Karnataka High Court
State Of Karnataka vs Raghu @ Raghavendra on 28 March, 2023
Author: H.B. Prabhakara Sastry
Bench: H.B. Prabhakara Sastry
1
R
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 28TH DAY OF MARCH, 2023
PRESENT
THE HON'BLE Dr. JUSTICE H.B. PRABHAKARA SASTRY
AND
THE HON'BLE MR. JUSTICE C.M. JOSHI
CRIMINAL APPEAL NO.100157/2018
C/W.
CRIMINAL APPEAL NO.100026/2018
IN CRL.A. NO.100157/2018
BETWEEN
STATE OF KARNATAKA
REPRESENTED BY THE POLICE INSPECTOR,
KITTUR POLICE STATION,
KITTUR CIRCLE,
BAILHONGAL TALUK,
THROUGH THE ADDL.
STATE PUBLIC PROSECUTOR,
ADVOCATE GENERAL OFFICE,
HIGH COURT OF KARNATAKA
DHARWAD BENCH
...APPELLANT
(BY SRI V.S. KALASURMATH, HCGP)
AND
1. RAGHU @ RAGHAVENDRA
SHANKAR DEVADIGA
AGE:24 YEARS,
R/O. SIRSI, BETAKOPPA,
DIST: KARWAR.
2
2. BASAVARAJ MARTANDAPPA GUDIKATTI
AGE:23 YEARS, R/O KALLUR,
DIST: DHARWAD.
3. MAHABALESHWAR CHANNABASAPPA YELALLI
AGE:21 YEARS, R/O. KALLUR,
DIST: DHARWAD.
4. SHASHIDHAR IRAPPA BADIGER
AGE: 19 YEARS, R/O.KALLUR,
DHARWAD.
...RESPONDENTS
(BY SRI M.B. GUNDAWADE, ADVOCATE FOR R1,
SRI T.R. PATIL, ADVOCATE FOR R2 & R3,
SRI SANTOSH B MALGOUDAR, ADVOCATE FOR R4)
THIS CRIMINAL APPEAL IS FILED BY THE APPELLANT-STATE
U/S 378(1) & (3) OF CR.P.C., SEEKING TO A) GRANT LEAVE TO
APPEAL AGAINST THE JUDGMENT AND ORDER OF ACQUITTAL
DATED 26.10.2017 PASSED BY THE III-ADDL. DIST. & SESSIONS &
SPL. COURT, UNDER SCHEDULED CASTES AND SCHEDULED TRIBES
(POA) ACT AT BELAGAVI IN S.C.NO.166/2011; B) SET ASIDE THE
JUDGMENT AND ORDER OF ACQUITTAL DATED 26.10.2017 PASSED
BY THE III-ADDL. DIST. & SESSIONS & SPL. COURT, UNDER
SCHEDULED CASTES AND SCHEDULED TRIBES (POA) ACT AT
BELAGAVI IN S.C.NO.166/2011; AND C) CONVICT THE
RESPONDENTS/ACCUSED FOR THE OFFENCES P/U/S. 302, 201,
404, 465, 468, 471 R/W SEC. 34 OF IPC AND U/S 3(2)(V) OF
SCHEDULED CASTES & SCHEDULED TRIBES (PREVENTION OF
ATROCITIES) ACT.
IN CRL.A. NO.100026/2018
BETWEEN
ARAVIND S/O. BANGAREPPA NETREKAR
AGE:62 YEARS, OCC:RETD. ASI,
R/O. SIRSI, TQ:SIRSI,
DIST: KARWAR.
...APPELLANT
(BY SRI B.S. KUKANAGOUDAR, ADVOCATE)
3
AND
1. RAGHU @ RAGHAVENDRA SHANKAR DEVADIGA
AGE:30 YEARS,
R/O. SIRSI, BETAKOPPA,
TQ: SIRSI,
DIST: KARWAR.
2. BASAVARAJ MARTANDAPPA GUDIKATTI
AGE:29 YEARSs, R/O. KALLUR,
TQ: DHARWAD ,
DIST: DHARWAD-580001.
3. MAHABALESHWAR CHANNABASAPPA YALALLI
AGE:27 YEARS, R/O. KALLUR,
TQ: DHARWAD,
DIST: DHARWAD-580001.
4. SHASHIDHAR IRAPPA BADIGER
AGE:25 YEARS, R/O. KALLUR,
TQ: DHARWAD,
DIST: DHARWAD-580001.
5. THE STATE OF KARNATAKA
THROUGH KITTUR POLICE,
REPRESENTED BY STATE PUBLIC PROSECUTOR,
HIGH COURT OF KARNATAKA,
DHARWAD BENCH.
...RESPONDENTS
(BY SRI M.B. GUNDAWADE, ADVOCATE FOR R1,
SRI SANTOSH B. MALAGOUDAR, ADVOCATE FOR R2 TO R4,
SRI V.S. KALASURMATH, HCGP FOR R5)
THIS CRIMINAL APPEAL IS FILED U/SEC.372 OF CR.P.C.,
PRAYING TO (A) CALL FOR THE RECORDS OF TRIAL COURT IN S.C.
NO.166/2011 ON THE FILE OF III ADDL. DISTRICT & SESSIONS
JUDGE & SPECIAL COURT UNDER S.C./S.T. (POA) ACT, BELAGAVI;
(B) TO SET-ASIDE THE JUDGMENT AND ORDER OF ACQUITTAL
DATED 26.10.2017 PASSED IN S.C. NO.166/2011 BY THE III ADDL.
DISTRICT & SESSIONS JUDGE & SPECIAL COURT UNDER S.C./S.T.
(POA) ACT, BELAGAVI, FOR THE OFFENCES PUNISHABLE
U/SEC.302, 201, 404, 465, 468, 471 R/W SEC.34 OF I.P.C. AND
4
U/SEC.3(2)(v) OF S.C./S.T. (POA) ACT, 1989 AND CONVICT THE
RESPONDENTS NO.1 TO 4 / ACCUSED NOS.1 TO 4, FOR THE
OFFENCES PUNISHABLE U/SEC.302, 201, 404, 465, 468, 471 R/W
SEC.34 OF I.P.C. AND U/SEC.3(2)(v) OF S.C/S.T (PA) ACT, 1989,
BY ALLOWING THIS APPEAL.
THESE CRIMINAL APPEALS HAVING BEEN HEARD AND
RESERVED ON 20.01.2023, COMING ON FOR PRONOUNCEMENT OF
JUDGMENT THROUGH VIDEO CONFERENCING AT KALABURAGI,
THIS DAY, C. M. JOSHI, J., DELIVERED THE FOLLOWING:
JUDGMENT
These appeals are filed by the father of the deceased- Manoj and also the State aggrieved by the judgment of acquittal dated 26-10-2017 passed in S.C.No.166/2011 by the learned III Additional District and Sessions Judge and Special Judge, Belagavi, for the offences punishable under Sections 302, 201, 404, 465,468,471 r/w Section 34 of IPC and Section 3(2)(v) of Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 (for short "SC/ST (POA) Act").
2. The brief facts of the case are as below:
The Kittur Police have registered a case in Crime No.24/2011 for the offence punishable under Sections 302, 201 of IPC on 09.02.2011 on the basis of the information by 5 one Iranna Chandrappa Desai i.e. PW1. In the said complaint lodged by him, which is at Ex.P1, it was stated that on 09.02.2011 when he was at Kittur, he received information that there was fire in the Nilgiri plantation at Valasanga village and he being the plantation supervisor of West Coast Paper Mills, Dandeli, since eight years, was residing at Kulavalli plantation, rushed to Valasanga plantation along with his staff i.e. Bharmappa Basappa Jogappagol (PW2) and one Gouse Mugutsab Kadrolli. On visiting Valasanga plantation, he found fire in the plantation and when they were trying to douse the fire, they came across a half burnt dead body of a male. It was noticed that nilagiri branches were thrown on the dead body and fire was lit and the cloths on the dead body were burnt and there were some liquor bottles which had fallen in the nearby. Immediately, PW1 went to Kittur police station and lodged the complaint as per Ex.P1, which was registered in the above crime number and investigation was launched.
