Karnataka High Court
Rehaman Manjoor Dhoon @ Dhoon vs State Of Karnataka on 21 September, 2020
Bench: B.Veerappa, K.Natarajan
-: 1 :-
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 21ST DAY OF SEPTEMBER, 2020
PRESENT
THE HON'BLE MR.JUSTICE B.VEERAPPA
AND
THE HON'BLE MR. JUSTICE K. NATARAJAN
CRIMINAL APPEAL No.472/2020
BETWEEN:
REHAMAN MANJOOR DHOON @ DHOON
S/O. LATE SAIYAD ABDIL BASID,
AGED ABOUT 34 YEARS,
R/O. NO.50, VENKATAPPA ROAD,
2ND CROSS, SHIVAJINAGAR,
BENGALURU-5600 051
(NOW UNDER DURESS IN
CENTRAL PRISON, BELLARI). ... APPELLANT
(BY SRI S. SHANKARAPPA, ADV.)
AND:
STATE OF KARNATAKA
BY INSPECTOR OF POLILCE,
HENNUR POLICE STATION,
BENGALURU, REPRESENTED BY: SPP
HIGH COURT BUILDINGS,
BENGALURU-560 001. ... RESPONDENT
(BY SRI S. RACHAIAH, HCGP.)
-: 2 :-
THIS APPEAL IS FILED UNDER SECTION 374(2)
OF CR.PC. PRAYING TO SET ASIDE THE JUDGMENT OF
CONVICTION DATED 19.03.2010 AND ORDER OF
SENTENCE DATED 22.03.2010 PASSED BY THE XXXII
ADDITIONAL CITY CIVIL AND SESSIONS JUDGE AND
SPECIAL JUDGE FOR CBI CASES, BENGALURU (CCH-
34) IN SC NO.1062/2008, CONVICTING THE
APPELLANT/ACCUSED NO.1 FOR THE OFFENCE P/U/S
302 OF IPC.
THIS APPEAL COMING ON FOR FINAL HEARING,
THIS DAY THROUGH VIDEO CONFERENCE, B.
VEERAPPA.J., DELIVERED THE FOLLOWING:
JUDGMENT
This appeal is filed by accused No.1 against the impugned judgment of conviction dated 19.03.2010 and order of sentence dated 22.03.2010 passed in SC No.1062/2008 on the file of the XXXII Additional City Civil and Sessions Judge and Special Judge for CBI cases, Bengaluru, sentencing the accused No.1 to undergo life imprisonment for the offence punishable under Section 302 of IPC with fine of Rs.5,000/-. In -: 3 :- default of payment of fine, he shall undergo simple imprisonment for six months.
2. It is the case of the prosecution that accused Nos.1 and 2 are husband and wife. They were residing in a sheet house at Chikkabanavara, Bengaluru, as tenants from the month of November, 2007 under PW-7, who is the owner of the said house. Accused No.1 approached PW-2 , who was the owner of tours and travels, through PW-13 on 07.01.2008 for providing a car on rent under the pretext that he wants to visit Bababudaingiri. Accordingly, PW-2 has agreed to provide a Qualis Car bearing No.KA-01/MB-2169, to accused No.1, in which deceased Abdul Rahim @ Sardar was the driver, had engaged the car on rent at the rate of Rs.6.50 per kilometer. As agreed, PW-2 sent the Qualis Car along with the driver.
-: 4 :-
3. It is the further case of the prosecution that the deceased Abdul Rahim @ Sardar was missing along with the Car. Accordingly, on 8.1.2008 at about 6.00 a.m., PW-12 had been to Maszid. On completion of prayer it was about 6.45 a.m., while he was returning to his house, near the forest office wire fence, he found one dead body wrapped with bed sheet lying there and the hands were visible. Immediately, he informed the same to the Hennur Police over phone and thereafter, the police came to the spot, untied the ropes and found incised wounds on the dead body and suspected that it was a murder. Statement of PW-12 was recorded by PSI - PW-18 and returned to the police station and registered a case against the unknown persons. The Police Inspector and PSI of Hennur Police Station came to the spot along with the witnesses and drawn mahazar. During the course of inquest mahazar, incised wounds -: 5 :- were noticed on the dead body while PW-17 noticed the tailor's label on the shirt color of the deceased MO-1. Thereafter, he called PW-3 the tailor and asked him to identify the deceased. Though PW-3 identified the label mark on the shirt color of the deceased, but he was not able to identify the deceased.
