Karnataka High Court
Sri Manjesh vs State By Tavarekere Police Station on 8 January, 2024
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NC: 2024:KHC:8979-DB
CRL.A No. 889/2019
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 8TH DAY OF JANUARY, 2024
PRESENT
THE HON'BLE MRS JUSTICE K.S.MUDAGAL
AND
THE HON'BLE MR JUSTICE VENKATESH NAIK T
CRIMINAL APPEAL NO.889 OF 2019
BETWEEN:
SRI MANJESH
S/O LAKKANNA
AGED ABOUT 29 YEARS
R/AT NO.65, 7TH CROSS
GAJANANA NAGARA, HEGGANAHALLI
BENGALURU-562 110 ...APPELLANT
(BY SRI MOHAN KUMAR D., ADVOCATE)
AND:
STATE BY TAVAREKERE POLICE STATION
RAMANAGAR DISTRICT-562 159
REPRESENTED BY PUBLIC PROSECUTOR
HIGH COURT OF KARNATAKA
Digitally signed by
MOUNESHWARAPPA BENGALURU-560 001 ...RESPONDENT
NAGARATHNA
Location: High Court
of Karnataka (BY SMT. SOWMYA R., H.C.G.P.)
THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374(2)
CR.P.C PRAYING TO SET ASIDE THE JUDGMENT AND ORDER OF
CONVICTION AND SENTENCE DATED 01.04.2019 PASSED BY THE III
ADDITIONAL DISTRICT AND SESSIONS JUDGE, RAMANAGARA IN
S.C.NO.3/2015 - CONVICTING THE APPELLANT/ACCUSED FOR THE
OFFENCE PUNISHABLE UNDER SECTIONS 302 AND 201 OF IPC.
THIS CRIMINAL APPEAL IS COMING ON FOR HEARING, THIS
DAY, VENKATESH NAIK T. J., DELIVERED THE FOLLOWING:
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CRL.A No. 889/2019
JUDGMENT
The accused has preferred this appeal against the impugned judgment and order of conviction and sentence passed against him in S.C.No.3/2015 by the III Additional District and Sessions Judge, Ramanagara, for the offences punishable under Sections 302 and 201 of IPC.
2. For the sake of convenience, the parties are referred to as per their ranking before the trial Court. The appellant was the 'accused' and the respondent-State was the 'complainant' before the trial Court.
3. The brief facts of the case are as under:
The name of the deceased is Sunandamma. PW.1- Basavaraju lodged a complaint on 24.08.2014 at 01:45 p.m., before Tavarekere police alleging that he had been to Ramegowda Lake, Muddanapalya Village, Tavarekere on 24.08.2014 at 11:45 a.m., for grazing sheep and on the way he saw fire and out of curiosity, he went and saw that someone had set fire to an unknown female dead body. Immediately, he called his friends CW.4-Revanna, CW.5-Chikkamallaih and PW.2-Kariappa over phone and all of them went to the spot and they extinguished fire by pouring water on the body. They -3- NC: 2024:KHC:8979-DB CRL.A No. 889/2019 found earrings, nose stud, bangles, anklets and toe rings on the dead body. The age of the said unidentified female body was in between 25 to 30 years. PW.1 lodged a complaint to Tavarekere police. Based on the complaint, F.I.R. was registered in Crime No.611/2014 for the offences punishable under Sections 302 and 201 of IPC and investigation was taken up.
4. After three days of the incident, the dead body was identified as that of deceased Sunandamma. The police conducted inquest panchanama-Ex.P7 in presence of PW.8- Krishna on the body of the deceased. During inquest, the police recorded the statement of PW.9-Dhananjaya, who suspected that accused might have committed the murder of Sunandamma. Hence, the police secured him, interrogated, arrested and recorded his voluntary statement as per Ex-P15. During the course of investigation, the accused disclosed that he pledged gold ornaments i.e., Mangalya Chain-M.O.1, earrings-M.O.2, anklets-M.O.3 and Micromax mobile phone- M.O.4. Further M.Os.1 and 2 were pledged and M.Os.3 and 4 were kept in his house. Hence, the Investigating Officer recovered MOs.1 to 4 under seizure panchanama-Ex.P5 in presence of PW.6. After completion of the investigation, the -4- NC: 2024:KHC:8979-DB CRL.A No. 889/2019 Investigating Officer(PW.16) filed charge-sheet against the accused for the offences punishable under Sections 302 and 201 IPC.
5. After committal of the case to the Court of Sessions, the accused appeared through his counsel. Thereafter, charge has been framed against the accused for the offences punishable under Sections 302 and 201 IPC. The accused pleaded not guilty and claimed to be tried.
6. In order to prove the charges against the accused, the prosecution in all examined 20 witnesses as PWs.1 to 20 and got marked 23 documents as per Exs.P1 to P23 and 23 material objects as MOs.1 to 23.
