Karnataka High Court
Mohammed Kamaluddin @ Sayyed Saidu vs State By Puttur Rural Police on 7 March, 2022
Author: B. Veerappa
Bench: B. Veerappa
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 07TH DAY OF MARCH, 2022
PRESENT
THE HON'BLE MR. JUSTICE B. VEERAPPA
AND
THE HON'BLE MR. JUSTICE S. RACHAIAH
CRIMINAL APPEAL No. 1300/2018
C/W
CRIMINAL APPEAL No. 1118/2017
CRIMINAL APPEAL No. 1300/2018
BETWEEN:
MOHAMMED KAMALUDDIN,
@ SAYYED SAIDU,
S/O ABDUL KHADER,
AGED ABOUT 33 YEARS,
R/AT MURIYALA HOUSE,
KARAYA POST,
URUVALU VILLAGE,
BELTHANGADY TALUK,
D.K. DISTRICT - 574 221.
... APPELLANT
(BY SRI N.R. KRISHNAPPA, ADVOCATE)
AND:
STATE BY PUTTUR RURAL POLICE,
UPPINANGADI,
PUTTUR K.K.,
2
REP. BY ITS SPP,
HIGH COURT BUILDING,
HIGH COURT,
BANGALORE - 560 001.
...RESPONDENT
(BY SRI K. NAGESHWARAPPA, HCGP)
THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374(2)
CR.P.C PRAYING TO SET ASIDE THE JUDGMENT OF CONVICTION
DATED 22.02.2017 AND SENTENCE DATED 25.02.2017 PASSED BY
THE V ADDITIONAL DISTRICT AND SESSIONS JUDGE, D.K.,
MANGALORE, SITTING AT PUTTUR, D.K. IN S.C.NO.33/2013 -
CONVICTING THE APPELLANT/ACCUSED NO.2 FOR THE OFFENCE
PUNISHABLE UNDER SECTIONS 449, 302 AND 392 READ WITH 34 OF
IPC. THE APPELLANT/ACCUSED NO.2 IS SENTENCED TO UNDERGO
LIFE IMPRISONMENT AND PAY FINE OF RS.3,000/-, IN DEFAULT TO
PAY FINE, HE SHALL FURTHER UNDERGO S.I. FOR 3 MONTHS FOR THE
OFFENCE PUNISHABLE UNDER SECTION 302 READ WITH SECTION 34
OF IPC. THE APPELLANT/ACCUSED IS SENTENED TO UNDERGO R.I.
FOR 10 YEARS AND PAY FINE OF RS.5,000/-, IN DEFAULT TO PAY
FINE, HE SHALL FURTHER UNDERGO S.I. FOR 5 MONTHS FOR THE
OFFENCE PUNISHABLE UNDER SECTION 449 READ WITH S.34 OF IPC.
THE APPELLANT/ACCUSED IS SENTENCED TO UNDERGO R.I. FOR 10
YEARS AND PAY FINE OF RS.5,000/-, IN DEFAULT TO PAY FINE, HE
SHALL FURTHER UNDERGO S.I. FOR 5 MONTHS FOR THE OFFENCE
PUNISHABLE UNDER SECTION 392 READ WITH 34 OF IPC. ALL THE
SENTENCES SHALL RUN CONCURRENTLY. THE APPELLANT/ACCUSED
PRAYS THAT HE BE ACQUITTED.
CRIMINAL APPEAL No. 1118/2017
BETWEEN:
MOHAMMAD RAFEEQ @ RAFEEQ,
S/O M.Y. BASHEER,
AGED ABOUT 33 YEARS,
KARKALLI BANE HOUSE,
MASCOD POST,
NAGAROOR VILLAGE,
3
SOMAWARAPETE TALUK,
KODGU DISTRICT - 571 236.
... APPELLANT
(BY SRI. N.R. KRISHNAPPA, ADVOCATE)
AND:
THE STATE OF KARNATAKA,
BY CIRCLE INSPECTOR OF POLICE,
PUTTUR RURAL CIRCLE,
UPPINANGADY,
PUTTUR - 574 241,
DAKSHINA KANNADA,
NOW REP. BY STATE P.P.,
HIGH COURT OF KARNATAKA BUILDING,
BENGALURU - 560 001.
...RESPONDENT
(BY SRI K. NAGESHWARAPPA, HCGP)
THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374(2)
CR.P.C PRAYING TO SET ASIDE THE JUDGMENT OF CONVICTION
DATED 22.02.2017 AND SENTENCE DATED 25.02.2017 PASSED BY
THE V ADDITIONAL DISTRICT AND SESSIONS JUDGE, D.K.,
MANGALORE, SITTING AT PUTTUR, D.K. IN S.C.NO.33/2013 -
CONVICTING THE APPELLANT/ACCUSED FOR THE OFFENCE
PUNISHABLE UNDER SECTION 449,302 AND 392 READ WITH 34 OF
IPC. THE APPELLANT/ACCUSED IS SENTENCED TO UNDERGO LIFE
IMPRISONMENT AND PAY FINE OF RS.3,000/-, IN DEFAULT TO PAY
FINE, HE SHALL FURTHER UNDERGO S.I. FOR 3 MONTHS FOR THE
OFFENCE PUNISHABLE UNDER SECTION 302 READ WITH OF IPC. THE
APPELLANT/ACCUSED IS SENTENED TO UNDERGO R.I. FOR 10 YEARS
AND PAY FINE OF RS.5,000/-, IN DEFAULT TO PAY FINE, HE SHALL
FURTHER UNDERGO S.I. FOR 5 MONTHS FOR THE OFFENCE
PUNISHABLE UNDER SECTION 449 READ WITH 34 OF IPC. THE
APPELLANT/ACCUSED IS SENTENCED TO UNDERGO R.I. FOR 10
YEARS AND PAY FINE OF RS.5,000/-, IN DEFAULT TO PAY FINE, HE
SHALL FURTHER UNDERGO S.I. FOR 5 MONTHS FOR THE OFFENCE
PUNISHABLE UNDER SECTION 392 READ WITH 34 OF IPC. ALL THE
SENTENCES SHALL RUN CONCURRENTLY. THE APPELLANT/ACCUSED
PRAYS THAT HE BE ACQUITTED.
4
THESE APPEALS COMING ON FOR HEARING, THIS DAY,
B. VEERAPPA J, DELIVERED THE FOLLOWING:-
JUDGMENT
The accused persons have filed these criminal appeals against the impugned judgment of conviction dated 22.02.2017 and order of sentence dated 25.02.2017 made in Sessions Case No.33/2013 on the file of the V Additional District and Sessions Judge, Dakshina Kannada, Mangaluru, Sitting at Puttur, Dakshina Kannada, convicting the accused Nos.1 and 2 for the offences punishable under the provisions of sections 449, 302, 392 read with section 34 of Indian Penal Code (hereinafter referred to as "IPC" for short).
