Karnataka High Court
Satnam Singh vs State Of Karnataka Bynew Town Police ... on 19 July, 2019
Equivalent citations: AIRONLINE 2019 KAR 2052
Bench: K.N.Phaneendra, B.M.Shyam Prasad
1
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 19TH DAY OF JULY 2019
PRESENT
THE HON'BLE MR. JUSTICE K.N.PHANEENDRA
AND
THE HON'BLE MR. JUSTICE B.M.SHYAM PRASAD
CRIMINAL APPEAL No.1719/2007
Between:
1. Satnam Singh
S/o Harpal Singh
Aged about 25 years
Occ: General Store
2. Harmith Singh
S/o Harpal Singh
Aged about 27 years
Both are R/o MIG-135
Naubad, New Housing Board Colony
Bidar
Now at Central Prison
Gulbarga.
...Appellants
(By Sri C.V.Nagesh, Senior Counsel and
Sri R.S.Lagali, Advocate)
2
And:
State of Karnataka
By New Town Police Station
Bidar
...Respondent
(By Sri Prakash Yeli, Addl. S.P.P.)
This Criminal Appeal is filed under Section 374 (2) of
Cr.P.C. praying to set aside the conviction and sentence dated
18.10.2007 passed by the Principal Sessions Judge, Bidar, in
Session Case No.101/2006 and acquit the appellants of the
charges leveled against them.
This appeal having been heard and reserved on
25.06.2019 for judgment and coming on for pronouncement of
judgment this day, K.N.PHANEENDRA, J., delivered the
following:
JUDGMENT
The appellants who were the accused persons before the Principal Sessions Judge at Bidar in S.C.No.101/2006 have preferred this appeal against the judgment of conviction and sentence passed by the said Court vide judgment dated 18.10.2007. The learned Sessions Judge after appreciating the oral and documentary evidence on record has convicted the appellants for the offence 3 punishable under Section 302 of the IPC and sentenced them to undergo imprisonment for life and also to pay a fine of Rs.10,000/- with a default sentence to undergo simple imprisonment for two months.
2. We have heard the arguments of Sri C.V.Nagesh, learned Senior Counsel appearing for the appellants and Sri Prakash Yeli, learned Addl. S.P.P. appearing for the State. We have carefully perused and re-evaluated the evidence on record. Before adverting to the material evidence on record, we feel it just and necessary to have brief factual matrix of the case as unfolded in the records.
3. A person by name Jarnail Singh S/o Nathu Singh Bhatiya, resident of Tasgaon village in Sangli district, Maharashtra State has filed a report before the New Town Police, Bidar disclosing the facts that the complainant is the resident of Tasgaon village in Sangli District. They were all doing online business of selling 4 clothes. The complainant further stated that he has a younger sister by name Ranjitha Kaur and a brother by name Sathvinder Singh. Out of nine children to his father, Ranjitha Kaur was the youngest and she was given in marriage to one Karanbir Singh. The marriage of Ranjitha took place on 16.06.2006 at Gurunanak Jhara at Bidar. On 12.06.2006 itself for the purpose of said marriage all the 19 members in the family of the complainant came to Bidar and they stayed in Gurunanak Jhara. On 13.06.2006 the other relatives also assembled for the purpose of attending the marriage on 16.06.2006 and in fact on 16.06.2006 the marriage of Ranjitha Kaur and Karanbir Singh took place upto 6.00 p.m. At about 7.00 p.m. brother of the complainant Sathvinder Singh (deceased) had been to Bidar city for the purpose of watching a cinema. Along with him one Harmith Singh S/o Harpal Singh Munshi accused No.1 and Satnam S/o Harpal Singh Munshi accused No.2 who are the brothers of the newly wedded Karanbir Singh also went to Bidar 5 city. All these three persons went together to Bidar. This was seen by Rahul Dankar Kamble PW-8 and Maruti Salunke and Billu @ Rameshwar Singh PW-9.
