Karnataka High Court
Soma @ Somanna vs State Of Karnataka on 13 June, 2022
Bench: K.Somashekar, Shivashankar Amarannavar
R
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 13TH DAY OF JUNE, 2022
PRESENT
THE HON'BLE MR. JUSTICE K.SOMASHEKAR
AND
THE HON'BLE MR. JUSTICE SHIVASHANKAR AMARANNAVAR
CRIMINAL APPEAL No.453 OF 2016
BETWEEN:
SOMA @ SOMANNA
S/O LATE KALAPPA
AGED ABOUT 50 YEARS
A K COLONY
HUNASAMARANAHALLI
JALA HOBLI, YELAHANKA
BANGALORE - 560065.
...APPELLANT
(BY SRI. CHANDRASHEKAR R.P., ADVOCATE)
AND:
STATE OF KARNATAKA
BY CHIKKAJALA POLICE STATION,
HIGH COURT BUILDING COMPLEX,
BANGALORE - 560001
(REPRESENTED BY
LEARNED STATE PUBLIC PROSECUTOR).
...RESPONDENT
(BY SRI VIJAYAKUMAR MAJAGE, ADDL. SPP )
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THIS CRIMINAL APPEAL IS FILED U/S.374(2)
CR.P.C BY THE ADVOCATE FOR THE APPELLANT
PRAYING THAT THIS HON'BLE COURT MAY BE PLEASED
TO SET ASIDE THE JUDGMENT AND ORDER DATED
19.08.2015 AND SENTENCE DATED 27.08.2015 PASSED
BY THE V-ADDL. DISTRICT AND SESSIONS JUDGE,
DEVANAHALLI, BANGALORE RURAL DISTRICT,
BANGALORE IN S.C.NO.136/2013 - CONVICTING THE
APPELLANT/ ACCUSED FOR THE OFFENCE P/U/S 302
OF IPC.
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 SC.No.136/2013 dated 19.08.2015 whereby acquitted the accused for the offences punishable under Section 201 IPC but convicted the accused for the offences punishable under section 302 IPC, 1860. Whereas the appellant is seeking intervention and to consider the grounds urged in this appeal and to set aside the judgment of conviction rendered by the trial court in so far as the 3 offence under Section 302 IPC and consequently, to acquit accused.
2. Heard the learned counsel Sri Chandrashekar R.P. for the appellant/accused and the learned Additional SPP for the State. Perused the judgment of conviction and order of sentence rendered by the trial court in SC No.136/2013.
3. The factual matrix of the appeal are as under:
P.W.1 - Thammanna is husband of P.W.5 - Smt. Anitha. They had a daughter namely, Harshitha, aged about 4 years; Ashwathareddy is the father of PW.5- Smt.Anita and he was working as a Watchman; PW.6 is mother of PW.5 Anitha. Due to missing of their daughter Harshitha, criminal law was set into motion by filing of complaint in Crime No.170/2012 whereby FIR came to be registered. The case was registered by PW2.6-Head Constable of Yelahanka Police Station. Subsequent to registration of crime and also registering the FIR in the 4 Office of Deputy Commissioner of Police, North East Range, Bengaluru, the case in Crime No.69/2012 was registered in Chikkajala Police Station for the offences punishable under Sections 302 and 201 of IPC, 1860, whereby FIR was registered by PW.27-Thippeswamy being Police Inspector of Chikkajala Police Station and the FIR relating to that crime was submitted to the jurisdictional court of JMFC, Devanahalli. PW.1 and PW.5 were searching for Harshitha who was aged about 4 years. On 28.06.2012 that the brother of PW.5 by name Harish who got information about the dead body of a person near Kodagalahatti pond. Subsequently, that PW1-Thammanna and Harish went to the said spot and found the dead body.
The face of the dead body was defaced and the mud block was kept on the dead body. PW1-Thammanna identified the dead body of his daughter Harshitha and subsequently, he went to Chikkajala Police Station and gave the statement to police that the body was found in the Kodagalahatti pond. Based upon his statement as per 5 Ex.P26, criminal law was set into motion by registering Crime No.69/2012 based on the missing complaint of a girl by name Harshita aged 4 years.
4. Subsequent to registration of case in Crime No.69/2012, investigation was taken up by PW.27 who conducted mahazar as per Ex.P1 in the presence of PW1, PW2 and PW4 and during the mahazar MO.3 to MO.5 have been seized from the spot relating to the case in the Crime No.69/2012. PW27 is the Investigating Officer who made inquest of the dead body of Harshitha in the presence of the panch witnesses. He also recorded the statement of PW5-Smt. Anitha and CW.8 Harish who is none other than the brother of PW.5-Smt. Anitha. Photos of the dead body of the girl were taken as per Exs.P3 to P5. Subsequent to completion of investigation done by PW.27 being an investigating officer relating to the case in Crime No.69/2012 of Chikkajala police Station, charge sheet came to be laid against the accused before the committal 6 court i.e., Court of JMFC, Devanahalli and the case in C.C.No.1058/2013 was registered against the accused for the offences punishable under Section 302 and 201 of IPC, 1860. Subsequent to passing of a committal order as contemplated under Section 209 of Cr.P.C. by following the requisite provisions of Cr.P.C., case was committed to the court of session for trial. Accordingly the case in SC No.136/2013 has been registered by the Court of Principal District and Sessions Judge at Bangalore Rural District, Bengaluru.
