Karnataka High Court
Sri. K. Subramani @ Mani vs The State Of Karnataka on 4 September, 2020
Equivalent citations: AIRONLINE 2020 KAR 1757, 2021 (1) AKR 179
Author: B. Veerappa
Bench: B. Veerappa
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 4TH DAY OF SEPTEMBER, 2020
PRESENT
THE HON'BLE MR. JUSTICE B. VEERAPPA
AND
THE HON'BLE MR. JUSTICE E.S. INDIRESH
CRIMINAL APPEAL NO.234 OF 2015
Between:
Sri. K. Subramani @ Mani
S/o Krishnappa
aged about 32 years
R/at near Thirumala Temple,
Chambenahalli Sarjapura Hobli
Anekal Taluk
Bangalore Rural District
Bengaluru - 562 125
...Appellant
(By Sri. C.H.Jadhav, Senior Counsel for
Smt. Rashmi Jadhav, Advocate)
And:
The State of Karnataka
By Sarjapura P.S
Through CPI Atibele P.S
Attibele - 562 107
.....Respondent
(Shri Vijayakumar Majage, Addl. SPP)
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This Criminal Appeal is filed under Section 374(2) of the
Code of Criminal Procedure praying to set aside the Judgment
dated 22.09.2014 and Order dated 23.09.2014 passed in SC
No.70 of 2013 by the III Additional District and Sessions
Judge, Bangalore Rural District, sitting at Anekal for the
offences P/U/S 302, 201 of IPC sentencing the
appellant/accused to under go imprisonment for life and pay
fine of Rs.1,00,000/- in default of payment of fine shall
undergo SI for three years for the offences P/U/S 302 of IPC;
and etc; the appellant/accused is sentenced to undergo RI,
for five years and to pay a fine of Rs.50,000/- in default to
undergo imprisonment for one year for the offences P/U/S
201 of IPC.
In this appeal, arguments being heard through video
conferencing, judgment reserved, coming on for
pronouncement this day, INDIRESH J, delivered the following:
JUDGMENT
This appeal is filed by the appellant-accused against the judgment of conviction dated 22nd September, 2014 passed in SC No.70 of 2013 and order of sentence dated 23rd September, 2014 on the file of the III Additional District and Sessions Judge, Bangalore Rural District, sitting at Anekal, sentencing the accused to imprisonment for life and to pay a fine of Rs.1,00,000/-, in default to undergo simple imprisonment for a period of three years for offence punishable under Section 302 IPC; so also the accused is 3 sentenced to undergo rigorous imprisonment for a period of five years and to pay a fine of Rs.50,000/- in default to undergo simple imprisonment for a period of one year for the offence punishable under Section 201 IPC.
I. FACTS OF THE CASE:
2. It is the case of the prosecution in brief that Smt. Tanjamma-complainant (PW1) wife of the deceased C.M. Subramani, has lodged a complaint on 19th September, 2012 at 8.30 am, stating that her husband C.M. Subramani and the accused-Subramani are the residents of Chembenahalli and both the accused and the deceased are friends. She further states that about one and half years back her husband has got some amount from the sale of their landed property and her husband has paid Rs.7 to 8 lakhs to the accused as loan.
It is averred in the complaint that, the deceased was often demanding repayment of the said amount from the accused and in this regard, the accused promised the deceased that he would repay the loan amount on 18th September, 2012, and accordingly, the deceased left the house on 18th 4 September, 2012 on his TVS Motorcycle bearing registration No.KA-51-U-1516. She further stated that the deceased had called to her mobile phone around 5.30 p.m. and informed that he is yet to receive the amount from the accused and has left the vehicle in the garage. The complainant and her daughter were waiting for the return of the deceased. At around 9.30 pm, the complainant had received a call from an unknown person stating that her husband met with an accident near Muttanallur Cross near Basavanna Temple and immediately, the complainant, her daughter along with some of the villagers, went to the spot and found that her husband was dead. Complainant suspects that the cause for the death of her husband is not on account of the accident, but it is a murder and accordingly, on the following day, i.e. on 19th September, 2012 around 8.30 am, the complainant, along with some of the villagers, visited Sarjapur Police Station and lodged the complaint before PW.12-C.Chandrappa, HC 695 and pursuant to the same, he has registered complaint in Crime No.182 of 2012 and sent First Information Report to the jurisdictional Court. PW.12 has intimated the registration 5 of case to PW.13-Investigation Officer and immediately, the Investigating Officer visited the spot and drawn-up spot panchanama before pancha and seized MOs.1 to 7, MO11 and 12 from the spot under panchanama vide Exhibit P2.
3. The Investigating Officer-PW.13 visited Vydehi Hospital and drawn up inquest panchanama (Ex.P4) on the dead body of the deceased-Subramani. On 20th September, 2012 at about 10.30 am the accused was apprehended and the Investigating Officer recorded the statement of the accused and seized MOs.8 to 10 at the instance of the accused under panchanama-Ex.P3 and submitted the seized properties to the jurisdictional court. So also, Investigating Officer produced the accused before the Court and submitted the clothes of the deceased-Subramani under PF.181 of 2012. After completion of investigation, PW13 filed charge sheet before the competent Court against the accused, alleging the commission of offence punishable under Section 302, 201 of Indian Penal Code. After acceptance of charge sheet, the Principal Civil Judge and JMFC, Anekal took cognizance of the 6 offence and committed the case to the Principal District and Sessions Judge, Bengaluru Rural District, by committal order dated 31st September, 2012, after following the procedure under Section 207 of Code of Criminal Procedure.
II. WITNESSES EXAMINED AND DOCUMENTS RELIED UPON:
4. In order to prove the guilt of the accused, the prosecution has examined thirteen witnesses as PW1 to PW13 and got marked 10 documents as Exhibit P1 to P10. The prosecution also produced 12 material objects and same were marked as MO1 to MO12. The Prosecution has examined, in all, thirteen witnesses and statement of the accused was recorded under Section 313 of Code of Criminal Procedure. The accused has denied all the incriminating evidence against him and has not adduced any independent witness nor produced any documents.
