Allowed

Smt. Anusuya @ Hampi v. the State of Karnataka

Karnataka HC11 Oct 2022CRL.A/1621/2016

Case brief

AI extract

What is this about?

Murder and disappearance-of-evidence convictions based on last-seen evidence and recovery of a child's body from the accused spouses' house were set aside. The court extended benefit of doubt, allowed the appeal and acquitted both appellants, directing their immediate release unless required in another case.

What did the court decide?

Convictions and sentences set aside; both appellants acquitted under Sections 302 and 201 IPC and ordered released forthwith unless required in another case.

Smt. Anusuya @ Hampi Vs the State of Karnataka — Murder and Culpable Homicide | Karnataka HC (2022)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 11^TH DAY OF OCTOBER, 2022

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PRESENT

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THE HON’BLE MR.JUSTICE K.SOMASHEKAR

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AND

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THE HON’BLE MR. JUSTICE C.M.JOSHI

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CRIMINAL APPEAL NO.1621 OF 2016

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BETWEEN:

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Smt. Anusuya @ Hampi W/o. Sri. A.M. Manukumar Aged about 29 years

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Sri. A.M. Manukumar S/o. Late Appajigowda Aged about 36 years

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Both are R/o. Adaganahalli Village Ataguru Hobli, Maddur Taluk Mandya District – 571428.

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...Appellants

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(By Sri. Basavaraju .P - Advocate)

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AND:

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The State of Karnataka The Kestur Police Rep. by the State Public Prosecutor High Court of Karnataka Bengaluru – 560 001.

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...Respondent

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(By Sri. Vijayakumar Majage – Addl. SPP)

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This Criminal Appeal filed under Sec.374(2) of Criminal Procedure Code, by the Advocate for the appellant praying to set-aside the judgment and order of conviction in S.C.No.47/2011 dated 06.08.2016 passed by the V-Addl. District and Sessions Court at Mandya and acquit the appellants for the offences levelled against them.

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This criminal appeal coming on for hearing this day, K SOMASHEKAR .J ., delivered the following:

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J U D G M E N T

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This appeal is directed against the judgment of conviction and order of sentence rendered by the trial Court in S.C.No.47/2011 dated 06.08.2016 convicting accused Nos.1 and 2 for the offences punishable under Sections 302 and 201 of IPC, 1860. Further, acting under Section 235(1) of Cr.P.C. the trial Court acquitted accused Nos.1 and 2 for the offences under Sections 143, 120-B of IPC. Insofar as accused Nos.3 to 5 is concerned, the trial Court acquitted them for the offences punishable under Sections 143, 120-B, 302, 201 r/w 149 of IPC. Hence, this appeal is filed by accused Nos.1 and 2 challenging the judgment of

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conviction and order of sentence urging various grounds and seeking intervention of the judgment of conviction rendered by the Trial Court and consequently, to set aside the judgment of conviction rendered by the Trial Court and consequent upon setting aside the impugned judgment, to acquit the accused for the offences under Sections 302 and 201 of the IPC.

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Heard learned counsel Sri Basavaraju.P. for appellants / accused Nos.1 and 2 and so also, learned Addl.SPP for respondent – State. Perused the impugned judgment of conviction and order of sentence rendered by the trial Court in S.C.No.47/2011 and also the evidence of PWs.1 to 26 inclusive of Exs.P1 to P24 and MOs.1 to 5.

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The factual matrix of the appeal is as under:

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It is transpired in the case of the prosecution that accused No.1 namely Anusuya @ Hampi, w/o A.M.Manukumara is the relative of CW.1 who had

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married accused No.2 namely A.M.Manukumar, s/o Late Appajigowda. Accused No.4 namely Raja @ Koundli, s/o Boregowda had married one of the relatives of CW.1 by name Amrutha. The said marriages were love marriages solemnized in accordance with the customs prevailed in their society with the assistance of accused Nos.2 and 4. In this regard, there was enmity developed in between the family of CW.1 and so also, the family of the accused persons. Due to that enmity now and then quarrels used to take place between them. Accused Nos.3 to 5 used to support accused No.1 and 2 in the said quarrels ensuing between the two families. About one month prior to the death of K.Shalini who is the grand daughter of PW.1 – Puttalingamma there was some quarrel in between K.Shalini and the child of accused Nos.1 and 2. In this regard, accused Nos.1 and 2 had assaulted said Shalini. When the said act of accused Nos.1 and 2 was questioned by CW.1, they picked up quarrel with her

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and accused Nos.3 to 5 h supported accused Nos.1 and 2 in the said quarrel. On 29.06.2010 at about 5.00 p.m.

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accused Nos.1 to 5 formed themselves into unlawful assembly and hatched criminal conspiracy to eliminate

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Shalini, being a minor and school going student.

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Accused No.1 – Anusuya who is none other

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than the wife of accused No.2 – A.M.Manukumar brought K.Shalini to her house when she was playing near Government School of Adaganahalli village with her friend by name Nandana who is examined as PW.2. Subsequent to bringing K.Shalini to the house of accused Nos.1 and 2, accused No.4 said to have assaulted on the right hand part of deceased K.Shalini with means of M.O.5 – Knife and all the accused persons said to have caused suffocation to that K.Shalini with an intention to eliminate her. Subsequent to causing of death of K.Shalini by suffocation that the accused were venturing to destroy

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the evidence to escape from legal punishment.

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Accordingly, they hade concealed the dead body of K.Shalini beneath a Cot in the bedroom of house of accused Nos.1 and 2 by covering it with coconuts and other materials. Thereafter, on filing of complaint by PW.1 as per Ex.P1, criminal law was set into motion by registration of crime in Cr.No.70/2010 for the offence punishable under Sections 302 and 201 r/w 34 of IPC. Subsequent to setting the criminal law into motion by recording the FIR, the investigating officer took up the case for investigation and investigated the case thoroughly and laid the charge sheet against the accused persons before the committal Court in C.C.No.867/2010. Subsequent to laying of the charge sheet by the investigating officer against the accused persons, the committal Court passed an order as contemplated under Section 209 of Cr.P.C. and accordingly, the case was committed to the Court of Sessions for trial by assigning the case in

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S.C.No.47/2011. Subsequently, the accused were

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secured for facing of trial in S.C.No.47/2011 and the trial Court having found prima-facie that there are certain materials to frame charge against the accused, had framed charge against the accused for the aforesaid offences. The charges were read over to the accused in the language known to them whereby the accused did not pleaded guilty but claimed to be tried. Accordingly, the plea of the accused was recorded separately.