2. It is the case of the prosecution that, the accused No.1 is the resident of Karkalli, Bane House of Nagarror Village of Somawarpete Taluk of Kodagu District and married to the daughter of Puthumonu, resident of Kodankeri of Kodimbala Village, Puttur Taluk. Accused No.2 is the resident of Muriyala House of Uruvalu Village of Belthangady Taluk and married the daughter of Mammunhi, resident of Kodengeri of Kodimbala 5 Village, Puttur Taluk, situated nearby the house of the wife of the accused No.1. They came to know each other while coming to their in-laws house and became close to each other. Accused No.2 earlier supplied laterite stone and sand to one Baby @ Thomas while constructing his house in Sy.No.147/2 at Undila of Kodimbala village and had good relationship with him. Accused No.2 shared this fact with accused No.1 and also disclosed that Baby Thomas and his wife Mary Thomas only two were residing in the house. At that time, accused No.2 shared his financial difficulties and hence, both in furtherance of their common intention of gaining money wrongfully, decided to rob the golden ornaments worn by Baby Thomas and his wife Mary Thomas. It is the further case of the prosecution that, on 25.09.2012, they brought the motorcycle of accused No.1 from his house at Somawarpete bearing No.KA.09.L.3165 and while coming, they purchased two knives from the market of Somawarpete and reached Kodimbala at night 12.00 p.m. and by switching off the motorcycle, pulled the motorcycle near the house of Baby Thomas to park it there on the guise that motorcycle was out of order. Then Thomas in order to drop them to their in-laws 6 house took them in his car bearing registration No.KL-10-T- 5009. Accused No.2 was sitting in front seat and accused No.1 was sitting in back seat of the car. Accused persons in furtherance of their common intention, asked him to stop the car at Bollur Cross and when he stopped the car, accused No.1 stabbed the neck of Baby Thomas on the right side by knife and when he tried to escape, accused No.1 held him and pulled his both hands back, at that time, accused No.2 stabbed the neck of Baby Thomas, causing bleeding injury and thereby they committed the murder of Baby Thomas and removed the golden chain weighing about 34.600 grams, worth Rs.90,800/- from his neck. Thereafter, they took the car to the house of said Baby Thomas along with the dead body and parked the car at a little distance from the house on mud road and trespassed into the house of Baby Thomas, by pushing the door forcibly with an intention to kill and rob the golden ornaments. Accused No.1 held Smt.Mary Thomas, wife of Baby Thomas and accused No.2 closed her mouth and stabbed with knife on her neck and murdered her and removed her ear studs weighing 4.100 grams and cash of 8,400/- from the cupboard, two mobile sets of Lava 7 and Nokia and thereby committed the offences punishable under the provisions of sections 449, 392, 302 read with section 34 of IPC.
3. PW.1 was working in the rubber plantation of deceased persons since 1½ years prior to the incident. After working till noon of 25.09.2012 and after talking with the deceased persons, he went to his house. He returned to the garden of deceased persons on 26.09.2012, at about 6.30 a.m., and he worked till 6.45 p.m., and he did not find Baby Thomas and his wife Mary Thomas, as usually, by that time the deceased persons used to extract milk from the cattle and doing garden work, but on 26.09.2012 till 6.45 a.m., as he did not see them, he went to the house of PW.2 to enquire because whenever deceased used to go to village, they used to ask PW.2 to extract milk from the cattle and thus PW.1 enquired with PW.2 who showed ignorance saying that they did not tell anything to him. PW.2 also stated that on the night of 25.09.2012, both Baby Thomas and Mary were present. Thereafter, PW.1, PW.2 and wife of PW.2 namely PW.3 came together to the house of the 8 deceased and saw that one front door of the house of the deceased was kept open and another was closed. When PW.1 to PW.3 saw inside the house, in hall they saw Mary Thomas lying on the ground in a pool of blood and she was dead. They were shocked and while standing in the house yard, they noticed that at a distance of 50 feet from the house, in a rough road, car of Baby Thomas was stopped. All the three persons went near the car and saw that Baby Thomas was in sitting like position in the driver seat, leaning towards left side and dead. He had sustained injuries to the neck and blood was poured, door of the car was closed. Then PW.2 intimated the matter to the police over phone. Again PW.1 to PW.3 went near the house of the deceased and saw through the open window and found that one almirah kept in bed room was opened. Clothes, paper and other articles were scattered on the ground. Some culprits, with an intention to rob gold from the house of the deceased persons, in the night of 25.09.2012, had cut the neck of Mary in the hall of the house and had cut the neck of Baby Thomas in his car, using sharp edged weapons.
9
4. On the basis of the complaint lodged, the jurisdictional police registered Crime No.98/2012 under the provisions of section 302 of IPC on 26.09.2012 at about 11.30 a.m. After investigation, the jurisdictional police filed charge sheet against accused Nos.1 and 2 under the provisions of sections 392, 449, 302 read with section 34 of IPC.
5. After the matter was committed to the learned Sessions Judge, learned Sessions Judge secured the presence of the accused persons and framed common charge against accused Nos.1 and 2 and read out to them who pleaded not guilty and claimed to be tried.
6. In order to prove the case of the prosecution, the prosecution, in all, examined PW.1 to PW.42, material documents Exhibits P1 to P74, material objects M.Os.1 to 18, Ex.D1 portion marked in the statement of PW.5. After completion of the evidence of prosecution witnesses, statements of the accused persons as contemplated under the provision of section 313 Cr.P.C. were recorded. The accused persons denied the incriminating circumstances appearing in the evidence of the 10 prosecution witnesses against them, but they did not choose to lead any defence evidence. But the accused persons filed separate statements under the provisions of section 313(5) of Cr.P.C. Accused No.1 has produced Xerox copy of RC of motorcycle bearing registration No.KA.09.L.3165 (MO.17) and also one receipt bearing Sl.No.2684 of Nethyanidi Tevanathi Sangrahana Rasheedi dated 30.04.2012 issued by Balaji Financiers, Somwarpete for having paid pigmy amount of Rs.900/- by the accused No.1.
7. It is stated by the accused No.1 that the entire allegations against the accused made by the prosecution are all false and they were not involved in the alleged incident that occurred on 25.09.2012 and the Enquiry Officer has not recovered either gold chain, gold bendole, mobiles belonging to the deceased persons. All the material objects are collected by the Enquiry Officer at the instance of the members of the deceased persons only to implicate the accused No.1 and denied the other allegations.
11
8. Accused No.2 also filed the statement under section 313(5) of Cr.P.C., denied the allegations made against him and contended that, it is the Enquiry Officer who created all the documents and falsely implicated him and he who has nothing to do with the offence or nothing to do with the material objects recovered and they were not recovered from him.
9. Based on the aforesaid pleadings, learned Sessions Judge framed four points for consideration:-
1. Whether the prosecution is able to prove the homicidal death of Baby Thomas and his wife Mary Thomas on the intervening night of 25/26-09-2012 at Bollur Cross and Undila of Kodimbala Village, Puttur Taluk, respectively?
2. Whether the prosecution is able to prove that there was motive for the accused to commit the murder of deceased persons?
3. Whether prosecution is able to prove that the accused Nos.1 and 2 with common intention to rob the golden ornaments of deceased persons came to the house of 12 Baby Thomas situated in S.No.147/2 at Undila of Kodimbala Village of Puttur Taluk in a motor cycle bearing Reg.No.KA-09-L-
3185 at 12'oclock night on 25.09.2012 and by switching off the motor cycle came by pulling the same near the house of Baby Thomas stating that they came to park the motor cycle as it was not in order and at that time Baby Thomas in order to drop them to their in laws house took them in his car bearing Reg.no. KA-10-T-
5009, accused no.2 was sitting in front seat and accused no.1 was sitting in back seat of the car and they asked him to stop the car at Bollur Cross and when he stopped the car here, the accused no.1 stabbed the neck of Baby Thomas on the right side by means of knife and when he tried to escape, the accused no.1 held him and pulled his both hands back, at that time accused no.2 stabbed to the neck of Thomas forcibly and caused bleeding injury and thereby committed the murder of Baby Thomas and removed the golden thrilling chain weighing 34.600 grams, worth Rs.90,800/- from his neck.