5. Subsequent to registration of the case, the same has been entrusted to the Court of Fast Track Court at Devanahalli which is in the jurisdiction of Bangalore Rural District, Bengaluru whereby the accused was secured for facing of the trial in the aforesaid case and the Presiding Officer of the Fast Track Court, Devanahalli in SC No.136/2013 having heard on charge by the Public Prosecutor and the defence counsel, framed charges 7 against accused for the offences under Sections 302 and 201 r/w 34 of IPC, 1860.
6. Subsequent to framing of charge and registering the case against the accused, the accused was put on trial whereby the prosecution in support of its case, examined 29 witnesses as PW.1 to PW.29 and got marked several documents at Ex.P1 to P42 and also got marked material objects as MOs.1 to M5.
7. Subsequent to closure of evidence on the side of prosecution, statement of the accused came to be recorded as under Section 313 Cr.P.C. for enabling the accused to answer to the evidence. It is seen from the materials on record that even the trial was concluded and after recording the incriminating statement against the accused but accused had filed two applications under Sections 311 of Cr.P.C. to recall PW.1 to PW.29 wherein the prosecution had seriously objected for consideration of the said applications and after hearing the Public Prosecutor and 8 defence counsel, the trial court rejected the applications filed by the accused under Section 311 of Cr.P.C. by passing a detailed order dated 01.10.2014. Subsequently, the accused challenged the said order by approaching the High Court by filing a case in Crl.P.7418/2014. After hearing the arguments in the aforesaid criminal Petition filed by the accused, the said petition came to be allowed by order dated 24.04.2015 whereby accused was permitted to cross-examine PW11 to PW15 and it was also made clear that accused shall cross-examine the said witnesses whenever they are present. During the hearing of the said criminal petition before the High Court accused restricted his prayer to cross-examine PW.s11 to 15 and the same came to be allowed. Pursuant to the order passed by the High Court of Karnataka the trial Court secured the presence of PW.12, PW.14 and PW.15 and those witnesses were cross-examined. But PW.13 was said to have left his house in Hunasamaranahalli and he was said to be residing in the limits of Chennai. The servicing agency 9 could not get the whereabouts of PW.13 and produce him for the purpose of evidence in pursuance of the order passed by this Court. Therefore, PW13 being a witness, was not subjected to cross-examination, but only PW12, PW.14 and PW.15 were cross-examined. 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. and whereby accused declined the truth of the evidence of the prosecution adduced so far. Subsequent to closure of the evidence on the part of the prosecution and also the cross-examination of the witnesses, the Trial Court heard the arguments advanced by the prosecution and the argument advanced by the defence counsel and on appreciation of the evidence of PW12, PW13, PW14 and PW15 inclusive of the evidence of PW26, PW27 and PW28 who laid the charge sheet against the accused before the committal court, thereafter, committed the case to the Session Court for trial. But PW27 who is Investigation Officer in part and PW28 who is 10 also Investigation Officer in part, but PW27, 28, 29 are the official witnesses and so also the evidence of the PW23 being a Doctor who conducted autopsy over the dead body of Harshitha and issued the post mortem report at Ex.P19 and based on the evidence facilitated by the prosecution, the Trial court rendered conviction judgment in respect of the offences punishable under Sections 302 of IPC, 1860 but acquitted the accused for the offence under section 201 of IPC.
8. Initially, the case was registered by Yelahanka Police Station in Crime No.170/2012 whereby missing complaint has been registered in respect of missing of girl namely Harshitha aged about 4½ years and PW26 who registered the case based on Ex.P14 - FIR. PW.26 who has subscribed his signature at Ex.P25 as per Ex.P25(a), PW1 Thammanna and PW26 Investigation Officer in part relating in Crime No.170/2012 and their evidence has been corroborative to each other in respect of a missing of 11 a girl namely Harshitha aged about 4 ½ years. But the case in Crime No.69/2012 came to be registered by PW.27 whereby registering FIR as Ex.P27 who subscribed his signature which marked as Ex.P27(a). But evidence of PW1, so also, evidence of PW27 being an Investigating Officer relating to the case Crime No.69/2012 registered by the Chikkajala Police Station and based upon the evidence of those witnesses, the Trial Court rendered conviction judgment for the offence under Section 302 of IPC 1860. It is this judgment, which is challenged under this appeal, by urging various grounds.
