Karnataka High Court
R Krishna vs State Of Karnataka on 4 November, 2022
Author: B.Veerappa
Bench: B.Veerappa
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 4TH DAY OF NOVEMBER, 2022
PRESENT
THE HON'BLE MR.JUSTICE B.VEERAPPA
AND
THE HON'BLE MRS.JUSTICE K.S.HEMALEKHA
CRIMINAL APPEAL No.141/2017
BETWEEN:
R. KRISHNA
S/O. LATE RANGAIAH NAIDU,
AGED ABOUT 55 YEARS,
R/AT NO.10, 23RD CROSS,
ITTAMADU, BANASHANKARI,
3RD STAGE,
BENGALURU - 560 085. ... APPELLANT
(BY SRI HANUMANTHARAYA C.H., ADVOCATE)
AND:
STATE OF KARNATAKA
BY THE POLICE INSPECTOR,
CHENNAMMANAKERE ACCHUKATTU,
POLICE STATION,
BENGALURU - 560 085.
HIGH COURT BUILDING COMPLEX,
BENGALURU - 560 001.
(REPRESENTED BY LEARNED
STATE PUBLIC PROSECUTOR). ...RESPONDENT
(BY SRI VIJAY KUMAR MAJAGE, ADDL. SPP)
THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374(2)
CR.P.C. BY THE ADVOCATE FOR THE APPELLANT/ACCUSED
PRAYING THAT THIS HON'BLE COURT MAY BE PLEASED TO SET
ASIDE THE JUDGMENT OF CONVICTION AND ORDER OF
SENTENCE DATED 24.11.2016 PASSED BY THE LI ADDITIONAL
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CITY CIVIL AND SESSIONS JUDGE, BENGALURU CITY IN
S.C.NO.715/2013 CONVICTING THE APPELLANT/ACCUSED FOR
THE OFFENCE P/U/S 302 AND 201 OF IPC.
THIS CRIMINAL APPEAL COMING ON FOR FINAL HEARING
THIS DAY B.VEERAPPA J., DELIVERED THE FOLLOWING:-
JUDGMENT
The accused, who is in judicial custody for more than nine years, filed the present criminal appeal against the impugned judgment of conviction and order of sentence dated 24.11.2016 made in Sessions Case No.715/2013 on the file of the LI Additional City Civil and Sessions Judge, Bengaluru City, convicting and sentencing the appellant - accused to undergo rigorous imprisonment for life and to pay fine of Rs.25,000/- for the offence punishable under Section 302 of Indian Penal Code (for short 'IPC') and convicting and sentencing him to undergo rigorous imprisonment for three years and a fine of Rs.5,000/- for the offence punishable under Section 201 of IPC.
2. It is the case of the prosecution that on the basis of the complaint lodged by P.W.1 -N.Jayanandan -3- that accused - R.Krishna s/o Late Rangaiah Naidu being the son of the elder-brother of the husband of the deceased - Smt.Kanakambaram, aged about 55 years residing at No.10, 23rd Cross, Ittamadu, Banashankari 3rd Stage, Bengaluru, was looking after the accused as she was issueless and her husband died about 17 years prior to the date of the incident occurred on 21.01.2013 at 9.30 a.m. It is further alleged that accused - R.Krishna used to take her to the hospital whenever she suffered from ill-health. The accused with an intention to grab and take away the golden ornaments of deceased - Smt.Kanakambaram hatched a sketch and took her to the Hospital of Dr.S.M.Bhat - P.W.6 and deposed that Smt.Kanakambaram was suffering from sleeplessness and requested for prescribing the sleeping tablets and accordingly, P.W.6 - Dr.S.M.Bhat prescribed Sedative Drug by name Anxit 0.5 Mg advising to take half or one tablet everyday in the night after the food as and when required and thereby, gave the prescription slip as per Ex.P.5, which prescribed only 6 sedative -4- tablets. It is further alleged that the accused purchased the said tablets from the medical shop of one D.Kishore Gandhi - P.W.7 and kept in the house of the deceased, who was residing alone in a house taken on lease situated at No.10/30, 8th 'B' Cross, 3rd Main, Srinivasanagar, Banashankari 3rd Stage, Bengaluru. On 21.01.2013 at about 9.30 a.m. in the morning when the accused went to the house of the deceased, she asked him to bring the juice and wherefore, the accused brought Pineapple-juice from juice centre of one K.N.Raju - P.W.21 at about 12.00 in the afternoon and taking the said opportunity as an advantage, mixed the said sedative tablets, which were already kept in the house along with other tablets "sumo", in the said juice with an ulterior motive and provided the said juice to the deceased and she went asleep in deep. Thereafter, accused took away double-lined golden necklace chain, one golden finger ring and 4 golden bangles, which were being worn by the deceased and thereafter, he took one Avalakki designed golden - necklace chain from the -5- almirah and thereby to avoid the suspicion, he left one pair of nose-studs, one pair of ear studs and one matti chain and thereafter, he tried to kill her by pressing her nose and mouth with the aid of cloth for 10 minutes, but when he did not succeed in his attempt, he strangulated her neck by tying a cloth tightly and caused the death of the deceased due to asphyxia and thereby, the accused committed the offence.
3. On the information received by the son of P.W.1, P.W.1 lodged a complaint on 22.01.2013 at about 12.30 p.m. and the jurisdictional police registered a crime No.15/13 for the offence punishable under the provisions of 302 IPC. After investigation, the jurisdictional Investigating Officer filed a charge sheet against the accused for the offence punishable under the provisions of Sections 302 and 201 of IPC.
4. The jurisdictional Magistrate took the cognizance of the offence and registered the case against the accused. Thereafter, the matter was -6- committed to the learned Sessions Judge. The learned Sessions Judge secured presence of the accused and framed the charge on 21.08.2013 under the provisions of Sections 302 and 201 of IPC and read-over and explained in the language known to him. Accused denied and pleaded not guilty for the said offences and claimed to be tried.
5. In order to prove the case of the prosecution, the prosecution examined in all 26 witnesses as P.Ws.1 to 26 and got marked material documents as per Exs.P.1 to 28(a) and material objects as per MOs.1 to MO.10. After completion of the evidence of the prosecution witnesses, the statement of the accused as contemplated under the provisions of Section 313 of Cr.P.C. was recorded. The accused denied all the incriminating circumstances that were found against him in the evidence of the prosecution witnesses and he has not given any statement under Section 313(5) of -7- Cr.P.C., except total denial of all the allegations made out.
