Karnataka High Court
Sri Shekarappa vs State By Thunganagara Police Station on 22 August, 2022
Author: K.Somashekar
Bench: K.Somashekar
R
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 22ND DAY OF AUGUST, 2022
PRESENT
THE HON'BLE MR.JUSTICE K.SOMASHEKAR
AND
THE HON'BLE MR. JUSTICE T.G.SHIVASHANKARE GOWDA
CRIMINAL APPEAL NO.516 OF 2017
BETWEEN:
Sri. Shekarappa
S/o Rakundi Mallappa
Aged 46 years
Masonwork
R/o. Gurjapura Village
Raichur Taluk, Raichur District
Karnataka State -584101.
...Appellant
(By Sri. Leeladhar H.P. - Advocate)
AND:
State by Thunganagara Police Station
Shivamogga
Rep. by SPP
High Court Buildings
Bangalore - 560 001.
...Respondent
(By Sri. Vijayakumar Majage - Addl. SPP)
This Criminal Appeal filed under Sec.374(2) of
Criminal Procedure Code, by the Advocate for the appellant
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praying to set aside the judgment, conviction and sentence
dated 02.02.2017 passed by the III-Addl. Sessions Judge,
at Shivamogga in S.C.No.83/2016 and allow the appeal by
acquitting the accused for the charges leveled against him.
This criminal appeal coming on for dictating
judgment this day, K. SOMASHEKAR J., delivered the
following:
JUDGMENT
This appeal is directed against the judgment of conviction and order of sentence rendered by the trial Court in S.C.No.83/2016 dated 02.02.2017 whereby convicting the accused for the offence punishable under Section 302 of IPC, 1860. Whereas under this appeal the appellant is seeking intervention of the judgment of conviction and to consider the grounds as urged in this appeal and consequently, set-aside the judgment of conviction rendered by the trial Court in S.C.No.83/2016 and acquit the accused for the offence punishable under Section 302 of IPC.
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2. Heard learned counsel Sri H.P.Leeladhar for appellant and learned Addl.SPP for respondent - State. Perused the judgment of conviction rendered by the trial Court.
3. The factual matrix of the appeal are as under:
It is transpired in the case of prosecution that complainant - H.G.Sangappa had entrusted work of construction of house in site bearing No.172 situated at Swamy Vivekananda Layout, Shivamogga to CW.7 - Prakash under whom deceased Rajasab @ Basha and accused Shekarappa were doing masonry work. On 18.12.2015 both deceased and accused were working in the site and since the RCC work was under progress, the complainant met them at 7 p.m. The deceased and accused told him that they are going to have their supper.
Both accused and deceased were staying in the same building which was under construction. But on 19.12.2015 at around 8.00 a.m. complainant came to the 4 construction site, but nobody were found outside the building. He entered inside the house where he found the body of the deceased lying in the pool of blood. There were also injuries on the body, the face of the deceased was totally battered. The accused was not found in the house and his belongings were also not found. Under such circumstances, on suspicion, the complainant lodged a complaint against the accused based upon which the criminal law was set into motion by registering the case in Crime No.577/2015 for the offence punishable under Section 302 of IPC.
4. Subsequent to recording the FIR the investigating officer took up the case for investigation and investigation was done thoroughly and charge sheet was laid before the committal court. Subsequent to committing the case by committal Court the case in S.C.No.83/2016 was registered. The learned public prosecutor and defense counsel were heard relating to framing of charge against 5 the accused person whereby on prima facie material being found against accused person, charges were framed against the accused for the offence under Section 302 of IPC, whereby the accused did not plead guilty but claimed to be tried. Accordingly, the plea of the accused was recorded separately.
5. Subsequent to framing of charge, the prosecution has let in the evidence by subjecting to examination of PW.1 to PW.12 and got marked several documents as per Exs.P1 to Px.P29 and so also, got marked material objects as M.O.1 to M.O.27.
6. Subsequent to closure of evidence on the part of the prosecution, the accused was subjected to examination as contemplated under Section 313 of Cr.P.C. for enabling him to answer the incriminating evidence appeared against him, whereby, the accused declined all the circumstances relating to incriminating evidence appeared against him and accordingly, it was recorded. Subsequently, the 6 accused was called upon to enter into defence evidence as contemplated under Section 233 of Cr.P.C., whereby he did not come forward to adduce any defence evidence on his behalf. Accordingly, it was recorded. But Ex.D1 the contradictory statement of PW.10 was got marked.
7. Subsequent to closure of evidence on the part of the prosecution and also on the defence side, the trial Court heard the arguments advanced by the learned Public Prosecutor and counter arguments advanced by the defence counsel and on appreciation of oral and documentary evidence, passed the impugned judgment convicting the accused for the offence under Section 302 of IPC, 1860. It is this judgment which has been challenged under this appeal by urging various grounds seeking intervention.
8. Learned counsel Sri H.P.Leeladhar for appellant / accused has taken us through the evidence of PW.1 who is the owner of the building and who constructed the 7 building. On 18.12.2015 at around 7 p.m. the deceased and accused left for supper. He came to the spot on the next day i.e. on 19.12.2015 at around 8 a.m. and saw the dead body of deceased Basha @ Rajasab. But his evidence has not been appreciated by the trial Court in a proper perspective manner. Therefore, in this appeal it requires intervention of the impugned judgment, if not, certainly there will be miscarriage of justice to accused who is the gravamen of the accusation. The trial Court has not appreciated the evidence of PW.1 and there is no connecting material collected by the prosecution after moving to the place of work with either deceased or accused returning to place or the accused in the place of incident and in the absence of the same, connecting the accused to the death of Basha @ Rajasab is surmise and conjucture and besides being without any cogent or relevant material.