13
Thereafter they took the car to the house of said Thomas along with the dead body and parked the car at a little distance from the house on mud road and criminally trespassed into the house of Thomas, by pushing the door forcibly with intention to kill Smt. Mary, w/o Baby Thomas and rob the things and accordingly, accused no.1 held her and accused no.2 closed her mouth and stabbed with knife on her neck and murdered her and removed her golden ear studs weighing 4.100 grams and cash Rs.8,400/- from the cupboard and two mobile sets of Lava company and Nokia Company and thereby committed the offence under Sec.449 and 302 read with Sec.34 of IPC beyond all reasonable doubt?
4. Whether the prosecution is further able to prove that on the above said date, time and place the accused persons in furtherance of their common intention by committing the murder of Baby Thomas and Mary Thomas robbed the golden ornaments worn by them and also robbed 14 the cash Rs.8,400/- kept in cupboard and two mobile sets of Nokia and Lava Company and thereby committed the offence Under section 392 of IPC read with Section 34 of IPC beyond all reasonable doubts?
10(i) Considering both the oral and documentary evidence, learned Sessions Judge answered all the four points in the affirmative, holding that the prosecution has proved beyond reasonable doubt that, on the intervening night of 25/26.09.2012, the homicidal death of Baby Thomas and his wife Mary Thomas at Bollur Cross and Undila of Kodimbala Village, Puttur Taluk and there was a motive for the accused persons to commit murder of the deceased persons. Further recorded a finding that accused Nos.1 and 2, with a common intention to rob the gold ornaments of the deceased persons, came to the house of Baby Thomas in a motorcycle KA.09.L.3165 at about 12.00 in the night of 25.09.2012 and stated that the same is not in order and Baby Thomas in order to drop them to their in-laws' house, took them in his car bearing No.KL.10.T.5009. Accused No.2 was sitting in the front seat and 15 accused No.1 was sitting in the back seat and they asked the deceased to stop the car at Bollur cross and when he stopped the car, accused Nos.1 and 2 stabbed Baby Thomas forcibly on his neck by knife M.Os.1 and 2 and caused forcible bleeding injury and thereby they committed the murder of Baby Thomas and robbed 34.600 grams of gold chain from his neck. Thereafter, they went to the house of Baby Thomas and stabbed wife of Baby Thomas and removed her gold ear stud weighing 4.100 grams and thereby they committed the offences punishable under the provisions of sections 449, 302 read with section 34 of IPC.
10(ii) Learned Sessions Judge further recorded a finding that in furtherance of common intention of committing the murder of Baby Thomas and Mary Thomas robbed cash of Rs.8,400/-, two mobile sets of Lava Company and Nokia Company and golden ornaments of the deceased kept in the cupboard and thereby they committed the offence under the provisions of section 392 read with section 34 of IPC. 16
10(iii) Accordingly, learned Sessions Judge proceeded to sentence the accused persons for the offences punishable under the provisions of section 449 read with section 34 of IPC to undergo rigorous imprisonment of ten years with fine of Rs.5,000/- each and under the provisions of section 302 read with 34 of IPC for life with fine of Rs.3,000/- each and under the provisions of section 392 read with section 34 of IPC, rigorous imprisonment for ten years with fine of Rs.5,000/- each. Hence, the present two appeals are filed by the accused persons.
11. We have heard learned counsel for the parties.
12. Sri.N.R.Krishnappa, learned counsel for accused Nos.1 and 2 / appellants contended that the impugned judgment of conviction and order of sentence passed by the Trial Court convicting the accused persons for the offences made out in the charge memo is erroneous, contrary to the material on record and cannot be sustained and liable to be set-aside. He would further contend that the accused Nos.1 and 2 are utter strangers to the prosecution witnesses and no test identification parade was conducted and PW.3 identified the accused Nos.1 17 and 2 for the first time before the police station and the court. In the absence of conducting any test identification parade, learned Sessions Judge is not justified in convicting the accused for the offences punishable under the provisions of sections 449, 302 and 392 of IPC. He would further contend that the case was registered on 26.09.2012 and investigation started and the accused were arrested by the Investigating Officer only on 29.10.2012, more than a month later. PW.6 - witness to the recovery of mobiles, has not supported the case of the prosecution. PW.13 and PW.14 have also not supported the case of the prosecution. He would further contend that PW.11, PW.12 and PW.19 have supported the case of the prosecution. He would further contend PW.36 - RFSL Officer tested to MO.1 to MO.11 - blood stains and gave report that MO.9 and MO.10 stains with 'O' Group blood, MO.11 stains with 'A' Group blood and Ex.P52, Ex.P55 serology reports were not proved. He further contends that the additional charge sheet filed on 1.07.2016 after lapse of four years which is impermissible. The delay in recording statement of accused and their arrest after one month i.e., 29.10.2012 is not explained by the prosecution, 18 thereby it is fatal to the case of the prosecution. He would further contend that the finger prints of the accused on the door of the car MO.15 is not proved. He would further contend that there are no eyewitnesses to the incident. The entire case of the prosecution is mainly on the basis of circumstantial evidence and PW.8 is the only circumstantial witness who has last seen the accused has not proved. He would further contend that owner of the shop was not examined, thereby learned Sessions Judge proceeded to convict the accused only on the basis of presumption which is impermissible. He would further contend that there is no link from the beginning till end, thereby prosecution failed to prove beyond reasonable doubt about the involvement of the accused in the homicidal death of the deceased persons, thereby the impugned judgment passed by the trial Court convicting the accused persons cannot be sustained.
13(i) In support of his contentions, learned counsel relied upon the dictum of the Hon'ble Supreme Court in the case of 19 VARUN CHAUDHARY vs. STATE OF RAJASTHAN reported in AIR 2011 SC 72, paragraphs 20 to 23, to prove "last seen theory".
"(20) Home Guard, Pawan Kumar (PW-3), had seen three persons on a motor cycle. However, he stated that he could not identify the persons on the motor cycle. Similarly, police constable Pooran Singh (PW- 6) had stated that around 12 midnight on 22nd August, 2000, he had seen two persons going on motor cycle and one of them was the deceased. After sometime he had seen another motor cycle which was Suzuki, but he could not read complete number of the motor cycle, but he could read one of the digits, namely No. `9'. He whistled so as to stop the said motor cyclist but the motor cyclist did not stop. Thereafter, he had seen another motor cycle, being Hero Honda which had hit a dog near Santoshi Mata Temple. It is pertinent to note that the afore-stated two witnesses did not say that they had seen any of the accused. Possibly even they did not see faces of the three persons, who were on the motor cycle. Possibly, in these set of circumstances, having identification parade would be futile and, therefore, there was no test identification parade. Thus, nobody had seen any of the accused. So far as identification of the motor cycle is concerned, PW-6 merely stated that he saw one digit of registration number of the motor cycle, 20 which was `9'. In our opinion, on the basis of one digit of the registered number, it would be dangerous to believe that the motor cycle recovered, which also had digit `9' in its number, was used in the offence. In our opinion, on such a scanty evidence it cannot be said that the accused had been identified or the motor cycle which had been recovered was the one which was used by the accused at the time of the offence.
(21) In our opinion, so called recovery of knife and blood stained clothes would not help the prosecution. Recovery of the motor cycle can not be said to be proved because Bhanwar Singh, PW-9 admitted the fact that he had signed the recovery panchnama in the police station whereas another witness, Madan Lal, P.W.25 could not establish recovery of the knife as he was not present at the time and place from which the knife had been recovered. Moreover, the knife was never produced before the court and was never shown to the accused and, therefore, in our opinion, the said evidence could not have been relied upon by the courts below for passing the order of conviction.