During the course of the investigation while conducting the inquest panchanama, burnt cloths and other articles were noted and seized by the investigating officer and then autopsy 6 was conducted on the dead body at Kittur Government Hospital on 10.02.2011. During the course of the investigation, Kittur police appears to have shown the photo of the half burnt dead body to one Aravind Netrekar (PW 10) i.e. appellant in Criminal Appeal No.100026/2018 at Sirsi and he identified the said dead body as that of his son Manoj, aged about 23 years. Thereafter, he along with his wife (PW 18) went to Kittur police Station, saw the seized articles, identified them and gave their statements. The accused No.1 to 4 were arrested on 06.04.2011 and they were interrogated and on the basis of their voluntary statements, a stone from the place of offence was seized under mahazar at the instance of accused No. 1 and the Trax jeep used by the accused was seized at the instance of the accused No.2. Two mobile phones belonging to the deceased-Manoj were seized from accused No.3 and 4 at their instance under a mahazar. Thereafter, accused No.1 to 4 were remanded to judicial custody on being produced before the learned Special Judge. The decomposed body, which was buried by the investigating officer with the 7 help of panchas was exhumed at the request of the appellant- Aravind Netrekar (PW10) and was handed over to him.
It is the case of the prosecution that during the investigation, the accused No.1 had withdrawn a sum of `14,000/- from the bank account of the deceased by forging his (deceased) signature and therefore, the admitted handwriting and signatures of accused No.1 were obtained and they were sent for opinion of the expert. After completion of the investigation, the investigating officer filed the charge sheet against the accused No.1 to 4 for the offence punishable under Section 302, 201, 404, 465, 468, 471 read with Section 149 of IPC and Section 3,(2)(v) of the SC/ST (POA) Act, before the learned Additional Sessions Judge, Belagavi. In the charge sheet, one Anil Anchekar of Udupi was shown to have been absconding and the case against accused No.5 was split up and accused No.2 to 4 were granted bail, while accused No.1 remained in judicial custody till completion of the trial. The Deputy Superintendent of Police, Bailhongal (PW.39) who investigated the matter, filed the charge sheet against the 8 accused No.1 to 4 initially and later the additional report came to be filed by PW40.
3. The prosecution examined 41 witnesses in support of its case and Exs.P1 to P99 and M.O.1 to M.O.20 were marked during the trial. The statement of the accused under Section 313 of the Code of Criminal Procedure was recorded and they did not choose to lead any evidence on their behalf. After hearing the arguments by both the parties, the learned Sessions Judge acquitted the accused by the impugned judgment.
4. Being aggrieved by the said judgment, the father of the deceased i.e. Aravind Netrekar (PW10) as well as the State have come up in these appeals.
5. On issuance of notices, the accused No.1 to 4 appeared through their counsel. The appeal came to be admitted and the Trial Court records have been secured by this Court.
6. We have heard the arguments by the learned counsels appearing for the appellant (PW10) and the learned 9 HCGP for the State and also learned counsels appearing for respective accused.
7. The points that arise for our consideration in these appeals are:
1. Whether the prosecution is able to establish that the death of deceased-Manoj Netrekar was a homicidal death?
2. Whether the prosecution is able to prove beyond reasonable doubt that the accused Nos. 1 to 4 only had committed the offence of culpable homicide amounting to murder?
3. Whether the prosecution is able to prove that the accused No.1 alone had withdrawn the money from the account of deceased-
Manoj by forging his handwriting and signature?
4. Whether there are sufficient grounds to interfere with the impugned judgment?
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8. The case of the prosecution solely rests on the circumstantial evidence. It is pertinent to note that there are no eyewitnesses to the incident, who could say that the accused No.1 to 4 had committed the murder of the deceased- Manoj. The prosecution's case as it unfolds from the prosecution papers is that the deceased-Manoj and the accused No.1 were friends and they had studied together at Sirsi. Even the accused No.1 used to visit the house of the deceased on several occasions and the deceased had completed his diploma education and was also doing some poultry business. He was in search of job. Therefore, the accused No.1 having secured a job in a construction company at Hubli, promised that he would get a job for the deceased- Manoj. In the meanwhile, the deceased-Manoj used to visit the house of PW19-Jyoti and was having intimacy with her. Accused No.1 also came into contact with PW19-Jyoti and he also started loving and moving with her. When he came to know that the deceased-Manoj was also having intimacy with PW19, he decided to eliminate deceased-Manoj as he was coming in the way of his relationship with PW19. Therefore, in 11 the guise of fetching a job for the deceased-Manoj, on 07.02.2011 he informed the deceased to come with him to Hubli. He was assisted by accused No.5-Anil Anchekar. Accordingly, the deceased-Manoj left his house on 6-2-2011 at about 12.00 noon by informing his mother i.e. PW18 that he is going to Hubli and the accused No.1 is arranging for a job. Therefore, they went to Hubli and while going to Hubli, allegedly they had met the PW6-Chetan Mesta and PW7- Narayan and also PW25-T.T. Raju. After they left Sirsi in the afternoon on 07.02.2011, the deceased did not contact his family members. The PW10, was working as an ASI at Sirsi Police station, who is the father of the deceased-Manoj returned from his duties at Mundgod. He also could not contact the deceased over the phone. All the efforts by family members and his friends went in vain.
9. It is the further case of the prosecution that on FIR being registered at Kittur police station on the afternoon of 09.02.2011, the investigating officer visited the spot on the next morning and conducted mahazar, whereunder liquor bottles etc., which was found at the spot and a scratch card of 12 Vodafone company were seized. On the basis of recharge number of the scratch card, he contacted Vodafone Company and came to know that it was used to recharge the mobile number of deceased-Manoj. Therefore, he traced address of the deceased-Manoj and sent his staff to Sirsi to identify the person, in whose name the mobile number was registered. Even then, he could not ascertain as to whether the said mobile number was belonging to the deceased or not. Ultimately, on 25.03.2011, he personally went to the house of PW10 at Sirsi and showed the photographs of the dead body of the deceased. Then PW10, PW18 and their family members identified the body to be of the deceased-Manoj. Then after recording the statement of the family members and the friends of the deceased-Manoj at Sirsi, he came to know that the accused No.1 had accompanied the deceased-Manoj to Hubli on 07.02.2011. On securing and arresting accused No.1 on 06.04.2011, his voluntary statement was recorded whereby the involvement of accused No.2 to 5 was also traced out and on the same day, accused No.2 to 4 were arrested. Accused No.1 allegedly led them to the spot whereat a stone 13 used for commission of the offence was discovered. The accused No.2 led for the discovery of the tempo trax vehicle which was used by them to go to Valasanga plantation which was within Kulavalli Village limits and the same was also seized. Accused No.2 also informed that he had purchased liquor and pesticide from the shops of PW8 and PW9. Accused No.3 and 4, allegedly produced two mobile phones belonging to the deceased-Manoj which they had obtained from the accused No.1 immediately after commission of the offence.
10. It is further the case of the prosecution as per the charge sheet that, the accused No.1 after commission of the offence of eliminating deceased-Manoj, took away the passbook of SB Account of deceased-Manoj, which was serviced by SBI Sirsi and by using a forged withdrawal slips and imitating the signature of deceased-Manoj, presented the passbook as well as withdrawal slip to the bank and withdrawn a sum of `10,000/- on 21.02.2011 and `4,000/- on 23.11.2011. Not only that he also deposited a sum of `10,000/- to his own account at Syndicate Bank, Sirsi Branch. Therefore, the sample handwriting and signatures of accused 14 No.1 were obtained and the withdrawal slips which were questioned documents were secured from the Bank and on comparing the questioned documents with the admitted documents of the deceased as well as the accused No.1, it was alleged by the prosecution that the accused alone had forged signatures of the deceased and had withdrawn money after his death. Therefore, contending that the accused No.1 was assisted by accused No.2 to 4 and also by absconding accused No.5, knowing fully well that the deceased was belonging to Scheduled Caste, he was taken to Kulavalli plantation and by making him to drink pesticide mixed liquor, he was pushed into a trench and a stone was dropped on his head causing injury and thereafter body was covered with the branches of trees and accused lit fire and then escaped from the spot with the mobile phone, passbook etc., of the deceased. Thus, it is evident that the prosecution's case rests on circumstantial evidence and there are no eyewitnesses to the incident.