6. The learned Sessions Judge considering both oral and documentary evidence on record recorded a finding that the prosecution proved beyond reasonable doubt, that the accused with an intention to grab and take away the golden ornaments of the deceased hatch a sketch and took her to the hospital of Dr.S.M.Bhat - P.W.6, who prescribed the Sedative drug by name Anxit 0.5 m.g and advised to take half or one tablet everyday in the night after food as and when required, that the accused has purchased the said tablets from the medical shop of D.Kishore Gandhi - P.W.7 and when the deceased asked him to bring the juice, the accused brought pineapple juice with a mixture of sedative tablets, which were already kept in the house, along with other tablets "sumo". When the deceased went deep asleep, the accused took away the double-lined golden - necklace/chain and other ornaments and -8- thereafter, took one Avalakki chain from the almirah and to avoid the suspicion, he left one-pair of nose-studs, one-pair of ear-studs and one matti-chain and thereafter, he tried to kill her by pressing her nose and mouth with the aid of cloth for 10 minutes. But, when he did not succeed, he strangulated her neck by tying a cloth tightly, which has resulted into death of the deceased in the hands of accused due to asphyxia ultimately and thereby, the accused committed the murder of the deceased and thereby, accused committed the offence punishable under Section 302 of IPC.
7. The learned Judge further recorded a finding that in order to destroy the evidence, he thrown away the plastic glass in which he had brought juice in a drainage and torn the cloth, which was used for the strangulation and also burnt and destroyed the prescription slip, which was given by the Doctor, with an intention to cause disappearance of the valuable -9- evidence of the offence committed by him and thereby, the accused committed the offences punishable under Sections 302 and 201 of IPC. Accordingly, the learned Sessions Judge by the impugned judgment of conviction and order of sentence convicted the accused to undergo rigorous imprisonment for life and to pay fine of Rs.25,000/- for the offence punishable under Section 302 of IPC with default clause of three years rigorous imprisonment and to undergo rigorous imprisonment for three years and to pay a fine of Rs.5,000/- for the offence punishable under Section 201 of IPC with default clause of nine months rigorous imprisonment. Hence, the present appeal is filed by the accused.
8. We have heard the learned counsel for the parties to the lis.
9. Sri.C.H.Hanumantharaya, learned Senior Counsel for accused vehemently contended that the impugned judgment of conviction and order of sentence passed by the Trial Court is erroneous contrary to the
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materials on record and the same cannot be sustained. He would further contend that the entire case of the prosecution is based on circumstantial evidence and no circumstances are proved beyond reasonable doubt that the involvement of the accused to cause death of the deceased. He would further contend that charge was framed under the provisions of Sections 302 and 201 of IPC and no charge of theft under Section 392 of IPC was framed and no opportunity was given for the accused to establish the same. Therefore, the very charge itself is vague. The question of convicting the accused under Sections 302 and 201 of IPC on the basis of assumptions and presumptions cannot be sustained.
10. He would further contend that on 14.01.2013, when the informer i.e., Ananda Babu - son of P.W.1, who informed the death of the deceased, has not disclosed who has killed the deceased. The complaint - Ex.P.1 filed by the brother of the deceased i.e., P.W.1 clearly indicates that the complaint made
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only on the basis of suspicion. The evidence of P.Ws.1, 2, 3, 12 and 13 clearly depicts that the entire case is based on the suspicion against the accused. There are no eye witnesses to the incident nor motive is proved. Thereby, the learned Senior Counsel submits that the entire case of the prosecution is based on the suspicion. He would further contend that Ex.P.6 - FIR clearly depicts that it is filed only on the suspicion against the accused and there are no eye witnesses. He would further contend that crime was registered by P.W.2 - PSI, who has not conducted the inquest panchanama and the case was registered on 22.01.2013 at about 12.00 p.m., Once the case is registered and referred the matter to the learned jurisdictional Court, he cannot further investigate the matter. It is only the Circle Inspector, who is a Competent Authority to register and investigate the matter in the heinous crimes as contemplated under Order 201 and 208 of the Karnataka Police Manual. The PSI has no jurisdiction to investigate the matter further after sending the FIR to
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the Court. The PSI - P.W.20 went along with accused even before his arrest and thereby, the entire case of the prosecution is doubtful.
11. The learned counsel further contended that P.W.10 - owner of the house, where the deceased was residing at home, whose statement was recorded on 22.01.2013 at 10 a.m. The timings referred to by the P.W.10 in para No.3 of the cross-examination and in the examination-in-chief are entirely different. Thereby, the evidence of P.W.10 is of no use. He would further contend that P.W.7 - owner of the medical shop categorically stated that police came to his shop along with accused on 21.01.2013 at about 11.30 a.m., even before the case is registered. He would further contend that son of P.W.1 i.e., informant, who had entrusted the accused to look after the deceased - Kanakambaram, about 17 years prior to the incident, all along was taking care of the deceased on day to day needs and that accused used to take to the hospital as and when
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required as admitted by the P.Ws.1, 2, 3, 12 and 13. This clearly depicts that the complaint was made after due deliberations and after thought based on the suspicion cannot be sustained. He would further contend that P.W.12 also deposed about the suspicion on the accused.
12. The entire case of the prosecution is based on the suspicion of the complainant, P.Ws.1, 2, 3, 12 and 13 and the relatives, whose statement was recorded on 23.01.2022. They would disclose the name of the accused as suspected. He would further contend that the prosecution has not examined the neighbors of the house or inmates of the accused for withdrawal of ornaments. P.W.22, who is witness to the Ex.P.18 - recovery mahazar, though supported the case of the prosecution, based on the recovery alone and in the absence of corroborative evidence and materials on record, the conviction of the accused cannot be sustained. He would further contend that in view of the
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provisions of Section 100(4) of Cr.P.C., before making a search the said officer or other person about to make it shall call upon two or more independent respectable inhabitants of the locality in which the place to be searched is situate or of any other locality, if no such inhabitant of the said locality is available or is willing to be a witness to the search, to attend and witness the search and issue an order in writing to them or any of them so to do.
13. Admittedly, in the present case, the witness
- P.W.22 is away from the case of the incident occurred. Thereby, the very mahazar drawn by the Investigating Officer under Exs.P.18, 19 and 20 at the instance of P.W.22 is doubtful. He would further contend that admittedly, the case was registered on the basis of the complaint lodged by P.W.1 on 22.01.2013 at about 12.30 p.m., Ex.P.8 - Post Mortem Report depicts that the police informed to the Doctor on 22.01.2013 at about 1.45 p.m. and Post Mortem conducted on
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23.01.2013 at 2.10 P.M to 3.10 P.M. "Time Since Death"
was mentioned in the PM report is 12-24 hours earlier to preserving the body in cold storage i.e., on 21.01.2013.
Thereby, the entire case of the prosecution is based on presumptions and assumptions cannot be sustained. He would further contend that under Ex.P.22 - FSL report, item Nos.5, 6 and 8 were stained with 'A' group blood and thereby on the basis of Ex.P.22, the conviction cannot be made.
