Karnataka High Court
State By Vijayapura Police vs Sathisha @ Sathishkumar on 13 December, 2023
Author: H.B.Prabhakara Sastry
Bench: H.B.Prabhakara Sastry
-1-
CRL.A. No.122 OF 2017
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 13TH DAY OF DECEMBER, 2023
PRESENT
THE HON'BLE DR. JUSTICE H.B.PRABHAKARA SASTRY
AND
THE HON'BLE MR. JUSTICE ANIL B KATTI
CRL.A No.122/2017 (A)
BETWEEN:
STATE BY VIJAYAPURA POLICE,
REP. BY SPP
HIGH COURT BUILDING,
BENGALURU - 01. ... APPELLANT
(BY SRI VINAY MAHADEVAIAH, HCGP)
AND:
SATHISHA @ SATHISHKUMAR
S/O. LATE GOVINDAPPA,
AGED ABOUT 30 YEARS,
R/AT KORAMANGALA VILLAGE,
AVATHI POST, VIJAYAPURA HOBLI,
DEVANAHALLI TALUK - 562 110. ... RESPONDENT
(BY SMT. K.M. ARCHANA, AMICUS CURIE)
THIS CRIMINAL APPEAL IS FILED UNDER SECTION
378(1) AND (3) CR.P.C., PRAYING TO GRANT LEAVE TO APPEAL
AGAINST THE JUDGMENT AND ORDER OF ACQUITTAL DATED
22.6.2016 PASSED BY THE V ADDITIONAL DISTRICT AND
SESSIONS JUDGE, DEVANAHALLI IN S.C.NO.15037/2014 -
ACQUITTING THE RESPONDENT FOR THE OFFENCE P/U/S 302
R/W 34 OF IPC.
THIS CRIMINAL APPEAL HAVING BEEN HEARD THROUGH
PHYSICAL HEARING/VIDEO CONFERENCING FOR FURTHER
-2-
CRL.A. No.122 OF 2017
ARGUMENTS AND RESERVED ON 15/09/2023, COMING ON FOR
PRONOUNCEMENT OF JUDGMENT, THIS DAY ANIL B. KATTI,
J., DELIVERED THE FOLLOWING:
JUDGMENT
Appellant/State feeling aggrieved by the judgment of Trial Court on the file of V Addl.District and Sessions Judge, Devanahalli in S.C.No.15037/2014, dated 22.06.2016 preferred this appeal.
2. Parties to the appeal are referred with their ranks as assigned in the Trial Court for the sake of convenience.
3. The factual matrix leading to the case of prosecution can be stated in nutshell to the effect that on 08.05.2014 at 10.30 p.m. accused and another person by name Suresh with common intention and due to old enmity took deceased Mani @ Subramani near Koramangala village and assaulted on deceased with stone and clubs, due to which he sustained injury over head and other parts of the body, with an intention or knowledge to commit his murder and committed an offence punishable -3- CRL.A. No.122 OF 2017 under Section 302 r/w Section 34 of Indian Penal Code, 1860 (hereinafter for brevity referred to as `the IPC').
3(a). The background according to the prosecution leading to the said incident is that, on 07.05.2014 in the evening hours, PW.16 Murali and deceased Mani went to Dabha for celebrating marriage party. On their way to Dabha near the circle of Koramangala village, accused and another person by name Suresh asked them whether they were going for drinks party, for which PW.16 Murali did not respond. Thereafter said PW.16 Murali and deceased Mani went towards Dabha. Accused and Suresh followed them and came to Dabha and both had alcohol. In the meantime, PW.16 Murali questioned the accused how he insulted in the circle that too in the presence of elders saying that they were going for drinks party. On such questioning by Murali quarrel took place between him and accused, in the process accused torn the shirt of Murali. The people assembled there pacified them.
3(b). On 08.05.2014 at about 6.30 p.m. the said Murali and PW.14 Venu were returning on motor cycle -4- CRL.A. No.122 OF 2017 from Vijayapura towards Koramangala, at that time they saw accused who was taking Mani and another person on a Star City motor cycle towards Vijayapura. It is further the case of prosecution that CW.2 Narasimhappa last seen accused nearby his farmhouse, where the accused was taking water from the drum which was kept in front of his house and he was accompanied by one more person by name Gangaraju. Thereafter both of them went away after taking the water. On 09.05.2014 CW.2 Narasimhappa in the early morning at 6 a.m. came out from his house and while attending nature call noticed the dead body and the said dead body is subsequently identified by CW.1 Shivarajkumar who is the brother of deceased Mani. On these allegations made in the complaint the Investigating Officer after completing the investigation filed the charge sheet under Section 302 of IPC.