5. The learned Sessions Judge, after considering both oral and documentary evidence on record, by the judgment dated 22nd September, 2014, has held that the 7 prosecution has proved the guilt of the accused beyond reasonable doubt and convicted the accused for offence punishable under Section 302, 201 IPC and pursuant to same, passed order dated 23rd September, 2014 sentencing the accused to undergo imprisonment for life and to pay a fine of Rs.1,00,000/-, in default to undergo simple imprisonment for a period of three years for the offence punishable under Section 302 IPC, so also, sentenced the accused to undergo rigorous imprisonment for a period of five years and to pay a fine of Rs.50,000/-, in default to undergo simple imprisonment for a period of one year for the offence punishable under Section 201 IPC.
6. Being aggrieved by the judgment of conviction and order of sentence, the accused-appellant has approached this court in the present appeal.
7. We have heard the learned Senior Counsel Shri C.H. Jadhav appearing for Smt. Rashmi Jadhav for the appellant and Shri Vijayakumar Majage, learned Additional State Public Prosecutor appearing for the State. 8 III. ARGUMENTS ADVANCED BY THE LEARNED COUNSEL FOR THE APPELLANT:
8. Shri C.H. Jadhav, learned Senior Counsel for the appellant contended that the impugned judgment of conviction and order of sentence passed by the Sessions Court convicting the accused for the offence punishable under Section 302 and 201 IPC is erroneous and contrary to the material on record and same is liable to be set aside. He further submitted that the entire case of prosecution rests on circumstantial evidence and the chain of circumstance is not completed so as to establish the guilt of the accused. The learned Senior Counsel submitted that the learned Sessions Judge failed to consider the fact of inordinate delay of 12 hours in filing of complaint by PW1 not explained. By referring to evidence of PW1-wife of the deceased, he submitted that, PW1 is not an eye-witness to the incident, however, has deposed that she received a phone call at about 9.30 pm on 18th September, 2012 that her husband had met with an accident, and immediately, along with some of the 9 villagers, PW1 and her daughter went to the spot. However, she filed the complaint on next day, i.e. on 19th September, 2012 at about 8.00 am. PW1 deposed that though, she has signed the complaint, however, she was not aware of the contents of the complaint. Learned Senior Counsel, adverting to the evidence of PW7-daughter of the deceased, submitted that, PW7 has deposed that she, along with others, went to the Police Station on the date of incident i.e. on 18th September, 2012 and filed the complaint but the said complaint was suppressed by the prosecution and is not placed before the trial Court, however, on the following day, another complaint was lodged as Ex.P1 at about 8.00 am, as stated by PW1.
9. Learned Senior Counsel further contended that PW12-Head Constable deposed that on 19th September, 2012, PW1 along with 8-10 persons had appeared before him to file the written complaint, which means, that the complaint had come into existence with all due deliberation and concoction and these contradictions would leave time to give a particular 10 shape to the case of the prosecution. Learned Senior Counsel further contended that there were contradictions in the statement of PW1-complainant, PW7-daughter and PW12- Head Constable. Referring to the evidence of PW1, learned Senior Counsel submitted that, PW1 has deposed that when she went to the spot on 18th September, 2012, police and other persons were present even before their arrival, and she also deposed that the police were even present in the hospital. However, the perusal of the evidence of PW7 would establish the fact that, on 18th September, 2012 night itself she along with PW1 and villagers visited the police station, but police were not present in the Police Station; and PW12 deposed that, he was not aware about the arrival of the PW1, PW7 and others on 18th September, 2012 to the police station.
10. Learned Senior Counsel further contended that, the evidence of all the witnesses including the complainant PW.7, and PWs.3 to 6 were very much present at the spot, but the police did not register the complaint on the date of 11 incident itself and this aspect of the matter was not considered by the learned Sessions Judge at the time of examination of the case on merits. On reiterating the averments made in the complaint and the evidence of PW1, learned Senior Counsel drew the attention of the Court to the evidence of PW3, PW5 and PW13. He further contended that PW3 and other witnesses deposed that when they went to the spot along with villagers, the police, as well as ambulance, and others were present. PW3 further deposed that during the night itself, police made enquiries about the incident, but case was not registered. Learned Senior Counsel, adverting to the deposition of PW5, who is a relative of deceased, submitted that police and several others were present when they went to the scene of offence on 18th September, 2012 itself. However, contradicting the aforesaid deposition of PW1, PW3, PW5, PW7 and PW12, PW13-Investigating Officer has deposed that on receipt of information from the Sub Inspector of Police, PW13 and others went to the spot at about 10.30 pm on the date of the incident itself and thereafter, the body of the deceased was shifted to hospital 12 without even conducting the mahazar. Emphasising the deposition made by these witnesses, learned Senior Counsel submitted that, the narration of these facts, would clearly indicate that the complainant and her relatives were very much aware of the incident and it was a case of accident and was not a case of murder, as stated by the prosecution and the prosecution has falsely implicated the accused without any basis and the police were very much present at the scene of offence on 18th September, 2012, so also even in the hospital and complaint-PW1 and daughter-PW7 went to the Police Station on the date of accident itself, but the case was not registered, for the reasons best known to them and on the following day i.e. on 19th September, 2012, when the complainant and other 8-10 persons went to the police station, PW12 registered the case against the accused without any basis and the complaint had come into existence after due deliberation and concoction and that there is no explanation as to why case was not registered immediately after the incident and thereby, there is an unexplained delay in registering the case by the complainant and same would 13 falsify the case of the prosecution on the ground of delay in registering the complaint.
11. In order to substantiate his contentions, learned Senior Counsel places reliance on judgment in the case of GANESH BHAVAN AND ANOTHER v. STATE OF MAHARASHTRA reported in AIR 1979 SC 135 and submitted that, though the material witnesses were available for examination, delay in recording the statement of witnesses with a view to decide about the shape to be given to the case and it casts a cloud of suspicion to the story of prosecution and therefore, the impugned judgment of conviction and order of sentence is liable to be set aside.
