Karnataka High Court
Honya @ Honnappa @ Mohan S/O Somlaya ... vs The State Of Karnataka on 20 July, 2016
Equivalent citations: 2016 (4) AKR 403, (2017) 1 ALLCRILR 28
Bench: Anand Byrareddy, L.Narayana Swamy
R
IN THE HIGH COURT OF KARNATAKA,
KALABURAGI BENCH
DATED THIS THE 20TH DAY OF JULY, 2016
PRESENT
THE HON'BLE MR.JUSTICE ANAND BYRAREDDY
AND
THE HON'BLE MR. JUSTICE L. NARAYANA SWAMY
CRIMINAL APPEAL No.3651/2011
BETWEEN:
Honya @ Honnappa @ Mohan
S/o Somlya Rathod
Age: 22 years
Occupation: Coolie
R/o Jinkera Thanda
Taluka District Yadgir
... APPELLANT
(Shri Iswaraj S. Chowdapur, Advocate)
AND:
The State of Karnataka
Represented by Additional
State Public Prosecutor, Circuit Bench
Gulbarga.
... RESPONDENT
2
(Shri R.V. Nadagouda, Additional Advocate General)
This Criminal Appeal is filed Under Section 374 (2) of
Code of Criminal Procedure, 1973, praying to grant leave to
call the records in S.C. No.90/2010 on the file of Session
Judge, Yadgir, peruse the same allow the appeal and set
aside the order of conviction and sentence of fine amount of
Rs.1,000/- Under Section 302 of Indian Penal Code dated
16.7.2011 and acquit the appellant for the said charge.
This appeal coming on for hearing this day, ANAND
BYRAREDDY .,J delivered the following:
JUDGMENT
Heard the learned Counsel for the appellant and the learned Additional Advocate General for the State.
2. The case of the prosecution was that the complainant Mallamma had lodged a complaint to state that she and her husband were residents of Jinkera thanda, within the jurisdiction of the Yadgir Rural Police Station and that they were agricultural labourers and they had three children by their marriage. That on 30.6.2010 at about 3 9.00p.m., her mother-in-law and another villager Muttayya had come to her house and stated that Honya @ Honnappa, the accused, of Jinkera Thanda was seen asking her husband Sabanna to accompany him to Jinkera Thanda and that he had promised to pay him Rs.50/- for the chore and that it was their apprehension that he would come to harm because the accused was known to be of a bad reputation. However, she did not choose to take any action. And at about 6.30a.m., on 1.7.2010, one Yallappa had come and informed her that Honya had asked her husband to accompany him to Jinkera Thanda, but when he refused to go along with the accused, he had promised to give Rs.50/- and then her husband had accompanied the accused. Yallappa had further informed that on 3.2.2010, at about 6 p.m., when he had been to his field, he had found the dead body of her husband. The complainant, along with her 4 mother-in-law, brother-in- law and Muttaiah had rushed to the field of one Ramanna and did find the dead body of Sabanna on the land. It was noticed that there was bleeding injury on the head, right eye and on the cheek of the deceased and there were marks of throttling or of strangulation on the neck. Therefore, it was alleged that Honya, who was last seen with the deceased Sabanna, between the intervening night of 30.6.2010 and 1.7.2010 had committed the murder.
On the basis of the said complaint, the Police Sub- Inspector had registered a case for an offence punishable under Section 302 of the Indian Penal Code, 1860 and taken further steps.
After further investigation and further proceedings, charge sheet was submitted to the court of the JMFC, Yadgir. On receipt of the charge sheet, since the offence 5 was exclusively triable by the Court of Sessions, the matter was committed to the Court of Sessions and the accused, who had been arrested immediately on the same day, on 1.7.2010, was produced before the Sessions Court and the Sessions Court had framed charges to which the accused pleaded not guilty and claimed to be tried. Thereafter, the prosecution had examined 11 witnesses and marked several documents and material objects and on the basis of the said evidence and on recording the statement of the accused under Section 313 of the Code of Criminal Procedure, 1973, the court below had framed the following point for determination:
"(1) Whether the prosecution proves that, during night hours of 30-06-2010 and 01-07-210 Sabanna, the husband of the complainant met with homicidal death ?6
(2) Whether the prosecution further proves that, during night hours of 30-06-2010 and 01-07-2010 the accused having quarreled with the deceased Sabanna committed his murder by assaulting him with stick on his head and by squeezing his neck and thereby committed an offence punishable Under Section 302 of Indian Penal Code ?"
The court below has answered the above points in the affirmative and convicted the accused and sentenced him to life imprisonment with a fine of Rs.1000/-. It is that which is under challenge in the present appeal.
