Karnataka High Court
Annaiah vs The State Of Karnataka on 7 July, 2023
Author: K.Somashekar
Bench: K.Somashekar
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CRL.A No.1156 of 2017
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 7TH DAY OF JULY, 2023
PRESENT
THE HON'BLE MR JUSTICE K.SOMASHEKAR
AND
THE HON'BLE MR JUSTICE RAJESH RAI K
CRIMINAL APPEAL NO.1156 OF 2017
BETWEEN:
ANNAIAH
S/O. CHAKU PUTTANNA,
AGED ABOUT 48 YEARS,
R/AT GANDATHARU VILLAGE,
H.D. KOTE TALUK,
MYSURU DISTRIC-570 001.
...APPELLANT
(BY SRI. LETHIF B., ADVOCATE)
AND:
THE STATE OF KARNATAKA
BY H. D. KOTE POLICE,
Digitally signed
MYSURU DISTRICT,
by REP. BY SPECIAL PUBLIC PROSECUTOR,
GAVRIBIDANUR HIGH COURT COMPLEX BUILDING,
SUBRAMANYA
GUPTA BANGALORE-560 001.
SREENATH ...RESPONDENT
Location: HIGH
COURT OF (BY SRI. VIJAYAKUMAR MAJAGE, ADDL. SPP)
KARNATAKA
THIS CRL.A IS FILED U/S.374(2) CR.P.C, PRAYING TO
SET ASIDE THE JUDGMENT AND ORDER OF CONVICTION AND
SENTENCE DATED 12.6.2017 AND 13.6.2017 PASSED BY THE
II ADDITIONAL SESSIONS JUDGE, MYSURU IN
S.C.NO.222/2012 - CONVICTING THE APPELLANT/ACCUSED
FOR THE OFFENCE P/U/S 302 OF IPC.
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CRL.A No.1156 of 2017
THIS APPEAL, COMING ON FOR FURTHER ARGUMENTS,
THIS DAY, RAJESH RAI K., J., DELIVERED THE FOLLOWING:
JUDGMENT
This appeal, by the convicted accused, is directed against the judgment of conviction dated 12.06.2017 and order of sentence dated 13.06.2017 passed in S.C.No.222/2012 by the II Additional Sessions Judge, Mysuru, wherein the appellant-accused sentenced to undergo simple imprisonment for life and pay a fine of Rs.1,000/- for the offence punishable under Section 302 of IPC and in default of payment of fine, directed to undergo simple imprisonment for a period of 10 days.
2. The case of the prosecution in brief is that the accused was the friend of deceased by name Sri.Ramesh. On 29.11.2011 at about 01.00p.m. when the deceased was in his house, the accused approached him and requested the deceased to accompany him to hand post. The deceased initially refused, however, on account of persuasion by the accused, the deceased accompanied -3- NC: 2023:KHC:23580-DB CRL.A No.1156 of 2017 him. At night only the accused returned to the village but the deceased did not return. Thereafter, the wife of deceased (PW-1), father of the deceased (PW-6) and also the brother of the deceased searched for him, however they did not find. When they enquired the accused, he gave inconsistent and evasive replies raising suspension against the accused.
3. It is the further case of the prosecution that the family members of the deceased searched the deceased for about 3-4 days and on 02.10.2011 a dead body of male was found floating in the backwater of Taraka Dam and PW-11 informed the same to the villagers and thereafter, the Police drawn the mahazar as per Ex.P-3 in the presence of PW-16 and the same was informed to the family members of the deceased and the family members were identified the dead body that of the deceased. Accordingly, on 03.10.2011, the wife of the deceased (PW-
1) lodged the complaint before the respondent-Police as per Ex.P-1 alleging about the foul play against the -4- NC: 2023:KHC:23580-DB CRL.A No.1156 of 2017 accused; based on the same, the said police registered the FIR in Crime No.326/2011 dated 03.10.2011 against the accused for the offence punishable under Section 302 of IPC. Thereafter, the Investigating Officer conducted the investigation and arrested the accused and based on his voluntary statement, the motorbike was seized and thereafter by collecting the necessary documents and recording the statement of witnesses, the Investigating Officer laid the charge sheet against the accused for the offence punishable under Sections 302, 201 of IPC before the committal Court. On committal of the case to the Court of Sessions, the Sessions Judge framed the charge against the accused for the aforesaid offences and read-
over to him, however, the accused pleaded not guilty and claims to be tried.