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Subsequent to framing of charge against the

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accused persons, the prosecution let in evidence to prove the case against the accused and accordingly, examined in all PWs.1 to 26 and got marked Exs.P1 to P24 and also MOs.1 to 5 and closed their case. Subsequent to closure of evidence on the part of the prosecution whereby examined the accused as required under Section 313 of Cr.P.C. for enabling them to record

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the incriminating statement appeared against them.

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Subsequent to recording the statement regarding declining the evidence of the prosecution witnesses, the accused were called upon to adduce defence evidence as contemplated under Section 233 Cr.P.C. However, the accused were not inclined to lead any defence evidence. Accordingly it was recorded.

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Subsequent to closure of evidence on the part of the prosecution and so also on the part of the defence side the trial Court heard the arguments advanced by learned Public Prosecutor and also the defence counsel. The trial Court was dwelling into the evidence of PW.6 – Prashantha, PW.7 – Suresha and PW.9 – Punithkumar who had given evidence on the part of the prosecution to prove the facts in their statement which recorded by the investigating officer during the course of investigation. According to their evidence on the part of the prosecution on 29.06.2010 at around 5.00 p.m. deceased Shalini was proceeding from her house

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towards the school. According to the evidence of PW.16

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– Boramma who partly supported the case of the prosecution relating to prove the guilt against the accused. PW.1 – Puttalingamma is none other than the grand mother of deceased – Shalini and based upon her complaint at Ex.P1 criminal law was set into motion by recording FIR as per Ex.P22 in which the investigating officer has made some substances and it is based upon the complaint averments made by PW.1 – Puttalingamma and the substances which reflected in the FIR finds corroborated with the contents made in Ex.P1 of the complaint relating to the death of deceased K.Shalini who was a school going student and also that there was some enmity developed in between the family members of PW.1 – Puttalingamma and also family members of the accused. But the entire case of the prosecution even though stood on last seen theory but it is based upon the evidence of PWs.6, 7, and 9 inclusive of evidence of PW.2 Nandana who is the friend of

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deceased Shalini. Therefore, the last seen theory has been established by the prosecution relating to missing of K.Shalini as on the fateful day and done to death and even the dead body was kept beneath the cot in the bedroom of accused Nos.1 and 2 and also concealment of dead body with an intention to cause disappearance of evidence to screen from legal punishment. Even though the trial Court has given more credentiality to the evidence of those witnesses it is based upon the involvement of the accused and so also, done to death of deceased – K.Shalini and infliction of injuries by accused No.4 on the right hand part with means of MO.5 – knife. During the course of investigation, the investigating officer seized MO.5 – knife as per the disclosure statement of accused No.4. PW.12 – Vinodraja, PW.13 – Raveendra and PW.15 – Krishna who were secured as panch witnesses relating to seizure panchanama at Ex.P16. Though these witnesses have not been withstood the fulcrum of the seizure

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panchanama, but MO.5 – knife has been seized by the Investigating Officer during the course of investigation and the during the mahazar in the presence of the panch witnesses. There is no dispute about the death of deceased – K.Shalini who is none other than the grand daughter of PW.1 – Puttalingamma and there is no dispute about the dead body of K.Shalini was lying beneath the Cot in the bedroom of accused Nos.1 and 2 and the dead body was secured by the investigating officer and also drew the inquest mahazar over the dead body as per Ex.P13 but these are all the evidence that has been let in on the part of the prosecution to prove the guilt of the accused who had caused the death of deceased by hatching criminal conspiracy as there was some enmity developed in between the family members of accused and so also family members of complainant.

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PW.21 – Ramegowda is the owner of the house where accused Nos.1 and 2 were residing. He was

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subjected to examination wherein he has specifically stated in his evidence by supporting the case of the prosecution that accused Nos.1 and 2 have been residing in the house belonging to him on rental basis and that house is termed as scene of crime. He has stated that he saw the dead body in front of house of CW.1 and he came to know from the villagers that accused Nos.1 and 2 had done to death deceased – Shalini and kept the dead body beneath the cot in the bedroom covering it from coconuts and other materials. Therefore, the prosecution has proved the case against the accused beyond all reasonable doubt as where accused Nos.1 and 2 were staying in the house on rental basis. However, at a cursory glance of evidence of PWs.1, 3, 5 and 16 and though they have been subjected to examination, but these witnesses have been stood for cross-examination but mere because nothing worthwhile has been elicited on the part of the prosecution to prove the guilt of the accused, it cannot

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be said that the entire prosecution evidence has been thrown out. Even on the perusal of the entire evidence at a cursory glance, a prudent man can infer that the incident took place in the house of accused Nos.1 and 2 and the dead body was lying beneath the cot and the same was secured by the investigating agency after conducting inquest over the dead body. But the entire case of the prosecution is based upon last scene theory which is corroborated by the evidence of PWs.1, 2, 5 and 16. Even at a cursory glance of these witnesses who also stood for cross-examination they have categorically stated in their evidence that the dead body of K.Shalini was found in the bedroom of the house of accused Nos.1 and 2 and that too beneath the cot. These witnesses have specifically stated on the part of the prosecution that these accused opened the door and after search, they found the dead body of K.Shalini lying beneath a cot in the bedroom. It is elicited during the course of the cross-examination of PW.16 that when

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accused Nos.1 and 2 returned from marriage, they asked the accused to open the door of house. The key was with accused Nos.1 and 2. Hence, there is an over whelming evidence for the recovery of the dead body from the house of accused Nos.1 and 2. These witnesses have categorically stated that when they were searching in their house, accused kept quite. When they made attempt to search in a bedroom, accused Nos.1 and 2 restrained them from searching their bedroom. Due to this suspicious attitude and conduct of the accused, it clearly goes to show that accused Nos.1 and 2 had knowledge that the dead body is beneath the Cot in bedroom and the same was covered with coconuts and others articles. This goes to show that accused Nos.1 and 2 wanted to hush up the case by disposing of the body whenever they get a good opportunity. These are all the evidence which finds place on the part of the prosecution and so also, the trial Court has considered the evidence of these witnesses and arrived at a