7. After completion of evidence on behalf of the prosecution, the statement of the accused as contemplated under Section 313 Cr.P.C. was recorded by the trial Court. The accused denied all the incriminating material appearing against him. The accused got examined Sri. Vishwas and Smt. Sowbhagya as DWs.1 and 2. Further, Exs.D1 to D7 were marked for the defence.
8. The learned Sessions Judge after considering the entire evidence on record, has recorded the finding that the -5- NC: 2024:KHC:8979-DB CRL.A No. 889/2019 prosecution has proved the motive, last seen theory, voluntary statement of the accused, recovery of gold articles and the conduct of the accused and has come to the conclusion that the accused alone committed the murder of deceased Sunandamma and none else. Hence, proceeded to convict and sentence the accused.
9. Aggrieved by the judgment of conviction and order on sentence, the accused preferred this appeal.
10. We have heard Sri. Mohan Kumar D., learned counsel for the appellant and Smt. Sowmya R., learned High Court Government Pleader on behalf of respondent-State.
11. Learned counsel for the accused contended that the trial Court erred in convicting the accused for the aforesaid offences. It is contended that the prosecution case is based on circumstantial evidence and there are no eye witnesses to the incident. Without there being any strong circumstances, the learned Sessions Judge has convicted the accused.
12. It is contended that, the trial Court believed the evidence of PW Nos.9, 10 and 16 and convicted the accused. Further, the reasons assigned by the learned Sessions Judge -6- NC: 2024:KHC:8979-DB CRL.A No. 889/2019 are not sufficient to base the conviction against the accused. PW.10 has identified M.Os.1 to 4 ornaments recovered at the instance of the accused. The same does not belong to deceased Sunandamma. But during the course of investigation, no one has stated that the deceased was in possession of M.Os.1 to 4 when she left her home. Unless it is conclusively established that the seized articles were recovered from the possession of the accused and prior to death of deceased, they were on the person of Sunandamma, the accused cannot be held guilty of the alleged offences. Further, it is not possible to establish the offence of murder in the absence of material particulars and recovery as contemplated under section 27 of the Indian Evidence Act, but, the trial Court failed to appreciate the said fact and passed the impugned judgment which deserves to be set aside.
13. It is contended that, none of the prosecution witnesses have stated that MOs.1 to 4 were on the person of deceased Sunandamma. In fact, those articles belonged to the wife of the accused. Inspite of there being no evidence, the learned Sessions Judge presumed that the articles M.O.1 to M.O.4 belonged to the deceased and has convicted the -7- NC: 2024:KHC:8979-DB CRL.A No. 889/2019 accused. It is contended that, if the ornaments were recovered as per the information given by the accused, then also, those ornaments were required to be identified. The Investigating Officer failed to get them identified through the competent witnesses. In spite of this glaring infirmity, the trial Court has convicted the accused.
14. It is contended that the accused examined DW.1 Vishwas-the Branch Manager of Manappuram Finance Limited, Kamakshipalya Branch, Maddur. DW.1 has produced Exs.D1 and 2 before the trial Court and he has stated that three months earlier to the date of incident, the accused had pledged one gold chain and gold ear stud. DW.2 Sowbhagya, is the wife of the accused. She has claimed that the pledged articles MOs.1 to 4 belonged to her and the accused had pledged MOs.1 and 2, three months prior to the date of incident at Manappuram Finance, Kamakshipalya. It shows that, MOs.1 and 2 belonged to wife of the accused. But, the trial Court disbelieved the evidence of DWs.1 and 2 and contents of Exs.D1 and 2 and observed that Exs.D1 and 2 are concocted documents.
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15. It is contended that, the trial Court has not followed the principles laid down by the Hon'ble Supreme Court of India in the case of Sharad Birdhichand Sarda v. State of Maharashtra reported in (1984) 4 SCC 116.
16. It is contended that, the trial Court has failed to appreciate the legal position of law and has not considered the evidence in right perspective, but, wrongly convicted the accused. Hence, learned counsel prayed to allow the appeal.
17. Per-contra, learned High Court Government Pleader contended that the trial Court has considered the evidence of PW.1 who lodged the complaint as per Ex.P1 and in whose presence Ex.P2-spot mahazar was drawn. PW.4-the owner of the house where the accused and his wife were residing in a house has stated about the seizure mahazar-Ex-P3 conducted in his presence and the seizure of material objects such as anklets, micromax mobile, club and a chit from the house of the accused. PW.6-Santhosh Kumar has stated about the seizure mahazar conducted in his presence and seizure of one Mangalya chain-MO.1, earrings-MO.2 from Mannappuram Gold Finance, Kamashipalya and he has stated about handing over MOs.1 and 2 to the police at the instance of the accused. PW.7- -9- NC: 2024:KHC:8979-DB CRL.A No. 889/2019 Umesh has stated that the police conducted seizure mahazar in his presence and seizure of MO.17-club. PW.8 Krishna has stated about drawing seizure panchanama as per Ex.P6 and inquest mahazar Ex-P7 conducted in his presence.
18. It is contended that the prosecution proved the aspect of motive and in this regard, examined PW.9- Dhananjaya and PW.10-Doddamma, mother of deceased. PW.10 has stated that police conducted seizure panchanama as per Ex.P8, wherein, she got released the said gold and silver articles.
