Karnataka High Court
The State By Kodigehalli vs Ganesha on 23 November, 2021
Author: G. Narendar
Bench: G. Narendar
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 23RD DAY OF NOVEMBER, 2021
PRESENT
THE HON'BLE MR. JUSTICE G. NARENDAR
AND
THE HON'BLE MR. JUSTICE E.S. INDIRESH
CRIMINAL APPEAL NO.2137 OF 2016
BETWEEN:
The State by Kodigehalli
Police Station
Represented by State
Public Prosecutor
High Court Building
Bengaluru-560 001.
...Appellant
(By Sri Rahul Rai K, HCGP)
AND:
Ganesha
S/o late Nagesha
Aged 22 years
R/o Taggihalli
Puruvara Hobli
Madhugiri Taluk
Tumakuru District-572 132.
...Respondent
(by Sri Aravind Reddy, Advocate)
2
This Criminal Appeal is filed under Section 378(1) and (3)
of the Code of Criminal Procedure by the State Public Prosecutor
for the state praying that this Hon'ble Court may be pleased to
grant leave to appeal against the impugned judgment and order
of acquittal dated 30th June, 2016 passed by the III Additional
District and Sessions Judge, Tumakuru in Special Case No.463 of
2014 acquitting the respondent/accused for the offence P/U/S
366(A) of IPC and under Section 6 of POCSO Act.
This appeal coming on for hearing this day, INDIRESH J.,
delivered the following:
JUDGMENT
This Criminal appeal is filed by the State challenging the Judgment and Order dated 30th June, 2016 passed in Special Case No.463 of 2014 on the file of the III Additional District and Sessions Judge, Tumakuru, acquitting the accused.
I. BRIEF FACTS:
2. It is the case of the prosecution that on 25th March, 2014, complainant and his family members left for work in the morning, at around 1.00 pm, an unknown person entered the house of the complainant and forcefully abducted the daughter of the complainant. The complainant returned home at 2.00 pm and came to know from his sister-Bhagyamma that an unknown person abducted his daughter on a motorcycle and thereafter, on 3 verification with the neighbours, complainant came to know that his daughter was abducted by one Ganesha and his friends Avinasha, Prabhushankara, Lakshminarayana and Rakesha and as such, the complainant lodged complaint around 6.45 pm on 26th March, 2014 and same was registered as Crime No.245 of 2014 under Section 366-A of the Indian Penal Code read with Section 6 of Protection of Children from Sexual Offences Act, 2012 ('POCSO Act' for short). The accused was arrested and produced before the competent Court. Investigation officer has conducted investigation and filed charge sheet. As the offence was exclusively triable by the Special Court, the case was committed to the Special Court and thereafter, the case was set down for trial.
3. In order to prove the guilt of the accused, the Prosecution has examined fourteen witnesses as PW-1 to PW-14 and marked fourteen documents as Exhibits P-1 to P-14. The Special Court recorded the statement of the accused under Section 313 of Code of Criminal Procedure. The accused denied all the incriminating circumstances alleged against him and also 4 the case set up by the prosecution. The accused neither led his defence evidence nor got marked any documents.
4. The Special Court, on considering both oral and documentary evidence, has recorded a finding that the Prosecution failed to prove that, on 25th March, 2014 at about 1.00 pm the accused abducted the victim forcefully and thereby committed offence punishable under Section 366-A read with Section 6 of POCSO Act. Accordingly, the Special Court, by impugned judgment and order dated 30th June, 2016, acquitted the accused. Being aggrieved by the impugned judgment and order of acquittal, Appellant-State has preferred the present appeal.
5. We have heard Shri Rahul Rai K., learned High Court Government Pleader for the appellant-State and Sri Aravind Reddy, learned counsel appearing for the respondent.
II. ARGUMENTS ADVANCED BY LEARNED COUNSEL FOR THE APPELLANT-STATE
6. Sri Rahul Rai, K., learned High Court Government Pleader contended that the impugned judgment and order of 5 acquittal passed by the Special Court is erroneous on the ground that the learned Sessions Judge failed to appreciate evidence of PW2-victim girl who deposed in support of the prosecution case and she also stated about the sexual assault made by the accused. He further contended that the evidence of PW1- Complainant/father; PW3-sister of PW1; and PW4-mother of the victim girl have clearly deposed regarding the offence committed by the accused, however, without considering the evidence on record, learned Sessions Judge has committed an error in acquitting the accused. He further contended that the prosecution has proved the case by examining PW6 and PW8- mahazar witnesses and PW9-School Headmaster, who had deposed about the age of the victim girl inter alia the medical evidence as per Exhibit P3, which would clearly establish that the prosecution has proved the case and the said aspect of the matter was ignored by the learned Sessions Judge. Emphasising on these aspects, he further contended that the finding recorded by the Sessions Judge that in the complaint the complainant has not given the details of the incident, so also, the delay in lodging the complaint is not properly explained in the complaint, is 6 incorrect, which requires to be interfered with in this appeal. Sri Rahul Rai, further argued that learned Sessions Judge has failed to notice that there will be no eye-witness to the incident and further contended that all these aspects have to been proved by the Prosecution with the aid of medical evidence and the evidence collected by the investigation officer and all these aspects has been brushed aside by the learned Sessions Judge, that too, ignoring the evidence of PW10-Doctor, who supported the case of the Prosecution and therefore, he sought for interference of this Court in this appeal.