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9. It is further contended that PW.3 claims to be the neighbourer of the building. In his evidence, he has stated that at 11 p.m. he heard the accused and deceased were speaking in raised voice. But on the next day he found the dead body of deceased Basha @ Rajasab. Therefore, there is no material to connect the accused with death of deceased Basha @ Rajasab. The evidence of PW.1 and PW.3 on the part of the prosecution appears to be contradictory and there is no consistent evidence to secure the conviction.
10. It is contended that PW.10 - Prakasha being a Contractor who entrusted the work of construction of house of PW.1 to deceased and accused on 13.12.2015 and used to enquire over the phone about the progress of construction of building. He has further stated in his evidence that he has discussed with deceased at 8.30 p.m. regarding the payment to be made for which he has sent a sum of Rs.1,250/- and it is further stated that at 10 p.m. 9 the accused claims to have called over phone stating that there is no consonance between accused and deceased and he was leaving the job. PW.10 has stated in his further evidence that he came to the scene of crime on 19.12.2015 at 9.15 a.m. and his evidence in any way connect the accused with the deceased at the place of incident after 7 p.m. on 18.12.2015 till next day i.e. 19.12.2015 at 8 a.m. when PW.1 came to the place. When such being the case, there is no material on record that after 7 p.m. on 18.12.2015, the accused was in the newly constructed house of PW.1. Therefore, the entire chain of events of last seen of the accused with the deceased is ruled out and the finding of the trial Court in this regard is illegal and contrary to law.
11. The second limb of the arguments advanced by the learned counsel for the appellant is that the Court below failed to see that insofar as recovery of the cloths and also the club at the instance of accused is also lack of 10 proof. PW.4 claims to be the mahazar witness of Ex.P8, MOs.17 and 18 i.e., the phone and sim card. But no materials were collected by the investigating officer during the course of investigation about the phone belonging to the accused or call details. When such being the case, the recovery from the accused is also ruled out. Further, the blood stain clothes recovered from open space under Ex.P11 is also doubtful and the same has not been established by the prosecution by facilitating worthwhile evidence. Besides that a portion of the club which is according to the witness no blood stain is found on the club and the said club is stained with mud-slurries. But when the same is taken into consideration, the FSL report is contrary to the evidence of PW.4. Both the club pieces were found with blood stains. When that being the case, the seizure of material objects under Exs.P8 and P11 is doubtful and does not inspire the confidence. 11
12. PW.5 is the Doctor who conducted autopsy over the dead body of deceased and issued post mortem report. He has deposed in his evidence about the weapon which was having rough surface having 5 knots with irregular cut and he has also opined in the cross-examination that it is not possible to say whether or not, they are inflicted by the same wooden club examined and further say that article 12 found reddish brown stains at places and article 15 mud and dung stain all over. If the FSL report is taken into consideration, MOs.8 and 22, the wooden clubs has stained blood here and there which clearly demonstrates that MOs.8 and 22 are planted materials so as to fit accused into the murder of deceased Basha @ Rajasab. Therefore, the prosecution has failed to prove the contents of recovery mahazar and that the accused alone had committed the murder of deceased by infliction of injuries.
13. It is further contended that PWs.6, 7, 8, 11 and 13 who were subjected to examination on the part of the 12 prosecution are only the formal witnesses and they do not support the prosecution case. Therefore, the prosecution has failed to prove the guilt against the accused beyond all reasonable doubt.
14. Lastly, it is contended that the entire case of the prosecution regarding participation of accused in the alleged death of Basha @ Rajasab has no connection with the accused. When such being the case, the evidence and condition precedent to convict the accused must be fully established and there is no chain of circumstances to connect the accused with the alleged death of deceased Basha @ Rajasab. Therefore, the finding of the trial Court is illegal and contrary to law in view of the judgment of Hon'ble Apex court reported in Krishnan vs. State (2008 (2) Crimes, P.314 (SC). Further, it is contended that the entire case of the prosecution has been revolving around the evidence of PWs.1, 4 and 10 who are the material witnesses and they do not say anything about the accused 13 and his presence between 7 p.m. to 8 p.m. on 19.12.2015. When that being the case, there is a strong suspicion about the accused being at the place of incident after 7 p.m. on 18.12.2015. Therefore, the presence of accused is doubtful at the scene of crime. When two views are possible about the presence or absence of the accused from the evidence which is in favour of the accused has to be extended in view of the decision of the Hon'ble Supreme Court reported in the case of Sambhaji Hindu Rao vs. State of Maharashtra (2008 (1) Crimes, P.238(SC)).
15. It is further contended that when the case is based on circumstantial evidence, the prosecution has to prove the incriminating circumstances and it must establish beyond reasonable doubt the guilt of the accused and it must be consistent and must form a complete chain and they should unerringly point to the guilt of the accused as reported in the case of Keerthi Pal and others Vs. State of West Bengal (2015 (3) Crimes, P.11 (SC)). 14 But in the instant case, no such evidence has been facilitated by the prosecution to secure the conviction in respect of the accused alone and pre-committed murder of the deceased.
16. In support of his arguments, learned counsel for the appellant has placed reliance on the following decisions of the Hon'ble Supreme Court:
(i) Nilesh Dinkar Paradkar vs. State of Maharashtra (2011) 4 SCC 143.
