Karnataka High Court
Sri Ravi vs State Of Karnataka on 11 July, 2018
Author: R.B Budihal
Bench: R.B Budihal
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 11TH DAY OF JULY 2018
PRESENT
THE HON'BLE MR. JUSTICE BUDIHAL R.B.
AND
THE HON'BLE MR. JUSTICE B.A.PATIL
CRIMINAL APPEAL NO.253/2018
C/W
CRIMINAL APPEAL NO.982/2018
IN CRL.A. NO.253/2018
BETWEEN:
SRI RAVI
S/O SRI RAMAKRISHNA
AGED ABOUT 32 YEARS
R/O RAMADEVARA PAD, VILLAGE
KASABA HOBLI
RAMANAGARA TALUK
AND DISTRICT - 571 511. ...APPELLANT
(BY SRI G.M.SRINIVASA REDYY, ADV.)
AND:
STATE OF KARNATAKA
R/BY BIDADI POLICE STATION
THROUGH STATE PUBLIC PROSECUTOR
HIGH COURT BUILDING
BENGALURU - 560 001. ...RESPONDENT
(BY SRI VIJAYAKUMAR MAJAGE, ADDL. SPP.)
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THIS CRIMINAL APPEAL IS FILED UNDER SECTION
374(2) CR.P.C., PRAYING TO SET ASIDE THE JUDGMENT
AND ORDER OF CONVICTION DATED 20.12.2017 PASSED BY
THE III ADDITIONAL DISTRICT AND SESSIONS JUDGE,
RAMANAGARA IN S.C.NO.129/2009 - CONVICTING THE
APPELLANT/ACCUSED NO.2 FOR THE OFFENCES P/U/S
364, 302, 392 AND 201 R/W 34 OF IPC.
IN CRL.A. NO.982/2018:
BETWEEN:
SRI MANJUNATHA
S/O SRI CHENNIGAPPA
AGED ABOUT 35 YEARS
R/O BASAVANAPURA VILLAGE
KASABA HOBLI
RAMANAGARA TALUK
RAMANAGARA DISTRICT - 571 511 ...APPELLANT
(BY SRI CHANDRASHEKAR P., ADV.)
AND:
THE STATE OF KARNATAKA
THROUGH BIDADI POLICE STATION
RAMANAGAR DISTRICT
BY STATE PUBLIC PROSECUTOR
HIGH COURT OF KARNATAKA
BANGALORE. ...RESPONDENT
(BY SRI VIJAYAKUMAR MAJAGE, ADDL. SPP.)
THIS CRIMINAL APPEAL IS FILED UNDER SECTION
374(2) CR.P.C., PRAYING TO SET ASIDE THE ORDER OF
CONVICTION AND SENTENCE DATED 20.12.2017 PASSED BY
THE III ADDITIONAL DISTRICT AND SESSIONS JUDGE,
RAMANAGARA IN S.C.NO.129/2009 - CONVICTING THE
APPELLANT/ACCUSED NO.1 FOR THE OFFENCES P/U/S 364,
302, 392 AND 201 R/W 34 OF IPC.
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THESE CRIMINAL APPEALS COMING ON FOR HEARING
THIS DAY, BUDIHAL.R.B, J., DELIVERED THE FOLLOWING:
JUDGMENT
Since these two appeals are in respect of the same judgment of the Court below and since common questions of law and facts are involved in both the appeals, they are taken together to dispose of them by this common judgment.
2. Crl.A.No.253/2018 is filed by accused No.2 and Crl.A.No.982/2018 is filed by accused No.1, both being aggrieved by the judgment and order of conviction and sentence dated 20.12.2017 passed by the III Addl. District and Sessions Judge, Ramanagara in S.C.No.129/2009 wherein the appellants-accused Nos.2 and 1 were convicted for the offences punishable under Sections 364, 302, 392, 201 r/w Section 34 of IPC.
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3. Brief facts of the prosecution case are that on 1.8.2009 at 7.15 a.m. at Bidadi bus stand within the jurisdiction of Bidadi police station, accused No.1 Manjunatha, accused No.2 Ravi, accused No.3 Raveesha and accused No.4 Narasimha @ Kariya with an intention to make wrongful gain based upon common intention under the guise of dropping Smt.Kumuda, a co-teacher of Basavanapura Government Primary School, made her to board into Indica Car bearing No.KA-42-2522 to the back seat and while the car was proceeding, accused No.2 Ravi and accused No.3 Raveesha held Kumuda tightly by closing her mouth and proceeded from Mayaganahalli towards Sugganahalli, Magadi road and accused No.2 Ravi subjected Smt.Kumuda to forcible sexual intercourse in the car itself and thereafter, they drove the car near Savanadurga forest area and by stopping there, all the four accused have closed the mouth of Kumuda, killed her and robbed 2 row mangalya chain weighing 55 grams, worth Rs.60,000/- from her neck and one pair of ear rings 5 weighing 2 gms 80 milligrams from her ears and two bangles and thereafter, with an intention to destroy the evidence, took the dead body to Honnuduke hand post of Yellapura village and thrown the same in the land of one Rangaswamy. At the first instance, Umesha, father of deceased Kumuda filed the complaint on 1.8.2009 informing the police that his daughter Kumuda left the residence at Chatram Bidadi Hobli at 7.00 a.m. on 1.8.2009 to go to Basavanapura where she is working as Assistant Teacher(English) in Basavanapura Primary School and it is ascertained that she is being picked up by a Tata Sumo. But she has not reached Basavanapura and attended the classes. She was also having a mobile. Again the complaint was filed on the basis of which, FIR came to be registered in Crime No.346/2009 for the offences punishable under Sections 302, 376, 392, 201 r/w Section 34 of IPC. After completing investigation, the investigating officer filed the charge sheet against the accused persons for the offences punishable under 6 Sections 302, 392, 376, 201 r/w Section 34 of IPC. The learned Sessions Judge, after hearing both sides and after perusal of the materials on record has prepared the charges against the accused persons and when the charges were read over and explained to the accused, they pleaded not guilty and claimed to be tried. Accordingly, charges were framed and their plea was also recorded and then the matter was set down for trial.
The prosecution in support of its case, in all, examined 22 witnesses as P.Ws.1 to 22 and produced documents as per Exs.P1 to P78 with sub-markings and also got marked material objects M.Os.1 to 30. Then the accused were examined under Section 313 of Cr.P.C. and their statements came to be recorded.
