SWAMY
AND
THE HON'BLE MR.JUSTICE K.N.PHANEENDRA
CRIMINAL APPEAL NO.200138/2017
BETWEEN:
Ankush S/o Bheemsha Atnooru,
Aged about 20 years,
Occupation Tractor Driver,
Resident of Badadal,
Taluk Afzalpur,
District Kalaburagi.
...Appellant
(By Sri Irshad Ahmed K and Smt.Anwar Sultana,
Advocates)
AND:
State by
Afzalpur Police Station,
Represented by State Public Prosecutor,
High Court of Karnataka,
At Kalaburagi Bench.
...Respondent
(By Sri Mallikarjun Sahukar, HCGP)
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This Criminal Appeal is filed under Section 374(2) of
Criminal Procedure Code, praying to set-aside the
impugned judgment dated 28.04.2017 passed in Sessions
Case No.107/2012 in the Court of IV Additional District and
Sessions Judge at Kalaburagi between the State through
Afzalpur Police Station -Vs- Ankush in the interest of
justice and equity.
This appeal coming on for final hearing, this day,
K.N.PHANEENDRA J., delivered the following:
JUDGMENT
The appellant is the convicted accused in Sessions Case No.107/2012, has challenged the judgment of conviction and order of sentence passed by the Additional District and Sessions Judge, Kalaburagi dated 28th day of April 2017, in convicting the accused for the offence punishable under Section 302 of Indian Penal Code (for short 'IPC') and also under Section 367 of IPC and sentencing him to undergo rigorous imprisonment for life and to pay a fine of Rs.1,00,000/- for the offence punishable under Section 302 of IPC and also sentencing him to undergo rigorous imprisonment for five years and Rs.50,000/- fine with default sentence for the offence under Section 367 of IPC and as well as sentencing him to 3 undergo rigorous imprisonment for two and half year and pay a fine of R.25,000/- with default sentence for the offence punishable under Section 201 of IPC.
2. Before adverting to the grounds urged before this Court by the accused and as elaborated by the leaned counsel for the appellant, it is just and necessary to have brief factual matrix of this case :
It is the case of the prosecution that the complainant by name one Shivasharan Ruddewadi of Badadal Village, has a son by name Veeresh. It is the case of the prosecution that the accused has been in the habit of taking away the children from the village and selling them for his wrongful gain. In this context, it is alleged that the accused had some greedy eyes sofar as deceased Veeresh is concerned and he had intention to take away that, boy for the purpose of selling and to enrich himself. In this backdrop, it is alleged that on 15.09.2012 at about 4.30 p.m. the accused/appellant has taken away the said boy along with him and he made attempts to sell the said 4 boy in some area in 'Poona' but he was not successful as some of the witnesses have seen this accused and the deceased altogether and one of the witness has not supported the accused in selling the said boy, thinking that they will inform the same in the village and in that extent he would be caught red-handed. Therefore, he decided to do away with the life of the said boy. In this context, it is alleged that he cut the neck of the said boy and after committing the murder of said boy by threw the dead body in an open space near the agricultural land of one Shivasharan Khairat. Thereafter, the dead body was seen by the villagers and as well as the father of the deceased and thereafter a complaint came to be lodged against the accused. The accused was arrested and he was produced before the Court and subsequently the trial Court framed charges against the accused for the above said offences and tried the accused.
3. The prosecution in order to prove the guilt of the accused examined as many as 19 witnesses as PWs.1 5 to 19 and got marked Exs.P1 to P23 documents and material objects M.O.Nos.1 to 9. After appreciation of oral and documentary evidence on record, the trial Court has recorded the judgment of conviction and order of sentence against the accused as noted above.