19. It is contended that, the prosecution proved the homicidal death of deceased Sunandamma and in this regard, the prosecution examined Dr. Pradeep Kumar(PW.11) and his oral evidence is supported by Ex.P9 post-mortem examination report. The medical evidence is corroborated by Ex.P10 FSL report and the evidence of PW.15-Suma, the Scientific Officer who has corroborated the oral testimony of the Medical Officer. Hence, the trial Court considering the last seen theory, motive, evidence of seizure mahazar witnesses, medical evidence, FSL report and the evidence of official witnesses rightly convicted the accused. Hence, she prays to dismiss the appeal.
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20. In view of the rival contentions urged by the learned counsel for both the parties, the following points that would arise for our consideration are:-
i. Whether the prosecution proved homicidal death of Sunandamma?
ii. Whether the accused has made out a case for interference with the impugned judgment and order of conviction and sentence passed by the trial Court for the offences punishable under Sections 302 and 201 of IPC?.
21. We have given our anxious consideration to the arguments advanced by learned counsel for the parties and perused the entire material including the original records carefully.
22. As per the case of the prosecution, on 23.08.2014 at about 4.15 p.m., in his house at Gajanana Nagara, Hegganahalli, Bengaluru, when Sunandamma insisted the accused to repay the amount of Rs.60,000/- borrowed from her, he assaulted her with a wooden club and caused bleeding injuries and in order to screen the evidence, on 24.08.2014, the accused shifted the dead body of Sunandamma on his scooter bearing registration No.KA-02-R-1200 to the land
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NC: 2024:KHC:8979-DB CRL.A No. 889/2019 bearing Sy.No.39/1A3 of Ajjanahalli, there he poured petrol on the dead body, lit fire and burnt the body.
23. Hence, the prosecution must prove that the accused committed murder of Sunandamma and none else. In order to establish this aspect, the prosecution is relying upon circumstantial evidence.
24. Where a case rests squarely on circumstantial evidence, the inference of guilt can be justified, only when all the incriminating facts and circumstances are found to be incompatible with the innocence of the accused. The question of motive of the accused assumes importance in the case based on circumstantial evidence. The prosecution relied upon the following circumstances:-
a. Homicidal death of deceased, b. Motive, c. Last seen theory, d. Recovery of gold and silver articles, and e. Conduct of the accused.
Reg Point No.1 - Nature of death
25. So far as the homicidal death of deceased Sunandamma, PW.1-Basavaraju (complainant), PW.2-Kariappa, PW.3-Revanna have stated that on 24.08.2014 at 11:45 a.m.
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NC: 2024:KHC:8979-DB CRL.A No. 889/2019 when PW.1 had been for grazing sheep, he found a female dead body, immediately he informed PWs.2 and 3. Thereafter, all of them came to the scene of offence and saw a female's dead body, which was burning, thus, they poured water on it and they informed about the incident to Tavarakere Police and PW.1 lodged the complaint as per Ex-P1. The prosecution relied upon the evidence of PWs.2 and 3, who have stated that they saw a dead body at the scene of offence, where police have conducted spot panchanama as per Ex.P2. Further, PW.8- Krishna B. has stated that he saw a dead body in Rajarajeshwari hospital, where Police conducted inquest mahazar as per Ex.P7 and the body was completely burnt.
26. The prosecution relied upon the evidence of PW.9 Dhananjaya, the son of sister of deceased Sunandamma. His evidence is that he saw a dead body in Rajarajeshwari hospital, Mysore Road, Bengaluru, it was completely burnt, where the police conducted inquest panchanama as per Ex-P7. Therefore, PWs.1 to 3 have categorically stated that they saw dead body of Sunandamma in the land bearing Sy.No.39/1A3 of Ajjanahalli and they saw visible burn injuries on the dead body. Further, PWs.5 and 9 have categorically stated that they saw
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NC: 2024:KHC:8979-DB CRL.A No. 889/2019 the dead body of Sunandamma in the mortuary of Rajarajeshwari Hospital, where the Investigating Officer conducted inquest panchanama and they also observed visible burn injuries on the dead body. Therefore, the oral testimonies of PWs-1 to 3, PW-5 and PW-9 clearly establishes that they saw dead body of Sunandamma and they also observed visible burn injuries on the person of the deceased.
27. So far as medical evidence is concerned, the prosecution relied on the testimony of Dr. Pradeep Kumar- PW.11, who has stated that on 26.08.2014, he conducted autopsy on the dead body of Sunandamma at Rajarajeshwari Hospital, Bengaluru between 11:35 a.m. and 1:00 p.m. and found following external and internal injuries:
External Injuries:
1. Vertically placed bone deep laceration measuring 8 cm X 2 cm present over top and back of head on left side situated 1cm from midline.
2. Second and third degree burns noted over front of chest on left side, back of chest and abdomen, both upper limbs at places, front of abdomen and both lower limbs.