In this judgment the Hon'ble Supreme Court has held that "evidence of voice identification is at best suspect, if not, wholly unreliable - accurate voice identification is much more difficult than visual identification - it is prone to such extensive and sophisticated tampering, doctoring and editing, that reality can be completely replaced by fiction - therefore, courts have to be extremely cautious in basing conviction purely on evidence of voice identification.
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(ii) The State of Odisha vs. Banabihari Mohapatra and another (Special Leave Petition (Crl.) No.1156/2021 dated 12.02.2021.
In this judgment, it is held that "it is well settled by a plethora of judicial pronouncement of this Court that suspicion, however strong cannot take the place of proof. An accused is presumed to be innocent unless proved guilty beyond reasonable doubt."
(iii) Sattatiya @ Satish Rajanna Karatalla vs. State of Maharashtra (2008) 3 SCC 210 In this judgment it is held that "criminal trial - circumstantial evidence - bloodmarks/trial and bloodstains - need for establishing link with blood of deceased - bloodstains on the alleged clothes and weapon used, found to be of human blood - however, said stains could not be linked with blood of deceased - held, the same was a serious lacuna in the prosecution story and High Court and trial court erred in convicting accused despite the same.
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(iv) Earabhadrappa vs. State of Karnataka (AIR 1983 SC 446) In this judgment the Hon'ble Supreme Court has held that "in cases in which the evidence is purely of a circumstantial nature, the facts and circumstances from which the conclusion of guilt is sought to e drawn must be fully established beyond any reasonable doubt and the facts and circumstances should not only be consistent with the guilt of the accused but they must be in their effect as to be entirely incompatible with the innocence of the accused and must exclude every reasonable hypothesis consistent with his innocence.
(v) Shivaji Chintappa Patil vs. State of Maharashtra (2021) 5 SCC 626 In this judgment the Hon'ble Supreme Court has addressed issues relating to the offence under Section 302 of IPC. Death whether homicidal or suicidal - determination of medical evidence in regard thereto - accused husband convicted under Section 302 and 17 sentenced to life imprisonment therefore by courts below - conviction reversed as homicidal death by hanging could not be established - case of circumstantial evidence.
Though in a case of direct evidence, motive would not be relevant, in case of circumstantial evidence, motive plays an important link to complete the chain of circumstances.
(vi) Krishnan v. State 2008(2) Crimes 314 (SC) In this reliance the Hon'ble Apex Court has held that tests which must be satisfied by circumstantial evidence; and the conditions precedent which must be fully established before conviction could be based on circumstantial evidence reiterated. Further, in the absence of any cogent, believable and satisfactory evidence, an accused cannot be held guilty of murder only on hypothesis and suspicion when on the basis of the evidence appearing on record, two views are possible, accused is entitled to benefit of doubt.
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17. These are all the contentions taken by the learned counsel for the appellant and seeking intervention of the impugned judgment rendered by the trial Court and set-aside the same by considering the grounds as urged in this appeal, if not, certainly the accused would be the sufferer and also he being the gravamen of accusation of charges levelled against him.
18. On controvert to the arguments advanced by learned counsel for the appellant, learned Addl.SPP for respondent - State has taken us through the evidence of PWs.1, 3 and 10 who are the material witnesses relating to prove the guilt of the accused. But PW.10 - Prakasha is a Contractor under whom deceased and accused were working. In his evidence it is proved that, he has employed the deceased and accused to do masonry work in the construction site of PW.1. In the absence of any reasons for deposing inimically against his employee, absolutely there is no reason to disbelieve the testimony of this 19 witness relating to the death of deceased due to infliction of injuries over his person which indicated in the PM report issued by the Doctor.
19. Insofar as evidence of PW.3 - John D'Souza, the prosecution has established the presence of accused on that night in the building wherein the murder took place. The deceased was with the company of the accused till 11.00 p.m. He is the natural witness, being a resident of neighboring house, and he has supported the case of the prosecution. It is also contended that the recovery of blood stained shirt and pant worn by the accused and the wooden club is proved through the testimony of PW.4 - Ramesha. The prosecution has established that the clothes recovered at the instance of accused was stained with the blood group belonging to the deceased. The same has been established through the evidence of PW.9 who had issued certificate after chemical examination as per Ex.P26. The prosecution has given more credentiality to 20 the evidence of PW.9 being the Scientific Officer at Regional Forensic Science Laboratory, Gulbarga. He has stated in his evidence that on 25.1.2016 he received 21 sealed articles from Tunganagara Police in connection with Cr.No.577/2015 for examination. He conducted chemical analysis and found that except item No.9 and 11 all the articles contained human blood stains. The report issued by him is marked at Ex.P25. He identified articles received by him i.e., M.Os.1 to 12 and M.Os.20 to 27. Further, he has stated in his evidence that the site belongs to the complainant and both the deceased and accused were working and PW.10 - Prakasha brought them to work in the construction site for masonry work. On the date of incident, he had seen the deceased and accused were working in the site and he heard the altercation between deceased and accused till 10.30 p.m. to 11.00 p.m. on the date of incident. On the next day he came to know about the death of deceased. He visited the place and found the 21 body of deceased lying in the hall. His evidence finds corroborated with the evidence of PW.10.
