Karnataka High Court
Shankara vs State By Kunigal on 6 February, 2024
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NC: 2024:KHC:5081-DB
CRL.A No.2166/2016
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 6TH DAY OF FEBRUARY, 2024
PRESENT
THE HON'BLE MRS JUSTICE K.S.MUDAGAL
AND
THE HON'BLE MR JUSTICE VENKATESH NAIK T
CRIMINAL APPEAL NO.2166/2016 (C)
BETWEEN:
SHANKARA
S/O VENKATARAMAIAH
AGED ABOUT 47 YEARS
R/AT HITHALAHALLI,
KASABA HOBLI
KUNIGAL TALUK
TUMKUR DISTRICT
PIN CODE-572 130 ...APPELLANT
(BY SRI.B.C RAJANNA.,ADVOCATE)
AND:
1. STATE BY KUNIGAL
POLICE STATION,
TUMKUR DISTRICT
PIN CODE-572 101
Digitally signed
by PRABHU 2. SMT. PREMA
KUMARA
NAIKA W/O SRINIVASA K.M
Location: High AGED ABOUT 49 YEARS
Court of R/AT KADARAPURA VILLAGE
Karnataka
KASABA HOBLI
KUNIGAL TALUK
TUMKUR DISTRICT-572 130 ...RESPONDENTS
(BY SRI. VIJAYAKUMAR MAJAGE,SPP-II A/W
SMT. SOWMYA.R, HCGP FOR R.1.)
THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374(2) OF
THE CR.P.C. PRAYING TO SET ASIDE THE JUDGMENT OF
CONVICTION AND ORDER ON SENTENCE DATED
28.11.2016/29.11.2016 PASSED BY THE III ADDITIONAL SESSIONS
JUDGE., TUMKUR IN SPL.C.NO.132/2015 - CONVICTING THE
APPELLANT/ACCUSED NO.1 FOR THE OFFENCE PUNISHABLE UNDER
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CRL.A No.2166/2016
SECTIONS 341,302,201 OF IPC AND SEC.8 AND 18 OF POCSO ACT,
2012.
THIS CRIMINAL APPEAL IS COMING ON FOR FURTHER
HEARING, THIS DAY, K.S. MUDAGAL J., DELIVERED THE
FOLLOWING:
JUDGMENT
Challenging the order of conviction and sentence passed against him, accused No.1 in Special Case No.132/2015 on the file of the III-Additional District and Sessions Judge, Tumkuru, has preferred this appeal.
2. Appellant and accused No.2-Suresh were prosecuted in Special Case No.132/2015 on the basis of the chargesheet filed by Kunigal Police in Crime No.47/2015. Crime No.47/2015 was registered initially against unknown persons on the basis of the complaint as per Ex.P7 filed by PW.4. For the purpose of convenience, the parties are referred to henceforth according to their ranks before the trial Court.
3. The case of the prosecution in brief is as follows:
(i) Victim X (for the purpose of confidentiality, the name of the victim is mentioned hereinafter as 'X') as on 23.02.2015 was aged 11 years. She is the daughter of CW.7.
PW.4 and PW.5 are the sisters of mother of X. Though the parents of 'X' were residents of Ujjaini village, Kunigal Taluk, 'X' -3- NC: 2024:KHC:5081-DB CRL.A No.2166/2016 was staying in her maternal grandmother's house in Hithalahalli colony and was studying in Primary School at Kadarapura. The accused was the neighbor in the same village.
(ii) The accused had an intention to sexual abuse X. On 23.02.2015 at about 9.45 a.m. finding an opportunity that 'X' was proceeding alone to School, he accosted her in an isolated area near Gangaiahnahalla, dragged her into the bushes, when 'X' resisted, he assaulted on her head with MO.6 and committed sexual assault on her. With an apprehension that she may reveal the incident to others, he throttled her. To screen the evidence of the offence, accused No.1 dragged 'X' to the land of accused No.2. When accused No.2 tried to rescue 'X', accused No.1 criminally intimidated him saying that, if he intervenes or informs anyone about the incident, he will meet the same fate. Then he took 'X' under a Mango tree, trampled her neck and committed her murder. To screen the evidence of offence, he wrapped the dead body and shifted that to the bushes near another Mango tree in the land of accused No.2 and placed it there to project that she might have died due to snake bite.