Internal Injuries:
1. On reflection of scalp blood extravasations noted over the under surface of the scalp over
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NC: 2024:KHC:8979-DB CRL.A No. 889/2019 frontal, left temparoparietal and occipital region corresponding to external injury No.1.
2. Diffuse sub-dural and sub-arachnoid hemorrhage noted over surface of brain.
PW.11-Doctor has opined that the external and internal injuries were antemortem and at the time of death, those injuries were fresh and injury No.2 was post-mortem injury. Hence, he issued post-mortem examination report as per Ex.P9. As per the opinion of the Doctor, the burn injuries were ante-mortem injuries and the cause of death is due to head injuries sustained. He further opined that, injury No.1 mentioned in post-mortem report could be caused by MO.17 wooden piece. In the cross examination, it was elicited that if anybody assaults with a blunt object, then lacerated injury could be caused. The Investigating officer failed to send M.O.17 wooden club to PW.11 for his opinion, but, the Doctor has given his general opinion on M.O.17.
28. The oral evidence of PW.11 and the contents of Ex-P9 post mortem examination report revealed that death of Sunandamma was due to head injury sustained. Hence, as per the oral evidence of doctor who conducted the autopsy and the evidence of the inquest mahazar witnesses goes to show that
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NC: 2024:KHC:8979-DB CRL.A No. 889/2019 the cause of death was due to antemortem head injuries and burns were post-mortem. Thus the oral evidence of the prosecution witnesses is corroborated by the medical evidence as to the cause of death of deceased. Hence, the homicidal death of deceased Sunandamma is proved.
Motive
29. Now the prosecution has to prove the circumstance motive. So far as motive is concerned, where a case rests squarely on circumstantial evidence, the inference of guilt can be justified, only when all the incriminating facts and circumstances are found to be incompatible with the innocence of the accused. The question of motive of the accused assumes importance in the case based on circumstantial evidence. Onus is on the prosecution to prove that the chain is complete, but in the case on hand, none of the independent witnesses have stated about motive in commission of murder of the deceased. The prosecution has to establish that the accused had borrowed loan of Rs.60,000/-from one Krishnaveni on the guarantee of deceased Sunandamma in the month of October 2013 on interest basis and as the accused failed to repay the loan amount along with interest, Krishnaveni was demanding Sunandamma to approach the accused to recover the loan and
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NC: 2024:KHC:8979-DB CRL.A No. 889/2019 hence, on 23.08.2014, Sunandamma went to the house of the accused for recovery of loan along with PW.9 Dhananjaya and she took a drop in his motor cycle near BDA complex and later, Sunandamma did not return home. Money transaction was the motive for the accused to commit the murder of Sunandamma.
30. In order to prove the motive aspect, the prosecution examined PW.9 Dhananjaya who is son of sister of the deceased. In his evidence, he has stated that deceased is his aunt, he was aware about the loan borrowed by accused from one Krishnaveni on guarantee of deceased Sunandamma. But accused failed to repay the loan. Hence, Krishnaveni was insisting Sunandamma to repay the loan which was borrowed by the accused. Accordingly, on 23.08.2014, deceased Sunandamma took drop on the motorcycle of PW.9 till BDA complex and she told him that "she would insist accused to pay loan of Rs.60,000/-" but, she did not return home, hence, the owner of house called him over phone and told that Sunandamma did not return to her house, hence, he called her over phone, but, her mobile phone was switched off and it was not reachable. Later, PW.9 and his relatives searched for Sunandamma in the house of their relatives and friends and as
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NC: 2024:KHC:8979-DB CRL.A No. 889/2019 she was not traced, he went to the police station in order to lodge a missing complaint, but police did not receive any complaint. In the cross-examination, it was suggested that the husband of deceased by name Shankarappa, deserted her and he developed ill-will against her and he might have committed murder of Sunandamma, but this suggestion was denied by the witness and rest of the suggestions were denied. His evidence was corroborated by PW.16 the Investigating officer on the motive aspect. Hence, PWs.9 and 16 state that the accused borrowed loan from Krishnaveni on the assurance of deceased and he failed to repay the loan. That could be the reason for commission of murder according to these witnesses. Infact, motive can be double-edged weapon.
31. From the perusal of evidence of PW.9, who was closely related to the deceased, it goes to show that he has given evidence in exaggerated manner. The prosecution neither examined Krishnaveni nor produced any documents to show that there was money transaction between deceased, accused and one Krishnaveni. In the absence of such material, the accused cannot be connected to the crime on the basis of the oral testimony of PW.9 alone.
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NC: 2024:KHC:8979-DB CRL.A No. 889/2019 Last seen theory
32. The third ground on which the prosecution has placed reliance is the last seen theory. It is to be noted that there are no eye witnesses to the incident to state that deceased was last seen in the company of the accused prior to her death. The last seen theory comes into play when there is proximity of time and place of sighting the accused and the deceased together soon before the victim was found dead, thereby the possibility of any person other than the accused person 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 long gap and possibility of other person coming in between exists.
