Karnataka High Court
Revanesha @ Ravi vs The State Of Karnataka on 23 July, 2021
Bench: B.Veerappa, V Srishananda
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 23RD DAY OF JULY, 2021
PRESENT
THE HON'BLE MR. JUSTICE B. VEERAPPA
AND
THE HON'BLE MR. JUSTICE V. SRISHANANDA
CRIMINAL APPEAL NO.127/2015(C)
BETWEEN
1. REVANESHA @ RAVI
S/O MARUVALLI MANJAPPA
AGED ABOUT 34 YEARS
OCC:TRACTOR DRIVER
R/O GUDAMAGATTA VILLAGE
BHADRAVATHI TALUKA
SHIVAMOGGA DISTRICT-577301
2. SMT SARASWATHI
W/O NARAYANAGOWDA
@ MUSULLI NARAYANA
AGED ABOUT 29 YEARS
OCC:HOUSEHOLD WORK
R/O HALEIKKERI VILLAGE
SAGARA TALUKA
SHIVAMOGGA DISTRICT-577401
...APPELLANTS
(BY SRI P.B.UMESH, FOR SRI R.B.DESHPANDE, ADVOCATES)
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AND
THE STATE OF KARNATAKA
BY SAGAR RURAL POLICE STATION
SHIVAMOGGA DISTRICT-577401
...RESPONDENT
(BY SRI VIJAYAKUMAR MAJAGE, ADDL.SPP)
THIS CRL.A. IS FILED U/S 374(2) OF CR.P.C PRAYING
TO SET ASIDE THE ORDER DATED:9/10.12.2014, PASSED BY
THE PRESIDING OFFICER, FTC, SHIVAMOGGA C/C FTC
SAGAR, IN S.C.NO.74/13 - CONVICTING THE
APPELLANT/ACCUSED NO.1 & 2 FOR THE OFFENCES P/U/S
115, 120(B), 328, 302, 201 R/W 34 OF IPC.
THIS APPEAL HAVING BEEN HEARD AND RESERVED
FOR JUDGMENT ON 07.07.2021, COMING ON FOR
PRONOUNCEMENT OF JUDGMENT, THIS DAY,
V.SRISHANANDA. J., DELIVERED THE FOLLOWING:
JUDGMENT
Accused persons convicted for the offences punishable under sections 115, 120(b), 328, 302 and 201 read with Section 34 of IPC and sentenced to undergo substantive sentence of life imprisonment by judgment dated 09.12.2014 passed in SC No.74/2013 on the file of Fast Track Court, Sagara have challenged the validity of the said judgment in this appeal.
2. Brief case of the prosecution in brief are as under:
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Upon complaint lodged by Sri B. Ganapathy Gowda, Sagara police registered a case in crime No.289/2012 initially for the offences punishable under Section 306 read with Section 34 IPC on 30.10.2012 at about 9.30 am. In the complaint, it is contended that about 16 years earlier to the complaint, he married his second daughter Anusuya to one Musali Narayana Gowda and a male child was born from their wedlock, who was named as Jayantha @ Jayaram. Aafter 11th day of the delivery, Anasuya died and up to 2 ½ years, the said child was reared in his house. Thereafter, father of the child Narayana Gowda took the child to his house. As on the date of incident, he was 13 years old and studying in 8th Standard in Ikkeri High School. Narayana Gowda married one Saraswathi, who is the resident of Kerekoppa and from the said wedlock, Narayana Gowda got daughter aged about 6 years and son aged about 4 years.
Complaint averments further reveals that Jayantha @ Jayaram was not looked after in proper way by second wife of Narayana Gowda and he was harassed by the Narayana Gowda and second wife Saraswathi by directing him to clean 4 the vessels, sweeping the house and washing the clothes, etc. They also restrained him to visiting other houses, which he came to know from the relatives. When he had been to house of Narayana Gowda, he had conversation with Jayantha @ Jayaram and he revealed that his step mother (accused No.2) and his father Narayana Gowda and his senior uncle Manjappa was torturing him and used to provoke him that he should die so that property would remain for themselves. He took up the matter with Narayana Gowda and told that send Jayantha to his house but Narayana Gowda refused to do so.
Complaint averments further revealed that on 24.10.2012 on Vijayadashami festival day, Jayantha left his house without informing anybody around 12'o clock in the noon and he did not return home. The same was intimated to complainant from the relatives of Narayana Gowda namely Eshwara. Being anxious, complainant enquired in the relative house about Jayantha but he was not traced. Narayana Gowda lodged a missing complaint on 26.10.2012 with Rural Police of Sagara. On 29.10.2012 at about 7.00 p.m., when 5 he was proceeding near Varadalli Circle, he received the information that Jayantha was found dead in KoteKaanu Forest near Majjigere from his son Manjunataha. Immediately, himself and president of panchayath namely Sydhur Mahabalesh visited Kotekaanu Forest and found dead body of Jayantha in supine position and the body was bloated and ants and other insects were found on the body and tongue was protruded; he noticed white and grey color T-shirt and a faded black color pant and face and body were disfigured. It is also found from the complaint that deceased unable to tolerate the harassment imparted to him by Narayana Gowda, Manjappa and second accused, deceased had died in Kotekaanu Forest. He noticed that bread pieces, a juice bottle and few snacks within the vicinity of the dead body and he entertained doubt about death of Jayantha and he specifically explained Narayana Gowda, Manjappa are responsible for death and thus, sought for action against them.
3. Jurisdictional police after thorough investigation, filed charge sheet against the appellants herein for the 6 offences punishable under Sections 115, 120-B, 328, 302 and 201 read with Section 34 of IPC.
4. On receipt of the charge sheet, the jurisdictional magistrate committed the matter to the Sessions Court.
5. On such committal, the Sessions Court secured the presence of the accused persons and framed the charges against accused persons for the aforesaid offences. The substance of the charge were read over to accused persons in the language known to them and accused denied the charges and claimed for trial.
6. Prosecution in order to bring home the guilt of the accused persons, examined in all 19 witnesses as PWs.1 to 19 and relied on 39 documents which were marked as Exs.P1 to 39 and also material objects marked as M.Os.1 to 7.
7. On conclusion of the prosecution evidence, accused statement was recorded as contemplated under Section 313 Cr.P.C. Accused persons were denied all 7 incriminatory circumstances and did not chose to lead any evidence nor offered any explanation to the incident.
8. Thereafter learned trial Judge heard the arguments of both sides and passed an order of conviction convicting the accused persons for the offences punishable under Sections 302, 115, 120-B, 328 and 201 read with Section 34 of IPC and sentenced them as under:
Offence Imprisonment Fine (in Rs.) 302 Life 10,000/- each In default of fine, Rigorous imprisonment for 6 months 115 Rigorous 2,000/- each.
imprisonment In default of fine, Rigorous for 2 years imprisonment for 2 months 120-B Rigorous 2,000/- each.
imprisonment In default of fine, Rigorous for 2 years imprisonment for 2 months 328 Rigorous 3,000/- each.
imprisonment In default of fine, Rigorous for 3 years imprisonment for 24 months 201 Rigorous 2,000/- each.
imprisonment In default of fine, Rigorous for 2 years imprisonment for 6 months
9. Head the learned counsel for the parties.
10. Sri. P.B.Umesh, learned counsel for the appellant contended the impugned judgment of conviction and order of 8 sentence are contrary to law, evidence on record and probabilities of the case. He further contended that learned trial Judge had committed grave error in passing an order of conviction based on highly interested testimony of prosecution witnesses. He pointed out that the oral testimony of the prosecution witnesses are contradictory to each other and thus unreliable and looks artificial. He also contended that prosecution case is suffering from suppression of material facts and prosecution did not place the true version of the incident, which is not properly appreciated by the learned trial Judge while passing the impugned judgment. He also argued that the learned trial Judge failed to note that the father of the deceased, who is the person, who filed missing complaint and as per Ex.P.34, complaint was also lodged against the Narayana Gowda (father of the deceased) and police filed charge sheet only against appellants herein which shows that investigation is improper. He also pointed out that when the complaint filed by the grand father of the deceased and police registered the case under section 306 IPC, filing of the charge sheet against the accused persons for the offences punishable under Sections 115, 120(b), 328, 9 302 and 201 read with Section 34 of IPC has resulted in miscarriage of justice.