(iii) On shifting the dead body, he carried the shawl MO.7 and School belt of 'X'-MO.8 and concealed them in his house. Thereby accused No.1 has committed the offences -4- NC: 2024:KHC:5081-DB CRL.A No.2166/2016 punishable under Sections 341, 302, 201 of IPC and Sections 8 and 18 of the Protection of Children from Sexual Offences Act, 2012 (for short, 'POCSO Act') and accused No.2 without reporting the matter to the police committed the offence punishable under Section 21(1) of POCSO Act.
4. On receiving complaint-Ex.P7, PW.9-PSI of Kunigal police registered FIR as per Ex.P10 initially against unknown person for the offences punishable under Sections 302 and 201 of IPC, then handed over further investigation to PW.10. PW.10 during the course of investigation, conducted spot mahazar, inquest mahazar, subjected the dead body to the postmortem examination and arrested the accused. On the basis of the voluntary statement of accused No.1, he recovered incriminating material and referred the seized articles to FSL for examination and after completing the investigation he filed chargesheet/additional chargesheet.
5. The trial Court on hearing the parties, framed the charges against accused No.1 for the offences punishable under Sections 341, 302, 201 and 506 of IPC and Sections 8 and 18 of the POCSO Act and against accused No.2 charge was framed -5- NC: 2024:KHC:5081-DB CRL.A No.2166/2016 only for the offence punishable under Section 21(1) of the POCSO Act.
6. As the accused denied the charges, trial was conducted. In support of the case of the prosecution, PW1 to PW10 were examined and Exs.P1 to P17, MOs.1 to 10 were marked. After their examination under Section 313 of Cr.P.C, neither they filed any defence statement nor led any defence evidence.
7. The trial Court on hearing the parties, by the impugned judgment and order, acquitted accused No.2 of the charge for the offence punishable under Section 21(1) of the POCSO Act and convicted the appellant/accused No.1 for the offences punishable under Sections 341, 302, 201 of IPC and Sections 8 and 18 of the POCSO Act.
8. Submissions of Sri B.C. Rajanna, learned counsel for the appellant:
(i) There were no eyewitnesses to the incident. The case was based only on circumstantial evidence. As per the settled law, if the case is based on circumstantial evidence, the prosecution has the burden to prove all the circumstances set up by it. The chain of circumstances should be so complete to -6- NC: 2024:KHC:5081-DB CRL.A No.2166/2016 point out only to the guilt of the accused. None of the witnesses examined in support of the last seen theory say that the accused and the deceased were last seen together. PW8 speaks only about 'X' leaving to the School. PWs.5 and 6 say that when they were riding the bike, they saw the accused with MO7-shawl. There are no materials to show that shawl belongs to the accused. Therefore, the last seen circumstance was totally unacceptable.
(ii) The place where the dead body was traced was within the knowledge of other witnesses and the public.
Therefore, that cannot be called as discovery of the fact. The accused is said to have produced MO7-shawl and MO8-School belt of 'X' under the mahazars-Exs.P5 and P6, but none of the local persons were taken as mahazar witnesses and the Investigating Officer has not explained why he chose only PWs.2 and 3-official witnesses, that too, from Kunigal. There are material contradictions in the evidence of PWs.2, 3 and PW10-Investigating Officer. On the other hand regarding the source of MOs.7 and 8, PWs.2 and 3 say that the accused produced it, taking it out from a gunny bag, whereas, PW10- Investigating Officer states that the accused had hidden that in -7- NC: 2024:KHC:5081-DB CRL.A No.2166/2016 cardboard box. Neither the said gunny bag nor cardboard box was seized by the Investigating Officer. No evidence was adduced to show that the said shawl was used by the accused and the School belt was used by 'X'. PWs.5 and 6, who spoke about the accused moving with the shawl, were interested witnesses and even their evidence is not consistent, they are planted witnesses. The recovery is said to have effected on 03.03.2015, but the evidence of PW5 shows that accused No.1 was arrested on 24.02.2015 itself. That goes to show that accused No.1 was detained illegally for seven days. Therefore, genesis of the recovery was vitiated. The Investigating Officer though claimed that he deployed sniffer dog squad and finger print experts, he has not taken any reports from them or produced them. The motive for the offence was also not proved.