4. Sri Irshad Ahmed K, the learned counsel for the appellant strenuously contends before this Court that there is absolutely no evidence whatsoever against the accused. The entire case of the prosecution revolves around the circumstantial evidence and the circumstances relied upon by the prosecution are :
1) Motive ;
2) The accused and the deceased last seen together; and
3) Recovery of some blood stained clothes and a knife at the instance of the accused and those stains on the knife and clothes tallied with the blood group of the deceased.6
5. He further argued that all these three circumstances have not been proved to the satisfaction of the Court. The links between one circumstance to the other circumstance have not been established before the trial Court. Inspite of that on the basis of surmises, conjectures and imagination, the Court morally came to the conclusion that the accused has committed such an offence and convicted and sentenced the accused accordingly, which is erroneous and liable to be set-aside.
6. Per contra the learned High Court Government Pleader/Prosecutor submitted before the Court that, though there are some inferences drawn by the trial Court, but drawn on the basis of factual materials available on record. Therefore, the trial Court has properly appreciated the evidence on record and correctly recorded the judgment of conviction, which does not call for any interference at the hands of this Court.
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7. Bearing in mind the above said submissions we have carefully reevaluated the evidence recorded by the trial Court and reappreciated the same.
8. On the basis of the above said circumstances and the submissions made by the learned counsels the point that would arise for consideration before this Court are ;-
i. Whether the prosecution has proved the guilt of the accused for the offence under Section 367, 302 and 201 of IPC beyond all reasonable doubt ?
ii. Whether the trial Court has committed any serious legal or factual error in convicting and sentencing the accused as noted supra ?
9. In order to appreciate the above said two points, it is just and necessary to have a cursory to look at the evidence adduced by the prosecution.
10. PW.1 one Mr.Sangappa is the person who was examined to establish that the police have inspected the 8 spot where the dead body was detected and recorded the spot panchanama as per Ex.P.1. He has stated that he saw the dead body of the boy near the land of one Shivasharanappa and there were injuries to the neck and ears of the said dead body and the police drew-up a mahazar as per Ex.P.1 and he signed the same. There is recovery of some articles under this mahazar and the police have drawn the inquest report on the dead body as per Ex.P2 and also collected some materials objects M.O.Nos.3 to 6, which are the clothes of the deceased and waist thread of the deceased under Ex.P3. He has not deposed anything about the accused person in any manner.
11. PW.2 one Mr.Deelip, he also a witness to a mahazar Ex.P4. The said mahazar was drawn by the police on that particular day i.e., the place shown by accused that he has abducted/kidnapped the said boy from that particular place. This mahazar is also nowhere helpful to indicate or implicate the accused person in any manner. 9
12. PW.3 - Dr.Ramesh Patil is the person who was working as a Medical Officer in Government Hospital, Afzalpur, who has conducted the examination on the accused on 18.09.2011 and he gave the opinion as per Ex.P5. We would discuss the evidence of this witness little later in detail.
13. PW.4 one Mr.Milankumar, is the Assistant Executive Engineer who went to the spot and drew-up a sketch as per Ex.P6. This also in no way connect the accused person to the crime. PW.5 one Mr.Mallinath is the person who carried the first information report on 16.09.2011 and he handed over the said first information report to the Magistrate as per Ex.P7.
14. PW.6 - Doulappa is the person who was examined to establish Ex.P8 seizure mahazar under which it is alleged that the accused was secured to the police station about four years prior to the examination of this witness and accused produced a knife before this witness 10 and also clothes of the accused as per Ex.P9, but this witness has supported partially to the case of the prosecution. But he has not supported the case of the prosecution sofar as the recovery of the clothes are concerned. PW.7 is one Mr.Aktar Patel who is the person who has carried the incriminating articles to the forensic science laboratory and reported the same as per Ex.P10.
15. PW.8 one Mr.Laxmiputra is the person by hearsay he has stated that he has seen the dead body of Veeresh about 3 years ago and he says that the people of the village were talking that the accused might had committed the murder of the deceased.
16. PW.9 Mr.Adeppa is the another person who was examined to establish Exs.P8 and P9 under which the knife and clothes of the accused were recovered, but he did not support the case of the prosecution and turned hostile.
