Karnataka High Court
Kiran Sebastiyan @ Kiran vs State Of Karnataka on 20 September, 2022
Author: K.Somashekar
Bench: K.Somashekar
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R
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 20TH DAY OF SEPTEMBER, 2022
PRESENT
THE HON'BLE MR.JUSTICE K.SOMASHEKAR
AND
THE HON'BLE MR. JUSTICE T.G.SHIVASHANKARE GOWDA
CRIMINAL APPEAL NO.1249 OF 2017
BETWEEN:
Kiran Sebastiyan @ Kiran
S/o Rajashekarappa
Aged about 27 years
Tiles worker
R/o Near Sathyakanthamma
Chowltry, Devanur
Tumakuru - 572111.
...Appellant
(By Sri. Veeranna G. Tigadi and
Sri. Shivaprasad .S - Advocates)
AND:
State of Karnataka
By New Extension Police
Tumakuru
Rep. by SPP
High Court of Karnataka
Bangalore - 560001.
...Respondent
(By Sri. Vijayakumar Majage - Addl. SPP)
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This Criminal Appeal filed under Sec.374(2) of
Criminal Procedure Code, by the Advocate for the
appellant praying to set aside the judgment and order of
conviction dated 11.01.2017 passed by II-Addl. District
and Sessions Judge, Tumakuru in S.C.No.16/2016 -
convicting the appellant / accused for the offence
punishable under Section 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 II Addl. District and Sessions Judge at Tumkuru in SC.No.16/2016 dated 11.01.2017 whereby convicted the accused for the offence punishable under section 302 IPC, 1860 and sentenced to pay fine of Rs.10,000/- which is reflected in the operative portion of the order. Whereas the appellant is seeking 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 offence under Section 302 IPC and consequently, to acquit the accused.
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2. Heard the learned counsel Sri Veeranna G Tigadi 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.16/2016.
3. The factual matrix of the appeal are as under:
On 17.08.2015 complainant namely Jayashankar filed a complaint before the New Extension Police Station, Tumakuru alleging that his daughter - Thejaswini was suffering from mental ill health and accused had come to his house and said that, he had fallen in love with her and was interested to marry his daughter. But complainant refused to get his daughter married with the accused as she was of unsound mind in terms of mental ill health. Deceased - Thejaswini forced the accused to marry her and gave the mobile phone to the accused. In view of that complainant - 4 Jayashankar made altercations with the accused. It is further stated that on 12.08.2015 accused had come to the house of complainant at around 10.00 p.m. and extended life threat to him and deceased and also abused them in filthy language. Further, it is alleged that, accused decided to take away life of his daughter - Thejaswini. On 16.08.2015 at about 2.30 p.m. accused took the deceased to a dilapidated condition house and murdered her by strangulating her neck with means of veil.
4. In pursuance of the act of the accused, complainant filed complaint and criminal law was set into motion by recording FIR at Ex.P21. Subsequent to registration of crime the I.O took up the case for investigation and thoroughly investigation has been done and during investigation the I.O recorded the statements of witnesses and so also, drew mahazar in the presence of panch witnesses and thereafter laid the charge sheet against the accused before the committal 5 court in C.C.No.171/2015 for the offence punishable under Section 302 of IPC, 1860. The committal Court had passed an order dated 12.01.2016 and the case was committed to Court of sessions for trial. Subsequent to committing the case in sessions Court, the case in S.C.No.16/2016 has been registered in the Court of the II Addl. District and Sessions Judge at Tumkuru. The Trial Court heard the learned Public Prosecutor and so also, the defence counsel for the accused relating to charge for the offence punishable under Section 302 of IPC. On perusal of the material available on record there was sufficient material to frame charge against the accused and the charges were read over to the accused in a language known to him. But accused pleaded not guilty and claimed to be tried. Accordingly the plea of the accused was recorded.
5. Subsequently, the prosecution let in evidence by subjecting to examination in all PW-1 to PW-12 and 6 got marked several documents at Exhibits P1 to P21 and so also, got marked MO-1 to MO-8. Subsequent to closure of evidence on the part of the prosecution, the accused was subjected to examination under Section 313 Cr.P.C. relating to incriminating evidence appearing against him, whereby the accused denied the truth of the evidence of the prosecution. Subsequently, the accused did not come forward to adduce any defence evidence as contemplated under Section 233 of the Cr.P.C. Accordingly, it was recorded.
