Karnataka High Court
Halegowda @ Ravi vs State Of Karnataka on 20 April, 2022
Author: B. Veerappa
Bench: B. Veerappa
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 20TH DAY OF APRIL, 2022
PRESENT
THE HON'BLE MR. JUSTICE B. VEERAPPA
AND
THE HON'BLE MR. JUSTICE S. RACHAIAH
CRIMINAL APPEAL No.626/2021
BETWEEN:
HALEGOWDA @ RAVI,
S/O MUTHAIAH,
AGED ABOUT 47 YEARS,
R/AT KADEGOWDANAHATTI,
NITTUR HOBLI,
GUBBI TALUK,
TUMKUR DISTRICT.
(PRESENTLY AT J.C.)
... APPELLANT
(BY SRI SHAKEER ABBAS., ADVOCATE)
AND:
STATE OF KARNATAKA,
THOUGH KIBBANAHALLI CROSS POLICE,
BENGALURU CITY,
REPRESENTED BY
STATE PUBLIC PROSECUTOR,
HIGH COURT BUILDING,
BANGALORE - 560 001.
...RESPONDENT
(BY SRI VIJAYAKUMAR MAJAGE, ADDL.SPP)
THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374(2)
CR.P.C PRAYING TO SET ASIDE THE JUDGMENT OF CONVICTION AND
ORDER OF SENTENCE DATED 24.03.2014 PASSED BY THE V
ADDITIONAL DISTRICT AND SESSIONS JUDGE, TIPTUR IN
S.C.NO.10014/2013 - CONVICTING THE APPELLANT/ACCUSED FOR
THE OFFENCE PUNISHABLE UNDER SECTION 302 OF IPC & ETC.
2
THIS APPEAL COMING ON FOR HEARING, THIS DAY,
B.VEERAPPA J, DELIVERED THE FOLLOWING:-
JUDGMENT
The accused, who has been in judicial custody for more than nine years, has filed the present criminal appeal against the impugned judgment of conviction and order of sentence dated 24.03.2014 passed by the learned V Additional District and Sessions Judge at Tiptur in S.C.No.10014/2013, convicting the accused under the provisions of section 302 of IPC and sentencing him to undergo life imprisonment and to pay fine of Rs.25,000/-.
2. It is the case of the prosecution that on 29.10.2012 at 10.30 p.m., on the rock by the side of residential hut situated at Sy.No.33/1 at Mallenahalli Village, Kibbanahalli Hobli, Tiptur Taluk, within the jurisdiction of Kibbanahalli Cross Police Station, Huchaiah - deceased requested the accused to provide alcohol for drinking, for which accused refused to provide it; at that time, deceased - Huchaiah abused the accused in filthy language and hence accused decided to kill him, and within half an hour, 3 at about 11.30 p.m., he confirmed himself that Huchaiah was sleeping and voluntarily assaulted him with big sized stone - M.O.1 weighing about 30 kgs., on the head of Huchaiah and thereby intentionally murdered him and committed an offence punishable under section 302 I.P.C.
3. Based on the complaint by PW.1 - Sharadamma, daughter-in-law of the deceased, as per Ex.P1 dated 30.10.2012, the jurisdictional Police registered Crime No.105/2012 for the offence under section 302 of IPC. The Investigation Officer after holding detailed investigation, filed chargesheet against the accused for the offence punishable under section 302 of IPC. The matter has been committed to the learned Sessions Judge. After committal, learned Sessions Judge secured the presence of the accused and framed charges against the accused for the aforesaid offence made out in charge memo and read over and explained in the language known to him. Accused pleaded not guilty and claimed to be tried.
4. In order to prove the case of the prosecution, the prosecution examined, in all, 9 witnesses as PW.1 to PW.9, got 4 marked 11 material documents as Ex.P.1 to Ex.P.11 and identified M.O.1 to M.O.13. After conclusion of evidence of the prosecution witnesses, the statement of the accused as contemplated under the provisions of Section 313 of Cr.P.C. was recorded. He denied all the incriminating evidence adduced by the prosecution witnesses and stated that he never resided in Mallenahalli Bhyrapura and he did not know prosecution witnesses of said village and further stated that he has been falsely implicated. Accused examined himself as DW.1 and got marked Ex.D1 as defence evidence.