4. In response to the summons accused has appeared through his counsel. The Trial Court on being Prima facie satisfied of the charge sheet materials framed the charge under Section 302 of IPC. Accused pleaded not -5- CRL.A. No.122 OF 2017 guilty and claimed to be tried. The prosecution in order to prove the allegations made against accused relied on the oral evidence of PWs.1 to 28 and documents Exs.P.1 to 27 so also got identified MOs.1 to 16.
5. On closure of the prosecution side, the statement of accused under Section 313 of Code of Criminal Procedure, 1973 (hereinafter for brevity referred to as 'the Cr.P.C.') came to be recorded. Accused has denied all the incriminating material evidence appearing against him and claimed that false case is filed. The Trial Court after appreciation of evidence on record acquitted the accused for the offence alleged against him.
6. Appellant/State challenging the judgment of acquittal contended that the Trial Court has not properly appreciated the evidence placed on record by the prosecution. The brother of deceased Mani, PW.5 Shivarajkumar has identified the dead body and the evidence of PWs.1 to 4, 6 to 9 and 14 is sufficient to establish the motive for commission of the offence. The -6- CRL.A. No.122 OF 2017 evidence of PWs.4, 6, 10 and 11 is sufficient to prove the mahazar conducted by the Investigating Officer, the star witness of the prosecution. PW.16 Murali would be sufficient to prove the last seen theory and motive. The evidence of PW.18 Dr.Annappa Swamy who has conducted autopsy of deceased Mani and issued postmortem report Ex.P.16 would prove that the death of Mani is homicidal death. The evidence of PW.28 Dr.A.N.Srinivas speaks about the injury found on the accused noted in the wound certificate Ex.P.26 that he suffered the injury in the accident in question, which would be sufficient to establish the complicity of the accused. The accused has not offered any explanation as to how he suffered injury. The extra judicial confession of accused before PW.23 C.R.Nagesh is not at all considered by the Trial Court. The entire approach and appreciation of evidence by Trial Court is contrary to law and evidence on record. Therefore, prayed for allowing the appeal and to set aside the judgment of acquittal passed by the Trial Court, consequently to convict the accused for the offence alleged against him. -7-
CRL.A. No.122 OF 2017
7. In response to the notice the accused has appeared through his counsel. In view of the order of dated 23.08.2023 Amicus curiae Smt.K.M.Archana was appointed to represent the respondent.
8. Heard the arguments of both sides.
9. After hearing both the sides and on perusal of Trial Court records, the following points arise for consideration:
1) Whether the prosecution has proved beyond all reasonable doubt that on 08.05.2014 at
10.30 p.m. in Koramangala village within the jurisdiction of Vijayapura Police Station accused and another person Suresh with common intention and due to old enmity took the deceased Mani near Koramangala village and assaulted on him with stone and clubs over his head and other parts of the body with an intention or knowledge to commit his murder, thereby committed an offence punishable under Section 302 r/w 34 of IPC?
-8-
CRL.A. No.122 OF 2017
2) Whether interference of this Court is required?
10. On careful perusal of oral and documentary evidence placed on record, it would go to show that prosecution alleges that accused and another person by name Suresh with a common intention due to old enmity took the deceased Mani near Koramangala and assaulted deceased Mani with stone and clubs over his head and other parts of the body, thereby committed his murder.
11. Learned High Court Government Pleader for appellant/State has argued that the case of prosecution is based on circumstantial evidence. The evidence of PW.5 Shivarajkumar brother of deceased Mani has identified dead body of his brother Mani laying by the side of the road. The evidence of PWs.1 to 4, 6 to 9 is sufficient to establish the motive for commission of the offence. The evidence of PWs.4, 6, 10 and 11 is sufficient to prove the mahazer conducted by the Investigating Officer, the star witness of the prosecution. PW.16 Murali has spoken about -9- CRL.A. No.122 OF 2017 the last seen theory and motive. The evidence of PW.18 Dr.Annappa Swamy and the postmortem report Ex.P.16 proved the homicidal death of deceased Mani. In the incident accused has also suffered injury and he has been examined by PW.28 Dr.A.N.Srinivas and issued wound certificate Ex.P.26 on 13.05.2014, which would establishes the complicity of the accused and the accused has offered no any explanation as to how he sustained the injuries. The Trial Court has not at all considered the extra judicial confession of accused before PW.23 C.R.Nagesh. On arrest of accused his written confession came to be seized from pant pocket under the panchanama Ex.P.5 and written confession at Ex.P.6. The said evidence of prosecution witnesses has not been considered by the Trial Court and observations and finding recorded by the Trial Court are contrary to the evidence on record.