4. It is further case of the complainant that at about 10.00 p.m. on the same day the accused Nos.1 and 2 came back to Gurunanak Jhara but Sathvinder Singh the brother of the complainant did not come. On enquiry, they told that they do not know anything about Sathvinder Singh. Later, within short time the complainant came to know that a dead body of some young man was lying on the Jhara road in the Bidar town. Immediately, the complainant and other members of the family went there and saw the dead body of deceased Sathvinder Singh who sustained sever injuries on different parts of his body. On enquiry, they came to know that the accused persons have quarreled with the deceased after consuming alcohol in a bar in Bidar city and while coming back in an auto rickshaw they assaulted the deceased and 6 committed his murder. It is also stated that Sathvindar Singh the deceased had talked about Satnam Singh's wife in filthy language about her character and her beauty in that context both the accused persons have assaulted the deceased with the khanjar (knife) and committed the murder of Sathvinder Singh at about 9.45 p.m. Having come to know about this, the complainant has lodged a report before the New Town Police, Bidar on 16.06.2006 itself at 22.45 hours and the Police have registered a case in Crime No.107/2006 for the offences punishable under Sections 302, 109 read with Section 34 of IPC.
5. The accused persons were arrested and after committal proceedings, the trial Court, after securing the presence of the accused persons framed charges against them for the above said offences. As the accused persons pleaded not guilty, they were tried by the trial Court and thereafter the impugned judgment was passed. 7
6. In order to bring home the guilt of the accused, the prosecution in fact has examined as many as sixteen witnesses as PW-1 to PW-16 and got marked documents Exs.P-1 to P-17. During the course of cross-examination of PW-6, Exs.D-1 and D-2 and in the evidence of PW-8 Ex.D-3 and in the evidence of PW-9 Exs.D-4 and D-5 were marked. Material Objects M.Os.1 to 19 were also marked. After appreciating the entire oral and documentary evidence on record, the trial Court has recorded the finding holding that, the accused persons have committed the offence as alleged by the prosecution and accordingly sentenced the accused persons as noted supra.
7. In fact, this Court had heard this criminal appeal long back and had rendered a judgment dated 26.08.2008 allowing the appeal and setting aside the judgment and sentence passed by the trial Court. However, the State has preferred an appeal before the Apex Court in Criminal Appeal No.1805/2003 and the 8 Apex Court vide order dated 30.08.2018 remitted the matter to this Court on the ground that the High Court has acquitted the accused on the only ground that there was discrepancy in the extra-judicial confession said to have been made by accused to PW-6 and the unusual conduct of PW-6 in not mentioning about the same in the FIR. However, the Apex Court has also observed that the High Court has not considered the other circumstances relied upon by the prosecution and the judgment of the High Court is not a reasoned order. Therefore, the Apex Court has remitted the matter for consideration of the present criminal appeal afresh after giving opportunity to the prosecution and to the accused.
8. After remitting of the said matter, again this Court has heard the arguments of the learned counsel for the appellants and the learned Addl. SPP for the State and reserved the matter for judgment.
9
9. The learned counsel for the appellants seriously contended before this Court that, the entire case revolves around circumstantial evidence. The prosecution has projected as many as four important circumstances in this case, those are:
(1) Extra judicial confession of the accused; (2) Recovery of material objects at the instance of the accused persons and motive.
(3) The homicidal death of the deceased; (4) Last seen theory of the accused and deceased together.
It is contended that the above said circumstances have not been proved by the prosecution beyond reasonable doubt. The learned counsel also taken us through the entire evidence of the prosecution witnesses and submitted that the so called extra-judicial confession was made before PW-6 which is contradictory to the averments made in the complaint itself as per Ex.P-1. 10 Even otherwise, the said extra-judicial confession cannot be believed as a gospel truth because it is a very weak piece of evidence that too it was made before the complainant himself who is the brother of the deceased. The evidence of the material witnesses PWs-6 and 7 in this regard is contradictory to each other. Therefore, the extra- judicial confession has not been established substantially before the Court. The motive factor is also very weak in this particular case because what exactly happened between the accused and the deceased is not made known to anybody. But it is only on the basis of the guesswork and imagination the motive has been built up by the prosecution in this case. Therefore, such evidence also cannot be taken into consideration. The recovery of material objects is also not substantially proved as the place of recovery itself is doubtful and the material witnesses PWs-4 and 5 so far as Exs.P-5 and P-6 are concerned have turned totally hostile to the prosecution. Even the Investigating Officer also does not say with all 11 certainty from where actually the material objects have been recovered. Therefore, there is lot of discrepancies in the evidence of the prosecution witnesses. In this background, the last seen theory has also not been properly established. The prosecution has not examined material witnesses as to the movements of the accused and the deceased except leading a bleak evidence that the accused persons and the deceased went to see the cinema to Bidar town and thereafter what happened has not been established. Therefore, none of the circumstances have been proved by the prosecution beyond reasonable doubt. Even the learned counsel submitted that the last seen theory even if it is accepted as it is, that alone is not sufficient to draw the inference of guilt of the accused. Therefore, he prayed for acquittal of the accused.