33. In order to prove last seen theory, PW.9 Dhananjaya has stated that accused had borrowed a loan of Rs.60,000/- from one Krishnaveni through deceased Sunandamma. As Krishnaveni insisted Sunandamma to repay the loan, on 23.08.2014 Sunandamma came along with him on his motor cycle in order to go to the house of accused to recover loan amount, accordingly, she alighted near BDA complex. However, she did not return to her house. His further
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NC: 2024:KHC:8979-DB CRL.A No. 889/2019 evidence is that on the same day till 5:00 p.m. deceased Sunandamma did not return to the house, therefore, owner of the house called him over phone and stated about non return of victim to the house. But, none of the other witnesses have stated that deceased was last seen with the accused prior to her death. PW.16-Investigating Officer states that, on 27.08.2014 at 6:00 p.m., he secured the accused in Ujjaini Village bus stand, Kunigal Taluk, enquired the accused and recorded his voluntary statement (Admissible portion Ex.P15). Though he speaks that in the voluntary statement of the accused he confessed about victim coming to his house and he committing crime etc, such evidence is hit by Section 25 of Evidence Act. Therefore, the evidence of PW.16 with regard to last seen theory does not come to the aid of the prosecution case to any extent.
34. PW.9 has not stated that he also accompanied the deceased to the house of the accused and saw the accused in his house. Further, it is not the case of the prosecution that the accused was the only person seen in the company of deceased and she was not seen alive thereafter and the dead body was found close by and the accused had no explanation as to how
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NC: 2024:KHC:8979-DB CRL.A No. 889/2019 and when he parted the company with her. The prosecution failed to establish the fact that the accused and deceased were last seen together.
Recovery of belongings of deceased
35. So far as recovery of gold and silver articles are concerned, the prosecution relied upon the evidence of PW.4-Manjunath Rao who has stated that about two years prior to his evidence, the Tavarekere Police called him to police station and when he reached the police station, the accused was already in the custody of police and he led police and witnesses to his house, where he showed a silver chain, a mobile, a wooden piece and a chit underneath a table, hence, the police seized those articles under Ex.P3 seizure panchanama. In the cross-examination, PW.4 admits that the articles seized in his presence at the time of Ex.P3 seizure panchanama have not been produced before the Court and hence, he failed to identify those articles before the Court. Thus the seized articles have not been identified by him. Hence, the seizure of those articles as stated by PW.4 in his presence is not established.
36. Further, PW.6-Santhosh Kumar has stated that police drew Ex.P5 seizure mahazar in his presence, wherein,
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NC: 2024:KHC:8979-DB CRL.A No. 889/2019 the Investigating Officer recovered MO.1-Mangalya chain and MO.2-one pair earrings from Mannappuram Finance Limited, Kamashipalya under Ex.P5 seizure panchanama. In the cross- examination, he admits that he is the friend of PW.9 Dhananjaya and both are working in the same office. PW.9 brought this witness to Mannappuram Gold Finance for the purpose of panchanama. He further admits that, by the time, the reached Mannappuram Gold Finance shop, the police had already drafted the panchanama and they took signature of them. From the perusal of testimony of PW.6, it establishes that PW.6 is friend of PW.9. Moreover, this witness has not seen the procedure adopted by the Investigating Officer while drawing seizure panchanama. Further, this witness has admitted that the moment he reached the spot, police had completed panchanama and he affixed his signature on the document and apart from this, he does not know anything. Therefore, his evidence does not come to the aid of the prosecution case to any extent.
37. Further, to prove the recoveries, the prosecution examined PW.10-Doddamma, mother of deceased. She has stated that deceased Sunandamma is her daughter, she was
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NC: 2024:KHC:8979-DB CRL.A No. 889/2019 given in marriage to one Shankara and his whereabouts are not known to her. Her further evidence is that, she does not know the accused, but she got released a mobile phone, a mangalya chain, two earrings and a pair of anklets from the Court as per MOs.1 to 4 and those articles were given to her daughter Sunandamma. It is her further evidence that deceased Sunandamma purchased the mobile and she got released M.O.4 mobile phone from Court, apart from this, she does not say anything against the accused. In her evidence, nothing was elicited to connect the accused to the crime. Therefore, her evidence does not come to the aid of the prosecution.
38. The prosecution has not examined the Investigating Officer who seized silver and gold articles at the instance of accused, but, the successor in office has been examined as PW.16. He has stated that he has deposed on the basis of the documents. As per the evidence of PW.16, the earlier officer recorded the voluntary statement of accused and recovered silver and gold articles which were pledged in Mannappuram Finance, but, in order to corroborate the oral testimony of PW.16, independent witnesses have not been examined to support the case of the prosecution, except the evidence of PWs.4 and 6.