9. Learned counsel Sri Chandrashekar.R.P, has taken us through the evidence of PW11 to PW15. But PW11 who speaks about the contents at Ex.P11 of seizure mahazar and also MO.2 pair or Silver Anklet alleged to have been recovered at the instance of the accused. In the cross-examination he admits that he does not know the contents of Ex.P11and that his signature was taken by the 12 police, thus making it evident that the alleged recovery at the instance of the accused is doubtful. Therefore, when the doubt arises in the mind of the court, the benefit of doubt should be always in favour of the accused. To corroborate the evidence of PW11-Poojappa, PW15 - Jagadeesha who is a cashier in the wine shop from where the silver anklet was seized as per Ex.P11 and in the cross
- examination he stated that the police brought the said anklet when they came to the wine store and he subscribed his signature as per Ex.P11(a). Therefore, even on close scrutiny of the evidence of this witness in its entirety, it is found to be unreliable and thus making the circumstance of recovery of silver anklet belonging to the deceased Harshitha is doubtful circumstance. The entire case of the prosecution is based on the circumstantial evidence. But the trial court has erroneously arrived at a conclusion despite the chain and the link of the circumstances having not been proved by the prosecution 13 by relying upon a cogent evidence in an heinous offence of Section 302 of IPC 1860.
10. The second limb of the argument that has been advanced by the learned counsel for the appellant is that even though the prosecution has been subjected to the examine several witnesses and also got marked several documents inclusive of material objects, it is the duty cast upon the prosecution to prove guilt against the accused beyond reasonable doubt. But the trial court had given more credentiality to the evidence of PW13, PW14 and PW15. But the aforesaid evidence is full of doubt and also inconsistent to each other. Therefore, in this appeal it requires consideration of the grounds urged in the appeal and acquit the accused for the aforesaid offence by setting aside the judgment of the conviction rendered by the Trial Court in SC No.136/2013.
11. The counsel who has addressed his arguments by referring to the evidence of PW13 relating to the last 14 seen theory that in his examination in chief, he supports the case of the prosecution of having last seen the deceased in the company of the accused. But this witness did not turn up for cross-examination his examination in chief remained as not cross-examined. Therefore, his examination in chief alone without there being any cross- examination cannot be construed as evidence. The prosecution did not elicit any evidence with regard to acceptability in respect of the murder of the deceased Harshitha aged about 4 ½ years being the daughter of PW1 Thammanna and PW5 Anitha. But the Trial Court, in spite of the trite position has relied on his examination in chief which has not been cross-examined at all. Therefore, his evidence does not fall within the purview of definition of evidence and only examination in chief cannot be looked without there being any cross-examination. But the trial Court has given more credentiality to the evidence of the PW13 and the case ended in acquittal for the offence punishable under Section 201 of IPC 1860 with regard to 15 disappearance of the evidence in order to screening from the legal punishment.
12. But, PW.13, who is also one the material witnesses on the part of the prosecution to prove last seen theory, in his examination in chief he states that the police came to his shop-bakery along with the accused and he states that the accused had come with the girl at the said point of time. But in the cross-examination he admits that he does not know the girl and police never showed him any photograph of the girl to cross check or establish the identity of the deceased girl who came with the accused.
13. Further it is contended that another circumstance in respect of extra judicial confession made to PW12 which is not reliable as it is belated and the Court below has not relied on the said circumstance. It is contended that the prosecution has not facilitated worthwhile evidence, even in consideration in respect of extra judicial confession made by the accused to PW12 16 namely, Amalu, but based upon the complaint made by the said Amalu, the case in Crime No.2/2013 came to be registered and whereby there was misbehaviour of this accused with her daughter namely Sindhu but case in SC No.136/2013 was registered and the case was disposed of following relevant provisions of Cr.P.C. whereby the accused served the sentence as has been held by the Trial court. But the Trial Court had given more credentiality to the evidence of PW12-Amalu based upon her complaint came to be registered in Crime No.2/2013 by the Chikkajala Police Station but PW13 and PW14 are the material witnesses to the last seen theory, but their evidence is found to be doubtful to the evidence of PW12. PW15-Jagadeesha is also panch witnesses in respect of PW11 of seizure mahazar; PW5 Anitha is mother of the deceased Harshitha; PW6-Rathnamma is grandmother of the deceased Harshitha. PW7-Krishnappa, PW8-Nagaraja, PW9-Bylamma; and PW10-Venkataswamy were also subjected to examination on the part of the prosecution 17 but they did not withstood the version of their statement relating to missing of girl aged about 4 years namely Harshitha and the accused causing the murder of the deceased as narrated in the theory of the prosecution by laying charge sheet. PW.3 is one of the Panch witness and in his presence inquest mahazar at Ex.P2 as has been held by the Investigating Officer i.e. PW25 who laid the charge sheet against the accused. But in totality of the circumstances of the case, even on close scrutiny of the evidence of PW11, PW12, PW13, PW14 and PW15, these witnesses on the part of the prosecution, only PW.12, PW14 and PW15 were permitted to be cross-examined and that their evidence also did not corroborated to each other. The circumstances have not been proved and there are several missing links in the chain of circumstances. The defective investigation carried out by the Investigating agency goes to the root of the matter and the entire case of the prosecution is found to be shaky. Even there was a delay in apprehending the accused and the same has not 18 been explained on the part of the prosecution. Even though the accused was facing of a trial for the offence punishable under Section 302 of IPC 1860, the judgment of conviction rendered by the Trial Court is full of infirmities. In the case on hand, the Trial Court, without giving any credentiality to the inconsistencies and infirmities and also not corroborating evidence even in the generality of circumstances, the same should be without giving any room for suspicion about the case. Therefore, it requires to be re-visited by re-appreciating the evidence, if not, the accused who is the gravamen of the accusation would be the sufferer and also there shall be some substantial miscarriage of justice. On this premise the learned counsel for appellant / accused seeking intervention for re-appreciation and to consider the grounds as urged and to set aside the judgment of conviction rendered by the Trial Court in SC No.136/2013 and consequently, acquit the accused of the offences punishable under Section 302 of IPC 1860.