III. ARGUMENTS ADVANCED BY LEARNED COUNSEL FOR THE ACCUSED
7. Sri Aravind Reddy, learned counsel appearing for the accused/respondent contended that the Sessions Judge, after considering the material on record, acquitted the accused on merits and therefore, no interference is called for in this appeal. He further contended that the victim and the accused got married voluntarily and without any force by either of the parties; the said marriage was solemnised and out of their wedlock a child is born and they are leading a happy life and 7 therefore, he contended that the finding recorded by the Sessions Judge acquitting the accused needs to be affirmed.
8. At the time of conclusion of the arguments, victim and the accused/respondent appeared before the Court and filed affidavit. The victim girl stated that on 25th March, 2014, she voluntarily left with the accused/respondent along with other friends to visit temple and there was no physical relationship or forceful sexual intercourse between herself and the accused/respondent as alleged in her statement. She also denies the averments made in the complaint Exhibit P1. Both of them stated that they were known to each other since school days and hail from neighbouring villages of Madhugiri Taluk and were in love with each other. Both of them further stated that they belong to different sects of the same caste and their parents have not consented for their relationship in the initial stage and as such, the victim girl voluntarily left the parental house. They further stated that, they got married on 20th August, 2017 and registered their marriage with the Registrar of Marriage, Peenya, Bengaluru on 24th August, 2017 and in their 8 wedlock they have begotten a boy child-Nihal G. on 06th November, 2018. They also produced the certificate of Marriage and birth certificate of their child. The victim further stated that she is pursuing her paramedical course at Bengaluru Medical College.
IV. POINTS FOR DETERMINATION:
9. In view of the aforesaid rival contentions urged by the learned High Court Government Pleader and the learned counsel appearing for the accused/respondent, points that arise for our consideration in the present appeal are:
(i) Whether the learned Special Court is justified in acquitting the accused for the offence punishable under Section 366-A read with Section 34 of IPC and Section 6 of POCSO Act in view of the specific complaint (Ex.P1) and the evidence of PWs.1, 2 and 10, in the facts and circumstances of the case?
(ii) Whether the impugned judgment and order calls for interference in this appeal?9
V. FINDING:
10. In order to re-appreciate the entire material on record including the oral and documentary evidence, it is relevant to consider the evidence of the prosecution witnesses and the circumstances relied upon by the parties.
11. PW1, who is the father of the victim has deposed that the PW3, who is his sister, informed him that on 25th March, 2014 at about 2.00 pm, the accused abducted the victim girl. Thereafter, he lodged complaint as per Exhibit P1 on 26th March, 2014 after ascertaining the involvement of the accused.
12. PW2 is the victim girl. She deposed that the accused is well conversant with her, as they were pursuing education in the same high school and the accused took her to the temple on 25th March, 2014. She further deposed that she was taken to the residence of the uncle of the accused at Pavagada. She further stated in the cross-examination that she informed her parents about the incident. She resided at Pavagada from 25th to 29th March, 2014 in the house of the uncle of the accused. 10
13. PW3 is the sister of PW1. She has deposed as follows:
"¸ÀĪÀiÁgÀÄ MAzÀÄ ªÀµÀðzÀ PɼÀUÉ £Á£ÀÄ ZÁ¸Á-1gÀªÀgÀ ªÀÄ£ÉAiÀÄ°è ZÁ¸Á-2 gÀªÀgÀ eÉÆvÉ EzÁÝUÀ ¸ÀĪÀiÁgÀÄ ªÀÄzsÁåºÀß MAzÀÄ UÀAmÉ ¸ÀªÀÄAiÀÄPÉÌ £Á£ÀÄ ªÀÄ£ÉAiÀÄ M¼ÀUÀqÉ EzÉÝ£ÀÄ. ZÁ¸Á-2 gÀªÀgÀÄ ªÀÄ£ÉAiÀÄ ºÉÆgÀUÀqÉ §AzÀ¼ÀÄ. DUÀ ªÉÆÃmÁgÀÄ ¸ÉÊPÀ®Äè §gÀĪÀ ±À§Þ PÉý¹vÀÄ. £Á£ÀÄ QlQ¬ÄAzÀ £ÉÆÃrzÁUÀ ZÁ¸Á-2 gÀªÀgÀÄ ªÉÆÃmÁgÀÄ ¸ÉÊPÀ°è£À°è ºÉÆÃzÀ¼ÀÄ. £Á£ÀÄ QgÀÄaPÉÆAqÁUÀ AiÀiÁgÀÄ §gÀ°®è. £ÀAvÀgÀ ZÁ¸Á-1 gÀªÀgÀÄ ªÀÄ£ÉUÉ §AzÁUÀ ZÁ¸Á-2 gÀªÀgÀÄ ªÉÆÃmÁgÀÄ ¸ÉÊPÀ°è£À°è ºÉÆÃzÀ «µÀAiÀĪÀ£ÀÄß w½¹zÉ£ÀÄ."