4. In order to bring home the guilt of the accused before the trial Court, the prosecution, in total, examined 34 witnesses as PWs.1 to 34, so also got marked 33 documents as Exs.P-1 to P-33 and 4 material objects as -5- NC: 2023:KHC:23580-DB CRL.A No.1156 of 2017 MOs.1 to 4. After concluding the prosecution side, the Sessions Judge read-over the incriminating portion of the evidence deposed by the witnesses to the accused as contemplated under Section 313 of Cr.P.C., however, the accused denied the same. During the course of evidence, the defence counsel marked 2 documents as per Exs.D-1 & D-2 in favour of the defence. However, the accused did not choose to examine any witness in his favour.
Accordingly, based on the evidence and material available on record, the Sessions Judge convicted the accused by the impugned judgment for the charges leveled against him as stated supra. The said judgment is challenged under this appeal.
5. We have heard Sri.Lethif B., learned counsel for the appellant-accused and Sri.Vijaykumar Majage, learned Additional State Public Prosecutor for the respondent- State.
6. Sri.Lethif B., learned counsel for the appellant would vehemently contend that the judgment under this -6- NC: 2023:KHC:23580-DB CRL.A No.1156 of 2017 appeal suffers from perversity and illegality, since the Sessions Judge failed to consider the material aspects and convicted the accused without appreciating the evidence available on record, as such, the judgment under appeal is liable to be set-aside. Learned counsel further contended that the prosecution even failed to prove the very homicidal death of the deceased and the other circumstances relied upon by the prosecution. The Sessions Judge convicted the accused only based on assumptions and presumptions, as such, the judgment under appeal is liable to be set-aside. The Learned counsel has further contended that since the entire case rests on circumstantial evidence, it is the duty of the prosecution to prove the guilt of the accused beyond all reasonable doubt by proving each of the circumstances which is relied upon by the prosecution. However, in the present case, though the prosecution made an attempt to prove the circumstances of last seen theory and motive for the incident, however those circumstances are also not clearly proved beyond all reasonable doubt and except that none -7- NC: 2023:KHC:23580-DB CRL.A No.1156 of 2017 of the circumstances are proved by the by prosecution by leading cogent evidence, more so, when the death of the deceased itself is in dispute, the other circumstances cannot be considered to convict the accused for the offence charged against him. Accordingly, prays to allow the appeal.
7. In support of his contention, learned counsel for the appellant-accused relies on the following decisions:
i. (2002) 8 SCC 45 in the case of Bodhraj @ Bodha and others vs. State of Jammu and Kashmir;
ii. (2016) 12 SCC 251 in the case of
Rambraksh @ Jalim vs. State of
Chhattisgarh;
iii. 2023 SCC Online SC 32 in the case of Jabir and others vs. State of Uttarakhand;
iv. (2018) 16 SCC 102 in the case of Ravi and another vs. State of Karnataka; and v. 2022 SCC Online SC 705 in the case of Chandrapal vs. State of Chhattisgarh.-8-
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8. Refuting the above submissions made by the learned counsel for the appellant-accused, Sri.Vijaykumar Majage, learned Additional SPP would submit that the judgment under appeal does not suffer from any perversity or illegality and the same is based on the evidence available on record. The Sessions Judge, after thoroughly appreciating the evidence available on record, convicted the accused for the offences charged against him. He would further contend that though the Doctor, who examined the dead body of the deceased, issued the report as per Ex.P-11 and due to decomposition of the dead body, he was unable to give any opinion in respect of cause of death but inference can be drawn by considering the overall circumstances of the case, the accused himself pushed the deceased to Taraka Dam, as such, the death was caused by drowning. He would further contend that the prosecution successfully proved the last seen theory by leading the cogent evidence of PWs-1, 2, 6, 9, 24, 25 & -9- NC: 2023:KHC:23580-DB CRL.A No.1156 of 2017