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14. On the other hand, the learned SPP for State has taken us through the evidence of PW1, PW5 and PW6 to submit that there was no sort of enmity between them and accused and they have not even thought of the death of Harshitha aged about 4 ½ years. The dead body of Harshitha was found in the limits of Chikkajala police Station and complaint was registered in that police station, but the police could not get any clue till the apprehension of the accused by Yelahanka Police and the police have acted only on the information given to them by the accused. Therefore, it cannot be even believed that Chikkajala Police, with an intention to close the file, have foisted false case against the accused in respect of missing girl namely Harshitha and done her to death by the person arraigning as accused. PW12-Amalu who is a complainant and the case in Crime No.2/2013 came to be registered whereby there was a misbehaviour by this accused with her daughter namely Sindhu even though it cannot be 20 believed that to complete the investigation the Chikkajala police have laid charge sheet against the accused relating to the death of the deceased Harshitha aged about 4 years.
15. The accused who committed certain illegal acts on one Sindhu who is the daughter of PW12-Amalu and whereby disclosed the involvement of this accused in the present incident and also done to her death. But on the corroborative evidence made by the accused the relevant material evidence which was collected during the course of the investigation, so also, the evidence relating to the commission of the offence by accused, there are no reasons to discard it. This was the observation made by the Trial Court while rendering judgment of conviction for the offences under Section 302 of IPC. It appears that accused who misbehaved with Sindhu who is daughter of PW12, have also been misbehaved with Harshitha aged 4 years who is daughter of Thammanna. Even according to his report, PW23-Doctor could not get any evidence while 21 conducting post mortem on the dead body of Harshitha, since insects have eaten the private part of the deceased, but held the accused himself have taken the said girl namely Harshitha with an intention of murdering her or assaulting her. As there is no evidence to that effect even on the prosecution side, on an assumption the accused cannot be convicted. This submission even though made by the learned defence counsel but the trial court had given more credentiality to the evidence of PW1, PW5 and PW6 inclusive of PW12-Ammulu and also PW13 and PW14 relating to the last seen theory but on oral, as well as, documentary evidence on the part of the prosecution, the case was proved by the prosecution against the accused with the deceased girl namely Harshitha aged about 4 years, having purchased chocolate in the Bakery. But confession which made by the accused and led the investigating agency to the places where the accused which was marked as MO2 and the same was recovered at the instance of the accused but the silver anklet of the 22 deceased Harshitha said to have been sold by him for an amount of Rs.200/- and whereby PW15 who is cashier in the wine shop has given evidence. The prosecution has proved that missing of the deceased Harshitha and also finding of the dead body Harshitha who is aged about 4 years in that place. The said circumstances undoubtedly prove that accused has caused the death of Harshitha who is aged about 4 years. These are all the evidence that has been elicited by the prosecution and the same has been closely screened by the Trial Court and so also appreciated the evidence in all angles and therefore, it does not call for any interference and there is no warranting circumstances that arise for intervention and there is no perversity or any illegality in the order passed by the presiding officer of the Fast Track Court, Devanahalli rendering conviction judgment for the offence under Section 302 of IPC 1860. On all these premise, the learned Additional SPP for State submitted that the appeal be dismissed as devoid of merits.