10. Per contra, the learned Addl. S.P.P. has submitted before the Court that, though there are some discrepancies in the evidence with reference to the above 12 said circumstances, but the Court has to look into the evidence and that, overall analysis of the entire materials the minor discrepancies and contradictions are to be ignored and core of the prosecution has to be taken into consideration. There has been a strong evidence to show the last seen of the accused and deceased going together and accused Nos.1 and 2 coming back without the deceased and they themselves have disclosed that they have done the deceased to death by giving their confession before the complainant PW-6 himself who is none other than the brother of the deceased. All the accused and deceased are related to each other. Therefore, there is no reason to disbelieve the complainant's version. Though there are some discrepancies with regard to recovery of the material object No.1, that is, Khanjar (knife) in the evidence of the prosecution witness and also the Investigating Officer that itself will not throw away the case of the prosecution. Even some lapses on the part of the investigation will not loom large for the purpose of 13 disbelieving the case of the prosecution. Therefore, on overall analysis of the entire oral and documentary evidence on record the trial Court has rightly come to the conclusion that the prosecution has proved its case beyond reasonable doubt. Therefore, there is no room to interfere with the judgment of conviction and sentence passed by the trial Court. Hence, he pleaded for dismissal of the appeal.
11. Before adverting to the each and every circumstances which are relied upon by the prosecution and the accused, we feel it just and necessary to have the brief cursory look at the evidence led by the prosecution and thereafter we will take up each circumstances for consideration with reference to the evidence of the witnesses.
12. PW-1 Mr. Tukaram was examined to establish the last seen of the accused and the deceased in a bar by name Rolex Bar at Bidar Town. PW-1 was working as 14 supplier in the said Rolex Bar/restaurant and it is the case of the prosecution that he saw the accused and deceased together consuming liquor and food in the said Rolex Bar. However, this witness has not supported the case of the prosecution. PW-2 Swaranjeeth Singh is the lodge incharge officer in Gurudwara. He is also a panch witness to Ex.P-2 inquest and Ex.P-3 spot mahazar from where M.Os.10, 11 and 13 were seized but he has also not supported the case of the prosecution. Though the inquest proceedings in the case and the death of the deceased has not been denied, nevertheless this witness turned hostile. The Court can arrive at a conclusion with regard to homicidal death of the deceased otherwise also in the evidence of this witness. PW-3 Shivarudrappa is a panch witness to Ex.P-4 under which the seizure of the clothes of the deceased were effected after the postmortem examination which are marked at M.Os.1 to 9. PW-4 Nagendra is a panch witness to Ex.P-5 recovery of M.Os.12, 14 to 17 which are alleged to have been 15 recovered at the instance of accused No.1 and also witness to Ex.P6 under which M.Os.18 and 19 were recovered at the instance of accused No.2. These two witnesses have not supported the case of the prosecution and turned hostile. PW-6 Jarnailsingh is none other than the elder brother of deceased and the complainant in this case who lodged the complaint as per Ex.P-1 as we have already referred to. He also speaks about extra-judicial confession made by the accused. We discuss the evidence of this witness little later in connection with circumstances.