14. PW4 is the wife of PW1-complainant and is a School Teacher. She deposed that on the date of the incident she has gone to the school. She further stated that her daughter had not attained majority as on the date of the incident.
15. PW5 is a panch witness to Exhibit P5. He deposed that the police have drawn the mahazar in his presence.
16. PW6 is the resident of Kalenahalli, Pavagada. He denies about the abduction and sexual relationship between the accused and victim.
11
17. PW7 is a panch witness to Exhibit P7;
18. PW8 is a panch witness to Exhibit P4-Panchnama;
19. PW9 is the Headmaster of School in which the victim pursued her education. He deposed relating to the age of the victim and produced Exhibit P8, which records that the victim has studied from 1 to 7th standard in the said School.
20. PW10 is a Doctor, District Hospital, Tumakuru. She deposed about the MOs 6 to 9;
21. PW11 is the Assistant Sub-Inspector, K.B. Cross Police Station who recorded the statement of the victim and the same ha been marked at Exhibit P11.
22. PW12 is the Circle Inspector of Police, Madhugiri Circle and Investigation Officer, who deposed that he filed charge sheet pending report of the Forensic Science Laboratory and also deposed about the mahazar produced at Exhibits P6 and P9.
12
23. PW13 is the owner of the motorcycle bearing registration No.KA-64/E-0116. He denied the involvement of the vehicle in the incident.
24. PW14 is the Assistant Sub-Inspector of Police, Kodigehalli Police Station who received the complaint from PW1 and registered the case in Crime No.245 of 2014 for the offences punishable under Section 366-A, 376 and 34 of the Indian Penal Code read with Section 6 of POCSO Act.
VI. CONSIDERATION:
25. We have carefully re-appreciated the evidence of the witnesses and perused the entire records. It is the bounden duty of the Prosecution to prove the fact that the victim was abducted and was sexually assaulted by the accused/respondent. Undisputably, there is no direct witness to the incident and the entire case revolves around the circumstantial evidence. The entire case of the Prosecution rests upon the deposition of PW1-complainant. Perusal of the evidence of PW1 would make it clear that his daughter-PW2 was abducted by the accused and he forcefully induced the victim to 13 have sexual intercourse. Perusal of the entire evidence of related witnesses, reveal that the victim girl was aged about 16- 17 years at the time of the incident. In order to discern the truth as to whether the victim was abducted by the accused, we have meticulously scrutinised the statement of PW2 who deposed that she voluntarily went along with the accused and others on 25th March, 2014 and the accused was known to her as they were pursuing their education in the same high school. She also denied the sexual assault by the accused. In this regard, we have carefully examined the findings recorded by the Sessions Judge at paragraphs 20 to 33 of the impugned judgment and order of acquittal, which would clearly establish the fact that the Prosecution failed to prove the allegation made against the accused. It is also forthcoming from the records that there is discrepancy in the evidence of PW3 and PW1. PW10 categorically denies the fact of sexual assault by the accused on the victim. At this juncture, it is also relevant to mention that PW2-victim has stated that the accused was known to her and there is no sexual assault by him, that apart, she herself stated that she voluntarily left the house along with the accused and 14 the said statement is contrary to the statement made before the Investigating Officer and in that view of the matter, the prosecution failed to prove the charges levelled against the accused. In this regard, it is relevant to refer to the dictum of the Hon'ble Supreme Court in the case of JAGDISH PRASAD v. STATE OF MADHYA PRADESH reported in AIR 1994 SC 1251. The Hon'ble Supreme Court has held that where the testimony of witnesses is clouded with grave suspicion and discrepancy, particularly, recording of statement of witnesses, the conviction based on such testimony is not safe. In the instant case, the statement of the PW1 and PW3 creates suspicion about the involvement of the accused/respondent as set out by the Prosecution. The aforesaid principle was reiterated by the Hon'ble Supreme Court in the case of RAJ KUMAR SINGH V. STATE OF RAJASTHAN reported in AIR 2013 SC 3150. In the said judgment, at paragraph 17 it is observed thus:
"17. Suspicion, however grave it may be, cannot take the place of proof, and there is a large difference between something that `may be' proved and `will be proved'. In a criminal trial, suspicion no matter how strong, cannot and must not be permitted to take place 15 of proof. This is for the reason, that the mental distance between `may be' and `must be' is quite large and divides vague conjectures from sure conclusions. In a criminal case, the court has a duty to ensure that mere conjectures or suspicion do not take the place of legal proof. The large distance between `may be' true and `must be' true, must be covered by way of clear, cogent and unimpeachable evidence produced by the prosecution, before an accused is condemned as a convict, and the basic and golden rule must be applied. In such cases, while keeping in mind the distance between `may be' true and `must be' true, the court must maintain the vital distance between conjectures and sure conclusions to be arrived at, on the touchstone of dispassionate judicial scrutiny based upon a complete and comprehensive appreciation of all features of the case, as well as the quality and credibility of the evidence brought on record. The court must ensure, that miscarriage of justice is avoided and if the facts and circumstances of a case so demand, then the benefit of doubt must be given to the accused, keeping in mind that a reasonable doubt is not an imaginary, trivial or a merely probable doubt, but a fair doubt that is based upon reason and common sense."