20. PW.1 - Sangappa is the complainant and also the author of the complaint. He is the owner of the building which was under construction and wherein the murder has taken place. He had deposed that he had entrusted the construction work to PW.10 - Prakasha to construct a house in Site No.172 situated at Vivekananda Layout. Deceased and accused were working in the said site under the supervision of PW.10 Prakasha and both were engaged to do masonry work. Both used to stay in the construction site. He has stated that in his evidence that in connection with work, specifically who should do helper work, both deceased and accused used to quarrel often. On 18.12.2015 since morning till 7.00 p.m. both deceased and accused were working in the site. On 19.12.2015 at about 8.00 a.m. as routine, he visited the site but did not notice anyone outside the building. He entered the house and 22 found deceased dead lying in the pool of blood and accused and his belongings were not there in the house and found blood stains on the wall, immediately he lodged a complaint before the police suspecting the involvement of accused. It is proved that the accused was in the company of the deceased on the fateful day whereby the incident took place in the scene of crime and infliction of injuries. The accused has given disclosure statement and based upon his statement the investigating officer has recovered the blood stained cloths worn by him and the wooden club which was used by the accused to commit murder and the same was seized in the presence of the panch witnesses during the mahazar at Ex.P8 and also photographs at Ex.P3 to P7, Ex.P9 and P10, Ex.P12 to P20. The seized articles were sent to RFSL, Davanagere. After receiving the club the same was sent for chemical examination and requisition was given to the Doctor for his opinion and report of the Doctor was received as per Ex.P22. However, the prosecution has proved the guilt against accused by 23 facilitating the worthwhile evidence of PWs.1, 3 and 10. But PW.9 has also given evidence on par with the evidence of other witnesses. This is the evidence that finds place on the part of the prosecution whereby the trial Court has appreciated the evidence in a proper perspective manner and convicted the accused for the offence under Section 302 of IPC.
21. Lastly, the learned Addl.SPP submits that though the counsel for appellant is mainly contending in respect of last seen theory with the accused and deceased and so also, the motive factor in commission of offence, but the prosecution has relied upon the evidence of PWs.1, 3 and 10 who are the material witnesses to prove the guilt by facilitating the worthwhile evidence and the same has been appreciated by the trial Court by rendering the conviction judgment for the offence under Section 302 of IPC. There is no bone of contention in this appeal to call for any interference of the impugned judgment as sought for by the learned counsel for the appellant. On these premises, 24 learned Addl.SPP seeks for dismissal of the appeal being devoid of merits.
22. In this context of the contentions as taken by learned counsel for the appellant and so also, learned Addl.SPP for State, it is relevant to refer Section 299 of IPC relating to culpable homicide which reads as thus:
"Whoever causes death by doing an act with the intention of causing death, or with the intention of causing such bodily injury as is likely to cause death, or with the knowledge that he is likely by such act to cause death, commits the offence of culpable homicide."
In Explanation 1 it is stated that - A person who causes bodily injury to another who is labouring under a disorder, disease or bodily infirmity, and thereby accelerates the death of that other, shall be deemed to have caused his death.
Explanation 2 - where death is caused by bodily injury, the person who causes such bodily injury shall be 25 deemed to have caused the death, although by resorting to proper remedies and skillful treatment the death might have been prevented.
23. Insofar as Homicide, classification of - homicide is killing of a human being by human being, it may be firstly lawful, secondly, unlawful.
Lawful homicide may be classified as :
1) Excusable homicide -
Where the death is caused by accident or misfortune in doing of a lawful act in a unlawful manner by lawful means with proper care and caution without any criminal intention or knowledge as defined under Section 80 of IPC.
2) Justifiable homicide -
by a person who is bound or, by a mistake of fact by act, in good faith believes himself bound, by law as under Section 76 of IPC.
Unlawful Homicide Unlawful homicide may be divided into three categories: 26
1) Culpable homicide.
2) Causing death by rash or negligent act not amounting to culpable homicide.
3) Suicide as under Section 305 and 306 of IPC Culpable homicide - This section defines culpable homicide, which is of two kinds:
a) Culpable homicide amounting to murder and
b) Culpable homicide not amounting to murder.
It is relevant to refer to what is Culpable homicide:
In determining the nature of offence regard must, then, be had to the essential elements which are common to all such offence- (i) mentality of accused (ii) the nature of his act and (iii) its effect upon the human victim.
24. Further it is relevant to refer to Section 300 of IPC, 1860 relating to murder. But there is no definition of murder in the aforesaid Section. But Section merely takes 27 the four more serious types of culpable homicide, basing on the mens rea and designates them murder.
25. In respect of motive factor, it is not essential for the prosecution to establish motive factor against the accused in all cases, but at the same time it cannot be given to gainsaid that without adequate motive speaking normally, none is expected to take life of another human being. But the motive behind the crime is a relevant fact of which evidence can be given. The absence of a motive is also a circumstance which is relevant for assigning the evidence. But the circumstances proving the guilt of the accused are however not weakened at all by the fact that the motive has not been established. It often happens that only the culprit himself knows what moved him to certain course of action.
26. But in the medical evidence corroborated ocular testimony - medical evidence is to be proved by the prosecution that the injuries inflicted upon the injured as 28 a result of that injuries the deceased had lost his breath. Even in case of the circumstantial evidence motive factor bears an important significance. Motive always locks-up in the mind of the accused and sometime it is difficult to unlock. People do not act wholly without motive. The failure to discover the motive of an offence does not signify its non-existence, but scrutinize evidence cautiously.
27. But the law regarding circumstantial evidence is well-settled. When a case rests upon the circumstantial evidence, such evidence must satisfy three tests:
i) the circumstance from which an inference of guilt sought to be drawn, must be cogently and firmly established
ii) those circumstances should be of definite tendency unerringly pointing towards guilt of the accused.
iii) circumstances taken cumulatively should form the chain complete that there is no escape 29 from the conclusion that within all human probability the crime was committed by the accused and none else. These circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused. The circumstantial evidence should not only be consistent with guilt of the accused but should be inconsistent with his innocence.
