Karnataka High Court
Sri.Manjunath vs The State Of Karnataka, on 18 June, 2020
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 18 T H DAY OF JUNE, 2020
PRESENT
THE HON'BLE MR.JUSTICE B.A.PATIL
AND
THE HON'BLE MRS. JUSTICE M.G. UMA
CRIMINAL APPEAL NO.100242/2016
BETWEEN:
1. SRI. MANJUNATH
S/O MAYAPPA HOLEMMANAVAR,
AGE: 31 YEARS, OCC: LORRY DRIVER,
R/O: KIRESUR, TAL: HUBBALLI, DIST: DHARWAD.
2. SRI. PARAMESHWAR
S/O MAYAPPA HOLEMMANAVAR,
AGE: 38 YEARS, OCC: LORRY DRIVER,
R/O: KIRESUR, TAL: HUBBALLI, DIST: DHARWAD.
... APPELLANTS
(BY SRI. SRINAND A PACHHAPURE, ADV.)
AND
1. THE STATE OF KARNATAKA,
THROUGH CIRCLE INSPECTOR OF POLICE,
RAILWAY, VIJAYPUR, CAMP AT GADAG,
NOW REPRESENTED BY SPP,
HIGH COURT OF KARNATAKA,
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AT DHARWAD, BENCH AT DHARWAD.
... RESPONDENT
(BY ADDL. SPP)
THIS CRIMINAL APPEAL IS FILED IS U/SEC. 374
(2) OF CR.P.C., SEEKING TO CALL FOR THE RECORDS
IN SESSIONS CASE NO.4/2016 AND SET ASIDE THE
JUDGMENT OF CONVICTION DATED 29/07/2016 AND
ORDER OF SENTENCE DATED 1/08/2016 PASSED BY
THE IV ADDL. DISTRICT & SESSIONS, DHARWAD IN
SESSIONS CASE NO. 4/2016 FOR THE O/P/U/SEC.
302 & 201 R/W SEC. 34 OF IPC.
THIS CRIMINAL APPEAL COMING ON FOR
DICTION OF JUDGMENT ON THIS DAY,
M.G.UMA,J., DELIVERED THE FOLLOWING:
JUDGMENT
We have heard the learned Senior Counsel Sri.S.S.Koti, and learned Advocate Sri. Srinand A.Pachhapure, for the appellant and learned Additional SPP Sri. V.M.Banakar for the State.
2. Brief facts of the case as made out by the prosecution before the trial Court is that the informant Mabusab S/o Hussainsab Nadaf, who was working as Gagman in railway department saw a mutilated body of a woman by the side of :3: the railway line and filed first information as per Ex.P13 with Gadag Rural Police which was registered in Crime No.43/2015 and case under Sections 302, 201 r/w 34 of IPC was registered against unknown persons for having caused the homicidal death. After registration of case, the investigation was undertaken and charge sheet was filed against accused Nos.1 to 3 for having committed the offence punishable under Sections 302, 201 r/w Section 34 of IPC. During investigation it was found that the deceased is one Shruthi wife of PW12. It was further found that the deceased and accused No.2 were having illicit relationship and both of them started living in a shed, after giving undertaking to the police. In this regard there was quarrel between accused Nos.1 to 3 and the deceased as the accused wanted to oust her from the house. In furtherance of the same all the accused with :4: common intention, caused her death as accused No.1 throttled her neck, while accused Nos.2 and 3 assisted him by holding her hands and legs. Further in order to cause disappearance of the evidence of committing the crime, carried the dead body in a gunny bag on the motor cycle bearing No.KA 28/J-3183, chopped off the head and both hands and thrown the pieces of the body on the railway track and in nearby places. Thereby accused Nos.1 to 3 with common object caused death of the deceased, caused disappearance of evidence of the offence committed and thereby committed the offence under Sections 302, 201 read with 34 of IPC.