On the side of defence no witnesses were examined, but documents Exs.D1 and D2 were got marked while cross-examining P.Ws.4 and 13. Thereafter, the learned Sessions Judge, after hearing the arguments on both sides and also after consideration of oral and documentary 7 evidence, ultimately held that prosecution has proved the charges against the accused persons and convicted them for the offence punishable under Sections 364, 302, 392, 201 r/w Section 34 of IPC. Being aggrieved by the judgment and order of conviction and also challenging the legality and correctness of the said judgment and order of conviction, the appellants-accused Nos.2 and 1 respectively, are before this Court on the grounds as mentioned in the respective memorandum of appeals.
4. We have heard the arguments of learned counsel appearing for accused Nos.2 and 1 and also the learned Additional State Public Prosecutor for the respondent- State in respect of both the appeals.
5. Sri.G.M.Srinivasareddy, learned counsel appearing on behalf of accused No.2 submits that there are no direct witnesses to the incident. The case of the prosecution rests on circumstantial evidence. There is no 8 acceptable evidence adduced by the prosecution to show that the deceased was last seen in the company of these accused persons. He drew our attention to the evidence of P.Ws.4 and 5 who are said to be the witnesses for the last seen theory and submitted that there is no consistency in the evidence of these two witnesses. He also submits that C.W.4 who is also said to be the witness for the last seen theory of prosecution has not been examined before the Court during the course of trial. Referring to these materials he submits that the evidence of P.Ws.4 and 5 and the documents will not inspire the confidence of this Court regarding the last seen theory of the prosecution that the deceased was in the company of the accused persons. Though it is the case of the prosecution that the gold ornaments were recovered from the possession of accused Nos.1 to 3 in the police station on 3.8.2009, learned counsel drawing our attention to the evidence of P.W.9 submits that in his examination-in-chief he has deposed that he has seen the accused persons in the 9 police station on 2.8.2009 itself. Hence, the learned counsel submits that the evidence of P.W.9 contradicts the case of the prosecution that the recovery of gold ornaments from the possession of accused Nos.1 to 3 was on 3.8.2009. Therefore, even with regard to recovery of gold ornaments no acceptable material is placed by the prosecution.
So far as the recovery of the car at the instance of accused No.4 Narasimha @ Kariya is concerned, learned counsel submits that the voluntary statements of the accused as per Exs.P1 and P63 will not make out a case that there is a recovery of the car as per the information furnished by accused No.4 and will not conform to the requirement of Section 27 of the Indian Evidence Act. Further, referring to the expert's evidence P.W.18 and other witnesses he submits that the evidence of these witnesses is also not worth believable and based on the same, it cannot be said that prosecution has made out a case about the involvement of accused persons in 10 committing the alleged offences. He further submits that the fact that accused persons took the car from P.W.13 Prakash is also not satisfactorily proved before the Court with cogent and acceptable evidence. He submits that all these aspects were not properly considered and appreciated by the learned Sessions Judge and has wrongly held that accused have committed said offences and accordingly convicted and sentenced them. Hence, he has prayed to allow the appeal and to set aside the order of conviction and sentence passed by the Court below.
6. Sri.Chandrashekar.P, learned counsel appearing on behalf of accused No.1 firstly submits that he will adopt the arguments made by learned counsel for accused No.2. In addition to that, he also submits that the material placed by the prosecution is not worth believable. The prosecution has failed to prove its case beyond all reasonable doubt and reasonable doubt arises in the mind of the Court regarding involvement of the accused persons 11 in committing the alleged offences. Hence, benefit of doubt may be given to the accused persons and accused No.1-appellant in Crl.A. No.982/2018 may be acquitted of all the charges leveled against him by allowing the appeal.
Learned counsel for the appellants have relied upon the decision of the Hon'ble Apex Court reported in (2014)10 Supreme Court Cases 264 in the case of Sangili @ Sanganathan Vs. State of Tamil Nadu, represented by Inspector of Police wherein it is held that 'suspicion however strong, cannot be a substitute for proof - appellant entitled to benefit of doubt' and submits that the factual matrix in the reported decision is squarely applicable to the cases on hand.
They have also relied upon another Division Bench decision of the Kalaburagi bench dated 14.6.2018 rendered in Crl.A.No.3636/2013 and Criminal Reference case No.200002/2017 in the case of Mohammed Sultan Vs. The State of Karnataka. 12
7. Per-contra, learned Additional State Public Prosecutor submits that so far as the last seen theory is concerned P.Ws.4 and 5 have spoken that deceased Kumuda was found in the company of accused persons and she boarded the car wherein all the four accused persons were present. Though there are minor discrepancies in their evidence, still it inspires confidence of the Court that their evidence is worth believable. He also submits that so far as the recovery aspect is concerned, it was effected on 3.8.2009 itself. In this regard he refers to the oral evidence of panch witnesses, so also, the document at Ex.P38 and submits that the oral evidence and documentary evidence clearly shows that the recovery panchanama was effected on 3.8.2009 and not on 2.8.2009. In so far as the evidence of P.W.9 that he went to the police station on 2.8.2009 and has seen accused Nos.1 to 3 in the police station wherein there was a recovery of gold ornaments from them, learned Addl. SPP tried to clarify the said aspect that it may be wrongly 13 mentioned by P.W.9 since his evidence was recorded after long lapse of 7 years from the date of incident. He submits that the Court has to appreciate the cumulative effect after perusing the entire material and not rely upon the evidence in isolation. He further submits that as per the voluntary statement of accused No.4 Narasimha @ Kariya recorded in Exs.P1 and P63, the car was recovered and even the place at which the dead body was thrown was also ascertained by the police. He submits that regarding the car used by the accused persons for the commission of the alleged offence the evidence of P.Ws.13 and 14 is material. The evidence of these two witnesses clearly show that P.W.13 made arrangement for the car with the owner of the car P.W.14 and has given to the accused persons and even during cross-examination of these two witnesses nothing has been elicited from their mouth to disbelieve the case of the prosecution. He also submits that panchanama of the place at which the dead body was thrown was conducted in the presence of panch witnesses 14 and the mud of the said place was also collected. The saree and other material objects were sent to expert's opinion and P.W.18 has given her opinion that the hair found in the car and hairs on the dead body of the deceased are similar. She has given her opinion as per Exs.P50 and 51, which clearly establishes the case of the prosecution that the deceased was in the said car and she traveled in the said car. He further submits that the key of the car was seized from accused No.4 Kariya in the presence of P.W.6 and P.W.10 under Ex.P4, which is established from the oral evidence of P.Ws.6 and 10. Referring to the post mortem report and the oral evidence of the Doctor who conducted autopsy over the dead body of the deceased, learned Addl. SPP submits that the doctor has given the cause of death as 'death is due to Asphyxia as a result of Smothering and signs of sexual intercourse are present'. All these materials produced by the prosecution before the trial Court were properly appreciated and considered by the learned Sessions Judge 15 and he has rightly come to the conclusion in holding that prosecution has proved the charges beyond all reasonable doubt and has rightly convicted all the accused persons. No illegality has been committed nor there is any perverse or capricious view taken by the learned Sessions Judge in coming to such conclusion. Hence, submitted to dismiss both the appeals.