6. Subsequent to closure of evidence in accordance with the relevant provisions of the Cr.P.C. the Trial Court heard the arguments advanced by the learned Public Prosecutor and so also, the counter arguments of the learned defence counsel. Further, On perusal of the evidence of PW.1-Jayashankar who is the author of the complaint at Ex.P1 and PW.2 - Nagaveni and they have stated in their evidence relating to the 7 motive factor. PW.3 - Rakesh who is none other than brother of the deceased and his evidence finds corroborative to the evidence of PW.7. PW.12 - Balegowda being the I.O who laid the charge sheet against the accused and more so, he had stated in his evidence relating to spot mahazar at Ex.P2 conducted in the presence of PWs.1 to 5 and so also, drew inquest mahazar over the dead body at Ex.P6 in the presence of PW.6. PW.7 being the doctor who conducted autopsy over the dead body and issued PM report at Ex.P9 and also FSL report at Ex.P20. Seizure mahazar at Ex.P11 which was conducted by PW.12 in the presence of panch witnesses. Ex.P17 is the voluntary statement of the accused which was recorded by PW.12 and based upon his disclosure statement seized MO.1 to 8. These are all the evidence let in on the part of prosecution to prove the guilt of the accused. Even contents of the spot mahazar at Ex.P2 which was conducted in the presence of PWs.1 to 5. PW.4 stated in her evidence 8 that she had seen the deceased - Thejaswini and accused at the scene of crime i.e dilapidated condition house and she had also seen accused and deceased quarrelling with each other. These are all the evidence let in by the prosecution and subjected to examination of PW.4 in respect of the last seen theory that the accused and deceased were in dilapidated condition house and also accused had motive factor to eliminate the deceased. Therefore, on the part of the prosecution it is clear from the evidence of PW.4 that accused had motive to eliminate the deceased. PW.4 - Anitha has supported the case of prosecution. These are all the evidence on part of the prosecution which finds place relating to the accused and also appreciated by the trial Court inclusive of the evidence of defence side and PM report at EX.P9 and opined that death has caused due to asphyxia as a result of ligature strangulation. But PW.12 being the I.O who conducted entire investigation 9 and his evidence finds corroborative with the evidence of PWs.1, 2, 3 and 4.
7. On close scrutiny of the evidence of those witnesses on the part of prosecution even to the extent of last seen theory of the deceased and accused having been seen the entirety of the prosecution has established the relationship between accused and deceased - Thejaswini. Further, deceased had given mobile phone to the accused and whereby PW.1 - Jayashankar had visited the house of the accused and enquired about MO.2 - Mobile phone and filed complaint against the accused that the deceased had given mobile phone to have some correspondence between them. Therefore, from the evidence of PWs.1, 2, and 3 it is clear that accused had visited house of PW.1 - Jayashankar and abused in filthy language and also extended life threat to the family members of the deceased and said he would take away the life of the his daughter - Thejaswini. Deceased - Thejaswini and 10 accused had visited the scene of crime i.e. dilapidated condition house and whereby PW.4 - Anitha had seen that accused had intention of eliminating the deceased in the scene of crime. Therefore, from evidence of PW.4 it is clear that accused had motive to eliminate the deceased. Even from the evidence of PWs.1, 2 and 3 and also the evidence of PW.8 it is clear that deceased - Thejaswini was suffering from mental ill health. On the evidence of PWs.1, 2 and 3 and also from report at Ex.P18 and 19 it is clear that deceased was suffering from mental disorder and she was not having worldly knowledge. Further, on the part of the prosecution there was love affairs in between the accused and deceased. PW.1 - Jayashankar had visited his house and enquired about MO.2 - mobile phone which was given to the accused by the deceased. These are all the evidence comeforth on the part of the prosecution to prove the guilt of the accused. But chain of circumstances and also circumstances are compulsive in nature same can 11 be seen in the evidence of PWs.1, 2, 3 and 4 coupled with the evidence of PWs.12 - I.O. Therefore, the trial Court had arrived at a conclusion that prosecution has proved the guilt of the accused beyond all reasonable doubt and rendered conviction judgment for the offence punishable under Section 302 of IPC, 1860. The said judgment is challenged under this appeal by urging various grounds.
8. Whereas, learned counsel Sri.Veeranna G Tigadi for appellant has taken us through the evidence of PW.1, 2, 3 and 4. PW.4 - Anitha who had given information to PW.1 - Jayashankar that dead body of woman was lying in the scene of crime i.e. dilapidated condition house. Thereafter, PW.1 accompanied PW.4 to the scene of crime and noticed the dead body of his daughter - Thejaswini lying on ground and there were ants found on the dead body. But there is no direct evidence and eyewitness to the incident on the part of the prosecution. The trial Court had given more 12 credentiality to the evidence of those witnesses even though it is circumstantial evidence and arrived at a erroneous conclusion by convicting the accused solely based upon the evidence of PW.4 without appreciating the evidence in proper perspective.
9. The second limb of the argument advanced by referring the evidence of PWs.1 and 2 whereby PW.1 - Jayashankar who is none other than author of the complaint and more so father of the deceased - Thejaswini and he has stated in his evidence that PW - 4 Anitha had informed him about the murder of his daughter at around 12.00 p.m. and she has stated in her evidence that she informed that dead body of a woman was lying in the scene of crime.