26. Perusal of the record would indicate that the entire case of Prosecution rests on circumstantial evidence. The Hon'ble Supreme Court in the case of SUJIT BISWAS v. STATE 16 OF ASSAM reported in AIR 2013 SC 3817 has observed as follows:
"In a case of circumstantial evidence, the judgment remains essentially inferential. Inferences are drawn from established facts, as the circumstances lead to particular inferences. The Court must draw an inference with respect to whether the chain of circumstances is complete, and when the circumstances therein are collectively considered, the same must lead only to the irresistible conclusion, that the accused alone is the perpetrator of the crime in question. All the circumstances so established must be of a conclusive nature, and consistent only with hypothesis of the guilt of the accused. If the circumstances proved in case are consistent either with innocence of accused or with his guilt then the accused is entitled to the benefit of doubt. When it is held that a certain fact has been proved, then the question that arises is whether such a fact leads to the inference of guilt on the part of the accused person or not, and in dealing with this aspect of the problem, benefit of doubt must be given to the accused, and a final inference of guilt against him must be drawn only if the proved fact is wholly inconsistent with the innocence of the accused, and is entirely consist with his guilt. An adverse inference can be drawn against the accused only and only if the incriminating material stands fully established, and the accused is not able to furnish any 17 explanation for the same. However, the accused has the right to remain silent, as he cannot be forced to become a witness against himself."
27. As regards drawing of conclusion with regard to guilt is concerned, the Hon'ble Supreme Court, in the case of BRAJENDRASINGH v. STATE OF MADHYA PRADESH, has observed that there must be a chain of events so complete so as not to leave any substantial doubt in the mind of the Court. In the said judgment, at paragraph 16, it observed as follows:
"16. There is no doubt that it is not a case of direct evidence but the conviction of the accused is founded on circumstantial evidence. It is a settled principle of law that the prosecution has to satisfy certain conditions before a conviction based on circumstantial evidence can be sustained. The circumstances from which the conclusion of guilt is to be drawn should be fully established and should also be consistent with only one hypothesis, i.e. the guilt of the accused. The circumstances should be conclusive and proved by the prosecution. There must be a chain of events so complete so as not to leave any substantial doubt in the mind of the Court. Irresistibly, the evidence should lead to the conclusion inconsistent with the innocence of the accused and the only possibility that the accused has committed 18 the crime. To put it simply, the circumstances forming the chain of events should be proved and they should cumulatively point towards the guilt of the accused alone. In such circumstances, the inference of guilt can be justified only when all the incriminating facts and circumstances are found to be incompatible with the innocence of the accused or the guilt of any other person...."
28. Further, the Hon'ble Supreme Court, in the case of VARKEY JOSEPH v. STATE OF KERALA reported in 1993 Supp(3) SCC 745 has held that, suspicion is not the substitute for proof. There is a long distance between 'may be true' and 'must be true' and the prosecution has to travel all the way to prove its case beyond reasonable doubt.
29. With regard to sustain the acquittal on the basis of circumstantial evidence, the Hon'ble Supreme Court, in the case of SAMPAT BABASO KALE AND ANOTHER v. STATE OF MAHARASHTRA reported in (2019)4 SCC 739 has held that presumption of innocence to every accused gets strengthened when the accused is acquitted by the trial Court. At paragraph 8 of the judgment, it is held thus:
19
"8. With regard to the powers of an appellate court in an appeal against acquittal, the law is well established that the presumption of innocence which is attached to every accused person gets strengthened when such an accused is acquitted by the trial court and the High Court should not lightly interfere with the decision of the trial court which has recorded the evidence and observed the demeanour of witnesses. This Court in the case of Chandrappa & Ors. v. State of Karnataka, laid down the following principles:
"42. From the above decisions, in our considered view, the following general principles regarding powers of the appellate court while dealing with an appeal against an order of acquittal emerge:
(1) An appellate court has full power to review, reappreciate and reconsider the evidence upon which the order of acquittal is founded.
(2) The Code of Criminal Procedure, 1973 puts no limitation, restriction or condition on exercise of such power and an appellate court on the evidence before it may reach its own conclusion, both on questions of fact and of law.
(3) Various expressions, such as, "substantial and compelling reasons", "good and sufficient grounds", "very strong circumstances", "distorted conclusions", "glaring mistakes", etc. are not intended to curtail extensive powers of an appellate court in an appeal against acquittal.
Such phraseologies are more in the nature of "flourishes of language" to emphasise the reluctance of an appellate court to interfere with acquittal than to curtail the power of the court to review the evidence and to come to its own conclusion.
20(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.
(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."