13. Kuldeep Singh PW-7 is the younger brother of the deceased and PW-6. He is a hearsay witness. He acquires the knowledge of the incident from PW-6. PW-8 Rahul and PW-9 Billu Singh are also relatives and they saw the accused and deceased together at 7.00 p.m. on the date of the incident and they saw the accused Nos.1 and 2 along with the deceased going together to watch movie in Bidar town. These two witnesses in fact have 16 supported the case of the prosecution. PW-10 Harvendra Singh Bhatia is also another witness to Exs.P-2 and P-3 and spot mahazar, supported the case of the prosecution. PW-11 who is a panch witness to Ex.P-4 has turned hostile under which M.Os.1 to 9 the clothes of the deceased were seized. PW-12 Dr. Madana Vaijinath working as a Senior Specialist at District, Bidar who conducted the post mortem examination of deceased as per Ex.P-8, he gave his opinion that, the death was due to incised wound in atrium of heart and hypovolemia shock and he has also deposed that, the injuries are antemortem in nature. He gave his opinion with regard to the weapon, that is, M.O.12 knife as per Ex.P-9 stating that the injuries on the dead body could be caused by assaulting the person with knife M.O.12. PW-13 Mallikarjun is a Junior Engineer who prepared a sketch of scene of offence as per Ex.P-11. In our opinion he is a formal witness, there is no need to deal with the evidence of this witness in detail. PW-14 Kashinath who was working as a Police 17 Constable in the respective police station had carried the FIR to the Court. PW-15 Shankar Kalligud and PW-20 Nandishwar Kumbar who were working as Circle Inspector of Police and Police Sub-Inspector in the respondent police at the relevant point of time. They have spoken about the registration of the case, conducting of the investigation and submitting of the charge sheet before the Court.
14. After going through the above said witnesses, now we will take up the circumstances as projected by the prosecution with reference to the material witnesses to ascertain whether the prosecution has proved its case beyond reasonable doubt by proving all the circumstances projected and also proving the connectivity of the circumstances and are sufficient to bring home the guilt of the accused.
15. Now we will take up the circumstances individually as projected by the prosecution. 18
(1) Extra judicial confession and motive:
It is the case of the prosecution that the deceased Sathvinder Singh ill teased accused No.1, about his wife's beauty stating that, the wife of accused No.1 is very beautiful and she was looking very pretty in a blue suit and accused No.1 would like to abduct her to enjoy her for a day. On hearing the said version of the deceased, accused No.1 became angry and assaulted him with a khanjar on his chest. Accused No.2 who was also with accused No.1 has abated accused No.1 to do away with the life of Sathvinder Singh the deceased and thereby they have contributed each other common intention to do away with the life of the deceased.
In order to prove this motive factor, the prosecution has relied upon the extra-judicial confession of the accused before PW-6. It is also the case of the prosecution that, the accused Nos.1 and 2 have made extra-judicial 19 confession that on the basis of the above motive they have committed the murder of the deceased.
16. PWs-6 and 7 are the important witnesses so far as this aspect is concerned. Now we will discuss the evidence of these two witnesses little detail so far as this aspect is concerned. PW-6 in his evidence has stated that, on the day of the incident the entire marriage pertaining to his sister was over in the evening. Accused Nos.1 and 2, their mother and some relatives came to the room of PW-6 for taking the bride. As accused Nos.1 and 2 are the brothers to each other and their younger brother Karanbir Singh was the bridegroom, the sister of PW-6 was the bride. Therefore, the accused and PWs-6 and 7, became relatives to each other after the marriage. In this background, it is stated that, after leaving his younger sister to the room of the accused, PW-6 came back and thereafter accused Nos.1 and 2 came to the room of PW-6 and took his younger brother Sathvinder Singh along with 20 them stating that, they would go to market. Sathvinder Singh and accused did not return upto 8.00 p.m. PW-6 was waiting for Sathvinder Singh, outside the Gurudwara gate. At about 10.00 p.m. he saw accused Nos.1 and 2 only coming from the opposite side but Sathvinder Singh (deceased) did not come back. PW-6 asked accused Nos.1 and 2 regarding Sathvinder Singh. They told that they were not knowing anything about Sathvinder Singh. Therefore, PW-6 became tensed and he suspected the accused as he saw the clothes of accused Nos.1 and 2 were stained with blood. At that time one wearing black T-Shirt and light green jean pant and black shoes, another was wearing white T-shirt and black pant. After seeing the dead body they came back and they suspected accused Nos.1 and 2. Therefore, they went to the room of the accused and asked them as to why they had murdered his younger brother. Then accused No.1 told them that the deceased had spoken ill about his wife and therefore he 21 had murdered the deceased. After hearing the said aspect a complaint came to be lodged.
17. PW-7 also in his examination had reiterated about said facts and he also stated that he has observed the blood stained clothes on the person of the accused and questioned them about the deceased and they gave the same answer as given to PW-6. He stated that he came to know that there was some humiliating words and teasing words used by the deceased in respect of wife of accused No.1 and on account of that both accused assaulted Sathvinder Singh, that is, the deceased.