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conclusion that the prosecution has proved the guilt against the accused. The trial Court has given more credentiality to the evidence of PW.2 – A.B.Nandana who is the friend of deceased – Shalini. She has stated in her evidence that accused No.1 who brought deceased – K.Shalini from the premises to her house and her evidence corroborates with the evidence of PW.22 – Dr.K.V.Prakasha who conducted autopsy over the dead body and issued post mortem report as per Ex.P19 and so also, issued opinion report as per Ex.P20 and FSL report at Ex.P21 relating to the cause of death of deceased. These are all the evidence on the part of the prosecution which has been given credentiality by the trial Court inclusive of evidence of PW.25 – Gangadhara being an IO in part whereby he traced the accused persons and thereafter, the case was taken for further investigation by PW.26 – M.M.Prashanth who is an IO and he has thoroughly done the investigation by recording the statement of witnesses and so also, drew

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the spot mahazar at Ex.P2 in the presence of panch witnesses. Therefore, their evidence finds corroborated with the fulcrum of the mahazar and so also, the contents made in the complaint at Ex.P1 and the trial Court has arrived at a conclusion that accused Nos.1 and 2 alone have committed the murder of deceased and consequently, convicted them for the offence punishable under Sections 302 and 201 of IPC. The trial court arrived at a conclusion stating that there is no discrepancy in the medical evidence as well as the evidence of the aforesaid witnesses on the part of the prosecution. On overall assessment of the evidence let in by the prosecution, the trial Court arrived at a conclusion that the prosecution has not been able to prove the guilt against the accused Nos.1 and 2 for the offences under Sections 143 and 120-B of IPC and so also, the guilt against accused Nos.3 to 5 for the offence punishable under Sections 143, 120-B, 302, 201 r/w 149 of IPC. Accordingly, acquitted the accused persons

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for the aforesaid offences but convicted accused Nos.1 and 2 for the offences under Sections 302 and 201 of IPC. It is this judgment which is challenged by accused Nos.1 and 2 under this appeal by urging various grounds.

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Whereas learned counsel Sri Basavaraju.P. for appellants has taken us through the evidence of PW.1 – Puttalingamma and so also, evidence of PW.2 – Nandana who is a child witness. But PW.1 did not support the case of prosecution in entirety even though she made complaint as per Ex.P1 based on which criminal law was set into motion. Her evidence is contra to the evidence of PW.2 – Nandana and she was examined on the part of the prosecution relating to last seen theory as where accused No.1 had brought deceased K.Shalini from the school who was playing with the students in the premises of Government school. But the trial Court erroneously accepted and

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acted upon the evidence of PW.1 – Puttalingamma who is the author of the complaint as per Ex.P1 but she did not withstood relating to the allegation made in her complaint and even though she has been examined on the part of the prosecution but nothing worthwhile has been elicited to get the conviction against accused Nos.1 and 2. Whereas the impugned judgment of conviction rendered by the trial Court suffers from serious infirmities. Therefore, it requires the interference of this Court to examine the legality and validity and so also, it requires re-appreciation of the evidence as whereby the trial Court misdirected the evidence on the part of the prosecution and rendering the conviction judgment.

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The second limb of the argument advanced by learned counsel for the appellants is that there was no motive and ill will intention besides enmity and rivalry on the part of the appellants to eliminate deceased – Shalini. Therefore, the question of committing of murder

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of the deceased does not arise at all. In the absence of motive and intention to eliminate the deceased, the offence under Section 302 of IPC has not been made out by the prosecution. It is further contended that PW.1 – Puttalingamma being the grand mother of deceased Shalini has been subjected to examination on the part of the prosecution. According to the materials secured by the investigating officer during the course of investigation it clearly reveals that there was some quarrel that took place in between accused Nos.1 and 2 and the family members of PW.1 in respect of taking water from public tap in the locality and in fact, she did not give statement before the police with regard to quarrel between the deceased and the son of the appellants. Even one month prior to the incident there was some quarrel in between son of accused Nos.1 and 2 and deceased K.Shalini. PW.1 was treated partly hostile by the prosecution and she was cross-examined to establish the motive, enmity and rivalry on the part of

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the appellants to eliminate deceased Shalini. But

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nothing worthwhile has been elicited from the evidence of PW.1.

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The prosecution examined PW.3 Ramakrishna who partly supported the case of prosecution and he was thoroughly cross-examined in order to bring and elicit the quarrel in between PW.1 and accused Nos.1 and 2, but nothing worthwhile has been elicited in his examination. Further, PW.4 – Satisha in his evidence has stated that he do not know the quarrel that took place in between PW.1 and accused Nos.1 and 2 prior to the death of Shalini. Even though he was crossexamined but nothing worthwhile has been elicited in order to bring and elicit the quarrel in between PW.1 and accused Nos.1 and 2 prior to the alleged incident. Even on appreciation of evidence of PW.1-complainant, PW.15- father of deceased and PW.16 – daughter-in-law of PW.1 and the evidence of PW.3, PW.4, PW.5, PW.6,

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PW.7, PW.9, PW.20 and PW.21, it is clear that there was no motive, ill-will intention and mensrea on the part of accused Nos.1 and 2 to eliminate deceased – Shalini. Their evidence inspires the confidence that there was no rivalry and enmity between PW.1 and accused Nos.1 and 2 towards deceased. Therefore, it is contended that no offence has been made out against the appellants herein, but the trial Court brushed aside the testimony of the aforesaid witnesses and rendered the impugned judgment of conviction. Therefore, in this appeal it requires to re-appreciate the legality and validity of the impugned judgment of conviction rendered by the trial Court by setting aside the same.