12. The next submission of the learned Senior Counsel was that, the prosecution failed to prove the motive in the instant case. He submitted that, the case of the prosecution that the accused had borrowed certain amount from the deceased and the deceased was insisting for repayment of loan amount and the same was delayed by the accused and in order to get rid of loan transactions, the 14 accused had committed the murder of the accused. PW1-wife of the deceased, deposed that there was money transaction between the accused and the deceased and PW7-daughter has also deposed to that effect. However, PW5-Srinivas, who has been examined by the prosecution as a common friend of the accused and deceased, has deposed that he was not aware of any such financial transaction between the accused and the deceased and that being the evidence on record, in the absence of any document or reliable evidence, the learned Senior Counsel argued that, Prosecution has failed to establish circumstance of motive. In order to substantiate his submissions, learned Senior Counsel submitted that PW1, PW3 and PW7 are interested witnesses. PW3 is a hearsay evidence regarding money transaction and was partly treated hostile by the prosecution side, and in that view of the matter, the prosecution has failed to prove the circumstance of motive to bring home the guilt of the accused, and therefore, the impugned judgment of conviction and order of sentence is liable to set aside.
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13. In order to substantiate his contentions, he relied upon the judgment of the Hon'ble Supreme Court in SATHISH KUMAR v. STATE OF HIMACHAL PRADESH reported in AIR 2020 SC 1766. Referring to paragraphs 11, 20 and 23 of the said judgment, he contented that, prosecution fails to prove the motive of the accused as alleged, and thereby the appellant is entitled for the benefit of doubt under the facts and circumstances of the case.
14. Learned Senior Counsel, nextly, submitted that as could be seen from the entire material on record, it is nothing but a case of accident. In order to fortify his submissions, learned Senior Counsel referred to the evidence of PW1 wherein, she has stated that she had received information at about 9.30 pm that her husband had met with an accident and she has admitted the fact that there was a telephonic call informing the complainant that the deceased had met with an accident. PW2-panch witness deposed that the police have secured his presence at the spot on the pretext of accident on the previous day, i.e. on 18th September, 2012 and there 16 were several vehicles plying on the road transporting bricks and sand and it was a busy road and thereby, the cumulative effect of the circumstances would establish the fact that the case of death of the deceased is on account of accident and the allegation made against the accused is on considering the erroneous factual aspects. In addition to this, learned Senior Counsel drew the attention of the Court to the evidence of PW13-Investigating Officer, so also of PW3. PW4 and PW5 are relatives of PW1. PW.3 deposed that, when he went to the spot on the night of the date of incident, he noticed the dead body on the side of the road and blood-stains were present on the bricks of the compound wall, which indicates that he might have dashed his motorcycle against the wall and might have suffered head injuries and succumbed to the injuries. In that view of the matter, learned Senior Counsel submitted that the prosecution has deliberately implicated the accused in the aforesaid criminal case without any basis or cogent materials to prove the guilt and as such, these aspects of the matter were lost sight of the learned Sessions Judge 17 and therefore, the impugned judgment of conviction and order of sentence is liable to be set aside.
15. Adverting to the last seen theory, learned Senior Counsel submitted that, the last seen circumstance is an important circumstance in a case which rests on circumstantial evidence. The Prosecution has not led satisfactory evidence to establish the last seen circumstance. PW1-wife of the deceased, deposed that the deceased left the house at about 8.30 am and later deceased did not return. PW.7-daughter of the deceased, deposed that the deceased left the house at 4.00 pm, which contradicts the evidence between the wife and the daughter and both of them have not deposed that the deceased left the house along with the accused. PW3 deposed that on 19th September, 2012 at about 2.00 pm he noticed the presence of the accused and the deceased but not stated about the actual place. He further deposed that, surprisingly, the incident had taken place on 18th September, 2012 as per the case of the prosecution and in that view of the matter, PW3 was treated 18 partly hostile and re-examined to correct the version made in the examination-in-chief and the evidence of PW3 is not at all helpful to the case of prosecution and is liable to be discarded. Besides, PW3 also deposed that on the date of incident, at about 8.00 p.m. the accused was present in the shop. Learned Senior Counsel also referred to the evidence of PW5 who has deposed that at about 8.00 pm he noticed the accused near bus stand circle in front of Bakery, but has not specified the date and in that view of the different or contradictory statements of the above witnesses, the prosecution has failed to prove the last seen circumstance, which is highly suspicious, shaky and untrustworthy and as such, the case of the prosecution with regard to last seen circumstance is to be disbelieved.
16. Nextly, learned Senior Counsel while drawing the attention of the Court to the evidence of PW13-Investigating Officer, submitted that, PW13 has deposed that he visited the spot at about 10.00 pm and shifted the body to the hospital, but case was not registered, and there is no explanation as to 19 why body was shifted immediately without registering the case. Learned Senior Counsel vehemently argued that it is a clear case of unfair investigation conducted by PW13 and the entire case rests on the circumstantial evidence and the prosecution has not satisfactorily proved the chain of incidence and in that view of the matter, prosecution failed to prove the guilt of the accused and accordingly, the impugned judgment of conviction and order of sentence is erroneous and is liable to be set aside. Learned Senior Counsel further submitted that, the evidence which has been produced is not sufficient to corroborate the acts of involvement of appellant- accused in the case. The trial Court ought to have given benefit of doubt to the accused. Instead of doing so, the trial Court has erroneously convicted the accused. On these grounds he prayed to allow the appeal and to set aside the judgment of conviction and order of sentence.
17. In support of his submissions, learned Senior Counsel relied upon the judgment of Hon'ble High Court of Delhi in the case of SHIV NARAYAN v. STATE (NCT OF DELHI) 20 reported in (2001) DLT 681 and contended that the recovery of MOs made pursuant to statement of the accused under Section 161 of Code of Criminal Procedure is contrary to recovery admissible under Section 27 of Evidence Act and accordingly, he submitted that, viewed from any angle, the prosecution has miserably failed to establish the guilt of the accused beyond reasonable doubt and the impugned judgment and order is without any cogent reasons, and is liable to be set aside.