18. The above said evidence clearly discloses that, the prosecution wants to rely upon the extra-judicial confession that the accused persons have murdered the deceased for the motive that the deceased Sathvinder Singh has ill talked about the wife of accused No.1. Except the evidence of PWs-6 and 7 there is no other evidence available as to whether there was any such 22 quarrel took place prior to or after the incident between PWs-6 and 7 and the accused persons and there is no evidence that, prior to the alleged incident the accused Nos.1 and 2 had any premeditation or any plan or hatred so far as deceased Sathvnder Singh is concerned. Therefore, it is very difficult for the Court to believe PWs-6 and 7 about the said aspect because what happened between the accused and the deceased was not known to anybody. In this background the evidence of these witnesses cannot be believed in this regard even accepting as it is, the examination-in-chief stated by them, because in the course of cross-examination all those alleged extra- judicial confession and motive has been categorically denied by the accused persons.
19. It is a basic principle that the extra-judicial confession itself is a weak piece of evidence. However, it all depends upon the facts and circumstances of each case whether such extra-judicial confession can be believed. 23 Normally, it is said that the accused persons would divulge their illegal activity particularly such a ghastly incident only before their kith and kin or before the person with whom they have utmost confidence. Further, it is also a recognized principle that the accused persons would divulge such a ghastly incident before the person who would definitely save them or if possible screen the accused persons from their liability or punishment. In this background, whether it can be said that the accused persons would have divulged such things knowing fully well that PW-6 is none other than the brother of the deceased. Though they are related to each other because of the marriage between one of the brothers of accused Nos.1 and 2 and the sister of PW-6, it is the case that relationship started only after marriage. Therefore, even if the accused Nos.1 and 2 alleged to have committed the murder of the deceased, definitely they would not have divulged the same before PWs-6 and 7 who are definitely do not save accused Nos.1 and 2 in any manner and they 24 would not help the accused in any manner. Therefore, in this context it is very difficult to believe the version of PWs-6 and 7 so far as this extra-judicial confession is concerned.
20. The motive also as alleged by the prosecution is only that the deceased has spoken ill about the wife of accused No.1. Except the accused version no other things are available. It is worth to note here that the prosecution case is that after accused Nos.1 and 2 and the deceased went together to Bidar city thereafter they all consumed alcohol in a bar and then while coming in an auto rickshaw these conversation between accused Nos.1 and 2 and the deceased alleged to have taken place. In this context the Investigating Officer has not made any attempts to trace the said auto rickshaw and secure the driver of the auto rickshaw to ascertain what exactly happened whether the accused and the deceased traveled in the said auto rickshaw in order to unearth the said 25 statement of PWs-6 and 7. Therefore, in our opinion, this extra-judicial confession of the accused before PWs-6 and 7 in the absence of any other corroborative material before the Court cannot be accepted.
(2) Recovery:
21. It is the case of the prosecution that the Investigating Officer has recovered M.O.12 a Khanjar and M.Os.14, 15, and 17 blood stained clothes and shoes of accused No.1 under Ex.P-5 in the presence of the panch witnesses PWs-4 and 5. They have also recovered from accused No.2 M.Os.18 and 19 blood stained clothes and shoes under Ex.P-6 in the presence of the same witnesses PWs-4 and 5. Further that in order to connect these recovered articles the Investigating Agency has sent these articles along with the blood stained clothes of the deceased to FSL and in fact the FSL report discloses that these items were stained with the blood group of the deceased, that is, AB blood group. Therefore, the learned 26 Addl. S.P.P. submitted that the prosecution has proved the guilt of the accused even on the basis of this recovery.
22. Now we will examine whether this particular aspect has been proved beyond reasonable doubt. First we will take up the evidence of PWs-4 and 5 who are the panch witnesses for these two mahazars. In fact PWs-4 and 5 have not supported the case of the prosecution.