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17. PW.10 - Sambai and PW.11 - Shivasharanappa are the prime witnesses to the prosecution who have spoken about they last seen the accused and the deceased on 15.09.2011 at 4.30 a.m.
18. PW.12 - Dr.Mahantappa, who has conducted the post mortem examination of the deceased on 17.09.2011 and gave post mortem report as per Ex.P.13. PW.13 one Mr.Manjunath is the person who received the first information report from the complainant Shivasharanappa and registered a case in Crime No.154/2011 for the offence under Section 364 of IPC and also he sent the first information report to the Court as per Ex.P14 and he also visited the spot and drew-up the spot mahazar as per Ex.P4.
19. PW.14 - Ningappa is the another person who last seen the accused and the deceased who supported the case of the prosecution to some extent. PW.15 - Khajappa 12 is also spoken similarly that he has seen the accused and the deceased on the previous day on 15.09.2011.
20. PW.16 one Mr.Sharanappa is the person who has shifted the dead body and handed over to the Doctor for post mortem examination and thereafter handed over the said body to the father of the deceased, after collecting the clothes of the deceased and he identified the clothes of the deceased as per M.O.Nos.3 to 6. PW.17 one Mr.Rajendra, is the Police Inspector who conducted partial investigation and infact arrested the accused and recovered one knife and as well as clothes of the accused person.
21. PW.18-Dr.Chayakumari is the Scientific Officer, she has deposed with regard to conducting of the chemical examination on the material objects sent for examination by the police. PW.19-Teerthraju is the Deputy Superintendent of Police who conducted the inquest on the dead body and also recorded the statements of the 13 witnesses and ultimately submitted the charge sheet before the Court.
22. On perusal of the above said evidence of the witnesses some of the witnesses have been examined who have not even connected the accused in any manner. However, as we have already narrated in the above said paragraphs that the prosecution has relied upon three strong circumstances in order to establish the guilt of the accused.
i. The last seen theory that the accused and deceased last seen together and thereafter within short span of time the dead body of the deceased was found and the same has not been properly explained by the accused;
ii. The recovery of a knife and clothes at the instance of the accused which contains the blood stains, tallied with the blood group of the deceased; and iii. The motive on the part of the accused and the conduct of the accused in kidnapping the 14 children from the village and selling them for wrongful gain.
Now we would like to examine the above said circumstances one by one with reference to the evidence on record whether these circumstances have been proved beyond reasonable doubt.
23. It is well recognized principle of criminal jurisprudence that in a circumstantial evidence case the prosecution has to prove all the circumstances relied upon beyond reasonable doubt and the proven circumstances should complete the chain so as to connect the accused to the hilt. Therefore, the Court has to examine meticulously the circumstances projected by the prosecution to ascertain whether the prosecution has established the case beyond reasonable doubt and any proven circumstances complete the chain.
24. The first and foremost important circumstance is the accused and the deceased last seen together. The 15 prosecution has relied upon the evidence of PWs.10, 11, 14 and 15. PW.10 -Sambai, she has stated that accused is also the resident of the same village and deceased Veeresh is her grandson. About three years prior to her evidence, her deceased grandson had been to Ambedkar Chowk for the purpose of playing. Later CWs.10 and 11 came to her and told that the accused took away the deceased towards Balooragi village. But she also stated that, the accused is in the habit of taking away the children and selling them for the purpose of wrongful gain. On the next day the dead body of the deceased was found near the land of one Shivasharanappa Khairat. Except this she has not specifically stated that whether she has got any personal knowledge about the accused taking away the deceased. She cannot be said to be a witness for last seen of the accused and the deceased together. It is only the information received by her from PWs.14 and 15.