14. In support of his contention, the learned Senior Counsel has relied upon the dictum of the Hon'ble Supreme Court in the case of the STATE THROUGH CENTRAL BUREAU OF INVESTIGATION VS.
MAHENDER SINGH DAHIYA reported in (2011)3 SUPREME COURT CASES 109, wherein the Hon'ble Apex Court has held at para No.72, which reads as under:
"72. The High Court also took note of the fact that the prosecution failed to place on record any cogent evidence with regard to the
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blood group of Namita. P.W.48 only stated her blood group was 'O', but even he was not able to say whether it was 'O+' or 'O-'. The High Court quite appropriately observed, on the basis of the opinion of the examining experts, that more than fifty per cent population of Belgium has 'O' blood group. In such state of affairs, the High Court was constrained to conclude that the prosecution has not been able to establish even this limb by means of cogent and reliable evidence."
15. He would further contend that the alleged informer, who informed the police on the date of the apprehension, neither charge sheeted nor examined on behalf of the prosecution. Thereby, it is a futile case of prosecution. In support of his contention, the learned Senior Counsel relied upon the dictum of the Hon'ble Supreme Court in the case of JAIKAM KHAN VS. STATE OF UTTAR PRADESH reported in 2021 SC ON- LINE SC 1256. The relevant paragraph No.53 reads as under:
"53. It is thus difficult to believe that accused Nos.1, 3 and 4 were waiting at
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Rajghat square, which is at a distance of hardly half a kilometre from the place of occurrence, waiting for the Police to come and arrest them. The alleged informer has neither been named nor has he been examined. It is further difficult to believe that accused No.2 - Nazra was wandering in the village and coincidently at 6.40 a.m., crossed paths with P.W.9 - Brahmesh Kumar Yadav (I.O.), when he was returning to the police station along with other accused."
16. Learned Senior Counsel has also relied upon the latest judgment of the Hon'ble Supreme Court in the case of TULESH KUMAR SAHU VS. STATE OF CHHATTISGARH IN CRIMINAL APPEAL NO.753/2021 DATED 24.02.2022 with regard to recovery of an article from the accused person, when the said accused for committing the offence other than the theft also, the Hon'ble Supreme Court has held that the theft and murder must have been committed at the same time, it is not safe to draw inference that the persons in possession of the stolen property was the
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murderer, wherein at para No.11 of the said judgment, the Hon'ble Supreme Court relied upon the decisions in the case of SUNDER LAL ALIA SUNDERA VS. STATE OF MADHYA PRADESH and SANWANT KHAN VS. STATE OF RAJASTHAN. The relevant discussions found in paragrah Nos.27, 28 and 33 read as under:
"27. The scope of this provision has been considered by this Court on various occasions. In Sunder Lal alias Sundera v. State of Madhya Pradesh, both the accused and deceased were seen together. After the alleged murder, the accused went with the article belonging to the deceased for pledging/selling it. In the circumstances, the Court took the view that the ornaments were established to be the ornaments worn by the deceased. No explanation was forthcoming how the accused came to be in possession on the very same day on which the alleged murder was committed. On this, the Court took the view that the conviction under Section 302 of the IPC, based on the circumstances, was correct.
28. On the other hand, in Sanwant Khan v. State of Rajasthan, one Mahant Ganesh
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Das, who was a wealthy person, used to live in a temple of Shri Gopalji along with another person. Both of them were found dead. The house had been ransacked and boxes and almirah opened. It was not known at the time who committed the offence. Investigation resulted in arrest of the appellant, and on the same day, he produced a gold khanti from his bara, where it was found buried in the ground. Another accused produced a silver plate. The Court found that there was no direct evidence. There were certain circumstances which were rejected by the Sessions Judge and the solitary circumstance was the recovery of the two articles. In these circumstances, the Court held, inter alia, as follows:
"Be that as it may, in the absence of any direct or circumstantial evidence whatsoever, from the solitary circumstance of the unexplained recovery of the two articles from the houses of the two appellants the only inference that can be raised in view of illustration A to S.114 of the Evidence Act is that they are either receivers of stolen property or were the persons who committed the theft, but it does not
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necessarily indicate that the theft and the murders took place at one and the same time.
** ** ** Here, there is no evidence, direct or circumstantial, that the robbery and murder formed parts of one transaction. It is not even known at what time of the night these events took place. It was only late next morning that it was discovered that the Mahant and Ganpatia had been murdered and looted. In our Judgment, Beaumonth, C.J., and Sen J. in - Bhikha Gobar v. Emperor, AIR 1943 Bom. 458 (B) rightly held that the mere fact that an accused produced shortly after the murder ornaments which were on the murdered person is not enough to justify the inference that the accused must have committed the murder.
** ** **
In our judgment no hard and fast
rule can be laid down as to what
inference should be drawn from a certain circumstance. Where, however, the only evidence against an accused person is the recovery of stolen property and
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although the circumstances may indicate that the theft and the murder must have been committed at the same time, it is not safe to draw the inference that the person in possession of the stolen property was the murdered. Suspicion cannot take the place of proof. "
(Emphasis supplied)
33. In the case of recovery of an article from an accused person when he stands accused of committing offences other than theft also, (in this instance murder), what are the tests:
i. The first thing to be established is that the theft and murder forms part of one transaction. The circumstances may indicate that the theft and murder must have been committed at the same time. But it is not safe to draw the inference that the person in possession of the stolen property was the murderer [Sanwant Khan (supra)]; ii. The nature of the stolen article; iii. The manner of its acquisition by the owner;
iv. The nature of evidence about its identification;
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v. The manner in which it was dealt with by the accused;
vi. The place and the circumstances of its recovery;
vii. The length of the intervening period; viii. Ability or otherwise of the accused to explain its possession [See Baiju v. State of Madhya Pradesh5]."
17. Per contra, Sri.Vijaykumar Majage, learned Additional SPP while justifying the impugned judgment of conviction and order of sentence passed by the learned Sessions Judge contended that the entire case is based on circumstantial evidences i.e.,
i) Homicidal death.
ii) The recovery ornaments as per MOs.4 to 7 recovered at the instance of accused from his house identified by the P.W.1.
iii) Seizure of blood stained shirt of the accused.
iv) Samples and ash recovered at the instance of accused.