3. The Committal Court took cognizance of the matter and after following the procedure under Section 207 of Cr.P.C., committed the matter to the Sessions Court. The learned Principal Sessions Judge made over the matter :5: to the Court of IV Additional District and Sessions Judge, Dharwad (hereinafter referred to as the 'trial Court') for trial and to dispose of the same in accordance with law. Accordingly, the trial Court secured the presence of accused Nos.1 to 3 and framed the charges against them for the above said offences. Accused Nos.1 to 3 have pleaded not guilty and claimed to be tried.
4. After hearing the learned public prosecutor and the learned advocate for the accused, the trial was fixed. The prosecution has examined 21 witnesses got marked 37 documents and identified MOs.1 to 9 in support of its contention. During the pendency of the trial before the trial Court, accused No.3 died and the case against him was abated. The statement of accused No.1 and 2 under Section 313 of Cr.P.C. was recorded and they have denied all the incriminating materials available on record but :6: have not chosen to lead any evidence in support of their defence.
5. After hearing the learned public prosecutor and the learned advocate for the accused, the trial Court proceeded to pass the impugned judgment of conviction and order of sentence on 29/7/2016 convicting accused No.1 and 2 for the offences punishable under Sections 302 and 201 r/w 31 of IPC and sentenced them to undergo life imprisonment and to pay fine of Rs.20,000/-, in default to pay fine to undergo rigorous imprisonment for five months for the offence punishable under Section 302 r/w 34 of IPC and sentenced them to undergo rigorous imprisonment for three years and to pay fine of Rs.5,000/- each and in default to pay fine to undergo rigorous imprisonment for three months for the offence punishable under Section 201 r/w 34 of IPC.
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6. Aggrieved by the said judgment of conviction and order of sentence accused Nos.1 and 2 have preferred this appeal.
7. The learned senior counsel while addressing his arguments contented that there are no eyewitnesses to the alleged incident and the case made out by the prosecution purely rests on circumstantial evidence.
8. He submitted that the first circumstance relied on by the prosecution is the motive for accused Nos.1 to 3 for committing the offence, as accused No.2 was having illicit relationship with the deceased and he had taken her along with him.
9. He submitted that the second circumstance which was relied on by the prosecution is that accused Nos.1 to 3 have taken the deceased with :8: them and accused No.2 and the deceased were residing together in a shed. The deceased was last seen in the company of accused Nos.1 to 3 and therefore, according to the prosecution, the accused are required to explain as to when they have departed the company of the deceased.
10. He further submitting that the third circumstance relied on by the prosecution is the recovery of incriminating materials, i.e. the ornaments belonging to the deceased at the instance of the accused.
11. Even though the prosecution relied on these circumstances and examined as many as 21 witnesses and got market 37 documents, identified 9 material objects, it has not even prima facie proved the role of any of the accused in commission of the offence. Either motive as suggested by the prosecution or last seen theory :9: or recovery of the incriminating materials at the instance of the accused, are not proved by the prosecution as required under law.
12. Learned senior counsel submitted that since prosecution alleges the motive as one of the circumstances, it is required to prove the motive for the accused to commit the said offence. When the prosecution failed to prove the motive itself, the other two links relied on by the prosecution also falls to the ground. Moreover, last seen theory made out by the prosecution is also very shaky and there is no evidence to prove the circumstance. No witnesses have spoken about the motive for the accused and the deceased last seen in the company of any of the accused. Under such circumstances, the trial court should have rejected the contention of the prosecution and should have acquitted the accused.
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13. He further submitted that the third link relied on by the prosecution is with regard to the voluntary statement said to have been given by the accused and recovery of the incriminating materials at the instance of the accused. The prosecution failed to prove the recovery of the incriminating materials as required under section 27 of the Indian Evidence Act and absolutely no clinching material to hold that the ornaments said to have been recovered at the instance of accused belongs to the deceased. Neither father of the deceased who was examined as PW8 nor her husband, examined as PW-12, have identified those jewelries as that of the deceased. Under such circumstances, the trial court committed grave error in relying on the shabby evidence lead by the prosecution in order to base its judgement of conviction.