12. Per contra the learned Amicus curiae has argued that the evidence of prosecution witnesses is insufficient to prove the circumstances of motive and last seen theory is totally unreliable. The prosecution has alleged that
- 10 -
CRL.A. No.122 OF 2017 accused and another person Suresh have committed the murder of deceased Mani. However, in the entire charge sheet there is no any reference or being arrayed as accused in this case. The evidence of PWs.6, 8, 9 and 14 does not match with each others version. The evidence of PW.19 Gangaraju is against the complaint allegations Ex.P.4 and there is nothing in his evidence to prove the motive. PW.1 Narasimhappa who was inside the house and has not seen the accused and his evidence is totally vague. The evidence of mechanic PW.20 Firdosh Pasha is unreliable and the blood stained cloth of accused have not been subjected to FSL examination. The Investigating Officer has not collected any call records of accused and PW.19 Gangaraju to establish that accused has contacted them on the day of incident or prior to the day of incident. If the entire evidence placed on record by the prosecution is appreciated, then all the chain link has not been established by the prosecution. The findings recorded by the Trial Court is based on the material evidence placed on
- 11 -
CRL.A. No.122 OF 2017 record and the same does not call for any interference of this Court.
13. Before proceeding further in analysing the evidence led in the matter, it is to be borne in mind that it is an appeal against the judgment of acquittal of the accused from the alleged offence punishable under Sections 302 r/w Section 34 of IPC. Therefore, the accused has primarily the double benefit. Firstly, the presumption under law that, unless the guilt is proved, the accused has to be treated as innocent in the alleged crime. Secondly, the accused is already enjoying the benefit of judgment of acquittal passed under the impugned judgment. As such, bearing the same in mind, the evidence placed by the prosecution in the matter is required to be analysed.
(a) Our Hon'ble Apex Court, in its judgment in the case of Chandrappa and others -vs- State of Karnataka, reported in (2007) 4 Supreme Court Cases 415, while laying down the general principles regarding powers of the Appellate Court while dealing in an appeal against an order
- 12 -
CRL.A. No.122 OF 2017 of acquittal, was pleased to observe at paragraph 42(4) and paragraph 42(5) as below:
" 42(4) An appellate court, however, must bear in mind that in case of acquittal, there is double presumption in favour of the accused. Firstly, the presumption of innocence is available to him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent court of law. Secondly, the accused having secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the trial court.
42(5) If two reasonable conclusions are possible on the basis of the evidence on record, the appellate court should not disturb the finding of acquittal recorded by the trial court."
(b) In the case of Sudershan Kumar -vs- State of Himachal Pradesh reported in (2014) 15 Supreme Court Cases 666, while referring to Chandrappa's case (supra), the Hon'ble Apex Court at Paragraph 31 of its Judgment was pleased to hold that, it is the cardinal principle in criminal jurisprudence that presumption of innocence of the accused is reinforced by an order of acquittal. The
- 13 -
CRL.A. No.122 OF 2017 Appellate Court, in such a case, would interfere only for very substantial and compelling reasons.
(c) In the case of Jafarudheen and others -vs- State of Kerala, reported in (2022) 8 Supreme Court Cases 440, at Paragraph 25 of its judgment, the Hon'ble Apex Court was pleased to observe as below:
" 25. While dealing with an appeal against acquittal by invoking Section 378 Cr.P.C, the appellate Court has to consider whether the trial court's view can be termed as a possible one, particularly when evidence on record has been analysed. The reason is that an order of acquittal adds up to the presumption of innocence in favour of the accused. Thus, the appellate Court has to be relatively slow in reversing the order of the trial court rendering acquittal. Therefore, the presumption in favour of the accused does not get weakened but only strengthened. Such a double presumption that enures in favour of the accused has to be disturbed only by thorough scrutiny on the accepted legal parameters."
The above principle laid down by it in its previous case was reaffirmed by the Hon'ble Apex Court, in the case of Ravi Sharma -vs- State (Government of NCT of
- 14 -
CRL.A. No.122 OF 2017 Delhi) and another reported in (2022) 8 Supreme Court Cases 536.
The Hon'ble Apex Court in another latest judgment in Roopwanti Vs. State of Haryana and others reported in 2023 SCC online 179, wherein it has been observed and held in paragraph No.7 that:
" In cases where a reversal of acquittal is sought, the Courts must keep in mind the presumption of innocence in favour of the accused, on grounds of it surviving to rigorous of full trial is strengthened and stands forfeited.
The prosecution then while still working under the same burden of proof, is required to discharge a more onerous responsibility to annual and reverse the forfeited presumption of innocence. This fortification of the presumption of innocence has been held in a catena of judgment by this Court".
- 15 -
CRL.A. No.122 OF 2017 It is keeping in mind the above principles laid down by the Hon'ble Apex Court, we proceed to analyse the evidence placed in this matter.