(22) It is pertinent to note that there is no evidence or even there is no reference to the fact that any one from Forensic Science Laboratory or from the police personnel had lifted marks of the 21 motor cycle tyre from the place of the offence so that the same can be compared with the tyre marks of the motor cycle alleged to have been used in the offence. Unless tyre marks are lifted from the place of the offence and upon comparison with the tyre marks of the motor cycle recovered are found to be the same, it cannot be said that the motor cycle recovered was used in the offence. So as to establish the presence of the motor cycle at the place of the offence, the prosecution must show that the tyre marks which were found at the place of the offence were that of the motor cycle used by the accused. It is also pertinent to note that marks of the motor cycle tyre which were received by the FSL were not in a sealed condition.
Aforestated facts clearly denote that the marks of the motor cycle tyre could not have been relied upon either by the Trial Court or by the High Court for establishing that the motor cycle having particular tyre marks was used in the alleged offence.
(23) It is also pertinent to note that the prosecution could not establish the purpose for which the deceased was murdered by the accused. Of course, it is not necessary that in every case motive of the accused should be proved. However, in the instant case, where there is no eye witness or where there is no scientific evidence to connect 22 the accused with the offence, in our opinion, the prosecution ought to have established that there was some motive behind commission of the offence of murder of the deceased. It was the case of the prosecution that the deceased, an Income Tax Officer had raided the premises belonging to some scrap dealers and, therefore, he had received some threats from such scrap dealers. It is an admitted fact that the accused are not scrap dealers or there is nothing to show that the accused had been engaged by scrap dealers to commit the offence. Thus, there was no motive behind the commission of the offence so far as the accused are concerned."
13(ii) In the case of MARAPPA @ MARAPPA REDDY vs. STATE OF KARNATAKA reported in 2015(4) KCCR 2946, with regard to finger prints - Head note.
"PENAL CODE, 1860, 1860-Section 302-Murder by poisoning-Proof of finger prints of accused on bottle of alcohol not sufficient when last seen circumstance and recovery of ornaments not established beyond reasonable doubt-Court may or may not accept expert evidence-Held, material placed on record not fufficient to prove guilt of accused-Judgment of conviction set aside."23
13(iii) In the case of THE STATE OF KARNATAKA, By Nyamathi Police Station, Nyamathi vs. Sri.KANTHARAJ reported in 2016(2) KCCR 1175, with regard to recovery, paragraphs 21 and 22, which read as under:
"21. Learned SPP, Mr.P.M.Nawaz has relied on the recovery of mobile phone purported to be belonging to the deceased, from the accused. It is true that if one were to accept that the phone was recovered at the instance of the accused, there must be clinching evidence to show that the mobile belonged to the deceased. It is true that the wife of the deceased who is examined as PW-30 has identified the said mobile as that of her husband.
Identification of the mobile can be conclusively established only with reference to IMIE number. We do not know whether the SIM card found in the mobile actually belonged to the deceased. In fact, police have not collected any materials to that effect and therefore this court is unable to accept that as a material circumstance to link the accused with the murder of the deceased.
22. One more important aspect noticed by this court is sending M.O.3, chopper alleged to have been recovered at the instance of the accused, to FSL. It is mentioned that it had contained some blood over the blade. If the FSL report marked as 24 Ex.P15 were to be true, it is ununderstandable as to how the chopper which was in the tank water for quite some time could still retain blood stains. This can also be viewed from another angle. Ex.P4- mahazar drawn in connection with M.O.3 is at the instance of the accused. If really it had blood stains, nothing came in the way of the IO to have mentioned about it. In the absence of such mention in Ex.P4, the opinion found in Ex.P15-FSL report cannot be given much credence."
13(iv) In the case of SRIDHARA @ SRIPATHI & Another vs. STATE OF KARNATAKA, By Siddapura Police reported in ILR 2005 Karnataka 2576, paragraph 13, with regard to "concrete evidence".
"13. But even if we accept this prosecution theory that the accused had some ire or ill-will towards the deceased few days prior to the incident, it would not lead to an irresistible conclusion that it is these accused who had committed the crime in question. Possibility of the accused resorting to such crime is not sufficient to hold them guilty of the crime. Some concrete evidence is required. In this regard the next two circumstances relied upon by the prosecution are material, namely evidence regarding indication given by the police dog and the evidence regarding 25 recovery of incriminating articles on the information stated to have been furnished by the accused (admissible under Section 27 of the Indian Evidence Act)."
14. Per contra, Sri.Nageshwarappa, learned HCGP while justifying the impugned judgment of conviction and order of sentence passed by the Trial Court, contended with vehemence that there are six circumstances to prove the involvement of the accused in the death of the deceased persons. Firstly, PW.1 to PW.3 deposed that the accused persons were supplying building material to the deceased at the time of construction of his house. Further contended with regard to "last seen theory" that, when accused Nos.1 and 2 were going by pushing MO17 - motorcycle near the house of the deceased on the intervening night of 25/26.09.2012, they were seen by PW.8 who identified them before the Police Station. He would further contend about taking of the accused No.1 to the custody along with MO.17 - motorcycle by PW.29 and recovery under Ex.P37 MO.16 - cash of Rs.27,500/-, MO.14 - Mobile set at the instance of the accused which depicts the involvement of the accused in the 26 homicidal death of the deceased. He further submits that blood stains on MO.4 to MO.6 matches with blood group of deceased persons with MO.7 and MO.8 - pant and shirt of the accused. He would further contend finger prints of the accused persons found on the left side glass of car MO.15 as per Exhibits P57, P58, P62, P63 clearly proves the involvement of the accused persons in the homicidal death of deceased. Therefore, he sought to dismiss the appeals.
15. In view of the aforesaid rival contentions urged by the learned counsel for the parties, the points that would arise for our consideration in these criminal appeals are as under:
i) Whether the appellants/accused have made out a case to interfere with the impugned judgment of conviction and order of sentence passed by the trial Court in so far as convicting and sentencing the appellants/accused for the offences punishable under Sections 302 and 449 r/w 34 of IPC ?
ii) Whether the appellants/accused have made out a case to interfere with the impugned judgment of 27 conviction and order of sentence passed by the trial Court in so far as convicting and sentencing the appellants/accused for the offence punishable under Section 392 r/w 34 of IPC, in the facts and circumstances of the case ?
16. This court being the appellate court, in order to re- appreciate the entire material on record, it is relevant to consider the evidence of the prosecution witnesses and documents relied upon;
i) PW.1 - Kunhappan - complainant was working in the garden of deceased. He lodged complaint against unknown persons. He supported the case of the prosecution.
ii) P.W.2. Jayananda - he is a circumstantial witness, signatory to the inquest of deceased Mary which is marked as Ex.P19 and seized certain materials under seizure- panchanama as Ex.P20 and supported the case.
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iii) P.W.3 - Smt. Shobha - She is wife of P.W.2 and neighbor of the deceased. She has identified the items belonging to deceased.
iv) P.W.4 - Biju Thomas - Son of deceased Mary Thomas.