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14. The learned senior counsel further submitted that prosecution has failed to prove any of the circumstances which it has relied on and under such circumstance, the trial court should have acquitted the accused by giving the benefit of doubt. On the other hand, it has proceeded to mechanically convict the accused without any basis. Therefore, he prays for allowing the appeal by setting aside the impugned judgement of convection and order of sentence in the interest of justice.
15. Per contra, the learned additional SPP submitted that even though there are no eyewitnesses to the incident, the death of deceased was proved to be homicidal one and further, prosecution is successful in proving the circumstantial evidence regarding the motive for the accused for commission of the offence as : 12 : accused No.2 was having illicit relationship with the deceased, which was opposed by accused Nos.1 and 3. The deceased having last seen in the company of the accused but they have failed to prove as to when they have departed her company and finally recovery of the incriminating materials, that is gold and silver ornaments that was worn by the deceased, was recovered at the instance of the accused. There is absolutely no explanation for all these incriminating circumstances and the prosecution is successful in proving all the material links in the chain of events which points towards the guilt of the accused and the accused alone. Under such circumstances, the trial court has not committed any error in convicting accused Nos.1 and 2 for the homicidal death of the deceased. He submitted that there is absolutely no grounds to interfere : 13 : with the impugned judgement of conviction and order of sentence passed by the trial court which is a well reasoned judgement. Hence, he prays for dismissal of the appeal and to confirm the judgement of conviction and order of sentence in the interest of justice.
16. We have carefully perused the materials on record, including the Trial Court records.
17. It is well settled preposition of law that in order to bring home the guilt of the accused prosecution has to prove that the death of the deceased was a homicidal one. In this regard, we do not find any serious dispute raised by the accused. Even otherwise, the inquest panchanama as per Ex.P7, is marked through the panch witnesses - PW-1 and PW-7, who have fully supported the case of the : 14 : prosecution. Further, the prosecution led the evidence of PW-20, the doctor who conducted the post mortem examination and issued the report as per Ex.P32 and his final opinion as per Ex.P35, which go to show that the deceased Shruti had sustained multiple injuries and it was opinioned that the death was due to respiratory failure as a result of ligature strangulation. From these materials on record, the prosecution is successful in proving that the deceased Shruti had died homicidal death.
18. Admittedly, there are no eyewitnesses to the alleged incident. The prosecution is relying on three circumstances to bring home the guilt of the accused for the offences punishable under Sections 302 and 201 read with Section 34 of IPC. The first circumstance relied on by the prosecution is the motive for accused Nos.1 to 3 who caused the death of the deceased Shruti. It is stated that accused No.2 was having illicit : 15 : relationship with the deceased and in that regard the deceased had given the representation to the Hubli rural police station, requesting to arrange her marriage with accused No.2. In that regard, the police have invited the elders and also the family members of the deceased and accused No.2 to the police station. A bond was executed by both the deceased Shruti and accused No.2, undertaking to get married only after getting the divorce of her first marriage with PW12. It is also stated that the deceased had informed in the police station that she is pregnant and it is accused No.2 who is responsible for the same. Subsequently, the deceased was sent along with accused No.2 who had taken her to Kiresur village and both of them started residing in a shed. This is said to be the motive for the accused Nos.1 to 3 to commit the murder of the deceased.
19. The second circumstance, relied on by the prosecution is the last seen theory i.e the deceased was : 16 : last seen in the company of the accused and therefore, they are required to explain regarding her death.
20. The third and last circumstance relied on by the prosecution is with regard to the voluntary statement said to have been given by accused Nos.1 to 3 as per Exs.P27 to 29 and recovery of the incriminating materials that is the gold and silver ornaments - MOs.-6 to 9 belonging to the deceased, under the seizure mahazar Ex.P14, at the instance of the accused.
21. Since the evidence led by the prosecution regarding the motive for the accused to commit the offence and the second circumstance that the deceased was last seen in the company of the accused are conjoining with one another, we deem it proper to discuss both the circumstances together.