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It is further contended that on appreciation of

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the evidence on the part of the prosecution nowhere it is established by the prosecution with regard to the motive and intention on the part of the appellants to eliminate deceased Shalini and no rivalry or enmity was

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established. Therefore, the impugned judgment of conviction is required to be set-aside. The trial Court failed to notice that the last seen theory alone is not a ground to convict the accused persons. According to the prosecution the deceased was last seen by PW.2Nandana, PW.6 – Prashantha, PW.7 – Suresha and PW.9 – Punithkumar. Their statements have been recorded and they have been examined on the part of prosecution. But in their evidence nothing has been elicited with regard to last seen theory of the deceased and they have turned hostile and not supported the case of prosecution.

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The trial Court failed to notice that in order to

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bring the charge of murder, there must be intention to kill the deceased, there must be bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death, that the act which causes death is done with the intention of causing death is done with

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the intention of causing bodily injury and there must be inimical towards the deceased and there must be rivalry and enmity between the deceased and the accused persons. But in the absence of aforesaid ingredients, the conviction of accused under Section 302 of IPC is erroneous. The trial Court has misdirected the evidence of the prosecution and erroneously came to the conclusion that the prosecution has proved the guilt against the accused beyond all reasonable doubt .

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It is contended that according to the inquest report, PW.16 was the last seen person of the deceased at about 5.30 p.m. on 29.06.2010 when the deceased in the corridor of house of PW.1. According to the statements of PW.6, 7 and 9 which was recorded by the investigating agency, at 5.00 p.m. the deceased was moving from her house to the school. Therefore, the entire case of prosecution with regard to the last seen theory is depending upon the evidence of PWs.6, 7 and

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9 and not on the evidence of PW.2 on whose evidence the trial Court has strongly relied upon in respect of last seen theory. These are all the materials and evidence which finds place on the part of the prosecution and the concept of last seen theory has to be established by the prosecution which is the domain vested with it to prove the guilt of the accused.

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It is contended that accused No.4 is alleged to have assaulted deceased – K.Shalini with means of MO.5 – knife by infliction of injuries on her hand. But accused Nos.3 to 5 were facing of trial, but their case has been ended in acquittal. The trial Court has even misdirected and misinterpreted the evidence of Doctor who conducted autopsy over the dead body of deceased as per Ex.P19 and given opinion with regard to the case of death of deceased. He was subjected to examination and cross-examination was also thoroughly done. He has opined that the death occurred prior to 16 to 17

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hours of the postmortem, if the neck was forcibly pushed, the death has occurred on the shortage of breath and he opined if MO.5 was used to assault, the injuries found in Ex.P20 may have occurred.

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The prosecution has failed to establish the guilt against the accused beyond all reasonable doubt relating to the offences insofar as unlawful assembly and so also criminal conspiracy hatched among accused persons that on 29.06.2010 at about 5 p.m. the accused persons had assembled in front of the house of accused Nos.1 and 2 and thereby they have committed the offences under Sections 143, 120B r/w 149 of IPC. But on appreciation of the entire evidence on record, the prosecution has failed to prove the common intention, unlawful assembly and criminal conspiracy among the accused persons and thereby they have been acquitted from the said offences. All the charges leveled against the accused persons are not proved by the prosecution

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beyond reasonable doubt with cogent, credible and unimpeachable evidence. Therefore, the impugned judgment of conviction rendered by the trial Court is liable to be set-aside.

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Lastly it is contended that the prosecution has utterly failed to prove the enmity and rivalry between PW.1 and accused Nos.1 and 2. Similarly, the prosecution has failed to prove the unlawful assembly formed by the accused persons, criminal conspiracy to commit the murder of deceased, the alleged assault by knife over the right hand of deceased, causing disappearance of evidence by all the accused persons. It is contended that the prosecution has failed to prove the guilt of the accused persons and accused Nos.3 to 5 were acquitted for all the offences leveled against them, but the appellants / accused Nos.1 and 2 were acquitted only for the offence under Sections 120B and 149 of IPC and convicted for the offence under Sections

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302 and 201 of IPC. When the benefit of doubt is extended to accused Nos.3 to 5 with regard to the alleged crime, the same benefit has to be extended to appellants /accused Nos.1 and 2 also. The appellants / accused Nos.1 and 2 have been convicted solely on the ground of last seen theory and recovery of dead body, which is bad in law. The trial Court erred in applying the last seen theory to convict the appellants there being no evidence of involvement of appellants in commission of crime and the last seen theory together could not be of any assistance to the case of the prosecution. The testimony of the witnesses on the part of the prosecution does not inspire confidence of the Court that the accused persons have committed murder of deceased. The prosecution has examined PWs.1 to 26 except the Doctor and the IO, rest of the witnesses, few have partly supported the prosecution case and few have turned hostile. Even though the witnesses were cross-examined in respect of last seen theory, enmity,

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rivalry and quarrel between accused Nos.1 and 2 and PW.1 prior to the incident, but nothing worthwhile has been elicited to prove the guilt of the accused. Therefore, in the totality of the facts and circumstances of the case, the impugned judgment of conviction rendered by the trial Court suffers from serious legal infirmities and it requires interference of this Court and consequently, the impugned judgment of conviction is liable to be setaside.

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In support of his contentions, learned counsel

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for the appellants has placed reliance on the following rulings:

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Padala Veera Reddy vs. State of Andhra Pradesh (1989 Supp (2) SCC 706)

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In this judgment it is held that on facts, circumstantial evidence not sufficient to conclusively establish guilt of accused persons – conduct of the accused must be seen in its entirety – mere suspicion not enough.

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Nirmal Kumar vs. State of UP (AIR 1992 SC 1131)

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In this judgment it is held that “murder – child evidence – occurrence taking place in family house, at night – prosecution case resting on child evidence – child deposing that she had seen accused in lantern light and giving out their names – fact that lantern was burning however not stated before police – names of accused also not mentioned to police officer who examined her – contradictions are material – recovery of weapon at instance of accused – not a corroborative evidence of significance – accused entitled to be acquitted.

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Anant Bhujangrao Kulkarni vs. State of Maharashtra (AIR 1993 SC 110)

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The Hon’ble Supreme Court in this judgment has held that “murder – circumstantial evidence – accused last seen along with deceased – recovery of dead body on information given by accused – dead body recovered from part of building which was near to the portion

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occupied by accused – place of recovery however not in exclusive possession of accused – evidence as to recovery of watch belonging to deceased at instance of accused unreliable – circumstance that accused gave evasive answers when asked about whereabouts of deceased not proved – held accused could not be convicted merely on circumstances of last seen and that dead body was found near portion of building occupied by him.