He is signatory to the Inquest Mahazar which is marked as Ex.P22. Seizure - Mahazar of car which is marked as Ex.P23.
v) P.W.5 - Sri. Vimal Thomas - He is another son of baby Thomas. He has identified the materials used by his father.
vi) P.W.6 - Smt. Rejisha - She is the daughter of Mary Thomas, she has identified the items in the police station.
vii) P.W.7 - Shri. Ganesh - he is a circumstantial witness, he has identified the items belongings to the deceased.
viii) P.W.8 - Sri. Ganesh.M. - He is the witness who has identified the motor cycle, which was being pushed by the accused.
ix) P.W.9 - Shri. Roy Abraham - He is a witness to Ex.P2 and 3 seizure - mahazars. Ex.P22 the inquest 29 Panchanama of Baby Thomas. He is also a witness to the Ex.P27, under which is Motor cycle is seized.
x) P.W.10 - Shri. Jimson.K.G. - He is a witness to the Inquest which is marked as Ex.P22. the accused had shown the place where they have hidden the clothes which they had wore.
xi) P.W.11 - Shri Naurath Mal Siravi - he is jeweler running the shop named as Sangam Jeweller seizure mahazar of Bendole which is marked as Ex.P32. Raffiq and another come and pawn the same.
xii) P.W.12 - Shri. G. Pradeep - Durga Jewellary work shop, he says, the accused Raffiq had pledged a gold item which is marked as Ex.P33.
xiii) P.W.13 - Shri. Prakash K.C. - Witness to Seizure _ mahazar under which Motor cycle is seized. Mahazar is Ex.P27.
xiv) P.W.14 - Lakshmana Acharya - He was not identified the accused. He has denied seizure of clothes M.O.7 and 8, further he denies that, Bendole was seized in his presence, the Ex.P30. the seizure - mahazar and denied the M.O.12 and M.O.13. Turned hostile. 30
xv) P.W.15 - Smt.Aliyas Cherian - witness to the inquest Ex.P19. under which Mary's inquest was done. xvi) P.W.16 - Sanni Shekar - he is supposed to depose about the mobile which is said to have been sold to him by the accused. The same has been denied. He has turned hostile.
xvii) P.W.17 - Nixon Augustine - He is the witness to Ex.P.37. Supported.
xviii) P.W.18 - C.P.Symon - Witness to the Seizure -
mahazar. Ex.P.37 is the Mahazar. Supported. xix) P.W.19 - Baby Joseph - Seizure - mahazar Ex.P23 under which indica car was seized.
xx) P.W.20 - Symon Rodrigus - PDO of Puttur Grama Panchayath. He was given house list extract of the house where the incident had taken place which is marked as Ex.P38.
xxi) P.W.21 - Chennappa Gowda - He is In-charge PDO of Puttur Grama Panchayath. Ex.P.39 which is assessment register.
31xxii) P.W.22 - Sri. Charan M.J. - Working as Village Accountant. He has issued certificate regarding the crops which the deceased had grown in their land, which is marked as Ex.P40.
xxiii) P.W.23 - Sri Joe Thomas - He is a witness to Ex.P2, Ex.P3, Ex.P.22 and Ex.P29. He has supported the case. xxiv) P.W.24 - Dr. Suchitra Rao - She is the Doctor who conducted the P.M. of deceased Mary. She has submitted report as Ex.P.41, and opinion about the weapon issued as Ex.P42.
xxv) P.W.25 - Dr. Thrimurthy - He is the Doctro who conducted the post mortem of Baby Thomas and issued certificate as Ex.P.43 and weapon opinion as Ex.P.44. xxvi) P.W.26 - Sri. Rathnakar - Assistant Engineer, He has prepared the sketch and issued as per Ex.P45. xxvii) P.W.27 - Prameela M.N. - Woman Police Constable. She has carried the dead body for P.M. and received the clothes of the deceased from the Doctor and handed it over the I.O as per her report which is marked as Ex.P20.
32xxviii) P.W.28 - Sri Krishnappa - Police Constable. He has handed over the knives to the Doctor for examination and received after examination having been conducted and submitted the same to the I.O.
xxix) P.W.29 - Sri. Sanjeevapurusha - working as ASI of Kadaba Police Station. He was deputed to apprehend the accused. He states that, on 29.12.2012 he had arrested the accused and seized the Motor Bike as per Ex.P.27.
xxx) P.W.30 - K. Udayakumar - Police Constable. He has stated that, he was deputed to apprehend the accused along with P.W.29. He states that, he accompanied P.W.29 and arrested the accused and produced before the I.O.
xxxi) P.W.31 - Sathish. H.K - Constable of Kadaba Police, He is a carrier of FIR. According to him, he has reached the FIR to the Magistrate.
xxxii) P.W.32 - H.E. Nagaraj - PSI of Kadaba Police Station.
He has conducted partial investigation and handed over further investigation to the C.W. 51.
33xxxiii) P.W.33 - Sri.Sandeep. S - Police Constable of Kadaba Police station. He has carried the dead body of Mary Thomas to the Doctor. After postmortem, he has received the clothes of the dead body and handed it over to the I.O.
xxxiv) P.W.34 - Sri. Rithesh - working as Computer operator at S.P. Office, Mangalore. He states that, as per the request of the I.O, he secured the CDR pertaining to some mobile numbers, which is marked as Ex.P49.
xxxv) P.W.35 - Sri. Chennappa Gowda - Head Constable at Kadaba Police Station, He had registered the case in Cr. No. 98/2012 and handed it over to the P.W.31 to hand it over to the Magistrate.
xxxvi) P.W.36 - Dr. Geethlakshmi - She is scientific officer, she has issued certificate as per Ex.P50.
xxxvii) P.W.37 - Sri. Rudresh A.K - He is working as Finer Print Expert. He has examined the chance finger print along with the accused finger print and submitted his report marked as Ex.P56.
34xxxviii) P.W.38 - Harischandra Hejamadi - He has examined finger prints and submits his report as Ex.P57. xxxix) P.W.39 - Sureshkumar.P - Working as Circle Inspector of police, conducted the investigation and submitted the charge - sheet.
xl) P.W.40 - V.P. Pradeepkumar - Working as manager of SBI, Trivendrum, Kerala. He has handed over the documents pertaining to the accused No.1, which were given to the bank at the time of opening the Bank Account.
xli) P.W.41 - Sri. Sunil - He is the friend of P.W.12. He has credited the amount of Rs.41500/- to the account pertaining to Accused No.1. He has supported the case. xlii) P.W.42 - Anil Kulakarni - He has conducted part of investigation and handed it to the P.W.39.
17. Based on the aforesaid oral and documentary evidence on record, the trial court convicted the accused persons for the offence punishable under Sections 449, 302, 392 read with Section 34 of IPC. On careful perusal of the complaint - 35 Ex.P1 lodged by PW.1 which clearly depicts that when he went to the garden of the deceased persons on 26.09.2012 at 6.30 a.m. as usual, he observed that Baby Thomas or his wife Mary Thomas were not found as usual. Usually, they came out of the house at 6.45 a.m. and used to extract milk from the cattle, therefore he enquired with PW.2 whether they have informed anything and PW.2 said they did not say anything and both along with PW.3 went to see in the house of the deceased. The front door was closed and another door was open. When they went inside the house, they saw wife of Baby Thomas had died in the house facing towards ground. They were shocked and then by standing in the house-yard, saw opposite and found that at a distance of 50 feet from the house, in the rough road, car of Baby Thomas was parked. They went near the car and saw that Baby Thomas was in sitting like position in the driver seat, leaning towards left side and dead and also observed that he had sustained injuries on the neck and blood was poured. Again they came back to the house and saw through the open window and found one almirah kept in room was opened and clothes, paper and other articles of the almirah were scattered on the ground. 36 Some culprits had killed Mary Thomas with an intention to rob gold ornaments from the house of deceased persons, thereby PW.1 lodged complaint on 26.09.2012 at about 12.00 p.m. Accordingly, the jurisdictional police registered a case in Crime No.98/2012 for the offences made out in the charge memo.