11. Before venturing into the factual aspects of the case on hand, it is necessary to note that the law relating to an appeal in acquittal is settled. The latest decision of the 15 Apex Court in the case of Ravi Sharma vs. State (Government of NCT of Delhi) and Another1 chronicles the consistent stand taken by the Apex Court over a long period of time. It is relevant to note that the decision in the case of Chandrappa vs. State of Karnataka2 in para No.42 lays down the following principles.
"42. From the above decisions, in our considered view, the following general principles regarding powers of appellate Court while dealing with an appeal against an order of acquittal emerge;
(1) An appellate Court has full power to review, reappreciate and reconsider the evidence upon which the order of acquittal is founded;
(2) The Code of Criminal Procedure, 1973 puts no limitation, restriction or condition on exercise of such power and an appellate Court on the evidence before it may reach its own conclusion, both on questions of fact and of law;
(3) Various expressions, such as, 'substantial and compelling reasons', 'good and sufficient grounds', 'very strong circumstances', 'distorted conclusions', 'glaring mistakes', etc. are not intended to curtail extensive powers of an appellate Court in an appeal against acquittal. Such phraseologies are more in the nature of 'flourishes of language' to emphasize the reluctance of an appellate Court to interfere with acquittal than to curtail the power of the Court to review the evidence and to come to its own conclusion.1
(2022) 8 SCC 536 2 (2007) 4 SCC 415 16 (4) An appellate Court, however, must bear in mind that in case of acquittal, there is double presumption in favour of the accused. Firstly, the presumption of innocence available to him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent court of law.
Secondly, the accused having secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the trial court.
(5) If two reasonable conclusions are possible on the basis of the evidence on record, the appellate court should not disturb the finding of acquittal recorded by the trial court."
12. Thereafter, the Apex Court in the case of Jafrudheen vs. State of Kerala3 in para 25 held as below:
"25. While dealing with an appeal against acquittal by invoking Section 378 of the Cr.PC, the Appellate Court has to consider whether the Trial Court's view can be termed as a possible one, particularly when evidence on record has been analysed. The reason is that an order of acquittal adds up to the presumption of innocence in favour of the accused. Thus, the Appellate Court has to be relatively slow in reversing the order of the Trial Court rendering acquittal. Therefore, the presumption in favour of the accused does not get weakened but only strengthened. Such a double presumption that enures in favour of the accused has to be disturbed only by thorough scrutiny on the accepted legal parameters."
13. All the above decisions along with many other precedents have been considered elaborately by the Apex Court in Ravi Sharma's case and it has reiterated those 3 (2022) 8 SCC 440 17 principles and therefore, it is evident that the Appellate Court should be cautious while reversing a judgment of acquittal. The reason behind the principle is that the accused has the benefit of innocence as a basic principle of a criminal jurisprudence. Certainly, the accused has the benefit of acquittal by the trial Court which had the occasion to peruse and observe the demeanor of the witnesses and the manner in which they had spoken before the Court. The confidence of the trial Court arises on the basis of the deposition of the witnesses who physically appeared before it. That advantage is not before the Appellate Court and therefore, keeping in view these principles, the case on hand needs to be appreciated by this Court.
Arguments:
14. The learned counsel appearing for the appellant/PW10 - Aravind in Criminal Appeal No.100026/2018 contended that accused No.1 had suspected that the deceased is coming in the way of his love affair with PW19/CW22. He contends that the evidence of the mother of the deceased i.e. 18 PW18 coupled with the evidence of PW19 shows that accused No.1 had some friendship with PW19 and the deceased Manoj was also visiting her. Therefore, he contends that the motive for commission of the offence is established by the evidence available on record.
15. He further contends that according to PW25, PW7, PW6 and PW18, who is mother of the deceased, accused No.1 was seen in the company of the deceased on the date when they together went to Hubballi. He contends that the evidence of PW.6, PW.7, PW.18 and PW.25 is sufficient enough to show that accused No.1 had traveled with the deceased to Hubballi on 07.02.2011. Their evidence is clear in this aspect and therefore, the last seen together theory has to be made applicable. The burden shifts to the accused to say what happened to the deceased as required under Section 106 of the Evidence Act. It is also submitted that the call details produced by the investigating officer concerning the calls emanating from the deceased clearly establish that he was found in the vicinity of Kitturu and therefore, the accused is liable to explain as to what happened to the deceased. In the 19 absence of any explanation, adverse inference has to be drawn against the accused.
16. He further submitted that accused No.1 had withdrawn the money from the account of the deceased at SBI, Sirsi on 21.02.2011 and 23.02.2011 and the report by the handwriting expert clinches that it was accused No.1, who had withdrawn the money. He also points out that the voluntary statement of accused No.1 discloses that he had retained the passbook of the account of the deceased with him and therefore, when he presented the said passbook along with forged withdrawal slips, the same came to be passed and the bank officials have allowed withdrawal of the money. Therefore, he contends that the withdrawal of the money from the bank account of the deceased is clear indication that accused No.1 was in possession of the bank passbook and therefore, this circumstance also goes against the accused. He further submitted that accused No.2 had purchased liquor from PW8 and those liquor bottles were found at the place of occurrence and therefore, the case against accused No.2 is also established.
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17. It is submitted that accused Nos.3 and 4 had retained the mobile phone of the deceased Manoj and on their arrest they had produced those mobile phones which are at MO18 and MO19 and they were identified by none else than the mother of the deceased i.e. PW18. Therefore, the recovery of the mobile phones of the deceased at the instance of accused Nos.3 and 4 has been proved by the prosecution and this aspect was not favourably considered by the trial Court.
18. He further contends that the call details and CCTV footages were also collected by the investigating officer but they were not read as evidence in view of the bar under Section 65-B of the Evidence Act. It is submitted that the investigating officer could trace the parents of the deceased only on the basis of the scratch card and therefore, the identity of the body cannot be disputed. It is only on enquiry of the parents of the deceased that the investigating officer came to know about accused Nos.1 to 5 and accused No.1 had led to the discovery of forgeries committed by him in withdrawing the money from the bank account of the deceased Manoj. Therefore, he contends that the prosecution 21 had proved the guilt of the accused and even then the trial Court erred in acquitting the accused.
19. In support of his contention, learned counsel appearing for PW10 has placed his reliance on the decisions in the case of Kanti Lal vs. State of Rajasthan4, wherein it has held as below:
"7. The evidence adduced by the prosecution would show that the appellants were moving with the deceased Bheema Ram during the relevant period. Another circumstance, which would prove the presence of the appellants at Jalore Fort during the crucial time is the graffiti found on the wall of Rani Mahal of Jalore Fort. PW 29 took photographs of these writings and the same were compared with the specimen signatures of the appellants (Exts. P-74 and P-75). The expert opinion Q-1 and Q-3 was to the effect that the specimen signatures of the appellants were similar to the graffiti allegedly written by the appellants."
20. It was a case wherein the accused were found to be moving with the deceased immediately before the death and therefore, the Apex Court held that adverse inference has to be drawn based on the last seen together theory. The burden was shifted to the accused to explain the circumstances. Therefore, he contends that when accused 4 (2004) 10 SCC 113 22 No.1 herein has not explained the circumstance that he was seen together in the company of the deceased at Sirsi, adverse inference has to be drawn against him.