PW-4 Nagendra Singh has stated that he has not seen Police recovering any weapon or blood stained clothes from accused Nos.1 and 2 however he identified his signature on the mahazar as per Exs.P5(a) and P6(a) and he says that he do not know the contents of the said mahazar. The whole case of the prosecution with regard to recovery as put into his mouth during the course of cross-examination except eliciting denial no effort has been made as to why this witness has turned hostile to the prosecution. PW-5 also in the similar manner has not supported the case of the prosecution. However, he stated 27 that the Police had brought the accused after 5.00 p.m. on that day and they were all taken near a bush little distance away from the step of Gurudwara on the rear side of amusement park and accused showed the spot and produced one chaku he did not observe the chaku closely. Police seized the same and he cannot identify the said chaku before the Court. Thereafter, Police took all of them to a room and there some clothes were produced. He do not remember from where it was produced and he also did not observe the clothes. He also did not identify any chaku or the clothes before the Court. Therefore, he was also treated hostile by the prosecution but he even denied in the course of cross-examination with regard to recovery of the said articles from accused Nos.1 and 2.
23. In the course of cross-examination by the learned counsel for the accused it is elicited that on that particular day there was heavy rains. He stated that a Kirpan or a chaku and a leather pouch were lying close to 28 each other and the said place was of hard soil and big bushes were there. He did not speak with the accused on that day and he do not know how many panchanamas were prepared on that day. He also stated that he cannot identify the clothes which were alleged to have been seized from any of the accused. Therefore, there is no much support from the evidence of these witnesses who have not supported the case of the prosecution.
24. In this background, the evidence of the Investigating Officer remains for consideration so far as these aspects are concerned.
25. The Investigating Officer PW-15 has deposed before the Court that, he has recorded the voluntary statement of the accused Nos.1 and 2. He further stated that pursuant to the voluntary information given by accused No.1 he has seized one Kirpan and its cover and he packed them separately and sealed them. He had identified Kirpan M.O.12 and he also seized the blood 29 stained clothes at the instance of accused. He also stated that he recovered on T-shirt M.O.15 and Jeans pant M.O.16 and one pair of shoes M.O.17 at the instance of accused No.1 in the presence of the panch witnesses. He also stated that at the instance of accused No.2 he seized one blood stained black pant and one pair of blood stained shoes. He identified them as M.Os.18 and 19. He sealed them in the presence of the panch witnesses.
26. But in the course of cross-examination he stated that M.O.2 which was spotted by accused No.1 at the first instance on the spot itself and at the spot itself in the presence of panch witnesses M.O.12 was seized. Therefore, it creates a serious doubt whether it was actually seized at the instance of accused No.1 underneath a bush which was not visible to anybody but according to the Investigating Officer it was seized and sealed on the spot itself. It is also stated by him that it was sharp on one side and one side was blunt and he also 30 stated that there were no blood stains on the said weapon. Therefore, it was suggested that the said weapon was not seized at the instance of accused No.1 but it was a new one purchased by the Police to implicate the same into this case.
27. In this background, the evidence of the doctor in our opinion is also important. PW-12 Dr.Madana Vaijinath so far as this knife is concerned has deposed that after seeing a cloth bundle opened in the open Court and the knife was taken out from the said cloth bundle and he identified the same and said that the said knife had both the side sharp edges and the said weapon is called as Khanjar. In the course of cross-examination he further stated at para-6 that the said khanjar was brought to him by the Police in the open condition and thereafter it was sealed in the presence of this doctor. It is suggested that the injuries on the body of the deceased could not be caused by using the said khanjar M.O.12. Therefore, it 31 creates a serious doubt whether it was actually seized from the custody of accused No.1.
28. Two doubts arose in this connection with this aspect, that is, (1) the weapon was seized on the spot itself in the presence of the panch witnesses but the mahazar Ex.P-5 shows that it was seized in the bush at the instance of accused No.1; (2) that when the said weapon was seized and sealed on the spot itself which was having only one side sharp edge and when it was sent to the doctor the said weapon had two side sharpness and it was not sealed, when actually the said seal was put and why it was in presence of the doctor. Therefore, in the above said circumstances, whether the same weapon which was alleged to have been seized in this case particularly at the instance of accused No.1 is placed for consideration of the Court. Therefore, it creates a serious doubt in the conduct of the Investigating Officer with regard to the seizure of these articles. Therefore, in the absence of the 32 supporting evidence from PWs-4 and 5 with regard to the recovery, even the recovery of the said blood stained clothes shoes at the instance of the accused also in our opinion not so trustworthy for belief. Even the FSL report which is marked as Ex.P-17 tallies with the blood stained content on the items that is the khanjar and other clothes of the accused and deceased which contained AB blood group of the deceased, but they have also not been tested by the Investigating Officer by taking the blood sample of the accused. In the above said doubtful circumstances he ought to have done the same. Therefore, the recovery alone cannot be made basis for the purpose of convicting the accused.