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16. In the background of the contention made by the learned counsel for the accused namely Sri Chandrashekar.R.P, so also, the counter argument made by the learned Additional SPP for State, the undisputed facts are that PW5-Anitha is none other than the mother of the deceased Harshitha aged about 4 years; father of PW5 was working as a watchman and the accused is an employee by avocation as a mason. Accused was not regularly attending to duty. Therefore, the father of PW5 made him to remove from his service and because of that accused developed some enmity against the father of PW5 that he took revenge, allegedly, by killing his grand daughter namely Harshitha who is aged about 4½ years. To prove the aforesaid circumstances on the part of the prosecution, the prosecution had examined PW19 namely, M.C.Keshavamurthy, being a contract worker in Yelahanka Airport but he identified accused and also started to use to develop enmity and also attending his duty as a 24 watchman, but there developed some quarrel with the other workers and the grandfather who informed about the said fact and also nature of the accused and thereafter he has removed from services as a mason. But PW5 and PW6 have been subjected to examination on the part of the prosecution and in their evidence they have stated that the accused said to have confessed before the Chikkajala Police Station about the committal of alleged offence, i.e. the murder of Harshitha who is aged about 4 years.
17. PW.16 being the police constable who handed over MO.2 that to Chikkajala Police Station and also given a report, but he is not material witness on the part of the prosecution but even his evidence where it can be of some help in arriving at a conclusion that the prosecution has proved the guilt against the accused beyond all reasonable doubt relating to MO2-silver anklet that was handed over to Chikkajala Police Station.
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18. In the case on hand, the prosecution requires to prove the case against the accused by facilitating worthwhile evidence. But MO.2 - Silver Anklets which was seized at the instance of the accused it is to be termed as confession of the accused and it is recovery. But PWs.1 to 6 have been subjected to examination and also identified MO.2 - Silver Anklets belongs to the deceased. But accused did not explain how that MO.2 - Silver Anklets came to his possession which belonged to deceased - aged about 4½ years. But the entire case relies upon circumstantial evidence.
19. PW.15 in his evidence has specifically stated that he was working as a cashier in Kalpatharu Wine Shop and about one and half year prior to his evidence, accused and police came to his wine shop to return silver anklets which is marked as MO.2 and the cashier of Kalpatharu Wine Shop had paid Rs.200/- for selling the silver anklets to him and he identified his signature at Ex.P11(a) and so 26 also photograph of his shop as well as himself as per Ex.P12 and 13. PW.15 was not subjected to examination on the part of the prosecution when his evidence was recorded that a prudent man would discard the evidence of PW.15 when the evidence was not subjected to cross- examination. But the investigating agency has subjected to cross-examination the photograph of all them came to the Kalpatharu Wine Shop. But in the evidence he has stated that accused was regular customer of his wine shop. But in the cross-examination even this witness has been subjected to examination but he has not disclosed the true facts in the cross-examination in the heinous offence of Section 302 of IPC. The entire case of the prosecution has been is based upon the evidence of PWs.12, 13, 14 and 15. But PW.26 is the Head Constable and PW.27 - Tippeswamy who is the investigating officer in part PW.28 - Paramesha investigated the case and laid the charge sheet against the accused. PW.29 - Munikrishna is the investigating officer in part and they are official 27 witnesses and they had given evidence on part of the prosecution.
20. PW.12 - Smt.Amalu who has given evidence on the part of prosecution and whereby she has stated in her evidence in connection of the accused with the death of girl namely Harshitha who is aged about 4 ½ years. But in her evidence her daughter Sindhu was attending Anganawadi School situated in Hunasamaranahalli village. But PW.9 - Bylamma being wife of the accused was working in the said Anganawadi School as Anganawadi worker. About one year three months prior to this incident, one day Sindhu went to Angawadi in the morning hours and came at 1.30 p.m. Subsequent to attending nature call she started feeling crying due to pain and PW.12 - Amalu found injuries on her private parts and went to PW.9 house and enquired about her daughter Sindhu. Neither PW.9 nor Sindhu disclosed anything in this regard. Then she went to hospital with Sindhu and while returning Sindhu saw the accused and told PW.12 - Amalu that he 28 tried to molest her and caused hurt to her private parts. PW.12 - Amalu went to PW.9 house and narrated the incident which stated by her daughter - Sindhu and also told about illegal acts of accused. At that time accused alleged threatening her if she tried to file a complaint regarding the incident which was stated by her daughter - Sindhu and Sindhu has to face the same consequence as that of another girl whom he had alleged to killed near Kodagalahatti pond. PW.12 - Amalu had launched criminal prosecution by filing complaint before Yelahanka Police Station. Accordingly, criminal law was set into motion and Xerox copies of the complaint was produced in the charge sheet and got marked in the cross-examination of PW.12 as per Ex.P42. PW.9 further stated that PW.12 - Amalu came to her house in search of her daughter - Sindhu. Thereafter she came to know that dead body of a girl was found near Kodagalahatti pond. Even PW.12 - Amalu was subjected to examination on the part of the prosecution whereby the accused has threatened her prior to filing of 29 the complaint or subsequent to filing of the complaint. But in her evidence she has stated that prior to the filing of the complaint accused had threatened her. But in the suggestion made by her she has not given any such statement to the police and she has denied that Ex.P42 it is specifically that the accused threatened her but said fact is not material contradiction in this case. This observation is also made by the trial Court while rendering conviction judgment for the offence under Section 302 of IPC. Therefore, even though not such importance to be given regarding the point of time that the accused threatened PW.12 - Amalu. In the instant case, accused voluntary disclosed about killing of girl namely Harshitha and her dead body was found near Kodagalahatti pond.