8. We have perused the grounds in the memorandum of both the appeals, judgment and order of conviction passed by the learned Sessions Judge, oral evidence of prosecution witnesses, so also, the documents produced during the course of trial. We have also perused the decisions relied upon by the learned counsel for the appellants referred to above and the principles enunciated in the said decisions. We have also considered the oral submissions made by learned counsel for the appellants in both the appeals and also the learned Additional State Public Prosecutor for the respondent-State. 16
9. In order to ascertain as to whether the conclusion arrived at by the learned Sessions Judge in holding that prosecution has proved its case beyond all reasonable doubt is in accordance with law and the materials placed on record, let us examine the prosecution material produced before the trial Court.
10. It is an admitted fact even according to the case of the prosecution that there are no direct witnesses to the prosecution case and case totally rests on circumstantial evidence. One of the circumstances is the last seen theory. According to the prosecution deceased Kumuda was seen in the company of the accused persons. In this connection, prosecution has examined two witnesses P.Ws.4 and 5.
11. P.W.4 one Kemparaju has deposed in his evidence in the examination-in-chief that C.W.2 Umesh and C.W.3 Appaji are known to him. They are from 17 Chatra village and stay nearby his house. He knew Kumuda, wife of Umesh and daughter of Appaji. She has expired. She was serving as a teacher in Basavanapura school and was also staying in the same area where P.W.4 was staying. From Chatra village, Basavanapura school where deceased was working as a teacher is at a distance of 8 kms. She used to travel in the bus to the school. On 1.8.2009 at about 7.00 a.m. he was standing at Bidadi bus stand along with one Jayaramanna and were talking to each other. Kumuda was also present there. One Indica car came there and Kumuda was talking to the inmates of the car. The said car belonged to Lokesh of Chatra village and was bearing No.KA42 2522. Since Kumuda was talking to the inmates of the car, he noticed the number of the car. Since himself and Lokesh are also staying in the same area, he also had taken the said car on hire basis sometimes. Therefore, he is acquainted with the car number. When Kumuda was talking, four persons were present in the said car. Accused persons present 18 before the Court were the persons in the car but he does not know who was the driver of the said car. Kumuda has boarded the car and went in the said car. Before Kumuda boarding the said car, two persons came in a scooter to the said place and those two persons were also talking to the persons sitting in the car. After three days of Kumuda going in the said car he came to know that Kumuda expired. He also came to know that she was raped and murdered. He has further deposed that on 4.8.2009 police came and called him to the Bidadi police station. There police have shown him four persons who were present before the Court and asked as to whether those persons present in the car and after seeing them, he deposed that they are the persons who were present in the car. Husband of Kumuda gave complaint to the police and he had also accompanied him to the police station.
In the cross-examination this witness has deposed that from Baaredoddi, Chatra village is at a distance of half km. He knows Appaji since 15 years. He admitted 19 that he is the resident of Baaredoddi village and doing real estate business in Bidadi, but does not possess licence for the said business. On that day himself and Appaji went to the police station at 3.00 p.m. and police enquired him at 3.00 p.m. When he was so enquired, he has not stated before the police whether Jayaramu-P.W.5 was with him or not and has also not stated before the police about the two persons coming in a scooter on that day. He has not stated before the police that Kumuda was talking to the persons in the car, but he has stated that she boarded the said car. He has deposed that he does not know what Kumuda spoke to the said two persons who came on scooter, but has stated that the said scooter came before Kumuda boarding the car. He knows that there is difference between motorcycle and scooter. He does not know the number of the said scooter. When he went to the police station along with Appaji he has not at all stated the facial features of the persons in the car. He has stated that the timings of Kumuda and himself going to 20 their respective jobs are different. He has not stated before the police that the person who came on the motorbike told Kumuda that he would drop her, for which she refused. He has deposed that he was standing at a distance of 10 ft. from the place where Kumuda was standing. He does not know which colour dress the persons in the car wore and in the said car who sat by the side of whom. He does not know what Kumuda spoke to the persons in the car and also has not seen the documents about Lokesh being the owner of the said car. He has admitted that the car run on hire basis will have a yellow colour number plate and also admitted that at Bidadi many number of cars and buses ply and it is a crowded place. He has deposed that it is difficult to remember the numbers of such vehicles, but he remembers the numbers of some of the vehicles belonging to the said area. He has deposed that the number plate of the said car was in white colour. He has admitted as true that the car having white colour number plate cannot be run on hire basis. He has stated 21 that he does not know what is written in the complaint of Appaji and what the police have enquired with Appaji. He has denied the suggestion that himself and Appaji are friends and in order to help Appaji he is giving false evidence.
12. P.W.5 Jayaramu has deposed in his evidence in the examination-in-chief that he has seen retired ASI Umesh. He has also seen Appaji, son-in-law of said Umesh. He has seen Kumuda, W/o Appaji. The house of Appaji and Kumuda is at a distance of 3 ft. from his house and Kumuda is no more and during her lifetime she was serving as a teacher in Basavanapura School. He knows all the four accused persons present before the Court. Out of the said accused persons, Ravisha and Kariya were working in his chicken shop. This witness has identified accused Nos.3 and 4 before the trial Court. He has also deposed that other two accused persons used to come to his shop in order to see accused Nos.3 and 4. All the four 22 accused persons are of the native of Basavanapura. He knows Lokesh of his village and said Lokesh lends car for travel purpose. Lokesh was the driver of the said car earlier and thereafter, accused No.4 Kariya was driving the said car. He knows C.W.5 Kemparaju and Shivappa.
P.W.5 has further deposed that about 6-7 years back on the morning at 7.15 hours, he saw Kumuda at Bidadi bus stand. Himself and Kemparaju (P.W.4) came to the said place on two wheeler vehicle. P.W.5 was talking with his friend Shivappa. Kumuda was also standing there. There was one white colour car at the bus stand. From the said car, one person was calling the teacher. Then he went close to the said car to see the said persons and all the accused persons before the Court were in the said car and they were telling that they will give drop to her and that they are going to the village. In the meanwhile, one person came on the two wheeler vehicle also told Kumuda that he will give drop to her. Kumuda told that the car is moving towards the village and that, she will go in the said 23 car and accordingly, she boarded the car and the car proceeded. P.W.5 has further deposed that he came to know that on the 2nd date, the said Kumuda expired. After two days, he went to Bidadi police station. All the four accused persons present before the Court were in the police station. He informed the police inspector that they are the persons who went in the park along with the deceased. He came to know that they committed rape on her and thereafter, they committed her murder.