29. In addition to the above, so far as recovery of the clothes are concerned, in the evidence of PWs-6 and 7 they have categorically stated that on the same day of the incident after seeing the dead body they went to the room of accused No.1 and they asked accused Nos.1 and 2 33 regarding their younger brother. They saw the clothes of the accused worn by them were stained with blood. One accused was wearing black T-shirt and light green jean pant and another was wearing white T-shirt and black pant. Though they have stated so in their examination-in- chief, the said aspect is conspicuously absent in the FIR, that is, Ex.P-7. Thus, Ex.P-7 as we have noted was lodged on 16.06.2008 at 22.45 hours after PWs-6 and 7 have met the accused and enquired about their brother with the accused. They have stated so many things which were actually not within their knowledge with regard to what had happened in the auto rickshaw in which the accused and deceased were coming and also what happened after those persons went to Bidar that is to say they consumed alcohol in a bar and while coming some quarrel took place between them in the auto rickshaw which was actually not within their knowledge. They have stated all those things could it be believed that the facts which are within their knowledge with regard to the blood stained clothes, shoes 34 worn by the accused they could not state those things in the complaint itself. This also in our opinion creates serious doubts. Therefore, we are of the opinion that the prosecution also not proved beyond reasonable doubt the recovery of the incriminating articles at the instance of the accused and that the same is sufficient to draw an inference of guilt of the accused.
(3) Last seen theory:
30. The last but not the least, the prosecution has relied upon the circumstances of last seeing the accused and deceased together by some of the witnesses. In fact the prosecution has relied upon the evidence of PWs-6, 8 and 9 and also PW-1. Of course, PW-6 whose evidence we have already in detail discussed has stated that, on the date of the marriage and particularly after marriage between 3.00 p.m. to 5.00 p.m. accused Nos.1 and 2 came and took the deceased along with them stating that they would go to market. Thereafter deceased did not return 35 and accused Nos.1 and 2 alone came back and on being asked accused told PW-6 that they do not know anything about the deceased as to where he has gone. This witness in the complaint has in fact stated that the accused persons took the deceased along with them for the purpose of watching a cinema in Bidar. But in the evidence he says that they took him to go to market. Though it is a minor contradiction it should be examined in the light of the other evidence on record. He also stated in the course of cross-examination that the accused took the deceased at about 6.00 p.m. to go to city. But thereafter he does not know what happened between the accused and the deceased. It appears all other things he has stated with regard to the quarrel between accused Nos.1 and 2 with the deceased in the auto rickshaw are all on the basis of futile imagination and the source of such information has not been divulged by any of the witnesses including the Investigating Officer as to how the witnesses 36 came to know about such quarrel between the accused and the deceased in the auto rickshaw.
31. In this background, the evidence of other witnesses have also to be taken into consideration. PW-8 Rahul has stated that he has also attended the marriage of the sister of PW-6 Ranjitha Kaur and at about 6.45 to 7.00 p.m. this witness and Maruti Salunke and Billu had stood near Gurudwara Gate from the opposite directions accused Nos.1 and 2 and deceased Sathvinder Singh came to that particular spot and went together stating that they want to go to a movie. Thereafter these two witnesses went back to the room of Gurudwara. The said aspect has been denied in the course of cross-examination by the accused. PW-9 also in the similar fashion stated that at about 6.45 p.m. himself and Rahul were standing near the gate of Gurudwara and they saw accused Nos.1 and 2 and deceased went together stating that they want to go to a movie. So these aspects show that the accused Nos.1 and 37 2 and the deceased went together at about 3.00 p.m. to 5.00 p.m. or 6.00 p.m. to 7.00 p.m. There may be some minor mistakes with regard to the time, but nevertheless these witnesses have supported the case of the prosecution so far as this last seen is concerned.
32. But the above said last seen together is not only the evidence available to the prosecution but the prosecution also relied upon facts as to thereafter what happened. It is the case of the prosecution that, the accused and deceased went together in an auto rickshaw. PW-1 Mr. Tukaram was examined in this context but he turned hostile to the prosecution. He was working as a bar attender in Rolex Bar and Restaurant situated in Bidar. He never stated about the accused persons coming to their bar and consuming alcohol and thereafter the Police took accused Nos.1 and 2 to these witnesses and identified them. He also denied having identified the dead body of the deceased Sathvinder Singh. Therefore, the 38 subsequent last seen of the accused and deceased has not been established by the prosecution.