25. PW.11 is the father of the deceased Veeresh, he also not actually personally seen the accused and the 16 deceased together at any time but he deposes that on 15.09.2011 at about 4.30 p.m. his son went to play near Ambedkar Chowk and he says that the accused was playing with the boy. In the evening upto 7.00 O'clock, boy did not return to the house, therefore, he went to Afzalpur Police Station and lodged a complaint. On the next day also he searched for his son and he further deposed that one Mr.Khajappa and Ganesh have informed him that, the accused was planning to kidnap the boy for the purpose of his wrongful gain. In this context it is suspected by this witness that the accused is the person who has taken away the boy for the purpose of wrongful gain. He also stated that the accused on 16.09.2011 was caught by the villagers and produced him before the police and police along with witnesses taken the said accused to Poona in order to ascertain the boy was sold to anybody.
26. Here itself we can say that there is absolutely no evidence collected by the police that any effort was made by the accused to sell the boy in Poona and attempt 17 to collect any evidence, it appears no witnesses have been examined in this line and no materials have been placed actually what happened at Poona when the police had been to that particular place. In the course of cross-examination also except stating that, receiving of the information that the accused and the deceased last seen together, this witness has not actually seen the accused and the deceased together but he says about finding of the dead body and the injuries on the dead body and also the accused being caught hold by the villagers and produced before the police. Except that there is no direct connection with regard to the accused committing the offence, within the knowledge of this witness. When other witnesses particularly PWs.14 and 15 who have actually said to have seen the accused and the deceased together, the hearsay evidence that he received the information from PWs.14 and 15, such evidence has to be eschewed in view of the evidence of PWs.14 and 15. Therefore, the Court has to carefully examine the evidence of PWs.14 and 15 with reference to the other materials on record. 18
27. Of course PWs.14 and 15 who are the witnesses to the last seen, they have supported the case and categorically stated that about four years back in Ambedkar Circle in their village at about 4.00 p.m. these two witnesses were residing and accused was found with the deceased Veeresh and thereafter the accused has taken away the said boy along with him. Thereafter, they came to know that the father of the deceased was in search of the boy. Therefore, they met the complainant i.e., father of the boy and informed about the accused and the deceased seen together and accused went away along with boy.
28. In the course of cross-examination it is elicited that they actually seen the deceased and the accused on 15.09.2011 at 4.30 p.m. On that day there was immersion ceremony of Lord Ganesh in their village and they saw the accused and the deceased in the said Ambedkar Chowk, on that particular day and time. They also spoke that, on the next day that was on 17.09.2011 they found the dead 19 body of the deceased near the land of one Shivasharan Khairat. They also stated about the injuries on the dead body etc., and these two witnesses have suspected that the accused might have committed the murder of the deceased. They also stated before the police in their statements which is marked at Ex.D1 that they do not know who are all the other persons might have committed the murder of the deceased. Only because they saw the accused and the deceased together, they suspected that the accused might have committed the murder of the deceased.
29. There is no reason to discard the evidence of these witnesses with reference to their statements that, they saw the accused and the deceased together. But the truthfulness and veracity of the evidence of these witnesses have to be tested from the other witnesses in order to ascertain whether the evidence of these witnesses are so creditworthy and trustworthy for acceptance and 20 they had any occasion to see the accused and deceased on the said date and time particularly.
30. In this background the evidence of these witnesses had play a dominant role. It is the case of the prosecution that on 17.09.2011 the dead body was found near the land of one Shivasharan Khairat, the police went to that particular spot and conduct the inquest report and sent the dead body for post mortem examination. Post mortem examination was done by PW.12 - Dr.Mahantappa and issued the post mortem examination report as per Ex.P.13. We have carefully perused the post mortem examination report wherein it is categorically stated the death of the deceased was due to hemorrhage and shock due to the cut injuries to the great vessels at neck. It is evident from the evidence of the Doctor that the neck of the deceased was cut and death was due to hemorrhage. The Doctor has specifically stated that death occurred more than 72 hours prior to the post mortem examination. Subsequently, in the course of cross-examination the 21 Doctor has specifically admitted that the death of Veeresh might have been occurred on or before 14.09.2011. It is also admitted by the Doctor that M.O.No.7 which is the small knife alleged to have been seized from the accused, the injuries No.1 and 2 which were the major injuries caused the death of the deceased could not have been caused by such a weapon like M.O.No.7. This suggestion also been accepted that injuries No.1 to 3 cannot be cause by one and the same weapon. That also clearly goes to show that there must be more than one weapon might have been used for the commission of the offence. It is not the case of the prosecution that more than one weapon has been used for the commission of the offence. Therefore, the story of the prosecution is little bit deviated in the evidence of the Doctor.