26. All these witnesses have categorically deposed that the accused forcibly took the deceased in his motorbike on the relevant date and thereafter the deceased was not found anywhere, in such circumstances, the accused has to explain the circumstance when he left the company of the deceased as per the provisions contemplated under Section 106 of the Indian Evidence Act. Since the said aspect was well within the special knowledge of the accused, if the accused failed to explain that circumstance, then the Court can draw inference against the accused as per provision under Section 114 of the Indian Evidence Act. As such, learned SPP contended that the prosecution proved the last seen theory. Moreover, according to the learned SPP, the evidence of PW.1 clearly prove the motive for the alleged incident. According to the prosecution, the accused has obtained hand loan of Rs.4,500/- from the deceased and when the deceased was insisting to repay the same, for which the accused had conspired to eliminate the deceased and thereby, on the fateful day, he executed his plan and took the deceased in
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NC: 2023:KHC:23580-DB CRL.A No.1156 of 2017 the motorbike belonging to PW.34 (brother of the accused) and made him to consume alcohol and thereafter taken into Taraka dam and when the deceased was attending the nature call, the accused pushed from his behind to the Nala connecting to the Tarka dam. This aspect of the matter is proved by the evidence of PWs.1,2 and 6. Further, on perusal of the evidence of PWs.9 and 10, it is clear that those witnesses also categorically deposed that the accused and the deceased were traveling in the motorbike on that fateful day and thereafter the deceased was not found and the accused alone returned. In such circumstances, the prosecution proved the guilt of the accused beyond reasonable doubt that the accused alone was the perpetrator of the crime and he committed the murder of the deceased. Accordingly, the learned SPP prays to dismiss the appeal.
9. We have bestowed our anxious consideration to the submissions made by the learned counsel for the
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NC: 2023:KHC:23580-DB CRL.A No.1156 of 2017 appellant so also the learned SPP for the State and also the evidence on record, including the trial Court records.
10. In the facts and circumstances of the case and in the light of the submissions made on both the parties, the points that would arise for our consideration are:
i) Whether the impugned judgment and order suffers from any perversity or illegality ?
ii) Whether the learned Sessions Judge is justified in convicting the appellant/ accused for the offences punishable under Sections 302 and 201 of IPC ?
11. This Court being the appellate Court, re- appreciation of the entire evidence available on record is very much required. On cursory glance, the evidence adduced before the trial Court is as under:
i) PW.1/Rathnamma who is none other than wife of the deceased lodged the complaint before the Police on 3.10.2011 alleging
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NC: 2023:KHC:23580-DB CRL.A No.1156 of 2017 that on 29.9.2011 at about 1.00 p.m. accused and the deceased went to Handpost in a bike and thereafter her husband did not return to home. She also deposed that the accused had obtained hand loan of Rs.4,000/- from her husband and failed to return the same. On that context, the accused might have committed the murder of the deceased. However, this witness was not cross- examined by the counsel appearing for the accused.
ii) PW.2/Govinda is brother-in-law of the deceased. He also deposed before the Court that on 29.9.2011 the accused and the deceased went in a motorbike and thereafter the deceased did not return to home. He further deposed that all the family members have made an attempt to
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NC: 2023:KHC:23580-DB CRL.A No.1156 of 2017 search the deceased and they finally found the dead body in the Taraka dam on 2.10.2011 in a decomposed condition.
(iii) PW.3/Chandregowda is the Village Panchayath Member. He also deposed similar to that of PWs.1 and 2 in respect of last seen theory so also the identification of the dead body in Taraka dam on 2.10.2011.
(iv) PW.4/R. Thimmegowda is the signatory for Ex.P6 under which MOs.1 to 4 i.e, the clothes worn by the deceased were seized. He identified the motorbike in which the accused taken the deceased on 29.9.2011.
(v) PW.5/N. Prabhakar is the Motor Vehicle Inspector, who issued Ex.P8 that the motorbike in which the accused and the
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NC: 2023:KHC:23580-DB CRL.A No.1156 of 2017 deceased travelled was in a fit condition to travel.