11. Prosecution witnesses 1 to 7 and 11 are the relatives and their testimony is highly interested testimony and since the case is based on circumstantial evidence, their testimony should have been considered by the learned trial Court with extra case and caution in holding that the prosecution has established its case beyond all reasonable doubt. He also argued that the oral testimony of PWs.1 to 7 and 11 comprises of material contradictions and omissions and is not free from legal infirmities.
12. He also argued that in respect of motive and last seen theory, prosecution has not placed any evidence on record and alleged recovery of the material objects is also not properly proved and thus, prosecution failed to establish the case by placing cogent evidence on record, which has not been properly appreciated by learned trial Judge in impugned judgment.
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13. He also argued that the explanation offered by the accused persons while recording accused statement as contemplated under Section 313 Cr.P.C. is totally ignored by the Trial Judge and Trial Judge has shifted the burden on accused persons which is against the settled principles of law. He pointed out that presuming facts as contemplated under Section 114 of Indian Evidence Act is not available in criminal Case, which has been lost sight of by the learned Trial Judge. He also contended that the call details marked at Exs.P.29 and 30 cannot be made as a ground to convict the appellants as admittedly the mobile telephone instrument belongs to another person. He further contended that learned Trial Judge erred in law in placing reliance on Exs.P1 and 4 which are the alleged voluntary statements of the appellants. He also contended that hardly any material is available on record to convict the appellants for the offences punishable under Section under 201 read 34 IPC and thus, they are entitled for order of acquittal.
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14. The medical evidence and contents of Exs.P25 and 26 is not property appreciated by the learned Trial Judge while finding an order of conviction against the appellants.
15. He also contended with vehemence that alleged illicit relationship between the appellants was only rumor and learned Trial Judge cannot presume the fact that appellants had illicit relationship between them.
16. He further contended that the Trial Judge has misread the decision relied on by the prosecution resulting in grave miscarriage of justice and thus, sought to allow the appeal.
17. Per contra, Sri Vijayakumar Majage, learned Additional State Public Prosecutor while justifying the impugned judgment of conviction and order of sentence, contended that the prosecution is successful in establishing its case that accused and accused alone is responsible for the homicidal death of the deceased.
18. He further argued that oral testimony of PWs.1 to 7 and 11 coupled with medical and scientific evidence placed 12 by the prosecution conclusively establishes nexus between the accused persons and homicidal death of the deceased. He further pointed out that none of the prosecution witnesses did not posses any previous enmity or animosity so as to falsely implicate the accused persons in the incident and the same has been rightly appreciated by the learned trial Judge while passing the impugned judgment.
19. He also contended that the discrepancies are minor contradictions in oral testimony of prosecution witnesses pointed out by the learned counsel for the appellant would only establish that prosecution witnesses are true witnesses and not tutored witnesses and as such, the substance of homicidal death is to be appreciated and no importance can be given to the minor discrepancies. He further pointed out that the complaint averments. The oral testimony of the prosecution witnesses clearly establish that the deceased being the step son of accused No.2 and was being harassed by accused No.2 and if accused No.2 is done to death, her children would succeed to the entire property of Narayana Gowda and thus, she had hatched a plan with her 13 paramour (accused No.1) and killed the deceased by making him to consume a poisonous substance mixed in mango juice and later on strangulated the deceased and left the dead body in a forest area so as to cause disappearance of evidence of crime and thus, the prosecution has established its case beyond all reasonable doubt and prayed for dismissal of the appeal.
20. In view of the rival contentions urged by the learned counsel for the parties, the only point that would arise for our consideration in the present appeal is -
"Whether the appellants make out a case that finding recorded by the Trial Judge in impugned judgment that accused persons are responsible for the homicidal death of the deceased Jayantha @ Jayaram and thus, they are guilt of the offences punishable under Sections 115, 120(b), 328, 302 and 201 read with Section 34 of IPC is suffering from legal infirmity, perversity and thus, calls for interference in the facts and circumstances of the present case?'.
21. This Court being the Appellate Court having regard to the scope of the appeal in its order of conviction, in 14 order to re-appreciate the entire material on record both oral and documentary evidence on record including the original records, it is relevant to prosecution witnesses and documents relied upon -
(i) PW.1 - Manjunatha is the Son of complainant. He deposed that his father Ganapathy Gowda died about 2½ months earlier and he is acquainted with accused persons and deceased. He further deposed that his sister was married to Narayana Gowda (PW.8) about 14 years earlier. Deceased was born out of their wedlock and within a short time, his sister Anusuya died when the deceased was child of 11 days.
After the death of Anusuya, deceased was reared in his house for about 2 ½ years and Narayana Gowda visited there and took the deceased along with him. Further, he deposed that after death of Anusuya, PW.8 - Narayana Gowda got married accused No.2 and out of the said wedlock, a son and daughter were born to them. After birth of two children, accused No.2 started harassing the deceased by indulging him in house hold work i.e., washing clothes, cleaning vessels, etc. He also deposed that for peeling 15 arecanut shell, accused No.1 who is resident of Bhadravathi used to visit the house of accused No.2 and he came to know that there is a illicit relationship between them. He further deposed that on Vijayadashami Day i.e., on 24.10.2012, Jayantha got missing from the house and PW.8 - Narayana Gowda visited his house and enquired whether Jayantha has visited them. They have told that he has not visited them and all of them searched for him but Jayantha was not found.
On 29.10.2012, in Kotekaanu forest near Majjigere, dead body of Jayantha was found and police conducted inquest mahazar in his presence. When the mahazar took place, his father (complainant), his cousin Ashok and his brother-in-law was present. He further deposed that later he came to know that accused persons have mixed sleeping tablets in juice and made the deceased to drink and thereafter strangulated the deceased. He specifically deposed that if the deceased is done to death , children of accused No.2 would be benefited. Therefore, accused persons murdered the deceased. In his cross examination on behalf of accused No.1, he has answered that about 2-3 years prior 16 to death of the deceased, he has seen the deceased. He admits that he had not seen accused No.1 earlier to 30.10.2012 but he had the information about the illicit relationship and he got the information from the police.
In his cross-examination on behalf of accused No.2, it is elicited that Anusuya died after 11 days of delivery of deceased. He admits that the elder sister of PW.8 - Sitamma had reared the child for about 5-6 months. He admits that after 2 ½ years, Narayana Gowda sought for custody of the deceased and matter had reached up to Police station. Thereafter, custody of child was given to PW.8-Narayana Gowda. He admits that thereafter there is no cordiality between him and PW.8. He has answered that he came to know that deceased-Jayantha being harassed by the accused No.2 and from his father.
(ii) PW.2 - Shivakumar is residing in the same lane of PW.8 about distance of 7 houses. He further deposed that he acquainted with PW.8, he has seen accused No.1 about 3-4 times when accused No.1 visited his village. He further deposed that out of the wedlock between PW.8 and accused 17 No.2, there are two children and PW.8 had son born to first wife. He further deposed that the child was reared by complainant and thereafter PW.8 had taken to custody of the deceased from complainant. He specifically deposed that the second accused was harassing the deceased. She has indulged the deceased in house hold works beyond his age. Further deposed that PW.8 had kept money in Post Office in the name of deceased and PW.8 had got landed property. He further deposed that accused No.1 had visited his village in the guise of peeling the arecanut shells and later on he used to visit the house of accused No.2 once in two months and on special occasions like festivals, etc. he further deposed that there was a thick rumor in the village that accused persons have illicit relationship between them.
He further deposed that at the time of death, deceased was studying in 8th Standard and might have been aged 13-14 years. He came to know that on 25.10.2012, the deceased was missing on and from 24.10.2012 and he presumed that he must have attended Akkanagamma's fair (jathra festival) in Theravinakoppa. When he came to know 18 that deceased was missing, he had also joined with others for searching the deceased but their efforts did not yield any result and PW.8 lodged a missing complaint on 26.10.2012. He further deposed that on 29.10.2012, the dead body of the deceased was traced in Kotekaanu forest in a bush situated near Majjigere village. Thereafter, he also visited the said place and seen the dead body and Ganapathy Gowda (maternal grand father of the deceased) lodged a complaint and police had recorded his statement. He further deposed that later on he came to know that accused No.1 mixed sleeping tablets in juice and made the deceased to drink and later strangulated the deceased at the instance of accused No.2.