(iii) As per the inquest mahazar-Ex.P9, no injury was found on the private part of 'X'. Investigating Officer claims to have conducted spot mahazar and inquest mahazar, i.e. Exs.P8 and P9, simultaneously. Therefore, those proceedings are also doubtful. Though there were allegations of commission of penetrative sexual assault, the Investigating Officer did not subject the accused for medical examination to find out -8- NC: 2024:KHC:5081-DB CRL.A No.2166/2016 whether he was potent to inflict such offence. There was absolutely no material to connect the accused to the crime. The trial Court based on same set of evidence acquitted accused No.2, but convicted accused No.1. Therefore, the impugned judgment and order suffers from glaring illegality. Hence, liable to be set aside.
9. Submissions of Sri Vijaya Kumar Majage, learned State Public Prosecutor-II for the respondent-State:
Though the case is based on circumstantial evidence, the evidence of PW1, Post-Mortem report-Ex.P2 and final opinion report show that 'X' was subjected to penetrative sexual assault and was assaulted on her head. Evidence of PW8 shows that close to the time of the offence, PW8 had seen 'X' going alone and the accused standing and watching her. Evidence of PWs.5 and 6 shows that close to the time of the offence, the accused was found moving near the scene of offence with MO7-shawl and his response to the queries of PW5 was unnatural. Recovery of incriminating material at the instance of the accused was established by the evidence of PWs.2 and 3, who are the official witnesses. They had no reason to falsely implicate the accused in the case and there are no reasons to disbelieve them. The minor inconsistency regarding MOs.7 and -9- NC: 2024:KHC:5081-DB CRL.A No.2166/2016 8 does not demolish the core of the prosecution case. The place where the accused committed the murder of 'X' was not within the knowledge of the witnesses and that was within the special knowledge of the accused only. Therefore, discovery of the place of murder is admissible under Section 27 of the Evidence Act, 1872 (for short 'Evidence Act'). From that place, MO5 the broken bangle pieces and MO6-stone used in the commission of the offence against 'X' were seized. Shawl of the accused, clothes of 'X' and mud seized at the place where the dead body was found were all stained with blood of 'X'. The accused did not explain how he got blood stains on the shawl-MO7. His failure to give such explanation shows that he is the culprit.
Though Ex.P8-spot mahazar and Ex.P9-inquest mahazar said to have been conducted during the same time, the accused did not dispute the place where the dead body was found and the injuries found on the dead body. Therefore, such overlapping of time is not fatal to the case of the prosecution. The trial Court on proper appreciation of the evidence has rightly convicted and sentenced the accused. Therefore, the impugned judgment and order does not warrant any interference of this Court.
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10. On considering the submissions of both side and examining the materials on record, the point that arises for determination of this Court is "Whether the impugned judgment and order of conviction and sentence is sustainable?"
Analysis
11. Some of the undisputed facts are:-
'X' at the time of death was aged eleven years. PWs.4 and 5 are her maternal aunts. 'X' was studying in Kadarapura Primary School staying at her maternal grand-mother's house at Hithalahalli Colony. On 23.02.2015 at 9.45 a.m., 'X' left her grand-mother's house to go to School and thereafter, she was not found and her dead body was traced on 24.02.2015 near pathway proceeding from Kantanahalli Taluk to Kadrapura in a creek situated in the land of Lakshminarasimha Prasad.