18. Reiterating the above aforesaid contentions raised, he would contend that the entire case of the
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prosecution is based on circumstantial evidence and the accused has committed the murder of the deceased only for gain in order to take away the golden ornaments. Though the accused was looking after the deceased, taking advantage of her health issues, has mixed Sedative tablets along with 'sumo' tablets. When the deceased was in deep asleep, removed the gold ornaments and thereafter, accused tried to kill her by pressing her nose and mouth with the aid of cloth, but when he did not succeed in his attempt, he used cloth to strangulate her. Thereby, in order to destroy the evidence, he has burnt the cloth used and thrown the plastic glass to the drainage. He would further contend that the evidence of P.Ws.1, 2, 3 and 12 and 13 and relatives of the deceased are consistent with regard to the involvement of the accused in the homicidal death. The evidence of doctor - P.W.16 and PM report clearly depicts that it is the case of homicidal death and the same has been proved. He would further contend that once homicidal death is proved, recovery ornaments as
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per M.Os.4 to 7 recovered at the instance of accused from his house, identified by the P.W.1. While recording the statement under Section 313 Cr.P.C., he has not denied any incriminating circumstances, except all the questions, so his statement was false. In the absence of any assertions under Section 313 Cr.P.C. statement, utmost inference has to be drawn against accused. He would further contend that once the learned Sessions Judge has come to the conclusion that the involvement of the accused based on the oral and documentary evidence on record, this Court cannot interfere with appellate jurisdiction under the provisions of Section 374(2) of IPC and sought for dismissal the appeal.
19. In view of rival contentions urged by the learned counsel appearing for the parties, the only point that would arise for consideration in the present appeal is:
"Whether the accused has made out a case to interfere with the impugned judgment of conviction and order of
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sentence convicting the accused under the provisions of Section 302 of IPC by imposing fine of Rs.25,000/- and to undergo rigorous imprisonment for life till his natural demise, in default of payment of fine, to under go rigorous imprisonment for three years; under provisions of Section 201 of IPC by imposing fine of Rs.5,000/- and to undergo rigorous imprisonment for three years, in default of payment of fine, to undergo rigorous imprisonment for nine months?"
20. We have given our thoughtful consideration to the arguments advanced by the learned counsel appearing for the parties and perused the entire materials on record and original records carefully.
21. This Court being the Appellate Court exercising the power under the provisions of Section 374 (2) and 377 of the IPC, in order to re-appreciate the entire material on record, it is relevant to consider the oral and documentary evidence on record relied upon.
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(i) P.W.1-N. Jayanandan, who is none other than the younger brother of the deceased as well as the complainant, deposed that the accused was the son of the elder brother of the husband of the deceased, who used to take care of the deceased. He came to know about the death of the deceased from a phone call from P.W.2. He further deposed that the deceased was wearing jewelery day in and day out. He further deposed that since the accused sought a loan from deceased, thereby, the accused might have been involved in the incident and lodged a complaint as per Ex.P.1 against the accused based on suspicion. He was witness to the spot mahazar at Ex.P.2 and identified ornaments at MO.1 to MO.5 seized from the accused and thereby supported the case of the prosecution.
(ii) P.W.2-Anand Babu who is the son of P.W.1 and the nephew of P.W.3 stated that the deceased had no children and that the accused
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was the son of the deceased's brother-in-law, who used to take care of the deceased. He further deposed that he received a phone call informing him about the death of the deceased and the same was informed to P.W.1. He deposed that the accused might have been involved in the murder of the deceased. He further deposed that he found the injuries on the dead body of the deceased. The supported the case of the prosecution.
(iii) P.W.3-Radha, younger sister of P.W.1 and deceased and aunt of P.W.2, deposed on par with P.W.1 and P.W.2 that the deceased had no children. Accused being the son of the deceased's brother-in-law was taking care of the deceased and deceased always wore jewelery. She deposed that she did not find the jewels on the body of the deceased and suspects that someone might have killed her sister and taken away her jewels. She also deposed that she found the injuries over the
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body and identified the accused and supported the case of the prosecution.
(iv) P.W.4-Manjunath son of P.W.3, a witness to Ex.P.3-Inquest Mahazar deposed that the police had shown the injuries on the dead body of the deceased. During the inquest, P.W.8 was also present and supported the case of the prosecution.
(v) P.W.5-Dr. Ramesh, Orthopedic Doctor, deposed that he might have treated the deceased as an outpatient, but there is no record in support of the same.
(vi) P.W.6-Dr. S.M. Bhat, Doctor, deposed that the deceased came to his clinic in an auto in a month or two months due to joint pain. He further deposed that the accused used to bring the deceased to the clinic. On 14.01.2013, the accused and the deceased came to the clinic in his autorickshaw, claiming that the deceased was his aunt, and the accused stated that he had body pain and the deceased was not
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sleeping and sought sleeping tablets, for which he was prescribed Anxit 0.5 mg and advised to take half of the tablet as needed. He also deposed that the accused asked him for a tablet for body pain and supported the case of the prosecution.
(vii) P.W.7-Kishor Gandhi, owner of the medical shop, identified the accused and deposed that the accused had taken 06 tablets of Anxit 0.5 mg on 14.01.2013 showing the prescriptions issued by the doctor. He admitted the issuance of medical bills to the accused and police took a copy of the bill as per Ex.P.5 and thereby supported the case of the prosecution.
(viii) P.W.8-N.K. Bhopal, a witness to Ex.P.3-inquest mahazar, deposed that he is the son-in-law of P.W.3 and the brother-in-law of P.W.4 and further deposed that police have shown the injuries on the dead body. He further stated that in the presence of P.W.4 and P.W.8 inquest was conducted. He was a hearsay
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witness and supported the case of the prosecution.
(ix) P.W.9-Ramachandraiah, Head Constable, Chamrajpet Police Station, deposed that he carried Ex.P.6-FIR and Ex.P.1-complaint to the home office of the Magistrate on 22.01.2013 at about 9.50 p.m. and supported the case of the prosecution.
(x) P.W.10-Nanjundaswamy, owner of the house where the deceased was a tenant and also neighbor of the deceased, deposed that the accused used to look after the deceased, that the deceased had no children and that the deceased lived alone in the house. He deposed that on the day before the incident, he called the accused and informed him about the illness of the deceased. He further deposed that the accused had come to the house of the deceased and taken her to the clinic. He further deposed that prior to the incident, the deceased had worn the jewels and suspected
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that someone might have killed the deceased to rob the jewels and supported the case of the prosecution.
(xi) P.W.11-Nethravathi, Police Constable, Subramanyapura Police Station, deposed that she was present during the Spot Mahazar on 30.09.2013 and removed the jewelery which were on the body of the deceased and handed over the jewels, i.e., M.O.1 to M.O.3 to PSI. She identified M.O.1-one pair of gold ear studs; M.O.2-gold nose studs; and M.O.3-gold maati and supported the case of the prosecution.