21. The learned High Court Government Pleader contends that PW10 - Aravind Bangareppa Netrekar, who is father of the deceased and PW6 - Chetan Gajanana Mesta have identified the articles belonging to the deceased Manoj and apart from that PW18 - Saroja has also identified the photographs of the deceased and therefore, the identity of the body which was found in the Nilgiri plantation is not in dispute. He contends that as per the postmortem report, the death had taken place between 6 to 36 hours prior to the postmortem examination and therefore, it can safely be said that the death had occurred on 09.02.2011. Even it is the case of the prosecution that the plantation supervisors, PW1 and PW2 had found the body of the deceased on 09.02.2011 itself. Hence, he contends that in view of the inquest report and the postmortem report, the prosecution had proved that it is a homicidal death.
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22. Learned counsel appearing for accused No.1, Sri.M.B.Gundawade submits that the evidence of PW6, PW7, PW8 is not conclusive that accused No.1 and the deceased Manoj had gone together to Hubballi on 07.02.2011. He has taken us through the evidence of PW6, PW7 and PW18 and contended that their evidence is not conclusive. Secondly, he contends that there is no material to show as to what they did from 07.02.2011 to 09.02.2011, for more than two days. Unless the time gap between the last seen together and the incident is properly explained and brought on record, it is not possible to hold that the accused alone is responsible for the death of the deceased. He submits that there is possibility of intervention of some third party after accused No.1 and the deceased left from Sirsi to Hubballi. Therefore, the last seen together principle cannot be applied in the case on hand.
23. Further, he contends that though the consumption of alcohol by the deceased is shown and that the liquor bottles were found at the place where the body of the deceased was traced, there were no traces of pesticide as contended by the prosecution. The viscera of the body of the deceased as well 24 as the liquor bottles were sent for FSL examination and in none of the articles, the traces of any poison or pesticide were traced. Therefore, the alleged voluntary statement of the accused that they had purchased the pesticide from the shop of PW9 is falsified and not believable. In other words, he contends that voluntary statement itself is plagued, inconsistent and therefore, it is totally unreliable.
24. He also contends that the cross-examination of Medical Officer who conducted autopsy on the body of the deceased disclose that the injuries sustained on the head of the deceased could be caused even by a fall. He contends that at the intervention of somebody or on his own by the deceased, he might have fallen on the stony surface at the plantation when he had come there with liquor and food. Therefore, he contends that the very homicide itself is not conclusively established by the prosecution. He submits that the death of the deceased is unclear and as such, it cannot be concluded that it is a homicidal death.
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25. He further argues that even the identification of the body by PW10, who is father of the deceased is also not believable as it is unnatural. Obviously, he had seen the body of the deceased after exhumation and he had identified on the basis of the pieces of the bermuda worn by the deceased which is totally unnatural. He contends that withdrawal of money by accused No.1 from the bank account of the deceased is again smeared with inconsistencies. He submits that the evidence of handwriting expert cannot be conclusive evidence to show the forgeries etc., committed by the accused. He submits that first of all the prosecution has to prove that the accused was present in the bank, i.e. SBI, Sirsi and had presented the said withdrawal slips along with passbook, then alone it can be said that he had withdrawn the money. Simply because accused No.1 had deposited about `10,000/- into his Syndicate bank account, it cannot be concluded that the said money was withdrawn from the account of the deceased at SBI, Sirsi. He also contends that the evidence of the expert is only an opinion and it can only 26 be corroborative piece of material for other substantial evidence, but it cannot take place of a substantial evidence.
26. He points out that the passbook alleged to have been seized by the investigating officer is not produced before the trial Court. Therefore, he contends that when the passbook is not available, it cannot be said that accused No.1 presented the withdrawal slips to the SBI. He also points out that the concerned officer who passed the withdrawal slip for encashment has deposed that since the money was smaller amount, he did not carefully compared the signature on the withdrawal slip with the specimen signatures kept in the bank. Therefore, he contends that withdrawal of the money by accused No.1 from the bank account of the deceased is doubtful and it cannot be accepted. Therefore, on these grounds, he contends that the judgment of acquittal by the trial Court is justifiable.
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27. In support of his contention, he relied on the decision in the case of Nizam and Another vs. State of Rajasthan5, wherein in para 18 it has observed as below:
"18. In view of the time gap between Manoj being left in the truck and the recovery of the body and also the place and circumstances in which the body was recovered, possibility of others intervening cannot be ruled out. In the absence of definite evidence that appellants and deceased were last seen together and when the time gap is long, it would be dangerous to come to the conclusion that the appellants are responsible for the murder of Manoj and are guilty of committing murder of Manoj. Where time gap is long it would be unsafe to base the conviction on the "last seen theory"; it is safer to look for corroboration from other circumstances and evidence adduced by the prosecution. From the facts and evidence, we find no other corroborative piece of evidence corroborating the last seen theory."
28. Then he relied on the decision in the case of Satye Singh and Another vs. State of Uttarakhand6, where again the Apex Court has reiterated the requirement of all the circumstances being proved to form a continuous link. It has relied on the decision in the case of Sharad Birdhichand 5 (2016) 1 SCC 550 6 (2022) 5 SCC 438 28 Sarda vs. State of Maharashtra7, wherein it has held as below:
"153. A close analysis of this decision would show that the following conditions must be fulfilled before a case against an accused can be said to be fully established:
(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established.
It may be noted here that this Court indicated that the circumstances concerned 'must or should' and not 'may be' established. There is not only a grammatical but a legal distinction between 'may be proved' and 'must be or should be proved' as was held by this Court in Shivaji Sahabrao Bobade & Anr. v. State of Maharashtra where the following observations were made: (SCC p.807, para 19) "19 .... Certainly, it is a primary principle that the accused must be and not merely may be guilty before a court can convict and the mental distance between 'may be' and 'must be' is long and divides vague conjectures from sure conclusions."
(2) The facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say. they should not be explainable on any other hypothesis except that the accused is guilty, (3) the circumstances should be of a conclusive nature and tendency.
(4) they should exclude every possible hypothesis except the one to be proved, and (5) there must be a chain of evidence so complete as not to leave any reasonable ground for the 7 (1984) 4 SCC 116 29 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."
29. Again the Apex Court had chronicled the requirements of the linkage of all the chain in the circumstances as a sine-qua-non where the prosecution seeks to prove the guilt of the accused on circumstantial evidence.
30. Learned counsel appearing for accused Nos.2 and 3, Sri.T.R.Patil has contended that accused Nos.2 and 3 have been implicated only on the basis of voluntary statement of accused No.1. When the voluntary statement of accused No.1 is unclear as to what transpired between 07.02.2011 and 09.02.2011, the involvement of accused Nos.2 and 3 has to be termed to be doubtful.
31. Secondly, he contends that nothing had been recovered from the tempo trax belonging to accused No.2. Accused No.2 was a customer of PW8, bar owner and therefore, it cannot be said that he had purchased the liquor only on 09.02.2011 and there is nothing in the evidence of PW8, which shows that he had identified the accused to have 30 purchased the liquor on the morning of 09.02.2011. He also points out that even PW9, who is owner of the pesticide shop has not identified accused No.2, but he only stated that he was a customer. Moreover, the evidence of PW9 is totally irrelevant in view of the fact that RFSL report shows that there were no traces of any pesticide either in the body of the deceased or in the liquor bottles found at the spot. Therefore, he contends that even though PW12 and PW5, who were the panchas of the recovery panchanama had turned hostile to the prosecution to some extent, the evidence of PW8 and PW9 per se would not be of any help to the prosecution.