In his cross examination on behalf of accused No.1, it is elicited that he is not aware of native place of accused no.1 but he is from Bhadravathi side. He has answered that for the fist time he saw accused about thee years earlier to death of the deceased-Jayantha. He answered that he never spoke to accused No.1. He had definite information from villagers that there is illicit relationship between accused 19 Nos.1 and 2. He answered that he did not intimate the said relationship to PW.8. He has answered that the deceased got missing when PW.8 and accused No.2 had been to agricultural work. He denied that had falsely implicated accused No.1 in the case.
In his cross examination on behalf of accused No.2, it is elicited that he used to visit house of PW.8 and the School of the deceased is situated around 4 km. from his village at Karkikoppa. He has answered that the deceased used to leave his house for visiting the School at 8.45 a.m. and would return by 5.45 p.m. and he was regular to the School. He admits that he did not intimate the police about the harassment imparted to the deceased by accused No.2 when he saw the dead body.
(iii) PW.3 - Yuvaraj is the brother-in-law of accused No.2. He deposed that accused No.2 is his wife gayathri's elder sister. He further deposed about the marriage between PW.8 and accused No.2; death of first wife of PW.8; the children born to PW.8 and accused No.2; deceased stayed in the complainant's house at Harogoppe. He further deposed 20 that the deceased was studying in 8th Standard at the time of his death. He also deposed that accused No.2 had indulged the deceased for washing clothes, utensils and also other house hold works. He further deposed that even though PW.8 had soft corner to the deceased, he had no guts to advise accused No.2 in that regard. He specifically deposed that PW.8 was under the clutches of accused No.2. PW.8 had made few deposits in the Post Office in the name of deceased. He came to know from PW.8 that accused No.2 had withdrawn the proceeds of the said deposits and accused No.2 had a feeling that PW.8 is settling the funds in the name of deceased.
Before the court, he had identified accused No.1 and deposed that he was from Bhadravathi and used to visit the house of accused No.2 and used to bring arecanut to the house of accused No.2 for peeling shells and he had intimate the relationship with accused No.2 and they used to stay in the house even in the absence of PW.8 and on one occasion both of them slept when PW.8 was not in the house and he had also heard from the villagers that there was thick rumor 21 that they had a illicit relationship between them. He specifically deposed that both accused Nos.1 and 2 had visited Agoreshwara Temple and another temple near Soraba.
He further deposed that on 24.10.2012, the deceased got missing and he had also searched for him. PW.8 lodged a missing complaint on 26.10.201. He came to know that the dead body of deceased Jayantha was found at Kotekaanu Forest near Majjigere on 29.10.2012 and accused and he also visited the place. He saw the dead body which was in de- composed stage. There was a juice bottle nearby and few bread slices and biscuits. He came to know from the police that accused No.1 had mixed sleeping tablets in juice and made the deceased to drink the same. And thereafter strangulated the deceased. He specifically deposed that if PW.8 settles the property in the name of deceased, children of accused No.2 would not get any property and therefore, Jayantha was done to death. He also came to know that on 24.10.2012, accused No.2 had taken the deceased along with her for picking arecanut and she alone returned. 22
In his cross-examination on behalf of accused No.1, it is elicited that he had love affair with the younger sister of accused No.2 and there was opposition for marriage from her parents. It is further elicited that accused No.2 and PW.8 have also opposed the love affair between him and his wife. However he denies a suggestion that on account of said opposition, he has nurtured the enmity against accused No.2 and PW.8. He has answered that his house is situated about 1 k.m. away from the house of accused persons and he had seen accused No.1 six months earlier to the death of deceased and he used to visit the house of accused No.2 for peeling the arecanut shells. It is elicited that he came to know about the illicit relationship between the accused Nos.1 and 2 after the dead body was found. He denied having given false evidence against accused persons.
In his cross-examination on behalf of the accused No.2, it is elicited that he had visited the house of accused No.2 about one month earlier to death of the Jayantha along with his wife. Usually he used to visit the house of accused No.2 in 23 the afternoon or evening but he has not staying in the house of accused No.2. He denied that accused No.2 used to look after Jayantha like her own son. He has answered that in Majjigere Village about 10-12 houses are there. He denied having given false evidence against accused persons.
(iv) PW4 - Prabhavathi is examined as PW.4. She is the neighbor of accused No.2. She deposed about the relationship between accused No.2 and PW.8; first wife of PW.8; acquaintance of Jayantha and his rearing in the childhood in the house of complainant. She specifically deposed that accused No.2 was harassing the deceased physically and mentally and she had indulged the deceased in house hold works like sweeping, cleaning vessels, etc. She also deposed about the acquaintance of accused No.1 and his frequent visits to the house of accused No.2. She also deposed that both the accused persons were visiting the Jathra festival and temples. She specifically deposed that there was a illicit relationship between accused Nos.1 and 2. She also deposed that PW.8 had deposited money in the name of deceased in the Post Office and accused No.2 used 24 to quarrel with PW.8 that her children would be denied the share in the property.
She specifically deposed that on 24.10.2012 at about 12.45 p.m., when she was sitting on the platform situated in front of her house, she saw accused No.2 taking the deceased along with her towards Majjigere and returned alone. She enquired accused No.2 as to what happened to the deceased and accused No.2 replied that he had gone to play. She further deposed in the evening hours that accused No.2 intimated her that deceased is missing and she intimated the villagers about accused No.2 taking the deceased towards Majjigere village in the afternoon. Thereafter, all the villagers and others searched for deceased but Jayantha was not traced. PW.8 lodged a missing complaint. She further deposed that on 29.10.2012, dead body of Jayantha was found in Kotekaanu forest near Majjigere. She specifically deposed that accused No.2 had taken Jayantha in the same direction, where the dead body was found. She also deposed that the Police visited the place of the incident and drew mahazar. Later on she came to 25 know that both the accused persons killed Jayantha by mixing sleeping tablets in Juice and made Jayantha to drink the same and thereafter strangulated the deceased.
In her cross-examination on behalf of accused No.1, she had answered that accused No.1 was visiting the house of accused No.2 about 2-3 years earlier to the incident in the guise of peeling of shell of arecanuts. She admits the suggestion the villagers developed suspicious about the illicit relationship as both accused used to chit chat sitting closely. She admits that herself and PW.8 are cousins and they are in cordial terms earlier and now they are not in cordial terms. She had answered that even on the date of this position, accused No.2 was residing with PW.8. She denied the suggestion that since they are not in cordial terms, she had falsely deposed against the accused persons.
In cross examination on behalf of accused No.2, she admits that there were disputes between her and accused No.2 on account of sharing of water and she was not in talking terms with accused No.2. It is elicited that in front of her house, a road is situated, which passes through Sagara 26 to Kagehalla and about 15-20 acres arecanut garden is situated after the said road. She admits that Majjigere is situated half a kilometer in the arecanut garden and about 20 house are there in Majjigere Village. She answered that arecanut garden is visible from her house but if somebody is inside the garden they are not visible from her house. She admits that from the house road leading to Majjigere is not visible. She denied the other suggestions.
(v) PW-5 - Varadakshi is examined as PW5. She is also resident of same lane that of PW8. she also deposed about acquaintance of first wife of pw.8 and rearing of deceased in complainant's house. She further deposed that deceased was made to carryout house hold works by accused No.2 and she has witnessed same. She has also stated that she has seen accused Nos.1 and 2 inside the house when she was peeling shell of the arecanut and accused No.1 used to stay in the house of accused no.2 for 2-3 days and she has seen same on 5 to 6 occasions and she came to know from the villagers that they had intimate relationship between them. 27
She further deposed that PW.4 told her that accused No.2 had taken deceased along with her at about 12 noon towards Majjigere and she alone returned after some time. Thereafter, she came to know that deceased was killed by accused. In her cross examination, she has answered that accused No.1 used to visit about 2-3 years earlier to the incident. The specific suggestion since both accused cordially speaking to each other, villagers had entertained suspicious about their relationship is admitted by her. She has answered that PW.8 also used to stay in the house for some times. She denied the suggestion that she has given false evidence against the accused on the ground that Jayantha died.