4. It is the further case of the prosecution that PW-2, the owner of the Tours and Travels, under whom the deceased was working as a driver, has collected the information regarding the search of the dead body. Thereafter, he visited the Hennur Police Station, where he was shown two photos of the dead body, he identified the dead body of the deceased as that of Abdul Rahim @ Sardar. PW-5, the brother of the deceased, on receiving the information regarding the death of Abdul Rahim, from PW-2, went to Dr.Ambedkar Hospital, where he found the dead body of the deceased and noticed cut injuries on the -: 6 :- forehead, backside of the head, on both hands and cheek besides noticing the blood stains on the shirt. Accordingly, PWs.20 and 21 the Police Constable and the PSI of Shivajinagar Police station, were entrusted the duty of searching the accused. Then, they visited the village Muragamalla and found accused Nos.1 and 2 along with the Qualis Car bearing No.KA-01/MB 2169 in the bus stand, where they apprehended accused and brought along with the Qualis car to the Shivajinagar Police Station and thereafter, produced the accused along with the Car before the Police Inspector PW-22 of Hennur Police Station for further investigation.
5. Hennur Police Inspector PW-22, who took up further investigation contacted PW-7 Sharma M.D., owner of the house measuring 10'x20' situated at Chikkabanavara and found that accused No.1 had taken the house on the monthly rent of Rs.900/- with -: 7 :- an advance of Rs.9,000/-. On examination of PW-9 it was revealed that he had sold the Qualis Car bearing No.KA-01/MB-2169 to PW-2 and that PW-22, investigated the matter and arrested both accused Nos.1 and 2 and seized the Car and recorded the voluntary statement of accused Nos.1 & 2. In pursuance of the statement of the accused, the Investigating Officer along with PW-6 as well as PW-7 visited the house of accused No.1 at Chikkabanavara. The accused No.1 as alleged has removed the key from the top of the electric meter and opened the doors and noticed the blood stains on the wall as well as on the mat. PW-6 has taken the photographs while the accused No.1 has produced the blood stained mat and knife from the bathroom which were seized under mahazar. PW-14 PWD Engineer, visited the spot and prepared the sketch at the spot and recorded the voluntary statement of accused No.1. On the basis of -: 8 :- the voluntary statement of accused No.1, he took the accused No.1 to HBR layout, there he has shown the place where he was dumped the dead body of Abdul Rahim. PW-22 also prepared the sketch at the spot and thereafter, sent the blood stained mat and knife to the FSL for examination. He also sent letter to PW-4 to issue a certificate regarding the availability of electric supply to the house of the accused (PW-7) situated at Chikkabanavara on 5.4.2008 in between 7.30 p.m., to 10.30 p.m., PW-22 also recorded the statement of the witnesses and collected the call details of Mobile No.99866 47618 standing in the name of the mother of accused No.1 and got ascertained that the mobile was used by accused No.1. On completion of the investigation, he filed charge sheet.
6. On perusal of the materials on record, it is seen that the learned Addl. CMM took the cognizance -: 9 :- against the accused persons for the offence punishable under Sections 302 and 201 read with Section 34 of IPC and committed the case to the Sessions Court. The learned Sessions Judge, on hearing both the sides framed Charges on 9.3.2009 for the offence punishable under Section 302 and 201 read with Section 34 of IPC and the same was read over and explained to the accused persons. Both the accused pleaded not guilty and claim to be tried.
7. In order to prove the guilt of the accused persons, the prosecution examined PWs.1 to 22 and got marked the documents Exhibits P-1 to P-37 and material objects MOs.1 to 12. After completion of the evidence of the prosecution witnesses, the statement of the accused persons were recorded under the provisions of Section 313 of Cr.PC and the accused persons denied all incriminating evidence against -: 10 :- them placed by the prosecution witnesses and they have not led any evidence.
8. The learned Sessions Judge considering the entire materials on record, both oral and documentary, recorded a finding that the prosecution has proved that on 7.1.2008 at about 8.00 p.m., at the rented house of accused No.1 has committed the murder of the deceased by assaulting with kathi MO3 and recorded a finding that the prosecution has failed to prove the involvement of accused Nos.1 & 2 in respect of the provisions of section 201 of IPC and recorded a finding that the prosecution has proved the guilt of Accused No.1 only in respect of the provisions of Section 302 of IPC and the prosecution has failed to prove the guilt of accused No.2 in respect of the provisions of Sections 302 and 201 of IPC and accordingly by the impugned judgment and order of conviction acquitted accused No.2 for the offences -: 11 :- charged and convicted the accused No.1 for the offence punishable under Section 201 of IPC and sentenced accused No.1 to undergo life imprisonment for the offence punishable under Section 302 of IPC. Hence, the present appeal by accused No.1.