28. Insofar as suspicion is concerned, suspicion, however grave it may be, cannot take the place of proof. In the instant case, there can be no doubt that the circumstances raise a serious suspicion against the accused. Therefore, the medical evidence on both sides is more or less equally balanced and that being the position, the benefit of doubt must go to the accused.
29. Mere recovery of the dead body of the deceased during investigation, but in the absence of any other 30 evidence connecting him with the murder is not enough to fasten the guilt upon the accused, although it may raise some suspicion against him. But suspicion, however strong it may be cannot be valid substitute for proof.
30. The chain of circumstances which has been established on the basis of reliable evidence the credibility of which has not in any manner being impeached by cross- examination and which evidence gets support from the medical evidence that, the death occurred on account of some injuries inflicted upon the deceased in the house which was not occupied by anyone other person i.e., scene of crime. It leads to the irresistible conclusion that it was only accused who committed the murder of the crime and leaves no doubt that he only had committed the murder of the deceased.
31. Insofar as the evidence of the eyewitnesses it requires to be appreciated in a proper perspective even it is to be disbelieved, and it is found that the weapons 31 recovered were not stained with human blood, there remains hardly any circumstance against the accused to connect them against the crime. But it is not possible to uphold the conviction of the appellant on wholly unreliable and limping evidence. But the evidence is clinching and clearly implicates the accused person caused infliction of injuries on the injured but the eyewitness count has to corroborate the medical evidence. In the instant case, it was held that there was vital discrepancies that could not be ignored on the part of prosecution but the accused was lugged into serious offence of Section 302 of IPC, 1860. Therefore, it requires re-appreciation of evidence and so also, revisiting the impugned judgment of conviction rendered by the trial Court, if not, the accused would be the sufferer and there shall be some substantial miscarriage of justice to the accused who is the gravamen of accusation.
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32. It is relevant to refer the definition of Section 300 of IPC, 1860 relating to murder which reads as under:
"Except in the cases hereinafter excepted, culpable homicide is murder, if the act by which the death is caused is done with the intention of causing death, or -
Secondly, if it is done with the intention of causing such bodily injury as the offender knows to be likely to cause the death of the person to whom the harm is caused, or-
Thirdly, if it is done with the intention of causing bodily injury to any person and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death, or -
Fourthly, if the person committing the act knows that it is so imminently dangerous that it must, in all probability, cause death or such bodily injury as is likely to cause death, and commits such act without any excuse for incurring the risk of causing death or such injury as 33 aforesaid. If we analyse the definition under Section 300 of the IPC, culpable homicide is considered as murder if:
o The act is committed with an intention to cause death.
o The act is done with the intention of causing such bodily injury for which the offender has knowledge that it would result in death. o The person has the knowledge that his act is dangerous and would cause death or bodily injury but still commits the act, this would amount to murder.
The ingredients of murder relating to cause of death, there should be an intention to cause death and such bodily injury which is likely to cause death or the act must be done with the knowledge of the act is likely to cause the death of another.
33. In the instant case, it is relevant to note that culpable homicide will not amount to murder if it is 34 committed without premeditation in a sudden fight in the heat of passion upon a sudden quarrel provided the offender has not taken undue advantage or acted in a cruel or unusual manner.
34. Further, it is required to look into the injuries inflicted over the person of the deceased. But the totality of injuries inflicted must support the findings of both medical evidence as well as direct evidence to be attributed by the prosecution to prove the guilt against the accused that accused caused the murder of deceased. But culpable homicide is not murder of the offender, whilst deprived of the power of self-control by grave and sudden provocation, causes the death of the person who gave the provocation or causes the death of any other person by mistake or accident.
35. The difference between murder and culpable homicide is intention. If the intention is present the crime is said to be committed under Section 300 of IPC. If the 35 intention is absent, then the crime is dealt under section 304 of IPC. The distinction between culpable homicide and murder is culpable homicide is the genus and murder is its species and all murders are culpable homicides but all culpable homicides are not murders. The same has been extensively held by the Hon'ble Supreme Court in Rampal Singh vs. State of Uttar Pradesh (2012) 8 SCC 289.
36. The provocation must be grave. The test of grave and sudden provocation is whether a reasonable man, belonging to the same class of society as the accused, placed in the situation in which the accused was placed would be so provoked as to lose his self-control. This issue was addressed in the case of Venkatesan vs. State of Tamil Nadu (1997) 3 Crimes 146 (Mad).
37. It is now well settled principle of law that if two views are possible, one in favour of the accused and the other adversely against it, the view favouring the accused must be accepted. This has been extensively held by the 36 Hon'ble Supreme Court in Raghunath v. State of Haryana (AIR 2003 SC 165).
38. Whereas as per Section 3 of the Indian Evidence Act, 1872, the domain is always vested with the trial Court relating to appreciation of evidence insofar as proved, disproved and not proved. Insofar as last seen theory it requires corroboration and the accused cannot be convicted solely on the evidence of last seen together with the deceased. It is well-known principle of law that reliance can be based upon even solitary statement of witness if the Court comes to the conclusion that the said statement is the true and correct version of the case of the prosecution. This issue has been extensively addressed by the Hon'ble Supreme Court in the case of Raja v. State (1997) 2 Crimes 175 (Del).
39. Further in the case of State of Uttar Pradesh v. Kishanpal, 2008 (8) JT 650 it is held that credentiality must be given to the quality of evidence. It is the quality of 37 evidence and not quantity which is required to be judged by the court to place credence on the statement of witnesses.