32. Learned counsel appearing for accused No.4 has contended that the recovery of the mobile phone has not been established by the prosecution. He submits that there is no proof that accused Nos.3 and 4 were using the mobile phones of the deceased. There is absolutely no material on record to show that they had used the mobile phone of the deceased Manoj from 09.02.2011 till the date of their arrest which was about 15 days later. Therefore, in the absence of any material to show that accused No.1 had any friendship with accused 31 Nos.2 to 4, and in the absence of any call details between them and the nexus between accused No.1 and accused Nos.2 to 4, it would not be proper to implicate accused Nos.2 to 4 in any way. In that respect, he had adopted the arguments of learned counsel for accused No.1.
33. In the light of the above submissions by the learned counsel appearing for the appellant in Criminal Appeal No.100026/2018 and learned High Court Government Pleader for State and also learned counsels for the accused in both the matters, it is necessary to appreciate the evidence on record. The question regarding homicide:
34. At the first instance, the prosecution depends upon the evidence of PW1 and PW2 and medical evidence available on record to show that the death of the deceased Manoj was a homicidal death. Evidently, PW1 and PW2 have stated that they received an information that there was fire in the plantation and therefore, they went there and after dousing the fire, they saw that there was a half burnt body of a youth aged about 25-30 years. Therefore, they informed 32 the police and PW39 - S.M.Nagaraj, went to the spot. The inquest mahazar of the body of the deceased was conducted on the next day morning as per Ex.P4. PW4 was the pancha for the same. PW4 has stated that he was present when Ex.P4 was drawn at the spot. In the cross-examination, it was elicited that Ex.P4 was written earlier to he went to the spot. PW2 was also signatory to the inquest mahazar. Though they have stated that they were present at the time of mahazar, they do not know the contents of the same. The perusal of Ex.P4 - inquest mahazar discloses that there was injury on the head of the deceased on the right side and the scalp was exposed.
35. The next material regarding the nature of injuries found on the body of the deceased is the autopsy report prepared by the Medical Officer i.e. PW15 - Dr.Jayanand. The postmortem report is at Ex.P62 and Ex.P63. In Ex.P62 it is noted that there was lacerated injury over the right side of the forehead above the eyebrow measuring 2 x ½ bone deep and there were burns over the scalp, face, chest, upper extremities exposing the muscles of arm and bones of hands. 33 It was also noticed that both the lateral surfaces of the chest were burnt and burns present on the lower abdomen anterior aspect measuring 6 x 3 inches. It was also noticed that the back and buttock had also sustained burns, both thighs were having burns sparing some part of both anterior region, posterior region both thighs completely burnt with skin issues and burns over left leg as well as left leg and the internal injuries indicated that subdural diffused hemorrhage present and hyoid bone intact. The final report which was given by him after examining RFSL report concerning the viscera showed that the death was due to injury to the brain and 80% of the ante mortem burns sustained associated with consumption of alcohol.
36. PW15 admitted that such injury may happen if a person falls with force on a stony surface and he had sent the viscera to the RFSL since he could not immediately come to conclusion about the cause of death. He also admitted that subdural hemorrhage may also occur due to the hemorrhage on account of the burn injuries. The line of cross-examination discloses that a person who is intoxicated and lit the cigarette 34 which falls on the dried leaves in the forest area, there may be burns and while running the deceased may have fallen loosing his balance under intoxication of the liquor. Therefore, the medical officer has admitted about this possibility.
37. The complaint lodged with the Police and evidence of PW-1 and PW-2 shows that when they saw the half burnt dead body by the fire, some Nilgiri (Eucalyptus) tree logs (branches) were found piled on the body of the deceased. The said act cannot happen in the circumstance of the case, without the human intervention. Further, the alternate possibilities of occurrence of the injuries found on the body of the deceased as suggested to PW-15 the Doctor, involves several chance factors, the occurrence of all of them in a series also cannot be presumed unless some probability is shown. Though for a homicidal death, the involvement of a third party human agency is required, however, in several cases, the nature of the injuries found on the body of the deceased and circumstances of the case would show that the death is homicidal. In the instant case, the nature of the injury found on the deceased, the dead body being found in a 35 burning fire with tree branches/wooden logs found piled up on the dead body and a series of incidents to occur as a chain which is hardly possible to cause injuries and fire on the body only leads to hold that the death was homicidal.
38. The next aspect would be to consider the various circumstances as contended by the prosecution/appellants. The first circumstance is in respect of the motive for commission of the offence.
39. PW19/CW22 Jyoti deposed that her husband is working in foreign country since 19 years and she used to stay in her parents house at Sirsi and the deceased Manoj is their relative. She stated that accused No.1 used to call her over the mobile phone and proposed to love her and then she refused by saying that she is married and has a son. She further stated that inspite of her refusal, accused No.1 used to call her frequently and about 4-5 years back when accused No.1 had demanded `2,000/- and `3,000/- from her saying that he was admitted in hospital, she has paid the amounts to his bank account. It is pertinent to note that PW19 do not say 36 that initially she knew accused No.1, but says he was introduced by somebody else. She pleads ignorance that accused No.1 had murdered the deceased Manoj. This evidence shows that she has not supported the prosecution's case fully and therefore, she was cross-examined by treating as a hostile witness.
40. In the cross-examination, nothing is elicited which go to show that the deceased Manoj was also having a relationship with her. She denied the suggestion that she had visited Hubballi with accused No.1 and they were moving to the parks and watching movies.
41. It is worth to note that to some extent the evidence of PW19 discloses that she knew accused No.1 and even she had paid certain amounts to accused No.1. But, her evidence regarding her acquaintance with the deceased is totally missing. Nothing is elicited to show that the deceased Manoj was also visiting her house and there was reason for accused No.1 to suspect that the deceased Manoj was having an affair with PW19. Even if we infer from the half-hearted 37 testimony of PW19 that she was having some kind of relationship with accused No.1, such inference is not possible to be drawn regarding her relationship with the deceased. There is no evidence also from PW19 which show that her acquaintance with Manoj was known to accused No.1 herein. Therefore, the contention of the prosecution that it was a triangular love affair is not established conclusively.
42. The evidence of PW18, who is mother of the deceased and the evidence of PW10, who is father of the deceased and appellant in Criminal Appeal No.100026/2018 also do not establish that the deceased Manoj was visiting the house of PW19 frequently.
43. The evidence of PW18/Saroja discloses that the police had informed her that the accused No.1 and PW19 were loving each other and the accused No.1 felt that the deceased- Manoj would come in the way of their love affair and therefore, accused No.1 killed the deceased-Manoj. It is evident that the PW18 has no knowledge of the said triangular love affair between accused No.1, PW19 and the deceased- 38 Manoj. Therefore, the motive for commission of the offence is not proved by the prosecution conclusively. It is elicited only one side of the motive that accused No.1 and PW19 were having some sort of relationship but there is absolutely no material to show that the accused No.1 had reason to believe that the deceased would come in the way of their love affair. None of the neighbours, who knew the deceased visiting the house of PW19 or any sort of such evidence is available on record. Therefore, the motive appears to be solely on the basis of the voluntary statement of the accused No.1. There are no corroborative evidence which are brought on record to show that accused No.1 had such a motive and committed the offence.
44. The second circumstance which is highlighted by the prosecution and the appellant-father of the deceased is that the accused No.1 and the deceased-Manoj were last seen together before the death of deceased-Manoj. The appellant and the prosecution rely on the testimony of PW6, PW7, PW25 and PW18 in this regard.