(vi) PW.6/Kalegowda, who is the father of the deceased also deposed on par with PW.1 in respect of last seen theory. He deposed that the accused and the deceased went together and travelled together on 29.9.2011 in the motorbike and thereafter, on enquiry, the accused gave evasive answers and tried to avoid the family members of the deceased.
(vii) PW.7/Narayana, who is the brother-in-law of the deceased is a hearsay witness and he identified the dead body near Taraka Dam. He also identified MOs.1 to 3 i.e, clothes of the deceased.
(viii) PW.8/Javaregowda, who is the relative of the deceased and hearsay witness of the prosecution deposed that he came to
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NC: 2023:KHC:23580-DB CRL.A No.1156 of 2017 know death of the deceased through the family members.
ix) PW.9/Sannashetty has also deposed that he had seen the accused and the deceased traveling on 29.9.2011 i.e, the last seen theory.
x) PW.10/Venkategowda has also deposed similar to that of PW.9 that the accused and the deceased were traveling together on 29.9.2011. However, he has turned hostile to the prosecution case.
xi) PW.11/Manju has deposed that he found the unidentified dead body in Taraka dam on 2.10.2011 at about 7.45 a.m. and informed the same to the Police and PW.16 and thereafter PW.16 drawn the mahazar to that effect near the dam.
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xii) PW.12/Lakshmi is the sister of the deceased. She is also hearsay witness to the prosecution case. She deposed that she came to know about the incident through her mother and father.
xiii) PW.13/Dr. K. Handa is the Medical Officer, who conducted autopsy over the dead body and issued the post-mortem report as per Ex.P11. However, he was unable to say cause of death for the reason that the dead body was in a decomposed condition and even after obtaining FSL report, he was unable to give any opinion in respect of cause of death. He has given clarification as per Ex.P25 that if a person in intoxicated state pushed by a person from his behind to the river, the death could be caused by drowning.
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xiv) PW.14/Kruthika .N is the Scientific Officer who has issued the FSL report as per Ex.P12 stating with regard to presence of alcohol in the stomach of the deceased.
xv) PW.15/Mahadevamma is the Police Constable who carried FIR and the charge sheet from the Police Station to the Court.
xvi) PW.16/Basavaraju is also the Police
Constable who conducted inquest
panchanama as per Ex.P3 at the place of the incident.
xvii) PW.17/M. Nanjegowda is the Police Constable who apprehended the accused on 3.1.2012 (i.e., after three months) and produced before the Investigating Officer. xviii) PW.18/C. Malik is the Police Inspector who conducted the investigation in the case and collected all the materials and
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NC: 2023:KHC:23580-DB CRL.A No.1156 of 2017 also recorded the statements of all the witnesses and thereafter handed over the case to PW.20 for further investigation. (xix) PW.19/Dr.Chayakumari, who is the Scientific Officer has examined the clothes of the deceased /MOS.1 to 4 and issued the report as per Ex.P17 and opined that there were no blood stains found in those articles.
(xx) PW.20/H. Govindaraju is the Circle Inspector of Police, who conducted further investigation in the case and obtained FSL report and also post-mortem report from the Scientific Officer and the doctor. He seized the motorbike which is used for commission of the offence as per Ex.P21. He also recorded the statements of some of the witnesses in this case.
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NC: 2023:KHC:23580-DB CRL.A No.1156 of 2017 (xxi) PW.21/Natraj G.R. is the Police Sub-
Inspector who received the complaint as per Ex.P1 from PW.1 on 3.10.2011 and registered the FIR as per Ex.P13.
(xxii) PW.22/S.J. Pradeep and PW.23/Nanjegowda are the witnesses for drawing of mahazar as per Ex.P22 at Sogalli gate. However, they have not supported the case of the prosecution. (xxiii) PWs.24 to 27 are mother, brothers and brother-in-law of the deceased. PW.26, who is one of the brothers of the deceased appears to be a hearsay witness. PW.24 and 25 are the direct witnesses to the accused taking the deceased and also about conduct of the accused.
(xxiii) PW.27 is the witness to the reply/misleading statement given by the
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accused when enquired about
whereabouts of the deceased. However,
this witness has not supported the case of the prosecution.
(xxiv) PW.28/Doddakabujegowda, who is a circumstantial witness turned hostile to the prosecution case.