33. The Investigating Officer in his evidence has stated that he has seized a piece of the auto rickshaw during the course of investigation. But he has not stated anything about any investigation done by him with reference to the auto rickshaw in which the accused and deceased traveled on that particular day. Though he has stated that he has not examined the auto rickshaw driver, but nothing has been stated in the cross-examination or in the examination-in-chief as to what efforts actually he has made to ascertain about the said auto rickshaw belonging to whom and who was the driver of the auto rickshaw on that particular day. In our opinion auto rickshaw driver is the proper person to actually say what exactly happened on that particular date and he was the person actually last seen the accused and deceased together in the auto rickshaw even according to the case 39 of the prosecution. Therefore, it is not that immediately after they left Gurunanak Jhara immediately the incident happened. Thereafter also according to the prosecution the accused and deceased were seen by PW-1 and the driver of the auto rickshaw but said evidence is not available to the prosecution. Therefore, in this regard it is worth to refer to a decision of the Apex Court in the case of Anjan Kumar Sarma and others vs. State of Assam reported in (2017) 14 SCC 359 wherein the Apex Court at paras-19, 20, 23 to 25 has summed up the circumstances of last seen together, how it could be made basis for conviction. It is observed that:
"In a case where other links have been satisfactorily made out and circumstances point of guilt of accused, circumstances 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 40 explanation, cannot be made the basis of conviction. The other circumstances relied upon by the prosecution must also be proved beyond all reasonable doubt so as to connect the link between one circumstance to another. If lack of chain of circumstances, the Court cannot convict the accused which can only lead to the hypothesis of the innocence of the accused." In another ruling reported in (2019) 4 SCC 522 in the case of Digamber Vaishnav and Another Vs. State of Chattisgarh the Apex Court has observed that:
"There must be complete connection of the link between one circumstance to another circumstance which should complete the chain. It is settled that the circumstance of last seen together cannot by itself form the basis of holding the accused guilty of the offence. If there is any credible evidence that just before or immediately prior to the death of the victims, they were last seen along with accused at or near the place of occurrence, the needle of suspicion would certainly point to the culprits. And this would be one of the strong factors or circumstances inculpating them with the alleged crime purported on the victims. However, if the last seen evidence does 41 not inspire confidence or is not trustworthy, there can be no conviction. Therefore there must be close proximity between the time of seeing and recovery of dead body."
34. Relying upon the above said decisions and applying the said principles to this case, the persons who have last seen the accused and deceased according to the prosecution are actually the Bar Attender as well as the auto rickshaw driver. Auto rickshaw driver is not available to the prosecution, as there is no effort appears to have been made to examine such auto rickshaw driver and seizure of any auto rickshaw in this case. PW-1 has turned hostile. Therefore, the last seen as stated by PWs- 6 and 7, in our opinion, is not the only last seen circumstance but the prosecution also relied upon other last seen circumstances thereafter, which has not been proved before the Court.
35. Looking to the above said circumstances projected by the prosecution and doubtful circumstances 42 in proving the said circumstances, in our opinion, the evidence is not so sufficient to draw a conclusive inference about the guilt of the accused. Therefore, giving the benefit of doubt of the above said circumstances, we are of the opinion that, the judgment of conviction and sentence passed by the trial Court is liable to be set aside. Hence, we proceed to pass the following:
ORDER The judgment of conviction and sentence passed by the trial Court in S.C.No.101/2006 dated 18.10.2007 on the file of the Principal Sessions Judge, Bidar is hereby set aside. The accused-appellants are acquitted of the offence punishable under Section 302 read with Section 34 of IPC. As the accused presently are in custody, they shall be released forthwith if they are not required in any other cases. If the accused have deposited any fine as ordered by the trial Court, the same is also ordered to be refunded to them after proper identification and acknowledgement. 43
The Registry is hereby directed to send back the records along with a copy of this judgment.
The Registry is hereby directed to send operative portion of this order forthwith to the concerned Jail authorities for release of the accused from the jail, if they are not required in any other cases.
Sd/-
JUDGE Sd/-
JUDGE swk Ct:RRJ