12. According to the prosecution, few days before the incident the accused made sexual advancement towards 'X' and she had admonished him by using offensive language. Therefore, he planned to sexually assault her. In execution of such plan, on 23.02.2015 at 9.45 a.m., when he found 'X' alone proceeding to the School, he dragged her towards the bushes,
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NC: 2024:KHC:5081-DB CRL.A No.2166/2016 when she resisted, he assaulted her with MO6, caused her injury and committed sexual assault on her and then with the apprehension that she might reveal the incident to others, he throttled her. To screen the evidence of the offence, he dragged her to the land of accused No.2 and when accused No.2 on witnessing the incident, went to her rescue, accused No.1 criminally intimidated him of his life. Therefore, accused No.2 withdrew. Then the accused No.1 dragged her near another mango tree in the land E of accused No.2, trampled her neck and committed her murder. To screen the evidence of the offence, he shifted the dead body of the deceased near a creek and her School bag to project that she died due to a snake bite.
13. There were no eyewitnesses to the incident. The case was based on circumstantial evidence. The Hon'ble Supreme Court in Sharad Birdhichand Sarda Vs. State of 1 Maharashtra has laid down the principles regarding appreciation of circumstantial evidence in a case based on circumstantial evidence. In para No.153 of the said judgment, it is held as follows:
1
(1984) 4 SCC 116
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NC: 2024:KHC:5081-DB CRL.A No.2166/2016 "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 v. State of Maharashtra where the observations were made: [SCC para 19, p. 807: SCC (Cri) p. 1047] "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
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NC: 2024:KHC:5081-DB CRL.A No.2166/2016 (5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused."
(Emphasis supplied)
14. The prosecution to prove its case relied on the following circumstances:
(i) Death is due to homicidal injuries
(ii) Motive-the altercation between the accused and the
deceased few days prior to the incident;
(iii) PW8-witnessed 'X' moving alone and the accused standing there watching her soon before the incident, and soon after the incident, PWs.5 and 6 sighted the accused with MO7- shawl and his response to them;
(iv) Discovery of scene of offence at the instance of the accused and broken bangle pieces (MO5) of 'X' at the said spot under Ex.P5;
(v) Discovery of MO7-shawl of the accused and MO8- School belt of 'X' from the house of the accused at his instance under mahazar-Ex.P6, and
(vi) Medical evidence and the evidence of witnesses to the inquest mahazar, spot mahazar and the Police witnesses.
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NC: 2024:KHC:5081-DB CRL.A No.2166/2016 Reg. Cause of death:
15. To prove that 'X' died homicidal death, the prosecution relied on the evidence of PW.1-the doctor who conducted the postmortem examination on the dead body of 'X', the inquest mahazar-Ex.P9 and evidence of PWs.4, 7 and 8. PW.1 the Senior Specialist of the District Hospital, Tumkur deposed that on 24.02.2015 on the requisition of the police he conducted postmortem examination on the dead body of 'X' aged 11 years and issued postmortem report Ex.P2. He further deposed that on the requisition of the Investigating Officer, referring to the FSL report and Post mortem report, he issued his final opinion as per Ex.P3. Ex.P2 Post mortem report shows that 'X' had suffered the following external injuries:
External Injuries:
1). Contusion measuring 4 cms x 3 cms partially left side of neck.
2). Contusion measuring 2 cms x 2 cms particularly right side of neck.
3). Contused abrasion particular forehand on right side measuring 3 cms x 3 cms.
4). Multiple small abrasion particular back of left hand measuring from 0.1 cms x 0.1 cms to 1 cms x 0.7 cms.
5). Multiple abrasion posterior supra posture region and left groin measuring from 2.5 cms x 1 cms to 0.1 x 0.1 cms.
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6). Multiple abrasion posterior back and outer aspect of left leg measuring from 1 cms x 1 cms to 0.5 x 0.2 cms.
7). Multiple abrasion posterior both buttocks measuring from 3 cms x 1 cms to 0.5 x 0.3 cms.