40. In the reliance of Babu vs. State of Kerala (2010) 9 SCC 189 relating to doctrine of innocence, it is held that criminal trial - proof - burden and onus of proof
- reversal of burden of proof - when permissible - presumptions - presumption of innocence - Constitution of India - Articles 21 and 14. It is held "every accused is presumed to be innocent unless the guilt is proved. The presumption of innocence is a human right. However, subject to the statutory exceptions, the said principle forms the basis of criminal jurisprudence. For this purpose, the nature of the offence, its seriousness and gravity thereof has to be taken into consideration. The courts must be on guard to see that merely on the application of the presumption, the same may not lead to any injustice of mistaken conviction. Further, in respect of 38 criminal trial - circumstantial evidence - motive - relevance - absence of motive in a case depending on circumstantial evidence is a factor that weighs in favour of accused - in a case of circumstantial evidence, motive must be established atleast to a certain extent.
41. Further, in the case of Sharad Birdhichand Sarda vs. State of Maharashtra (1984) 4 SCC 116 it is relevant to refer para 153 which reads 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 & Anr. v. State of Maharashtra(') where the following 39 observations were made:[SCC para 19, p.807 : SCC (Cri) p.1047] "Certainly, it is a primary principle that the accused must be and not merely may be guilty before a court can convict and the mental distance between 'may be' and 'must be' is long and divides vague conjectures from sure conclusions." (2) The facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say. they should not be explainable on any other hypothesis except that the accused is guilty, (3) the circumstances should be of a conclusive nature and tendency.
(4) they should exclude every possible hypothesis except the one to be proved, and (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.
Further, in the said judgment it is relevant to refer para 163 which reads as under:
40
"We then pass on to another important point which seems to have been completely missed by the High Court. It is well settled that where on the evidence two possibilities are available or open, one which goes in favour of the prosecution and the other which benefits an accused, the accused is undoubtedly entitled to the benefit of doubt. In Kali Ram v. State of Himachal Pradesh,(l) this Court made the following observations:
Another golden thread which runs through the web of the 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 This principle has a special relevance in cases where in the guilt of the accused is sought to be established by circumstantial evidence."
42. Further, the Apex Court in the case of Ram Niwas vs. State of Haryana (Criminal Appeal No.25 of 2012) has held that, there has to be a chain of evidence so complete, so as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused 41 and must show that in all human probability, the act must have been done by the accused. It has been held that the circumstances should be of a conclusive nature and tendency. This Court has held that the circumstances should exclude every possible hypothesis except the one to be proved. Further, it has been held that the accused 'must be' and not merely 'may be' guilty before a Court can convict the accused.
43. It is settled position of law that the suspicion howsoever strong it may be, cannot take the place of proof beyond reasonable doubt. An accused cannot be convicted on the ground of suspicion no matter how strong it is. Further, an accused is presumed to be innocent unless his guilt is proved beyond all reasonable doubt.
44. Keeping in view the aforesaid ratio of reliance, it is relevant to refer the evidence of PW.1 - Sangappa who is the complainant and based upon his complaint the criminal law was set into motion by recording the FIR as 42 per Ex.P27 and subsequent to setting the criminal law into motion PW.12 being the investigating officer took up the case for investigation and investigation was done thoroughly. During the course of investigation the inquest was held over the dead body of deceased as per Ex.P2 and also seizure mahazars as per Ex.P8 and P11 in the presence of panch witnesses. Exs.P3 to P7, P9, P10 and Exs.P12 to P20 are the photos. Ex.P21 is the post mortem report issued by PW.5 being the Doctor who conducted the autopsy over the dead body of deceased. PW.1 in his evidence has specifically stated that he is the owner of the building where the incident took place and he had entrusted the construction work to PW.10 - Prakasha to construct the house in Site No.172 situated at Swamy Vivekananda Layout, Shivamogga. The deceased - Rajasab @ Basha and accused Shekarappa were working in the said site under the supervision of PW.10 - Prakasha who by avocation is a Contractor. He met them at 7.00 p.m. on that fateful day and the deceased and accused told him 43 that they are going to have their supper. Both of them were staying in the same building. He has stated that in connection with work, specifically who should do helper work, both deceased and accused used to quarrel. But on 18.12.2015 since morning till 7.00 p.m. both deceased and accused were working in the site. After finishing their work, both of them had went to have their supper. On 19.12.2015 at around 8.00 a.m. when PW.1 visited the site, he has not noticed anyone outside the building. He entered into the house and he found the deceased lying dead in the pool of blood and the belongings of accused were not there in the house. He found blood stains on the wall and immediately he lodged a complaint before Tunganagara Police suspecting the involvement of the accused. Subsequent to filing of the complaint as per Ex.P1, criminal law was set into motion by recording the FIR. Subsequently, the investigating officer took up the case for investigation and thoroughly investigation was 44 done and thereafter charge sheet came to be laid against the accused.
45. PW.2 - Chandrappa Gowda was secured by the investigating officer to act as a panch witness and accordingly, held inquest over the dead body as per Ex.P2 and he has identified MOs.1 to 16 and so also found cash of Rs.920/- in his pocket which is marked as M.O.14.