(xii) P.W.12-P. Chandrashekar, nephew of the deceased, deposed that P.W.1 and the accused were taking care of the deceased. He further deposed that the accused was the son of the deceased's brother-in-law and the accused got the house on lease to the deceased for a sum of Rs.1,10,000/-. He further deposed that the accused was getting information about the
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health condition of the deceased and that a day before the incident, the accused called him over the phone and stated that he was taking the deceased to the hospital due to illness. He learnt about the murder of the deceased from P.W.2 and also states the presence of the injuries on the body of the deceased and he suspects the accused and thereby, supported the case of the prosecution.
(xiii) P.W.13-Kuppaswamy, deposed that the deceased had no children and that the accused and P.W.1 were caretakers of the deceased and that P.W.12 informed him the death of the deceased. He deposed that he has seen the injuries on the dead body and he suspects the role of the accused and supports the case of the prosecution.
(xiv) P.W.14-Nicholas, photographer, deposed that he was called to Kempegowda Hospital to take photographs of the women's dead body.
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Accordingly, he took the photographs as per Ex.P.4 supported the case of the prosecution.
(xv) P.W.15-Kuberaraj, far relative of the deceased and a witness to Ex.P.3, turned hostile. (xvi) P.W.16- Dr. Anand .K, deposed that he conducted the postmortem of the deceased and issued a postmortem report as per Ex.P.8 and supported the case of the prosecution. (xvii) P.W.17-K.M. Krishna, Assistant Engineer, BBMP deposed that he had drawn the spot sketch as per Ex.P.9 on the requisition made by the police as per Ex.P.10 and sent the spot sketch along with Ex.P.11-letter and supported the case of the prosecution.
(xviii) P.W.18-Dollaiah, Head Constable, deposed that the Investing Officer deputed him, along with C.W.24, C.W.26 and C.W.27 to apprehend the accused on 22.01.2013. He further deposed that on getting information from the informer, they traced the location of the accused and on the very same day, the
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accused was apprehended at about 8.30 p.m. and the accused has been produced before the Investigating Officer and also submitted the report to P.W.20- PSI and supported the case of the prosecution.
(xix) P.W.19-Prakash B. Naavi, Police Constable deposed that the Investigating Officer deputed him along with C.W.25 to C.W.27 for apprehending the accused on 22.01.2013 and accordingly, the accused was apprehended on the same day at 8.00 p.m. and produced before the Investigating Officer. He further deposed that on 22.03.2013, the investigating officer deputed him to hand over the sealed packet to the FSL examination and produced the acknowledgment for having handover the sealed packets as per Ex.P.13. He further stated that Investigating Officer deputed him on 28.01.2013 to visit KIMS Hospital to obtain the postmortem report of the deceased and submitted the postmortem report to
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Investigating Officer as per Ex.P.12 and supported the case of the prosecution. (xx) P.W.20-Bharamappa B. Mallur, Police Inspector, deposed that he received a complaint as per Ex.P.1 from P.W.1 and registered a case on 22.01.2013 at about 12.30 p.m. On the same day, he visited the spot along with C.W.19 and C.W.20 and drew the mahazar and recovered M.Os.1 to 3 in the presence of C.Ws.18 to C.W.20. He further deposed that he sent the dead body of the deceased to the KIMS hospital and took the statements of C.W.15, C.W.18 to C.W.20 and for further investigation, he transferred the file to C.W.28. He further deposed that C.W.28 deputed him to apprehend the accused and on 22.01.2013 apprehended the accused and supported the case of the prosecution. (xxi) P.W.21-Raju K.N., the owner of the juice shop, identified the accused and stated that the accused was the auto driver who used to visit
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his shop. He further stated that in the month of January 2013, the accused came to his shop and drank the juice and took a parcel of juice. Thereby supported the case of the prosecution. (xxii) P.W.22-Vinay, a witness to Ex.P.2-spot mahazar and Exs.P.15, P.18, P.19 and P.20- seizure mahazars, deposed that he has seen the accused and the dead-body of the deceased Smt Kanakambaram in the month of January 2013 in her house and he found the injuries and that the police have seized the nose-stud, ear-studs and maati-chain from the said dead-body and identified the said golden- ornaments as M.Os.1 to 3. Further, deposed that on the same day night, the police secured him to the police station, where at the accused was also present along with an auto-rickshaw which was produced by the accused. He has identified the said auto-rickshaw through the photographs as per Exs.P.16 & P.17. He identified the golden-ornaments as per M.Os.4
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to 7. He identified M.O.8-seized-tablets, M.O.9-half burnt cloth and M.O.10-ash and thereby supported the case of the prosecution. (xxiii) P.W.23-S.K Malathesh, Police Inspector/ Investigating Officer took over the investigation from P.W.20 on 22.01.2013 and on the same-day, recorded the statement of P.W.14 and deputed CWs.24 to 27 for apprehending the accused. He further deposed that on the same day at about 8.25 p.m., P.W.20 produced the accused before him and accordingly, he arrested the accused and recorded the statements of C.Ws.24 to 26 and thereafter, recorded the voluntary statement of the accused as per Ex.P.21. He further deposed that he seized the cloths of the accused under seizure-mahazar as per Ex.P.15 in the presence of C.Ws.19 and 20. On 23.01.2013, in the morning, he visited the mortuary of KIMS Hospital and drawn the inquest-mahazar of the dead-body of the
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deceased as per Ex.P.3 in the presence of CW.s.8 to 10 and recorded the statement of the relatives of the deceased Smt Kanakambaram, i.e., CWs.2 to 5. Similarly, at the same-time, he has recorded the statements of CWs.6 and 7. Thereafter, submitted a requisition to P.W.16-Medical- Officer for conducting the post-mortem of the dead-body of the deceased and secured the post-mortem report of the deceased Smt Kanakambaram as per Ex.P.8 and thereafter recorded the statement of CW.16. He further deposed that on 23.01.2013 at the behest and lead of the accused, he visited the house of the accused situated at Ittamadu Main Road, Rangaiah Layout, and seized a gold ornaments at M.Os.4 to 7 under seizure-mahazar at Ex.P.18 in presence of the C.Ws.19 and 20 and recorded their statements. On 24.01.2013, he visited the spot of the incident at the behest and lead of the accused and seized the one-
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sheet containing remaining 2 'Sumo' tablets under seizure-mahazar as per Ex.P.19 in the presence of CWs.19 and 20 and he has identified the said 2 'Sumo' tablets sheet as MO No.8 and thereafter he has recorded the statements of CWs.19 and 20. On the same- day, he visited the spot near the tank fenced with the steel in front of Sri Vemanna Reddy's house situated at Kempambudhi Tank at Nanjappa Block and seized the half-burnt cloth used by the accused for strangulation of the deceased with the ash mixed with the soil on the surface with the sample/model-soil under the seizure-mahazar as per Ex.P.20 in the presence of CWs.19 and 20 and he identified the said seized-articles as M.O. Nos.9 and 10 and recorded the statements of PW.5, PW.6 and PW.7-owner of the Medical-Store and obtained the copy of the bills from P.W.7 as per Ex.P.5. On 28.01.2013 he received the articles from KIMS Hospital at Sl.Nos.1 to 7,
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after the post-mortem of the deceased through the CW.24/police-official under a separate- report as per Ex.P.12. On 22.3.2013 he sent item Nos.1 to 12 to the FSL through CW.24 for the purpose of chemical-analysis and scientific-examination and secured the acknowledgement from the FSL as per Ex.P.13. On 25.03.2013 he sent a requisition to CW.23 for preparing the spot sketch as per Ex.P.9. Further, he deposed that, on 07.06.2013 he received the FSL report as per Ex.P.22. On 24.07.2013 he received the opinion of the FSL experts as per Ex.P.23 in connection with MO No's.9 & 10. Further, on 24.08.2013 he received an information-report from the FSL as per Ex.P.24. Thereafter, he submitted a requisition to the court for including Exs.P.22 to P.24 in the case-file. He has identified the photographs of the deceased Smt Kanakambaram taken as per Exs.P.26 & P.27. Thereafter, on completion of
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the investigation, he filed charge-sheet against the accused for the offences punishable under Sections 302 and 201 of IPC and supported the case of the prosecution.