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Bhagawan Singh and others Vs. State of M.P. (AIR 2003 SC 1088)

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Section 300 – Murder – Evidence of child witness – child, son of deceased, 6 years of age alleged to have seen the occurrence – omission of prosecution in not holding test identification parade after child witness named three assailants before police – prosecution also failed to examine a person to whom the child first met after incident – further, conduct of his father was also unnatural as he made no enquiries from child before

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recording of his statement by police – thus conviction of accused cannot be based on such sole testimony of child witness.

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Sk.Yusuf vs. State of W.B. (AIR 2011 SC 2283)

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Whereas in this judgment the Hon’ble Supreme Court has addressed the issues relating to Section 300 – murder – circumstantial evidence – theory of last seen together – comes into play when time gap between time when accused and deceased were last seen alive and when deceased was found dead was so small that possibility of any person other than accused being author of crime becomes impossible.

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Surendra Pratap Chauhan vs. Ram Naik and others (AIR 2001 SC 164)

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Whereas Hon’ble Supreme Court was addressing the issues relating to Section 300 – murder, evidence of eye witnesses – credibility – relations between accused and complainant strained leading to groupism in village –

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evidence of eye-witnesses who were caste fellows of complainant need not be discarded on that ground – their evidence however, needs to be scrutinized with caution.

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Harbeer Singh vs. Sheeshpal and others (2016) 16 SCC 418

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In this judgment the Hon’ble Supreme Court has addressed issues relating criminal trial – proof – cardinal principle of – what is – held that it is a cardinal principle of criminal jurisprudence, that guilt of accused must be proved beyond all reasonable doubt – burden of proving its case beyond all reasonable doubt lies on prosecution and it never shifts – another golden thread which runs through the web of administration of justice in criminal cases is that if two views are possible on evidence adduced in the case, one pointing to guilt of accused and other to his innocence, the view which is favourable to accused should be adopted.

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These are all the citations that have been

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referred by learned counsel for the appellant in support of the grounds as urged in this appeal and emphatically seeking to consider the grounds urged in this appeal relating to accused Nos.1 and 2 and set-aside the judgment of conviction rendered by the trial Court. The said reliances are aptly applicable to the present case on hand and that the prosecution has miserably failed to establish the guilt of the accused by facilitating the worthwhile evidence and even though the dead body of deceased – K.Shalini was lying beneath the Cot in the bedroom. Mere because dead body was recovered from the house of accused Nos.1 and 2 it cannot be rendered that accused Nos.1 and 2 alone committed murder of deceased on the fateful day by pressing her neck and also infliction of injuries on the right hand part of deceased K.Shalini with means of M.O.5 – knife. But the case against accused No.4 who alleged to have assaulted on the right hand part of the deceased with

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means of knife was ended in acquittal inclusive of accused Nos.3 and 5. These accused Nos.3 to 5 have also participated with co-accused as per the criminal conspiracy hatched to eliminate the deceased. Therefore, when the case against co-accused has ended in acquittal, same benefit has to be extended to these accused which is the settled position of law. On all these premises learned counsel for appellants seeking consideration of the grounds as urged in this appeal and to set-aside the impugned judgment of conviction rendered by the trial Court in S.C.No.47/2011 dated 06.08.2016, if not, there shall be an absolute miscarriage of justice to accused Nos.1 and 2 who are the gravamen of accusation made against them. It is also contended that the appellants who are spouses are having small children and they are in incarceration for almost 09 years 01 month and 14 days. Even this aspect is required to take into consideration along with the grounds as urged in this appeal.

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On contrary, learned Addl.SPP for respondent

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– State has taken us through the evidence of PW.1 – Puttalingamma who is no other than the grand mother of deceased – K.Shalini and whereby she has filed a complaint as per Ex.P1 and based upon her complaint criminal law was set into motion by recording FIR as per Ex.P22. The FIR has been recorded by PW.25 being the IO in part and apprehended the accused persons and submitted report of arrest of accused as per Ex.P23 and P24. Thereafter PW.26 – M.M.Prashanth who is the IO

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in part thoroughly investigated the case and on completion of investigation by recording the statement of witnesses and so also, drew the mahazar as per ex.P2 in the presence of panch witnesses and so also, conducted the inquest over the dead body of K.Shalini in the presence of panch witnesses as per Ex.P13 and so also recorded statements of relatives of deceased. Similarly, PW.26 drew another spot mahazar as per Ex.P15 in the presence of panch witnesses near the

¶136

¶137

scene of offence i.e., the house of accused Nos.1 and 2 where the dead body of deceased K.Shalini was lying beneath the Cot in the bedroom of accused Nos.1 and 2 and this house was rented by PW.21 Ramegowda who is the landlord. PW.21 was also subjected to examination on the part of the prosecution and he has partially supported the case of the prosecution. Therefore, the evidence of PW.1 and PW.2 – Nandana who is the friend of K.Shalini and is a child witness and this witness has been subjected to examination relating to prove the guilt of the accused insofar as last seen theory. PW.5 – Mahadevaiah was also subjected to examination on the part of the prosecution. PW.16 – Boramma is the daughter-in-law of PW.1 and aunt of deceased – K.Shalini and she was also subjected to examination relating to last seen theory. PW.1, PW.2, PW.5 and PW.16 have categorically stated that the dead body of Shalini was found beneath the cot in the bedroom of the house of accused Nos.1 and 2. They have also stated

¶138

¶139

that these accused opened the door and after search they found the dead body of the deceased in the bedroom beneath a Cot. It is elicited during the course of cross-examination of PW.16 that when accused Nos.1 and 2 returned from marriage, they asked the accused to open the door of the house. The key was with accused Nos.1 and 2. Hence, there is an over whelming evidence for the recovery of the dead body from the house of accused No.1 and 2. These witnesses have categorically stated that when they were searching in their house, the accused persons kept quite. When they made attempt to search in the bedroom, accused Nos.1 and 2 restrained them from searching their bedroom. This suspicious attitude and conduct of the accused clearly goes to show that accused Nos.1 and 2 had knowledge that the dead body was beneath the Cot in the bedroom and it was closed with the help of coconuts and other articles. This goes to show that the accused Nos.1 and 2 wanted to hush up the case by disposing

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off the body whenever they get a good opportunity. These are all the evidence which finds place on the part of the prosecution. The trial Court has given credentiality to these witnesses and rendered the conviction judgment. The prosecution has proved beyond all reasonable doubt that accused Nos.1 and 2 have committed the murder of Shalini and made an attempt to hush up the case by hiding the body of deceased beneath a Cot by covering it with coconuts and other materials on it. Therefore, it does not arise to call for interference of the impugned judgment of conviction and order of sentence rendered by the trial Court relating to offence under Sections 302 and 201 of IPC. On all these premises, learned Addl.SPP for respondent – State sought for dismissal of the appeal being devoid of merits.