21. Whereas, the involvement of the accused as well as case relating to the circumstantial evidence it is required to refer Section 27 of Indian Evidence Act, 1872. This is applicable only if confessional statement leads to 30 discovery of some new fact. Relevance is limited as relates distinctly to fact thereby discovered and for the applicability of Section 27 the statement must be split into its components and to separate the admissible portion. Only those components or portions which were the immediate cause of discovery would be legal evidence and not the rest which must be exercised and rejected. The fact discovered in an information supplied by the accused in his disclosure statement is a relevant fact and that is only admissible in evidence if something new is discovered or recovered from the accused which was not within the knowledge of police before recording the disclosure statement of the accused. But under Section 27 of the Indian Evidence Act, 1872 it is not necessary that a disclosure statement must be signed by maker of the same or that thumb impression must be affixed to it. However, Section 26 of Indian Evidence Act, 1872 relating to confession by accused while in custody of police not to be proved against him. Whereas in this provision that no 31 confession made by any person whilst he is in the custody of a police officer, unless it be made in the immediate presence of a Magistrate shall be proved as against such person. However, keeping in view Sections 26 and 27 of Indian Evidence Act, 1872 it must require to re-appreciate the evidence regarding to the contents at Ex.P11 of the seizer mahazar and also not that mahazar at MO.2 - Pair of silver anklets belongs to the deceased has been seized as not confession statement made by the accused and also made before PW.15 being cashier of Kalpatharu Wine Shop and accused had lead the investigating agency to Kalpatharu Wine Shop and at his request MO.2 - Pair of silver anklets have been seized by the investigating officer by drawing mahazar as per Ex.P12 and also not that mahazar investigating officer has seized MO.2 - Pair of silver anklets. In the given facts and circumstances of the case and also trial faced by the accused under the circumstantial evidence as well as last seen theory in the case of Anwar Ali and Another Vs. State of Himachal 32 Pradesh (2020) 10 SCC 166 whereby the Hon'ble Supreme Court has addressed scope of Sections 302, 392, 420, 401 and 34 of IPC. The murder trial insofar as circumstantial evidence. The prosecution failing to establish and prove complete chain of events - contradictions and lacunae in prosecution case noted by the trial Court, held, were not minor in nature - Acquittal restored. In the instant case, dead body of Harshitha who is the daughter of PW.1 - Thammanna and PW.5 - Anitha was found in Kodagalahatti pond and that on 28.06.2012 brother of PW.5 namely Harish got information about the dead body was found near Kodagalahatti pond. Thereafter they went to the spot and found dead body of a girl and also identified the dead body of girl as her daughter. Then PW.1 went to Chikkajala Police Station and based upon his narration of the identification of the dead body and on his statement at Ex.P26, criminal law was set into motion by registering the case in Cr.No.69/2012 for the offences punishable under Sections 302 and 201 of IPC, 1860. 33
22. However, at a cursory glance of the evidence of PWs.1, 5 and 6 the trial Court without giving any cogent and also acceptable reasons has arrived at a conclusion the accused has caused death of the deceased - Harshitha. But contradiction it must be concerned by the trial Court and it given by thrown out even though it is minor contradiction, it is the domain vested with the trial Court to justify and assign justifiable reasons even not believing the statement made by the accused. Mere because of MO.2 - Pair of silver anklets it is disclosed statement of the accused and even confession made by the accused but the trial Court did not give more credentiality to such kind of the evidence facilitated by the prosecution. However, it is domain vested with the prosecution, insofar as the trial it is to be the circumstantial evidence that links in the chain of circumstances it must be established, if not, certainly case may be ended in acquittal and also extending benefit of doubt to the accused.
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23. In the instant case, trial Court had given more credentiality to the evidence of PWs.1, 5, 6 inclusive of evidence of PWs.11, 12, 13, 14 and 15. But having found that the prosecution has failed to established its case and prove complete chain of events and that it is circumstantial evidence reasons it should have been given by the trial Court. But it is domain vested with the trial Court that if any doubt arises in the mind of Court and when there are clouds of doubt on the part of the prosecution, the benefit of such doubt should always be in favour of the accused alone.