In the cross examination on behalf of accused No.2, she has answered that she had no knowledge of inside the house of accused No.2. She denied the suggestion that accused No.2 has not indulged the deceased in house hold work. She admits that the movement of people in Majjigere Road is not visible to her house.
(vi) P.W.6 - Ramesh is yet another villager, who deposed about family members of accused No.2 and 28 deceased being reared in his grand-father's house. He also deposed that accused No.2 used to get house hold work through deceased and used to assign him house hold work beyond his age. He also deposed about accused No.2 with deposit made by PW.8 in the name of deceased. He further deposed that accused No.1 used to reside in the house of accused No.2 weeks together and he must have visited 10 to 15 times to the house of the accused No.1 and they were having intimate relationship between them and other villagers to say that there was illicit relationship between them.
He further deposed that on Vijayadashami day, people started gabbing that Jayantha missing and accused No.2 has taken him towards the arecanut garden. He came to know from his neighbor that accused No.2 alone returned thereafter. He further deposed that 4 to 5 days later, the dead body of deceased was found in kotekaanu forest and he has also seen M.Os.1 to 3 being found near the dead body.
In his cross examination on behalf of accused No.1, he has answered that he is the resident of neighboring village 29 which is situated half a per long from the house of PW.8 but on road it is ¾ k.m. and he is having a garden. He has specifically answered in cross examination that he had seen accused Nos.1 and 2 together visiting the market and at that juncture PW.8 had not accompanied them.
In his cross-examination on behalf of accused No.2, he answered that between Majjigere and Ikkeri there is arecanut garden spread over 9 acres. He has further answered that if somebody has to visit Majjigere, one has to pass through his village. He has answered that he has intimated the police about accused No.2 returned alone after she accompanied the deceased.
(vii) PW.7 - Manjappa is the elder brother of P.W.8- Narayana Gowda. He deposed about the accused and family members of PW.8 and he is residing separately from PW.8. He also deposed about the house hold work being carried out by the deceased at the instance of accused No.2. He further deposed that he has advised his younger brother (PW.8) to properly advise accused No.2 and PW.8 had replied that accused No.2 is not heeding to his advise. He further 30 deposed that accused No.1 used to visit the house of accused No.2 in the guise of peeling the arecanut shells and used to stay in the house for 4-5 days. Whenever he has visited the house of the accused No.2, accused No.1 was found in the house of accused No.2 and accused No.2 used to feed him and accused Nos.1 and 2 used to roam around in the village freely; there was a thick rumor spread in the village that there was illicit relationship between them. He further deposed that on 24.10.2012 deceased found missing despite best search, he was not found. On 29.10.2012, dead boy of the deceased was found in kotekannu forest in decomposed state and the grand father of the deceased had come there and he had lodged a complainant against PW.8 on suspicion. Later on he came to know that accused Nos.1 and 2 killed him.
In his cross-examination on behalf of accused No.1, it is elicited that he has not intimated the police about accused No.2 roaming around freely in the village. He has answered that there is no enmity between him and PW.8. He denied the suggestion that in order to grab the property of accused 31 No.2, he has given false evidence against her. He has answered that he used to visit the house of PW.8 on festival days.
In his cross-examination on behalf of accused No.2, it is elicited that his wife and accused No.2 not in talking terms about 7 to 8 years. He denied the suggestion that he never used to visit the house of PW.8.
(viii) PW.8 - Narayana Gowda is the father of the deceased. He deposed that accused No.2 is his second wife and she has studied up to 7th Standard and he is owning 50 arecanut tees and he is not doing any agricultural work. He deposed about his first wife's death soon after delivery. There deceased being reared in the house of his father-in- law. He further deposed that after five years of death of his first wife, he married accused No.2 and he has two children from her. He has further deposed that accused No.1 visited his house only once.
He further deposed that he came to know that deceased died by consuming poisonous substance juice and 32 he did not support the case of prosecution further and turned hostile. As such, he was cross-examined by the prosecution by confronting his statements said to have been given by him before the Investigation Officer. In such cross-examination, he admits that he had kept money in deposit in Post Office and accused No.2 had withdrawn. He also admits that he had questioned accused No.2. She replied that he has not made any arrangements for future of her children. He further admits that by death of deceased, second wife and her children are benefited. He admits that he has made a call to accused No.1 from his mobile telephone.
In his cross examination on behalf of accused No.2, it is elicited that he has told his wife to withdraw the money from post office.
(ix) Shrungesh is examined as PW.9. He is the owner of medical store in the name of style of Jayalaxmi Medical Shop. he deposed that he has been in the said business last 20 years and he acquainted with many villagers. He also deposed that he sells sleeping tablets based on the prescription given by the Doctor. However, he denied having 33 sold tablets to accused No.1 and as such, he been treated as hostile witness and cross examined by prosecution.
In such cross-examination, the statement said to have been given by him before Investigation Officer he confronted but witness denied the same.
In his cross examination, on behalf of accused No.1, he has answered that he is a diploma holder in the pharmacy and if consumed about 20-30 tablets as is mentioned in MO.4 namely alprazolam, person may die.
(x) H.M. Nagaraja is examined as PW.10. He is mahazar witness to Ex.P5-spot mahazar, Ex.P6 - Inquest mahazar and photographs, which were taken during both mahazars exhibited and marked as Ex.P7 to 11. he identified photographs and deposed by he participated in both the mahazars and supported the prosecution case. This witness is not cross examined by the defense witness.
(xi) PW.11 - Mahabalesh is mahazar witness to Ex.P12- mahazar where under the police seized M.O.4 and drafted Ex.P12 to 14 mahazars.
34
He identified the articles seized under the said mahazars. He also deposed that he is participated in Ex.P14 mahazar mobile telephone belonging to accused No.1 is seized and Ex.P15 mahazar has been drafted. He identified mobile telephone as MO.6. He also identified M.Os.16 to 18 photographs, which were taken during the mahazar proceedings.
In his cross-examination, on behalf of accused No.1, he has answered that panchanama has been drafted in the medical store at the first instance and thereafter, they had gone to the place where the dead body was lying. He further answered that accused No.1 searched for the 10 tablets strip. He denied that police have concocted material objects seized under the mahazars.
(xii) Krishnamuthy is another mahazar witness is examined as PW.12. He deposed that on 7.11.2012, he has visited Police Station and police seized a mobile telephone from accused No.2 and drafted Ex.P19-mahazar and supported the prosecution case..
35
(xiii) Mahabala Giri is Post Mater and he is examined as PW.13. He deposed that there was a account opened in the name of deceased in his Post Office and he has given the necessary document to investigating agency in that regard. He further deposed that initially a sum of Rs.50, and later Rs.1500 and Rs.1000 was deposited in the said account. He further deposed that deceased visited along with accused No.2 on 12.04.2011 and amount was withdrawn from the said account and ledger account has identified by him as per Ex.P21. In his cross-examination, he has answered that the said sum of Rs.2500, the amount which was obtained from the govt. as traveling allowance.
(xiv) Head Master of Ikkeri High School by name Rajanish-PW.14. he deposed that at request of investigating agency, he issued Exs.P22 and 23 showing that at the time of death, the deceased was studying in school in 8th standard. He further deposed that sometimes the deceased used to reach the school during the prayer time and on enquiry, the deceased has told that he has to attend house hold work and therefore, he was late to the school. 36
(xv) Drug controller by name Sunil A. Patil is examined as PW.15. He deposed that as per the request of the investigating agency, he has examined the tablets strip and noticed that the name found on the tablet strip is mentioned as axin 0.5 mg. In the said tablet, alprazolam is the drug used. He has issued a repot in that regard vide Ex.P24. He further deposed if somebody consumes the said tablet, she would become drowsy. He also deposed that if somebody consumes more than 5 tablets, it may result in the death. He also deposed that the drug effect will be remaining in body about 45 minutes to 2 hours and person who consumes will go deep sleep.