9. We have heard the learned counsel appearing for the parties.
10. Sri S.Shankarappa, learned counsel appearing for the appellant contended with vehemence that absolutely there is no motive alleged against accused No.1 for the offence punishable under Section 302 of IPC and the alleged charge against accused No.1 is not proved beyond all reasonable doubt. He has further contended that the entire case of the prosecution rests on circumstantial evidence and the main circumstantial evidence is hiring of car by accused No.1. Except that, there is no acceptable -: 12 :- evidence placed on record to bring home the guilt of the accused. The piece of circumstantial evidence is not proved by any of the independent witnesses. Therefore, the impugned judgment and order of conviction against accused No.1 cannot be sustained.
11. The learned counsel for the appellant- accused No.1 has further contended that the identity of the deceased along with accused No.1 i.e., the alleged last seen theory is not established by the prosecution beyond all reasonable doubt. He would further contend that the material witness PW-13, at whose instance, the vehicle was hired turned hostile and not supported the case of the prosecution and nothing has been elicited in the course of cross examination. He has further contended that the prosecution has not established that accused No.1 has engaged the Qualis Car from PW-2, and no material is produced including the trip sheet, register maintained, -: 13 :- the alleged missing complaint dated 8.1.2008 said to have been lodged by PW-2 in respect of the deceased. He has further contended that the call details of PW-2 and the deceased has not produced to connect that Accused No.1 was involved in the homicidal death of the deceased.
12. He has further contended that the evidence of PW-17 and PW-21 with regard to recovery, no material is produced by the prosecution. Though PWs.17 & 21 have collected the call details and seized the Car through Ex.P-22 mahazar on 5.4.2008, but mahazar witness has not been examined. PW-21, Police Officer, who caught hold accused Nos.1 & 2 has not been confronted the documents Exs.P-31 and P-32 PF No.51/2008 and Rough sketch, recorded on 5.4.2008 has not placed any material before the learned Magistrate on 8.4.2008 i.e., after three days. He would further contend that under Ex.P9 Mahazar, -: 14 :- from the house of accused MOs.3 & 4 Kati and mat were seized in the presence of the witnesses PWs.7 & 8, who have turned hostile. Therefore, the recovery is not proved. On the basis of the voluntary statement made by the accused without any circumstances to prove that the accused were involved in the homicidal death of the deceased is doubtful. He has further contended that accused were arrested on 5.4.2008 at 4.00 p.m., Ex.P9 mahazar was drawn on the same day at 7.45 to 9.00 p.m., Key of the house of Accused No.1 where he was Tenant has not been seized.
13. He has further contended that the wall of the house was stained with blood and the blood was not sent to FSL. Ex.P-20 FSL report does not contain any human blood. He has further contended that neighbours of PW-7, owner of the house has not been examined to prove that accused Nos.1 & 2 are -: 15 :- tenants. No motive is established. He has further contended that admittedly, the prosecution has not filed any appeal against the acquittal of Accused No.1 u/s.201 and Accused No.2 u/ss.302 and 201 read with Section 34 of IPC. He has further contended that no circumstances are made out to prove the involvement of Accused No.1 in the homicidal death of the deceased. Learned counsel for the appellant submitted that since Accused No.3 is absconding, split up charge sheet was filed against him and he has not yet traced. In the absence of any material document, the impugned judgment and order of conviction against accused No.1 u/s.302 of IPC is without any basis and Ex.P-37 call details is not supported the provisions of Section 65B of the Indian Evidence Act. Therefore, he has sought for allowing of the appeal by setting aside the impugned judgment of conviction passed by the trial court. -: 16 :-
14. In support of his contention, the learned counsel for the appellant has relied upon the dictum of the Hon'ble Supreme Court in the case of Smt.Gargi Vs. State of Haryana reported in 2020 CRL.LJ 173.