39
45. The PW6-Chetan Mesta states that he knew the deceased-Manoj as they were going together to college. He states that once he has seen the accused No.1 with the deceased-Manoj at Sirsi and it was about five years prior to his deposition before the Court. He deposed before the Court on 17.07.2014 that he had seen the accused No.1 with the deceased in 2009. Thereafter he had not seen the accused No.1 and the deceased together at any point of time. He states that on 06.02.2011, the deceased had informed his mother that he would go to the room of his friends and then he learnt that on 07.02.2011 he had met PW7-Narayan and asked him to handover his bike to his family members. It is the case of the prosecution that the deceased came out of his house saying that the he would go to the room of his friend and on 07.02.2011, deceased, accused No.1 and accused No.5 came near Savita Hotel of PW7, which is near the Bus Stand at Sirsi, and the deceased-Manoj informed PW7 to drop his motorbike at his residence later, as he is going to Hubli with accused No.1. But the evidence of PW6 discloses that he came to know about it at a later point of time and he had not seen 40 the accused No.1 and the deceased on 06.02.2011 or 07.02.2011. He states that he tried to call the deceased for two-three times, but the deceased did not receive the call and later the mobile number was switched off. Rest of his evidence is hearsay and therefore, is not of much relevance. This evidence of PW6 also does not disclose that he had seen the deceased in the company of accused No.1 on 06.02.2011 or on 07.02.2011 at about 12.00 noon.
46. PW7-Narayan states that he runs a hotel near bus stand at Sirsi and on 07.02.2011 at about 12.00 noon, the deceased came to his hotel and parked his motorcycle saying that his motorcycle may be fetched to his house as he is going to Hubli with his friends. He states that his friends were also standing in front of his hotel, but he is unable to identify them. He states that after 6.00 p.m., in the evening, he has dropped the motorcycle of the deceased at his(deceased) house. He states that the deceased only informed that he is going to Hubli with one 'RD' as he is arranging a job for him. He also described that the deceased was wearing a maroon colour T-shirt and blue pant. Then he came to know on 41 25.03.2011 from the police that the Manjoj (deceased) had been murdered. He has identified M.O.9 and M.O.10 which are the clothes of the deceased. He was treated as hostile by the prosecution as he did not fully support the case of the prosecution and in the cross-examination he denied that he had seen accused No.1 on that day.
47. PW25-T.T.Raju happens to be another acquaintance of the deceased, aged about 51 years and he states that on 07.02.2011 at 12.00 in the noon when he was near Savita Hotel, accused No.1 and deceased-Manoj were there and he talked to both of them. He states that the deceased informed him that the accused No.1 is arranging a job for him at Hubli and therefore, he is going with him. He states that thereafter he came to know about the death of deceased-Manoj and he identified M.O.9 a maroon colour T- shirt. The cross-examination is only of denial. It is pertinent to note that how the investigating officer came to know that PW25 had met the deceased and accused No.1 is not known. It seems the investigating officer went on fishing for the people who had seen the deceased and then came to know 42 about PW25. There is no evidence from the investigation officer i.e., PW40 as to how he came to know about PW25 talking to the accused No.1 and the deceased on 7-2-2011. Thus, what we have on record is only the evidence of PW25 to conclude that the deceased was last seen together with accused No.1 on 07.02.2011 at about 12.00 noon in front of Savita hotel at Sirsi.
48. Even the evidence of PW18, the mother of the deceased, discloses that the deceased had left the house on 06.02.2011. It appears that on 06.02.2011 the deceased did not return to his house but stayed somewhere at Sirsi. PW18 states that the deceased had gone to the room of his friends. It is not known who his friends were and where he stayed on 06.02.2011. She states that while the deceased was going, he had taken his ATM card, Identity card and bank passbooks with him. She also states that accused No.1 is called as 'RD'. She states that deceased did not return and even after return of her husband- Aravind Netrekar (PW 10) to the house, he also tried to call the deceased but was unable to contact him. She states that when PW25- T.T Raju had met PW10-Aravind 43 Netrekar, he had disclosed that the deceased had gone with accused No.1 regarding job. Conspicuously, PW10 did not mention that PW25/CW17 had disclosed to him that he had seen the deceased-Manoj and the accused No.1 together. The evidence of PW10 also discloses that PW7-Narayan had informed him that accused No.1 had taken the deceased with him to Hubli. This say of PW10 is not corroborated by the evidence of PW7.
49. Therefore, what is available on record is only the uncorroborated evidence of PW25 and the hearsay evidence of PW10 and PW18, which disclose that accused No.1 and the deceased were seen together on the afternoon of 07.02.2011.
50. The death of deceased-Manoj was disclosed on the evening of 09.02.2011. More than 48 hours had lapsed after the deceased had allegedly left Sirsi with accused No.1. It is pertinent to note that none of the witnesses have supported the involvement of accused No.5 who also was allegedly with accused No.1. There is absolutely no material on record to show that whether the accused No.1 and the deceased-Manoj 44 stayed at Hubli and when they reached Dharwad on the morning of 09.02.2011 and at what time they left to Kittur to reach the plantation for a liquor party. The lapse of 48 hours is totally a blackout from the prosecution evidence. These 48 hours are crucial to know whether the accused No.1 and the deceased were together or whether they had parted after reaching Hubli. Unless this aspect is brought before the Court, the 'last seen together' theory at Sirsi is not complete. The gap between 12.00 noon of 07.02.2011 till 3.00 p.m. of 09.02.2011 had various occasions/possibilities for the intervention of any other third party. Where they stayed at Hubli and whether they moved to Hubli on 07.02.2011 and 08.02.2011 plays a vital role. There is absolutely no material available on record in this regard. Therefore, under these circumstances, the contention of the learned counsel for the appellant in both these appeals that the prosecution has proved the fact that the accused No.1 and the deceased-Manoj were together immediately prior to the incident and therefore, the accused No.1 was bound to explain these circumstances cannot be accepted. The burden of explaining the 45 circumstances shifts on the accused No.1 only if the basic facts are shown and when there was no such intervention of any third party in between the time of death and the accused No.1 and deceased-Manoj seen together lastly.
51. Another matter which needs to be noted is that the distance between Sirsi to Hubli is about 100 Km and to Kittur, the place of incident, it is about 50 km. Therefore, the fact that they were together for all along this distance of 150 kms for more than 48 hours cannot be a circumstance of last seen together. It is not that the evidence could not have been gathered in this regard. The alleged voluntary statement of the accused is totally silent about these 48 hours and place where the accused No.1 and deceased-Manoj stayed at Hubli for two nights. It is also not difficult to gather information on the basis of the mobile phone locations and the calls that emanated from the phone of the deceased to establish this aspect. Therefore, the best evidence that could have been gathered by the prosecution is not available before this Court. For this reason also the contention of the prosecution that the accused No.1 and the deceased-Manoj were seen together 46 lastly and therefore, the accused No.1 is bound to explain the circumstance cannot be accepted.
52. The third circumstance contended by the appellants is regarding the withdrawal of money from SBI Sirsi after the death of deceased-Manoj. The CW6 and CW7 who were examined as PW4 and PW13, respectively, are the witnesses for the mahazar which was drawn at Kittur police station at the time of seizing the documents. They were also witnesses for the mahazar which is at Ex.P16 drawn at Hindalga jail while obtaining the signatures and handwritings of the accused No.1. The police constable-PW24/Ishwar Bagawad had brought the documents from SBI and Syndicate Bank, Sirsi along with CDs of CCTV footages. Obviously these CCTV footages could have been of immense value to show that the accused No.1 had visited the SBI in order to withdraw the money.
53. It is pertinent to note that though the CD was seized and an effort was also made to open and play the same, but it failed to play.