¶142

It is in this context of the contention as taken

¶143

by learned counsel for the appellants and so also, the

¶144

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arguments stoutly addressed by learned Addl.SPP based upon the evidence let in by the prosecution, but in order to attract Section 149 of IPC it must be shown that the incriminating act was done to accomplish the common object of unlawful assembly. It must be within the knowledge of the other members as one likely to be committed in prosecution of common object. Section 34, 120A and 149 of IPC, 1860 insofar as distinction between these Sections 149 and 120A, which defines criminal conspiracy it would be observed that the lastnamed Section is wider than this Section or Section 149 in that mere agreement between two or more persons. But Section 34, there is active participation in the commission of the offences under criminal act. But under Section 149 that liability arise by reasons of the membership of the unlawful assembly with common object and no active participation at all in the perpetration or commission of crime. But the distinction between common intention under Section 34 and

¶146

¶147

common object under Section 149 is of vital importance. Therefore, the aspect of the accused persons being likely to cause death would be relevant under Section 149 and not under Section 34 of IPC, 1860. But Section 34 has to be established that there was common intention before the participation by the accused.

¶148

In the instant case, accused Nos.1 and 2 along with co-accused hatched criminal conspiracy to eliminate deceased – Shalini who is no other than the grand daughter of PW.1 – Puttalingamma. Prior to the death of deceased as there was some ill-will developed in between the family members of PW.1 – Puttalingamma and so also, the accused persons and there was some altercations that took place in between the child of accused Nos.1 and 2 and deceased – K.Shalini. But the motive factor has not been established by the prosecution and even the last seen theory insofar as accused No.1 who had accompanied

¶149

¶150

with deceased – K.Shalini and also brought her from school to the house and wherein remaining co-accused also entered into the house where accused Nos.1 and 2 were residing on rental basis. Due to the criminal conspiracy hatched among themselves to eliminate the deceased, firstly accused No.4 is alleged to have assaulted deceased – K.Shalini with means of MO.5 – knife on her right hand part resultant of that she sustained some injuries. Subsequent to infliction of injuries, deceased was made to lie down on the cot in the scene of crime and thereafter pressing her neck forcibly and done to her death. It is the theory of the prosecution and also materials secured by the IO during the course of investigation. Even though the Doctor was subjected to examination on the part of the prosecution but nothing worthwhile has been elicited to prove the guilt of the accused. PW.22 – Dr.K.V.Prakasha was subjected to examination on the part of the prosecution relating to prove the contents at Ex.P19 –

¶151

¶152

PM report issued by him and as per his opinion the death has occurred due to asphyxia as a result of applying extra pressure on the neck. Ex.P21 is the FSL report based upon which Ex.P20 opinion has been issued. These are all the evidence which finds place on the part of the prosecution to prove the guilt against the accused. No doubt Section 149 of IPC has been lugged against all the accused persons, but strangely the case in respect of accused Nos.3 to 5 insofar as offences under Sections 143, 120B, 302, 201 r/w 149 of IPC ended in acquittal. Even accused Nos.1 and 2 were acquitted for the offences under Sections 143, and 120B of IPC. But they were convicted for the offence under Sections 302 and 201 of IPC. No doubt Section 149 of IPC is wide in its sweep but in fixing the membership of the unlawful assembly and in inferring the common object, various circumstances also have to be taken for consideration and having regard to omnibus allegation,

¶153

¶154

it is not safe to convict everyone of them for the offence

¶155

of murder by applying Section 149 of IPC, 1860.

¶156

In the instant case, it is relevant to refer to Section 299 of IPC, 1860 relating to culpable homicide –

¶157

“whoever causes death by doing an act with the intention of causing death, or with the intention of causing such bodily injury as is likely to cause death, or with the knowledge that he is likely by such act to cause death, commits the offence of culpable homicide.”

¶158

Chapter 16 details of offences affecting human body -Homicide, classification of - homicide is killing of a human being by human being, it may be firstly lawful, secondly, unlawful. Moreover, homicide may be classified into the following:

¶159

Excusable homicide -

¶160

a) Where the death is caused by accident or misfortune in doing of a lawful act in a unlawful manner by lawful means with

¶161

¶162

proper care and caution without any criminal intention or knowledge as defined under Section 80 of IPC, 1860.

¶163

Justifiable homicide -

¶164

a) by a person who is bound or, by a mistake of fact by act, in good faith believes himself bound, by law as under Section 76 of IPC.

¶165

b) by a person who is justified or by a mistake of fact, in good faith believes himself to be justified by law as under Section 79 of IPC.

¶166

Unlawful Homicide

¶167

Unlawful homicide may be divided into three categories:

¶168

1. Culpable homicide.

¶169

1. Causing death by rash or negligent act not amounting to culpable homicide.

¶170

1. Suicide as under Section 305 and 306 of IPC

¶171

¶172

But in the instant case the dead body of deceased

¶173

– K.Shalini was lying beneath the Cot in the bedroom of accused Nos.1 and 2 and the same has been recovered by the investigating officer and also held inquest over the dead body in the presence of panch witnesses. Therefore, the concept of homicide has been stated it is only for the purpose of reference in this matter relating to prove the guilt against the accused persons.