22. The prosecution in order to prove these circumstances relied on the evidence of PW-8, the father : 17 : of the deceased. This witness stated that his daughter Shruti was given in marriage to PW-12 Manjunath S. Ryavannavar and both husband and wife used to quarrel with each other. Subsequently, accused No.2 instigated the deceased to come with him and accordingly, the deceased left her matrimonial house and started residing with accused No.2 in his shed. Witness stated that inspite of request by him as well as by PW-12, his daughter Shruti was not willing to return to the matrimonial house. On the other hand, she had informed that she is five months pregnant through accused No.2 and therefore, she is willing to stay with him. In that regard the Panchayat was held by the elders in Hubli rural police station. Accused No.2 had executed a bond to look after Shruti. But accused Nos.1 and 2 have not liked the idea of taking Shruti by accused No.2. Still accused No.2 took the deceased with him. During cross examination, this witness stated both the PW 12 the husband and the deceased : 18 : the wife were quarrelling with each other very frequently. Witness admitted that he had advised his daughter Shurti and PW-12 to lead decent life. He also admitted that Shruthi was willing to join the job and to lead independent life. While PW-12 had studied only up to 10th standard had advised his wife to lead life as house wife. He also admitted that inspite of the advise by all the family members, Shruti was not willing to stay back in the house and started going to Hubli for her further studies. He further admitted that PW-12 had assaulted Shruti four or five times and that he advised him in that regard. Witnesses admitted that on one occasion, Shruti had consumed pesticides in order to threaten her father and husband and she was even taken to the hospital. But, however subsequently he stated that she had not consumed pesticides but in order to threaten them, she had gone to the hospital. Witnesses denied the suggestion that Shruti had committed suicide by falling on the railway track. : 19 :
23. PW-12 Manjunath S. Ryavannavar, husband of the deceased Shruti stated that three months earlier to the incident, accused No.2 had instigated the deceased and took her with him. Few days after, both of them have returned to Kiresur village and started to reside in the shed belonging to the accused. Even when he along with PW-8 went and requested Shruti to come back, she had preferred to stay there with accused No.2. He also stated regarding the deceased Shurthi lodging a complaint against accused No.2 with Hubli Rural police and Panchayat was held by the elders CWs-7, 10 and 11 and stated that even in the police station, accused Nos.1, 3 and Shruthi were there. Witness stated that since Shruti was pregnant through accused No.2, she preferred to stay with him. During cross examination, witnesses admitted that inspite of his advise, his wife had joined a training school in Hubli and also admitted that once he was advised by PW-8. Witnesses denied the suggestion that he and PW-8 are responsible for the : 20 : death of the deceased. All other suggestions were also denied by the witness.
24. PW-14 is Muttappa Basappa Lenkannavar, the brother of PW-8. He also corroborated the evidence of PWs.8 and 12 with regard to the marriage of the deceased with PW-12 and the dispute between the husband and wife and further accused No.2 instigating the deceased and taking her with him and also about the Panchayat that was held in Hubli Rural Police Station in the presence of CWs.-7, 10 and 11, where the deceased chose to stay with accused No.2 and both of them started residing in the shed.
25. PW-16 is Yallappa Gani who is said to be one of the panchas in the Panchayat that was held in Hubli Rural Police station. This witness stated in detail regarding the relationship between the deceased and accused No.2 and representation filed by the deceased before the police station. Accused : 21 : No.2 agreed to take the deceased with him. Thereafter, the deceased started living with accused No.2 in his shed. There were petty differences between the deceased and the accused, as same was heard by him through others. About 3 or 4 days earlier to the incident, he along with others were called to the shed where the accused were residing. Accused No.2 had agreed for the advise given by the elders but accused Nos.1 and 3 were not ready to heed to them. Accused No.2 was looking after the deceased well. Thereafter, he learnt that the dead body of the deceased Shruti was found on the railway track. The villagers were talking that the accused themselves have strangulated her neck and when she died, the dead body was thrown on the railway track. During cross examination by the learned advocate for the accused, witnesses denied the suggestions that : 22 : he had deposed falsely in the matter of the panchayat said to have held in Hubli Rural police station regarding execution of the bond by accused No.2 undertaking to look after the deceased in proper manner, but pleaded his ignorance that since the deceased was going to Hubli for her education and on avocation, her husband and his family members were picking up quarrel with her. He also pleaded his ignorance that Shruti had once attempted to commit suicide by consuming pesticides and that since she could not tolerate the ill- treatment that was given by her husband and members of the maternal house, she committed suicide by lying on the railway track. Nothing has been elicited from this witness during the cross examination to disbelieve his version. : 23 :
26. As already noted, there are no eye witnesses to the incident and the prosecution is relying on the circumstantial evidence regarding the motive suggested by the prosecution. The witnesses themselves have stated that accused No.2 was looking after the deceased Shruti very well. But, however they stated that accused Nos.1 to 3 and the deceased used to quarrel very oftenly.