30. Our view of declining to interfere with the finding recorded by the Special Court is fortified by the dictum of the Hon'ble Supreme Court in the case of STATE OF UTTAR PRADESH v. RAMESH PRASAD MISRA AND ANOTHER reported in (1996)10 SCC 360, wherein it has been held that even if material witnesses do not speak the truth, the circumstantial evidence should be scanned, having regard to the ordinary human conduct and probabilities. Even after extending doubts in favour of the accused, circumstantial evidence can conclusively establish the commission of offence by the accused. 21
31. In the case of SHARAD BIRDHICHAND SARDA v. STATE OF MAHARASHTRA reported in AIR 1984 SC 1622, at paragraphs 150 to 160, it has been observed as under:
"150. It is well settled that the prosecution must stand or fall on its own legs and it cannot derive any strength from the weakness of the defence. This is trite law and no decision has taken a contrary view. What some cases have held is only this: where various links in a chain are in themselves complete than a false plea or a false defence may be called into aid only to lend assurance to the Court. In other words, before using the additional link it must be proved that all the links in the chain are complete and do not suffer from any infirmity. It is not the law that where is any infirmity or lacuna in the prosecution case, the same could be cured or supplied by a false defence or a plea which is not accepted by a Court.
151. 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. The most fundamental and basic decision of this Court is Hanumant v. The State of Madhya Pradesh. This case has been uniformly followed and applied by this Court in a large number of later decisions uptodate, for instance, the cases of Tufail (Alias) Simmi v. State of 22 Uttar Pradesh and Ramgopal v. Stat of Maharashtra. 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 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."
152. A close analysis of this decision would show that the following conditions must be fulfilled before a case against an accused can be said to be fully established:
(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established.
It may be noted here that this Court indicated that the circumstances concerned 'must or should' and not 'may be' established. There is not only a grammatical but a legal distinction between 'may be proved' and 'must be or should be proved' as was held by this Court in Shivaji Sahabrao Bobade & Anr. v. State of Maharashtra(') where the following observations were made:
"Certainly, it is a primary principle that the accused must be and not merely 23 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.
153. These five golden principles, if we may say so, constitute the panchsheel of the proof of a case based on circumstantial evidence.
154. It may be interesting to note that as regards the mode of proof in a criminal case depending on circumstantial evidence, in the absence of a corpus deliciti, the statement of law as to proof of the same was laid down by Gresson, J. (and concurred by 3 more Judges) in The King v. Horry, thus:
"Before he can be convicted, the fact of death should be proved by such circumstances as render the commission of the crime morally certain and leave no ground for reasonable doubt: the 24 circumstantial evidence should be so cogent and compelling as to convince a jury that up on no rational hypothesis other than murder can the facts be accounted for."
155. Lord Goddard slightly modified the expression, morally certain by 'such circumstances as render the commission of the crime certain'.
156. This indicates the cardinal principle' of criminal jurisprudence that a case can be said to be proved only when there is certain and explicit evidence and no person can be convicted on pure moral conviction. Horry's case (supra) was approved by this Court in Anant Chintaman Lagu v. The State of Bombay. Lagu's case as also the principles enunciated by this Court in Hanumant's case (supra) have been uniformly and consistently followed in all later decisions of this Court without any single exception. To quote a few cases Tufail's case (supra), Ramgopals case (supra), Chandrakant Nyalchand Seth v. The State of Bombay (Criminal Appeal No. 120 of 1957 decided on 19.2.58), Dharmbir Singh v. The State of Punjab (Criminal Appeal No. 98 of 1958 decided on 4.11.1958). There are a number of other cases where although Hanumant's case has not been expressly noticed but the same principles have been expounded and reiterated, as in Naseem Ahmed v. Delhi Administration. Mohan Lal Pangasa v. State of U.P., Shankarlal Gyarasilal Dixit v. State of Maharashtra 25 and M.C. Agarwal v. State of Maharashtra, a five-Judge Bench decision.
157. It may be necessary here to notice a very forceful argument submitted by the Additional Solicitor- General relying on a decision of this Court in Deonandan Mishra v. The State of Bihar(5), to supplement this argument that if the defence case is false it would constitute an additional link so as to fortify the prosecution case. With due respect to the learned Additional Solicitor General we are unable to agree with the interpretation given by him of the aforesaid case, the relevant portion of which may be extracted thus:
"But in a case like this where the various links as started above have been satisfactorily made out and the circumstances point to the appellant as the probable assailant, with reasonable definiteness and in proximity to the deceased as regards time and situation-such absence of explanation of false explanation would itself be an additional link which completes the chain."
158. It will be seen that this Court while taking into account the absence of explanation or a false explanation did hold that it will amount to be an additional link to complete the chain but these observations must be read in the light of what this Court said earlier, viz., before a false explanation can be used as additional link, the following essential conditions must be satisfied:
(1) various links in the chain of evidence led by the prosecution have been satisfactorily proved.26
(2) the said circumstance point to the guilt of the accused with reasonable definiteness, and (3) the circumstance is in proximity to the time and situation.