18. A careful perusal of the evidence of PW.1 to PW.3 depicts that accused No.2 was supplying building materials to the deceased at the time of construction of their house. They are not the eyewitnesses to the homicidal death of the deceased. According to PW.1, as usual, he came to the house of the deceased persons to work in the garden, when he did not find the deceased persons even after 6.45 p.m., he went to PW.2 and PW.3 and all of them came to the spot. None of the witnesses deposed about the involvement of the accused persons in the homicidal death. Though PW.1 to PW.3 stated that accused persons murdered the deceased, admittedly, complaint was lodged against unknown persons. PW.8 who identified accused Nos.1 and 2 and bike M.O.17 used by the accused, he did not mention the number of the motorcycle nor he asked the accused 37 nor spoken to. He further stated that after he came to know about the death of the deceased persons, he stated that body of Mary Thomas was found in the house and there were injuries on her body and she was in a pool of blood and all the materials in the house were scattered and somebody in order to rob the materials, had killed the deceased and robbed as he came to know. He further deposes that on 25.09.2012, he went to Mangaluru for his personal work and reached Kadaba late night. Further he says that he had seen two young boys, through headlight of his motorcycle, who were going by pushing Yamaha motorcycle and he did not speak to them and he did not identified the number of the motorcycle. After one month i.e., on 29.10.2012, Kadaba police summoned him to the police station and he saw the accused Nos.1 and 2 in the police station and he identified the accused persons and he further stated that he knows both the accused persons and identified both of them before the court. In the cross-examination, he has admitted that on 26.09.2012, he has given statement to the police in the house of Baby Thomas in the year 2012 and he has given mobile numbers used by him and he has admitted that no statement 38 was made before the police about the features of the accused persons and the colour of dress which they were wearing on the date of incident. He denied that the persons he had seen were strangers. He voluntarily stated in his statement before the police on 26.09.2012, that the persons he had seen are known to him and he has not stated anything regarding where those persons were residing. He further admitted in the cross- examination that the police have not shown any materials stolen from the house, except showing accused persons. After seeing the dead bodies, based on the police statement, he came to know these persons killed the deceased for robbing all gold ornaments and mobiles.
19. The examination of PW.8, both in examination-in- chief and cross-examination, does not inspire the confidence of this Court that he identified the persons who killed the deceased. In the absence of any other corroborative evidence, the evidence of PW.8 who could not identify the persons and bike is doubtful. It is also not in dispute that when there are no eyewitnesses to the incident and when PW.8 - witness to the last seen theory 39 was not able to identify the accused persons, nor could identify the number of the vehicle he saw on the previous night and for the first time in the statement made before the police, he identified the accused persons only in the police station as well before the court, therefore, the Investigating Officer ought to have conducted the test identification parade. Admittedly, in the present case, no test identification parade was conducted. Except for the oral statement of PW.1 to PW.3 about the involvement of the accused persons in the homicidal death of the deceased, PW.1 to PW.3 were not eyewitnesses. Only in the statement made before the police, they have identified the accused persons first time in the police station. It is also relevant to note that, according to the prosecution, the accused persons purchased knives MO.4 and MO.5 from the shop and used them for the offence. Admittedly, the owner of the shop from where they had purchased the knives is not examined. After arrest of the accused persons, after one month i.e., on 29.10.2012, on their voluntary statement made, the Investigating Officer recovered the motorcycle - M.O.17 and mobile - M.O.18 under Ex.P27 in the presence of PW.29 and 40 recovered MO.16 cash of Rs.27,500/- and MO.14 Mobile set Lava under Ex.P37 - seizure mahazar dated 30.10.2012 in the presence of PWs.17 and 19 by the accused and recovered MO.4 and MO.5 in the presence of PW.9 from the accused under Ex.P28 and also recovered MO.7 and MO.8 - pant and shirt of the accused in the presence of PW.10.
20. Learned Sessions Judge proceeded to convict the accused mainly on the basis of the recovery of material objects, murder for gain and on last seen theory. Except recovery of the knife, bike and material objects, the other articles namely gold ornaments, chain, gold stud were recovered on the basis of the evidence of PW.11 and PW.12, though receipt was seen by accused No.1 was issued by PW.11, the same is not marked. Learned Sessions Judge proceeded to convict the accused based on the aforesaid recovery and statement made by the jewellery shop owner. The fact remains that, on a careful perusal of the entire material on record, the prosecution failed to prove beyond reasonable doubt the involvement of the accused persons in the homicidal death of the deceased. Admittedly, in the present 41 case, last seen theory is not proved. Learned Sessions Judge proceeded to convict the accused only on the basis of the recovery. Absolutely there is no material produced before the court about the involvement of the accused Nos.1 and 2 with regard to homicidal death of the deceased persons.
21. The Investigating Officer has not collected the call details of Accused Nos.1 and 2 though their mobiles were seized. The recovery of Mos.12 and 13 - gold jewelry and Mo.16 - cash of Rs.27,500/- at the instance of the accused persons based on their voluntary statement as well as statement of PWs.11 and 12, cannot be a ground to convict the accused persons. Absolutely no material produced by the prosecution to show that the robbery and murder formed part of the same transaction. The presumption that the accused committed murder cannot be drawn merely on the basis of the recovery. The entire case of the prosecution is based on the recovery of Mos.12 and 13 - gold jewelry and MO.16 - cash of Rs.27,500/-. Absolutely there is no material to prove that the accused committed the murder of the deceased so as to attract the provisions of Section 302 of IPC. 42
22. At this stage, it is relevant to refer to the provisions of Section 27 of the Indian Evidence Act, 1872 reads as under:
"27. How much information received from accused may be proved:
Provided that when any fact is deposed to as discovered in consequence of information received from a person accused of any offence, in the custody of a police-officer, so much of such information, whether it amounts to confession or not, as relates distinctly to the fact thereby discovered, may be proved:
By careful perusal of the provisions of Section 27 of the Indian Evidence Act, it makes it clear that the said section based upon the view that if a fact is actually discovered in consequence of information given, some guarantee is afforded thereby that the information was true and accordingly can be safely allowed to be given in evidence. But where the facts are such as indicting reasonable doubt as regards the guilt of the accused, benefit of the same should be given to the accused persons.43
23. The material on record clearly depicts that though there are ingredients in the charge framed by the learned Sessions Judge with regard to robbery for personal gain and the homicidal death of the deceased so as to attract the provisions of Sections 392 and 302 of IPC, the recovery of gold studs and chain and cash from the accused on production of the same by the accused during the course of investigation can lead to the presumption that the accused have committed the robbery or received the stolen property, but there are no circumstances proved beyond reasonable doubt by the prosecution that the robbery and murder took place on the same transaction. In the absence of any eye witnesses and since the prosecution has not proved the chain of circumstances connecting the accused in the homicidal death of the deceased, it is not safe to convict the accused for the offence punishable under Section 302 of IPC.
24. Though the learned Sessions Judge recorded six circumstances at paragraph-70 of the impugned judgment, none of the circumstances proved the involvement of the accused persons in the homicidal death of the deceased except 44 proving the recovery of MOs.12 and 13 - gold studs of the deceased Marie at the instance of PWs.11 and 12, who identified Accused No.1 and issued the receipt for pledging. In the absence of any material on record, based on the suspicious circumstances Accused Nos.1 and 2 were apprehended and based on their voluntary statements, the Investigating Officer recovered MOs.12 and 13 - gold studs and cash and therefore the presumption can be drawn that the robbery was committed for gain, thereby the accused are liable to be punished under Section 392 of IPC. In the absence of any other corroborative evidence with regard to the involvement of the accused in the homicidal death of the deceased, it is not safe to convict the accused under the provisions of Section 302 r/w 34 of IPC.
25. On careful perusal of the entire material on record and the evidence of the prosecution witnesses, none of the witnesses stated about the involvement of the accused persons in the homicidal death of the deceased. Absolutely, no materials produced by the prosecution to prove the involvement of the accused persons in the homicidal death of the deceased except 45 recovery of jewellery and cash based on their voluntary statements and the statements of Pws.11 and 12.