In the cross examination, P.W.5 has deposed that accused Nos.3 and 4 were working under him. He has not informed the Labour Department about the same because they were working on daily basis getting coolie and hence, he has not informed. They were working under him since 4-5 years. He admitted the suggestion that he is not having any documents to show that they worked under him on the daily wages basis. Accused Nos.3 and 4 came to his shop in the year 1992-93, but he does not remember the year correctly. P.W.5 has deposed that one 24 Mahadevu was running a hotel. The said Mahadevu was knowing about accused Nos.3 and 4. The police have not enquired with him. On 4th, he informed the police. On that day, he alone went to the police station but he does not remember the time. On that day, he was in the police station for about 15 minutes. He had not informed the police that accused Nos.3 and 4 were working under him. He had also not informed the police that accused Nos.1 and 2 were going to shop to see accused Nos.3 and 4. Even he had not informed the police that he was running the chicken shop. Bidadi bus stand is about 200 feet from the police station. He does not remember the scooter number of Kemparaju. He admitted the suggestion that Bidadi bus stand is by the side of Bidadi High way, and good number of vehicles were plying. He cannot say in which year accused Nos.3 and 4 were working under him and on which date the two other accused persons came to his shop. But he was having the acquaintance with the said two accused persons. The other two accused persons 25 were visiting his shop. He has admitted that he had not informed the police about this in his statement. He has admitted that there are good number of vehicles plying to Basavanapura from Bidadi. He has not seen that Kumuda was traveling in the bus everyday. He does not know that news item was published in the news paper showing that the conduct of deceased Kumuda was not good. On that day, only one person came on the scooter, but he did not observe the colour of dress worn by the person. He does not know the number of the said vehicle. The person came on the scooter was aged between 25 and 30 years, and he was the middle aged person. P.W.5 has further deposed that he did not raise any suspicion on the persons as to why they told Kumuda that they will give drop to her. Out of 4 persons, one person in the car called Kumuda. He does not know the name of the said person. Accused No.4-Kariya was driving the car. The others were in the hind seat of the car. He does not know the colour of the clothes worn by Kariya. He has deposed that he was 26 questioned that he has not at all stated before the police that there were four persons in the car and they called Kumuda Teacher. For that, the witness answered that on 4th itself, he has informed about the same and on that day, he had not seen the Tata Sumo Vehicle. He denied the suggestion that he has deposed falsely that accused Nos.3 and 4 were working in his shop and other accused persons were coming to see accused Nos.3 and 4. On that day, the police have not conducted mahazar in his presence. He denied the suggestion that as himself and Appaji belong to the same village, in order to help him, he is giving the false evidence. He denied the suggestion that for the first time, he is seeing the accused persons. He further denied the suggestion that he identified the four accused persons as tutored by the husband of Kumuda.
13. We have also perused the evidence of H.N.Dharmendra (P.W.22), who is the Investigating Officer of this case. In his evidence, he has deposed that on 27 2.8.2009, he secured the file relating to crime No.346/2009 about missing of a women. On the same day, on the statement given by one Prakash at 6.00 a.m., he apprehended the accused Narasimha @ Kariya nearby Ramadevru Paada. He enquired the said person and he told that himself, Manjunath, Ravi, Raveesh, in order to earn money and in the guise that they will drop Kumuda to the School, picked her in TATA Indica car bearing No No.KA-42 2522. On 1.8.2009, the accused Manjunath, spoken with Kumuda and told that they will give her drop, made her to believe and took her in the car.
14. As per Ex.P.1, we have perused the evidence of P.W.22. Looking to his evidence, he has recorded the statements of P.Ws.4 and 5. This evidence was placed by the prosecution in respect of the last seen theory that these witnesses have seen the deceased Kumuda in the company of accused persons and she traveling in the said car. Looking to the evidence of these witnesses, there is 28 no consistency in their evidence. P.W.4 has deposed that when they were at the said bus stand, two persons came on the scooter before Kumuda boarding the car, whereas P.W.5 has deposed that one person came on the scooter and told Kumuda that he will drop her. The materials placed on the record and the evidence of prosecution witnesses would show that on 2.8.2009, news was spread in the entire village that Kumuda was raped and she was murdered. When that is so, and if really P.Ws.4 and 5 are said to be the witnesses that they have last seen Kumuda in the company of accused persons, then the very natural conduct is that they would have immediately rushed to the police station to give information or at least inform the complainant or the other relatives of the complainant about the same. Therefore, this conduct of P.W. Nos. 4 and 5 is abnormal conduct and not a normal conduct. Therefore, it is not safe for this Court to rely upon the evidence of such persons with abnormal conduct. P.W.4 has also contended in his cross examination that the time 29 at which he was going to the work place and Kumuda going to attend her work are totally different. Therefore, it also raises a doubt in the mind of the Court that whether really at the said time, P.Ws.4 and 5 were at the said place i.e., Bidadi bus stand. Therefore, perusing the cross examination and the answers given by P.Ws.4 and 5, it will not inspire the confidence of this Court that whether really they were present at Bidadi Bus stand and whether they had really seen Kumuda waiting there and thereafter, boarded the car belonging to accused Nos.1 to 4. Therefore, the prosecution has not placed any acceptable and worth believable materials so far as the last seen theory is concerned.
15. Now coming to the recovery of gold ornaments, it is the case of prosecution that on 3.8.2009, the police called the panch witnesses to the police station, shown the accused persons to the panch witnesses and asked the panch witnesses to identify the accused persons. It is also 30 the case of prosecution that in the presence of panch witnesses, accused Nos.1 to 3 produced the gold ornaments. The seizure mahazar is as per Ex.P.38. The timing of the said mahazar is from 7.30 a.m. to 9.00 a.m. In this connection, the prosecution has examined P.W.9.
16. Perusing the oral evidence of P.W.9, in the examination in chief, he has deposed that on 2.8.2009 at 8.30 a.m., he has seen three accused persons in the Bidadi police station. He came to Bidadi from Bengaluru. When the police called, a gold chain was in the pocket of accused Manjunath and he took out the gold chain weighing 54 grams and produced before the police. Two bangles were in the pocket of accused Ravi and he also took out and produced before the police. In the pocket of the accused Ravish, there was a gundu, which was took out and produced before the police by the said Ravish. Then writing was made and his signature was obtained. He identified the Mahazar Ex.P.38 and his signature is at 31 Ex.P.38(a). Even he has identified the material objects as per M.Os.3 and 4.