5. Based on the aforesaid pleadings, learned Sessions Judge framed the point for consideration, which reads as under:-
"Whether the prosecution proves beyond reasonable doubt that on 29.10.2012 at 10-30 p.m. on rock by the side of residential hut situated at Sy.No.33/1 at Mallenahalli Village, Kibbanahalli Hobli, Tiptur Taluk, within the jurisdiction of Kibbanahalli Cross Police Station, Huchaiah requested accused to provide alcohol for drinking for which accused refused to provide it; at that time, Huchaiah abused accused in filthy 5 language and hence accused decided to kill him, and within half an hour, at about 11.30 p.m., he confirmed himself that Huchaiah is sleeping and voluntarily assaulted with big sized stone on head of Huchaiah and thereby committed an offence punishable under section 302 I.P.C.?"
6. Considering both the oral and documentary evidence on record, learned Sessions Judge answered the point in the affirmative, holding that the prosecution has proved, beyond reasonable doubt, that on 29.10.2012 at 10.30 p.m., on rock by the side of residential hut situated at Sy.No.33/1 at Mallenahalli Village, Kibbanahalli Hobli, Tiptur Taluk, within the jurisdiction of Kibbanahalli Cross Police Station, Huchaiah - deceased requested the accused to provide alcohol for drinking, for which accused refused to provide it; at that time, deceased - Huchaiah abused accused in filthy language and therefore the accused killed the deceased by assaulting with big sized stone - M.O.1, thereby intentionally murdered him and committed an offence punishable under section 302 I.P.C. Accordingly, the learned Sessions Judge proceeded to convict the accused to undergo life 6 imprisonment and to pay fine of Rs.25,000/-. Hence, the present appeal is filed.
7. We have heard learned counsel for the parties.
8. Sri.Shakeer Abbas, learned counsel for the appellant / accused contended with vehemence that impugned judgment of conviction and order of sentence convicting the accused to undergo imprisonment for life with fine for the offence under section 302 IPC is erroneous and contrary to the material on record and cannot be sustained and liable to be set aside. He would further contend that the trial Court failed to appreciate the material contradiction in the evidence of PW.1 to PW.9 which discloses that there was no motive whatsoever to kill the deceased. He would further contend that the learned Sessions Judge failed to notice that the contradictions and improvements in the evidence of the prosecution witnesses throw a strong doubt or suspicion on the case of the prosecution. Further he would submit that there are no eyewitnesses. The motive is not proved and the conviction is based only on circumstantial 7 evidence of PW.5, aged about 19 years, who states that she had last seen accused and deceased together.
9. He would further contend that antecedent based on suspicion of homicidal death of the deceased is not proved. Accused has specifically stated that he was not in the village on the date when the incident occurred. He would further contend that the Doctor, who examined the body of the deceased, has not been examined. The postmortem report - Ex.P6 has been marked through the Investigation Officer PW.7. He would further contend that as per Ex.P10 - opinion of the Doctor on M.O.1 - size stone weighs about 30 kgs., and if the accused assaulted on the head the deceased with M.O.1, the head of the deceased should have been crushed, but the material document Ex.P6 - postmortem report only says that occipital bone of the deceased is fractured. Therefore, the entire case of the prosecution based on circumstantial evidence is not proved and therefore, sought to allow the appeal.
10. Per contra, Sri.Vijayakumar Majage, learned Addl. SPP contended that, when the deceased demanded the accused 8 to share alcohol, when the accused refused to share it, the deceased used filthy language against the accused, thereby the accused, as spoken to by PW.5 who was last seen with the deceased, in sudden provocation, has assaulted the deceased with M.O.1. Though the Doctor, who issued postmortem report - Ex.P6, has not been examined, the same was marked through PW.7 - Investigation Officer, with the consent of the parties, and the Inquest witness, who has been examined, has supported the case of the prosecution, thereby, he sought to dismiss the appeal.