IV. ARGUMENTS ADVANCED BY THE LEARNED ADDITIONAL STATE PUBLIC PROSECUTOR:
18. Per contra, Shri Vijaykumar Majage, learned Additional State Public Prosecutor sought to justify the impugned judgment of conviction and order of sentence passed by the learned Sessions Judge. The learned Additional State Public Prosecutor, as regards the motive is concerned, submitted that, the prosecution has proved the guilt of the accused through the evidence of PW1, PW3 and PW7. Placing reliance on the evidence of these witnesses, the learned 21 Additional SPP, submitted that the deceased-Subramani has given Rs.7 to 8 lakh as loan to the accused and the deceased was demanding the same frequently with the accused to repay the loan amount and as such the accused developed inimical attitude towards deceased-Subramani. PW1-wife of the deceased deposed that the accused is the friend of her husband and the deceased sold the land for valuable consideration and thereafter the deceased has paid Rs.7-8 lakh to the accused-convict. PW3 has deposed that the deceased-Subramani has given loan to the accused. PW7- daughter of the deceased, also deposed to the effect that her father has given amount to the accused and her father was demanding repayment of said loan amount from the accused but the accused was postponing the repayment on one or the other pretext. By referring to the deposition of PWs.1, 3 and 7, the learned Additional SPP submitted that the Prosecution has proved the motive to bring home the guilt of the accused.
19. The next submission of the Additional SPP is with regard to the last seen theory. In this regard, he refers to 22 the evidence of PW3, PW6 and PW7. PW3 deposed that he has seen the deceased and the accused near Chambenahalli Gate at around 2.00 pm on 19th September, 2012 and thereafter, both of them left towards Dommasandra by TVS moped. PW5 deposed that he has seen the deceased and the accused at around 8.00 p.m. and both of them left towards Dommasandra by TVS moped. PW6 deposed that the deceased has informed him around 6.00 pm that he is going to Chandapura and has parked his vehicle in the garage. PW7 deposed that, around 4.00 pm, her father had left taking the pass-book and cheque-book to meet the accused and around 7.00 pm she called on his mobile phone and her father had informed her that he is in the office of the accused and would return to home after receiving money from the accused. By referring to the evidence of these four witnesses, learned Additional SPP submitted that there is a chain of link to prove the circumstantial evidence to the effect that the deceased and accused were together at the time of commission of the crime. The learned Additional SPP further submitted that PW11-Doctor deposed that the death of the 23 deceased is on account of the injuries sustained as per post mortem report (Exhibit P5). Referring to the evidence of PW11, he submitted that the injury No.8 is grievous in nature and the injuries 5 to 7 could occur on account of the fall on a rough or hard surface and accordingly, the learned Additional SPP submitted that the Prosecution has proved the guilt of the accused beyond reasonable doubt.
20. Learned Additional SPP further submitted that recovery of clothes, made at the instance of the statement of the accused by drawing statement (Exhibit P3), would clearly establish the guilt of the accused and the same was proved by the prosecution through the evidence of PW5. Lastly, learned Additional SPP submitted that the blood stains on the clothes of the accused and the deceased were proved through the examination of PW13 and PW11 and the perusal of the Forensic Science Laboratory report vide Exhibit P13, would establish the fact that the blood stains found on the clothes of the accused tallies with the 'O' blood group on the clothes of the deceased and in that view of the matter, learned 24 Additional SPP submitted that the impugned judgment of conviction and the order of sentence is in accordance with law and the prosecution has proved the guilt of the accused beyond reasonable doubt and accordingly prays for dismissal of the appeal.
V. POINTS FOR DETERMINATION:
21. In view of the aforesaid rival contentions urged by the learned counsel for the parties, the points that arise for our consideration in the present appeal are:-
1. Whether the learned Sessions Judge is justified in convicting the accused for the offence under Section 302, 201 of Indian Penal Code and sentencing him to undergo life imprisonment, in view of the specific complaint (Exhibit P1) and the evidence of PW 1, 3, 5 and 13, in the facts and circumstance of the case?
2. Whether the impugned judgment of conviction and order of sentence calls for interference in this appeal?25
VI. CONSIDERATION:
22. We have given our anxious consideration to the submissions made by the learned Senior Counsel appearing for the appellant and the learned Additional SPP appearing for the State and perused the entire material including the original records carefully.
23. In order to prove the case of the prosecution, it had got examined thirteen witnesses. In order to re- appreciate the entire material on record including the oral and documentary evidence, it is relevant to consider the evidence of the prosecution witnesses and the documents relied upon.
24. PW.1-Tanjanna is the wife of the deceased and also is the complainant. She deposed that the deceased has informed her that, the accused had promised the deceased- Subramani to repay the amount of Rs.7 to 8 lakh on 18th September, 2012 and accordingly, he left the house in the morning. She further deposed that at around 5.30 pm, she received a call from the deceased, and at around 9.30 pm she has received a call from an unknown person stating that her 26 husband has met with an accident near Basavanna Temple, Muttanallur Cross and accordingly, she, her daughter-PW7 and some of the villagers visited the spot. She found the police and other villagers at the spot. On the following day, she visited Sarjapur Police Station at around 8.00 a.m. and lodged the complaint vide Exhibit P1 and she further deposed that she suspect the involvement of the accused stating that the cause for the death of her husband is not due to the accident, but is a murder. She further deposed that she had visited the hospital on the date of accident itself, however, she has not lodged the complaint as there was no police personnel in the police station.
25. PW.2-Venkatesh is the pancha for scene of offence vide mahazar Exhibit P2. He has deposed that Police had secured him by stating that the accident had occurred and as a result of the same C.M.Subramani died, and he was requested by the Police to act as a pancha. He deposed that a large number of vehicles as well as trucks containing sand 27 and brick were plying on the said road. He has also deposed that PW4 and PW5 are the relatives of the complainant.
26. PW3-Devaraj has turned partly hostile to the case of the prosecution. He deposed regarding the money transaction between the accused and the deceased and further he deposed that on 19th September, 2012 around 2.00 pm, he noticed the deceased and the accused were taking near Chambenahalli Cross, and accused returned at about 8.00 pm, and he further deposed that the accused also visited the spot along with him and others on the date of the incident. Police made enquiry during the night but no statement was recorded. He was re-examined by the prosecution to remove the admissions made in the examination-in-chief.