10. At a cursory glance of the evidence of PWs.1 and 2 coupled with the evidence of PW.4 - Anitha there is no specific evidence on the part of the prosecution to prove the guilt of the accused and accused alone has committed the murder of the deceased. But there is lot 13 of discrepancies of the fact and the same is seen in the evidence of PW.4 whereby she had given information about dead body of a woman was lying in dilapidated condition house. But it creates huge suspicion in relation to the accused and accused alone had committed the murder of the deceased. But the trial Court did not appreciate the evidence of those witnesses in proper perspective manner. Therefore, in this appeal it requires re-appreciation of evidence whereby the trial Court misdirected the evidence of PW.4. At a cursory glance of evidence of PW.4 - Anitha who gave information to PW.1 and thereafter only he lodged complaint before the police having jurisdiction to proceed for investigation. Further, if PW.4 was sure that, accused had killed the deceased nothing prevented her to tell that deceased was murdered by the accused. Therefore, when PW.4 has not informed at the earliest point of time that the accused had killed the deceased and when the same has been told subsequently, the 14 same has set up theory and roped the accused in the alleged incident solely with an intention of fixing the accused in the incident.
11. Lastly, learned counsel has taken us through the evidence of PWs.2 and 4 and their evidence has been closely analyzed and even PW.4 came to their house and informed about the incident but there are several contradictions in the evidence of PWs.2 and 4. But PWs.1 and 2 have stated in their evidence that incident took place in the dilapidated condition house situated at Gopalaswamy temple at S.S.Puram. Surprisingly, PW.3 has stated that incident took place near Ashok Nagar. Therefore, PW.3 has never gone to the spot and he is a tutored witness. PW.3 - Rakesh who is none other than brother of the deceased has stated in his evidence that his statement was recorded on the next day of the incident, whereas his statement was recorded on the same day. Therefore, there are 15 discrepancies in recording the statement, which is doubtful and the same has been created by the I.O. But PW.4 had given the evidence and she has not stated the colour of the veil which is marked as MO.6. But MO.6 is Black colour veil got in dilapidated condition house. Therefore, in view of the fact that said veil belong to PW.4 is not clear on the part of the prosecution. The trial Court has failed to appreciate the evidence on the part of the prosecution that PW.4 - Anitha during her evidence stated that she went inside the dilapidated condition house i.e scene of crime and deceased face was covered by a veil - MO.3 red colour veil, but surprisingly, the statement of PW.12 being I.O is entirely different and creating some doubt. PW.12 during the course of investigation his evidence has categorically stated that, they took the accused to S.S Puram 4th Cross Railway track wherein the accused went inside the thorny bushes brought the veil and handed over to PW.12 and hence, it is very clear that 16 evidence of PW.3 is not corroborative with the evidence of PW.12 and the prosecution has failed to prove the guilt of the accused by facilitating worthwhile evidence beyond all reasonable doubt.
12. The trial Court has given more credentiality to the evidence of PWs.1 to 4 and 12. Even though there are lot of contradictory statements between PWs.1 to 4 and 12, the trial Court solely based upon the circumstantial evidence which is not conclusive in nature and thereby arrived at erroneous conclusion and rendered judgment of conviction and order of sentence which is perverse without proper perspective. If the impugned judgment is not intervened absolutely there shall be miscarriage of justice to the accused who is a gravamen of the accusation. On all these premise, learned counsel for the appellant seeks to consider the grounds urged in this appeal and set aside the judgment of conviction and order of sentence rendered in S.C.No.16/2016 dated 11.01.2017 and acquit the 17 accused for the offence punishable under Section 302 of IPC, 1860.
13. PW.1 who is the author of the complaint at Ex.P1 and more so, father of the deceased has stated in his evidence that his daughter - Thejaswini was suffering from mental ill health and she was treated in NIMHANS hospital, Bengaluru and also Sridhar Hospital at Shimoga. He has specifically stated that his daughter and accused were known to each other for past 4 months prior to the incident. He further states that accused had come to his house and requested to marry deceased - Thejaswini but PW.1 and 2 informed the accused that since deceased - Thejaswini was mentally retarded they refused to perform her marriage. Whereas the deceased - Thejaswini had given MO.2 - mobile phone which belong to her father PW-1 to the accused. In this regard PW.1 went to the house of accused and enquired about the mobile phone. Since, 18 accused had also visited house of the deceased and extended life threat to family members of the deceased and also abused them in filthy language and also saying as take away the life of Thejaswini as she had sent his father to his mother-in-law's house and ill-treated him with regard to the said mobile phone. Whereas, PW.4 - Anitha had come to the house of PWs.1 and 2 and informed that some one had murdered their daughter in the dilapidated condition house situated near the Gopala Swamy temple and immediately they rushed to place where the dead body of Thejaswini was lying on the ground in the scene of crime. Thereafter he made a complaint as per Ex.P1 and based upon his complaint criminal law was set into motion by recording FIR at Ex.P21.