27. As rightly contended by the learned senior advocate for the accused, strong motive to cause the death of the deceased can also be attributed to PW-12, who is the husband of the deceased. But PW-12 has not raised any dispute even though the deceased who was his wife, chosen to go with accused No.2, filed a representation before the Hubli rural police and proclaiming in public that accused No.2 is : 24 : responsible for her pregnancy. Such conduct on the part of PW-12 also appears to be unnatural.
28. The evidence led by the prosecution discloses that there was panchayat in Hubli Rural police station and accused No.2 had executed a bond undertaking to look after the deceased very well. The said undertaking is as per Ex.P10. But, on going through this document, it is seen that it was accused No.3 who had given such undertaking on 20/6/2015. The incident had occurred on 30/8/2015. There is absolutely no material placed before the Court as to what was the situation in the house of accused Nos.1 to 3 when deceased Shruti was staying with them. The evidence is also not clear as to whether Shruti and accused No.2 alone were staying in the shed or all the accused together with Shruti were staying. When accused No.1 had agreed to take Shruti with : 25 : him, there was no necessity for accused No.3 to give an undertaking as per Ex.P10. However, all the witnesses have stated that it was accused No.2 who had given the undertaking before the police, but the documents speak otherwise.
29. When the prosecution is not successful in placing the material to prove the presence of the accused at the relevant place, at the relevant time when the incident had taken place, it is not permissible to cast the burden on the accused under Section 106 of the Evidence Act.
30. One more circumstance relied on by the prosecution is about recovery of the gold and silver ornaments at the instance of the accused, which is as per MOs.6 to 9, under the seizure Mahazar Ex.P14. The voluntary statement said to have been given by accused Nos.1 and 2 is as per Exs.P27 and 28. As per Ex.P27B - the : 26 : relevant portion of the voluntary statement of accused No.1, he said to have stated that he will show the seen of offence where they caused the death of the deceased and thrown the dead body near the railway track. This accused never states that any material information is exclusively within his knowledge and he will lead to discover the said fact or material object. As per Ex.P28 accused No.2 said to have stated that he will show the motor bike used for shifting the dead body and also place where the dead body was thrown. The place where the dead body was thrown was already noticed and it is not a new fact which was disclosed by the accused under the voluntary statement. However, accused No.2 said to have stated that he will show the motor bike used in commission of offence. Ex.P14 is the recovery Mahazar, said : 27 : to have been drawn at the instance of accused Nos.1 to 3.
31. As per this document, the accused have produced the gold and sliver ornaments removed from the dead body of the deceased and also produced the motor bike bearing registration No.KA-28-J3083 from inside the shed. So called gold and silver ornaments which are as per MOs.6 to 9 were never identified either by PW-8- the father of the deceased or by PW-12-her husband. Under such circumstances, it cannot be said that the very same ornaments were worn by the decease at the time of incident, which were recovered at the instance of the accused. Further the motorbike bearing No.KA 28-J3083 along with the RC book was seized by the police. It is said that photos were taken at the time of recovery of this material object. It is pertinent to note that Ex.P.19- the photo of the : 28 : motorbike. As per Ex.P20 motorbike in question is seen along with the accused and they appear to have been holding a gunny bag with something in it. The prosecution has not explained as to what was being carried in the gunny bag and from where it was recovered. It appears as if the investigating officer has reconstructed the whole scene of accused carrying the dead body of the deceased Shruti in the gunny bag on the motorcycle in question. These materials will not help the prosecution to prove the voluntary statement and the recovery under Section 27 of the Evidence Act. On the other hand, it creates doubt in the case made out.