14. On careful perusal of the oral and documentary evidence placed on record by the prosecution, it is evident that the case of prosecution entirely rest on circumstantial evidence. The prosecution relies on the following circumstances:
1) Motive
2) Last seen theory
3) Incident
4) Written confession of accused and lastly
5) Extra judicial confession of accused before PW.23 C.R.Nagesh.
15. The prosecution to prove the circumstantial evidence must establish all the connecting chain of events to prove that it is accused alone and none else has committed the murder of deceased Mani. The well known rule governing circumstantial evidence is that each and every incriminating circumstances must be clearly
- 16 -
CRL.A. No.122 OF 2017 established by reliable evidence and the circumstances 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 except the guilt of the accused. It is profitable to refer the landmark judgment of Hon'ble Apex Court in SHARAD BIRDHICHAND SARDA Vs. STATE OF MAHARASHTRA reported in (1984) 4 SCC 116, wherein five golden rules set out must be fulfilled before a case against an accused can be said to be fully established on circumstantial evidence as under :
1. the circumstances from which the conclusion of guilt is to be drawn must or should be and not merely 'may be' fully established.
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.
- 17 -
CRL.A. No.122 OF 2017
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.
In another latest judgment of the Hon'ble Apex Court in Dinesh Kumar V. State of Haryana reported in AIR 2023 SC 2795 has reiterated the same principle in SHARAD BIRDHICHAND SARDA Vs. STATE OF MAHARASHTRA (supra) regarding the conditions to be fulfilled before a case against an accused can be said to be fully established on circumstantial evidence.
16. The prosecution has to first establish that the death of deceased Mani is a homicidal death. On perusal of inquest panchanama Ex.P.2 and the evidence of PW.4 Thammanna, PW.6 Venkataraju and the evidence of Investigating Officer PW.24 Shivareddy, would go to show that inquest panchanama Ex.P.2 was conducted in
- 18 -
CRL.A. No.122 OF 2017 presence of PW.4 Thammanna and PW.6 Venkataraju. The deceased has sustained as many as seven injuries noted in the inquest panchanama. The evidence of PW.18 Dr.Annappa Swamy and postmortem report Ex.P.16 would go to show that, the death of Mani is due to crush injury to brain and the said injury along with other injuries were noted in the inquest panchanama Ex.P.2 and the postmortem report Ex.P.16. PW.18 Dr.Annappa Swamy has given opinion ExsP.17 and 18 on examining MOs.1 to 6 and stated that the injures found on the deceased Mani can be found, if a person is assaulted by means of MOs.1 to 6. There is no any contrary evidence that has been brought on record during the course of cross-examination of above referred witnesses. Therefore, the prosecution out of the evidence as above referred witnesses has proved that death of Mani is a homicidal death.
17. The prosecution to prove the place of incident and recovery of MOs.1 to 9 relied on the oral testimony of PW.4 Thammanna and PW.6 Venkataraju, so also the evidence of Investigating Officer PW.2 Shivakumar. PW.4
- 19 -
CRL.A. No.122 OF 2017 Thammanna and PW.6 Venkataraju during the course of their evidence have deposed about preparing panchanama in their presence Ex.P.1 and the recovery of MOs.1 to 9 from the place of incident. The said evidence is further corroborated by the evidence of Investigating Officer PW.24 Shivareddy. The dead body was found at the place of incident with the injuries over the body as referred in the inquest panchanama Ex.P.2. The defence though has subjected all these three witnesses to lengthy cross-examination, nothing worth material has been brought on record to discredit the evidence of these witnesses. Therefore the prosecution out of the said evidence on record has proved the place of incident.
18. The prosecution has relied on the evidence of PW.18 Dr.Annappa Swamy who has conducted the autopsy of deceased Mani and given postmortem report Ex.P.16. On perusal of the evidence of PW.18 Dr.Annappa Swamy and the post mortem report Ex.P.16 has found the following injuries:
- 20 -
CRL.A. No.122 OF 2017
1) 5X1 cm size Cut Lacerated Wound present over roof of the nose.
2) 6X4X3 cm Cut Lacerated Wound present over occipitu parietal region on left side.
3) 6X1 cm Cut Lacerated Wound Front parietal region.
4) 3X1 cm Cut Lacerated Wound present over chin.
5) Broken upper incises present.
6)Bony crepitus present over occipitu parietal bone.
7)Brain (occipitu parietal region) is visualized out side.
PW.18 Dr.Annappa Swamy has deposed that cause of death is due to crush injury to brain. Therefore, the said evidence placed on record by the prosecution, would go to show that deceased Mani died due to injuries over his head.