15. Per contra, Sri S. Rachaiah, learned HCGP for the respondent-State while justifying the impugned judgment of conviction has contended that last seen theory with the vehicle is proved and recovery of quails vehicle while apprehending accused Nos.1 and 2 by PWs.20 to 22 is also proved. He has further contended that Mos.3 & 4 i.e., Kathi and mat were recovered at the instance of accused Nos.1 & 2 as per mahazar Ex.P22 drawn in the house of accused No.1, though PW-7 owner of the house turned hostile in part, his evidence has to be considered for recovery of the said material objects. He has further contended that seizure of Car belonged to PW-2 is proved under Mahazar Ex.P22. Admittedly, -: 17 :- homicidal death of the deceased is not disputed. Therefore, he sought for dismissal of the appeal.
16. In view of the aforesaid rival contentions urged by the learned counsel for the parties, the only point that would arise for our consideration is that:
"Whether the accused has made out a case to interfere with the impugned judgment of conviction and order of sentence passed by the Sessions Court in exercise of the appellate powers of this Court u/s.374(2) of Cr.PC?
17. We have given our anxious consideration to the arguments advanced by the learned counsel appearing for the parties and perused the entire materials including original records carefully.
18. The substance of the entire prosecution case is based on the circumstantial evidence and there is no last seen theory. It is the case of the -: 18 :- prosecution that circumstantial evidence is proved and that accused No.1 is involved in the homicidal death of the deceased and based on recovery, presumption has to be drawn against the accused that he is the cause for the death of the deceased.
19. In order to re-appreciate the evidence of the prosecution, it is relevant to consider the evidence of the prosecution witnesses and the documents relied upon.
20. PW-1 Shyam is the inquest panch witness for Ex.P1 Inquest Mahazar drawn on 8.01.2008 at HBR Layout behind forest office road, on the basis of the information given by PW-12.
PW-2 Shan Navaz Pash, owner of the vehicle seized MO-5 Qualis Car bearing No.KA-02/MB-2169, under whom the deceased was working as driver. -: 19 :-
PW-3 Gangadhar, Tailor who stitched the shirt of the deceased.
PW-4 T.M. Sampath Kumar, Jr. Engineer, BESCOM has stated that he has issued Ex.P4 letter stating that on 5.4.2008 between 7.30 p.m., and 10.00 p.m., there was electric supply without interruption.
PW-5 Ameer Jan, brother of the deceased, who received the information about the death of the deceased on 9.1.2008 and visited Dr.Ambedkar Hospital along with PWs.2 and 12 and identified the dead body of the deceased.
PW-6 Santhosh, was the Photographer, who has taken the photos of the deceased as per Exs.P5 to P8.
PW-7 Sharma M.D. was the owner of the house, under whom, the accused Nos.1 & 2 were residing as tenants, has turned hostile.
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PW-8 Sriram, is the panch witness to Ex.P9 spot mahazar dated 5.4.2008 and also panch witness to seizure of MOs.3 & 4. But, he has turned hostile.
PW-9 R. Sundar Zabadas, earlier owner of Qualis Car MO5 and sold it to PW-2, about 15 days prior to 7.1.2008. Exhibits P12, P23 and P24 are the documents pertaining to the said Car.
PW-10 Dr. B.M. Nagaraj, who conducted the Post Mortem examination on the deceased. Ex.P-13 is the PM report, Ex.P-14 is the Opinion of the doctor and Ex.P-15 is the seal of the hospital.
PW-11 Subaschandra Karadi was the Police Constable who carried the Material Objects/articles and handed over the documents to the FSL Officer. Exhibit P-20 is the FSL report.
PW-12 Athik Ahamed Khan, the informant who saw the dead body on 8.1.2008 at 6.00 a.m., He informed the same to the Hennur Police Station. PW- -: 21 :- 18 received the call and lodged FIR as per Ex.P-27 and recorded the statement of PW-12 marked at Ex.P-
16. PW-13 Babu Ismail, Tailor who is the neighbor of PW-2, engaged the vehicle to his friend on 7.1.2008 turned hostile. He has denied that hs statement was recorded u/s.161 of Cr.PC.
PW-14 N. Sanjay is the PWD Engineer who prepared the spot sketch Ex.P18. Ex.P-19 is the requisition along with covering letter.
PW-15 S.K. Krishnaraju, is the FSL Officer, who examined MOs.1 to 4 and 6 to 11 and issued Ex.P-20 FSL report, wherein he says that 10 articles contained blood but he has not stated that it is human blood. Ex.P-21 is the seal.
PW-16 H. Jayaramu is the Police Constable who scribed Ex.P-9 mahazar and P-22 Recovery Mahazar. -: 22 :- He seized the Qualils Car on 5.4.2008 produced before PW-22.
PW-17 Somalingappa is the Investigating Officer who has investigated the crime in part and handed over the case for further investigation to PW-22.