32. If the information supplied by the accused leads to discovery of the fact that the accused have concealed any material object which was exclusively within their knowledge : 29 : and if it is proved that the gold ornaments belongs to the deceased were recovered at the instance of the accused, then only the said recovery can be said to be relevant under Section 27 of the Evidence Act. If all the contentions of the prosecution are added in the so called voluntary statement of the accused same is in admissible in evidence since they do not relate to the discovery of any material fact. This trait of law was laid down in Pulukuri Kottaya and others Vs. Emperor1 which still holds good. Wherein the Privy council in para 10 held as under:
"10. Section 27, which is not artistically worded, provides an exception to the prohibition imposed by the preceding section, and enables certain statements made by a person in police custody to be proved. The condition necessary to bring the 1 AIR (34) 1947 Privy Council 67 : 30 : section into operation is that the discovery of a fact in consequence of information received from a person accused of any offence in the custody of a Police officer must be deposed to, and thereupon so much of the information as relates distinctly to the fact thereby discovered may be proved. The section seems to be based on the view that if a fact is actually discovered in consequence of information given, some guarantee is afforded thereby that the information was true, and accordingly can be safely allowed to be given in evidence; but clearly the extent of the information admissible must depend on the exact nature of the fact discovered to which such information is required to relate.
Normally the section is brought into operation when a person in police custody produces from some place of concealment some object, such as a dead body, a weapon, or ornaments, said to be : 31 : connected with the crime of which the informant is accused."
33. The prosecution has failed to establish its contention regarding the motive for accused Nos.1 and 2 for committing the offence and its contention that the deceased was last seen in the company of the accused and also that the incriminating materials were seized at the instance of these accused. It cannot be said that all the material links in the chain of circumstances were established by the prosecution. Unless the prosecution establishes all the links in the chain of circumstances, to lead to a inescapable conclusion of the accused being the assailant without there being any other hypothesis which suggest his innocence, the same cannot be the basis to convict the accused. This proposition of law is laid down by : 32 : the Hon'ble Supreme Court in the Reena Hajarika Vs. State of Assam 2 wherein it has been observed as under:
"8. T he essentials of circu ms tan tial evidence stand well establ ished by precedents and we do not consider it necessary to re iterate the same and burden the order unnecessarily. Suf f ice it to observe th at in a c ase of circu ms tan tial evidence the prosecu tion is required to es tablish the continu ity in the links of the chain of circu ms tances, so as to lead to the only and inescap able conclusion of the accused being the ass ail ant, in cons istent or inco mpatible with the possib ility of any o ther hypothes is co mp atible with the innocence of the accused. Mere invoc ation of the last seen theory, sans the f ac ts and ev idence in a case, will not suf f ice to shif t the onus upon the accused under Section 106 of the Evidence Ac t, 1872 unless the prosecution f irst establ ishes a prima f ac ie c ase. If the links in the chain of circu ms tances itself are not co mple te, and the prosecu tion is unable 2 2019 AIAR (Criminal) 177 : 33 : to es tablish a pr ima f acie case, leav ing open the possib ility th at the occurrence may have taken pl ace in some other manner, the onus will not shif t to the accused, and the benef it of doubt will have to be given.