16. On the postmortem examination, the doctor opined that the death was due to constant effect of manual strangulation and head injuries and the sign of recent sexual intercourse was present. In the cross-examination of PW.1, the death being homicidal was not seriously disputed. Only a suggestion was made to PW.1 that on seeing wild animal if a person runs in a panic state, such injuries could be caused, which he denied. The injuries spoken by PW.1 were not disputed in his cross-examination. Having regard to the nature of the injuries there was no reason to disbelieve the evidence of PW.1 that the death was due to homicidal injuries. That was further corroborated by the inquest mahazar and the evidence of inquest mahazar witnesses PWs.4,7 and 8.
17. So far as the penetrative sexual assault on 'X', Ex.P2 and the evidence of PW.1 show that on genitalia area 'X' had suffered the following injuries:
External genitalia: Micord secretion present in vagina, hymen torn 14 wglt lower quedert and detached along left upper quadeant with inflammatory grips-acute maten.
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NC: 2024:KHC:5081-DB CRL.A No.2166/2016 The above findings show that 'X' had suffered injuries on her private part and at the time of conduction of postmortem examination, that part was still inflammatory. PW.1 was an official witness and the expert. He conducted minute examination as compared to observation of the panch witnesses and the Investigating Officer during inquest. The Investigating Officer and the witnesses to inquest are not experts. Therefore, their observation in Ex.P9 the inquest mahazar that no abnormality was seen in genitalia, does take precedence over the medical evidence. By such medical/expert's evidence, the prosecution succeeded in proving that the death was due to homicidal injuries and soon before the death, there was sexual assault on 'X'. Accused No.1 was neither charge sheeted nor convicted for the offence under Section 6 of POCSO Act. He is convicted for the offence under Section 8 of POCSO Act. Therefore, the contention of the learned Counsel that there was no penetrative sexual assault has no significance.
Reg. Motive:
18. According to the prosecution, few days prior to the incident, the accused showed sexual advancement towards 'X' and she had admonished him. If such incident takes place in
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NC: 2024:KHC:5081-DB CRL.A No.2166/2016 small Village like Kantanahalli, which is rural area, the same could not have gone unnoticed. But none of the witnesses, i.e. PW4-the complainant and aunt of 'X' and PW5-another aunt of 'X', whisper anything about the said incident. Similarly, PW6 maternal uncle of 'X' and PWs.7 and 8 other villagers witnesses to the spot and inquest mahazars, do not say anything about that. Therefore, the prosecution failed to prove the motive circumstance set up by it.
Reg. Last seen circumstance:
19. To connect the accused to the crime on the basis of last seen circumstance, firstly the accused and the deceased should be last seen together. There should be proximity of time and place of sighting the deceased and the accused together and place and time of death. When the last seen circumstance can be relied to hold the accused guilty based on such circumstances is discussed and the ratio in that regard is laid down in State of U.P. Vs. Satish2 as follows:
"22. The last-seen theory comes into play where the time-gap between the point of time when the accused and the deceased were last seen alive and when the deceased is found dead is so small that possibility of any person other than the accused 2 (2005) 3 SCC 114
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NC: 2024:KHC:5081-DB CRL.A No.2166/2016 being the author of the crime becomes impossible. It would be difficult in some cases to positively establish that the deceased was last seen with the accused when there is a long gap and possibility of other persons coming in between exists. In the absence of any other positive evidence to conclude that the accused and the deceased were last seen together, it would be hazardous to come to a conclusion of guilt in those cases."
(Emphasis supplied) In the present case, when 'X' left to School, PWs.4 to 6 were not there at the house of their mother. Admittedly, 'X' was residing with her maternal grand-mother. She was not cited as charge-sheet witness. When exactly 'X' left the house could be within her knowledge. PW8-villager only says that she found 'X' proceeding in front of her house before she was found dead. She does not even say that the accused was standing there and watching her. She does not whisper sighting the accused near her house or watching 'X' going there. In the cross- examination, she states that she only saw 'X' proceeding on that day and thereafter, she did not see her. She denied having given statement before the Police. Therefore, her evidence is of no help to the prosecution to prove that the accused and X were last seen together soon before her death.