11. In view of the aforesaid rival contentions urged by the learned counsel for the parties, the only point that arises for our consideration, in the present appeal, is:-
"Whether the trial Court is justified in convicting the accused for imprisonment of life for the offence punishable under section 302 of IPC in the facts and circumstances of the present case?"9
12. We have given our anxious consideration to the arguments advanced by the learned counsel for the parties and perused the entire material including the original records carefully.
13. The gist of the case of the prosecution is that, on the unfortunate date, on 29.10.2012 at 10.30 p.m., on the rock by the side of residential hut situated at Sy.No.33/1 at Mallenahalli Village, Kibbanahalli Hobli, Tiptur Taluk, within the jurisdiction of Kibbanahalli Cross Police Station, when the accused was having alcohol, Huchaiah - deceased requested the accused to provide alcohol for drinking, for which accused refused to provide it; at that time, deceased - Huchaiah abused the accused in filthy language and hence, the accused decided to kill him, and within half an hour, at about 11.30 p.m., he confirmed himself that Huchaiah was sleeping and voluntarily assaulted on the head of Huchaiah with big sized stone - M.O.1, weighing about 30 kgs., and thereby has committed the murder.
14. This Court being the Appellate Court, in order to re-appreciate the entire material on record, it is relevant to 10 consider the evidence of prosecution witnesses and material documents relied upon:-
(a) PW.1 - Sharadamma, who is the informant and daughter-in-law of the deceased, who lodged the complaint as per Ex.P1, deposes that the accused was residing at their village and was sleeping at Kallalamma temple. On 29/10/2012, since it was full moon day, there was Pooja at Temple. She along with her husband was running a petty shop near the temple. On 29/10/2012, at about 9.00 p.m., she had seen the accused at Temple.
When the accused saw them at around 9.00 p.m. - 9.30 p.m., he informed them that he is going to meet her father-in-law / deceased. She saw the accused coming back to the Temple at around 12.30 a.m. midnight and slept at Temple.
She further deposes that on 30/10/2012, at 5.30 a.m., the accused was not present at spot where he was sleeping. At 6.00 a.m., when she went near the rock, she found her father-in-law dead. Blood was oozing from the 11 back of his head and there was a size stone lying near his head and it was blood stained. At around 10.00 a.m., she went to the Police Station and lodged the complaint (Ex.P-
1) and one Krishnappa had written the complaint. Since accused is missing from the spot since 5.30 a.m., she has suspicion on accused. When the dog-squad came and stopped near the temple, it was came to know that accused has washed his legs and slept there.
In the cross-examination, she has deposed that someone came and informed her that her father-in-law is lying dead on the rock. She does not know his name. Then the time was 6.30 a.m. She was the first to reach the spot. Accused and deceased were having cordial relationship. She has supported the case of the prosecution.
(b) PW.2 - M.H.Chandrashekaraiah, son of the deceased, has deposed that on 29/10/2012, at 12-00 - 12-30 a.m., he saw the accused washing his hands and legs and came near his petty shop and when he had gone 12 to temple to chant bhajana, accused also slept on the platform of temple. He further deposes that the accused had put size stone on his father's head because he was angry since his father had spoken something against him.
In the cross-examination, he has deposed that there was no enmity between his father and accused. They can see the rock from the shop. Someone from the village had given information to the police. Police had come to spot at 9-00 a.m. He has supported the case of the prosecution.
(c) PW.3 - P.M.Ramaswamy, same villager, has deposed that PW.1 and PW.2 are from his village and known to him and they are running a shop near Kallalamma's temple. Accused is residing in their village since six months and was doing a coolie work of digging latrine pit.
On 29.10.2012, since it was full moon day, he had gone to Kallalamma's temple for bhajana. At around 12.00 a.m., when he was leaving temple, he saw the accused washing his hands and legs near water tank. When police had brought accused to the village, he came 13 to know that the accused only committed murder. He is the witness to the Spot Mahazar -Ex.P2.