PW-18 Lakshmikanthaiah. G. the PSI who received the information from PW-12 and visited the spot and registered Ex.P-16 complaint under the provisions of Section 302 of IPC.
PW-19 A Gopal, Police Constable who took Ex.P27 FIR on 8.1.2008 and submitted to the learned JMFC.
PW-20 T. Kumar, is the Police Constable who assist PW-21 in apprehending accused Nos.1 & 2.
PW-21 Hithendra M.S. the PSI who apprehends accused Nos.1 & 2 along with MO-5 and produced before PW-22 and the same was seized under Recovery Mahazar Ex.P-22.
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PW-22 Prema Sai G.Rai, is the Police Inspector who took up further investigation from PW-17 on 30.6.2008 and after completion of the investigation filed charge sheet.
21. Based on the aforesaid oral and documentary evidence on record, and based on the circumstantial evidence of the prosecution witnesses, the learned Sessions Judge has come to the conclusion that the prosecution has failed to prove the guilt of the accused No.1 u/s.201 and against accused No.2 u/s.302 and 201 of IPC and proceeded to convict the accused No.1 for the offence punishable under Section 302 of IPC mainly on the basis of the last seen theory by PW-2, owner of the vehicle and the evidence of PWs.21 and 22 and recovery of MO.3 Kathi and MO.4 Mat in the house of Accused Nos.1 &
2. -: 24 :-
22. On perusal of the entire material placed on record by the prosecution, it shows that the prosecution has completely relied upon the circumstantial evidence in order to prove the guilt of the accused. Before appreciating the evidence of the prosecution witnesses, let us consider the principles laid down by the Hon'ble Apex Court in respect of the cases based upon the circumstantial evidence.
23. The Hon'ble Supreme Court while considering the provisions of Section 302 read with 34 of IPC based on the circumstantial evidence in the case of Suresh and another vs. State of Haryana reported in (2018) 18 SCC 654, has held at para No.32 as under:
"32. After having appreciated the eviden ce of certain crucial witnesses, we would like to clarify at the outset that this is a case of circumstantial evidence. Jurisprudentially the meaning of circumstantial evidence has never -: 25 :- been settled. Although we may not require a detailed analysis of the jurisprudential dichotomy which exists as to what amounts to aounts to 'circumstantial evidence', we may indicate certain precedents and legal literature have given a definite shape for the aforesaid term. In Thomas Starkie: A Practical Treatise on the law of evidence and digest of Proofs, in Civil and Criminal Proceedings, it is said that:
"In criminal cases, proof that the party accused was influenced by a strong motive of interest to commit the offence proved to have been committed, although exceedingly weak and inconclusive in itself, and although it be a circumstance which ought never to operate in proof of the corpus delicti, yet when that has once been established aliunde, it is a circumstance to be considered in conjunction with orders which plainly tend to implicate the accused".
24. Our view is fortified by the dictum of the Hon'ble Supreme Court in the case of Mohd. Younus Ali Tarafdar vs. State of West Bengal reported in -: 26 :- (2020) 3 SCC 747, wherein the Hon'ble Supreme Court has held at para 10 as under:
"10. There is no direct evidence regarding the involvement of the Appellant in the crime. The case of the prosecution is on basis of circumstantial evidence. Factors to be taken into account in adjudication of cases of circumstantial evidence as laid down by this Court are (Anjan Kumar Sarma Vs. State of Assam reported in (2017) 14 SCC 359):
14. Admittedly, this is a case of circumstantial evidence. Factors to be taken into account in adjudication of cases of circumstantial evidence laid down by this Court are:
(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established. The circumstances concerned "must" or "should" and not "may be"
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;-: 27 :-
(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."