¶174

Insofar as Culpable homicide, this section defines culpable homicide, which is of two kinds:

¶175

a) Culpable homicide amounting to murder and

¶176

b) Culpable homicide not amounting to murder

¶177

What is Culpable homicide:

¶178

In determining the nature of offence regard must, then, be had to the essential elements which are common to all such offence- (i) mentality of accused (ii) the nature of his act and (iii) its effect upon the human victim.

¶179

¶180

Further it is relevant to refer Section 300 of

¶181

IPC, 1860 relating to murder. But there is no definition of murder in the aforesaid Section but Section merely takes the four more serious types of culpable homicide, basing on the mens rea and designates them murder.

¶182

Keeping in view the tenor of Section 300 of Cr.P.C. relating to murder it is relevant to refer what is motive. It is not essential for the prosecution to establish motive factor against the accused in all cases, but at some time it cannot be given to gainsaid that without adequate motive speaking normally, none is expected to take life of another human being. But the motive behind the crime is a relevant fact of which evidence can be given. The absence of motive is also a circumstance which is relevant for assigning the evidence. But the circumstances proving the guilt of the accused are however not weakened at all by the fact that the motive has not been established. It often

¶183

¶184

happens that only the culprit himself knows what moved him to certain course of action.

¶185

It is also relevant to mention the distinction

¶186

between culpable homicide and murder. Culpable homicide is the genus and murder is its species and all murders are culpable homicides but all culpable homicides are not murders. It is extensively addressed by the Hon’ble Supreme Court in the case of Rampal

¶187

singh v. State of U.P. (2012) 8 SCC 289.

¶188

In the case of Raj Paul Singh vs. State (2012)

¶189

10 SCC 144 , the Hon’ble Supreme Court has held that culpable homicide will not amount to murder if it is committed without premeditation in a sudden fight in the heat of passion upon a sudden quarrel provided the offender has not taken undue advantage or acted in a cruel or unusual manner.

¶190

In respect of intention and knowledge, it is fallacious to contend that when death is caused by a

¶191

¶192

single blow, clause third is not attracted and, therefore, it would not amount to murder. The ingredient intention in that clause gives clue in a given case whether offence involved is murder of not. (Jai Prakash v. State (Delhi

¶193

Administration) (1991) 1 Crimes 474 (SC).

¶194

In the instant case, the prosecution has given

¶195

more credentiality to the evidence of PW.22 – Doctor who conducted autopsy over the dead body of K.Shalini. But it is relevant to refer the judgment in the case of

¶196

Balaji Gunthu Dhule vs State Of Maharashtra (AIR 2013 SC 264) , whereby it is held that post mortem cannot be made first basis for conviction once the eye witnesses evidence is rejected. But the post mortem report should be in corroboration with the evidence of eye witnesses and cannot be an evidence sufficient to reach conclusion for convicting the appellant. In the instant case, the prosecution is banking upon the evidence of Doctor who conducted autopsy over the

¶197

¶198

dead body of deceased – K.Shalini and issued Ex.P19 and he has noticed some injuries. But the materials secured by the IO during the course of investigation and even MO.5 – knife has been seized but the injury was inflicted on the right hand part of K.Shalini by accused No.4. The case against accused No.4 ended in acquittal inclusive of accused Nos.3 and 5. But the entire case rests upon the circumstances. There shall be some domain vested with the prosecution to establish the guilt against the accused by facilitating worthwhile evidence. But the circumstances relied upon by the prosecution in support of the conviction must be fully established and the chain of evidence furnished by those circumstances must be so complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it should be conclusive in nature. This issue is addressed by the Hon’ble Supreme Court in the case of Arvind @ Pappu

¶199

vs State (Delhi Administration) (1999) 4 SCC 4861 .

¶200

¶201

Keeping in view the evidence of Doctor who

¶202

conducted autopsy over the dead body of K.Shalini and issued PM report as per Ex.P19, but medical evidence corroborated with ocular testimony, the medical evidence is to be proved by the prosecution that the injuries inflicted upon the injured as a result of that injuries the deceased had lost his breath. But in the instant case no such kind of evidence on the part of the prosecution has been facilitated to secure conviction.

¶203

This can be seen in the evidence of PW.1 who is the author of the complaint as per Ex.P1 and she has not withstood to the contents made in the complaint at Ex.P1. PW.2 – Nandana is the child witness aged about 12 years and she was friend of deceased and she was subjected to examination on the part of the prosecution relating to last seen theory. But it is the domain vested on the part of the prosecution to prove the guilt of the accused to secure conviction where the entire case rests upon circumstantial evidence and circumstances in

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nature. Therefore, in case of the circumstantial evidence motive factor bears the important significance. Motive always locks-up in the mind of the accused and sometime it is difficult to unlock. People do not act wholly without motive. The failure to discover the motive of an offence does not signify its non-existence.

¶206

The law regarding circumstantial evidence is well-settled. When a case rests upon the circumstantial evidence, such evidence must satisfy three tests:

¶207

i) the circumstance from which an inference of guilt sought to be drawn, must be cogently and firmly established

¶208

ii) those circumstances should be of definite tendency unerringly pointing towards guilt of the accused.

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iii) circumstances taken cumulatively should form the chain complete that there is no escape from the conclusion that within all human probability the crime

¶210

¶211

was committed by the accused and none else. These 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. The circumstantial evidence should not only be consistent with guilt of the accused but should be inconsistent with his innocence.

¶212

In the instant case, the dead body of deceased

¶213

K.Shalini was lying beneath the Cot in the bedroom of accused Nos.1 and 2. But for some suspicion on accused Nos.1 and 2 that PW.16 – Boramma entered the house of accused Nos.1 and 2 at around 11 p.m. after attending marriage ceremony and accused Nos.1 and 2 were restraining to thoroughly search in the scene of crime i.e., house of accused Nos.1 and 2 and restraining them to go inside the room. On suspicion they forcibly entered the room and found that beneath the Cot there were coconuts and other articles. They

¶214

¶215

saw a hand in between it and identified the bangles of Shalini. The girl was found dead. Thereafter inquest was held over the dead body. But at a cursory glance of evidence of PW.1 – Puttalingamma and evidence of PW.16 – Boramma who have been thoroughly examined on the part of the prosecution but they have partially supported the case. But on entirety relating to death of deceased –K.Shalini even though the dead body has been traced beneath the Cot in the bedroom of accused Nos.1 and 2 but only on suspicion the dead body has been traced on thorough search in the scene of crime. In this regard, it is relevant to refer the concept of suspicion. Suspicion, however grave it may be, cannot take the place of poof. In the instant case, there can be no doubt that the circumstances raise a serious suspicion against the respondent. Therefore, the medical evidence on both sides is more or less equally balanced and that being the position, the benefit of doubt must go to the accused.