27. PW4-G. Venkatesh, who is the pancha for Exhibit P3, speaks regarding recovery of clothes of deceased, MOs.8 to 10.
28. PW5-Srinivas is the brother of PW4 and is the relative of the deceased and he deposed about the last seen 28 circumstance. He has deposed that around 8.00 pm he has seen the accused and the deceased talking near bus-stand Circle and after hearing about the alleged incident, he went to the spot with other persons and the police were present.
29. PW6-R.Subramani is working as Dairy Secretary, Chambenahalli. He deposed that, deceased had told him that at around 6.00 pm he was going to Chandapura to recover the amount from the accused. He further deposed that police have not recorded his statement.
30. PW7-Hemavati is the daughter of the deceased. She deposed about the loan transaction between the accused and the deceased and she further deposed that on 18th September, 2012 at about 4.00 pm, the deceased left the house along with passbook and cheque book informing that he is proceeding towards the office of the accused. She further stated that around 9.00 pm, she called the deceased, however, he has not received the call and at around 9.30 pm someone has called stating about the death of her father. She further deposed that on the date of accident itself, 29 herself, her mother (PW1) and other villagers have visited the police station and lodged the complaint.
31. PW8-Subramani, is the common friend of deceased and accused. He deposed that he is not aware about the loan transaction between the deceased and accused and his evidence is only a hearsay.
32. PW9-Nanjegowda HC No.612 is the Head Constable. He has deposed that he has submitted the complaint and the First Information Report to the jurisdictional Court.
33. PW10-Nataraj PC No.954 of Sarjapur Police Station, who has arrested and brought the accused to the Police Station on 20th September, 2012.
34. PW11-Firoz Khan is the Doctor who has conducted postmortem (Exhibit P5) on the dead body of the deceased on 19th September, 2012 at about 12.30 pm. He had noticed eight external injuries on the body and opined that death of the deceased was due to shock and hemorrhage and has 30 deposed that the injuries suffered might be because of a fall on the hard and rough surface.
35. PW12-C.Chandrappa HC No.695 is the Head Constable who has received the complaint on 19th September, 2012 at around 8.30 am and registered a criminal case and sent First Information Report to the jurisdictional Court.
36. PW13-Venkatesh Shetty, Police Inspector of Attibele Circle who is the Investigation Officer in the case, has deposed that on 18th September, 2012, pursuant to the information made by the Sub-Inspector of Police, he has visited the spot along with his team and found the dead body and also a TVS XL Moped bearing registration No.KA-51-U- 1516 and informed the Sub-Inspector to send the body to Vydehi Hospital for investigation. He further deposed that on 20th September, 2012, he has arrested the accused and recorded his voluntary statement. Thereafter, pursuant to the information made by the accused, he has recovered Mos.8 to 10 before the panchas. After completion of the 31 investigation, he has filed the charge-sheet before the jurisdictional Court.
37. We have carefully re-appreciated the evidence of the witnesses and perused the entire records. It is the bounden duty of the Prosecution to prove the fact that the death of Subramani is a homicidal death. In this behalf, the Prosecution got examined PW11 and PW13 and also got examined PW6-inquest mahazar pancha. PW11-Doctor, who has conducted autopsy on the body of the deceased- Subramani opined that the cause of death was on account of shock and hemorrhage in addition to multiple injuries sustained (Exhibit P5). On going through the evidence of these witnesses, the same would make it clear that they have deposed that there were injuries on the right side of the neck and also on the right side forehead just above the eye-brow and also, there was blood oozing from the mouth. On the basis of the said evidence of PW11 and PW13 and the inquest mahazar, it could be safely held that the death of deceased- Subramani is not homicidal death.
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38. In order to establish the case of the prosecution, the prosecution got examined PW1-wife of the deceased who is a star witness to the prosecution to prove the guilt of the accused. PW1 deposed that accused is a friend of her husband (deceased-Subramani) and her husband has given loan amount to the accused one year back and her husband was enquiring with the accused for repayment of the same. She further submitted that the accused was postponing repayment on one or the other pretext. She also deposed that on the date of incident, i.e. 18th September, 2012, deceased has informed her that the accused has promised the deceased about the repayment of the amount and accordingly, deceased left the house at 8.00 am. On perusal of the evidence of PWs.1, 3 and 7, it could be seen that they have deposed that immediately after the incident, i.e. on same night, they have visited the Police Station, however, not lodged any complaint with regard to the incident. PW1 submitted that when she has visited the place of occurrence at around 10.00 pm, after receiving a phone call from someone informing that her husband had met with an 33 accident, police were already present at the spot and she deposed that she visited the Police Station on the next day morning around 8.00 am to lodge complaint. In contradiction to the same, PW7-daughter of PW1, deposed that on the date of incident itself herself, along with PW1 and other villagers, have visited police station and lodged the complaint. However, there is no record produced by the prosecution to prove the registration of the case on the date of incident itself. PW-13 Investigating Officer deposed that he has visited the spot between 10.30 and 10.45 pm and has seen PW1, PW7 and other villagers at the spot. But, strangely, without registering the case, body of the deceased was sent to hospital for postmortem. In this aspect, the delay on the part of prosecution to register the case as well recording the statement of witnesses is of much significance. In this regard, the law declared by the Hon'ble Supreme Court in the case of G.P. PATEL AND ANOTHER v. STATE OF MAHARASHTRA reported in AIR 1979 SC 135 would aptly applicable to the case of the prosecution. The delay caused in recording the statement of material witnesses by the 34 prosecution would cast suspicion on the credibility of the entire investigation. In the said judgment, the Hon'ble Supreme Court has held that delay of a few hours, simpliciter, in recording the statements of eye-witnesses may not, by itself, amount to a serious infirmity in the prosecution case. But it may assume such a character if there are many concomitant circumstances to suggest that the investigator was deliberately marking time with a view to decide about the shape to be given to the case and the eye-witnesses to be introduced. Thus under the facts and circumstances of the case delay in recording the statements of the material witnesses, casts a cloud of suspicion on the credibility of the entire warp and woof of the prosecution story. It is further observed that, normally, in a case where the commission of the crime is alleged to have been seen by witnesses who are easily available, a prudent investigator would give to the examination of such witnesses precedence over the evidence of other witnesses.