In the cross-examination, he has deposed that on 29.10.2012, at around 8.00 p.m. - 9.00 p.m., he had last seen the deceased near the rock. The accused was residing in their village for about six months and was doing coolie work of digging latrine pit. He has supported the case of the prosecution.
(d) PW.4 - B.K.Shekaraiah, speaks about conduct & behavior of Accused. He is a witness to Spot Mahazar - Ex.P2 and Inquest Mahazar - Ex.P3. He had given contract work to the accused on 29/10/2012 at 10.00 a.m. He came to know about the death of the deceased at 5-00 a.m. on 30/10/2012. He had seen the dead body with injury on the forehead.
In the cross-examination, he has admitted that he is known to the deceased and nephew of the deceased since childhood. He also knows that the accused had put stone on deceased. After the death of Huchaiah, the accused 14 was missing from village. There was no enmity between them. He states that when he saw the dead body, it was lying on its back and there was injury on left forehead. One can see rock from the shop. He has supported the case of the prosecution.
(e) PW.5 - Deepika, granddaughter of the deceased and daughter of PW.1 and PW.2, has deposed that, at about 1 year 2-3 months back, she along with her sisters were sleeping at home. The deceased was sleeping on the rock. Since it was full moon day, there was bhajana in the temple. Her parents were there at the shop. Rock was ten steps away from house. She had provided dinner to the deceased at around 9.00 p.m. - 9.30 p.m. on 29/10/2012. She has not given any statement before anyone on this regard.
In the cross-examination, she has admitted that on 29.10.2012, her grandfather had not consumed alcohol and he has not gone anywhere. He had no enmity even with accused also and he had never fought in front of us. 15 She has not seen the accused sleeping at temple. She does not know for how long the accused had spoken to deceased on that night. She has supported the case of the prosecution.
(f) PW.6 - Sannaningappa, is a witness to Ex.P4 - Mahazar. He has turned hostile.
(g) PW.7 - K.G.Ramakrishna, conducted the entire investigation and filed chargesheet. Ex.P5 to Ex.P10 were marked through PW-7. M.O.11 to M.O.13 were identified by PW.7. Supported the case of the prosecution.
(h) PW.8 - S.K.Nagabhushanaradhya working as Assistant Engineer, Grade-II, PWD, Tiptur Sub-Division, Tiptur, deposes that, on the request made by the jurisdictional police, he prepared the Sketch as per Ex.P7. Supported the case of the prosecution.
(i) PW.9 - S.Vijayalakshmi, PSI, who registered the FIR
- Ex.P11, on the basis of the complaint lodged by PW.1. She has supported the case of the prosecution. 16
(j) DW.1 - Halegowda has produced chargesheet in Crime No.201/2012 of Arasikere Police Station which is marked as Ex.D1. He deposes that he is doing coolie work in his village. He did not go anywhere. He pleaded his innocence.
Based on the aforesaid material, learned Sessions Judge proceeded to convict the accused.
15. The material on record clearly depicts that neither there are any eyewitnesses to the unfortunate incident occurred nor the prosecution witnesses proved the motive as alleged. Learned Sessions Judge proceeded to convict the accused based on the evidence of PW.5 - granddaughter of the deceased, aged about 19 years, who stated that, on the unfortunate day, the deceased was sleeping on the rock. Since it was a full moon day, there was bhajan in the temple. Her parents were sleeping at shop. The rock was ten steps away from the house. In the cross-examination, she has further deposed that, on the date of the incident, her grandfather had not consumed alcohol nor he 17 had gone anywhere. She has further specifically stated that he had no enmity with the accused and he never fought in front of her. She has not seen the accused sleeping at temple. She does not know for how long the accused had spoken to the deceased on the night when the unfortunate incident occurred. Learned Sessions Judge proceeded to convict the accused mainly on the basis of the evidence of PW.5 without there being any corroboration.