- 21 -
CRL.A. No.122 OF 2017
19. The prosecution alleges the first circumstance of motive that there was old enmity between accused and deceased. PW.16 Murali regarding the incident that took place on 07.05.2014 has deposed to the effect that himself and deceased Mani were proceeded on the motor cycle from Koramangala towards Avathi. At that time accused in Koramangala circle asked PW.16 Murali for giving drinks party on the eve of marriage of his maternal uncle son. However, PW.16 Murali did not respond to the same and proceeded to a bar in Avathi. At that time accused and one more person came to the bar and then PW.16 Murali proceeded to petrol bunk for filling petrol to his vehicle and accused on his motor cycle followed him. PW.16 Murali at that time asked accused questioning him about the drinks party in the village and accused torn his shirt. The deceased Mani along with others pacified the quarrel. Looking to the said evidence of PW.16 Murali, it would go to show that the said enmity between PW.16 Murali and accused is just a day prior to the incident. The deceased Mani has only intervened to pacify the quarrel between
- 22 -
CRL.A. No.122 OF 2017 PW.16 Murali and accused. In fact there is no direct evidence in the form of evidence of PW.16 Murali that there was old enmity between deceased Mani and accused. The intervention of Mani in pacifying the quarrel between PW.16 Murali and accused cannot be termed as an act of accused having old enmity against deceased Mani. The incident that took place on 07.05.2014 in tearing the shirt of PW.16 Murali by accused cannot be said as a strong motive for accused to commit the murder of deceased Mani, only because he intervened to pacify the quarrel between the accused and PW.16 Murali. The learned Amicus curiae on the point of motive relied on the judgment of Hon'ble Apex Court in Anil Rai Vs. State of Bihar reported in AIR 2001 SC 3173, wherein it has been observed and held that:
"The admitted position of law is that enmity is a double edged weapon which can be a motive for the crime as also the ground for false implication of the accused persons. In case of inimical witnesses, the courts are required to scrutinize their testimony with anxious care to find out whether their
- 23 -
CRL.A. No.122 OF 2017 testimony inspires confidence to be acceptable notwithstanding the existence of enmity. Where enmity is proved to be the motive for the commission of the crime, the accused cannot urge that despite proof of the motive of crime, the witnesses proved to be inimical should not be relied upon. Bitter animosity held to be a double edge weapon may be instrumental for false involvement or for the witnesses inferring and strongly believing that the crime must have been committed by the accused. Such possibility has to be kept in mind while evaluating the prosecution witnesses regarding the involvement of the accused in the commission of the crime. Testimony of eye- witnesses, which is otherwise convincing and consistent, cannot be discarded simply on the ground that the deceased were related to the eye-witnesses or previously there were some disputes between the accused and the deceased or the witnesses. The existence of animosity between the accused and the witnesses may, in some cases, give rise to the possibility of the witnesses exaggerating the role of some of the accused or trying to rope in more persons as accused persons for the commission of the crime. Such a possibility is
- 24 -
CRL.A. No.122 OF 2017 required to be ascertained on the facts of each case. However, the mere existence of enmity in this case, particularly when it is alleged as a motive for the commission of the crime cannot be made a basis to discard or reject the testimony of the eye-witnesses, the deposition of whom is otherwise consistent and convincing" (emphasis supplied by me).
In view of the principles enunciated in this decision by Hon'ble Apex Court, the evidence of PW.16 Murali and other witnesses will have to be appreciated in the light of case made out by the prosecution.
20. The prosecution claims the second circumstances on the basis of last seen theory. The prosecution to prove the said circumstances relies on the oral testimony of PW.1 Narasimhappa, PW.14 Venu and PW.16 Murali. PW.1 Narasimhappa has deposed to the effect that, he was having agricultural land in Koramangala of Vijayapura and residing in the house constructed therein. About one year back, in the night between 8 p.m. to 9 p.m. while he was in the house, heard somebody is talking and he questioned
- 25 -
CRL.A. No.122 OF 2017 as to who is that person. In response the person in Telugu language answered that he is Satish and in the light has seen the face of accused Satish. He after taking the water from the drum kept in front of his house went along with another person with him Gangaraju @ Achari.
20(a). PW.1 Narasimhappa in his cross-examination admits that he has only heard the talking and did not see the face. However, he firmly states that the said person is Satish. PW.1 Narasimhappa further admits that he was at a distance of 30 to 40 ft. in the house, he further admits that there was no light at the place where the person was standing and he did not know which colour dress the said person was wearing. If the above referred admissions of PW.1 Narasimhappa in his cross-examination are taken into consideration, then it is evident that the identification of accused is only on the basis of voice and he has not personally seen him. Therefore, the evidence of PW.1 Narasimhappa cannot be accepted to prove the last seen theory claimed by the prosecution.