47
54. PW14-Prakash Kalluraya stated that he was Assistant Manager at SBI and he had furnished the documents like account opening form, account statement etc., of the deceased and he stated the manner in which the money was drawn on 21.01.2011 and 23.02.2011 under the withdrawal slips at Ex.P17 and Ex.P18. He states that due to work pressure and the fact that the person withdrawing the money had presented withdrawal slip along with passbook and also that the money was a meager amount, the signature was not verified meticulously. Therefore he passed the withdrawal slip and the money was paid by the cashier i.e. PW17. An effort was made by the Court to open and play the CCTV footage but the CCTV footage could not get open as the format in which it was prepared was not known. The Court had adjourned the matter and even after eight months, it could not be opened and therefore, the prosecution closed the further examination of the said witness. Therefore, the prosecution is now depending only on the handwriting expert's opinion. While accused No.1 was in Hindalga jail, the investigating officer obtained admitted handwriting and signatures of accused No.1 48 in the presence of panchas and also jailer and then sent Ex.P17 and Ex.P18 along with sample signatures and handwriting obtained from accused, to the handwriting expert. The handwriting expert examined the same and has given her report as per Ex.P91. In the report, it was mentioned that the person who wrote the admitted handwritings marked as S1, S13 and S14 which are on Ex.P84 and Ex.P85 was the person who wrote the writings marked at Q1 and Q4, which are at Ex.P17 and Ex.P18. The second opinion of the expert is that the person who wrote the signatures marked as S2 did not write the questioned signatures as Q2, Q3 and Q5 on Ex.P17 and Ex.P18. These two opinions disclose that the writing allegedly belonging to the deceased on Ex.P84 and Ex.P85 were tallying with the writings on Ex.P17 and Ex.P18. The third and fourth opinion in Ex.P91 shows that the person who wrote the standard writings as S3, S5, S7, S9, S11, R1, R4, R6, S4, S6, S8, S10, S12, R3, R5 and R7 also wrote the questioned writings and signatures marked as Q1, Q4 and R6. In other words, the admitted writings of the accused No.1 which were obtained by the Investigating Officer at the jail at 49 Hindalga tallied with the writings found on Ex.P17 and Ex.P18, which are the withdrawal slips presented to the bank. It was also opined that it was not possible to fix the authorship of the questioned signatures marked as Q2, Q3 and Q5 on Ex.P17 and Ex.P18 since they are produced by means of imitation. It is this opinion gains importance and do not give conclusiveness to the fact that the signatures on Ex.P17 and Ex.P18 were made by the accused No.1 only. It is for this reason that the Court would need a corroborative material to show that accused No.1 himself had presented the withdrawal slips to the bank on 21.02.2011 and 23.02.2011. It is for this reason, the CCTV footages would have been of vital importance. Unfortunately, even though the investigating officer has secured CDs of the CCTV footages from the bank, it was not presented to the Court in a readable format at the time of the evidence. This renders a vital piece of evidence being rendered useless. If the accused No.1 was shown to have presented the withdrawal slips at Ex.P17 and Ex.P18 to the Bank to withdraw the money from the account of the deceased-Manoj, it would have put the accused No.1 in the 50 dock and he would have to explain the circumstance. Even after an effort by the Court to ascertain the CCTV footage, it could not be opened.
55. In this regard, it appears that certain directions need to be issued to the Courts which we would consider at later part of the judgment. In view of the discussions made above, the circumstance that the accused No.1 had withdrawn the money from the account of the deceased-Manoj is not established conclusively.
56. The fourth circumstance contended by the prosecution is that the accused No.2 had purchased liquor from PW8 to intoxicate the deceased and eliminate him. PW8 states that it was in March, 2011 and he does not identify the accused No.2. Obviously the incident had occurred in the month of February 2011 and therefore, the evidence of PW8 is not of any assistance to the prosecution.
57. The fifth circumstance contended by the prosecution is that accused No.2 has purchased pesticide from PW9 to mix the same with the liquor to make the deceased 51 consume the same. PW9 states that the accused No.2 was his regular customer and he did not specifically state which pesticide he had purchased. Moreover, the RFSL report at Ex.P63 does not show the presence of the pesticide in any of the viscera or the liquor bottle found at the spot. Therefore, the examination of PW9 is of no relevance for the prosecution. It is only the allegation in the air and without any basis. In fact, there was no necessity of examining PW9 before the Trial Court when the RFSL report indicated that there were no traces of any intoxication in the viscera of the deceased.
58. The other circumstances contended by the prosecution are that the Tempo trax of the accused No.2 was used for going to the spot while the crime was perpetrated. The trax had no incriminating material on it and obviously it was seized after more than two months of commission of the offence. It is also pertinent to note that the movement of the vehicle to the spot is also not tracked or traced. It is not known whether the investigating officer had made any effort to verify the tolls etc. Therefore, the seizure of the trax is also of no relevance for the prosecution.
52
59. It is alleged that the accused No.3 and 4 had kept the mobile phones of the deceased-Manoj with them after eliminating him. The PW5 and PW12 are the mahazar panchas and PW5 has turned hostile to the mahazar marked at Ex.P99. It is evident that the place of seizure of the mobile is police station. Obviously the mobile phones were produced by the accused No.3 and 4 in the police station. It is relevant to note that the mobile phones have been identified by the PW10 and PW18. However based on IMEI number of the mobile phones, which are at M.O.18 and M.O.19, the location of the said phones on the date of the incident could have been traced. It is also pertinent to note that the investigating officer despite obtaining the call detail records at Ex.P93, the certificate as required under Section 65-B of the Evidence Act was not produced. Therefore, either the CD or the call details do not have any evidentiary value. The decision of the Hon'ble Apex Court in the case of Arjun Panditrao Khotkar vs. Kailash Kushanrao Gorantyal8 lays down that as of now the requirement of Section 65B(4) of the Evidence Act is 8 (2020) 7 SCC 1 53 mandatory though there is a need for re-look into the matter. The ratio laid down in the Anwar P.V. Vs. P.K. Bashir and others9 has been reiterated by the Hon'ble Apex Court. In the said decision, it is held as under:
"61. We may reiterate, therefore, that the certificate required under Section 65-B(4) is a condition precedent to the admissibility of evidence by way of electronic record, as correctly held in Anvar P.V. v. P. K. Basheer10, and incorrectly "clarified" in Shafhi Mohammed v. State of H.P.,11. Oral evidence in the place of such certificate cannot possibly suffice as Section 65-B(4) is a mandatory requirement of the law. Indeed, the hallowed principle in Taylor v. Taylor12, which has been followed in a number of the judgments of this Court, can also be applied. Section 65-B(4) of the Evidence Act clearly states that secondary evidence is admissible only if lead in the manner stated and not otherwise. To hold otherwise would render Section 65-B(4) otiose."
60. Therefore, the Ex.P93 could not have been admitted in evidence by the Trial Court. However, in the judgment, the Trial Court has observed that the certificate as required under 9 (2014) 10 SCC 473 10 (2014) 10 SCC 473 11 (2018) 2 SCC 801 12 (1875) LR 1 Ch D 426 54 law has not been produced and therefore, it is to be eschewed from the evidence.
61. Apart from the above circumstances which are not satisfactorily established before this Court, we need to observe that the scratch card which was found at the spot of the incident and marked as M.O.8, was instrumental in tracing relatives of the deceased-Manoj. It is pertinent to note that the investigating officer contacted Vodafone Company and ascertained the mobile phone number to which the said scratch card was recharged. There is absolutely no material before this Court, which show that the said scratch card was recharged to the mobile number of the deceased. Therefore, this vital evidence, which was in the hands of the investigating officer has not been placed before the Court. The second aspect is that the passbook which was allegedly seized from the custody of the accused is also not placed before the Court. The passbook was used by the accused No.1 to present the withdrawal slips to the Bank at the time of withdrawing the money. The bank official states that the withdrawal slip was present along with the passbook but the passbook is not 55 available before the Court to establish that the accused No.1 actually possessed the passbook of the deceased and the withdrawal entries were made in it at the time of withdrawal.
62. For these reasons, we come to the conclusion that the prosecution has failed to establish all the circumstances to show that the accused No.1 'should be' and 'must be' the perpetrator of the crime. In the chain of the circumstances, the link as to where the deceased and the accused No.1 stayed; particularly the gap of more than 48 hours from 12.00 noon of 07.02.2011 till 3.00 p.m. of 09.02.2011, is not established. There is possibility of intervention by third party during this period and the deceased may be in the company of those people also. Therefore, the prosecution was unable to establish the involvement of accused No.1 to 4 in the crime. In view of the above, the appeals fail and are to be dismissed.