16. It is not in dispute that subsequent to the incident, the conduct of the accused, as spoken to by PW.1, PW.2, PW.3, PW.4 and PW.5 that, at about 12.00 mid-night, the accused was washing his hands and legs and the accused also was sleeping in the corridor of the temple. If really the accused had hit the deceased, who is his friend, with M.O.1 - size stone weighing about 30 Kgs., in all probability, the accused should not have been slept in the temple, which is near the house of the deceased and shop of the deceased's son and daughter-in-law. The said improbability has not been considered by the trial Court.
18
17. It is also not in dispute that the complainant PW.1 - Sharadamma, daughter-in-law of the deceased and PW.2 - M.H.Chandrashekaraiah, son of the deceased, specifically stated that the deceased and accused were having cordial relationship and there was no enmity between the deceased and the accused and they can see the rock from the shop. PW.3 also deposes that since it was full-moon day on 29.10.2012, he had gone to the temple for bhajan. At around 12.00 a.m., when he was leaving the temple, he saw the accused washing his hands and legs at water tank. PW.4 has admitted in cross-examination that there was no enmity between the accused and the deceased. When he saw the dead body, it was lying on the back and there was injury on left forehead. The evidence of PW.1, PW.2, PW.3, PW.4 and PW.5 clearly depicts that there was no enmity between the accused and the deceased. If really the accused is involved in the homicidal death of the deceased, by assaulting with M.O.1
- size stone weighing 30 kgs., as alleged by the prosecution, the head of the deceased should have been crushed into pieces. But the prosecution has not examined the Doctor to prove the said 19 fact. The postmortem report - Ex.P6 marked through PW.7, the Investigation Officer, clearly depicts fracture of occipital bone, thereby the very case of the prosecution is doubtful. The accused has also taken a plea that he was not in the village on the day of the incident. But the fact remains that he was seen by PW.1 to PW.5 sleeping in the temple after washing his hands and legs. If really the accused is involved in the homicidal death of the deceased, in all probability, he would not have gone to the temple where people were doing bhajan and slept in the temple, but he would have escaped from the scene of occurrence. Probably, both the accused and the deceased, as spoken to by PW.1 to PW.5, were having good relationship. After having consumed alcohol together, the accused might have come back to the temple and the deceased might have fallen on the rock, thereby sustained injury on the backside of his head and absolutely there is no material to prove, beyond reasonable doubt, the involvement of the accused in the homicidal death of the deceased. The said material has not been considered by the learned Sessions Judge and taking into consideration the conduct of the accused, if really he has committed the murder, he would 20 not have went to the temple after washing his hands and legs and slept in the temple and he would not have disclosed about the earlier criminal case -Ex.D1 which was filed against him. Therefore, in the absence of any corroborative evidence and in the absence of proper explanation by the prosecution witnesses, the circumstance of last seen together only cannot be the basis for conviction.
18. Our view is fortified by the dictum of the Hon'ble Supreme Court in the case of ANJAN KUMAR SARMA & Others vs. STATE OF ASSAM reported in (2017) 14 SCC 359, paras 19, 20, 23 to 25, wherein it is held as under:-
"19. The circumstance of last seen together cannot by itself form the basis of holding the accused guilty of the offence. In Kanhaiya Lal v. State of Rajasthan (2014) 4 SCC 715 : (2014) 2 SCC (Cri) 413, this Court held that:
(SCC p.719, paras 12 & 15) '12. 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. Mere non-explanation on the part of the appellant, 21 in our considered opinion, by itself cannot lead to proof of guilt against the appellant.
15. The theory of last seen-the appellant having gone with the deceased in the manner noticed hereinbefore, is the singular piece of circumstantial evidence available against him. The conviction of the appellant cannot be maintained merely on suspicion, however strong it may be, or on his conduct. These facts assume further importance on account of absence of proof of motive particularly when it is proved that there was cordial relationship between the accused and the deceased for a long time.