In his cross examination, he has answered that without medical prescription, the said tablet cannot be sold. He also admitted that dystopian drug was not found in the said tablet. He further answered that the said tablet is usually prescribed for muscle relaxation, as an antidepressant and to treat the emotions of woman during menopass. 37
(xvi) Dr. Vrunda J. Bhat is examined as PW.16. She deposed that at the request of Sagara Rural Police, she has conducted post mortem examination on the dead body of Jayantha @ Jayaram and issued post mortem examination report vide Ex.P25. She identified the FSL repot in respect of viscera as per Ex.P26. She has noticed external appearance and injuries during the Post Mortem examination and noted the same in the Post Mortem report as under:
"Dead body of a male, measuring 148 cm in length, moderately built, with evidence of advanced decomposition and gas stiffening. There is disfiguration of the face with protruded tongue, popped out eye balls, easily detachable scalp hairs, all being signs of advanced decomposition. Marbling is present on the front of chest, abdomen and the both the thighs. Skin slippage seen at various places on the body. Maggots measuring from 0.3 cm x 0.4 cm to 0.6 cm x 1.2 cm and plenty of bluebottle and greenbottle flies were pesent all over the body. External genitalia are distended with gas."
She further deposed that on 13.01.2013, investigating agency issued letter with three queries and she has answered 38 that only by consuming alprazolam tablet in mango juice, death would not be caused and when the deceased was under the influence of said drug, possibility of death occurred on account of asphyxia due to strangulation or pressing nose by hand with force. She identified her report in this regard as per Ex.P27. She also opined that in 250 ML mango juice, if 0.5 mg alprazolam 10 tablets are mixed and made a person to drink, about 4 mg of said drug would remain in the body and under influence of said drug, the person who consumed the said drug would be without conscious for a period of 45 minutes to 2 hours and if there is no proper treatment given and if the said person is not medically treated, the said person may die in 3 to 4 days.
In her cross examination, the suggestion made to him that if nose pressed with hand, there is no possibility of fracture of the nasal bone. If in case of strangulation by pressing neck with hands, there would be finger prints on the neck reason and the same can be identified even if the body is de-composed stage.
39
(xvii) Further Investigation Officer Sri. J.C.Raju, is examined as PW.17. He deposed that on 08.11.2012, he came to know about arrest of accused No.1 and thereafter he took further investigation and secured the presence of accused No.2. He secured the presence of the panch witnesses and in their presence, accused gave voluntary statement and based on the voluntary statement, he proceeded to place shown by the accused and thereafter, he recovered the bread pieces, juice bottle and biscuits and drafted Ex.P12 mahazar. He also identified the material objects before the Court. He further recovered the empty tablets strip under Ex.P13 mahazar and drafted another mahazar vide Ex.P14 from where accused No.2 took the deceased along with her. He also identified the photographs which were taken during the mahazar proceedings as per Exs.P7 to 11 and 16 to 18 and compact disk as Ex.P28. Thereafter, he has produced accused before the Court for remanding them to judicial custody. Subsequent thereto, he has collected the revenue documents and sent seized articles to the Forensic Science Laboratory for examination and 40 report and collected the call details vide Exs.P29 and 30. He further collected the reports and filed charge sheet.
In his cross examination on behalf of accused, it is elicited that even before the arrest of accused No.2 they had information about accused No.1 in view of the statement of charge sheet witness-Shiva Kumar which was recorded on 30.10.2012. He admits that mobile telephone which was used by accused No.2 is in the name of one Nithashetty. He further answered that on enquiry, he came to know that Nithashetty had surrendered the mobile number and the same was given in favour of accused No.2. He admits that Nithashetty neither cited as witness nor examined before the Court. The contradictions of prosecution witnesses CWs.6, 7 and 9 are admitted by the Investigation Officer, however, he denied that he has not given statement before him vide Ex.P4. He has answered that the tablets strip was found at a distance of 600-700 feet from the place where the dead body was found. He denied having concocted voluntary statement of the accused and recovery of articles and the same are concocted for the purpose of the case.
41
(xviii) Part Investigation Officer Sri D.Devaraju is examined as PW.18. He deposed about the registration of missing complaint lodged by PW.8 and thereafter, received a complaint by the Ganapathy Gowda and registering a case in Crime No.289/2012 on 30.10.2012 and conducted the inquest mahazar and spot mahazar and seizure of articles found near the dead body. He further deposed that he had prepared rough sketch vide Ex.P38 and recorded the statements of Manjunath, Ashoka, Mariyappa, Shivakumar and Ravi. He further deposed that on 07.11.2012, at his instructions, accused persons secured and produced before him. He has handed over for the further investigation to PW.17. In his cross examination, it is elicited that dead body of the deceased was found about ½ km. away from Majjigere Village and distance between Ikkeri and Majjigere is about 1 ½ km. It is elicited that there is a pathway near the place where dead body was found. He admits that accused No.2 had not given any statement to him.
(xix) Prakash is examined as PW.19. He deposed that he is owner of condiment shop in Sagara Bus Stand in the 42 name and style of Raghavendra Condiment. He has supported the case of the prosecution.
22. On the basis of above oral and documentary evidence on record, the learned Sessions Judge recorded a order of conviction convicting the accused for the offences punishable under Sections 115, 120-B, 328, 302 and 201 read with Section 34 of IPC.
23. The case of the prosecution is based on circumstantial evidence. Prosecution has relied on three important circumstances as under:
(i) Motive
(ii) Last seen theory
(iii) Recovery.
(i) Motive:
24. From the material available on record, it is found that the deceased-Jayanthaa @ Jayaram was last seen on 24.10.2012. PWs.1 to 7 have clearly deposed that deceased was step son of accused No.2 and accused No.2 used to get house hold works done through him. They also deposed that 43 soon after deceased was born, his natural mother (first wife of PW.8) died in a short time and thereafter for about 2 ½ years deceased was reared in the house of defacto- complainant-Ganapathy Gowda (deceased natural mother's father).
25. Thereafter, PW.8 who is the father of the deceased brought him to his house at Ikkeri. It is deposed to by these witnesses that there was a deposit in the name of deceased in the Post Office which is withdrawn by accused No.2. PW.8 though turned hostile, in his cross examination by the prosecution has admitted that accused No.2 had withdrawn the money kept in the Post Office. He has also admitted in the cross examination on behalf of the prosecution that when accused No.2 was enquired why she has withdrawn the amount, accused No.2 has assigned reasons that on account of paucity of funds, she has withdrawn. He also admits that accused No.2 had questioned him that if all the money is kept in the name of Jayanthaa @ Jayaram, nothing would be left to her children. 44
26. These unequivocal admissions of PW.8 who is none other than natural father of the deceased coupled with oral testimony of other prosecution witnesses is sufficient enough to infer that accused No.2 had motive to take away the life of the deceased. In a matter of this nature especially when the case of the prosecution is based on circumstantial evidence, prosecution is unable to place positive evidence on record in respect of motive; as motive is a circumstance which has to be deduced or inferred from totality of the circumstance. In the case on hand, accused No.2 being the step mother, having two children from PW.8, she was ill- treating and harassing the deceased as is deposed by the prosecution witnesses referred to supra and she had told PW.8 that if PW.8 settling the funds in the name of deceased, future of her children would be at jeopardy. PW.8 also admits that in the cross examination on behalf of prosecution that by the death of deceased, accused No.2 and her children stands benefited. PW.8 was in a precarious position as he could not have opposed second wife and at the same time, he had love and affection towards the deceased. Therefore, from the totality of circumstances available on record and unequivocal 45 admissions elicited, the prosecution is successful in establishing the motive by placing cogent and convincing evidence on record, is based on sound and logical reasons. Thus finding recorded by Trial Judge, even after re- appreciation, we are of the considered opinion that hardly any case is made out by the appellants to record contra finding than that of the trial Judge in respect of circumstance of motive.
27. Having said that prosecution is successful in establishing the first circumstance namely motive, it is now necessary to find out whether the prosecution has established last seen theory by placing cogent and convincing evidence on record.
(ii) Last seen theory:
28. In order to establish such circumstance, prosecution placed strong reliance on the oral testimony of PW.4-Prabhavathi. She has deposed that on 24.10.2012 at about 12.45 p.m. when she was sitting on the platform in front of her house, she saw accused No.2 taking the deceased along with her and proceeded towards Majjigere 46 Road and after some time, Accused No.2 returned alone. At that juncture, she enquired accused No.2 as to where is Jayantha @ Jayaram (deceased). Accused No.2 replied to her that he had gone to play. Again in the evening, accused No.2 told her that Jayanthaa @ Jayaram is missing. She also deposed that she has intimated villagers about accused No.2 about what she has seen in the afternoon that accused No.2 taking the deceased along with her towards Majjigere and returned alone.