(xxiv) P.W.24- Dr. Srividhya, Scientific Officer/FSL expert, who deposed that she received two sealed covers containing two material objects i.e., the ash mixed soil and another article containing the model/sample soil and accordingly, on 24.07.2013 sent the opinion as per Ex.P.23 with the model seal as per Ex.P.28 and FSL report in relation to M.O.9 and 10 and supported the case of the prosecution. (xxv) P.W.25-Dr. Gundamma Patil, Scientific Officer in Toxicology Section of FSL, Bengaluru deposed that she received five items on 22.03.2013 and after examination, she sent the FSL report as per Ex.P.24 relating to M.O.8-Sumo Tablets and supported the case of the prosecution. (xxvi) P.W.26-Dr. Shehanaz Fathima, Scientific Officer at Biology Section in FSL, Bengaluru deposed that on 22.03.2013 she received five articles from the
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Forensic department for examination. Further deposed that after examination, she sent her opinion as per Ex.P.22 in relation to cloths of the deceased and accused and supported the case of the prosecution.
22. Admittedly, the prosecution has not examined C.W.8, 16, 20, 23 and 26. Based on the aforesaid material documents, the learned Sessions Judge proceeded to convict the accused for the offence punishable under the provisions of Section 302 of the Indian Penal Code.
23. A careful perusal of the material on record clearly depicts that the entire case of the prosecution is based on the circumstantial evidence. As held by the Hon'ble Supreme Court, the following pancha sheela principles must be established before the case against the accused is said to have been fully established.
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(1) The circumstances from which the conclusion of guilt is to be drawn should be fully established.
(2) The facts so established should be consistent only with the hypothesis of the guilt of the accused.
(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.
These constitutes the pancha sheela for the proof of the case based on the circumstantial evidence.
24. A careful perusal of the complaint at Ex.P.1 dated 22.01.2013 by P.W.1 who is none other than the brother of the deceased, deposed that he retired in the
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year 1995 from the Mico Factory and now he is working in Metranix Company and has 11 sibling. Himself, sister P.W.3 were alive and the husband of the deceased Kanakambaram died about 17 years back prior to the incident and deceased had no children. As nobody was there to look after deceased Kanakambaram, he requested the accused-Krishna, son of the brother-in- law of the deceased, to look after the deceased and accordingly, the accused used to take care of the deceased and he used to take the Kanakambaram whenever she suffered from ill-health and used to inform about her welfare. On 14.01.2013 the deceased Kanakambaram came to his house on Sankranthi Festival and stayed for two days and prior to the incident, the deceased was hale and healthy. On 22.01.2013 at about 9.45 a.m. he received the information from P.W.2-Anandababu through a phone about the death of the deceased. Immediately, he came from the office and took his wife to the house of the deceased and he noticed that the jewels, which was
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worn by the deceased were missing from the dead body of the deceased and found the injuries on the dead body and thereby, he suspects the accused might have killed the deceased to rob the ornaments and thereby, he lodged a complaint before the jurisdictional police on 22.01.2013 against the accused. Accordingly, the jurisdictional police registered a case on 22.01.2013 in Crime No.15/2013 under the provisions of Section 302 of the Indian Penal Code. After investigation, the jurisdictional police filed charge-sheet for the offence punishable under the provisions of Sections 302 and 201 of the Indian Penal Code against the accused.
25. P.W.1 - complainant and P.W.2-who is son of the complainant, P.W.3-sister of the deceased and P.W.12-nephew of the deceased are relatives and in a categorical terms they deposed that the accused was taking care of the deceased. About 17 years prior to the incident, the husband of the deceased died and infact, the accused got a house for lease under P.W.10 to the
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deceased and the accused was looking after the deceased. There is no specific stand against the accused except suspicious. The complaint was lodged based on the suspicion and the case was registered against the accused on the suspicion as per FIR at Ex.P.6 and at Sl. No.6 of the FIR, against the name of the accused it is mentioned "suspect". In Ex.P.1- the complaint, it is stated by P.W.1 that he bought gold ornaments to the deceased whereas in the cross- examination, he stated that the ornaments was given to the deceased by his elder brother.
26. By careful perusal of evidence of P.W.1 and averments made in the complaint there is improvement in the evidence, which is contrary to the original complaint. The fact remains that all along the accused was taking care of the deceased for more than 17 years and there are no eye witness to the incident occurred on the unfortunate day on 21.01.2013. Though the deceased died on 21.01.2013 at 9.30 a.m. the complaint
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was registered on 22.01.2013 i.e., next day to the incident at 12.30 p.m. on the information given by the informer. Admittedly, the informer who informed about the incident has not been examined. Postmortem was conducted on 23.01.2013 at 2.10 p.m. It is mentioned in the postmortem report that time of the death 12-24 hours earlier to preserving the body in cold storage i.e., on 22.01.2013. The evidence of prosecution witnesses in particular P.Ws.1, 2, 3, 12 and 13 are relatives of the deceased and there is inconsistency in their evidence and there is no definite case of the prosecution on the complaint made by P.W.1. There is no eye witness and it is only on suspicion and there is no last seen theory set up by the prosecution.