24. Section 3 of the Indian Evidence Act, 1872 is relating to proved, disproved and not proved. Even last seen theory requires corroboration. In the case of circumstantial evidence, the onus lies upon the prosecution to prove the complete chain of events which shall undoubtedly point towards the guilt of the accused. These are extensively addressed by the Supreme Court of 35 India in the case of Sahadevan Vs. State of Tamil Nadu reported in AIR 2012 SC 2435. In the same reliance observed the principle for basing a conviction on the basis of the circumstantial evidence is that each and every incriminating circumstance must be clearly established by reliable and clinching evidence and the circumstances so proved must form a chain of events from which the only irresistible conclusion about the guilt of the accused can be safely drawn and no other hypothesis against the guilt is possible. Insofar as the domain vested with the Court to scrutinise the evidence:
(i) It is the duty of the Court to scrutinise the evidence carefully and to see that acceptable evidence is accepted.
It was addressed in judgment of 2000 Cr Lj 92 Gujarat Vs. Gandabhai Govindbhai.
(ii) Court should adopt cautious approach for basing conviction on circumstantial evidence. It was addressed in judgment of State of Haryana Vs. Ved Prakash, 1994 Cr Lj 140 (SC).
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(iii) Where there are material contradictions creating reasonable doubt in a reasonable mind, such eye witnesses cannot be relied upon to base their evidence in the conviction of accused.
25. Even judgment of AIR 2013 SC 3344 even though the police witnesses i.e. official witnesses if the testimony of police officer is found to be reliable and trustworthy, the Court can definitely act upon the same. If in the course of scrutinising the evidence, the Court finds the evidence of the police officer unreliable and untrustworthy, the Court may disbelieve him but it should not do so solely on the presumption that a witness from the department of police should be viewed with distrust. But in the instant case, the case in Cr.No.69/2012 was registered by Chikkajala Police Station by recording FIR for heinous offences under Sections 302 and 201 of IPC, 1860 whereby PW.27 took further investigation and investigated thoroughly and during investigation he visited the place where dead body of a girl namely Harshitha was found and he drew 37 mahazar as per Ex.P1 in the presence of PWs.1, 2 and 4 and also seized MO.3 to 5 from the spot. But in the limit of Yelahanka Police Station on the basis of Ex.P24 case was registered in Cr.No.170/2012 regarding missing of the said girl - Harshitha and FIR was registered by PW.26 - Nagaraju who is the Head Constable and FIR was sent to higher officer i.e. Deputy Commissioner of Police, North East, Bengaluru. PW.5 - Anitha came to the house of PW.6 - Rathnamma who is mother of PW.5 and also grand mother of the deceased - Harshitha for the purpose of delivery and she was residing in her house situated at Hunasamaranahalli along with her daughter. But on 25.06.2012 in the morning hours her daughter - Harshitha was playing in front of the house of PW.6. But PW.5 - Anitha thought she was playing outside the house. But after sometime PW.5 - Anitha came to know that her daughter - Harshitha is missing from the place where she was playing. PW.5 - Anitha searched her missing daughter but everything went on vain as she was not 38 traceable. Subsequently, missing complaint filed regarding missing of Harshitha was filed by her father / PW.1 - Thammanna at Yelahanka Police Station. On the basis of Ex.P24, criminal law was set into motion by registering the case in Cr.No.170/2012 regarding missing of the Harshitha by PW.26 - Nagaraju being Head Constable.
26. PW.12 - Amalu and her daughter namely Sindhu was attending Anganawadi School in Hunasamaranahalli village and whereby PW.9 - Bylamma who is none other than the wife of the accused was working as Anganawadi worker and accused alleged to misbehaved with Sindhu. Sindhu had severe pain in her private parts while she was discharging urine. On enquiry of that by PW.12 - Amalu with PW.9 - Bylamma relating to misbehavior caused by accused to Sindhu who is her daughter neither PW.9 nor Sindhu disclosed anything. PW12 - Amalu went to the house of PW.9 - Bylamma and enquired with her that accused alleged to had caused pain and forcibly pressed 39 private parts of Sindhu. On information of PW.12 - Amalu criminal law was set into motion by registering the case in the limit of Yelahanka Police Station in Cr.No.02/2013 for offence punishable under Section 354 of IPC, 1860. But subsequently, PW.22 who had taken up the case for investigation and even though PW.27 being the investigating officer in part and then PW.28 and 29 were also investigating officers in part and PW.28 who had thoroughly investigated the case and laid the charge sheet. In the instant case prosecution has given more credentiality to the evidence of PWs.1, 5 and 6 inclusive of evidence of PWs.11 to 15. But it is seen in the evidence of those witnesses even while taking into account even absence of certain explanatory notice but essential conditions must satisfy: (i) Various links in the chain of evidence led by the prosecution have been satisfactorily proved. (ii) the said circumstance points to the guilt of the accused with reasonable definiteness, and (iii) the circumstance is in proximity to the time and situation. 40 However, it is relevant to refer reliance of judgment rendered by the Hon'ble Supreme Court of India in Sharad Birdhichand Sarda vs. State of Maharashtra reported in (1984) 4 SCC 116 it is observed that "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."