46. PW.3 - John D'Souza is an important witness on the part of the prosecution and he being the neighbouring witness has stated in his evidence that in the site belonging to the complainant, both the deceased and accused were working and PW.10 Prakasha had brought them to work in the construction site. On the date of incident he had seen the deceased and accused working in the site. He heard some altercation between them till 10.30 pm to 11 p.m. on the fateful day. On the next day he came to know about the death of the deceased. He visited the scene of crime and found deceased was lying in 45 the hall, the head and face was battered and body was lying on the plastic mat. He noticed an half sleeve shirt and blue coloured Burmuda underwear, banian on the body and some of the clothes were kept under the head of the deceased and by the side of the dead body one pair of slipper and one club was lying. He identified M.Os.1 to 8 which were found on the dead body of deceased.
47. PW.4 - Ramesh being the witness on the part of the prosecution for recovery of mobile phone from the possession of accused. He stated that on 02.01.2016, Thunganagara police summoned him to the police station and accused was present and Subramani was also present and in their presence accused produced a mobile phone which was in his pocket. The same was seized by the investigating officer in the presence of panch witnesses by drawing seizure mahazar as per Ex.P8. He identified M.Os.17 to 19, mobile phone and sim cards. 46
48. PW.5 - Dr.Chidanand is the Doctor who conducted autopsy over the dead body of the deceased. He stated that in the body he found articles No.1 to 5 and had removed the same and handed over to the police. The rigor mortis was present all over the body. Dried blood stains were present over head, face, neck and over both arms, forearms, hands, left knee, left leg and both feet, left black eye was present. He found the following external injuries on the body:
Face is crushed from side to side with a contusion measuring 35cm x 12cm is present across middle right side of face seen extending from back of right ear to dorsum of nose and from right eyebrow level to 2 cm above right side lower jaw margin; within the contusion multiple abrasions measuring from 2cm x 1 cm to 12 cm x 4 cm and laceration of 6 cm x 3 cm x cranial cavity deep at lower part of right ear, of 2.5 cm x 1 cm x oral cavity deep at right side upper part of lip, of 0.5 cm x 0.2 cm x bone deep at root of nose, of 1.5 cm x 0.5 cm x bone deep at inner end of right eye are present and through the injuries lacerated right ear 47 cartilage, fractured facial and skull bones and pulpified brain matter are seen coming out and the face is deformed.
Laceration measuring 9cm x 5cm x cranial cavity deep is present over right side of forehead and right eyebrow region and through the injury fractured and fragmented skull bones and lacerated brain matter mixed with blood are seen coming out and the right eye ball is collapsed.
Laceration measuring 8cm x 3 cm x bone deep is present across right side of chin and lower par of face and through the injury fractured and fragmented jaw bones and dislocated teeth are seen coming out.
Laceration measuring 1 cm x 1 cm x bone deep is present over left ala of nose.
Abrasion measuring 1.5 cm x 1 c.m. is present over back of right elbow.
Contusion measuring 5 cm x 4 cm is present over back of right hand across the level of knuckles and the underlying right little finger proximal phalanx is fractured.48
Contusion measuring 35 cm x 12 cm is present across front of both the thigh seen extending from upper 1/3rd of right thigh to middle 1/3rd of left thigh without involving external genitalia.
He stated that all the injuries were anti mortem in nature and were fresh at the time of death. He issued post mortem as per Ex.P21.
49. The entire case of the prosecution is based upon the circumstantial evidence that is through the evidence of PWs.1, 3 and 10. It is the domain vested with the prosecution to establish the guilt of the accused beyond all reasonable doubt in respect of last seen together of accused and deceased on the fateful day at the scene of crime on newly constructed building belonging to PW.1 whereby the murder took place and the deceased was with the company of the accused till 11.00 p.m. on the date of the incident. It is the domain vested with the prosecution 49 to prove the guilt of the accused beyond all reasonable doubt by facilitating the worthwhile evidence.
50. Whereas learned counsel for the appellant has taken us through the evidence of PWs.1, 3 and 10. The prosecution in order to prove the motive factor for commission of offence insofar as murder of deceased by causing some injuries. But there is no cogent and reliable evidence to prove the company of the accused with the deceased on the fateful day and so also, circumstances of last seen together does not by itself necessarily lead to inference that the accused had committed murder of deceased. There must be something more establishing the connectivity between the accused and crime. The last seen theory comes into play only when the accused and the deceased were seen last 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. Otherwise the evidence of such witnesses 50 cannot be relied to convict a person. The standard of proof and test which the circumstantial evidence must satisfy and the chain of circumstances should be such as to lead to an irresistible conclusion that is inconsistent with the innocence of the accused. The prosecution has not proved the company of the accused with the deceased as on the date of incident, the prosecution has not proved the motive and recoveries. These are all the contentions as taken by learned counsel for the appellant seeking intervention of the impugned judgment of conviction rendered by the trial Court.
51. In the instant case, it is relevant to refer Section 304 of IPC, 1860 which reads as under:
304. Punishment for culpable homicide not amounting to murder. -
or with imprisonment of either description for a term which may extend to ten years, or with fine, or with both, if the act is done with the knowledge that it is likely to cause death, but without any intention to 51 cause death, or to cause such bodily injury as is likely to cause death.
Or with imprisonment of either description for a term which may extent to ten years, or with fine, or with both, if the act is done with the knowledge that it is likely to cause death, but without any intention to cause death, or to cause such bodily injury as is likely to cause death.
52. To make out an offence punishable under Section 304 Part II of IPC the prosecution has to prove the death of the person in question and such death was caused by the act of the accused and that he knew that such act of his is likely to cause death. This aspect has been extensively addressed in the case of State vs. Sanjeev Nanda (AIR 2012 SC 3104).