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NC: 2024:KHC:8979-DB CRL.A No. 889/2019 Conduct of the accused
39. So far as conduct of the accused, as per the case of the prosecution, accused had borrowed a loan of Rs.60,000/- from one Krishnaveni on the guarantee of deceased Sunandamma. But, the accused failed to repay the amount and in this regard, Sunandamma had been to the house of the accused for demanding the amount, but, she was assaulted by the accused and the deceased succumbed to the injuries, later, the accused shifted the dead body to a land where he burnt the dead body. The incident took place on 23.08.2014 and the burnt dead body was found on 24.08.2014 at 11.45 a.m. The accused was arrested on 27.08.2014 and gave his voluntary statement as per Ex-P15. As per the voluntary statement, soon after the incident, the accused was in his village and on 27.08.2014 at 6.00 p.m., he was secured from the Ujjaini bus stand, village of his wife. But, none of the witnesses have stated about the role played by the accused and his conduct from 23.08.2014 to 27.08.2014. Except the Investigating Officer(PW-16), none of the witnesses have stated about absconding of the accused from his place. "Absconding" is a tell-tale circumstance of a guilty mind, unless, the accused can
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NC: 2024:KHC:8979-DB CRL.A No. 889/2019 offer a reasonable explanation for his absence for four days at his normal place of residence or work or at places where he normally expected to be. It is only one link in the chain of evidence and not the determining link. In the case of Thimma and Thimma Raju vs. State of Mysore reported in AIR 1971 SC 1871, the Hon'ble Supreme Court held that even innocent person might when suspected of grave crime, be tempted to evade arrest. Hence, mere absconding for four days from the ordinary residence of the accused by itself does not necessarily lead to a firm conclusion of guilty mind. Even, an innocent person may feel panic and try to evade arrest when wrongly suspected of a grave crime. Such, is his instinct of self preservation. Therefore, absconding is a relevant piece of evidence to be considered alongwith other evidence, but, its value would always depend upon the circumstances of each case and generally, it would be treated as a tiny piece of evidence for sustaining conviction.
40. In this case, the homicidal death of deceased Sunandamma has not been disputed. However, involvement of the accused in the death of Sunandamma is disputed. The testimonies of PWs.4, 6, 9 and 10 suffer not merely from
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NC: 2024:KHC:8979-DB CRL.A No. 889/2019 technical imperfections, but also glaring omissions and improvements which have been brought out in their cross- examination, which cannot be attributed to the illiteracy of the individual deposition. If there were minor contradictions and inconsistencies, it could have been ignored since the recollection of exact details as to location and time can be attributed to the lack of literacy. However, such is not the case here. To that extent, the evidence of PWs.4, 6, 9 and 10 is merely hearsay evidence. Moreover, PWs.4, 6 and 10 have omitted to state the fact that the police have seized the gold and silver articles in their presence in the manner known to law. Their testimonies are full of omissions, contradictions and inconsistencies.
41. Admittedly, the case is based on circumstantial evidence. In a circumstantial evidence, the prosecution has to prove that the chain of circumstances from which the conclusion of the guilt has to be drawn should be fully established. It is a primary principle that the accused 'must be' and not merely 'may be' guilty before a court to convict the accused. The Hon'ble Apex Court in the case of Boby Vs. State of Kerala, reported in 2023 LiveLaw(SC) 50, has held that,
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NC: 2024:KHC:8979-DB CRL.A No. 889/2019 there is not only grammatical but a legal distinction between 'may be proved' and 'must be or should be proved', and it has been held that, the facts so established should be consistent only with the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty and the chain of evidence must be so complete as not to leave any reasonable ground to the conclusion consistent with the innocence of the accused and must show that in all human probabilities the act must have been done by the accused. In the light of these guiding principles, we have to examine the present case.
42. Insofar as the last seen theory is concerned, we may refer to the ratio laid down in the case of State of U.P. v. Satish reported in (2005) 3 SCC 114, wherein the Hon'ble Apex Court held as under:
"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 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
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NC: 2024:KHC:8979-DB CRL.A No. 889/2019 deceased were last seen together, it would be hazardous to come to a conclusion of guilt in those cases. In this case there is positive evidence that the deceased and the accused were seen together by witnesses PWs 3 and 5, in addition to the evidence of PW 2."
(Emphasis supplied)
43. In Boby's case referred to supra, the Hon'ble Supreme Court held that, in order to attract Section 27 of the Evidence Act, two essential requirements necessary for application of Section 27 are viz., (1) the person giving information must be an accused of any offence and (2) he must also be in police custody. The provisions of Section 27 of the Evidence Act are based on the view that, if a fact is actually discovered in consequence of information given, some guarantee is offered thereby that the information was true and consequently the said information can safely be allowed to be given in evidence. Further, Section 27 requires the Investigating Officer to draw the discovery panchanama as contemplated under Section 27 of the Evidence Act.