25. In order to prove the first circumstance, the prosecution mainly relied upon the evidence of PW-2 Shan Navaz Pash, who has stated on oath that he knows the deceased Abdul Rahim @ Sardar, who was working as a driver in his quails Car which he has purchased from one Sundar PW-9. He has further stated that he has provided mobile phone to the deceased bearing No.94491 53472 and he is also having mobile phone bearing No.99019 05114. Admittedly, the call details of PWs. 1 and 2 are not produced before the court by the prosecution. -: 28 :-
26. Though PW-2 has stated in the examination in chief that he had been to Tilaknagar Police Station and lodged a missing complaint, about the missing of the deceased Abdul Rahim @ Sardar, thereafter they have searched the deceased. However, it was about 2.30 a.m., on 6.1.2008, while he was attempted to contact over mobile phone of Mansoor, he found that it was switched of. Again, at 10.00 a.m., they had been to Tilaknagar Police Station along with some police constable, they had searched at Bengaluru from morning till 6.00 p.m., and from there, they went to Koramangala Voda Phone office to collect the call details of phone bearing No.99866 47618. In the cross examination, he has admitted that he has maintained a register as to who are all engaging his vehicle, destination, time and return of the vehicle etc., But he has not entered the engaging of his quails car to Mansoor in the list. Witness volunteers -: 29 :- and submit that he has engaged the deceased through his neighbour PW-13. Therefore, he has not entered the same in the register. He has further admitted that he was not asked to produce any documents and he has not produced any documents and also the police have not asked to produce the document for purchase of the vehicle from the previous owner and issued receipt. He has further stated in the cross examination that at the first instance, when he had been to Tilak Nagar police station, he has not lodged any complaint. However, he has narrated the incident. Admittedly, the prosecution has not produced the call details of PW-2, the accused as well as PW-13 to connect the chain link between them and the involvement of accused No.1.
27. By keeping the principles laid down by the Hon'ble Apex Court, now we proceed to re-appreciate -: 30 :- the evidence on record. In this case, the prosecution has relied upon the circumstances as under:
(I) Motive - Accused engaging the taxi of PW-2 in which the deceased was the driver.
(II) Homicidal death of the deceased and recovery of the dead body of the deceased at the instance of the accused.
(III) Recovery of the incriminating articles at the instance of the accused in the house of the accused.
(IV) Circumstance of last seen
theory.
28. MOTIVE - Accused engaging the taxi of PW-
2 in which the deceased was the driver:
Admittedly, as per the entire materials on record placed by the prosecution, there is no evidence adduced to show the accused and the deceased met -: 31 :- each other either in person or through mobile phone by producing the cell phone call list. As per the evidence of PW-2, he has sold the Car in which the deceased was the driver. But, no evidence is produced to connect the driver actually went to the house of the accused to pick up the accused in order to go to Muragamalla as stated above. In the absence of any material evidence or last seen theory and nobody found the deceased with the company of the accused prior to the recovery of the dead body. Therefore, we hold that the prosecution has utterly failed to prove the last seen theory of the deceased and the accused were seen together previous to the recovery of the dead body.
29. In the case of circumstantial evidence, motive assumes great significance and importance for the reason that the absence of motive would put the court on its guard and it goes to scrutinize and cause -: 32 :- it to each piece of evidence very closely in order to ensure that suspicion, emotion or conjuncture do not take the place of proof.
30. However, the evidence regarding existence of motive which operates in the mind of the court is very often not within the reach of others. The said motive may not even be known to the victim of the crime. Admittedly, in the present case, no evidence has been made forthcoming where the evidence is of a circumstantial evidence to link the accused to the incident that occurs that there is no eye-witness to find out the incident. Therefore, it is necessary to find out whether circumstances on which the prosecution relies or capable of supporting the sole inference that the appellant is guilty of the crime of which he is charged.-: 33 :-
31. The circumstances in the first place have to be established by the prosecution by a clear and cogent evidence and this circumstance must not be consistent with the innocence of the accused. On determining whether the circumstances established on the evidence raised to one inference consistent with the guilt of the accused, regard must be had to the totality of the circumstances. Individual circumstance considered in isolation and diverse from the context of the over all picture emerging from the consistent of the diverse consideration circumstances and conjoint effect may be themselves appears to be innocuous.
Admittedly, in the present case, circumstantial evidence of PWs.3, 5, 10, 12, 15 and 22 relied upon by the learned Sessions Judge but the prosecution failed to establish clear and cogent evidence and the circumstances involved to implicate the accused into the crime.
-: 34 :-
32. It is well settled that there is no embargo on the appellate court reviving the evidence upon which the order of conviction is based. The golden thread which runs to the web of administration of justice in criminal cases is that - if two views are possible on the evidence adduced in a case one pointing to the guilt of the accused and the other is innocence, the view which is favourable to the accused should be adopted. The paramount consideration of the court is to ensure that miscarriage of justice is prevented. Miscarriage of justice which may arise from acquittal of guilt is no less than the conviction of innocent.