53. Insofar as scope of this Section it is held by the Hon'ble Supreme Court in Harendra Nath Mandal v. State of Bihar (1993) 1 Crimes 984 (SC) that "before an accused is held guilty and punished under first part or second part of Section 304, a death must 52 have been caused by the assailant under any of the circumstances mentioned in the five exceptions to Section 300."
54. Further, it is relevant to state that the accused inflicted bodily injuries on the deceased which were of such nature that they were likely to cause death. There can be no doubt that the accused intended to cause and did cause the injuries, therefore liable to be punished under the first part of Section 304 of IPC. This view has been extensively held in the case of Shanmugam @ Kulandaivelu vs. State of Tamil Nadu (AIR 2003 SC 209).
55. In the instant case, the accused and deceased were entrusted with work of construction of house in site bearing No.172 situated at Vivekananda Layout and they were doing masonry work. But on the fateful day of 18.12.2015 both of them were working in the site, since the RCC work was under progress. PW.1 - 53 complainant met at around 7 p.m. on that fateful day, the deceased and accused told him that they are going to have their supper. On 19.12.2015 at around 8.00 a.m. the complainant came to the construction site, but nobody were found outside the building. When he entered inside the house, he found the body of the deceased lying in the pool of blood. There were injuries on the body, the face of deceased was totally battered. The accused was not found in the house and his belongings were also not found. Under such circumstances, on suspicion, the complainant lodged complaint against the accused based on which criminal law was set into motion.
56. No doubt that accused and deceased were doing masonry work in the site of PW.1 for construction of house which was entrusted to PW.10 - Prakasha. Even there is no dispute that death of deceased was caused due to infliction of injuries over his person as indicated in Ex.P21 54
- post mortem report. But the last seen theory of deceased and accused and even the motive factor are the vital aspects which should have been established by the prosecution to prove the guilt of the accused beyond all reasonable doubt. But keeping in view the ingredients of Section 302 of IPC and so also, the concept of mensrea and actus reus which is stated above and so also, closely analyzing the evidence of PWs.1, 3 and 10 which indicates the brutal murder of deceased and even done to death by infliction of injuries over the person of deceased on the vital parts, but it is the domain vested with the prosecution to prove the guilt of the accused beyond all reasonable doubt and so also, it is domain vested with the trial Court to appreciate the evidence relied on by the prosecution keeping in view Section 3 of the Indian Evidence Act, 1872. But on close scrutiny of the evidence of PWs.1, 3 and 10 relating to the death of the deceased and so also, the infliction of injuries over his person indicated at Ex.P21 - post mortem report issued by PW.5 being the Doctor who 55 conducted autopsy over the dead body of deceased and so also, the mahazars drawn by the PW.12 in presence of the panch witnesses, but the case against accused relating to the offence as alleged does not fit under Section 302 of IPC and the same needs to be modified to Section 304 Part II of IPC keeping in view the ingredients of the said provision as there was some raising of voice between deceased and accused on the fateful day at the scene of crime.
57. In view of the aforesaid reasons and findings, we are of the view that appellant / accused - Shekarappa deserves for conviction under Section 304 Part II of IPC instead of Section 302 of IPC. The accused is said to be in incarceration even after held conviction by the trial Court for almost 6 years 5 days. Therefore, it is suffice to hold that the period of incarceration he has undergone shall be termed as service of sentence in respect of conviction for the offence under Section 304 Part II of IPC and the same will meet the ends of justice in the given peculiar facts and 56 circumstances of the case. While convicting the accused for the offence under Section 302 of IPC, the trial Court has imposed fine of Rs.50,000/- and out of the fine amount Rs.40,000/- was ordered to be paid to CW.9 - Rajiya Begum wife of deceased Rajasab @ Basha in terms of compensation under Section 357 of Cr.P.C. Since, the judgment of conviction rendered by the trial Court is being modified by convicting the accused for the offence under Section 304 Part II of IPC, it is deemed appropriate to state that the appellant / accused shall pay the fine of Rs.10,000/- instead of Rs.50,000/- as ordered by the trial Court. The said fine amount of Rs.10,000/- shall be paid to CW.9 Rajiya Begam wife of deceased Rajasab @ Basha in terms of compensation as under Section 357 of Cr.P.C. Accordingly, we proceed to pass the following:
ORDER The appeal preferred by appellant / accused under Section 374(2) of Cr.P.C. is hereby allowed in part. Consequently, the judgment of conviction and order of 57 sentence rendered by the trial Court in S.C.No.83/2016 dated 02.02.2017 is hereby modified convicting the appellant/accused for the offence punishable under Section 304 Part II of IPC instead of Section 302 of IPC.
The appellant/accused is sentenced to pay fine of Rs.10,000/- instead of Rs.50,000/- as ordered by the trial Court. The same shall be deposited before the trial Court in S.C.No.83/2016 as expeditiously, and according to the relevant provisions of law.
The fine amount of Rs.10,000/- shall be paid to CW.9 - Rajiya Begam, w/o deceased Rajasab @ Basha as compensation in view of Section 357 of Cr.P.C., on due identification. Accordingly, it is observed.
The accused is in incarceration for a period of 6 years 5 days. Therefore, it is suffice to hold that the period of incarceration of accused shall be termed as service of 58 sentence for the offence under Section 304 Part II of IPC to meet the ends of justice.
Registry of this Court is directed to forward a copy of the operative portion of the judgment to the Superintendent of jail authority, Central Prisons, Parappana Agrahara, Bengaluru City where the accused is housed, with a direction to set him at liberty forthwith, if he is not required in any other case.
Ordered accordingly.
Sd/-
JUDGE Sd/-
JUDGE DKB