- 26 -
CRL.A. No.122 OF 2017
21. PW.16 Murali has only deposed about the incident that according to him took place on 07.05.2014 and accused having torn his shirt. PW.16 Murali with regard to he having seen the accused in the company of deceased Mani and another person on Star City motor cycle. Further in Pallavi Dabha accused has threatened Mani that he will kill him, since he is supporting PW.16 Murali. PW.16 Murali also did not speak anything about having seen the dead body of Mani on 08.05.2014.
21(a). PW.14 Venu has deposed to the effect that on the next day of incident in the evening between 6 p.m. to 6.30 p.m. he was proceeding on his motor cycle to Koramangala, at that time he saw accused, Mani and another unknown person proceeding on motor cycle towards Vijayapura. According to the statement of PW.16 Murali Ex.P.14 and as per the case of prosecution both PW.16 Murali and PW.14 Venu were proceeding on motor cycle. It is at that time, they saw the accused on Star city motor cycle proceeding with Mani and another person towards Vijayapura. However, PW.16 Murali during the
- 27 -
CRL.A. No.122 OF 2017 course of his evidence does not speak anything that PW.14 Venu and himself was proceeding on motor cycle, at that time they saw accused proceeding on Star City motor cycle with Mani and another person towards Vijayapura and PW.14 Venu also does not state that PW.16 Murali was with him on the motor cycle when he alleged to have seen the accused proceeding on his Star City motor cycle with Mani and another person. Therefore, under these circumstances evidence of PW.14 Venu last seen accused while going on the Star City motor cycle with Mani and another person cannot be relied.
22. Learned Amicus curiae for respondent in support of her contention on last seen theory relies on judgment of Hon'ble Apex Court in Kanhaiya Lal Vs. State of Rajasthan (2014) 4 SCC 715, where in it has been observed and held in para No.12 as under:
"12. The circumstance of last seen together does not by itself and necessarily lead to the inference that it was the accused who committed the crime. There must be something more establishing connectivity between the accused and the crime. Mere non-explanation
- 28 -
CRL.A. No.122 OF 2017 on the part of the appellant, in our considered opinion, by itself cannot lead to proof of guilt against the appellant."
22(b). The learned amicus curiae for respondent also relied on the another latest of Hon'ble Apex Court in R.Sreenivasa Vs. State of Karnataka in Crl.A.No.859/2011, dated 06.09.2023, wherein the Hon'ble Apex Court by referring to the above referred Kanhaiya Lal judgment and its earlier judgments has held that:
"The burden on the Accused would, therefore, kick in, only when the last seen theory is established".
Therefore, the burden of accused offering an explanation in terms of Section 106 of Evidence Act would shift only when the prosecution established last seen theory. Therefore, in view of the principles enunciated in both the aforementioned judgments of Hon'ble Apex Court and the above referred evidence of material witnesses PW.1 Narasimhappa, PW.14 Venu and PW.16 Murali the claim of prosecution that they have last seen accused in
- 29 -
CRL.A. No.122 OF 2017 the company of deceased Mani and another person cannot be legally sustained.
23. The prosecution to prove the incident relies on the oral testimony of PW.6 Venkatraju, PW.8 Ranjith, PW.9 Chetan and PW.14 Venu and that of PW.16 Murali. The entire case of prosecution revolves around star witness PW.16 Murali and the case of prosecution begins with his evidence. PW.16 Murali has deposed to the effect that on 07.05.2014 he went to Dabha along with Mani for celebrating marriage party. PW.16 Murali and deceased Mani were proceeding on motor cycle at about 6 p.m. to 6.30 p.m. from Koramangala to Avathi and near Koramangala circle the accused asked them whether they are going to give drinks party or not. The same has made annoyance to PW.16 Murali and without answering accused went to Dabha. Accused and Suresh followed them and after they having alcohol in Dabha, there was quarrel between PW.16 Murali and accused, in the said incident accused torn the shirt of PW.16 Murali. The deceased Mani intervened and tried to pacify them, but
- 30 -
CRL.A. No.122 OF 2017 accused abused deceased Mani and questioned that why he is supporting PW.16 Murali. Thereafter PW.16 Murali went to petrol bunk to fill petrol for his motor cycle and the accused followed him on his motor cycle. Accused questioned him as to why he is degrading him in the village before elders and made galata, so also torn his shirt and eight persons who were in Dhaba pacified the quarrel. Thereafter himself and Mani came back to their village. PW.16 Murali has not spoken anything about the incident that took place on 08.05.2014. Therefore, he has been partly declared as hostile witness. PW.16 Murali during the course of cross-examination by learned Public Prosecutor did not admit that on the day of incident on 08.05.2011 in the evening at 6 p.m. to 6.30 p.m. saw the accused and another person proceeding on the motor cycle and having given statement before the police Ex.P.14.