3. The learned Counsel for the appellant would submit that there is no dispute that the entire case of the prosecution rests on the last seen theory or circumstantial evidence. And in this regard, reliance is placed on the evidence of PWs. 4,5 and 6, of whom, PWs.4 and 5 had claimed that when PWs.4 and 5 and the deceased were sitting on a stone slab, 7 the accused is said to have approached them and requested one of them to accompany him to the thanda, at which, Muttaiah had refused. Even the deceased had refused to do so. It is then that the accused is said to have offered a sum of Rs.50/- if he accompanied the accused and the deceased had volunteered. Muttaiah had immediately come to the complainant and informed her that her husband had accompanied the accused and that the accused did not have good reputation and she must intimate him when her husband came back. This is further supplemented by PW.6, who comes next morning and informs her that the maternal uncle of the deceased had informed her of having discovered the dead body of the husband of the complainant, lying on Ramanna's land. This is the circumstance that he had seen the deceased-accused together at 9 a.m., going towards the Thanda. It is on the basis of 8 this evidence that the trial court has opined that there is no clear motive except the fact that there was an offer of Rs.50/- and possibly the scuffle had ensued on the amount having been refused or not having been paid. For it was found that the accused had also suffered injury on his knee, as a result of the possible scuffle. And since he was last seen together with the deceased, the case of the prosecution has been accepted by the trial court, on the footing that there was no other cause or reason for the death of the deceased and it was in all probability, the accused who had committed murder by throttling the deceased and thereafter having possibly assaulted by a stick which was found lying beside the dead body.
The learned counsel would limit his arguments to contend that while applying the last seen theory, the Supreme Court has sounded a warning as reported in the 9 case of Nizam and another vs. State of Rajasthan, 2015 SAR (Criminal) 1197. While having reviewed the entire case law on the point, it has been expounded that in a case based on circumstantial evidence, the settled law was that the circumstances from which the conclusion of guilt is drawn should be fully proved and such circumstances must be conclusive in nature. Moreover all the circumstances should be complete forming a chain and there should be no gap left in the chain of evidence. Further, the proved circumstance must be consistent only with the hypothesis of the guilt of the accused totally inconsistent with his evidence. The Supreme Court has drawn attention to the principle of circumstantial evidence as reiterated by the Supreme Court in a plethora of decisions, namely, Bodhraj @ Bodha and others, vs. State of Jammu and Kashmir, 10 (2002)8 SCC 45, wherein the Supreme Court had quoted number of judgments, to hold as follows:
"It has been consistently laid down by this Court that where a case rests squarely on circumstantial evidence. the inference of guilt can be justified only when all the incriminating facts and circumstances are found to be incompatible with the innocence of the accused or the guilt of any other persons. (See Hukam Singh v. State of Rajasthan, AIR (1977) SC 1063), Eradu and Ors. v. State of Hyderabad, AIR (1956) SC 316, Earabhadrappa v. State of Karnataka, AIR (1983) SC 446, State of U.P. v.
Sukhbasi and Ors., AIR (1985) SC 1224, Balwinder Singh v. State of Punjab, AIR (1987) SC 350, Ashok Kumar Chatterjee v. State of MP AIR (1989) SC 1890. The circumstances from which an inference as to the guilt of the accused is drawn have to be proved beyond reasonable doubt and have to be shown to be closely 11 connected with the principal fact sought to be inferred from those circumstances. In Bhagat Ram v. State of Punjab, AIR (1954) SC 621), it was laid down that where the case depends upon the conclusion drawn from circumstances the cumulative effect of the circumstances must be such as to negative the innocence of the accused and bring the offences home beyond any reasonable doubt."
Reference is also made to the decision of the apex court in C. Chenga Reddy vs. State of Andhra Pradesh, (1996)10 SCC 193, where it has been observed as under :-
"21. In a case based on circumstantial evidence, the settled law is that the circumstances from which the conclusion of guilt is drawn should be fully proved and such circumstances must be conclusive in nature. Moreover, all the circumstances should be complete and there should be no gap left in the chain of evidence. Further, the 12 proved circumstances must be consistent only with the hypothesis of the guilt of the accused and totally inconsistent with his innocence."
Also draws reference to the case of Trimukh Maroti Kirkan vs. State of Maharashtra, (2006)10 SCC 681, wherein it is held as under:
"12. In the case in hand there is no eye-witness of the occurrence and the case of the prosecution rests on circumstantial evidence. The normal principle in a case based on circumstantial evidence is that the circumstances from which an inference of guilt is sought to be drawn must be cogently and firmly established; that those circumstances should be of a definite tendency unerringly pointing towards the guilt of the accused; that the circumstances taken cumulatively should form a chain so 13 complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and they should be incapable of explanation on any hypothesis other than that of the guilt of the accused and inconsistent with his innocence."