31. It is also suggested that knife M.O.No.7 is not sufficient to cut the great vessels and cause these injuries No.1 to 3. It is also accepted that Veeresh might have died due to asphyxia. Therefore, the Doctor's evidence clearly 22 discloses that though M.O.No.7 has been alleged to have been at the instance of the accused but Doctor's evidence shows that, the injuries found on the neck of the deceased could not have been specifically caused by M.O.No.7 and he suspected that some other weapon might have been used for the commission of the offence. This doubt created in the evidence of the Doctor has not been clarified during the course of further examination or reexamination by the prosecution.
32. In order to establish that the death was caused on 15.09.2011 the prosecution made some patching work during the course of further examination of the Doctor and elicited that, the death might have been caused between 48 to 72 hours prior to the post mortem examination. Therefore, even considering the Doctor's evidence that the death occurred about 48 to 72 hours prior to the post mortem examination, it is clear from the evidence of the other witnesses that the accused and the deceased were last seen together on 15.09.2011 at 4.30 p.m. Therefore, 23 calculating even 48 hours, it will come to 15.09.2011 at 1.30 p.m. as the post mortem examination report was conducted between 1.30 p.m. and 2.30 p.m. on 17.09.2011. Therefore, even accepting the evidence of the prosecution witnesses and the Doctor evidence as it is doubtful circumstances which is projected by the prosecution itself that the death might have been occurred prior to 1.30 p.m on 15.09.2011. Therefore, the prosecution witnesses PWs.14 and 15 who have stated that they have seen the accused and the deceased together on 15.09.2011 at 4.30 p.m. creates a serious doubt.
33. Further added to that on what basis the Doctor has given his subsequent opinion that the death was occurred prior to 42 to 72 hours is not explained and it is also not elucidated from the mouth of the Doctor during the course of further examination that why the Doctor has given the time of death as 72 hours prior to the post mortem examination report. So this ambiguity must have 24 been removed by the prosecution by properly examining the Doctor and elucidating the same from the Doctor. The Court though is an expert of experts but it cannot step into the shows to an expert to imagine something that death must have occurred even itself prior to 48 hours. Therefore, we are of the opinion this serious doubt, which has been created in the mind of the Court, has not been properly explained by the prosecution. The doubt remains that, as to whether the death of the boy was occurred on 14.09.2014 or 15.09.2011. If this particular doubt it is not clarified, in our opinion this is a reasonable doubt which go to the route of the prosecution case in order to establish the accused and the deceased last seen together. Therefore, we are of the opinion the prosecution cannot be said to have proved this particular circumstance beyond all reasonable doubt, the doubt created in the mind of the Court ought to have been given to the benefit of the accused.
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34. Even considering the evidence of the father of the victim boy he has also not sure that actually on which date the boy was missing from the village. According to his evidence on 15.09.2011 itself they suspected the conduct of the accused and accused was caught hold by the villagers and produced before the police and the police have taken the accused to Poona in order to ascertain whether said boy was sold to anybody. So it clearly creates a serious doubt as to whether only on suspicion on the previous conduct of the accused that he was in the habit of taking away some children and selling the children for wrongful gain and taking advantage of such situation implicated the accused in the crime. Therefore, the Court should be very careful in analyzing the factual aspects merely because some doubt is created in the mind of the Court with regard to the conduct of the accused that itself is not sufficient to bring home the guilt of the accused, unless the said circumstance relied upon by the prosecution is strongly established, beyond reasonable doubt.