159. If these conditions are fulfilled only then a court can use a false explanation or a false defence as an additional link to lend an assurance to the court and not otherwise. On the facts and circumstances of the present case, this does not appear to be such a case. This aspect of the matter was examined in Shankarlal's case (supra) where this Court observed thus:
"Besides, falsity of defence cannot take the place of proof of facts which the prosecution has to establish in order to succeed. A false plea can at best be considered as an additional circumstance, if other circumstances point unfailingly to the guilt of the accused."
160. This Court, therefore, has in no way departed from the five conditions laid down in Hanumant's case (supra). Unfortunately, however, the High Court also seems to have misconstrued this decision and used the so-called false defence put up by the appellant as one of the additional circumstances connected with the chain. There is a vital difference between an incomplete chain of circumstances and a circumstance which, after the chain is complete, is added to it merely to reinforce the conclusion of the court. Where the prosecution is unable to prove any of the essential principles laid down in Hanumant's case, the High Court cannot supply the 27 weakness or the lacuna by taking aid of or recourse to a false defence or a false plea. We are, therefore, unable to accept the argument of the Additional Solicitor-General."
32. It is also useful to refer to the dictum of Hon'ble Supreme Court in the case of PADALA VEERA REDDY v. STATE OF ANDHRA PRADESH AND OTHERS reported in 1989 Supp(2) SCC 706, wherein at paragraphs 19 to 22 of the judgment, the Hon'ble Supreme Court has observed thus:
"19. There are series of decisions holding that no one can be convicted on the basis of mere suspicion, however, strong it may be. Though we feel it is not necessary to re-capitulate a 11 those decisions we will refer to a few on this point.
20. This Court in Palvinder Kaur v. The State of Punjab 1953 SCR 94 has pointed out that in cases dening on circumstantial evidence courts should safeguard themselves against the danger of basing their conclusions on suspicions how so ever strong.
21. In Chandrakant Ganpat Sovitkar and Anr. v. State of Maharashtra , it has been observed :
"It is well settled that no one can be convicted on the basis of mere suspicion, though strong it may be. It also cannot be disputed that when we take into account the conduct of an 28 accused, his conduct must be looked at in its entirety
22. In Sharad Birdhichand Sarda v. State of Maharashtra, this Court has reiterated the above dictum and pointed out that the suspicion, however, great it may be, cannot take the place of legal proof and that "fouler the crime higher the proof".
33. On the facts on record, it is relevant to cite the judgment of the Hon'ble Supreme Court in the case of VIJAY SHANKAR v. STATE OF HARYANA reported in (2015)12 SCC 644, wherein it has been held that in a case based on circumstantial evidence, the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established; that these circumstances should be of a definite tendency, unerringly pointing towards the guilt of the accused; that the circumstances taken cumulatively should form a chain so complete that there is no escape from the conclusion that within all human probability, the crime was committed by the accused and they should be incapable of explanation of any hypothesis other than that of the guilt of the accused and inconsistent with their innocence. The aforesaid observations are based on the 29 judgment in SHARAD BIRDHICHAND SARDA (supra) and the same view was reiterated in BABLU v. STATE OF RAJASTHAN reported in (2006)13 SCC 116. Looking into the prosecution case we are of the view that the prosecution fails to complete the chain of events to prove the guilt.
34. It is also useful to refer the law declared by the Hon'ble Supreme Court in the case of GABBU v. STATE OF MADHYA PRADESH reported in AIR 2006 SC 2461, wherein at paragraphs 11 to 14, the Hon'ble Supreme Court observed thus:
"11. Apart from this, to constitute an offence under Section 366, IPC, it is necessary for the prosecution to prove that the accused induced the complainant- woman or compelled by force to go from any place, that such inducement was by deceitful means, that such abduction took place with the intent that the complainant may be seduced to illicit intercourse and/or that the accused knew it to be likely that the complainant may be seduced to illicit intercourse as a result of her abduction. Mere abduction does not bring an accused under the ambit of this penal Section. So far as a charge under Section 366, IPC is concerned, mere finding that a woman was abducted is not enough, it must further be proved that the accused abducted the woman with intent 30 that she may be compelled, or knowing it to be likely that she will be compelled to marry any person or in order that she may be forced or seduced to illicit intercourse or knowing it to be likely that she will be forced or seduced to illicit intercourse. Unless the prosecution proves that the abduction is for the purposes mentioned in Section 366, IPC, the Court cannot hold the accused guilty and punish him under Section 366, IPC.
12. We have gone through the statement of the prosecutrix. The prosecutrix nowhere alleged that she was abducted with the intention to commit an offence, that she was compelled to marry the accused or any other person or that the accused knew that she would be forced or seduced to illicit intercourse or that it was likely that she would be forced or seduced her to illicit intercourse.