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20. PW4 in the complaint no where stated that the accused and the deceased were last seen together. She did not suspect him in the complaint. PW5 is the sister of PW4 and aunt of the deceased. PW6 is the elder brother of PW5 and younger brother of PW4. PWs.5 and 6 state that as their father was in the hospital in Tumkur, on 23.02.2015 after 'X' leaving to the School, both of them were proceeding on motorbike to Tumkur. When they were proceeding on Hithalahalli colony road, they found accused moving with a shawl in his hand. When PW.5 tried to speak to him, he went away without speaking to them. PW.6 in his chief-examination says that they sighted the accused in that manner at 10.30 a.m. But PW.5 does not even mention the said time. Ex.P7/complaint was purportedly filed on 24.02.2015 at 10.00 a.m. i.e., on the next day. But in the said complaint absolutely there is no whisper about PWs.5 and 6 sighting the accused near scene of offence soon after the incident. The evidence of PWs.5 and 6 in no way indicates that they saw the accused and 'X' together on the date of incident. Having regard to the aforesaid facts and circumstances, the last seen theory fails in view of the
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NC: 2024:KHC:5081-DB CRL.A No.2166/2016 judgment of the Hon'ble Supreme Court in Satish's case referred to supra.
Reg. Discovery of the incriminating material at the instance of the accused:
21. According to the prosecution on arrest of accused Nos.1 and 2 they volunteered to show the place of offence and led the Investigating Officer-PW.10 and panchas PWs.2 and 3 near Gangaiahnahalla in the land of Lakshminarasimha Prasad and showed the place. Regarding the same, mahazar Ex.P5 was drawn. According to the prosecution, accused No.1 led the police and panchas to his house in Hithalahalli colony and produced MOs.7 and 8 his shawl and School belt of 'X' and they were seized under mahazar Ex.P6.
22. PWs.2 and 3 were the common/panch witnesses to Exs.P5 and 6. They were not the local persons. None of the local persons or residents of the locality were taken as witnesses to those mahazars. The Investigating Officer has no explanation why he secured the witnesses from the Tahsildar's office. Ex.P13 is purportedly the letter issued by the Tahsildar, Kunigal Taluk deputing PWs.2 and 3 for conducting the mahazar proceedings in the present case. But the Investigating Officer has no explanation as to what forced him to make a
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NC: 2024:KHC:5081-DB CRL.A No.2166/2016 requisition to the Tahsildar alone excluding the local residents as witnesses to the mahazar proceedings.
23. Ex.P5 purportedly was conducted on the basis of the voluntary statements of accused Nos.1 and 2, but voluntary statement of accused No.2 was not admitted in evidence nor Investigating Officer spoke about the same nor tried to get the same admitted in the evidence. There is no consistency in the evidence of PWs.2 and 3 on one hand and Investigating Officer on the other hand regarding exact location of the scene of mahazar under Ex.P5.
24. PWs.2 and 3 say that they do not know if the distance between the scene of mahazar and Hithalahalli colony is 2 k.m. According to them the said spot is situated at the distance of 15 to 20 feet from Gangaihanahalla and people moving on the road are visible from the said spot. So far as recovery of MO.5 broken bangles and MO.6 stone used in the commission of offence under Ex.P5, PWs.2 and 3 say that they do not know if similar broken bangles will be available. They say that the stone was not stained with blood. They further state that they cannot say the boundaries of the place where mahazar was drawn.
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25. PW.10 in his cross-examination states that he cannot say, if the distance of place where the dead body was traced and house of 'X' was 1 k.m. Again he says that the distance between the said places was half km. According to him the distance between the main road and place where the dead body was lying was 50 feet. He says the dead body was fallen near land of one Ramanna. The said Ramanna was not examined. Thus the evidence of PWs.2,3 and 10 regarding the place where accused Nos.1 and 2 allegedly led them and showed the scene of offence was not consistent. Moreover, the bangle pieces and stone which were allegedly seized were not sent to FSL for examination. Therefore, alleged discovery under Ex.P5 is shrouded with suspicion.