In the cross examination, P.W.9 has deposed that they went to the police station thinking that TV people will come there, but they had not come and the accused were present there. He does not know as to who were the other persons who signed the mahazar. He does not know personally what is written in the said mahazar. But he answered that he put his signature after reading the contents of the said mahazar. He does not know that out of 200 people gathered, who put their signature. He does not know as to whether all the 200 people present there had seen the accused persons Manjunatha, Ravi and Ravish handing over the gold ornaments. He went inside the police station at 8.30 a.m. and came out by 10.00 a.m. He does not know that during that time, whether all the persons put signatures to the mahazar. He does not know that before conducting the personal search of the accused persons, what the police have spoken to them and what 32 the accused persons informed the police. He does not know what type of clothes wore by these accused persons at that time. When the police searched the accused persons, they were having the ornaments. He denied the aspect that what the police have done thereof. He has deposed that except putting his signature, he does not know what the police have done with the ornaments. He does not remember as to whether the accused persons took out the ornaments from the shirt pocket or pant pocket. He denied the suggestion that when he went to police, the ornaments were on the table. He has also denied that he has not been to police station and he does not know about the seizure of the gold ornaments and he is deposing falsely.
17. The investigation officer (P.W.22) conducted mahazar under Ex.P.38 for seizure of the gold ornaments from accused Nos.1 to 3. He has deposed in his evidence at para No.22 that he enquired Manjunatha and seized the 33 gold chain from him. He seized two bangles from accused Ravi and from Ravish, he seized a pair of gundu. But according to P.W.22, mahazar proceedings for seizure of the gold ornaments from accused persons was conducted on 3.8.2009. Therefore, looking to the evidence of P.Ws.9 and 22, P.W.9 has deposed that the Mahazar was conducted on 2.8.2009 whereas P.W.22 has deposed that it was on 3.8.2009. But the learned Additional SPP made submission that the evidence was recorded after the lapse of seven years. Therefore, P.W.9 might have stated in suspicion that it was on 2.8.2009. Entire material is to be considered by the Court and not the evidence of P.W.9 in isolation. It is true that the materials are to be appreciated as a whole and the Court has to see the cumulative effect of such material. But here, if it is assumed that the date mentioned by P.W.9 as 2.8.2009 is not a correct date and it is a wrong date mentioned in his evidence, then it was duty of the Public Prosecutor at least to that extent requesting the Court to treat him as hostile 34 witness and cross examine him making suggestion that it was on 3.8.2009 and not on 2.8.2009. This exercise was not done by the Public Prosecutor and P.W.9 was not treated as the hostile witness. Therefore, the evidence of P.W.9 regarding the date on which panchaname was conducted in the police station for seizure of the gold ornaments remained unchallenged as 2.8.2009. Even with regard to the timings also, he has mentioned that he has seen the accused persons on 2.8.2009 at 8.30 a.m., whereas the contents of Ex.P.38 seizure mahazar goes to show that panchaname was in between 7.30 a.m. and 9.00 a.m. There is no consistency with regard to the time factor also. If we appreciate the evidence of P.W.9 with the evidence of the investigation officer (P.W.22), there is inconsistency in their evidence and it raises a reasonable doubt in the mind of the Court as to whether really the seizure of the gold ornaments in the police station was on 2.8.2009 as deposed by P.W.9 or it was on 3.8.2009 as 35 deposed by P.W.22. This aspect is also not clarified by the prosecution with the cogent and acceptable material.
18. The case of prosecution is that the police apprehended accused No.4 Kariya and brought him before the investigation officer for interrogation and accused No.4 gave voluntary statement as per Exs.P.1 and P.63. We perused the original records and the said exhibits. Looking to Ex.P.1, it is dated 2.8.2009 and the relevant portion in the statement is to this effect that if they come along with accused No.4, he will show the place at which Kumuda boarded the car, the place at which Ravi committed rape on her, he will also show the place at which they have committed the murder of Kumuda and he will also show the place where the dead body of Kumuda was thrown after taking out the gold ornaments from her. Ex.P.63, another further statement wherein the relevant portion is marked. In the further voluntary statement, again he repeated all those statement which he has 36 mentioned in Ex.P.1. It is also mentioned that about one year back, they got one woman of 40 years old, who boarded into the TATA Sumo vehicle and then committed her murder and thrown the dead body in SD forest area and he will point out the said place. It is also the case of prosecution that accused No.4 also handed over key of the car and at his instance, the car was seized under Ex.P.35 in the presence of panch witnesses and the key of the said car was also seized from accused No.4 under Ex.P.4 and it is marked as M.O.6.
19. So far as the seizure of the car, a panch witness Sri Prasad B.M. is examined as P.W.8. In his evidence, he has deposed that on 2.8.2009, when they crossed Bengaluru-Mangaluru national highway and proceeded towards the road leading to Tumkur, they got a turn and proceeded in the small tar road, people gathered there. The husband of Kumuda, the police, Suvarna News people and lot of people gathered there. The dead body of 37 Kumuda was lying there. It was at the distance of 20 feet from the road and it was in the midst of Anthrany plants. As there was heap of the said plants, the dead body was not visible to the road. The police conducted mahazar, the deceased wore orange coloured saree, one black colour jacket, suddenly they were not in a position to identify, but thereafter, it was informed that she was murdered at some place and then brought the dead body and thrown at the said place. He further deposed that on the same day night, the police phoned him and informed that they have to seize the car and asked him to come. Then he took his friend Nagaraja and went to Ramadevarapada. The police brought the driver of the car, one Kariya, who is present before the Court. Kariya was brought to Basavanapura. He shown the car which was in the compound of the house was TATA Indica car bearing registration No.KA-42 2522. The police have taken the said car into their possession and put his signature. He has seen mahazar 38 Ex.P.35 and his signature is at Ex.P.35(a). He also identified the photos at Exs.P.36 and 37.
In the cross examination, P.W.8 deposed that he does not know that the 200 people gathered at the said place were of which village and who called them to the said place. The police did not allow the Suvarna channel people for recording the proceeding. P.W.8 has deposed that before going to the said place, he was at Chatra of Bidadi. As the people of Chatra village were talking, he went there. Two hundred people had seen the dead body. On that day, his friend had not come along with him. He has not given the statement before the police that he went on the road. He denied the suggestion that he had not at all gone along with the police and accused No.4 Kariya had not at all pointed out the dead body so also the car and he is deposing falsely.