14. PW.2 - Nagaveni who is mother of the deceased has stated in her evidence that Thejaswini was mentally retarded person and treated at NIMHANS 19 Hospital, Bengaluru, Victoria Hosiptal and Sridhar Hosiptal at Shimoga. She further states that accused and deceased were known to each other and her daughter had informed her that she got introduced to the accused 2 months prior to the incident. Subsequently, accused had come to their house and requested to perform his marriage with her daughter - Thejaswini. But PWs.1 and 2 who are the parents of the deceased refused to perform marriage of their daughter with the accused as she was mentally retarded and did not had any worldly knowledge. But on 17.08.2015, PW.4 - Anitha came to their house and informed them that some one had murdered their daughter in dilapidated condition house situated near Gopala Swamy temple. PW.3 - Rakesh is brother of the deceased and he has also given evidence that his sister
- Thejaswini did not had worldly knowledge and she was treated at NIMHANS Hospital, Bengaluru and Sridhar Hospital, Shimogga. He has specifically stated 20 that accused had been to his house prior to the incident and requested PWs.1 and 2 who are parents of the deceased to give his sister in marriage with him. But his parents refused to the offer made by the accused as their daughter was suffering from mental ill health. Further states that his sister had given MO.2 - mobile phone of PW.1 to the accused and his father had gone to the house of the accused to enquire about mobile phone, the accused had come to their house and extended life threat and abused them in filthy language and also accused said that he would take away life of his sister - Thejaswini. These are all the evidence found on the part of the prosecution. But at a cursory glance of the evidence of PWs.1 to 3 inclusive of PW.4 - Anitha who had given information about murder of deceased and accused was frequently visiting the dilapidated condition house that means to say accused and deceased were fallen in love with each other and deceased had given MO.2 - Mobile phone to the accused 21 which belongs to her father - PW.1. However, at a cursory glance of evidence of PWs.1, 2 and 3 coupled with reports at Ex.P18 and 19 relating to deceased who was suffering from mental ill-health, it is clear that she had suffered with mental ill-health. Therefore, evidence of PWs.1, 2 and 3 are consistent to each other and also corroborative relating to the murder of Thejaswini by the accused alone. Prior to the incident accused and deceased were frequently visiting the dilapidated condition house and there was some altercation took between them and same has been heard by PW.4 - Anitha and informed the death of the deceased in the scene of crime. PW.4 was friendly with the deceased and she was residing in a rented house at SIT Layout since 5 years. These are all the evidence let in by the prosecution to prove the guilt of the accused. Whereas, PW.1 - Jayashankara and PW.5 - Chethan have subscribed their signature at Ex.P2 mahazar drawn by PW.12 in the presence of PW.6 - Parashuram. PW.7 - 22 Dr.S.Rudramurthy being the doctor who conducted autopsy over the dead body and issued PM report at Ex.P9 and noticed the injuries inflicted over the person of the deceased and opined that death was caused due to asphyxia as a result of ligature strangulation of neck. Therefore, evidence of PWs.1, 2, 3 and 4 finds corroborative with the evidence of PW.12 and even a prudent man can inferred that accused had motive to eliminate the deceased - Thejaswini.
15. Even at a cursory glance of the evidence on the part of the prosecution and totality of the circumstances by careful scrutiny the trial Court pointed the guilt of the accused and held that prosecution has proved the guilt of the accused with beyond reasonable doubt and if the chain of circumstances taken into consideration in so for as the charges leveled against the accused had proved, consequently arrived at conclusion to render conviction judgment and accordingly, held that the offences 23 punishable under Section 302 of IPC, 1860. Therefore, in this appeal it does not arise to call for any interference and more so, there is no perversity in the judgment of conviction rendered by the trial Court. On all these premise, learned Addl.SPP for the State seeks for dismissal of this appeal being devoid of merits.
16. It is in this context of the contention made by the learned counsel for the appellant and so also, learned Addl.SPP for State, it is relevant to refer certain provisions of the Indian Evidence Act, 1872 relating to the concept of evidence i.e., "Evidence" means and includes -
(1) all statements which the Court permits or requires to be made before it by witnesses, in relation to matters, of fact under inquiry, such statements are called oral evidence; (2) all documents including electronic records produced for the inspection of the Court, 24 such documents are called documentary evidence.
17. Section 3 of the Indian Evidence Act specifically states about "proved" - a fact is said to be proved when, after considering the matters before it, the Court either believes it to exist, or considers its existence so probable that a prudent ought, under the circumstances of the particular case, to act upon the supposition that it exists.