33. The materials on record clearly depicts that the prosecution mainly considering the evidence of PW-2 who is the owner of the vehicle where according to PW-1, accused No.1 has engaged the quails Car. Admittedly, PW-2 has not produced any material document including trip sheet, register that he was -: 35 :- engaged by accused No.1. In the absence of any material evidence on record to prove that accused No.1 has engaged the quails Car from PW-2, question of implication of accused No.1 in the homicidal death of the deceased attract the provisions of Section 302 of IPC would not arise. Admittedly, the prosecution has not produced the alleged missing complaint dated 8.1.2008 said to have been lodged by PW-12. It is also not in dispute that PW-2 has not seen accused No.1 along with the deceased. The alleged mobile phone of PW-2 i.e.,99019 05114, the mobile phone of the deceased i.e., 944491 53472 and the mobile phone of the accused i.e., 99866 47618; are not seized by the investigating officer. Admittedly, the alleged phone of the accused is not the phone belonged to the accused. Admittedly, no material document is produced to show that he is the owner of the said mobile. In the absence of the same, the -: 36 :- implication of the accused in the homicidal death as held by the learned Sessions Judge is without any basis.
34. II. HOMICIDAL DEATH AND RECOVERY OF THE DEAD BODY OF THE DECEASED AT THE INSTANCE OF THE ACCUSED:
According to the evidence of PW-22 Prema Sai G. Rai, PW-21 produced the accused persons before him. He has recorded the voluntary statement of the accused and the accused confessed the crime and he has taken the Investigating Officer along with the panch witness to his house where he was residing, then he took out the key from the top of the electric meter and after opening the room, they found the blood stains on the mat and wall, which was recorded by the police. Accused also gave kathi used for committing the murder of the deceased and the police recovered the same under panchnama Ex.P-9 in the presence of PWs.7 & 8 panch witnesses. But to prove the recovery of MOs.3 & 4, the kathi and mat, and the -: 37 :- investigation of the Investigating Officer, PW-7 has turned hostile. Both of them have denied the seizure of MOs.3 & 4 at the instance of the accused in the house of the accused without any support of the independent panch witnesses.
35. Recovery of MOs.3 & 4 at the instance of the accused is not acceptable. Though the owner of the house stated that he has let out the house to the accused, but he has turned hostile inspite of seizure of MOs.3 & 4. Therefore, the evidence of PWs.22, the Investigating Officer, is insufficient to accept recovery is proved beyond reasonable doubt cannot be acceptable for the following reasons:
After the seizure of MOs.3 & 4, which was sent to FSL for chemical analysis along with other articles including the clothes of the deceased and the bed sheet in which the dead body was wrapped has been examined by PW-15 S.K. Krishnaraju, Assistant Director, FSL. After examination he has given a detailed report which is -: 38 :- marked as Ex.P-20, wherein he has stated that he found human blood in all the articles sent. The evidence of PW- 15 as well as Ex.P-20 FSL report does not reveal the blood stains found on Kathi and mat MOs.3 & 4 contain human blood and the same was matching with the blood stains on the clothes of the deceased as well as bed sheet are all one and the same. Absolutely there is no evidence of serological report placed before the court to show that the blood found on Kathi and Mat and on the clothes of the deceased were of human blood in order to connect the accused with the crime. Therefore, in the absence of linking evidence placed before the court, the court cannot hold the accused guilty for the commission of murder of the deceased. The prosecution again failed to prove the circumstance to connect the accused with the crime by way of recovery of the weapon such as blood stained kathi and mat and the blood stains on the clothes of the deceased are one and the same.-: 39 :-
36. III. ARREST OF THE ACCUSED, RECOVERY OF THE INCRIMINATING ARTICLES AT THE INSTANCE OF THE ACCUSED IN THE HOUSE OF THE ACCUSED:
In so far as the recovery of the vehicle from the accused Nos.1 & 2 is concerned, PW-21 Hithendra M.S., Police Sub-Inspector, Shivajinagar Traffic police stated in the examination in chief that they went to the bus stand and found that near the bus stand quails Car bearing No.KA-02/MB-2169 was parked in the bus stand. It was about 1.00 p.m., when he caught hold accused Nos.1 & 2 along with the baby. Then, he informed the fact to the Police Inspector, who told him that the accused were involved in a murder case of Hennur Police Station. Therefore, he took the accused along with the said Car, and produced before PW-11 Police Inspector at 4.00 p.m., and submitted report as per Ex.P-28. In the cross -: 40 :- examination of PW-21, he has deposed that - "I was not issued with the duty card. I was directed to assist accused No.1 since he was a rowdy of our police station limits. I cannot say in which case I was directed to arrest the accused. It is not true to say that I was not arrested A1 and A2 and not produced before the Police Inspector, Hennur. It is not true to say that I have filed false report as per Ex.P28 and I am deposing falsely.."