Another panch witness Nagaraju to seizure of the car (Ex.P.35) has not been examined before the Court. 39
P.W.8 has deposed in the cross examination that on that day, his friend had not accompanied him. This goes to show that when the panchaname under Ex.P.35 was conducted, the friend of P.W.8 was not present. At least to clarify this position, the prosecution ought to have examined another panch witness Nagaraju. Therefore, whether this panch under Ex.P.35 was conducted in the presence of both the panch witnesses or not, itself is doubtful. Looking to the evidence of P.W.8, the car which was in front of the house, as deposed by P.W.8, was seized. Therefore, Section 27 of Indian Evidence Act will not be attracted because there is no discovery and it cannot be assumed that it is because of the voluntary statement of accused No.4, the car was discovered. Anybody can see the car which was in front of the house. Therefore, the said seizure mahazar is not at all satisfactorily established, as another panch witness Nagaraj is also not examined in support of the same. The 40 evidence of P.W.8 has not inspired the confidence of the Court about the proof of the document Ex.P.35.
20. Another important aspect to be considered by this Court is that for the first time, when the missing complaint was filed by P.W.1 as per Ex.P.7, the name of the vehicle was mentioned as TATA Sumo vehicle and he has mentioned in the missing complaint that she is being picked up by a Tata Sumo, whereas during the course of investigation, the prosecution introduced another vehicle Tata Indica bearing registration No.KA-42 2522. Therefore, there is again inconsistency in the case of prosecution, that really which of these vehicles were involved in the incident. P.W.9 has mentioned that it was ascertained that she was being taken in Tata Sumo vehicle. Again it is not made clear to the Court by the prosecution as to who furnished this information to P.W.1.
21. The car which is seized in the case i.e., TATA Indica bearing Registration No.KA-42-2522 said to be 41 involved in the commission of offence itself is seized from the place i.e., Ramadevarapada and it is the residential house of Smt.Gayathramma. In front of the said house itself, as deposed by the P.W.22, the white colour TATA Indica car was parked. Accused No.4 shown the said car stating that on 1.8.2009 they took Kumuda in the said car and she was raped in the said car and the dead body was thrown. When it is mentioned by the Investigation Officer (P.W.22) that it was in front of the house of Gayathramma, the statement of said Gayathramma is not recorded. She has not been shown as the charge sheet witness. She is also not the panch witness to Ex.P.35. Therefore, this itself clearly goes to show that the Investigating Officer has selected the Panch witnesses i.e. P.W.s 1, 8 and Nagaraj according to his choice.
22. It is also the case of prosecution that the key of the said car is handed over by accused No.4-Kariya and it was seized in the presence of the panch witnesses. The 42 seizure mahazar is EX.P.4 and the key is marked as per M.O.6. We have perused the document Ex.P.4 for seizure of key of the said car. It is said to have been seized from accused No.4. The said mahazar was conducted from 8.40 a.m. to 9.00 a.m. on the said date. One Krishna and one Hanumantha are the panch witnesses, they are P.W. Nos. 6 and 10. We have perused the evidence of these two witnesses. P.W.6 has deposed in his examination in chief that he has seen accused No.4 Kariya @ Narasimha. About 7 years back, he came to Bidadi. Nearby the Police station, the people gathered. He also went, at that time, accused No.4 was in the custody of police. Police conducted his personal search and accused No.4 gave key of the car, which was in his pocket, to the police. It was the key of the Indica car. He identified the signature as per Ex.P4(b) so also he identified the key as M.O.6.
In the cross examination, he shows his ignorance when he was asked that the key like M.O.6 is available at other places also. He further deposed that he has seen 43 the said key used for the said car. He also deposed that there are no specific identification marks on M.O.6. He denied the suggestion that he is falsely deposing that he has seen M.O.6-key.
23. Hanumantha (P.W.10), another panch witness has deposed in his evidence in the examination in chief that he knows accused No.4-Kariya present before the Court. On 2.8.2009, he came to Bidadi. People gathered at police station, it was between 8.00 a.m. and 8.30 a.m. He also went there. The police conducted the personal search of Kariya and from his pocket, he took out one key which is said to be the key of the car. The police seized the said key and in that connection, they have drawn the mahazar at Ex.P4. His signature is at Ex.P.4. He identified that the said key is M.O.6.
In the cross examination, he deposed that he is staying at Hosa Doddi which is at the distance of 5 to 6 kms from Chatra village. He does not know Appaji. He is 44 knowing Kumuda. When he went to the police station, about 20 to 30 persons were present there. A question was put to the witness that if the police did not call, the witness would not have gone to police station. He answered that the people were talking that the accused were traced. For that reason, he went to police station. He has not driven the car. He admitted the suggestion that the key of the car will be different depending upon the type of the cars. When he was asked that only after using the key to a car, then only it can be said that the said key belongs to the particular car. For this, witness answered "may be". He has also deposed that after seeing the key, it can be identified that it is of a particular car. He admitted the suggestion as true that it cannot be identified and it cannot be said definitely that a key belongs to a particular company. He does not know what the police have enquired with accused Kariya and what information they got from him. When he enquired with the people gathered there, they told that they were present there since 10 45 minutes. When he put his signature, writing was already made. But after reading the contents, he put his signature. He does not know as to what is mentioned by the police in the said mahazar. When he went there, about 3/4th portion of mahazar was already written and after he reached, about 4 to 5 lines were written. He does not know as to what are those 4 to 5 lines. He was in the police station for about half an hour. When he left the police station, it was 8.50 a.m. He does not remember at what time, he left Bidadi to his village. He admitted the suggestion that the Keys like M.O.6 are available in the key makers shop. He denied the suggestion that he has not at all gone there, no such mahazar was conducted and he is deposing falsely.
24. Looking to the evidence of P.W.Nos.6 and 10 and as admitted by P.W.10, it is only after using the key of a particular car, it can be ascertained that it belongs to the said particular car. Even it is assumed that with the 46 evidence of P.Ws.6 and 10, the prosecution is able to establish the fact of the seizure of key from the possession of accused No.4-Kariya, but this itself is not said to be the proof of charges against the accused persons.
25. The prosecution has examined Lokesh kumar (P.W.14), the owner of the car, with regard to the accused receiving the said car from him on 1.8.2009. P.W.14 has deposed in his evidence that he knows the accused and he was introduced through his friend. He is having one Indica and two Omni vehicles. Indica vehicle is numbered as KA-42-2522. He has showed the said vehicle. Prakash was asking the car on hire basis as he was going to tour. On 30.07.2009 at 3.00 p.m., Prakash phoned and informed him that his party is going to Dharmasthala and they are in need of one Indica car and accordingly, he sent the said Indica car through a driver. The said driver is his friend Nagesh. He was doing the driving work, but he is no more. P.W.14 has further deposed that Prakash 47 phoned to him informing that the driver by name Narasimha will drive the car. On that day at 6.00 p.m. he sent the car through driver Nagesh, who left the said vehicle there itself. He has further deposed that on 2.8.2009 at about 10.30 a.m., he phoned to Prakash asking him as to why he has not brought the car and Prakash told that the vehicle has not yet reached and he will bring it after its arrival. On 2nd, he came to know from the people that in his vehicle, Kumuda was raped and she was murdered. On that day in the evening, he went to the police station. He came to know that the police have seized his car. He has taken the said car to his possession from the police. He has seen Exs.P.36 and P.37 which are the photos in respect of his car.