And that the same principles were reiterated in Sunil Clifford Daniel vs. State of Punjab, (2012)11 SCC 205; Sampath Kumar vs. Inspector of Police, Krishnagiri (2012)4 SCC 124 and Mohd. Arif @ Ashfaq vs. State (NCT of Delhi), (2011)13 SCC 621 and a host of other cases.
It is further held that undoubtedly, the "last seen theory" is a link in the chain of circumstances that would point towards the guilt of the accused with some certainty. The "last seen theory" holds the courts to shift the burden of 14 proof to the accused and the accused to offer a reasonable explanation as to the cause of death of the deceased. It is well settled by the Supreme Court that it is not prudent to base the conviction solely on "last seen theory". The "last seen theory" should be applied taking into consideration the case of the prosecution in its entirety and keeping in mind the circumstances that precede and follow the point of being so last seen.
Elaborating the principle of "last seen alive" in State of Rajasthan vs. Kashi Ram, (2006)12 SCC 254, the Supreme Court had laid down as follows:
"It is not necessary to multiply with authorities. The principle is well settled. The provisions of Section 106 of the Evidence Act itself are unambiguous and categoric in laying down that when any fact is especially within the knowledge of a 15 person, the burden of proving that fact is upon him. Thus, if a person is last seen with the deceased, he must offer an explanation as to how and when he parted company. He must furnish an explanation which appears to the Court to be probable and satisfactory. If he does so he must be held to have discharged his burden. If he fails to offer an explanation on the basis of facts within his special knowledge, he fails to discharge the burden cast upon him by Section 106 of the Evidence Act. In a case resting on circumstantial evidence if the accused fails to offer a reasonable explanation in discharge of the burden placed on him, that itself provides an additional link in the chain of circumstances proved against him. Section 106 does not shift the burden of proof in a criminal trial, which is always upon the prosecution. It lays down the rule that 16 when the accused does not throw any light upon facts which are specially within his knowledge and which could not support any theory or hypothesis compatible with his innocence, the Court can consider his failure to adduce any explanation, as an additional link which completes the chain. The principle has been succinctly stated in Re. Naina Mohd. AIR 1960 Madras, 218."
The said judgment is reiterated in Kirti Pal vs. State of West Bengal, (2015)5 Scale 319.
The Supreme Court has also taken note of the fact that insofar as the time gap between the last seen circumstance and the discovery of the dead body or the time of death, is concerned, where the time gap is long, it would be unsafe to base conviction on the basis of "last seen theory" and 17 that it would be safer to look for corroboration from other circumstances and evidence adduced by the prosecution.
Therefore, the learned counsel would submit that apart from contending that there was an offer of Rs.50/- by the accused to the deceased for the deceased to accompany him to thanda, where the accused was living and that possibly on account of refusal to pay money, a scuffle had ensued between the accused and the deceased, resulting in the deceased being throttled to death by the accused, is a far-fetched theory and based only on the circumstance that PWs.4,5 and 6 had seen the deceased accompany the accused. This, the learned counsel would submit, would not be sufficient to hold that there was a chain of circumstances, which would unerringly establish the case of the prosecution. When the motive alleged itself is doubtful, the question of chain of circumstances existing, which could 18 point to the guilt of the accused is remote. Therefore, he would submit that when the accused was apparently seen at 9 p.m. and the body was discovered at 6 a.m. in the morning and when the post mortem is conducted on the dead body at 4p.m. on 1.7.2010, and the time of death is estimated at 15 to 20 hours prior to the post mortem, it would not be consistent with the allegation that the murder must have been committed in the intervening night of 30.6.2010 and 1.7.2010. And in the absence of any other incriminating evidence to point to the accused of having committed the murder, either for gain or otherwise, it cannot be said that the prosecution had made out a case beyond all reasonable doubt.
It is further pointed out that the accused was arrested on the very day of discovery of the dead body at about 4.00 p.m. and he has been arrested from his home. This is hardly 19 be a conduct of a guilty person who may have committed murder. As has been held in the case of Sadanand Mondal vs. State of West Bengal, 2013 AIAR (Criminal) 955, that non- abscondance of the accused after commission of the ghastly crime would also absolve of any such guilt, if he has not tried to hide himself out of the reach of the law. The learned Counsel would hence submit that on the basis of mere suspicion and surmise, the petitioner being convicted to life imprisonment has resulted in a gross miscarriage of justice. The appellant has already spent 6 years in jail which is a travesty of justice. He would seek that the accused be acquitted.