(xxv) PW.29/Devesegowda appears to be an uncle of the accused. He has also turned hostile to the prosecution case.
(xxvi) PW.30/Venkatesh is also witness who deposed about accused taking the deceased on the relevant date and searching for the deceased.
(xxvii) PW.31/Kusegowda, PW.32/Madesha and PW.33/Mohan were the witnesses for accused and the deceased consuming liquor and having food on 29.9.2011 in
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NC: 2023:KHC:23580-DB CRL.A No.1156 of 2017 the wine shop and hotel. However, all these witnesses have turned hostile to the prosecution case.
(xxviii) PW.34/Shivaraju is brother of the
accused, who owns a bike bearing
Registration No.KA-05-EV-3813 in which the accused alleged to have taken the deceased on the fateful day.
12. On careful examination of evidence of the above witnesses, in order to prove the homicidal death of the deceased, the prosecution relied upon the evidence of the doctor/PW.13 so also the post-mortem report/Ex.P11. According to the doctor, who conducted post-mortem examination, the body of the deceased was decomposed and she has observed even peeling of skin of hands and maggots presence in body of the deceased. She opined that the death occurred more than 48 hours prior to her examination. The prosecution also relied upon the inquest
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NC: 2023:KHC:23580-DB CRL.A No.1156 of 2017 report conducted on the dead body as per Ex.P5 and also the statements of PW.6/father of the deceased and PW.1/wife of the deceased and PW.2/brother-in-law of the deceased, who have identified the dead body as that of the deceased. Admittedly, the body of the deceased was decomposed and the doctor failed to give any opinion in respect of cause of death. Even after examination by the Scientific Officer/PW.14 and after obtaining his report as per Ex.P12, the doctor/PW.13 who conducted the autopsy failed to give any opinion in respect of cause of death. On perusal of the impugned judgment passed by the trial Court, the learned Sessions Judge opined that on the fateful day, the deceased was under intoxication of the alcohol and the accused pushed the deceased into the canal i.e., Taraka dam and thereafter, the dead body of the deceased was found after four days of the incident in the decomposed condition in the back water of Taraka dam. Under such circumstances, the learned Sessions Judge opined that one cannot expect positive evidence from the medical science to prove the murder with specific
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NC: 2023:KHC:23580-DB CRL.A No.1156 of 2017 signs of pushing the intoxicated person in the water and hence, inference can be drawn that the death of the deceased is homicidal one. Accordingly, the learned Sessions Judge answered point No.1 which is raised by him for his consideration. But on careful perusal of evidence of the doctor/PW.13 and the Scientific Officer/PW.14, there is no specific opinion by them, in respect of cause of death of the deceased. Without any such specific opinion by the doctor and the Scientific Officer, the inference cannot be drawn that the death is a homicidal one. It is settled position of law by the judgment rendered by the Hon'ble Supreme Court in the catena of cases that while appreciating the evidence, suspicion however grave may be, cannot take place of a proof. There is a long distance between "may be" and "must be". The said principle laid down by the Hon'ble Apex Court in the case of Narendra Singh and another
-vs- State of M.P. reported in (2004)10 SCC 699. Moreover on perusal of the report issued by the FSL Officer as per Ex.P14 about the death, it could be seen
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NC: 2023:KHC:23580-DB CRL.A No.1156 of 2017 that alcohol contents present in the dead body. It is the case of the prosecution that the accused and the deceased traveled together and the accused made the deceased to consume alcohol and thereafter the deceased was not found. In such circumstances, there is every possibility of the deceased himself committing suicide or met with an accidental death. Without appreciating the said aspect, the learned Sessions Judge has come to the conclusion that the death was homicidal one. The same cannot be sustained. Hence, in our considered opinion, the prosecution failed to prove the homicidal death of the deceased in this case.