In the cross-examination, P.W.14 has deposed that till the date of his deposition in the Court, he has not given any statement before the police. He has not furnished the annual statement to the transport department telling to which places, he sends his car on 48 hire basis. In respect of his three cars, he was having FC and in respect of the three cars, he was having Karnataka State road permission. Out of three cars, he is having the number and other particulars in respect of one Indica car and one Omni car and he has not furnished the same to the police. Prakash took the car 4 to 5 times on the hire basis. He does not know as to whether the RTO department has given any permission to the said Prakash or not. He himself had not taken the car to the house of Prakash. He has given the statement that he sent the car through the driver but he has not mentioned the name of the driver as Nagesh. He has not maintained any log book. He went to the police station on 2.8.2009 for 3 to 4 times and he was there for half an hour or 45 minutes. When he executed the bond, he had not undertaken that he will not sell the car and that, he will not change the colour of the vehicle. But he admitted the suggestion as true that for selling the car, he has not obtained permission of the Court. The police have not taken his 49 number and the number of Prakash. He does not know that at which place, the photographs at Exs.P.36 and P.37 were taken and he is seeing the said photographs for the first time there. He has further deposed that he has admitted the suggestion that he is not having any document with him to show that he has sent the said car on the hire basis. At the time of sending the car, he has not mentioned in the log book that how many kilometers the car has run. He has not seen the Speedo meter of the car. He has not furnished any document to show that he is the owner of the said car. He has denied the suggestion that he is not the owner of the car. He has denied the further suggestion that he is giving the false evidence.
26. We have perused the evidence of Prakash (P.W.13). He has deposed in his evidence that along with the tailoring work, he is also doing the work of getting the vehicles on hire basis to the persons if there is any necessity for them. On that day, he secured the car from 50 P.W.14 and gave it to accused No.4-Kariya on the hire basis. His father-in-law purchased one Maruthi Swift car and registered it in his name. He does not know the driving of the car. Whenever his family members go to any place, he used to call accused No.4-Kariya. On 30.7.2009 at about 3.15 - 3.30 p.m., he told that one small car is required for their family members to go to Dharmasthala. At that time, he told that he will enquire with his friend Lokesh at Bidadi. When he phoned Lokesh, he agreed to send a car. At about 6.00 p.m., the said car was seen nearby his shop. It was bearing registration No.KA-42- 2522. On 31st, he phoned to Kariya, who said that they are at Nethravathi Lodge, Dharmasthala. On the next day, Kariya phoned from the coin booth and informed him that it may be late and he will return the vehicle during the night. After 10 minutes, he phoned and asked the person who received the phone call from the coin booth to give it to the driver. At that time, they told that it is the coin booth. On the same day i.e., on the 1st itself during 51 10.00 p.m., Kariya left the car in front the house of his father-in-law. But he did not know the same. He came to know that on 2nd, when the police came and took the car with them and that, he also came to know that the teacher of his village has been murdered. He identified the said car by seeing the photographs at Exs.P.36 and P.37 that it was taken from Lokesh.
In the cross examination, P.W.13 has deposed that since 2-3 months, he was doing the work of securing the cars and giving it on the hire basis. He deposed has voluntarily that it was the first and the last time the car was taken and provided on the hire basis. Lokesh used to go his shop, he was knowing Lokesh and for that reason, he requested Lokesh to send one car. He does not know that whenever a car having yellow number plate, sent by a owner, will be sent along with the driver. He deposed that he had noted down the name and particulars of the persons going to Dharmasthala from Kanakapura. The witness voluntarily deposed that Kariya himself was 52 present. When Lokesh brought the car nearby his shop, there was no difficulty for Lokesh to speak with the hirer in Kanakapura. When Lokesh left nearby his shop, it was 3.30 p.m. Lokesh has not shown him what is inside the car. Lokesh has not at all brought the car nearby his shop. He has not given the statement before the police. He voluntarily deposed that when the murder took place, he gave his statement. He has not stated before the police in his statement about the fact of his father-in-law informing him over the phone that Kariya brought the car and parked in front of the house. He admitted the suggestion as true that his father-in-law and mother-in law have not at all seen the said car earlier. He admitted the further suggestion that his father-in-law and mother- in-law are not knowing about the fact that he is getting the cars and sending on the hire basis. He denied the suggestion that Lokesh is not the owner of any cars and he has not sent any car. He denied the suggestion that at 53 the instance of the husband of Kumuda, he is giving the false evidence.
27. Looking to the evidence of P.Ws.13 and 14, though it is contended that with the help of such witnesses, the car was taken from Lokesh (P.W.14) by Prakash (P.W.13) and gave it to the accused person, which was seriously challenged by the defence during the course of cross examination, no material has been placed by the prosecution to show that Lokesh is the owner of the said car. No document is produced to show the ownership of the car, and also permission for him to ply the said car on the hire basis. Therefore, in the absence of such materials and only on the basis of the evidence of P.Ws.13 and 14, when their evidence was seriously challenged during the course of cross examination, it cannot be said that the person has proved its case. No log book has been maintained in respect of the distance run by the car driver. Even it is said that P.W.14 has not at all verified 54 the kilometers much less the distance the car has covered, but the materials are produced to show that the car was driven upto Dharmasthala. Therefore, all these materials, if closely scrutinized, it is difficult for this Court to accept the evidence of P.Ws.13 and 14 regarding the receiving of car by Prakash from Lokesh and giving it to the accused persons.
28. Even the evidence of P.W.14 is not consistent with the evidence of P.W.22. The evidence of P.W.22 shows that said car was left in front of the house of one Gayathramma. Whereas the evidence of P.W.14 shows that on 2.8.2009 itself, he has taken the possession of the said car from the police. Therefore, with regard to this aspect, there is no consistency in the evidence of prosecution witnesses.