18. In the same provision of the Act the concept of "disproved" is also stated i.e., a fact is said to be disproved when, after considering the matters before it, the Court either believes that it does not exist, or considers its non-existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it does not exist.
19. In the same provision of the Act, there shall be domain vested with the prosecution to facilitate 25 worthwhile evidence to secure conviction and similarly, the domain vested with the trial Court to appreciate the evidence both oral and documentary evidence. Section 3 of the Evidence Act defines "evidence", broadly divided into oral and documentary. "Evidence" under the Act is the means, factor or material, lending a degree of probability through a logical inference to the existence of a fact. It is an "Adjective Law" highlighting and aiding substantive law. Thus, it is neither wholly procedural nor substantive, though trappings of both could be felt.
20. Whereas under this appeal challenging the judgment of conviction and order of sentence relating to offence under Section 302 of IPC. But the entire case rests upon the circumstantial evidence and even at a cursory glance of evidence of PW.1 - Jayashankar who is the author of the complaint at Ex.P1 and more so, PW.4 - Anitha who had given information about the dead body of woman was lying in a dilapidated 26 condition house i.e., the scene of crime and thereafter PW.1 - Jayashankar who had accompanied with PW.4 - Anitha and found that the dead body of a woman i.e., Thejaswini was lying and there were some ants found on her body and thereafter only PW.1 - Jayashankar had given information to the police and based upon his complaint at Ex.P1, criminal law was set into motion. Even at a cursory glance of evidence of PW.1 a prudent man can infer that he filed complaint at Ex.P1 only after getting information through PW.4 - Anitha only. Whereby the evidence of PW.2 - Nagaveni and PW.3 - Rakesh being mother and brother of the deceased. But even on close scrutiny of their evidence a prudent man can notice that there are some inconsistencies and discrepancies would arise in their evidence relating to murder of deceased - Thejaswini. This specific contention is taken by learned counsel for appellant for consideration and also emphatically submitting relating to re-appreciation of evidence if not, certainly the 27 accused being the gravamen of accusation would be the sufferer and absolutely miscarriage of justice would arise. But in a case of circumstantial evidence it is the domain vested with the prosecution to prove the guilt against the accused by facilitating the worthwhile evidence and also credentiality of the evidence to secure the conviction. The law with regard to conviction on the basis of circumstantial evidence has been very well been crystallized in the judgment of Hon'ble Supreme Court in Sharad Birdhichand Sarda vs. State of Maharashtra ((1984) 4 SCC 116)). This judgment has been referred in a judgment of Crl.A.No.25/2012 of Ram Niwas vs. State of Haryana. Even on a close analysis of decision at paragraph 152 of the said judgment, the Hon'ble Apex Court has held thus:
"152. Before discussing the cases relied upon by the High Court we would like to cite a few decisions on the nature, character and essential proof required in a criminal case which rests on circumstantial evidence alone. 28 The most fundamental and basic decision of this Court is Hanumant v. The State of Madhya Pradesh (AIR 1952 SC 343). This case has been uniformly followed and applied by this Court in a large number of later decisions up-to-date, for instance, the cases of Tufail (Alias) Simmi v. State of Uttar Pradesh ((1969) 3 SCC 198)) and Ramgopal v. State of Maharashtra (AIR 1972 SC 656). It may be useful to extract what Mahajan, J. has laid down in Hanumant's case (supra):
"It is well to remember that in cases where the evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should in the first instance be fully established and all the facts so established should be consistent only with the hypothesis of the guilt of the accused. Again, the circumstances should be of a conclusive nature and tendency and they should be such as to exclude every hypothesis but the one proposed to be proved. In other words, there must be a chain of 29 evidence so far complete as not to leave any reasonable ground far a conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability the act must have been done by the accused."
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 ((1973) 2 SCC 793)) where the following observations were made:
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"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.
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21. It has been held that the circumstances should be of a conclusive nature and tendency. Further, the circumstances should exclude every possible hypothesis except the one to be proved. Suspicion, however 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. An accused is presumed to be innocent unless proved guilty beyond all reasonable doubt.
22. In the instant case, the matter thus must depend upon the circumstances of each case and the quality of the evidence of the single witness whose testimony has to be either accepted or rejected. If such a testimony is found by the court to be entirely reliable, there is no legal impediment to the conviction of the accused person on such proof. Even as the guilt of an accused person may be proved by the testimony of a 32 single witness, the innocence of an accused person may be established on the testimony of a single witness, even though a considerable number of witnesses may be forthcoming to testify to the truth of the case for the prosecution. Hence, as opined that, it is a sound and well-established rule of law that the court is concerned with the quality and not with the quantity of the evidence necessary for proving or disproving a fact. Generally speaking, oral testimony in this context may be classified into three categories, namely:
(1) Wholly reliable.