18. T he entirety of the discussion, in the f acts and c ircums tances of the case, the nature of evidence av ail able coupled with the manner of its consideration, leaves us satisf ied th at the links in the chain of circu ms tances in a case of circu mstan tial evidence, cannot be said to have been established leading to the inesc apable conclus ion th at the appellan t was the assail an t of the deceased, inco mp atible with any possib ility of innocence of the appellan t. T he possibil ity that the occurrence may h ave taken place in some o ther manner cannot be co mpletely ruled out. T he appell ant is theref ore held entitled to acqu ittal to the benef it of doub t. We accordingly order the acqu ittal and release of the appellan t f rom custody f orth with, unless wan ted in any other c ase.": 34 :
34. Similar observations are made by the Hon'ble Apex Court in Navaneethakrishnaan Vs. The State by Inspector of Police 3 at paragraph Nos. 14, 20, 21, 22 and 23 which is extracted hereunder:
14) In the present case, there is no witness of the occurrence and it is only based on circumstantial evidence. Before moving further, it would be apposite to refer the law regarding reliability of circumstantial evidence to acquit or convict an accused. The law regarding circumstantial evidence was aptly dealt with by this Court in Padala Veera Reddy vs. State of Andhra Pradesh and Others 1989 Supp. 2 SCC 706 wherein this Court has observed as under:-
"10. x x x x (1) The circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established;
(2) those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused;
(3) the circumstances, taken cumulatively, should form a chain so complete that there is no escape 3 AIR 2018(3) SC 2027 : 35 : from the conclusion that within all human probability the crime was committed by the accused and none else; and (4) the circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence."
20. The information given by an accused person to a police officer leading to the discovery of a fact which may or may not prove incriminatory has been made admissible under Section 27 of the Evidence Act, 1872. Further, in Selvi (supra), this Court held as under:-
"264. In light of these conclusions, we hold that no individual should be forcibly subjected to any of the techniques in question, whether in the context of investigation in criminal cases or otherwise. Doing so would amount to an unwarranted intrusion into personal liberty. However, we do leave room for the voluntary administration of the impugned techniques in the context of criminal justice provided that certain safeguards are in place. Even when the subject has given consent to undergo any of these tests, the test results by themselves cannot be admitted : 36 : as evidence because the subject does not exercise conscious control over the responses during the administration of the test. However, any information or material that is subsequently discovered with the help of voluntary administered test results can be admitted in accordance with Section 27 of the Evidence Act, 1872."
21) In Madhu vs. State of Kerala (2012) 2 SCC 399, this Court while discussing the mandate of Section 27 of the Evidence Act held as under:-
"49. As an exception, Section 27 of the Evidence Act provides that a confessional statement made to a police officer or while an accused is in police custody, can be proved against him, if the same leads to the discovery of an unknown fact. The rationale of Sections 25 and 26 of the Evidence Act is, that police may procure a confession by coercion or threat. The exception postulated under Section 27 of the Evidence Act is applicable only if the confessional statement leads to the discovery of some new fact. The relevance under the exception postulated by Section 27 aforesaid, is limited "... as relates distinctly to the fact thereby discovered....". The rationale behind Section 27 of the Evidence Act is, that the facts in : 37 : question would have remained unknown but for the disclosure of the same by the accused. The discovery of facts itself, therefore, substantiates the truth of the confessional statement. And since it is truth that a court must endeavour to search, Section 27 aforesaid has been incorporated as an exception to the mandate contained in Sections 25 and 26 of the Evidence Act."
22, Section 27 of the Evidence Act is applicable only if the confessional statement leads to the discovery of some new fact. The relevance is limited as relates distinctly to the fact thereby discovered. In the case at hand, the Yashika Camera which was recovered at the instance of Accused No. 3 was not identified by the father as well as the mother of the deceased. In fact, the prosecution is unable to prove that the said camera actually belongs to the deceased-John Bosco. Though the mobile phone is recovered from A-1, but there is no evidence on record establishing the fact that the cell phone belongs to the deceased-John Bosco or to PW-8 as the same was not purchased in their name. Further, the prosecution failed to examine the person on whose name the cell phone was purchased to show that it originally belongs to PW-8 to prove the theory of PW-8 that he had purchased and : 38 : given it to the deceased John-Bosco. Further, the material objects, viz., Nokia phone and Motor Bike do not have any bearing on the case itself. The Nokia phone was recovered from Accused No. 1 and it is not the case that it was used for the commission of crime and similarly the motor cycle so recovered was of the father of Accused No. 3 and no evidence has been adduced or produced by the prosecution as to how these objects have a bearing on the case. In fact, none of the witnesses have identified the camera or stated the belongings of John Bosco. The said statements are inadmissible in spite of the mandate contained in Section 27 for the simple reason that it cannot be stated to have resulted in the discovery of some new fact. The material objects which the police is claimed to have recovered from the accused may well have been planted by the police. Hence, in the absence of any connecting link between the crime and the things recovered, there recovery on the behest of accused will not have any material bearing on the facts of the case.