29. The prosecution has relied upon the opinion of experts. In this connection, the witness P.W.18 is to be examined. P.W.18 is one Shahanaz Fathima. She is the 55 scientific officer from FSL, Bengaluru. She has deposed that she received 41 sealed articles for examination. She has deposed in detail about the said articles at para No.5 of the deposition. After examining those articles, she has given her opinion. She has further deposed that the scientific report that is furnished is also having the signature of the Assistant Director and the said report is submitted to the concerned police. The said report is as per Ex.P.50 and her signature is Ex.P.50(a). The witness identified the signature of the Assistant Director as per Ex.P.50(b) and (c). In connection with the hair is concerned, she has submitted her report on 18.08.2010. The items mentioned in Sl. Nos.1 to 4, 11 to 15 were examined through Microscope. The hairs present in the items at Sl. Nos.2 and 13 are having the same characteristics. Accordingly, she furnished her report. She sent the report and it is marked as per Ex.P.51 and her signature is as per Ex.P.51(a) and the signature of the Assistant Director is Ex.P.51(b) and (c). P.W.18 has 56 further deposed that after the examination, again, she packed and sealed the said articles in the FSL and sent it to the concerned police. She identified those articles and they are M.O. Nos.1 and 5, 7 to 11.
In the cross examination, P.W.18 has admitted the suggestion as true that the hairs mentioned in the item at Sl. Nos.1 to 4, 11 to 15 are not having the similar characteristics. She does not remember as to how many days after sending the articles, she submitted the report. She admitted the said suggestion that there were no similar characteristics in the hairs mentioned in the item at Sl. Nos.1 to 4 or at Sl. Nos.11 to 15. Therefore, the said evidence will not come to the aid and assistance to the case of prosecution in proving its contentions.
30. We have also perused the evidence of Dr. G.B. Chandan (P.W.19), who conducted autopsy over the dead body of the deceased. Looking to his evidence, P.W.19 has deposed about the injuries he has noticed. He has also 57 deposed that all the internal organs are intact and normal, except lungs. The lungs are intact but congested. He has also mentioned in the report that the final opinion regarding the cause of death is reserved for FSL report. After the receipt of the FSL report, he has given his opinion and in the opinion, he has mentioned that the cause of death is due to asphyxia as a result of smothering and signs of sexual intercourse are present. The PM report is at Ex.P.52 and signatures are at EX.P.52(a) and (b). In Para 13, P.W.19 has deposed that when sexual intercourse is committed against the will of the victim and when she protested for the same, there will be possibility of sustaining the injuries as mentioned in Ex.P.52.
In the cross examination, P.W.19 has deposed that a person, if falls from a moving bus, there will be possibility of sustaining the abrasion injuries as mentioned in Ex.P.52. But, there is no possibility of the injuries on the lips and also inside the thighs. When P.W.19 was asked 58 that if four persons caught hold the upper limbs of a woman, whether there is possibility of pattern imprints, for this, he answered that he has not mentioned about the same in Ex.P.52. P.W.19 has also deposed that they have to examine the position of tongue as mentioned in Modi's Jurisprudence and Narayan Reddy Jurisprudence Book, in case the death is caused due to asphyxia. He has also stated that he might have read the said books, but he has forgotten. He has denied the suggestion that during his examination, he has furnished the false information.
31. We have perused the PM report at Ex.P.52. Looking to the impugned judgment and order, the Court below has acquitted the accused persons from the charge under Section 376 (2)(g) of IPC. But it is submitted by the learned Additional SPP that as on today, the State has not preferred any appeal challenging the acquittal of the accused for the said offence punishable under Section 376 of IPC. We have also perused the decision of the Hon'ble 59 Supreme Court relied upon by the learned Counsel for the appellant in case of SANGILI ALIAS SANGANATHAN -VS- STATE OF TAMIL NADU reported in (2014) 10 SCC 264. In the head note, it is mentioned as under:
"Evidence of last seen together not established - Motive based on hearsay - Recovery of dead body, murder weapon, held, not enough where chain of events incomplete - Conviction reversed - Held, suspicion however strong, held, cannot be a substitute for proof - Appellant entitled to benefit of doubt".
32. We have carefully perused the factual matrix and also the principles laid down in the said decision. As we have already observed that the last seen theory of the deceased with the company of the accused persons and she boarding into the car has not satisfactorily been established by the prosecution with the worth believable and cogent materials, we are of the opinion that the said decision squarely applicable to the case on hand. Even we have perused the judgment and order of the Court below 60 in respect of the recovery of the articles. The recovery of articles is also not established as there is inconsistency in the evidence of P.Ws.9 and 22. Under such circumstances, it is difficult for this Court to accept the contentions of the prosecution and also to confirm the judgment and order of conviction passed by the Court below. In order to bring home the guilt of the accused when the case rests on circumstantial evidence, prosecution has to prove all the circumstances on which it relies upon and such circumstances brought out must inevitably and exclusively pointed out the guilt of the accused and no circumstances which may reasonably be considered consistent with the innocence of the accused. This proposition of law has been laid down by the Hon'ble Supreme Court in case of UMEDBHAI JADAVBHAI Vs. THE STATE OF GUJARAT reported in AIR 1978 SC 424, wherein at paragraph No.7, it has been observed as under:
"It is well established that in a case resting on circumstantial evidence all the 61 circumstances brought out by the prosecution, must inevitably and exclusively point to the guilt of the accused and there should be no circumstance which may reasonably be considered consistent with the innocence of the accused. Even in the case of circumstantial evidence, the Court will have to bear in mind the cumulative effect of all the circumstances in a given case and weigh them as an integrated whole. Any missing link may be fatal to the prosecution case."
Keeping in view the ratio cited supra and facts and circumstances, prosecution has not made out a case to prove all the circumstances with worth believable evidence. As discussed above, the Court below has not at all taken into consideration all these material aspects and wrongly read the entire material and wrongly proceeded in holding that the prosecution has proved the case beyond all reasonable doubt and accordingly, convicted the appellants - accused herein. Hence, the judgment and order of conviction passed by the Court below so far as the 62 appellants herein is not in accordance with the materials placed on record. The judgment and order of conviction suffers from the serious legal infirmities and not sustainable in law.
33. Accordingly, we allow both the appeals. The judgment and order of conviction and sentence dated 20.12.2017 passed by the III Additional District and Sessions Judge at Ramanagara in S.C. No.129/2009 as against the appellants-accused Nos.2 and 1 for the offences punishable under Sections 364, 302, 392, 201 read with Section 34 of IPC is hereby set aside. The appellants-accused Nos.2 and 1 in the above appeals are acquitted from the charges leveled against them.
The jail authorities are hereby directed to release the appellants-accused Nos.2 and 1 forthwith, if not required in any other case.
63
Registry is hereby directed to send the operative portion of this judgment to the concerned prison authorities immediately.
Since the appeals are disposed of, I.A. No.2/2018 filed in Crl.A. No.982/2018 does not survive for consideration and it is accordingly rejected.
Sd/-
JUDGE Sd/-
JUDGE Bkp/cs