44. In the case of Pulukuri Kottayya and Others Vs. King Emperor reported in 1946 SCC Online PC 47, the Hon'ble Privy Council has held as under:
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NC: 2024:KHC:8979-DB CRL.A No. 889/2019 "The second question, which involves the construction of s.27 of the Indian Evidence Act, will now be considered. That section and the two preceding sections, with which it must be read, are in these terms. [His Lordship read ss.25, 26 and 27 of the Evidence Act and continued:] Section 27, which is not artistically worded, provides an exception to the prohibition imposed by the preceding section, and enables certain statements made by a person in police custody to be proved. The condition necessary to bring the section into operation is that the discovery of a fact in consequence of information received from a person accused of any offence in the custody of a police officer must be deposed to, and there upon so much of the information as relates distinctly to the fact thereby discovered may be proved. The section seems to be based on the view that if a fact is actually discovered in consequence of information given, some guarantee is afforded thereby that the information was true, and accordingly can be safely allowed to be given in evidence; but clearly the extent of the information admissible must depend on the exact nature of the fact discovered to which such information is required to relate. Normally the section is brought into operation when a person in police custody produces from some place of concealment some object, such as a dead body, a weapon or ornaments, said to be connected with the crime of which the informant is accused. Mr. Megaw for the Crown, has argued that in such a case the "fact discovered" is the physical object produced, and that
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NC: 2024:KHC:8979-DB CRL.A No. 889/2019 any information which relates distinctly to that object can be proved. Upon this view information given by a person that the body produced is that of a person murdered by him, that the weapon produced is the one used by him in the commission of a murder, or that the ornaments produced were stolen in a dacoity, would all be admissible. If this be the effect of s. 27, little substance would remain in the ban imposed by the two preceding sections on confessions made to the police, or by persons in police custody. That ban was presumably inspired by the fear of the legislature that a person under police influence might be induced to confess by the exercise of undue pressure. But if all that is required to lift the ban be the inclusion in the confession of information relating to an object subsequently produced, it seems reasonable to suppose that the persuasive powers of the police will prove equal to the occasion, and that in practice the ban will lose its effect. On normal principles of construction their Lordships think that the proviso to s. 26, added by s. 27, should not be held to nullify the substance of the section. In their Lordships' view it is fallacious to treat the "fact discovered" within the section as equivalent to the object produced; the fact discovered embraces the place from which the object is produced and the knowledge of the accused as to this, and the information given must relate distinctly to this fact. Information as to past user, or the past history, of the object produced is not related to its discovery in the setting in which it is discovered. Information supplied by a person in custody that "I
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NC: 2024:KHC:8979-DB CRL.A No. 889/2019 will produce a knife concealed in the roof of my house"
does not lead to the discovery of a knife; knives were discovered many years ago. It leads to the discovery of the fact that a knife is concealed in the house of the informant to his knowledge, and if the knife is proved to have been used in the commission of the offence, the fact discovered is very relevant. But if to the statement the words be added "with which I stabbed A.", these words are inadmissible since they do not relate to the discovery of the knife in the house of the informant."
45. It could thus be seen that Section 27 of the Evidence Act requires that the fact discovered embraces the place from which the object is produced and the knowledge of the accused as to that, and the information given must relate distinctly to the said fact. The information as to past user, or the past history, of the object produced is not related to its discovery.
46. The Hon'ble Supreme Court while considering the provisions of sections 302 and 394 r/w section 34 of IPC and section 27 of the Evidence Act in the case of Digamber Vaishnav and Another -vs- State of Chhattisgarh reported in (2019) 4 SCC 522 has held at paragraphs-18, 19, 40, 41 and 42 as under:
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NC: 2024:KHC:8979-DB CRL.A No. 889/2019 "18. In Sujit Biswas v. State of Assam, (2013) 12 SCC 406, this Court, while examining the distinction between 'proof beyond reasonable doubt' and 'suspicion' has held as under:
"13. Suspicion, however grave it may be, cannot take the place of proof, and there is a large difference between something that "may be" proved, and something that "will be proved". In a criminal trial, suspicion no matter how strong, cannot and must not be permitted to take place of proof. This is for the reason that the mental distance between "may be" and "must be" is quite large, and divides vague conjectures from sure conclusions. In a criminal case, the court has a duty to ensure that mere conjectures or suspicion do not take the place of legal proof. The large distance between "may be" true and "must be" true, must be covered by way of clear, cogent and unimpeachable evidence produced by the prosecution, before an accused is condemned as a convict, and the basic and golden rule must be applied. In such cases, while keeping in mind the distance between "may be" true and "must be" true, the court must maintain the vital distance between mere conjectures and sure conclusions to be arrived at, on the touchstone of dispassionate judicial scrutiny, based upon a complete and comprehensive appreciation of all features of the case, as well
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NC: 2024:KHC:8979-DB CRL.A No. 889/2019 as the quality and credibility of the evidence brought on record. The court must ensure, that miscarriage of justice is avoided, and if the facts and circumstances of a case so demand, then the benefit of doubt must be given to the accused, keeping in mind that a reasonable doubt is not an imaginary, trivial or a merely probable doubt, but a fair doubt that is based upon reason and common sense".
19. It is also well-settled principle that in criminal cases, if two views are possible on evidence adduced in the case, one binding to the guilt of the accused and the other is to his innocence, the view which is favourable to the accused, should be adopted. This principle has a special relevance in cases wherein the guilt of the accused is sought to be established by circumstantial evidence [See Kali Ram v. State of Himachal Pradesh, (1973) 2 SCC 808].