(2) Wholly unreliable.
(3) Neither wholly reliable nor wholly unreliable.
23. In the first category of proof, the court should have no difficulty in coming to its conclusion either way
- it may convict or may acquit on the testimony of a single witness, if it is found to be above reproach or suspicion of interestedness, incompetence or 33 subornation. In the second category, the court, equally has no difficulty in coming to its conclusion. It is in the third category of cases, that the court has to circumspect and has to look for corroboration in material particulars by reliable testimony, direct or circumstantial. There is another danger in insisting on plurality of witnesses. Irrespective of the quality of the oral evidence of a single witness, if courts were to insist on plurality of witnesses in proof of any fact, they will be indirectly encouraging subornation of witnesses.
24. In the instant case, the prosecution has subjected to examination in all PWs.1 to 12 but has given more credentiality to the evidence of PWs.1 and 2 as they are the parents of deceased - Thejaswini and PW.3 who is none other than the brother and he is not having specific information about the incident and even though he has given statement before the investigating officer during the course of investigation. These are all 34 the evidence which is coming forth on the part of the prosecution. But the evidence of PWs.1, 2, 3 inclusive of PW.4 wherein she had given an information relating to a dead body of woman was lying in a dilapidated conditional house i.e. the scene of crime and then only PW.1 - Jaishankar who accompanied with PW.4 - Anitha to the scene of crime found the dead body of his daughter - Thejaswini was lying and there were ants on her body. Subsequently, he had given complaint as per Ex.P1 and based upon his complaint, criminal law was set into motion and PW.12 being the investigating officer who took up the case for investigation and done the investigation thoroughly and laid the charge sheet against the accused and the charge sheet consisting the spot mahazar, seizure mahazar and also seized certain material which got marked on the part of the prosecution. But the entire case rests upon the circumstantial evidence and there are no direct eye 35 witnesses and there is no direct evidence relating to proven the guilt of the accused.
25. It is relevant to refer the reliance of Navneeta Krishnan vs. The State by Inspector of Police reported in AIR 2018 SC 2027 wherein it is held relating to the last seen theory requires corroboration and accused person cannot be convicted solely on the basis of last seen together. Further, in the reliance of Sahadevan vs. State of Tamil Nadu (AIR 2012 SC 2435), the Hon'ble Supreme Court has held that 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.
26. Whereas in the reliance of State of Gujarat vs. Gandabhai Govindbhai reported in 2000 Crl.LJ 92 (Guj), it is held that it is the duty of the Court to scrutinize the evidence carefully and to see that 36 acceptable evidence is accepted. The Court should adopt cautious approach for basing conviction on circumstantial evidence, if not, certainly there shall be some miscarriage of justice to the accused being the gravamen of the accusation.
27. Insofar as motive in circumstantial evidence, in a case of circumstantial evidence, the evidence indicating the guilt of the accused becomes untrustworthy and unreliable, because most often it is only the perpetrator of the crime alone, who has knowledge of the circumstances that prompted him to adopt a certain course of action, leading to the commission of the crime. Therefore, if the evidence on record suggest sufficient/necessary motive to commit a crime, it may be conceived that the accused has committed the same. This issue has been extensively addressed by the Hon'ble Supreme Court in the case of Munish Mubar vs. State of Haryana reported in AIR 37 2013 SC 912. But it is the domain vested with the prosecution to prove the guilt against the accused by facilitating the worthwhile evidence relating to motive factor and so also, circumstantial in nature even the incident is narrated in detail in the theory of the prosecution. Motive may be an important circumstance in a case based on circumstantial evidence but cannot take the place of conclusive proof as held in the decision reported in Sampath Kumar vs. Inspector of Police, Krishnagiri (AIR 2012 SC 1249). Even motive is thing primarily known to the accused himself and it may not be possible for the prosecution in each and every case to find out the real motive behind the crime. It is well settled that where there is an eye witness account regarding the incident, the motive loses its importance. But in the instant case, PW.4 - Anitha had an information about a dead body lying in the dilapidated condition house i.e., the scene of crime and thereafter only PW.1 - Jaishankar had come to the scene of crime 38 along with PW.4 - Anitha and saw the dead body of Thejaswini was lying and thereafter PW.1 - Jaishankar had given complaint as per Ex.P1 and based upon the said complaint, criminal law was set into motion and that PW.12 being the investigating officer who conducted the investigation thoroughly and laid the charge sheet against the accused person. But on close scrutiny of the evidence of PWs.1, 2, 3 inclusive of PW.4 coupled with the evidence of PW.12 being the Investigating officer, it is relevant to refer relating to homicidal death and also murder. Exception IV Section 300 of IPC, 1860 states culpable homicide is not murder if it is committed without premeditation in a sudden fight in the heat of passion upon a sudden quarrel and without the offender having taken undue advantage or acted in a cruel or unusual manner.