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35. In this regard it is worth to refer a decision of the Apex Court reported in AIR 2016 Supreme Court 2381 between Rambraksh alias Jalim v. State of Chhattisgarh. Wherein the Apex Court pitted with similar circumstances has laid down certain principles with regard to the last seen theory. It is said -
"It is trite law that a conviction cannot be recorded against the accused merely on the ground that, the accused was last seen with the deceased. In other words, a conviction cannot be based on the only circumstance of last seen together. Normally, last seen theory comes into play where the time gap, between the point of time when the accused and the deceased were seen last alive and when the deceased is found dead, is so small that possibility of any person other than the accused being the perpetrator of the crime becomes impossible. To record a conviction, the last seen together itself would not be sufficient and the prosecution has to complete the chain of circumstances to bring home the guilt of the accused."27
36. In this particular case also if the above said principle is applied a doubt is created in the mind of the Courts whether the death of the boy was occurred on 14.09.2011 or on 15.09.2011. If it is on 14.09.2011 the perpetrator may be some other person. Even if it is on 15.09.2011 the dead body was found after one day that was on 16.09.2011, there was time gap of more than 24 hours. Therefore, under the above circumstances, the prosecution has to prove other than the last seen theory the other circumstances, which are strong enough to connect the accused person. In this background the two other circumstances relied upon by the prosecution have to be tested.
37. It is the case the case of the prosecution that a knife and as well as clothes of the accused were seized from the custody of the accused. Even accepting that the said clothes and knife, were said to have been recovered at the instance of the accused there must be some connecting materials to implicate the accused person to 28 the crime. It is the case of the prosecution that one blood stained iron knife, one yellow coloured T-shirt and one black pant of the accused were recovered as per M.O.Nos.7 to 9. It is also established that M.O.Nos.1 to 6 which are the blood stained mud, non blood stained mud, one orange coloured half shirt with blood stained, one black coloured half pant of the deceased and one waist thread and one black coloured kashi thread have been recovered on the dead body of the deceased and nearby the dead body of the deceased. Of course all these materials have been sent to forensic science laboratory and it is found that all these materials particularly M.O.Nos.1, 3 to 9 were found with 'O' group blood. Therefore, the prosecution wants to establish that the accused has not explained how the bloodstains of the blood group of the deceased found on his clothes and the knife. We have already referred to the evidence of the Doctor. The Doctor has unequivocally stated that the injuries found on the dead body could not have been caused by M.O.No.7 a knife and some other weapon also 29 could have been used for the commission of such offence. Therefore, the prosecution has to establish that M.O.No.7 is the only weapon, which was used, for the commission of the offence by the accused, but prosecution has not proved the same beyond reasonable doubt.
38. Be that as it may the evidence of the Doctor who has examined the accused also play a dominant role. PW.3 Dr.Ramesh Patil, he has stated that on 18.09.2011 at about 6.15 p.m. the Head Constable No.496 of Afzalpur Police Station brought the accused Ankush for examination with a history of assault by belt. On examination he found swelling and redness present around the left eye. In his opinion, it is stated that the said injury was simple in nature caused by hard and blunt object. Accordingly, he has given the wound certificate as per Ex.P5. Nothing more has been elicited during the course of the cross- examination. Therefore, it is the case of the accused that he sustained injuries due to assault by the police and those injuries were also bleeding injuries and due to which the 30 clothes of the accused were stained with such blood. According to him it is the blood group of the accused pertaining to those stains found on the clothes of the accused. In such circumstances, when the prosecution itself has placed two rival recoveries with regard to the bloodstains on the clothes of the accused that they have themselves examined PW.3 to show that the accused had some injuries. It was the duty cast upon the prosecution to show that the bloodstains found on the clothes of the accused does not tally with the blood group of the accused in order to eliminate the serious doubt and to establish that the said blood group tallies only with the blood group of the deceased.