27. The entire case of the prosecution is based on the suspicion and recovery of ornaments at the instance of the accused in the presence of P.W.22 witness to mahazar. Admittedly, the prosecution has not examined the neighbor of the house nor inmates of
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the accused as contemplated under the provisions of Section 100 (4) of Cr.P.C. Either P.W.1 or P.W.2 have not identified the ornaments worn by the deceased as per M.O.1 to 7 as usual they said that they have seen when the deceased was wearing the ornaments. Admittedly, no identity parade was conducted by the police. One breath in the complaint it is said that P.W.1 bought the ornaments to the deceased. Another breath in the cross-examination deposed that ornaments were got from his elder brother to the deceased. Thereby, there is no consistent in the averments made in the complaint as well as in the evidence of P.W.1.
28. P.W.3-Smt. Radha, who is sister of the deceased and sister of P.W.1 in the cross-examination, admitted that it is true M.O.1 to M.O.7 ornaments are available in the shop and she has not maintained identity of M.O.1 to M.O.7.
29. P.W.7-Kishor Gandhi, owner of the medical shop deposed that on 14.01.2013 the accused came
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along with the deceased and as per the prescription issued by the doctor, he has given 6 tablets of Anxit 0.5 Mg and issued Ex.P.5-Medical bills. In the cross- examination, he admitted that every day about 300 peoples come to his shop to purchase the medicines and admitted issuance of medical bills at Ex.P.5. He further deposed that on 22.01.2013 police came along with the accused at about 11.30 a.m. and the police given notice to him. Admittedly, the incident happened on 21.01.2013 at about 9.45 a.m. and the case was registered by the police on 22.01.2013 at 1.45 p.m. even before registration of the case, the police went to the shop of P.W.7 at about 11.30 on 22.01.2013 itself. Thereby, the case of the prosecution is doubt full.
30. P.W.10 who is none other than the owner of the building, where the accused bought the house for lease to the deceased on payment of Rs.1,10,000/-, deposed that she is aged about 65 to 70 years and she had no issues and the accused was looking after the
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deceased and the accused informed that at the time of taking the lease, the deceased is his aunt and whenever she suffering from illness, the accused used to take care of the deceased and one day prior to the incident, he informed the accused that she is suffering from ill health. Accordingly, the accused came and took the deceased to the doctor for treatment. On the next day of the morning, the owner came to know when he returned from the temple at about 8.00 a.m., that the deceased died and many relatives and people gathered in the house. He further deposed that one day prior to the incident, the deceased has gone to her brother's house for ceremony wearing the gold ornaments. Thereby, he suspects that somebody might have killed the deceased to rob the ornaments. He admitted in the cross-examination that the house belongs to him he had leased his house at the instance of the accused. He admitted in the cross-examination that the accused alone was taking care of the deceased and the relationship between the deceased and the accused was
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in cordial and they were good terms and further admitted how the incident happened he is unaware. He further stated in the cross-examination on 22.01.2013 that he has seen the people gathering in the house of the deceased at about 6.30 a.m. to 7.00 a.m. whereas in the examination-in-chief he stated he seen the people gatherings at about 8.00 a.m. and some inconsistency in the evidence of P.W.10.
31. The statement of P.W.5-doctor, who deposed that he has given treatment to the accused mother and he inform the police that the accused has given tablets to the mother and killed and he has seen the accused brought by the police.
32. P.W.6 - Dr. S.N. Bhat, who deposed that the deceased came along with the accused had visited his clinic on 14.01.2013 and the accused used to tell deceased as his aunt and accused requested him to give good treatment to his aunt and he also taken treatment from him for body pain of the deceased.
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33. P.W.15-Kuberaraj, has stated in his chief- examination to the effect that the deceased Smt Kanakambaram is his far-relative whose husband has already demised long-back. In the cross- examination he suspects the accused and also admitted that he used to take care of the deceased and when she was alive.
34. The Police Officer/PW.20 who registered the case and the Investigating Officer/PW.23 who investigated the case, have supported the case of the prosecution. The post-mortem report/Ex.P8 depicts that the death of the deceased was due to asphyxia as a result of strangulation. Ex.P19/spot mahazar depicts that the accused was all along with the deceased and he used to take care of the deceased, however on 21.1.2023 with an intention to rob the gold ornaments of the deceased he mixed the sleeping tablets with the pineapple juice and given it to the deceased and after she went to sleep, he has removed all the gold
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ornaments and strangulated her with the help of the cloth, as a result she died due to suffocation, but the complaint is entirely different. In the evidence of PWs.1,2,3, 12, 13 and 15, they only suspected the accused and nowhere in their evidence, it is stated that the accused with an intention to rob the gold ornaments, has mixed the sleeping tablets with the pineapple juice and thereafter when the deceased went to sleep, strangulated her by a small piece of cloth. Admittedly, the charge is framed for the offences punishable under Sections 302 and 201 of IPC and no charge framed with regard to theft or robbery. Though the charge framed is to the effect that on 21.1.2013 at about 9.30 a.m. with an intention to rob the gold ornaments of the deceased, the accused mixed sleeping tablet viz., Anxit 0.5 mg into the pineapple juice and gave it to the accused, but the post-mortem report does not depict that the death was due to mixing of sleeping tablet in the juice, but it only depicts that the death was due to asphyxia as a result of strangulation.
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35. On meticulous examination of the evidence of PWs.1,2,3,12, 13 and 15, it is clear that there is no consistency in their evidence and there are so many omissions and contradictions in their evidence, that the entire fabric of the prosecution case appears to be ridden with gaping holes. It is true that due to passage of time, witnesses do deviate from their police statements as their memory fades to some extent. Reasonable allowance can be made for such discrepancies. But when such discrepancies make the foundation of the prosecution case shaky, the Court has to take strict note thereof. On going through the evidence of the aforesaid prosecution witnesses, the discrepancies which are material in nature are noticed and the witnesses have discredited themselves. It is well settled that there is no embargo on the Appellate Court reviewing the evidence upon which an order of conviction is based.
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36. By careful reading of the complaint/Ex.P1 and the evidence of the prosecution witnesses so also the medical and scientific evidence, two views are possible in the present case. It is well settled that the golden thread which runs through the web of administration of justice in criminal cases is that if two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and the other to his innocence, the view which is favourable to the accused should be adopted. The paramount consideration of the Court is to ensure that miscarriage of justice is prevented. A miscarriage of justice which may arise from acquittal of the guilty is no less than from the conviction of an innocent. Learned Addl. SPP pointed out that when the statement of the accused was recorded under the provisions of Section 313 of the Code of Criminal Procedure, he has not taken any defence, except denying all the incriminating circumstances appearing against him in toto and thereby adverse inference has to be drawn against him.