26. Regarding Ex.P6, as per the prosecution, accused No.1 led PW.10 and panch witnesses PWs.2 and 3 to his house/brother's house in Hithalahalli colony and produced MO.7 shawl, MO.8 School belt and they were seized under mahazar Ex.P6. PWs.2 and 3 say that accused No.1 had concealed them in gunny bags and produced them by taking it out from such gunny bags. Whereas mahazar Ex.P6 and PW.10 say that those material objects were concealed in cardboard box and the
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NC: 2024:KHC:5081-DB CRL.A No.2166/2016 accused produced them from the same. Neither gunny bag nor cardboard box were seized under mahazar Ex.P6. The evidence on record shows that the house where the accused was residing was surrounded by other resident's houses. None of the inmates of those houses were secured as mahazar witnesses. There was no explanation by the Investigating Officer for the same.
27. None of the School authorities were examined to say that they had issued the said belt to 'X' and she was using that. Similarly, there was nothing to show that accused had acquired shawl MO.7 and he was using that. The evidence of PWs.5 and 6 regarding the accused carrying the shawl is already found not trustworthy.
28. So far as discovery of scene of offence, it is material to note that, based on the said circumstances, though the trial Court acquitted accused No.2, relying on the same evidence convicted accused No.1, which is mutually inconsistent.
29. If accused No.1 had committed the murder of 'X' by crushing her head with stone MO.6, then naturally there must have been bloodstains on the said material object also.
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NC: 2024:KHC:5081-DB CRL.A No.2166/2016 However, that was not subjected to FSL examination. Since the samples examined under Ex.P17-FSL report were not seized at the instance of accused No.1, the opinion that they were similar soils was of no help to the prosecution. Though PWs.5 and 6 had allegedly seen accused No.1 with the shawl on the date of incident itself, till the arrest of the accused they had not whispered about they sighting accused No.1 along with bloodstained shawl. To plug that loophole their further statements were recorded which shows clear improvement.
30. The trial Court without noticing the aforesaid material inconsistencies in the evidence regarding recovery at the instance of accused Nos.1 and 2, without judicious appreciation of the evidence held that the said circumstances were proved. If the circumstances of discovery and last seen theory fail, there is nothing to connect accused No.1 also to the crime.
31. As held by the Hon'ble Supreme Court in Sharad Birdhi Chand Sarda's case referred to supra, suspicion cannot take the place of proof, however strong the suspicion may be. In the present case since the circumstances of motive, last seen theory and discovery of incriminating articles were not
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NC: 2024:KHC:5081-DB CRL.A No.2166/2016 proved, the chain of circumstances is not complete. Since the sentence of murder carries very serious consequences of curtailing the liberty of the person for his entire life, if there are any doubtful circumstances, the benefit of that doubt shall go to the accused.
32. In view of the aforesaid facts and circumstances and the law laid down by the Hon'ble Supreme Court, the trial Court was not justified in convicting accused No.1. Therefore, the impugned judgment and order of conviction and sentence passed against accused No.1 is liable to be set aside. Hence, the following:
ORDER The appeal is allowed.
The impugned judgment and order of the trial Court so far as it relates to conviction and sentence of appellant/accused No.1 is hereby set aside.
Appellant/accused No.1 is acquitted of the charges for the offences punishable under Sections 341, 302, 201 of IPC and Sections 8 and 18 of the POCSO Act.
Appellant/accused No.1 shall be set at liberty forthwith, if his detention is not required in any other case.
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NC: 2024:KHC:5081-DB CRL.A No.2166/2016 The order of trial Court with regard to disposal of the properties is maintained.
Communicate copy of this order to the trial Court and concerned prison forthwith.
Pending IAs stood disposed of.
Sd/-
JUDGE Sd/-
JUDGE PKN,KVK List No.: 1 Sl No.: 6