39. Further added to the above, it is clear from the entire prosecution case, including evidence of the Investigating Officer that the accused was suspected and produced by the villagers before the police on 16.09.2011 itself. Therefore, it is crystal clear that from 16.09.2011 the accused was in the custody of the police, he should 31 have been produced before the Magistrate within 24 hours. If at all the accused had any injury during that time if he complained about any injury caused by the police they would have taken permission of the Magistrate to take the accused to the Doctor for examination. Therefore, it goes without saying that those injuries must have been occurred only after the order of the Magistrate remanding the accused to the judicial custody or to the police custody and before sending the accused to the judicial custody on 18.09.2011 at 15.00 p.m. the police have taken the accused to the Doctor for examination.
40. We have also carefully perused the order sheet of the committal Magistrate, there is absolutely no material to show that the Magistrate has referred the accused to the Doctor for examination. Therefore, it becomes the responsibility of the prosecution as to how these injuries were caused on the accused, when particularly the accused was in the custody of the police and in the absence of such elucidation on facts, it goes without saying that, the 32 prosecution suppressed something before the Court. Therefore, when such a doubt is not eliminated the Court cannot come with all conclusiveness and perfectness that, the bloodstains found on the alleged clothes of the accused is the bloodstains of the deceased only. Therefore, we are of the opinion, this circumstance of recovery of M.O.Nos.7 to 9 though tentatively established but the prosecution, but has not proved the link between the recovery of these articles with that of the crime. Therefore, this circumstance has also not been proved by the prosecution beyond reasonable doubt.
41. Last but not least the motive factor relied upon by the prosecution is the conduct of the accused. Invariably almost all the witnesses have stated that they were hearing the news from the village people that the accused has been in the habit of taking away the children from the village and selling them at far away places for the purpose of his wrongful gain. It is only hearsay evidence of the witnesses but none of the witnesses have specifically 33 stated whether they have actually seen taking away any child or the accused selling any child at any place. The Investigating Officer has also not bestowed his attention sofar as this aspect is concerned, he has not examined any witnesses in this regard to establish such conduct of the accused that the accused had such a motive to take away the children from the village for his wrongful gain, muchless, the deceased was taken away by the accused for the said propose.
42. Therefore, the above said facts and circumstances though morally creates some suspicion in the mind of the Court but the trial Court would not have convicted the accused on the basis of such moral suspicion. Even suspicion is crated by overall reading of the prosecution evidence but it is well recognized principle of criminal jurisprudence that any much of suspicion will not take the place of proof.
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43. Under the above facts and circumstances, we are of the opinion that the prosecution has placed some materials but they are not sufficient even to create a strong suspicion in the conduct of the accused, the reasonable doubts have been created in the case of the prosecution have not been properly explained and eliminated. Hence, it is the duty of the Court to give the benefit of such serious doubts in favour of the accused. Hence, we are of the opinion that the prosecution has not proved the guilt of the accused for the above said offences beyond reasonable doubt.
44. In view of the above said findings, we are of the opinion that the trial Court has committed a serious error in appreciating the oral and documentary evidence on record and also committed error in convicting and sentencing the accused for the above said offences. On the other hand the trial Court ought to have given the benefit of the above said doubts and acquitted the accused. 35 Hence, we answer points formulated by us accordingly and proceed to pass the following ;
ORDER
The appeal filed by accused is hereby
allowed. Consequently the judgment of
conviction and order of sentence dated
28.04.2017 passed by the Trial Court in
Sessions Case No.107/2012 on the file of Additional District and Sessions Judge, Kalaburagi is hereby set-aside. Consequently, the accused is acquitted of the charges leveled against him for the offences punishable under Sections 367, 302 and 201 of Indian Penal Code.
The accused shall be set at liberty forthwith if he is not required in any other case.
Registry is hereby directed to send the intimation to the concerned prison authority to release the accused in Sessions Case No.107/2012, if he is not required in any other case.
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If any fine amount is deposited by the accused, the same shall be refunded to the accused on proper identification.
Sd/-
JUDGE Sd/-
JUDGE sn