29. In the cross examination, no doubt it is elicited that there was a rift between this witness and accused No.2 in respect of sharing of water. But there is no panchayat or police complaint in this regard. Learned counsel for the appellants vehemently contended that based on the rift between accused No.2 and PW.4, she has falsely deposed against the accused No.2. However, the rift between accused No.2 and PW.4 that too for a flimsy reason would not be sufficient enough to hold that PW.4 would depose against accused No.2 especially when there is a death of step son of accused No.2. Further, it is noticed from the accused 47 statement recorded under Section 313 Cr.P.C. of accused No.2, she has not stated that she had enmity with PW.4 and therefore, PW.4 has chosen to falsely depose against her. It is pertinent to note that the deceased is none other than the step son of accused No.2 and as such, accused No.2 was bound to offer some explanation. Further, there is a delay of two days in lodging missing complaint by PW.8. Accused No.2 being the step mother and PW.8 being the father, how would they keep quite for a period of 2 days in approaching the police in order to lodge a missing complaint is an aspect which requires an explanation from accused No.2. Under such circumstances, the trial Judge has placed reliance on the oral testimony of PW.4 for believing the case of the prosecution insofar as the last seen circumstance is concerned.
30. Further, it is found from the evidence of PW.8-Narayana Gowda, who is father of the deceased and husband of accused No.2 stated that himself and accused No.2 went to their land and at that juncture, deceased was watching TV and when they returned home, he was not 48 found. Ex.P29 which is call records between accused Nos.1 and 2. The same establishes that there were series of calls between mobile telephone of accused Nos.1 and 2 which were extracted in paragraph 74 of the impugned judgment. What exactly transpired in such conversations is known to accused Nos.1 and 2 alone. If accused No.2 was having conversation with accused No.1 on 24.10.2012 from 11.53 a.m. till up to 6.36 p.m., the oral testimony of PW.8 stating that himself and accused No.2 had been to land and deceased was alone in the house, cannot be believed. It is pertinent to note that PW.8 has not supported the case of the prosecution and he has been treated as hostile witness. In his cross examination on behalf of prosecution, he has given an admission that if Jayantha @ Jayaram is done to death, accused No.2 and her children could be benefited. On such cumulative consideration of oral testimony of PW.4 coupled with Ex.P29 and oral testimony of PW.8, learned trial Judge believed that prosecution has established the circumstance of last seen theory with cogent evidence on record. 49
(iii) Recovery:
31. The final circumstance according to the prosecution is recovery of the articles at the instance of accused pursuant to the voluntary statement. It is not in dispute that police after receipt of the missing complaint lodged by PW.8, were investigated the matter. They came to know the dead body of the deceased Jayantha @ Jayaram was found in Kotekaanu Forest near Majjigere. The police were able to seize empty tablets sheet marked at M.O.4. The seized articles were sent for Forensic Science Laboratory for examination and FSL Report clearly depicts that traces of alprazolam contents in remaining in mango juice and other articles and also in viscera. Defence has not come out with any specific defence or an alternate theory that somebody else had the motive to take away the life of the deceased. In the voluntary statement, accused No.1 revealed the details of the incident. We are aware that no evidentiary value can be attached to the incriminatory circumstances found in the voluntary statement of the accused; But acting under the powers vested in the Court under Section 27 of the Indian Evidence Act, prosecution in the case on hand is able to 50 prove the discovery of the fact and article i.e. the empty Tablet sheet and other articles under Ex.P13-mahazar. Accused Nos.1 and 2 have not offered any explanation whatsoever to the recovery of articles. The unnatural conduct of accused No.2 and PW.8 in keeping quite for a period of two days not lodging the missing complaint on 24.10.2012 or at least on the next day 25.10.2012 is a relevant factor. Recovery of the articles at the instance of accused coupled with the medical and scientific evidence on record, learned trial Judge held that recovery of articles M.Os.4, 6 and 7 at the instance of accused is pursuant to the voluntary statement as strengthened the case of the prosecution in establishing this circumstance.
32. On cumulative consideration of above circumstances, learned trial Judge has held that prosecution is able to establish all the circumstances whereby the chain of circumstance is established by prosecution which is not inconsistent with the innocence of the accused persons. The trial Judge also referred to number of judgments cited at the bar and has discussed in detail the legal principles enunciated 51 therein and applied the same to the case on hand and recorded a finding that prosecution is successful in establishing that accused persons are responsible for the homicidal death of the deceased. It is pertinent to note that even though there is a specific statement made by the prosecution witnesses about the illicit relationship accused Nos.1 and 2 possessed, strangely the appellant did not offer any explanation nor denied the relationship between them at the time of recording accused statements. The fact of the mixing alprazolam tablet in mango juice and made the deceased to drink the same and when the deceased was intoxication condition, accused persons have committed the homicidal death of the deceased by strangulation or done the same act whereby boy breathed his last. In Post Mortem reported marked at Ex.P25, the Autopsy Surgeon is opined that death is due to complication of overdose of alprazolam detected in the viscera.
33. Evidence is the raw material which judge or adjudicator uses to reach a finding of fact. It is easy for the Courts to analyze the oral testimony of eye witness in 52 reaching such a finding but in case of circumstantial evidence, it is a onerous responsibility of cast on the Courts to critically analyze the material available on record and deduced or infer that a fact must have occurred in a particular manner.
34. How said onerous exercise that is to be carried out by the Court in a given case where circumstantial evidence is to be appreciated is no longer res integra.
35. In Bodhraj v. State of Jammu and Kashmir reported in (2002) 8 Supreme Court Cases 45, the Hon'ble Apex Court has dealt with almost all facets of circumstantial evidence. The relevant portion of the said judgment is gainfully quoted hereunder; wherein it is held as under:
"10. It has been consistently laid down by this Court that where a case rests squarely on circumstantial evidence, the inference of guilt can be justified only when all the incriminating facts and circumstances are found to be incompatible with the innocence of the accused or the guilt of any other person. (See Hukam Singh v. State of 53 Rajasthan [(1977) 2 SCC 99 : 1977 SCC (Cri) 250 : AIR 1977 SC 1063] , Eradu v. State of Hyderabad [AIR 1956 SC 316 : 1956 Cri LJ 559] , Earabhadrappa v. State of Karnataka [(1983) 2 SCC 330 : 1983 SCC (Cri) 447 :
AIR 1983 SC 446] , State of U.P. v. Sukhbasi [1985 Supp SCC 79 : 1985 SCC (Cri) 387 : AIR 1985 SC 1224] , Balwinder Singh v. State of Punjab [(1987) 1 SCC 1 : 1987 SCC (Cri) 27 : AIR 1987 SC 350] and Ashok Kumar Chatterjee v. State of M.P. [1989 Supp (1) SCC 560 : 1989 SCC (Cri) 566 : AIR 1989 SC 1890] ) The circumstances from which an inference as to the guilt of the accused is drawn have to be proved beyond reasonable doubt and have to be shown to be closely connected with the principal fact sought to be inferred from those circumstances. In Bhagat Ram v. State of Punjab [AIR 1954 SC 621 : 1954 Cri LJ 1645] it was laid down that where the case depends upon the conclusion drawn from circumstances the cumulative effect of the circumstances must be such as to negative the innocence of the accused and bring home the offences beyond any reasonable doubt.
11. We may also make a reference to a decision of this Court in C. Chenga Reddy v. State of A.P. [(1996) 10 SCC 193 : 1996 SCC (Cri) 1205] wherein it has been observed thus: (SCC pp. 206-07, para 21) "21. In a case based on circumstantial evidence, the settled law is that the circumstances from which the 54 conclusion of guilt is drawn should be fully proved and such circumstances must be conclusive in nature.
Moreover, all the circumstances should be complete and there should be no gap left in the chain of evidence. Further, the proved circumstances must be consistent only with the hypothesis of the guilt of the accused and totally inconsistent with his innocence."