13. As far as the circumstance of last seen theory is concerned, the prosecution relied upon the evidence of PWs.1,2,6, 24, 25 and 26 to prove the said circumstance. As far as the evidence of PWs.1 to 4 are concerned, they are not cross-examined by the defence counsel. As far as the last seen theory is concerned, there is consistent evidence that the accused and the deceased travelled
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NC: 2023:KHC:23580-DB CRL.A No.1156 of 2017 together in the motorbike on the fateful day from the house of the deceased to Handpost at about 1.00 p.m. It is the case of the prosecution that the death was caused at about 8.30 p.m. Admittedly, it is the case of the defence that the accused left the company of the deceased at Handpost by giving Rs.50/- to him. It is admitted case of the prosecution in the evidence of PWs.2, 12 and 25 that the accused left the company of the deceased at Handpost by giving Rs.50/-. As far as the last seen theory is concerned, the prosecution has not established that the accused took the deceased to Taraka dam on that day.
14. As far as next circumstance i.e., the motive is concerned, the prosecution very much relied on the evidence of PWs.1,2 and 6 (family members), who deposed that the accused obtained hand loan of Rs.4,500/- from the deceased and when the deceased insisted the accused to repay the same, for that reason the accused committed the murder of the deceased. In our considered opinion, the prosecution failed to prove the
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NC: 2023:KHC:23580-DB CRL.A No.1156 of 2017 said circumstance for the reason that in the complaint lodged by PW-1/wife of the deceased as per Ex.P1 on 3.10.2011, she has not whispered anything about the alleged hand loan obtained by the accused from the deceased. Even in the statements of PWs.2,6, 24 and 25 recorded during the course of inquest panchanama, they have not stated anything about any loan obtained by the accused from the deceased. In such circumstances, it cannot be concluded that the prosecution proved the motive for the alleged crime beyond reasonable doubt. Be that as it may be. The prosecution also utterly failed to prove all the other circumstances in this case including the homicidal death of the deceased. In such circumstances, the Hon'ble Supreme Court in the case of Chandrappal -vs- State of Chhattisgarh reported in 2022 SCC OnLine SC 705 while dealing with criminal trial relating to last seen theory, held that conviction cannot be based solely on the basis of last seen together theory when the death is under dispute. In the instant case, the entire case of the prosecution rests on circumstantial
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NC: 2023:KHC:23580-DB CRL.A No.1156 of 2017 evidence, as there was no eye witness to the alleged incident. The circumstances concerned "must or should be" established and not "may be" established. The accused "must be" and not merely "may be" guilty before a court can convict him. The conclusions of guilt arrived at must be sure conclusions and must not be based on vague conjectures. The entire chain of circumstances on which the conclusion of guilt is to be drawn, should be fully established and should not leave any reasonable ground for the conclusion consistent with the innocence of the accused. The Hon'ble Apex Court reiterated the landmark judgment in the case of Sharad Birdhichand Sarda -vs- State of Maharashtra reported in (1984) 4 SCC 116, wherein the Hon'ble Supreme Court issued the guidelines to prove the case based on the circumstantial evidence when there is no eye witness to the incident. The five golden principles enumerated in the case of Sarda (supra) at paragraph-152 are as under:
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NC: 2023:KHC:23580-DB CRL.A No.1156 of 2017 "152. A close analysis of this decision would show that the following conditions must be fulfilled before a case against an accused can be said to be fully established:
(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established.
It may be noted here that this Court indicated that the circumstances concerned "must or should" and not "may be" established. There is not only a grammatical but a legal distinction between "may be proved" and "must be or should be proved" as was held by this Court in Shivaji Sahabrao Bobade v. State of Maharashtra [(1973) 2 SCC 793 : 1973 SCC (Cri) 1033 : 1973 Cri LJ 1783] where the observations were made : [SCC para 19, p. 807 : SCC (Cri) p. 1047] "Certainly, it is a primary principle that the accused must be and not merely may be guilty before a court can convict and the mental distance between 'may be' and 'must be' is long and divides vague conjectures from sure conclusions." (2) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty,
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NC: 2023:KHC:23580-DB CRL.A No.1156 of 2017 (3) the circumstances should be of a conclusive nature and tendency, (4) they should exclude every possible hypothesis except the one to be proved, and (5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused."
15. The Hon'ble Apex Court in yet another judgment in the case of Ravi and another -vs- State of Karnataka reported in (2018)16 SCC 102, has in detail discussed about the case of circumstantial evidence and more particularly in respect of the last seen together is concerned i.e., time lag and other aspects in respect of the last seen theory. The Hon'ble Apex Court in paragraph-5 of the said judgment held as under.