40. The prosecution has relied upon the evidence of PW-8 to show that the accused and victims were last seen together. It is settled that the circumstance of last seen together cannot by itself form the basis of holding accused guilty of offence. If there is any credible evidence that just before or immediately prior to the death of the victims, they were last seen along with the accused at or near about the place of occurrence, the needle of suspicion would certainly point to the accused being the culprits and this would be one of the strong factors or circumstances inculpating them with the alleged crime purported on the victims. However, if the last seen evidence does
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NC: 2024:KHC:8979-DB CRL.A No. 889/2019 not inspire the confidence or is not trust worthy, there can be no conviction. To constitute the last seen together factor as an incriminating circumstance, there must be close proximity between the time of seeing and recovery of dead body.
41. In Arjun Marik & Ors. v. State of Bihar, 1994 Supp (2) SCC 372, it has been held as under:-
"31. Thus the evidence that the appellant had gone to Sitaram in the evening of 19-7-1985 and had stayed in the night at the house of deceased Sitaram is very shaky and inconclusive. Even if it is accepted that they were there it would at best amount to be the evidence of the appellants having been seen last together with the deceased. But it is settled law that the only circumstance of last seen will not complete the chain of circumstances to record the finding that it is consistent only with the hypothesis of the guilt of the accused and, therefore, no conviction on that basis alone can be founded".
42. In Kanhaiya Lal v. State of Rajasthan, (2014) 4 SCC, 715, the Court has reiterated that the last seen together does not by itself lead to the inference that it was the accused who committed the crime. It is held thus:
"12. The circumstance of last seen together does not by itself and necessarily lead to the inference that it was the accused who committed the crime. There must be something more establishing connectivity
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NC: 2024:KHC:8979-DB CRL.A No. 889/2019 between the accused and the crime. Mere non-explanation on the part of the appellant, in our considered opinion, by itself cannot lead to proof of guilt against the appellant"
(Emphasis supplied)
47. Whereas in the instant case, according to prosecution, the deceased Sunandamma was quarreling with the accused demanding repayment of the loan borrowed by him from Krishnaveni on the guarantee of deceased, therefore the accused assaulted the deceased with M.O.17 club in his house, carried the dead body on his motor cycle to the land where he set fire by pouring petrol and burnt the dead body. None of the witnesses have witnessed the assault by the accused. Therefore, the evidence of PW.4-the owner of the house and PWs.9 and 10 relatives of deceased alone cannot be believed. The remaining independent witnesses have not supported the case of the prosecution.
48. In view of the above proposition of law and the decisions cited supra, in the present case, we have independently analyzed and scrutinized the evidence of the material witnesses and found that there is practically no
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NC: 2024:KHC:8979-DB CRL.A No. 889/2019 evidence to show that the accused committed the murder of deceased Sunandamma for gain.
49. The learned trial Judge has appreciated the evidence of PWs.1 to 20 and has come to a wrong conclusion that the prosecution proved its case beyond reasonable doubt. In fact, the evidence of these witnesses has not been established that the deceased was murdered by the accused.
50. The prosecution, therefore, must be held to have failed to establish any case against the accused.
51. Though the prosecution is able to prove the fact that death of deceased is homicidal one, but it failed to prove the guilt of the accused beyond doubt. Hence we answer point No.1 in the affirmative holding that prosecution proved the homicidal death of deceased Sunandamma.
Point No.2:
52. Having given our careful consideration to the above submissions made by learned counsel for the parties and in the backdrop of the evidence discussed hereinabove and tested in the light of the principles of law highlighted above, it has to be held that the findings recorded by the Trial Court suffers from
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NC: 2024:KHC:8979-DB CRL.A No. 889/2019 manifest error and improper appreciation of the evidence on record. Therefore, the judgment of the trial court, convicting the accused is not sustainable in law.
53. For the aforesaid reasons, we are of the considered opinion that the learned Sessions Judge has wrongly held that the prosecution has proved the guilt of accused beyond all reasonable doubt. We find sufficient force in the contention of learned counsel for the accused and accordingly the judgment of conviction and order of sentence passed by the trial Court requires interference of this Court. Hence, we pass the following order :
ORDER i. The appeal is allowed.
ii. The impugned judgment and order of conviction and sentence dated 01.04.2019 passed in S.C.No.3/2015 by III Additional District and Sessions Judge, Ramanagara is hereby set aside.
iii. The accused is acquitted of the charges for the offences punishable under Sections 302 and 201 of IPC.
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NC: 2024:KHC:8979-DB CRL.A No. 889/2019 iv. The accused shall be set at liberty forthwith, if his detention is not required in any other case/s.
v. The order of trial Court with regard to disposal of properties-M.Os.1 to 23 is maintained.
vi. Communicate copy of this order to the trial Court and concerned prison forthwith.
Sd/-
JUDGE Sd/-
JUDGE MN List No.: 1 Sl No.: 9