13. The story unfolded from the evidence led by the prosecution appears to be that the accused-appellant along with the other accused in the evening went to the house of the prosecutrix and the other accused applied some medicine on her hand so that she might get pregnant after 10 years of marriage. The accused might have persuaded her to accompany them so that they could administer the medicine to her and she being an illiterate lady believing in the superstitions agreed to accompany them. After the accused- appellant left both of them at village Gunabad, the other accused had other 31 intentions and committed the offence as alleged by the prosecution. That does not ipso facto prove the fact that from the very beginning the accused-appellant had any intention of inducing the prosecutrix to forcibly marry him or the other accused or she was induced or seduced to illicit intercourse with the accused- appellant or with the other person whose company he left at Gunabad. There is no allegation that from the house of prosecutrix upto Gunabad the accused-appellant made any advances against the prosecutrix so as to show his intention of committing forcible intercourse with her.
14. In overall consideration of the material placed on record by the prosecution, we do not find that the prosecution has proved that the accused-appellant has committed an offence under Section 366, IPC. There is a doubt as to the place of incident and the motive of the accused in taking away the prosecutrix. We find it difficult to believe in the story put up by the prosecutrix that she was forced to leave her place of residence under a threat by showing a knife to her.
35. The Special Court has recorded the statement made by the accused under Section 313 of the Code of Criminal Procedure wherein he denied the charges levelled against him. At this juncture, it is relevant to follow the judgment of the Hon'ble Apex Court in the case of BRAJENDRASINGH v. STATE 32 OF MADHYA PRADESH reported in AIR 2012 SC 1552 wherein at paragraph 10 of the judgment, it is observed thus:
"10. It is a settled principle of law that the statement of an accused under Section 313 Cr.P.C. can be used as evidence against the accused, insofar as it supports the case of the prosecution. Equally true is that the statement under Section 313 Cr.P.C. simplicitor normally cannot be made the basis for conviction of the accused. But where the statement of the accused under Section 313 Cr.P.C. is in line with the case of the prosecution, then certainly the heavy onus of proof on the prosecution is, to some extent, reduced. We may refer to a recent judgment of this Court in the case of Ramnaresh & Ors. v. State of Chhattisgarh, (being pronounced today) wherein this Court held as under :
"In terms of Section 313 Cr.P.C., the accused has the freedom to maintain silence during the investigation as well as before the Court. The accused may choose to maintain silence or complete denial even when his statement under Section 313 Cr.P.C. is being recorded, of course, the Court would be entitled to draw an inference, including adverse inference, as may be permissible to it in accordance with law. Right to fair trial, presumption of innocence unless proven guilty and proof by the prosecution of its case beyond any reasonable doubt are the fundamentals of our criminal jurisprudence. When we speak of prejudice to an accused, it has to be shown that the accused has suffered some disability or detriment in relation to any of these protections 33 substantially. Such prejudice should also demonstrate that it has occasioned failure of justice to the accused. One of the other cardinal principles of criminal justice administration is that the courts should make a close examination to ascertain whether there was really a failure of justice or whether it is only a camouflage, as this expression is perhaps too pliable. [Ref. Rafiq Ahmed @ Rafi v. State of Uttar Pradesh [(2011) 8 SCC 300].
It is a settled principle of law that the obligation to put material evidence to the accused under Section 313 Cr.P.C. is upon the Court. One of the main objects of recording of a statement under this provision of the Cr.P.C. is to give an opportunity to the accused to explain the circumstances appearing against him as well as to put forward his defence, if the accused so desires. But once he does not avail this opportunity, then consequences in law must follow. Where the accused takes benefit of this opportunity, then his statement made under Section 313 Cr.P.C., in so far as it supports the case of the prosecution, can be used against him for rendering conviction. Even under the latter, he faces the consequences in law."
36. As noted above, we have consciously scrutinised the statement made by the victim and the accused before this Court. However, we have not relied upon the affidavit filed and the statement made by the victim girl and the accused/respondent before us. On the other hand, we have re-appreciated entire the material on record on merits without getting influenced by the statement made by the victim and the accused/respondent, before us. Undisputably, the victim is an educated girl and 34 pursuing paramedical course. They got married and their marriage is solemnised and have a child in their wedlock. Victim stated that she left the house voluntarily without any force by the accused and she also denies the act of sexual assault by the accused at the relevant period and these aspects had been considered by the Special Court in the light of the peculiar circumstances of the case.