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39. In the case of JAGDISH PRASAD v. STATE OF MADHYA PRADESH reported in AIR 1994 SC 1251 the Hon'ble Supreme Court has held that where the testimony of witnesses is clouded with grave suspicion and discrepancy, particularly, recording of statement of witnesses and conviction based on such testimony is not safe and in the instant case, the statement of the PW1, PW3 and PW7 with that of PW13 contradicts regarding registration of case and conducting investigation and creates a suspicion about the involvement of the accused.
40. The aforesaid principle was reiterated by the Hon'ble Supreme Court in the case of RAJ KUMAR SINGH V. STATE OF RAJASTHAN reported in AIR 2013 SC 3150. At paragraph 17 it is observed thus:
"17. 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 `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' 36 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 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 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."
41. After going through the entire records and deposition of the prosecution witnesses, mainly PW1, PW3 and PW7, it is relevant to mention the law declared by the 37 Hon'ble Supreme Court in the case of SUJIT BISWAS v. STATE OF ASSAM reported in AIR 2013 SC 3817 wherein it is observed as follows:
"In a case of circumstantial evidence, the judgment remains essentially inferential. Inferences are drawn from established facts, as the circumstances lead to particular inferences. The Court must draw an inference with respect to whether the chain of circumstances is complete, and when the circumstances therein are collectively considered, the same must lead only to the irresistible conclusion, that the accused alone is the perpetrator of the crime in question. All the circumstances so established must be of a conclusive nature, and consistent only with hypothesis of the guilt of the accused. If the circumstances proved in case are consistent either with innocence of accused or with his guilt then the accused is entitled to the benefit of doubt. When it is held that a certain fact has been proved, then the question that arises is whether such a fact leads to the inference of guilt on the part of the accused person or not, and in dealing with this aspect of the problem, benefit of doubt must be given to the accused, and a final inference of guilt against him must be drawn only if the proved fact is wholly inconsistent with the innocence of the accused, and is entirely consist with his guilt. An 38 adverse inference can be drawn against the accused only and only if the incriminating material stands fully established, and the accused is not able to furnish any explanation for the same. However, the accused has the right to remain silent, as he cannot be forced to become a witness against himself."
42. As regards drawing of conclusion with regard to guilt is concerned, the Hon'ble Supreme Court, in the case of BRAJENDRASINGH v. STATE OF M.P., has observed that there must be a chain of events so complete, so as not to leave any substantial doubt in the mind of the Court. At paragraph 16 of the Judgment, it observed as follows:
"16. There is no doubt that it is not a case of direct evidence but the conviction of the accused is founded on circumstantial evidence. It is a settled principle of law that the prosecution has to satisfy certain conditions before a conviction based on circumstantial evidence can be sustained. The circumstances from which the conclusion of guilt is to be drawn should be fully established and should also be consistent with only one hypothesis, i.e. the guilt of the accused. The circumstances should be conclusive and proved by the prosecution. There must be a chain of events so complete so as not to 39 leave any substantial doubt in the mind of the Court. Irresistibly, the evidence should lead to the conclusion inconsistent with the innocence of the accused and the only possibility that the accused has committed the crime. To put it simply, the circumstances forming the chain of events should be proved and they should cumulatively point towards the guilt of the accused alone. In such circumstances, the inference of guilt can be justified only when all the incriminating facts and circumstances are found to be incompatible with the innocence of the accused or the guilt of any other person...."
43. After going through investigation made by PW13, we are of the opinion that, the prosecution did not find any explanation in the testimonies of PW1, PW3, PW7 and PW13 to complete the chain link and bring home the guilt of the accused. In this regard, the learned Senior Counsel appearing for the appellant rightly pointed out about the unfair investigation made by the Investigation Officer. He vehemently argued about the failure on the part of the Investigation Officer to register the case on the date of incident and submitted that the prosecution has failed to 40 prove the guilt of the accused beyond reasonable doubt, and therefore, the accused is entitled to be acquitted in the case. Non-registration of the case on the date of the incident and recording the statement of the witnesses at the spot, is fatal to the case of the prosecution. We have perused the evidence of PW13 in detail. He deposed that he visited the spot at about 10.00 pm on 18th September, 2012 and shifted the body to the hospital, but has not registered the case and there is no explanation as to why the body was shifted in a hurried manner. PW7-daughter of the deceased has admitted that she along with her mother PW1 and other villagers visited the Police Station on the same night itself and lodged the complaint and the said aspect of the matter was suppressed by the prosecution during the course of the trial. In this regard, the law declared by the Hon'ble Supreme Court in the case of BABULAL BHAGWAN KHANDARE & ANR v. STATE OF MAHARASHTRA reported in AIR 2005 SC 1460, wherein the Hon'ble Supreme Court has held that the non- explanation of the injuries sustained by the accused at the time of occurrence or in the course of altercation is very 41 important circumstance. In the present case, admittedly, the deposition of PWs.1, 3 and 7 to the effect that, when they reached the spot at around 10.00 pm they saw the presence of police at the spot along with some of the villagers, assumes much greater importance in the matter, had the Investigation Officer recorded the statement of persons available at the spot on the date of occurrence of the accident. In the instant case, the prosecution witnesses are consisting of interested and inimical witnesses and the remaining are official witnesses who have supported the prosecution case. Non-registration of the case on the date of incident would clearly establish about the lethargic attitude of the officer conducting investigation. It is also to be mentioned here that though the cell phones of the deceased and accused were seized by the investigation officer, however the same were not produced before the court below, for examination inasmuch as, the investigation officer failed to obtain the call details of the cell phones of the accused and the deceased to prove the guilt of the accused beyond reasonable doubt. That apart, no scientific method of 42 investigation was pressed into service to know the truthfulness in the matter to bring home the guilt of the accused by examining the call details of the cell phones of the accused and the deceased. It is also equally important to examine, who has called the complainant-PW1 on 19th September, 2012 at 9.30 pm reporting the death of the deceased. No further investigation was made to trace the call details of PW1 an PW7 to prove the interaction with the deceased, as alleged by the prosecution. In this aspect, the law declared by the Hon'ble Supreme Court in the case of GANESH DATT v. STATE OF UTTARAKHAND reported in 2014 CRI.L.J 3128 is aptly applicable to the facts of the case on hand to accept the arguments of the learned Senior Counsel with regard to lethargic attitude of the investigation officer conducting investigation, and we are of the considered opinion that this kind of attitude on the part of the Investigation Officer is deplorable.