4. While the learned Additional Advocate General would, in his characteristic style, submit that the trial court was fully justified in convicting the accused as 20 undoubtedly, there are three witnesses whose evidence has not been impeached to state that the deceased was last seen together with the accused. He would further submit that the contention of the counsel for the appellant that there was total absence of motive, since the only transaction that existed between the appellant and the deceased was that there was a promise to pay Rs.50/- and that it was unimaginable that a murder would be committed for Rs.50/- , is a perception of the counsel for the appellant. It is quite possible that in a remote village, it would depend on the persons involved and the value of money would vary from person to person. The case of the prosecution that though the money involved was a small amount, the possibility of murder having been committed on that account cannot be trashed or ruled out and hence when he was last seen together with the deceased and the discovery of the dead 21 body is not after sustained period of delay, but immediately thereafter, would unerringly point to the guilt of the accused and the fact that he was absconding and was arrested at 4 p.m., on the next day, would not also advance the case of the accused, as it would only indicate that the appellant was a brazen man who did not fear the law and would seek to rest his case on the assertion that the trial court's reasoning cannot be faulted and the evidence available was adequate. He would further submit that it is laid down by the apex court in the decision relied upon by the learned counsel for the appellant himself, if a person is last seen with the deceased, he must offer an explanation as to how and when he parted company. He must furnish an explanation which appears to the court to be probable and satisfactory. If he does so, he must be held to have discharged his burden. If he fails to offer an explanation on the basis of facts within 22 his special knowledge, he fails to discharge the burden cast upon him by Section 106 of the Evidence Act. Therefore, he would submit that in the absence of any effort on the part of the appellant to explain when he parted the company of the deceased, it would add a link to the chain of circumstances. Therefore, the case of the prosecution is further fortified on that account.
5. Further, the learned Counsel for the appellant, by way of reply, would state that if there was a chain of circumstances, it would certainly enure to the benefit of the prosecution, to claim that such absence of explanation offered by the accused would add a link to the chain of circumstances. If the chain of circumstances itself is not established, the question of adding a link to the chain of circumstances is an exercise in futility. He would submit that there is no additional link here and the prosecution has 23 miserably failed to bring home the charge and has not established the case beyond all reasonable doubt.
6. In the above circumstances of the case, the only relationship between the accused and the deceased was that the accused is said to have requested the deceased to accompany him to the thanda, and as it was almost nightfall, he refused to accompany the accused and when the accused had promised to pay Rs.50/- , he had accepted. Even if there was a scuffle between the deceased and the accused, there was no reason for the accused to have throttled the deceased to death, unless there were other incriminating circumstances, which would have provided such a motive to kill. The transaction itself was obviously not the reason for the commission of the crime. Therefore, if the entire case of the prosecution is to rest on the evidence 24 of PWs.4,5 and 6, it would be inadequate to bring home the charge. The trial court has theoritised on the possibility of the accused and the deceased belonging to a remote area where even Rs.50/- was possibly a sum, which was considered very valuable. Therefore, the possibility of the very transaction being the motive is not ruled out. This cannot be readily accepted for the purchase value of the rupee would be same whether in a remote area or in a town and the value of R.50/- is Rs.50/-. Hence, it cannot be readily accepted that the transaction itself was the cause for the commission of the act by the accused. If proceeding on that premise, whether the evidence of PWs.4,5 and 6 could support the last seen theory to bring home the charges against the accused is another question. As laid down by the Supreme Court, the last seen theory has various factors attendant upon it. There must be a chain of circumstances 25 which would indicate that there was every possibility of a murder having been committed by the accused and it is then possible to rely upon the last seen theory. Here except the circumstance that there was a minor transaction entered into and that the accused was last seen at about 9 p.m., on 30.6.2010 by itself would not be sufficient to conclude that there was sufficient motive for the accused to commit the murder of the deceased. Further, it is also laid down by the Supreme court that the point where the deceased was last seen and where he was found dead would be very significant and if the time gap is sufficiently long, then it would not support the last seen theory. In the given case on hand, the accused and the deceased were last seen at 9 p.m., if the evidence of PW.6 is to be accepted and thereafter he was found dead at 6 a.m. on 1.7.2010. There was obviously almost 9 hours of time gap and according to the post- 26 mortem report, the death might have occasioned 15 to 20 hours before the post-mortem and the post-mortem was conducted at 4 p.m. on 1.7.2010. Therefore, the time of death does not appear to be consistent with the time at which the deceased was possibly throttled to death.
Accordingly, the prosecution has miserably failed to establish its case on the basis of the last seen theory as the chain of events that would require to be established is totally absent except the assertion that the accused and the deceased were last seen together. This by itself would not be sufficient as emphasized in a plethora of cases referred to hereinabove.
27
Accordingly, the appeal is allowed. The accused is acquitted.
Sd/-
JUDGE Sd/-
JUDGE nv