12. In Padala Veera Reddy v. State of A.P. [1989 Supp (2) SCC 706 : 1991 SCC (Cri) 407 : AIR 1990 SC 79] it was laid down that when a case rests upon circumstantial evidence, such evidence must satisfy the following tests: (SCC pp. 710-11, para 10) "10. (1) the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established;
(2) those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused; (3) the circumstances, taken cumulatively, should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else; and (4) the circumstantial evidence in order to sustain conviction must be complete and incapable of 55 explanation of any other hypothesis than that of guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence."
13. In State of U.P. v. Ashok Kumar Srivastava [(1992) 2 SCC 86 : 1992 SCC (Cri) 241 : 1992 Cri LJ 1104] it was pointed out that great care must be taken in evaluating circumstantial evidence and if the evidence relied on is reasonably capable of two inferences, the one in favour of the accused must be accepted. It was also pointed out that the circumstances relied upon must be found to have been fully established and the cumulative effect of all the facts so established must be consistent only with the hypothesis of guilt.
14. Sir Alfred Wills in his admirable book Wills' Circumstantial Evidence (Chapter VI) lays down the following rules specially to be observed in the case of circumstantial evidence: (1) the facts alleged as the basis of any legal inference must be clearly proved and beyond reasonable doubt connected with the factum probandum; (2) the burden of proof is always on the party who asserts the existence of any fact, which infers legal accountability; (3) in all cases, whether of direct or circumstantial evidence the best evidence must be adduced which the nature of the case admits; (4) in order to justify the inference of guilt, the inculpatory facts must be incompatible with the innocence of the 56 accused and incapable of explanation, upon any other reasonable hypothesis than that of his guilt; and (5) if there be any reasonable doubt of the guilt of the accused, he is entitled as of right to be acquitted.
15. There is no doubt that conviction can be based solely on circumstantial evidence but it should be tested on the touchstone of law relating to circumstantial evidence laid down by this Court as far back as in 1952.
17. A reference may be made to a later decision in Sharad Birdhichand Sarda v. State of Maharashtra [(1984) 4 SCC 116 : 1984 SCC (Cri) 487 : AIR 1984 SC 1622] . Therein, while dealing with circumstantial evidence, it has been held that the onus was on the prosecution to prove that the chain is complete and the infirmity of lacuna in the prosecution cannot be cured by a false defence or plea. The conditions precedent in the words of this Court, before conviction could be based on circumstantial evidence, must be fully established. They are: (SCC p. 185, para 153) (1) the circumstances from which the conclusion of guilt is to be drawn should be fully established. The circumstances concerned must or should and not may be established;
57(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; (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."
36. In a another Judgment of the Hon'ble Apex Court in the case of Santosh Kumar Singh v. State, (2010) 9 SCC 747 popularly known as Priyadarshini Mattu's case, the Hon'ble Apex Court has summarized the principles governing circumstantial evidence as under:
41. We are indeed astonished at these remarkably confusing and contradictory observations, as CBI was not called upon to prove the defence of the appellant.
CBI had fairly secured the documents which could prove the appellant's case and they were put on record and it 58 was for the defence to use them to its advantage. No such effort was made. Moreover, we are unable to see as to how these documents could have been exhibited as no one has come forward to prove them. It has to be kept in mind that the appellant was a lawyer and his father a very senior police officer, and we are unable to understand as to why no evidence in defence to prove the documents or to test their veracity, had been produced. In this background, we find that the medical evidence clearly supports the version that the injury had been sustained by the appellant on 24-1-1996 during the course of the rape and murder.
42. This finding raises yet another issue. It has been held time and again that a false plea taken by an accused in a case of circumstantial evidence is another link in the chain. In Trimukh Maroti Kirkan v. State of Maharashtra [(2006) 10 SCC 681 : (2007) 1 SCC (Cri) 80] it has been held: (SCC p. 689, para 12) "12. ... The normal principle in a case based on circumstantial evidence is that the circumstances from which an inference of guilt is sought to be drawn must be cogently and firmly established; that those circumstances should be of a definite tendency unerringly pointing towards the guilt of the accused; that the circumstances taken cumulatively should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and they should be incapable of explanation on any hypothesis other than 59 that of the guilt of the accused and inconsistent with their innocence."
and again: (SCC p. 690, para 14) "14. If an offence takes place inside the privacy of a house and in such circumstances, where the assailants have all the opportunity to plan and commit the offence at the time and in circumstances of their choice, it will be extremely difficult for the prosecution to lead evidence to establish the guilt of the accused if the strict principle of circumstantial evidence, as noticed above, is insisted upon by the courts. A Judge does not preside over a criminal trial merely to see that no innocent man is punished. A Judge also presides to see that a guilty man does not escape. Both are public duties. The law does not enjoin a duty on the prosecution to lead evidence of such character which is almost impossible to be led or at any rate extremely difficult to be led. The duty on the prosecution is to lead such evidence which it is capable of leading, having regard to the facts and circumstances of the case. Here it is necessary to keep in mind Section 106 of the Evidence Act which says that when any fact is especially within the knowledge of any person, the burden of proving that fact is upon him."
43. We, accordingly, endorse the opinion of the High Court on Circumstances 8 and 12. The onus to prove his defence and the circumstances relating to his injury and treatment were within the special knowledge of the appellant. He could, therefore, not keep silent and say 60 that the obligation rested on the prosecution to prove its case.
44. Mr Sushil Kumar has then argued with emphasis, that the case rested primarily on the factum of rape and if it was found that there was no evidence of rape, the case of murder would also fall through. He has, accordingly, taken us to Circumstance 9 which the trial court noted as under:
"DNA fingerprinting test conclusively established the guilt of the accused."
Mr Kumar has first pointed out that the post-mortem did not reveal any evidence of rape. Reference has been made to the statement of PW 33 Dr. A.K. Sharma, who along with a Board of two other doctors had performed the post-mortem on the dead body on 25-1-1996 at Safdarjung Hospital and it was observed that the deceased was wearing a full-sleeved high neck pinkish T-shirt with a small tear on the breast, blue-coloured jeans, one brassiere and underwear and woollen socks and though there were a large number of injuries on the dead body and the local examination of the private parts showed black, curly non-matted pubic hair, and an intact hymen, with no tearing. The doctor was also questioned as to whether the hymen would always be torn and ruptured during the first sexual encounter and he explained that though this would be the normal case but it was not always so and that the hymen could remain unruptured even after repeated sexual intercourse for 61 certain reasons which he then spelt out. It has, accordingly, been submitted that there was absolutely no evidence of rape detected during the course of the examination.
49. At the very outset, we must dispel Mr Sushil Kumar's rather broad argument that the primary allegations were of rape whereas murder was a secondary issue in the facts of the case and that the proof of murder would depend on proof of rape. We see from the record that there is very substantial evidence with regard to the allegations of murder simpliciter and have been dealt with under Circumstance 11.
50. We first see that right from the year 1994 to January 1996, that is, a few days before the murder, the appellant had been continuously harassing the deceased and that this allegation has been proved by ocular and documentary evidence. We also see that the appellant had been seen in the Faculty of Law, University of Delhi on the morning of the incident and had no business to be present at that place as he had passed out in the year 1994. He was also seen by PW 2 Shri Kuppuswami outside the house of the deceased at about 5 p.m. and was carrying a helmet with an intact fixed visor, and was seen moving out of Vasant Kunj Colony by two witnesses soon after 5 p.m. (though these witnesses ultimately turned hostile). The only argument against PW 2 is that his statement under Section 161 of the Code of Criminal Procedure had been recorded after three days. We find nothing adverse in this matter as there was utter 62 confusion in the investigation at the initial stage. Moreover, PW 2 was a next neighbour and a perfectly respectable witness with no bias against the appellant.
90. Mr Sushil Kumar has, however, placed greater reliance on Asraf Ali case [(2008) 16 SCC 328 : (2010) 4 SCC (Cri) 278] whereby this Court relying on a large number of judgments observed as under: (SCC p. 334, para 22) "22. The object of Section 313 of the Code is to establish a direct dialogue between the court and the accused. If a point in the evidence is important against the accused, and the conviction is intended to be based upon it, it is right and proper that the accused should be questioned about the matter and be given an opportunity of explaining it. Where no specific question has been put by the trial court on an inculpatory material in the prosecution evidence, it would vitiate the trial. Of course, all these are subject to rider whether they have caused miscarriage of justice or prejudice. This Court also expressed a similar view in S. Harnam Singh v. State (Delhi Admn.) [(1976) 2 SCC 819 : 1976 SCC (Cri) 324] while dealing with Section 342 of the Criminal Procedure Code, 1898 (corresponding to Section 313 of the Code). Non-indication of inculpatory material in its relevant facts by the trial court to the accused adds to the vulnerability of the prosecution case. Recording of a statement of the accused under Section 313 is not a purposeless exercise."