The fact situation bears great similarity to that in Madho Singh v. State of Rajasthan (2010) 15 SCC 588 : (2012) 4 SCC (Cri)
767.' 20 In Arjun Marik v. State of Bihar 1994 Supp (2) SCC 372 : 1994 SCC (Cri) 1551, this Court held that:
(SCC p.385 para 31) '31. Thus the evidence that the appellant had gone to Sitaram in the evening of 19-7-1985 and had stayed in the night at the house of deceased Sitaram is very shaky and inconclusive. Even if it is accepted that they were there it would at best amount to 22 be the evidence of the appellants having been seen last together with the deceased.
But it is settled law that the only circumstance of last seen will not complete the chain of circumstances to record the finding that it is consistent only with the hypothesis of the guilt of the accused and, therefore, no conviction on that basis alone can be founded.'
23. It is clear from the above that in a case where the other links have been satisfactory made out and the circumstances point to the guilt of the accused, the circumstance of last seen together and absence of explanation would provide an additional link which completes the chain. In the absence of proof of other circumstances, the only circumstance of last seen together and absence of satisfactory explanation cannot be made the basis of conviction. The other judgments on this point that are cited by Mr. Venkataramani do not take a different view and, thus, need not be adverted to. He also relied upon the judgment of this Court in State of Goa v. Sanjay Thakran (2007) 3 SCC 755 :
(2007) 2 SCC (Cri) 162 in support of his submission that the circumstance of last seen together would be a relevant circumstance in a case where there was no possibility of any other persons meeting or approaching the deceased at the place of incident or before the commission of crime in the intervening period. It was 23 held in the above judgments as under: (SCC p.776, para 34).
'34. From the principle laid down by this Court, the circumstance of last seen together would normally be taken into consideration for finding the accused guilty of the offence charged with when it is established by the prosecution that the time gap between the point of time when the accused and the deceased were found together alive and when the deceased was found dead is so small that possibility of any other person being with the deceased could completely be ruled out. The time gap between the accused persons seen in the company of the deceased and the detection of the crime would be a material consideration for appreciation of the evidence and placing reliance on it as a circumstance against the accused. But, in all cases, it cannot be said that the evidence of last seen together is to be rejected merely because the time gap between the accused persons and the deceased last seen together and the crime coming to light is after (sic of) a considerable long duration. There can be no fixed or straitjacket formula for the duration of time gap in this regard and it would depend upon the evidence led by the prosecution to remove the possibility of any 24 other person meeting the deceased in the intervening period, that is to say, if the prosecution is able to lead such an evidence that likelihood of any person other than the accused, being the author of the crime, becomes impossible, then the evidence of circumstance of last seen together, although there is long duration of time, can be considered as one of the circumstances in the chain of circumstances to prove the guilt against such accused persons. Hence, if the prosecution proves that in the light of the facts and circumstances of the case, there was no possibility of any other person meeting or approaching the deceased at the place of incident or before the commission of the crime, in the intervening period, the proof of last seen together would be relevant evidence. For instance, if it can be demonstrated by showing that the accused persons were in exclusive possession of the place where the incident occurred or where they were last seen together with the deceased, and there was no possibility of any intrusion to that place by any third party, then a relatively wider time gap would not affect the prosecution case.'
24. As we have held that the other circumstances relied upon by the prosecution are not proved and that 25 the circumstances of last seen together along with the absence of satisfactory explanation are not sufficient for convicting the accused. Therefore the findings recorded in the above judgment are not applicable to the facts of this case.
25. Due to the lack of chain of circumstances which lead to the only hypothesis of guilt against the accused, we set aside the judgment of the High Court and acquit the appellants of the charges of Sections 302, 201 read with Section 34 IPC. The appellants are directed to be set at liberty forthwith, if not required in any other case."
19. It is well settled that mere failure of the accused to offer explanation in his statement under section 313 of Cr.P.C., alone is not sufficient to establish the charge against the accused, in the absence of any other corroborative evidence to prove that the accused has murdered the deceased. In the present case, the Doctor has not been examined. It is only on the evidence of PW.5, who deposes that, she has last seen accused and the deceased together, the trial Court should not have convicted the accused. PW.5 also admitted that she has not seen for how long the accused was sleeping in the temple 26 and there was no enmity between the accused and the deceased and they had never fought in front of her, thereby the entire case of the prosecution is doubtful.