44. It is also relevant to mention here that, the learned Sessions Judge also lost sight of the evidence of PW13 while 43 passing the impugned judgment, which is of more significance in circumstantial evidence. When PW1 and PW7 of the prosecution witnesses clearly admit that police were on the spot as well as when they went to hospital they noticed the police and when they went to police station, however, did not find police in the station on the date of the incident. But not registering the case is fatal to the case of the prosecution. That apart, Mos.1 to 7, which were lying on the spot, seized by the prosecution through mahazar Exhibit P2, which is conducted on the following day, i.e. on 19th September, 2012. In that view of the matter, the seizure of the articles from the spot, have no evidential value. That apart, the cell phone belonging to the deceased, though seized, is not examined and produced before the court. Similarly, the bag in which the clothes of the accused were seized is also not produced before the Court. The Prosecution has failed to examine the call details of the mobile belonging to the accused and the deceased on 16th, 17th and 18th September, 2012 with utter disregard to their case, and the same was not produced before the Court which would clearly clinch the benefit of 44 doubt and suspicion in favour of the accused. In this regard, perusal of Exhibit P1-complaint would clearly establish the fact that the complainant-PW1 stated that she suspect the involvement of the accused in the alleged untoward incident. In that view of the matter, we are of the considered view that, the prosecution has failed to prove the guilt of the accused beyond reasonable doubt and it is the settled principle of law that if there are two views available before the court to prove the guilt of the accused, then the view which is favourable to the accused should be accepted.
45. With regard to sustain the conviction on the basis of circumstantial evidence, the Hon'ble Supreme Court, in the case of DIGAMBER VAISHNAV v. STATE OF CHHATTISGARH reported in (2019)4 SCC 522, laid down that the following three conditions which must be satisfied:
i) the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established;45
ii) those circumstances should be of a definite tendency unerringly pointing towards the guilt of the accused; and
iii) the circumstances, taken cumulatively, should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else, and it should also be incapable of explanation on any other hypothesis than that of the guilt of the accused.
46. Further, the Hon'ble Supreme Court, in the case of VARKEY JOSEPH v. STATE OF KERALA reported in 1993 Supp (3) SCC 745 has held that, suspicion is not the substitute for proof. There is a long distance between 'may be true' and 'must be true' and the prosecution has to travel all the way to prove its case beyond reasonable doubt.
47. The prosecution has alleged financial transaction as a motive for commission of the offence. The entire motive of financial transaction is negated, as no documents were produced to prove the financial transaction between the 46 deceased and accused. The testimony of PW1-complainant also contradicts with that of PW7-daughter and PW3. At this stage, it is relevant to notice that there was an unexplained delay in reporting the crime, as rightly pointed out by the learned Senior Counsel for the appellant. With regard to occurrence of incidence, the testimony of PW1 is at 8.00 am on 18.09.2012; PW3 is at 2.00 pm on 19.09.2012; PW5 is at 8.00 pm about one and half year back; and PW7 is at 4.00 pm on 18.09.2012, creates probable doubt in the case of prosecution to complete the circumstances to prove the guilt of the accused and would leave an element of suspicion in the mind of court.
48. Our view is fortified by the dictum of the Hon'ble Supreme Court in the case of STATE OF UTTAR PRADESH v. RAMESH PRASAD MISRA AND ANOTHER reported in (1996)10 SCC 360, wherein it has been held that even if material witnesses do not speak the truth, the circumstantial evidence should be scanned having regard to the ordinary human conduct and probabilities. Even after extending doubts in 47 favour of the accused, circumstantial evidence can conclusively establish the commission of offence by the accused.
49. In the case of SHARAD BIRDHICHAND SARDA v. STATE OF MAHARASHTRA, at paragraphs 153 and 154, it has been observed as under:
"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 [(1973) 2 SCC 793 : 1973 SCC (Cri) 1033 : 1973 Crl LJ 1783] where the following 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 48 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 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.
154. These five golden principles, if we may say so, constitute the panchsheel of the proof of a case based on circumstantial evidence."
50. In fact, in the aforesaid case, there is a detailed discussion of judicial precedent on the nature, character and essential proof required in a criminal case which rests on circumstantial evidence alone. Reference has been made to HANUMANT VS. STATE OF MADHYA PRADESH, reported in AIR 1952 SC 343 which is a locus classicus and which has been 49 followed uniformly and applied in a large number of later decisions. In HANUMANT (supra) it has been observed by Mahajan J. as under:
"It is well to remember that in cases where the evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should in the first instance be fully established, and all the facts so established should be consistent only with the hypothesis of the guilt of the accused. Again, the circumstances should be of a conclusive nature and tendency and they should be such as to exclude every hypothesis but the one proposed to be proved. In other words, there must be a chain of evidence so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability the act must have been done by the accused."
51. Reliance could also be placed on KING v. HORRY [1952 NZLR 111], wherein it has been observed that before a person could be convicted, the fact of death should be proved by such circumstances as render the commission of the crime morally certain and leave no ground for reasonable doubt. 50 The circumstantial evidence should be so cogent and compelling as to convince that upon no rational hypothesis other than murder can the facts be accounted for. In fact the expression "morally certain" has been substituted by Lord Goddard by "such circumstances as render the commission of the crime certain". HORRY's case has been approved by the Hon'ble Supreme Court in ANANT CHINTAMAN LAGU v. STATE OF BOMBAY reported in AIR 1960 SC 500.