(emphasis supplied) 63 Undoubtedly, the observations are extremely relevant for the purpose of this case but each case has to be seen on its own facts, more particularly that the omission had caused prejudice to the accused as would be clear from the rider put by the court in this very case (and highlighted by us).
91. On the contrary, we find that that prejudice must ensue has been reiterated by this Court in Suresh Chandra Bahri case [1995 Supp (1) SCC 80 : 1995 SCC (Cri) 60] and a very large number of other cases. This is what the Court has to say in Bahri case [1995 Supp (1) SCC 80 : 1995 SCC (Cri) 60] : (SCC pp. 98-99, paras 26-27) "26. Learned Senior Counsel Shri Sushil Kumar appearing for the appellant Raj Pal Sharma submitted that in view of the fact that no question relating to motive having been put to the appellants on the point of motive under Section 313 of the Code of Criminal Procedure, no motive for the commission of the crime can be attributed to the appellants nor the same can be reckoned as circumstance against the appellants. It is no doubt true that the underlying object behind Section 313 CrPC is to enable the accused to explain any circumstance appearing against him in the evidence and this object is based on the maxim audi alteram partem which is one of the principles of natural justice. It has always been regarded unfair to rely upon any 64 incriminating circumstance without affording the accused an opportunity of explaining the said incriminating circumstance. The provisions in Section 313, therefore, make it obligatory on the court to question the accused on the evidence and circumstance appearing against him so as to apprise him the exact case which he is required to meet. But it would not be enough for the accused to show that he has not been questioned or examined on a particular circumstance but he must also show that such non-examination has actually and materially prejudiced him and has resulted in failure of justice. In other words in the event of any inadvertent omission on the part of the court to question the accused on any incriminating circumstance appearing against him the same cannot ipso facto vitiate the trial unless it is shown that some prejudice was caused to him. In Bejoy Chand Patra v. State of W.B. [AIR 1952 SC 105 : 1952 Cri LJ 644] this Court took the view that it is not sufficient for the accused merely to show that he has not been fully examined as required by Section 342 of the Criminal Procedure Code (now Section 313 in the new Code) but he must also show that such examination has materially prejudiced him. The same view was again reiterated by this Court in Rama Shankar Singh v. State of W.B. [AIR 1962 SC 1239 : (1962) 2 Cri LJ 296] In the present case before us it may be noted that no such point was raised and no such objection seems to have been advanced either before the trial court or the High Court and it is being raised for the first time before this Court which appears to us to be an afterthought. Secondly, learned 65 counsel appearing for the appellants was unable to place before us as to what in fact was the real prejudice caused to the appellants by omission to question the accused-appellant Suresh Bahri on the point of his motive for the crime. No material was also placed before us to show as to what and in what manner the prejudice, if any, was caused to the appellants or any of them.
27. Apart from what has been stated above, it may be pointed out that it cannot be said that the appellants were totally unaware of the substance of the accusation against them with regard to the motive part. In this regard a reference may be made to Question Nos. 5, 6 and 7 which were put to the appellant Suresh Bahri in the course of his statement recorded under Section 313 CrPC. The sum and substance of these questions is that from the prosecution evidence it turns out that the acquitted accused Y.D. Arya, the maternal uncle of the appellant Suresh Bahri was living in a portion of the upper storey of his house at Delhi. He with the consent of Santosh Bahri the mother of Suresh Bahri, was interfering in the family affairs as well as in business matters by reason of which the maternal uncle had to leave the house and that having regard to the future of her children Urshia Bahri not only wanted to manage the property but also to dispose of the same which was not liked by Suresh Bahri and with a view to remove Urshia Bahri from his way the appellant Suresh Bahri wanted to commit her murder. In view of these questions and examination of Suresh Bahri, it cannot be said that he 66 was totally unaware of the substance of the accusation and charge against him or that he was not examined on the question of motive at all. In the facts and circumstances discussed above it cannot be said that any prejudice was caused to the appellant. The contention of the learned counsel for the appellants in this behalf therefore has no merit."
(emphasis supplied)
37. As per the principles of law enunciated in Bodhraj's case and Santosh Kumar Singh's case stated supra, there is no iota of doubt that Courts can record an order of conviction even in a case where the case of the prosecution completely rests on circumstantial evidence. However, before reaching such a conclusion, following conditions are to be fully satisfied.
(i) Circumstances from which guilty is
established is proved.
(ii) All facts must be consistent with the
hypothesis of the guilt of the accused.
(iii) Circumstance must be conclusive nature and
tendency.
(iv) circumstantial evidence available on record
should be of moral certainty and actually
exclude every alternate hypothesis.
67
38. Applying the above principles to the case on hand, the materials available on record and on re-appreciation, clearly and categorically point out the guilt of the accused and none else. The motive nurtured by accused No.2 is established by prosecution in categorical terms that if Jayantha was done to death, acc. No.2 and her children would stand to gain. Last seen theory is also established by the prosecution through the oral testimony of pw.4. Recovery of empty tablets strips at the instance of the accused NO.1 pursuant to voluntary statement coupled with FSL report clearly indicating traces of alprazolam drug in the viscera collected by the pm doctor much earlier to the arrest of accused persons. On cumulative consideration establishes accused Nos.1 and 2 had hatched the plan to take away the life of Jayantha so that herself and her children would be benefited. In the absence of any explanation offered by accused NO.1 and 2 and accused NO.1 not denying the he was visiting the accused No.2 and not taking plea that he is total stranger to accused No.2 is a factor which would be helpful in inferring that accused NO.1 and 2 together planed for taking away the life of Jayantha. Presence of alprazolam 68 traces in the body of Jayantha and empty tablets strip seized by the police pursuant to voluntary statement accused No.1 establishes that before deceased was done to death, alprazolam was mixed in mango juice and made the deceased to drink the same and thereafter they have committed the homicidal death of the deceased. These factors would sufficiently attract all ingredients required to prove the charges leveled against the accused persons stated supra. However, we notice that there is no evidence on record to attract the offence under Section 115 IPC. None of the prosecution witnesses have deposed about the abetment which is the substance of the offence under Section 115 of IPC. Likewise prosecution case is silent as to who abetted whom. Moreover, when Section 34 IPC is invoked by prosecution and Trial Judge convicted the accused by resorting to Section 34 IPC, conviction of accused persons under Section 115 IPC cannot be countenanced in law inasmuch as Section 34 IPC and 115 IPC would not go hand in hand and as such, to that extent impugned judgment needs interference. Therefore, from the above discussions, we are constrained to hold that appellants have made out a 69 case for interference in respect of their conviction punishable under Section 115 of IPC. But they have failed to make out any grounds whatsoever much less good grounds to interfere with the impugned judgment convicting the appellants for the offences punishable under Sections 120-B, 302, 328 and 201 of IPC read with Section 34 IPC.
39. Accordingly, the point is answered partly in the affirmative holding that the appellants have made out a case to interfere with the finding recorded by the trial Court that the appellants are not guilty of the offence punishable under Section 115 of IPC but failed to make out a case to interfere with the findings recorded by the trial Court for the offences punishable under Sections 120-B, 302, 328 and 201 IPC read with Section 34 IPC.
40. In view of the above, we pass the following:
ORDER
1. Criminal Appeal is allowed-in-part.
2. The impugned judgment of conviction and order of sentence dated 09.12.2014 passed by the Fast Track Court, Sagara convicting the accused persons for the offence punishable under Section 115 read with Section 34 of IPC, is hereby set aside.70
3. The impugned judgment of conviction and order of sentence dated 09.12.2014 passed by the Fast Track Court, Sagara convicting the accused persons for the offences punishable under Sections 302, 120-B, 328 and 201 read with Section 34 of IPC, is hereby confirmed.
4. Office is directed to return the Trial Court records with a copy of this judgment, forthwith.
Sd/-
JUDGE Sd/-
JUDGE KA*