37. The evidence of PW-21 clearly depicts that when he apprehended accused Nos.1 & 2, at Muragamalla, he has not drawn any mahazar to show the quallis Car MO-5 was in possession of accused Nos.1 & 2 at the time of arrest and he has also admitted that he was not issued with any duty card. He was directed to arrest accused No.1 as he was involved in a rowdy sheeter of Shivajinagar police station and he was not entrusted to apprehend the -: 41 :- accused Nos.1 & 2 in the present case. Therefore, the recovery of MO-5 qualis car is doubtful. Therefore, the prosecution has failed to prove that the accused was found with the car belonged to PW-2 driven by the deceased on the previous day of the recovery of the dead body has been seized from the custody of the accused at Muragamalla to connect the accused with the crime.
38. IV. CIRCUMSTANCE OF LAST SEEN THEORY:
A careful perusal of the evidence of the Investigating Officer and PW-10 Dr.B.M. Nagaraj, who conducted PM report as per Exs.P13 to 15, clearly depicts that the death of the deceased is homicidal death, but the prosecution failed to establish beyond reasonable doubt that the involvement of the accused in the homicidal death of the deceased. No circumstances are established by the prosecution to -: 42 :- connect accused No.1 in the homicidal death of the deceased. Therefore, we hold that the prosecution has failed to prove the guilt of the accused beyond all reasonable doubt about any of the circumstances relied upon by the learned counsel for the appellant /accused and the involvement of the accused in the crime.
39. The Hon'ble Supreme Court while considering the circumstantial evidence in the case of Smt. Gargi Vs. State of Haryana reported in 2020 CRL.LJ 173. wherein the Hon'ble Supreme Court at paragraph 13.3, has held as under:
"13.3. In the case of Sharad Birdhichand Sarda v. State ofMaharashtra: (1984) 4 SCC 116, this Court laid down the golden principles of standard of proof required in a case sought to be established on circumstantial evidence with reference to several past decisions, including that in the case of Hanumanth v. -: 43 :- State of Madhya Pradesh: AIR 1952 SC 343, in the following:-
"153. A close analysis of this decision would show that the following conditions must be fulfilled before a case against an accused can be said to be fully established:
(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established. It may be noted here that this Court indicated that the circumstances concerned "must or should" and not "may be"
established. There is not only a grammatical but a legal distinction between "may be proved" and "must be or should be proved" as was held by this Court in Shivaji Sahabrao Bobade v. State of Maharashtra [(1973) 2 SCC 793] where the observations were made: [SCC para 19, p. 807: SCC (Cri) p. 1047] "Certainly, it is a primary principle that the accused must be and not merely may be guilty before a court can convict and the mental distance between 'may be' and 'must be' is long and divides vague conjectures from sure conclusions." (2) the facts so established should be consistent only with the hypothesis of the guilt -: 44 :- of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty, (3) the circumstances should be of a conclusive nature and tendency, (4) they should exclude every possible hypothesis except the one to be proved, and (5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.
154. These five golden principles, if we may say so, constitute the panchsheel of the proof of a case based on circumstantial evidence."
40. In view of the aforesaid reasons, the point raised in the present appeal has to be answered in the 'Negative' holding that the learned Sessions Judge is not justified in convicting the accused No.1 for the offence, under the provisions of Section 302 of IPC, in -: 45 :- the absence of any circumstances to show the involvement of accused No.1. The accused No.1 has made out a case to interfere with the impugned judgment and order of conviction.
41. In the result, we pass the following:
ORDER
(i) The Criminal Appeal is allowed.
(ii) The impugned judgment of conviction dated 19.03.2010 and order of sentence dated 22.03.2010 passed in SC No.1062/2008 on the file of the XXXII Additional City Civil and Sessions Judge and Special Judge for CBI cases, Bengaluru (CCH-34), is hereby set aside.
(iii) Accused No.1 Rehaman Manjoor Dhoon @ Dhoon is acquitted for the offence punishable under Section 302 of IPC and he is set at liberty forthwith.
(iv) The concerned Jail authorities are hereby directed to release the accused No.1 forthwith, if he is -: 46 :- not required in any other case, after following the Standard Operating Procedure and in accordance with law.
Ordered accordingly.
Sd/-
JUDGE Sd/-
JUDGE PL*