26. It is also not in dispute that the post-mortem report of the deceased as per Ex.P41 clearly depicts that the cause of death was due to shock and hemorrhage due to cut injury in the neck. The FSL report - Ex.P53 and the evidence of PW.36 clearly depict that the blood stained exhibits vide serial Nos.6 to 10 were subjected to serological analysis and the specimen cuttings/scrapping were completely utilized for serology work. The serology report - Ex.P55 clearly depicts that the blood group of the stains in items A-2 and B-2 could not be determined because the results of the tests were inconclusive. None of the material documents relied upon by the prosecution proved beyond reasonable doubt the involvement of the accused in the homicidal death of the deceased.
27. While considering the law on the point of appreciation of cases based on circumstantial evidence, the Hon'ble Supreme Court in the case of Sharad Birdhichand Sarda -vs- State of 46 Maharashtra reported in (1984)4 SCC 116 has held at paragraphs 153 and 154 as under:
153. A close analysis of this decision would show that the following conditions must be fulfilled before a case against an accused can be said to be fully established:
(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established.
It may be noted here that this Court indicated that the circumstances concerned "must or should" and not "may be"
established. There is not only a grammatical but a legal distinction between "may be proved" and "must be or should be proved"
as was held by this Court in Shivaji Sahabrao Bobade v. State of Maharashtra [(1973) 2 SCC 793 : 1973 SCC (Cri) 1033 : 1973 Crl LJ 1783] where the observations were made:
[SCC para 19, p. 807: SCC (Cri) p. 1047] "Certainly, it is a primary principle that the accused must be and not merely may be 47 guilty before a court can convict and the mental distance between 'may be' and 'must be' is long and divides vague conjectures from sure conclusions."
(2) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty, (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.
154. These five golden principles, if we may say so, constitute the panchsheel of the proof of a case based on circumstantial evidence.
48
28. We are of the considered opinion that the prosecution able to prove the recovery of gold studs, gold chain and cash from the accused persons based on their voluntary statements and the statements of PWs.11 and 12, but failed to prove the involvement of the accused in the homicidal death of the deceased beyond reasonable doubt. As per illustration (a) of Section 114 of the Evidence Act though recovery of articles can lead to presumption that the accused has committed robbery or received the stolen property, unless there are other circumstances to prove that theft, robbery and the murder took place in the same transaction, the accused would not be liable for the offence punishable under Section 302 r/w 34 of IPC. Therefore, the learned Sessions Judge erred in coming to the conclusion that the accused committed the offence punishable under Section 302 of IPC.
29. Considering the totality of facts and circumstances of the case and on the basis of the presumption permissible under Illustration (a) of Section 114 of the Evidence Act, the Accused 49 Nos.1 and 2 are liable to be convicted for the offence punishable under Section 392 of IPC.
30. Our view is fortified by the dictum of the Hon'ble Supreme Court in the case Raj Kumar alias Raju -vs- State (NCT of Delhi) reported in AIR 2017 SC 614, wherein the Hon'ble Supreme Court while considering the provisions of Section 3 and Section 114 - Illustration (a) of the Evidence Act, at paragraphs 10, 11 and 13 held as under:
10. Learned counsel for the appellant would contend that the aforesaid circumstances do not conclusively point to the involvement of the appellant-accused in the crime. The chain leading to the sole conclusion that it is the accused persons and nobody else who had committed the crime is not established by the three circumstances set forth above, even if all of such circumstances are assumed to be proved against the accused. Reliance has also been placed on the decision of this Court in Sanwat Khan v. State of Rajasthan [Sanwat Khan v. State of Rajasthan, AIR 1956 SC 54 : 1956 Cri LJ 150] , wherein this Court had taken the view that recovery of ornaments of the deceased from the accused or production of 50 the same by the accused in the course of investigation, howsoever suspicious, cannot be conclusive of the question of the accused having committed the offence. As per Illustration (a) to Section 114 of the Evidence Act, 1872 though recovery of the ornaments can lead to presumption that the accused had committed robbery or received stolen property, unless there are circumstances to show that the theft/robbery and the murder took place in the same transaction, the accused would not be liable for the offence under Section 302 IPC.
11. The facts in Sanwat Khan [Sanwat Khan v. State of Rajasthan, AIR 1956 SC 54 : 1956 Cri LJ 150] bear a striking resemblance to the facts that confront us in the present appeal. If the evidence of PW 12 is to be discarded on the ground that such evidence is vague (there is no mention of the date on which PW 12 had seen the accused person in the neighbourhood and also as the said testimony runs counter to the prosecution case about arrest of the accused on 16-9-1991) the last seen theory built up on the evidence of PW 5 and PW 7 leaves a significant margin of time during which the crime could have been committed by somebody other than the accused. The said fact must go to the benefit of the accused. In this regard, it may be recollected 51 that PW 5 and PW 7 have deposed that they had last seen the accused person in the early morning of the date of the occurrence i.e. 12-9-1991 and that they were going away to some other place. Even if the evidence of PW 12 is to be accepted, all it can be said is that the evidence of the said witness read with the evidence of PW 5 and PW 7 disclose that the accused persons were seen in the vicinity of the neighbourhood of the crime little before the same was committed. By itself, the said circumstance cannot lead to any conclusion consistent with the guilt of the accused.
13. In view of what has been found above, we do not see as to how the charge against the appellant-
accused under Section 302 IPC can be held to be proved. The learned trial court as well as the High Court, therefore, seems to be erred in holding the accused guilty for the said offence. However, on the basis of the presumption permissible under Illustration (a) of Section 114 of the Evidence Act, it has to be held that the conviction of the appellant- accused under Section 392 IPC is well founded. Consequently, we hold that the prosecution has failed to bring home the charge under Section 302 IPC against the accused and he is acquitted of the said offence. The conviction under Section 392 IPC is 52 upheld. As the appellant-accused, who is presently in custody, had already served the sentence awarded to him under Section 392 IPC, we direct that he be set at liberty forthwith.
31. The Hon'ble Supreme Court while considering the circumstantial evidence in the case of Varun Chaudhary v. State of Rajasthan, reported in AIR 2011 SC 72, has held at paragraphs 20 and 23 as under:
"20. Home Guard Pawan Kumar (PW 3), had seen three persons on a motorcycle. However, he stated that he could not identify the persons on the motorcycle. Similarly, Police Constable Pooran Singh (PW 6) had stated that around 12 midnight on 22-8-
2000, he had seen two persons going on a motorcycle and one of them was the deceased. After some time he had seen another motorcycle which was Suzuki, but he could not read the complete number of the motorcycle, but he could read one of the digits, namely, number '9'. He whistled so as to stop the said motorcyclist but the motorcyclist did not stop. Thereafter, he had seen another motorcycle, being Hero Honda which had hit a dog near Santoshi Mata Temple. It is pertinent to note 53 that the aforestated two witnesses did not say that they had seen any of the accused. Possibly they did not even see the faces of the three persons, who were on the motorcycle. Possibly, in these set of circumstances, having an identification parade would be futile and, therefore, there was no test identification parade. Thus, nobody had seen any of the accused. So far as identification of the motorcycle is concerned, PW 6 merely stated that he saw one digit of registration number of the motorcycle, which was '9'. In our opinion, on the basis of one digit of the registered number, it would be dangerous to believe that the motorcycle recovered, which also had digit '9' in its number, was used in the offence. In our opinion, on such a scanty evidence it cannot be said that the accused had been identified or the motorcycle which had been recovered was the one which was used by the accused at the time of the offence.