"5. Last seen together" is certainly a strong piece of circumstantial evidence against an accused. However, as it has been held in numerous pronouncements of this Court, the time-lag between
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NC: 2023:KHC:23580-DB CRL.A No.1156 of 2017 the occurrence of the death and when the accused was last seen in the company of the deceased has to be reasonably close to permit an inference of guilt to be drawn. When the time-lag is considerably large, as in the present case, it would be safer for the Court to look for corroboration. In the present case, no corroboration is forthcoming. In the absence of any other circumstances which could connect the accused appellants with the crime alleged except as indicated above and in the absence of any corroboration of the circumstance of 'last seen together' we are of the view that a reasonable doubt can be entertained with regard to the involvement of the accused appellants in the crime alleged against them. The burden under Section 106 of the Indian Evidence Act, 1872 would not shift in the aforesaid fact situation, a position which has been dealt with by this Court in Malleshappa vs. State of Karnataka wherein the earlier view of this Court Mohibur Rahman vs. State of Assam has been extracted. The said view in Mohibur Rahman (supra) may be profitably extracted below:
"23. .... 10. The circumstance of last seen together does not by itself and necessarily lead to the inference that it was the accused who committed the crime. There must be something more establishing connectivity between the accused and the crime. There may be cases where, on account of close proximity of place and time between the event of the accused having been last seen with the deceased and the factum of death, a rational mind may be persuaded to
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NC: 2023:KHC:23580-DB CRL.A No.1156 of 2017 reach an irresistible conclusion that either the accused should explain how and in what circumstances the victim suffered the death or should own the liability for the homicide. In the present case there is no such proximity of time and place. As already noted the dead body has been recovered about 14 days after the date on which the deceased was last seen in the company of the accused. The distance between the two places is about 30-40 km. The event of the two accused persons having departed with the deceased and thus last seen together (by Lilima Rajbongshi, PW 6) does not bear such close proximity with the death of the victim by reference to time or place. According to Dr. Ratan Ch. Das the death occurred 5 to 10 days before 9-2-1991. The medical evidence does not establish, and there is no other evidence available to hold, that the deceased had died on 24-1-1991 or soon thereafter. So far as the accused Mohibur Rahman is concerned this is the singular piece of circumstantial evidence available against him. We have already discussed the evidence as to recovery and held that he cannot be connected with any recovery. Merely because he was last seen with the deceased a few unascertainable number of days before his death, he cannot be held liable for the offence of having caused the death of the deceased. So far as the offence under Section 201 IPC is concerned there is no evidence worth the name available against him. He is entitled to an acquittal."
16, Hence by considering the principles laid down by the Hon'ble Apex Court in the above judgments and on re-appreciation of the entire material available on record, we are of the considered opinion that the prosecution
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NC: 2023:KHC:23580-DB CRL.A No.1156 of 2017 failed to prove the homicidal death of the deceased so also the other circumstances like motive, last seen theory and other circumstances beyond reasonable doubt. In our considered opinion, the judgment rendered by the trial Judge suffers from perversity and thereby the learned Sessions Judge is not justified in convicting the appellant/accused for the charges leveled against him. Accordingly, the points raised in this criminal appeal are answered. Therefore, the judgment rendered by the trial Court is liable to be set aside and accordingly we proceed to pass the following order:
ORDER
(i) The appeal filed by the appellant/accused is allowed.
(ii) The impugned judgment of conviction and order of sentence dated 12/13th June 2017 passed in S.C. No.222/12 by the II Additional Sessions Judge, Mysuru, is hereby set aside.
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(iii) The appellant/accused is acquitted for the charges levelled against him and the bail bonds executed by him shall stand cancelled.
(iv) The fine amount, if any deposited by the appellant/accused is directed to be refunded to him on proper identification.
(v) As far as the order passed by the trial Court exercising the jurisdiction under Section 357-A of the Code of Criminal Procedure by referring the matter to the DLSA for awarding suitable compensation to PW-1 and her four children, shall remain intact.
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