63. Before parting, we feel certain observations are to be made. While expressing our deep anguish for not presenting the evidence before the Court in a proper manner as required under law, it is necessary to observe that in large number of cases, the CC TV footages obtained in the form of 56 CD which is a secondary evidence, need to be supported by a certificate under Section 65-B(4) of the Evidence Act and such certificate is never produced by the prosecution. It is also relevant to note that in the decision of Arjun Panditrao the Hon'ble Apex Court has observed that a certificate as required under Section 65-B(4) of the Evidence Act also be produced while tendering such electronic evidence in evidence. Therefore, when the evidence is being tendered before the Court such a certificate could have been produced by the prosecution but no such effort has been made. The second aspect which we note is that the CD, though it was produced before the Court was not opening or playing when an effort was made by the Trial Court. The file-format in which the CCTV footages are recorded depends upon the manufacturer of such device.
64. Therefore, such software tool could also have been made available in the same CD so that at later point of time, such tool is available to play the clipping. In this regard, it is necessary that certain directions have to be issued to all the 57 Courts and the investigating department. This would prevent any damage to the media also.
65. We also notice certain lapses in the investigation, which mainly include:
1. Not collecting any details and not placing any material to show as to what transpired and took place from the date of the deceased last found in the company of the accused No.1 till the burnt dead body of the deceased was found after three days; and to ascertain whether the accused No. 1 continued to be in the company of the deceased till the homicidal death of the deceased.
2. Certificate under Section 65-B of the Evidence Act not collected;
3. CD of the alleged CCTV footage which was very crucial in the matter was not in the readable format;
4. No effort was made to collect the location details of the mobile of the deceased and the accused No.1 from the date of last seen together till the homicidal death;
5. Not producing the Bank passbook of the deceased that is said to have been collected from the accused No.1, which was vital to ascertain the withdrawal of money by the accused No.1; and 58
6. The details regarding the recharging of the scratch card said to have been found with the body of the deceased.
66. This Court in Madhukara alias Madhu alias Mallesha Vs State of Karnataka, by Vinobanagara Police Station, Shimoga13 had issued ten directions to the Courts as well as to the police stations regarding precautions to be taken at the time of securing and admitting electronic records. The same reads as below:
"Before concluding, we have observed that the compact disc produced before the Court is virtually stitched by the Trial Court officials along with the paper. .............. Even the investigating officers whenever they collect the electronic evidence during the course of investigation, they have to preserve it in a proper manner and keep them in custody in an anti-static envelope, away from humidity, heat etc. Therefore, we prefer to set down certain guidelines in this regard, which are as follows:
(1) All the concerned in each stage has to take proper precautions for search, seizure, packing, labeling, sending the digital evidence to expert, submitting to the Trial Court with proper custody.
(2) Investigating agency has to make efforts to disable security settings like PIN, Password, Pattern Lock, Finger Print etc., before seizure procedure so that it should not create further obstruction/hurdle at any stage for the purpose of perusal, analysis of electronic gadgets. (3) The media containing the electronic record should be submitted by the investigating officer in a sealed and secured manner to the Court. Before that, the investigating officer has to keep the copy of the said electronic evidence in their computers, so that even if the compact disc or any electronic 13 ILR 2019 Kar 1086 59 gadget produced before the Court, if for any reason is destroyed or corrupted, the copy which was preserved by the Police can be used as secondary evidence before the Trial Court.
(4) The media viz., CD/DVD/Pendrive/Hard Disk/Magnetic device etc., shall be preserved in antistatic envelope, away from humidity and heat in a proper manner even before the same is produced before the Court and after production the Court should also take care to keep them in proper manner till the said evidence is admitted by the Court during the course of the evidence.
(5) It has to be ensured that such media do not get damaged due to the packing, sustain scratches (if optical) in any way while handling the file.
(6) Concerned Government Authorities and the High Court have to take strict measures to provide Proper training to the investigating officers and also the concerned staff, Judicial officers and staff of the Court with reference to packing and preserving the media for future use and retrieval of the contents of the said electronic media, as and when required, so that it would safely exist till the case is logically concluded.
(7) The copy of the electronic record shall be kept in the server or in the PC of the concerned Police Station or the PC provided to the concerned investigating officer and also the PC provided to the concerned Court for reference as back up.
An endorsement should also be made in the order sheet in this regard or in the case diary, as the case may be. (8) As soon as an electronic record is admitted in evidence, a copy of the relevant portion be stored in the concerned folder of the said case in a separate media and also stored in the PC in a separate drive so that a back up is preserved for future reference, even if for any reason hard disk/C.D. is destroyed or gets corrupted or rendered un-readable. (9) The electronic media shall be kept in safe deposit with the Chief Ministerial Office of the Court with a direction to preserve it in proper manner till the case is logically concluded.
(10) Experts at FSL also if possible have to retain a copy of mirror image, extracted data with evidentiary value with proper labeling, which may be used as a secondary evidence at any point of time.
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67. While reiterating the above observations, we would like to add few more guidelines till either specific rules are formulated or any such guidelines are issued in this regard.
1. The word 'Media' in this guidelines refers to Electronic Record viz., CD/DVD/Pen Drive/Hard Disk / Magnetic Tapes, etc., or any other device which is used to store the information in digital form.
2. Whenever an electronic record is produced in the form of media, invariably the tool in which it could play/open should also be documented either in the mahazar or in chargesheet and a copy of such electronic record should also be kept by the investigating officer in the computers of the police station by referring to the Crime number in which it was secured and when the media is presented to the Court, the Court staff should also make a copy of it and enable to store it in the system of the Court.
3. To maintain the authenticity of such electronic record, it is advisable to record the hash value and the tool used for creating hash value in the mahazar/seizure memo/chargesheet.
4. When the Electronic Record/Media is produced along with the Charge Sheet or separately, the CAO/CMO must verify the Media to rule out any physical damage or apparent tampering such as breakage, scratches, etc., and ensure its readability and make an endorsement in the concerned records to that effect.
5. If the Electronic Record/Media is produced in a sealed cover; under the orders of the court, open the sealed cover and ensure its readability as aforesaid.
6. It is advisable to insist for the certificate u/Sec. 65-B of IEA with each secondary electronic evidence, at the time of filing Electronic Record in the Court. It is also advisable to give a consecutive electronic Record No. In that case like CD1-2... or PD 1-2... etc.
7. After receiving such Electronic Record/Media, and opening the sealed cover if any as above, the same should to played to satisfy about its contents and quality and the content shall be copied by the responsible Court staff in the Computer provided to the Court concerned, 61 for reference and also for backup and shall be made available to the Court as and when required.
8. If any Electronic Record/Media is produced during the pendency of a case, the above mentioned procedures shall be followed.
9. The Court officials concerned are to be trained in the matter of handling, playing, copying/burning of CD/DVD, or such procedure regarding handling of Electronic Record.
10. Whenever the Electronic record or media is produced in a Criminal case by a party, such party shall supply copies of the same to the other side in adequate numbers and they shall be part of the documents supplied u/s 207 CrPC.
11. After disposal of the case, the Electronic Record/Media is to be preserved safely without giving room for its breakage, scratch, tampering, etc., for the benefit of the appellate Courts.
68. In view of the above said facts and circumstances; we proceed to pass the following:
ORDER
1. Both the appeals are dismissed.
2. Further, the Registry is hereby directed to circulate a copy of this judgment to: (i) All the Judicial officers; (ii) The Director General and Inspector General of Police; to look into the lapses and take care as to how the electronic evidence collected by the Police during the course of investigation shall be preserved and how the Courts have to preserve the electronic evidence after 62 receiving the same before the Court till the case is logically concluded.
3. Registry is also hereby directed to send a copy of this judgment to: (1) The Chief Secretary to the Government of Karnataka; and (2) The Principal Secretary to the Home Department; with a direction to circulate it to all the Investigating Agency and also to take appropriate action and measures to enhance their capacities.
Sd/-
JUDGE Sd/-
JUDGE YAN/SH