52. Further, HANUMANT's case (supra) has not been expressly noticed in some other decisions but the same principles have been expounded and reiterated in NASEEM AHMED v. DELHI ADMINISTRATION reported in (1974) 3 SCC 668; in MOHAN LAL v. STATE OF U.P reported in AIR 1974 SC 1144; SHANKARLAL GYARASILAL DIXIT v. STATE OF MAHARASHTRA reported in (1981) 2 SCC 35; and M.G. AGARWAL v. STATE OF MAHARASHTRA reported in AIR 1963 SC 200 which is a five Judge Bench decision. In the aforesaid case, it has been observed that if the circumstances proved in the case are consistent either with the innocence of the 51 accused or with his guilt, the accused is entitled to benefit of doubt.
53. In VIJAY SHANKAR v. STATE OF HARYANA reported in (2015) 12 SCC 644, it has been held that in a case based on circumstantial evidence, the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established; that these circumstances should be of a definite tendency, unerringly pointing towards the guilt of the accused; that the circumstances taken cumulatively should form a chain so complete that there is no escape from the conclusion that within all human probability, the crime was committed by the accused and they should be incapable of explanation of any hypothesis other than that of the guilt of the accused and inconsistent with their innocence. The aforesaid observations are based on the judgment in SHARAD BIRDHICHAND SARDA (supra) and the same view was reiterated in BABLU v. STATE OF RAJASTHAN reported in (2006) 13 SCC 116.
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54. In the case of NIZAM AND ANOTHER v. STATE OF RAJASTHAN reported in (2016) 1 SCC 550, it has been held that though "last seen theory" is an important link in the chain of circumstances that would point towards the guilt of the accused with some certainty and to shift the burden of proof of the accused and the accused to offer a reasonable explanation as to the cause of death of the deceased, but it is not prudent to base the conviction solely on "last seen theory". The "last seen theory" should be applied taking into consideration the case of the prosecution in its entirety and keeping in mind the circumstances that precede and follow the point of being so last seen.
55. In the context of the 'last seen theory', Section 106 of the Evidence Act states that when any fact is especially within the knowledge of any person, the burden of proving that fact is upon him. Thus, if a person is last seen with the deceased, he must offer an explanation as to how and when he parted company. If he does so, he should be held to have discharged his burden. In a case based on circumstantial 53 evidence, if the accused fails to offer a reasonable explanation in discharge of the burden placed on him, that itself provides an additional link in the chain of circumstances proved against him. But, Section 106 of the Evidence Act does not shift the burden of proof in a criminal trial on the accused as it is always on the prosecution. But, the Court can consider the failure of the accused to adduce any explanation of facts which are especially within his knowledge, as an additional link which completes the chain.
56. It is well settled that there is no embargo on the Appellate Court reviewing the evidence upon which an order of conviction is based. The golden thread which runs through the web of administration of justice in criminal cases is that if two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and the other to his innocence, the view which is favourable to the accused should be adopted. The paramount consideration of the Court is to ensure that miscarriage of justice is prevented. A miscarriage 54 of justice which may arise from acquittal of the guilty is no less than from the conviction of an innocent.
57. It is further noted by us that, as far as the statements of the witnesses recorded in the case are concerned, they are not identical and found major contradictions among them with respect to time, place and circumstances of factual aspects. Though, a lot of emphasis has been placed by the prosecution on the testimony of PW1 in her examination, have not been mentioned in the First Information Report. In this regard, the loan transaction, as stated by the prosecution itself is under cloud of suspicion, as no documentary proof to prove the same is forthcoming. No person can lend money of Rs.7 to 8 lakh without any proof of documents and the common friend of both the accused and the deceased, examined as PW5 was silent and deposed that he was not aware about the financial transaction, which creates a doubt in the mind of the court. In this case, the written complaint was silent about the corroboration of entire evidence of PWs1, 3 and 7 to prove the guilt of the accused. 55 It may be true that the relationship between the accused and the deceased may not have been cordial. But it does not show any enmity or dispute between the said two persons and same was not corroborated in the evidence. Though it is settled principle of law that merely because the prosecution witnesses are interested witnesses, their testimony cannot be discarded on said ground alone, but the evidence of the interested witnesses must be identical and there should be no major contradictions among them. The complaint does not depict what actually happened.
59. After referring to the aforesaid principles enunciated by the Hon'ble Supreme Court, we find that the reasoning of the trial court is very casual with scant regard to the principles of appreciation of evidence in a criminal case and also is against the principle of proof beyond reasonable doubt. Thus, the trial court was not justified in convicting the accused under Section 302 and 201 of IPC in the face of evidence being conspicuous by its absence or total lack of evidence.
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VII. CONCLUSION:
59. We have carefully and cautiously gone through the judgment of the trial Court. The learned Sessions Judge, without properly appreciating the evidence available on record, only on surmises, presumption and assumption, by relying upon the evidence of PWs.1, 3, 7 and 13 has come to a wrong conclusion and has wrongly convicted the accused.
In that light, the judgment of the trial Court is not sustainable in law. It requires interference at the hands of this Court. Keeping in view the discussion made by us above, the appellant-accused has made a case to set aside the judgment of the trial Court and the points for determination, made above, are answered in favour of the accused, under the circumstance of the case.
60. For the foregoing reasons, the appeal preferred by the accused deserves to be allowed. Hence, we proceed to pass the following:
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VIII. ORDER/RESULT:
(i) Appeal is allowed;
(ii) The judgment of conviction dated 22nd
September 2012 and the order of sentence
dated 23rd September, 2012 passed by the III Additional District and Sessions Judge, Bangalore Rural District sitting at Anekal in SC No.70 of 2013, is hereby set aside.
(iii) Consequently, the appellant-accused is acquitted from the charges for the offence punishable under Sections 302, 201 IPC;
(iv) The appellant-accused is set at liberty forthwith, if he is not required in any other case;
(v) Registry is directed to communicate the operative portion of this judgment to the concerned jail authorities to release the accused, if he is not required in any other case after following Standard Operating Procedure and in accordance with law;
(vi) Registry is also hereby directed to send back the records to the trial court along with a copy of this judgment;58
(vii) If the appellant-accused has deposited any fine amount, the same is ordered to be refunded, on proper identification and acknowledgement.
Sd/-
JUDGE Sd/-
JUDGE lnn