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37. It is well settled that it is the prosecution to prove the case and discharge the initial burden and then only, the burden shifts on the accused. In the present case, the prosecution failed to prove the initial burden. Though a specific contention was taken by the learned Addl. SPP that the recovery of the gold ornaments/Mos.5 to 7 at the instance of the accused as per Ex.P18 in presence of PW.23 is proved and that is a ground for conviction, the same cannot be accepted. The entire case of the prosecution is only based on the complaint on suspicion by PW.1 so also the suspicion of the prosecution witnesses, who are relatives of the deceased, but they have not definitely stated about the involvement of the accused in the homicidal death of the deceased. As admitted by the prosecution witnesses and the material on record, the accused himself was taking care and welfare of the deceased for more than 17 years and therefore, it cannot be probabilised that
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the accused involved in the homicidal death of the deceased.
38. It is the specific case of the prosecution that commission of murder is for gain. If that is so, it is the prosecution which has to prove and establish that the theft and murder form part of one transaction. In the absence of the same, mere recovery of the articles/ornaments from the accused on the voluntary statement made by him as per Ex.P18, cannot be a ground to convict the accused.
39. Our view is fortified by the dictum of the Hon'ble Supreme Court in the case of Tulesh Kumar Sahu -vs- State of Chhattisgarh in Criminal Appeal No.753/2021 dated 24.2.2022, wherein at paragraph- 11(33) it is held as under:
"In the case of recovery of an article from an accused person when he stands accused of committing offences other than theft also, (in this instance murder), what are the tests:
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i. The first thing to be established is that the theft and murder forms part of one transaction. The circumstances may indicate that the theft and murder must have been committed at the same time. But it is not safe to draw the inference that the person in possession of the stolen property was the murderer [Sanwant Khan (supra)];
ii. The nature of the stolen article; iii. The manner of its acquisition by the owner;
iv. The nature of evidence about its identification;
v. The manner in which it was dealt with by the accused;
vi. The place and the circumstances of its recovery;
vii. The length of the intervening period; viii. Ability or otherwise of the accused to explain its possession [See Baiju v. State of Madhya Pradesh]."
The material which may possibly be taken against the appellant/accused is extremely weak and there is no material on record which could even remotely be
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taken against the appellant. In view of the declaration made by the Hon'ble Supreme Court in the judgment stated supra, the appellant is, therefore, entitled to benefit of doubt.
40. The other circumstance in the present case is on the basis of the information made by the informer, the jurisdictional Police apprehended the accused on the next day of the incident i.e., on 22.1.2013. Admittedly, the informer was a charge sheet witness and he was not examined before the Court, thereby it is very difficult to believe that the accused was apprehended on the next day.
41. At this stage, it is relevant to refer the judgment of the Hon'ble Supreme Court in the case of Jaikumarkhan .vs. State of U.P. reported in 2021 SCC Online 1256, wherein at paragraph-53 it is held as under:
"53. It is thus difficult to believe that accused Nos. 1, 3 and 4 were waiting at Rajghat
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square, which is at a distance of hardly half a kilometre from the place of occurrence, waiting for the Police to come and arrest them. The alleged informer has neither been named nor has he been examined. It is further difficult to believe that accused No. 2-Nazra was wandering in the village and coincidently at 6.40 a.m., crossed paths with P.W.9-Brahmesh Kumar Yadav (I.O.), when he was returning to the police station along with other accused."
42. As per the FSL report/Ex.P22, item Nos.5,6,7 and 8 were stained with 'A' group blood. At this stage, it is also relevant to refer the judgment of the Hon'ble Supreme Court in the case of State v. Mahender Singh Dahiya, reported in (2011)3 SCC 109, wherein it is held at paragraph-72 as under:
"72. The High Court also took note of the fact that the prosecution failed to place on record any cogent evidence with regard to the blood group of Namita. PW 48 only stated her blood group was 'O', but even he was not able to say whether it was 'O+' or 'O−'. The High Court quite appropriately observed, on the basis of the opinion of the examining experts, that
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more than fifty per cent population of Belgium has 'O' blood group. In such state of affairs, the High Court was constrained to conclude that the prosecution has not been able to establish even this limb by means of cogent and reliable evidence."
43. On meticulous reading of the entire material on record, it clearly depicts that there are no eye witnesses to the incident and the entire case of the prosecution is only based on the circumstantial evidence. None of the circumstances proved the motive of the accused to kill the deceased nor the last seen theory. The case based on the complaint of suspicion. Except the recovery of the ornaments at the instance of the accused, there is no other cogent evidence on record and all the circumstances are not proved by the prosecution beyond reasonable doubt. As held by the Hon'ble Supreme Court time and again, in case of the circumstantial evidence unless all the five circumstances
- panchasheela, are proved with consistent and cogent evidence, the judgment of conviction cannot be passed
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and innocent people cannot be convicted. Merely on the basis of the voluntary statement of the accused and recovery of the gold ornaments, the accused cannot be convicted. In view of the provisions of Section 27 of the Evidence Act, the statement recorded under Section 161 of the Code of Criminal Procedure cannot be used against him and at the most, statement can be used in favour of the accused.
44. The learned Sessions Judge has not considered all these glaring defects and the prosecution has not proved beyond reasonable doubt the involvement of the accused in the homicidal death of the deceased. But, there is no dispute with regard to homicidal death of the deceased. It is also to be stated that when PW.1 on the information from PW.2 went to the house of the deceased, he came to know that door of the house where the deceased was residing, was not locked either from the inside or outside of the house. In the circumstances, in the interregnum, somebody might
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have gone to the house of the deceased and robbed the gold ornaments and the same cannot be ruled out in the absence of specific evidence.
45. For the reasons stated above, the point raised is answered in the affirmative holding that the accused has made out a case to interfere with the impugned judgment of conviction and order passed by the trial Court, convicting and sentencing the accused for the offences punishable under Sections 302 and 201 of IPC.
46. In view of the above, we pas the following:
ORDER
i) The Criminal Appeal is allowed.
ii) The impugned judgment of conviction and order of sentence dated 24th November 2016 made in S.C. No.715/2013 on the file of the LI Addl. City Civil & Sessions Judge, Bangalore City, convicting and sentencing the appellant/accused for the offences punishable
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under the provisions of Sections 302 and 201 of IPC, is hereby set aside.
iii) The appellant/accused - R. Krishna S/o Late Rangaiah Naidu, is hereby acquitted for the offences punishable under the provisions of Sections 302 and 201 of IPC.
iv) The appellant/accused shall be released forthwith, if he is not required in any other case.
v) The fine amount, if any, deposited by the appellant/accused shall be refunded to him on proper identification and after obtaining due acknowledgment.
Sd/-
JUDGE Sd/-
JUDGE Paragraph No. 1 to 20 NBM 21 to 33 MBM 34 to 46 gss*