37. It is also well-settled principle that the golden thread which runs through the web of administration of justice in criminal cases is that, if two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and the other to his innocence, the view which is favourable to the accused should be adopted. The paramount consideration of the Court is to ensure that miscarriage of justice is prevented. Perceiving the aforesaid principles and on application of the same to the case on hand, we may infer that there is a discrepancy in the evidence of the prosecution and the prosecution has totally failed to prove the guilt of the accused and that apart, the Special Court having taken note of the entire 35 oral and documentary evidence on record, rightly acquitted the accused. We have also noticed that the chain of link is dislodged by the Prosecution to prove the guilt against the accused and that too the case is based on the circumstantial evidence. At this juncture, it is relevant to highlight the law declared by the Hon'ble Supreme Court in the case of ANWAR ALI AND ANOTHER v. STATE OF HIMACHAL PRADESH reported in (2020)10 SCC 166 wherein at paragraphs 15 to 17 of the judgment, it is observed thus:
"15. It is also required to be noted and it is not in dispute that this is a case of circumstantial evidence. As held by this Court in catena of decisions that in case of a circumstantial evidence, the circumstances, taken cumulatively, should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else and the circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence.36
16. In the case of Babu v State of Kerala, it is observed and held in paragraphs 22 to 24 as under:
"22. In Krishnan v. State, this Court after considering a large number of its earlier judgments observed as follows:
"15. ... This Court in a series of decisions has consistently held that when a case rests upon circumstantial evidence, such evidence must satisfy the following tests:
(i) the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established;
(ii) those circumstances should be of definite tendency unerringly pointing towards guilt of the accused;
(iii) the circumstances, taken cumulatively, should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else; and
(iv) the circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence. (See Gambhir v. State of Maharashtra"
23. In Sharad Birdhichand Sarda v. State of Maharashtra while dealing with circumstantial evidence, it has been held that the onus was on the 37 prosecution to prove that the chain is complete and the infirmity or lacuna in prosecution cannot be cured by false defence or plea. The conditions precedent before conviction could be based on circumstantial evidence, must be fully established. They are:
(i) 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;
(ii) 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;
(iii) the circumstances should be of a conclusive nature and tendency;
(iv) they should exclude every possible hypothesis except the one to be proved; and
(v) 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.
A similar view has been reiterated by this Court in State of U.P. v. Satish and Pawan v. State of Uttaranchal.
24. In Subramaniam v. State of T.N, while considering the case of dowry death, this Court 38 observed that the fact of living together is a strong circumstance but that by alone in absence of any evidence of violence on the deceased cannot be held to be conclusive proof, and there must be some evidence to arrive at a conclusion that the husband and husband alone was responsible therefor. The evidence produced by the prosecution should not be of such a nature that may make the conviction of the appellant unsustainable. (See Ramesh Bhai v. State of Rajasthan.
17. Even in the case of G. Parshwanath v. State of Karnataka, this Court has in paragraphs 23 and 24 observed as under:
"23. In cases where 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. Each fact sought to be relied upon must be proved individually. However, in applying this principle a distinction must be made between facts called primary or basic on the one hand and inference of facts to be drawn from them on the other. In regard to proof of primary facts, the court has to judge the evidence and decide whether that evidence proves a particular fact and if that fact is proved, the question whether that fact leads to an inference of guilt of the accused person should be considered. In dealing with this aspect of the problem, the doctrine of benefit of doubt applies. Although there should not be any missing links in the case, yet it is not essential that each of the links must appear on the surface of the evidence adduced and some of these links may have to be inferred from the proved facts. In drawing these inferences, the court must have regard to the common course of natural events and to human conduct and their relations to the facts of the particular case. The court thereafter has to consider the effect of proved facts.39
24. In deciding the sufficiency of the circumstantial evidence for the purpose of conviction, the court has to consider the total cumulative effect of all the proved facts, each one of which reinforces the conclusion of guilt and if the combined effect of all these facts taken together is conclusive in establishing the guilt of the accused, the conviction would be justified even though it may be that one or more of these facts by itself or themselves is/are not decisive. The facts established should be consistent only with the hypothesis of the guilt of the accused and should exclude every hypothesis except the one sought to be proved. But this does not mean that before the prosecution can succeed in a case resting upon circumstantial evidence alone, it must exclude each and every hypothesis suggested by the accused, howsoever, extravagant and fanciful it might be. 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, where various links in chain are in themselves complete, then the false plea or false defence may be called into aid only to lend assurance to the court."
38. It is further noted by us that, as far as the statements of the witnesses recorded in the case are concerned, they are not identical and found major contradictions. In this case, the written complaint was silent about the corroboration of entire evidence to prove the guilt of the accused. Though it is settled principle of law that merely because the prosecution witnesses are interested witnesses, their testimony cannot be 40 discarded on said ground alone, but the evidence of the interested witnesses must be identical and there should be no major contradictions among them. In the instant case, the complaint does not depict as to what actually happened and therefore, we are of the opinion that the prosecution fails to prove the case on merits.
VII. CONCLUSION
39. After referring to the aforesaid principles enunciated by the Hon'ble Supreme Court, the finding recorded by the learned Judge of the Special Court was based on the appreciation of entire evidence on record and it cannot be said to be either perverse or contrary to the evidence on record and/or it cannot be said that the Special Court did not consider any material on record. The Court below was justified in recording the acquittal by observing that the prosecution has failed to complete the entire chain of events. Therefore, we are of the considered opinion that in the facts and circumstances of the case, the finding recorded by the Special Court is based on reasons and does not require interference in this appeal. In the 41 light of the discussion made above, points for determination made above, are answered in favour of the accused. Hence, we proceed to pass the following:
ORDER
(i) Appeal is dismissed;
(ii) The judgment and order dated 30th June, 2016 passed in Special Case No.463 of 2013 by the III Additional District and Sessions Judge, Tumakuru is hereby confirmed.
Sd/-
JUDGE Sd/-
JUDGE lnn