27. In Para No.126 of the said reliance while two ingredients have been proved but two have not. In the first 41 place, it has no doubt been proved that Manju died of potassium cyanide and secondly, it has also been proved that there was an opportunity to administer the poison. It has, however, not been proved by any evidence that the appellant had the poison in his possession. On the other hand, as indicated above, there is clear evidence of PW 2 that potassium cyanide could have been available to Manju from the plastic factory of her mother, but there is no evidence to show that the accused could have procured potassium cyanide from any available source. We might here extract a most unintelligible and extra-ordinary finding of the High Court. This observation is made by the Hon'ble Supreme court of India.
28. But in the instant case regarding rendering conviction judgment for the offence under Section 302 of IPC, it is relevant to refer that there is no direct evidence on these two points and thereafter points have been raised in the instant case and then plethora of evidence has been 42 rendered by the prosecution but the domain vested with the prosecution and it has to prove the case against the accused beyond all reasonable doubt. When there are clouds of doubt it cannot be arise in the mind of the Court the doctrine of benefit it should be in favour of the accused alone and not of the prosecution to any extent.
29. However, the case in S.C.No.136/2013 was ended in conviction and even entire case is based upon circumstantial evidence and since from the date of arrest accused is in incarceration for a period of 6 years. But there is no worthwhile evidence has been facilitated by the prosecution to prove the guilt of the accused. Therefore, in this appeal it requires intervention, if not, certainly the gravamen of the accusation would be the sufferer and there shall be some substantial miscarriage of justice. But it is relevant to state that mere because prosecution has rendered some sort of evidence subjected to examination of several witnesses the domain it is vested with the 43 prosecution to facilitate the worthwhile evidence and it would indicate witnesses are not being subjected to examination. But in the instant case in pursuance of the direction issued by the trial Court in Cr.No.69/2012 and also permission accorded have been subjected to examination of PWs.1, 5 and 6 are required to cross- examination on the part of prosecution and their evidence also required to be scrutinised closely and if there is acceptable evidence only to consider and also consider the evidence only if the prosecution prove the guilt of the accused beyond all reasonable doubt. But in the instant case there are full of infirmities and there is no corroborative, consistent, positive and cogent evidence to probabalise that the accused had committed murder of the deceased by abducting or inducing by providing chocolate and then committed her murder. Even at a cursory glance of the entire evidence of the prosecution it indicates as that the prosecution did not facilitate worthwhile evidence to secure conviction for the offence punishable under Section 44 302 of IPC but the trial Court rendered acquittal judgment relating to 201 IPC 1860 in respect of evidence to scrutinize legal aspect as under Section 201 of IPC, 1860 it is only after committing murder of the person. But in the instant case Harshitha aged about 4½ years who is daughter of PW.1 - Thammanna and PW.5 - Anitha was missing from the place when she was playing in front of the house of PW.6 - Rathnamma. Based upon the missing complaint given by PW.1 criminal law was set into motion by registering the case in Yelahanka Police Station. Accused was apprehended in one case in the limit of Chikkajala Police Station and whereby on investigation accused confessed and also case was registered in Cr.No.69/2012 by recording FIR and then PW.27 who is the investigating officer in part took up the case for investigation and thereafter the investigation was done by PWs.27, 28 and 29 who are the official witnesses and laid the charge sheet against the accused before the committal Court. But at a cursory glance of evidence of PWs.27, 28 45 and 29 who are investigating officers in part and also official witnesses and the investigation done by them are found to be perfunctory investigation. Therefore, on close scrutiny of the above material witnesses PWs.1, 5, 6 inclusive of PWs.11, 12, 13 and 14 there are some clouds of doubts which are put in forth by the prosecution and when the doubt has arised in the mind of the Court that benefit of the doubt is always in favour of the accused. For the aforesaid reasons the appeal deserves for consideration and accused deserves to be acquitted. Accordingly, we proceed to pass the following:
ORDER The appeal preferred by the appellant / accused under Section 374(2) of Cr.P.C. is hereby allowed. The accused is in incarceration for almost 6 years 7 months and 29 days. Consequently, for the reasons stated, the judgment of conviction and order of sentence rendered by the trial Court in S.C.No.136/2013 dated 19.08.2015 for offence under Section 302 IPC, is hereby set-aside. 46
The appellant / accused is acquitted for the offence punishable under Section 302 of IPC which was charged against him.
Registry of this Court is directed to forward a copy of the operative portion of the order to the Central Jail, Parappana Agrahara, Bengaluru City for communication and also for compliance. If accused is not required in any other case, he shall be set at liberty forthwith. Accordingly, it is observed.
Sd/-
JUDGE Sd/-
JUDGE KLY/RJ