28. But in the instant case, deceased - Thejaswini and the accused fell in love with each other. M.O.2 is 39 the mobile which belongs to PW.1 - Jaishankar and that mobile had been given by deceased - Thejaswini to the accused for communication. The accused and deceased frequently used to visit the scene of crime i.e., the dilapidated house nearby PW.4 - Anitha was residing and she was a dejected as well neglected woman from her family. But she was also staying nearby dilapidated house and was having some knowledge about deceased and accused frequently visiting the scene of crime i.e., the dilapidated condition house but she did not give any information to PW.1 and PW.2 about them. Even she had noticed that there was some quarrel took between them and noticed the quarreling sound from there but she did not give information to PW.1 who is none other than the father of deceased - Thejaswini. These are all the evidence which is coming forth on the part of the prosecution. But the evidence of PW.4 does not corroborate with the evidence of PWs.1, 2 and 3, but the trial Court has given more credentiality to their evidence 40 and rendering the conviction judgment for the offence under Section 302 of IPC, 1860 which requires for intervention.
29. PW.7 being the Doctor who conducted the autopsy over the dead body noticed injuries over the person of the deceased and has opined that the death is due to asphyxia as a result of ligature strangulation. But no ligature material was seized except veil. Even on the part of the prosecution there is no specific evidence relating to the injuries inflicted around the neck of deceased - Thejaswini even strangulating to her neck with means of black colour veil. But whether it is black colour or red colour as there was some difference arose in the evidence of PW.4 - Anitha coupled with the evidence of PW.12 being the investigating officer. These are all the evidence found on the part of the prosecution. Even taking into consideration the injuries on vital and non-vital parts of the body of deceased, the 41 infliction of injuries on the neck part of deceased - Thejaswini and even no specific evidence is forthcoming on the part of the prosecution that there was some strangulation around the neck of deceased. Therefore, the doubt it is crept in the mind of the Court and it is the domain vested with the trial Court to appreciate the evidence in a proper perspective manner, if not, the accused being the gravamen of accusation would be the sufferer and there shall be some miscarriage of justice. Even taking into consideration the evidence of PW.4- Anitha coupled with the evidence of PWs.1 and 2 who are the parents of deceased and inclusive of evidence of PW.3 - brother of the deceased and on close scrutiny of their evidence there are discrepancies and inconsistencies which can be noticed in their evidence adduced on the part of the prosecution. Therefore, there shall be some doubt arising in the mind of the Court. But in the instant case PW.4 - Anitha heard some sound from the dilapidated conditional house and even 42 prior to the incident the accused and deceased were frequently visiting but PW.4 did not inform about the quarrel to the parents of the deceased. When she found the dead body of woman lying at the scene of crime then only she had been to the house of PW.1 - Jayashankar and given information. Thereafter PW.1 had come to the scene of crime and found the dead body of his daughter and also there were ants on the dead body and thereafter he filed a complaint as per Ex.P1, based upon complaint the criminal law was set into motion.
30. But the concept of circumstantial evidence, even a criminal prosecution case and in a case it is true that the chain of events proved by the prosecution must show that within all human probability the offence has been committed by the accused and accused alone. But the Court is expected to consider the cumulative effect of the proved facts along with motive factor suggested by the prosecution. But it is not the case of that 43 nature, the accused and deceased Thejaswini had fallen in love for which reason accused had been roped in the offences under Section 302 of IPC whereby accused was facing of trial but the case ended in conviction and under this appeal the impugned judgment of conviction has been challenged by urging various grounds.
31. In the instant case there are discrepancies relating to the medical evidence coupled with the evidence of PWs.1, 2, 3 and 4. Even deceased - Thejaswini was suffering with mental ill-health and as such she had taken treatment in NIMHANS hospital and Sridhar Hospital at Shimoga. But Exs.P18 and P19 have been produced relating to deceased suffering with mental ill-health. These are all the evidence put forth on behalf of the prosecution, but it is the domain vested with the prosecution to prove the guilt against the accused beyond reasonable doubt and equally domain 44 vested with the trial Court to appreciate the evidence in a proper perspective manner.
32. In this classic case whereby challenging the judgment of conviction rendered by the trial Court but the entire case rests upon circumstantial evidence. It is relevant to refer the concept of 'mensrea' means guilty mind. The term used to describe mental element require to constitute a crime. Generally, it requires that the accused meant or intended to do wrong or atleast knew was doing wrong. However, the precise mental element varies from crime to crime. Insofar as motive factor even to prove the guilty mind of an accused, individual motive of person plays an important role. But in the instant case even at a cursory glance of evidence PWs.1, 2, 3 and 4 inclusive of evidence of PW.12 a prudent man can infer that it is the case which rests upon the circumstantial evidence. In case of the circumstantial evidence motive factor bears the important significance. 45 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.