24. The evidence of PW.6 Venkataraju PW.8 Ranjith, PW.9 Chetan and PW.14 Venu would go to show that, they have spoken about only the incident that took place in
- 31 -
CRL.A. No.122 OF 2017 Dabha on 07.05.2014 and their evidence is inconsistent with regard to the manner in which the incident took place in the Dabha, but they have consistently deposed about quarrel having taken place in Dabha between PW.16 Murali and accused. However, the said evidence does not connect with the incident that took place on 08.05.2014 and according to the prosecution, accused by means of stone and club assaulted over the head of Mani and committed his murder. The circumstances relied by the prosecution failed to prove the same which would create serious doubt about the incident that took place on 08.05.2014 and accused by means of wooden pieces and stone assaulted on him and committed his murder.
25. According to the case of prosecution accused, Suresh, deceased Mani and Achary all of them have consumed drinks on the day of incident. According to the evidence of PW.10 Ramesh and PW.11 V.Ranganath, accused has led them and police officials and shown the place where they have committed the murder and also recovered Brandy packets seized under Ex.P.7. However,
- 32 -
CRL.A. No.122 OF 2017 the evidence of PW.18 Dr.Annappa Swamy who conducted post mortem of deceased Mani on 09.05.2014 and issued post mortem report Ex.P.16 has categorically admitted in his cross-examination that he did not find any traces of alcohol in the stomach of deceased Mani, this would create a serious doubt in the case of prosecution that accused, Mani, Achari and Suresh have consumed alcohol on the day of incident and accused by means of wooden pieces and stone assaulted over the head and other parts of the body, thereby committed murder of Mani.
26. According to the evidence of PW.5 Shivarajkumar the brother of deceased Mani who has filed complaint Ex.P.4 and the evidence of PW.14 Venu, PW.16 Murali, PW.19 Gangaraju would go to show that, there is involvement of one more person by name Suresh. However, there is absolutely no any investigation regarding the said Suresh or any other persons being involved in committing the murder of deceased Mani. The evidence of Investigating Officers PW.26. S.Mahesh Kumar and PW.27 Thimmaiah is totally silent on these aspect.
- 33 -
CRL.A. No.122 OF 2017 This circumstance also would create serious doubt about involvement of accused in committing the murder of deceased Mani.
27. It is the evidence of PW.28 Dr.A.N.Srinivas that on 13.05.2014 at 7 p.m. in Vijayapura Police Station, PC.No. 1153 Sri.Ramkumar produced the accused and on examination PW.28 Dr.A.N.Srinivas found the injury over upper portion of the right eye of 1 ½ inch length and the said injuries opined to be simple in nature and accordingly issued wound certificate Ex.P.26. It is in the evidence of PW.26 S.Mahesh Kumar that, after the arrest of accused he found injury on right eyebrow. Therefore, he sent him to government hospital on 13.05.2014. Initially the wound certificate Ex.P.26 was not produced by the prosecution and PW.26 S.Mahesh Kumar was recalled after closure of his evidence to speak on this aspect. Since according to him the earlier Investigating Officer PW.27 Thimmaiah had received the wound certificate, but was not filed along with the charge sheet. The evidence of PW.27 Thimmaiah is silent on this aspect. The evidence of PW.22 Shivakumar
- 34 -
CRL.A. No.122 OF 2017 who arrested the accused is also silent about any injury having been found when he arrested accused. It is nobody's case that in the incident accused also sustained injuries. Therefore, under these circumstance the evidence of PW.28 A.N.Srinivas and wound certificate Ex.P.26, so also that of Investigating Officer PW.26 S.Mahesh Kumar that accused sustained injury in the incident also creates serious doubt. Therefore, under these circumstances it is difficult to believe the case of prosecution regarding the alleged incident said to have taken place on 08.05.2014 and the accused assaulted deceased Mani by means of wooden pieces and stone, thereby committed his murder. The complete chain of circumstances to prove the incident as claimed by the prosecution has not been established out of the evidence of above referred witnesses.