20. It is well settled that there is no embargo on the Appellate Court reviewing the evidence upon which an order of conviction is based. The golden thread which runs through the web of administration of justice in criminal cases is that if two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and the other to his innocence, the view which is favourable to the accused should be adopted. The paramount consideration of the Court is to ensure that miscarriage of justice is prevented. A miscarriage of justice which may arise from acquittal of the guilty is no less than from the conviction of an innocent. Admittedly, in the present case, the prosecution has not probabalised that by assaulting with M.O.1 - stone weighing about 30 kgs., as per Ex.P10, the opinion of the Doctor, it is not possible to come to a conclusion that the deceased sustained injury on the backside of the head. If really the accused had murdered the deceased by assaulting 27 with M.O.1 - size stone weighing about 30 kgs., as already stated supra, the head of the deceased should have been crushed. The same has not been proved in the present case and the entire case of the prosecution is only on the suspicion of PW.5 and as admitted by PW.1 in her cross-examination.
21. It is also well settled that mere suspicion would not be sufficient, unless the circumstantial evidence tendered by the prosecution leads to the conclusion that it "must be true"
and not "may be true", as held by the Hon'ble Supreme Court in the case of PARUBAI vs. STATE OF MAHARASHTRA reported in AIR 2021 SC 3784, at para No.14 and sub-paras 18 and 19 of para 14, which read as under:-
"14. Further the mere suspicion would not be sufficient, unless the circumstantial evidence tendered by the prosecution leads to the conclusion that it "must be true" and not "may be true". In that regard, it is necessary to take note of the decision of this Court in the case of Devilal Vs. State of Rajasthan (2019) 19 SCC 447, wherein this Court on noting the decision of the case Sharad Birdhichand Sarda (supra) has held as hereunder;28
18. On an analysis of the overall fact situation in the instant case, and considering the chain of circumstantial evidence relied upon by the prosecution and noticed by the High Court in the impugned judgment, to prove the charge is visibly incomplete and incoherent to permit conviction of the appellants on the basis thereof without any trace of doubt. Though the materials on record hold some suspicion towards them, but the prosecution has failed to elevate its case from the realm of "may be true" to the plane of "must be true" as is indispensably required in law for conviction on a criminal charge. It is trite to state that in a criminal trial, suspicion, howsoever grave, cannot substitute proof.
19. That apart, in the case of circumstantial evidence, two views are possible on the case of record, one pointing to the guilt of the accused and the other his innocence. The accused is indeed entitled to have the benefit of one which is favourable to him. All the judicially laid parameters, defining the quality and content of the circumstantial evidence, bring home the guilt of the accused on a criminal charge, we find no 29 difficulty to hold that the prosecution, in the case in hand, has failed to meet the same."
22. For the reasons stated above, the point raised in the present appeal has to be answered in the negative, holding that the trial Court is not justified in convicting the accused for imprisonment of life for the offence punishable under section 302 of IPC and the accused has made out a case to interfere with the impugned judgment of conviction and order of sentence dated 24.03.2014 made in SC No.10014/2013 on the file of the learned V Additional District and Sessions Judge at Tiptur.
22. In view of the above observation, we pass the following:-
ORDER
i) The criminal appeal filed by the appellant-accused is hereby allowed.
ii) The impugned judgment of conviction and order of sentence dated 24.03.2014 in S.C.No.10014/2013 on the file of the learned V Addl. District and Sessions Judge at Tiptur, 30 convicting the appellant/accused for the offence punishable under Section 302 of IPC is hereby set aside.
iii) The appellant / accused is hereby acquitted of the offence under section 302 of IPC.
iv) The jurisdictional Jail Authority is directed to release the accused forthwith, if he is not required in any other case.
In view of the disposal of the appeal, I.A.No.2/2020 does not survive for consideration and the same is also disposed of.
Sd/-
JUDGE Sd/-
JUDGE Bss