23. It is also pertinent to note that the prosecution could not establish the purpose for which the deceased was murdered by the accused. Of course, it is not necessary that in every case motive of the accused should be proved. However, in the instant case, where there is no eyewitness or where 54 there is no scientific evidence to connect the accused with the offence, in our opinion, the prosecution ought to have established that there was some motive behind the commission of the offence of murder of the deceased. It was the case of the prosecution that the deceased, an Income Tax Officer had raided the premises belonging to some scrap dealers and, therefore, he had received some threats from such scrap dealers. It is an admitted fact that the accused are not scrap dealers or there is nothing to show that the accused had been engaged by scrap dealers to commit the offence. Thus, there was no motive behind the commission of the offence so far as the accused are concerned.
32. Admittedly in the present case, none of the prosecution witnesses identified the persons on the motorcycle nor identified the number of the motor cycle including PW.8, thereby the said judgment is squarely applicable to the facts and circumstances of the present case.
33. The Coordinate Bench of this Court while considering the provisions of Section 302 of IPC in the case of Marappa @ Marappa Reddy -vs- State of Karnataka reported in 2015(4) 55 KCCR 2946 (DB), has observed that proof of finger prints of accused on bottle of alcohol not sufficient when last seen circumstance and recovery of ornaments not established beyond reasonable doubt. Admittedly in the present case, the finger prints alleged not proved by the FSL reports - Ex.P53 and Ex.P54 as the results of the serology tests are inconclusive. On the basis of recovery itself, it is not safe to convict the accused for the offence punishable under Section 302 of IPC, since the prosecution failed to prove the involvement of the accused in the homicidal death of the deceased.
34. The Coordinate Bench of this Court while considering the provisions of Section 27 of the Evidence Act in the case of State of Karnataka v. Kantharaj reported in 2016(2) KCCR 1175 (DB) has held at paragraphs 21 and 22 as under:
21. Learned SPP, Mr. P.M. Nawaz has relied on the recovery of mobile phone purported to be belonging to the deceased, from the accused. It is true that if one were to accept that the phone was recovered at the instance of the accused, there must be clinching evidence to show that the mobile belonged to the 56 deceased. It is true that the wife of the deceased who is examined as PW-30 has identified the said mobile as that of her husband. Identification of the mobile can be conclusively established only with reference to IMEI number. We do not know whether the SIM card found in the mobile actually belonged to the deceased. In fact, police have not collected any materials to that effect and therefore this Court is unable to accept that as a material circumstance to link the accused with the murder of the deceased.
22. One more important aspect noticed by this Court is sending M.O.3, chopper alleged to have been recovered at the instance of the accused, to FSL. It is mentioned that it had contained some blood over the blade. If the FSL report marked as Ex.
P 15 were to be true, it is ununderstandable as to how the chopper which was in the tank water for quite some time could still retain blood stains. This can also be viewed from another angle. Ex. P4- mahazar drawn in connection with M.O.3 is at the instance of the accused. If really it had blood stains, nothing came in the way of the 10 to have mentioned about it. In the absence of such mention in Ex. P4, the opinion found in Ex. P15-FSL report cannot be given much credence.
57
35. The Coordinate Bench of this Court in the case of Sridhara v. State of Karnataka reported in ILR 2005 Kar.2576 held that unless there is some concrete evidence, though the evidence may point out the possibility of the accused being culprits, that does not unerringly point out to their guilt with certainty and hence the accused are entitled to the benefit of doubt. In paragraph 13 of the said judgment, the Coordinate Bench held as under:
13. But even if we accept this prosecution theory that the accused had some ire or ill-will towards the deceased few days prior to the incident, it would not lead to an irresistible conclusion that it is these accused who had committed the crime in question.
Possibility of the accused resorting to such crime is not sufficient to hold them guilty of the crime. Some concrete evidence is required. In this regard the next two circumstances relied upon by the prosecution are material, namely evidence regarding indication given by the police dog and the evidence regarding recovery of incriminating articles on the information stated to have been furnished by the accused 58 (admissible under section 27 of the Indian Evidence Act).
36. As already stated supra, the accused have denied the incriminating circumstances appearing against them in the statements recorded under Section 313 of the Code of Criminal Procedure and in the further statement recorded under Section 313(5), they have stated that they have been falsely implicated in the case.
37. On re-appreciation of the entire material on record and in the light of the principles enunciated in the judgments of the Hon'ble Supreme Court and this Court stated supra, we are of the considered opinion that the prosecution able to prove beyond reasonable doubt that the accused committed robbery for gain and thereby, the accused are liable to be punished under Section 392 of IPC and the prosecution failed to prove beyond reasonable doubt the involvement of the accused persons in the homicidal death of the deceased and therefore, the impugned judgment of conviction in so far as convicting Accused Nos.1 and 2 for the offence punishable under Section 59 302 cannot be sustained. Consequently, invoking of Section 449 of IPC does not arise.
38. For the reasons stated above, we answer the points raised in these criminal appeals as under:
iii) The 1st point raised in these criminal appeals is answered in the affirmative holding that the appellants/accused have made out a case to interfere with the impugned judgment of conviction and order of sentence passed by the trial Court in so far as convicting and sentencing them for the offences punishable under Sections 302 and 449 r/w 34 of IPC, in exercise of the appellate powers of this Court under the provisions of Section 374(2) of the Code of Criminal Procedure. Accordingly, the impugned judgment and order passed by the trial Court in so far as convicting and sentencing the appellants/accused for the offences punishable under Sections 302 and 449 r/w 34 of IPC, is liable to be set aside.60
iv) The 2nd point raised in these criminal appeals is answered in the negative holding that the appellants/accused have not made out a case to interfere with the impugned judgment and order passed by the trial Court in so far as convicting the appellants/accused for the offence punishable under Section 392 r/w 34 of IPC and sentencing them to undergo Rigorous Imprisonment for a period of ten years and to pay fine of Rs.5,000/-. However, in default of payment of fine, the appellants/accused shall undergo further Simple Imprisonment for a period of two years.
39. In view of the above, we pass the following:
ORDER
(i) The Criminal Appeals are allowed in part.
(ii) The impugned judgment of conviction and order of sentence dated 22/25-02-2017 made in Sessions Case No.33/2013 on the file of the V Addl. District 61 & Sessions Judge, D.K., Mangalore, sitting at Puttur, D.K., insofar as convicting the appellants/Accused Nos.1 and 2 for the offences punishable under Sections 449 and 302 r/w Section 34 of IPC and sentencing them to undergo imprisonment for life and to pay fine of Rs.3,000/- each with default clause, for the offence punishable under Section 302 r/w Section 34 of IPC and to undergo Rigorous Imprisonment for a period of ten years and to pay fine of Rs.5,000/- each for the offence punishable under Section 449 r/w Section 34 of IPC, are hereby set aside.
(iii) The appellants - Accused Nos.1 and 2 are acquitted for the offences punishable under Sections 302 and 449 r/w Section 34 of IPC.
(iv) The impugned judgment of conviction and order of sentence insofar as convicting appellants/Accused Nos.1 and 2 for the offence punishable under Section 392 r/w Section 34 of IPC and sentencing them to undergo Rigorous Imprisonment for a period of TEN YEARS and to pay fine of Rs.5,000/- (Rupees five thousand only) each, is hereby confirmed. In default of payment of fine, they shall undergo further Simple Imprisonment for a period of two years. 62
(v) The appellants/Accused Nos.1 and 2 are entitled to the benefit of set off as contemplated under the provisions of Section 428 of the Code of Criminal Procedure.
(vi) The fine amount of Rs.5,000/- each, if deposited shall be paid to the legal representatives of the deceased Thomas.
(vii) Since the main appeals are decided on merits, I.A. No.3/2018 for suspension of sentence in Criminal Appeal No.1300/2018 does not survive for consideration. Accordingly, I.A. No.3/2018 is also disposed off.
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JUDGE Sd/-
JUDGE Bss/Gss