23. The law is well settled that each and every incriminating circumstance must be clearly established by reliable and clinching evidence : 39 : and the circumstances so proved must form a chain of events from which the only irresistible conclusion about the guilt of the accused can be safely drawn and no other hypothesis against the guilt is possible. In a case depending largely upon circumstantial evidence, there is always a danger that conjecture or suspicion may take the place of legal proof. The court must satisfy itself that various circumstances in the chain of events must be such as to rule out a reasonable likelihood of the innocence of the accused. When the important link goes, the chain of circumstances gets snapped and the other circumstances cannot, in any manner, establish the guilt of the accused beyond all reasonable doubt. The court has to be watchful and avoid the danger of allowing the suspicion to take the place of legal proof for sometimes, unconsciously it may happen to be a short step between moral certainty and legal proof. There is a long mental distance between "may be true" and "must be true" and the same : 40 : divides conjectures from sure conclusions. The Court in mindful of caution by the settled principles of law and the decisions rendered by this Court that in a given case like this, where the prosecution rests on the circumstantial evidence, the prosecution must place and prove all the necessary circumstances, which would constitute a complete chain without a snap and pointing to the hypothesis that except the accused, no one had committed the offence, which in the present case, the prosecution has failed to prove."
35. Therefore the position of law regarding appreciation of circumstantial evidence placed by the prosecution and burden of proof on the prosecution and the accused is very well settled. If this position of law is applied to the facts in the case on hand, it is clear that the prosecution has prima facie shown that the deceased was sent with the accused immediately after : 41 : panchayat that was held in Hubli rural police station during June 2015 but failed to establish that the deceased continued to stay with the accused till the date of commission of the offence and except these accused no one else was in the company of the deceased. Under such circumstances, it has to be held that the prosecution is not successful in proving the circumstances of last seen theory. It has also not established the motive or the recovery of incriminating materials at the instance of any of the accused. Under such circumstances it cannot be held that the prosecution is successful in proving the guilt of the accused beyond reasonable doubt.
36. We have gone through the impugned judgment of conviction and order of sentence passed by the trial Court. It has proceeded to convict the accused only on the ground that the : 42 : deceased was staying with accused after the panchayat held in Hubli rural police station and under such circumstances, it was for the accused to explain regarding unnatural death of the deceased under Section 106 of the Evidence. Act, which is unsustainable in view of the discussion held above.
37. Therefore we are of the opinion that the impugned judgment of conviction and order of sentence passed by the trial Court is liable to be set aside. Hence, we proceed to pass the following:-
ORDER Appeal filed by the appellants-accused Nos.1 and 2 is allowed. The judgment of conviction and order of sentence passed by the learned IV Addl. Dist. & Sessions Judge, Dharwad dated 29.07.2016 in S.C.No.4/2016 is set aside. Consequently, the appellants-accused : 43 : Nos.1 and 2 are hereby acquitted of all the charges leveled against them.
Jail authorities are directed to release the appellant No.1-accused No.1- Manjunath s/o Mayappa Holemmanavar, forthwith if he is not required in any other case.
Registry is directed to intimate the jail authorities and the learned Principal District & Sessions Judge, Dharwad through e-mail to release the appellant No.1-accused No.1 forthwith, if he is not required in any other case.
Bail bonds and surety bonds executed by appellant No.2-accused No.2 are stood cancelled. If any fine amount has been deposited by the appellant No.2-accused No.2, the same shall be refunded to him on proper identification and acknowledgement.: 44 :
Registry is directed to send back the trial Court records forthwith.
Sd/-
JUDGE Sd/-
JUDGE Vmb