33. But the law regarding circumstantial evidence is well-settled. When a case rests upon the circumstantial evidence, such evidence must satisfy three tests:
1) the circumstance from which an inference of guilt sought to be drawn, must be cogently and firmly established
2) those circumstances should be of definite tendency unerringly pointing towards guilt of the accused.
3) circumstances taken cumulatively should form the chain complete that there is no escape 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 46 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.
34. Mere because the dead body of Thejaswini was found in dilapidated condition house i.e., the scene of crime and wherein in the absence of any other corroborative evidence connecting that the accused and accused alone has committed murder of deceased - Thejaswini and even inquest was held over the dead body in the presence of the panch witness and unless there is specific evidence on the part of the prosecution it cannot connect him with murder and it is enough to fasten the guilt upon the accused although it may raise suspicion.
35. The chain of circumstances which has been established on the basis of reliable evidence the 47 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 the account of the injuries inflicted on the dead body of deceased. It was not occupied by anyone other than the person being arraigned as accused. It leads to the irresistible conclusion that it was only accused who committed the crime and leaves no doubt that accused alone has committed offences.
36. But in the instant case, the prosecution even though subjected to examination of PWs.1 to 12 but has given more credentiality to the evidence of PWs.1, 2, 3 and also 4. But PW.4 has partially supported the case of the prosecution but her evidence has not been supported absolutely by any other independent witness. PW.4 in her evidence has noticed that deceased and accused were frequently visiting and meeting in the scene of crime. But it is not possible to uphold the 48 conviction of the appellant on wholly unreliable and limping evidence. But the evidence is clinching and clearly implicates the accused person is causing for infliction of injuries around her neck and even strangulating her neck. But the evidence on the part of the prosecution must corroborate with the medical evidence that is the Doctor who conducted autopsy over the dead body of the deceased. Unless the medical evidence has been corroborated with the evidence of other independent witness on the part of the prosecution it cannot be arrived at a conclusion that the prosecution has proved the guilt of the accused beyond reasonable doubt. In the instant case, the trial Court has given more credentiality to the evidence of PWs.1, 2, 3 and 4. Even on a close scrutiny of their evidence and in totality of circumstances of the case, their evidence are found to be inconsistent. But it is the domain vested with the Court to appreciate the evidence in a proper perspective manner, if not, accused being the 49 gravamen of the accusation shall be the sufferer and there shall be some absolute miscarriage of justice. Therefore, in this appeal it requires for re-appreciation of evidence and also analytically and closely the evidence let in by the prosecution has to be looked into. Even on careful scrutiny of the evidence adduced by the prosecution as stated supra, even though the case rests upon the circumstantial evidence, but in view of the aforesaid reasons and findings, we are of the considered opinion that the prosecution has failed to establish the guilt of the accused beyond all reasonable doubt. There is a glaring error in the conclusion arrived by the trial Court and it requires intervention, if not, certainly there shall be miscarriage of justice to the accused being the gravamen of accusation. Therefore, the judgment of conviction and order of sentence rendered by the trial Court requires interference, as there is no cogent, corroborative and positive evidence to probabalise that the accused has committed the murder of the deceased, 50 consequently, the accused is deserving for acquittal. However, Section 304 of IPC is classified into Part I and II relating to intention or knowledge and vice-versa. In the said part of the provision and even taken into consideration the aforesaid provision, it is very remote chance to consider whether it will come under provision of either Part I or Part II of the said provision of IPC. But in the given peculiar facts and circumstances of the case, this accused was in incarceration for almost 7 years and the same can be seen in the materials available on record. Therefore, the period of incarceration would suffice to hold even to the extent of aforesaid intendment of Section 304 of IPC. But this accused is in judicial custody since from the date of his arrest and even after held conviction by the trial Court. He is in incarceration for almost all seven years. Even taking into consideration the period of incarceration undergone, it would be suffice to hold that the service of sentence would meet the ends of justice. Therefore, for 51 the aforesaid reasons and findings, 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. Consequently, the judgment of conviction and order of sentence rendered by the trial Court in S.C.No.16/2016 dated 11.01.2017 is hereby set-aside.
The appellant / accused is hereby acquitted for the offence punishable under Section 302 of IPC for which he was charged.
The amount if any, deposited by the appellant / accused shall be returned to him, on due identification.
Registry of this Court is directed to forward a copy of the operative portion of the judgment to the concerned Superintendent of jail authority where the accused is housed, with a direction to release the 52 appellant/accused forthwith, if he is not required in any other case. Accordingly, it is observed.
Sd/-
JUDGE Sd/-
JUDGE RJ/DKB