28. The next circumstance claimed by the prosecution is that accused has given extra judicial confession before PW.23 C.R.Nagesh. The evidence of PW.23 C.R.Nagesh would go to show that on 08.05.2014 at 11 p.m. he was in Devanahalli bus stand waiting for bus
- 35 -
CRL.A. No.122 OF 2017 to go to his village Lalagondanahalli and at that time accused came to the said place and he was frightened, so also he was smelling alcohol, when he questioned as to what has happened, accused stated that he has committed the murder of Mani by assaulting with stone and wooden pieces. Further, he is going out of the village and asked him not to disclose any body in the village, as there is threat to his life. PW.23 C.R.Nagesh in his cross- examination admits that accused is not his friend and he is known to him by face, since he met him while he was going to seize the vehicle. PW.23 C.R.Nagesh claims in his cross-examination that one Police Constable had came to his house and there were no any officers with him and he has given statement in his house itself before the said Police Constable. He further claims that he has not gone to Police Station and he has not given any statement before CPI or PSI. The statement of this witness under Section 161 Cr.P.C. has not been recorded by Police Constable. Looking to the evidence of above referred witnesses, in the light of case made out by the prosecution, the
- 36 -
CRL.A. No.122 OF 2017 presence of accused at Devanahalli bus stand itself appears to be very much doubtful, above all why there should be any threat to the witness PW.23 C.R.Nagesh for not disclosing confession about the incident said to have been made by accused. Therefore, the extra judicial confession said to have been made by accused before this witness fails to repose confidence of the Court in accepting his extra judicial confession as a circumstance to prove the confession of accused.
29. The prosecution relies on the last circumstance of recovery of written confession from the pant pocket of accused after his arrest. The prosecution relies on the oral testimony of PW.7 A.P.Channegowda, PW.25 Prakasha, PW.22 Shivakumar and that of Investigating Officer PW.26 S.Mahesh kumar.
30. It is the evidence of PW.22 Shivakumar that on the oral instruction of PW.26 S.Mahesh Kumar himself and his staff were directed to trace the accused and produce before him. On the basis of the information given by the
- 37 -
CRL.A. No.122 OF 2017 informants accused was in the house of his sister in Beerappanahalli of Sidlaghatta Taluk of Chikkaballapura district they went to the said place on 13.05.2014 and arrested the accused then produced before PW.26 S.Mahesh Kumar.
31. PW.26 S.Mahesh Kumar has deposed to the effect that on 13.05.2014 he took further investigation from in charge CPI PW.24 Shivareddy and PW.22 Shivakumar has produced the accused before him. On personal search written confession (referred as death note) came to be recovered in presence of panch witnesses. PW.7 A.P.Channegowda and PW.25 Prakash under the panchanama Ex.P.5 the written confession is identified as Ex.P.6.
31(a). PW.7 A.P.Channegowda has deposed to the effect that on 13.05.2014 he was called to the Police Station and the accused was present there. On personal search, written confession was found in the pocket which came to be seized under the panchanam Ex.P.5 and he identified written confession Ex.P.6. However, another co-
- 38 -
CRL.A. No.122 OF 2017 pancha PW.25 Prakash has not supported the case of prosecution. The prosecution has relied on the evidence of PW.13 Paramesh who is the elder brother of the accused and his evidence would go to show that he was called to the Police Station for identifying the hand writing of his deceased brother Mani under Ex.P.6 written confession. He has not supported the case of prosecution having identified the written confession in the hand writing of his brother. Therefore, the evidence of PW.13 Paramesh cannot be of any assistance to the case of prosecution to prove the contents of the written confession Ex.P.6 is in the hand writing of deceased Mani.
31(b). PW.26 S.Mahesh Kumar during the course of cross-examination admits that he has not obtained writings of accused and has not subjected the written confession Ex.P.6 with the admitted writing of accused for expert's opinion. However, it is the claim of PW.26 S.Mahesh Kumar that since the accused has admitted that it is in his hand writing, he did not seek any expert's opinion cannot be legally sustained. PW.26 S.Mahesh
- 39 -
CRL.A. No.122 OF 2017 Kumar however admits that he has not obtained signature of panch witness PW.7 and PW.25 Prakash on the seized written confession of accused Ex.P.6. Therefore, without the proof of written confession Ex.P.6 accused alleged to have been seized from the pocket of accused under panchanama Ex.P.5 cannot be accepted as legal evidence to prove the written confession of accused to connect the alleged recovery of written confession of accused in proof of the last circumstances to connect with the accused for having committed the murder of Mani.
32. In view of the reasons recorded above, the complete chain of circumstance claimed by the prosecution has not been established out of the evidence placed on record which can unerringly point out finger against accused that it is accused alone has committed the murder of deceased Mani. The Trial Court has rightly appreciated the evidence on record and the findings recorded by the Trial Court are based on the material evidence on record which does not call for any interference by this Court. Consequently, we proceed to pass the following:
- 40 -
CRL.A. No.122 OF 2017 ORDER The Criminal Appeal stands dismissed as devoid of merits.
The assistance rendered by the learned Amicus Curiae for respondent is appreciated in assisting the Court for disposal of the appeal.
The honorarium of the learned Amicus curiae for respondent is fixed as Rs.5,000/- payable by the registry.
Registry to transmit a copy of this judgment along with Sessions Judge's Court records to the concerned Sessions Judge's Court without delay.
SD/-
JUDGE SD/-
JUDGE GSR