¶216

¶217

Mere recovery of dead body of the deceased

¶218

from the house of accused Nos.1 and 2 but in the absence of any other specific evidence connecting with accused with the murder is not enough to fasten the liability although it may raise some suspicion against the accused but suspicion however strong it may be cannot be valid substitute for proof.

¶219

As already stated the entire case is based upon chain of circumstances which has been established on the basis of reliable evidence the credibility of which has not in any manner being impeached by cross-examination and which evidence gets support from the medical evidence that, the death occurred on the account of the minor injuries inflicted upon the deceased in the house which was not occupied

¶220

by anyone other than the couple. It leads to the irresistible conclusion that it was only accused persons who committed the crime and leaves no doubt that

¶221

¶222

infliction of injuries over the person of deceased. Consequently, there is no reason to differ from the conclusion reached by the trial judge which is based upon the evidence which facilitated by the prosecution.

¶223

In the instant case, it is relevant to refer the judgment of Hon’ble Supreme Court in Ram Niwas vs. State of Haryana (Criminal Appeal No.25 of 2012) it is held that as under:

¶224

“The prosecution case rests on circumstantial evidence. The law with regard to conviction on the basis of circumstantial evidence has very well been crystalized in the judgment of this Court in the case of Sharad Birdhichand Sarda vs. State of Maharashtra, wherein this Court held thus:

¶225

“152. Before discussing the cases relied upon by the High Court we would like to cite a few decisions on the nature, character and essential proof required in a criminal case which rests on circumstantial evidence alone. The most

¶226

¶227

fundamental and basic decision of this Court is Hanumant v. State of Madhya Pradesh [AIR 1952 SC 343]. This case has been uniformly followed and applied by this Court in a large number of later decisions up-to-date, for instance, the cases of Tufail (Alias) Simmi v. State of Uttar Pradesh [(1969) 3 SCC 198] and Ramgopal v. State of Maharashtra [(1972) 4 SCC 625]. It may be useful to extract what Mahajan, J. has laid down in Hanumant case [AIR 1952 SC 343] :

¶228

“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 circum stances 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 for a conclusion consistent with the innocence of the accused and it must be such as to show that within all human

¶229

¶230

probability the act must have been done by the accused.”

¶231

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:

¶232

(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established.

¶233

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 : “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.”

¶234

(2) the facts so established should be consistent only with the hypothesis of the guilt of the accused,

¶235

¶236

that is to say, they should not be explainable on any other hypothesis except that the accused is guilty,

¶237

(3) the circumstances should be of a conclusive nature and tendency,

¶238

(4) they should exclude every possible hypothesis except the one to be proved, and

¶239

(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.

¶240

154. These five golden principles, if we may say so, constitute the panchsheel of the proof of a case based on circumstantial evidence.”

¶241

19. This Court has held that there has to be a chain of evidence so complete so as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and

¶242

¶243

must show that in all human probability the act must have been done by the accused. It has been held that the circumstances should be of a conclusive nature and tendency. This Court has held that the circumstances should exclude every possible hypothesis except the one to be proved. It has been held that the accused ‘must be’ and not merely ‘may be’ guilty before a Court can convict.

¶244

20. It is settled law that the suspicion, however strong it may be, cannot take the place of proof beyond reasonable doubt. An accused cannot be convicted on the ground of suspicion, no matter how strong it is. An accused is presumed to be innocent unless proved guilty beyond a reasonable doubt.

¶245

Further, it is relevant to refer the judgment

¶246

of Hon’ble Apex Court in Babu vs. State of Kerala

¶247

(2010) 9 SCC 189 relating to doctrine of innocence, it is held that criminal trial – proof – burden and onus of proof – reversal of burden of proof – when permissible – presumptions–presumption of innocence – Constitution of India – Articles 21 and 14. It is held “every accused

¶248

¶249

is presumed to be innocent unless the guilt is proved. The presumption of innocence is a human right. However, subject to the statutory exceptions, the said principle forms the basis of criminal jurisprudence. For this purpose, the nature of the offence, its seriousness and gravity thereof has to be taken into consideration. The courts must be on guard to see that merely on the application of the presumption, the same may not lead to any injustice of mistaken conviction.” In the same reliance it is also held that in a criminal trial – circumstantial evidence – generally – burden of proof – in case of circumstantial evidence burden on prosecution is always greater. Further, in respect of criminal trial – circumstantial evidence – motive – relevance – absence of motive in a case depending on circumstantial evidence is a factor that weighs in favour of accused – in a case of circumstantial evidence, motive must be established at least to a certain extent. In this judgment several reliances have been placed.

¶250

¶251

In the instant case, PW.2 – A.B.Nandana who

¶252

is a child witness aged 12 years and being friend of deceased – Shalini has given evidence on the part of the prosecution to prove the guilt against the accused relating to last seen theory to be established by the prosecution which is the important domain vested with the prosecution and equally it is vested with the trial Court to appreciate the evidence keeping in view Section 3 of the Indian Evidence Act. But the evidence of a child witness it should be carefully scrutinized. The deposition of child witness must require corroboration, but in case the deposition inspires the confidence of the Court and there is no embellishment or improvement therein, the court may rely upon the evidence. Only in case there is evidence on record to show that a child has been tutored, the court can reject the statement partly or fully. This issue is addressed in the case of State of Madhya Pradesh v. Ramesh (2011) 4 SCC

¶253

786. Further , the evidence of child witness is not

¶254

¶255

required to be rejected per se; but Court as a rule of prudence considers such evidence with close scrutiny and only on being convinced about the quality thereof and reliability can record conviction, based thereon. This issue has been extensively addressed in the case of

¶256

Golla Yelugu Govindu vs. State of Andhra Pradesh (AIR 2008 SC 1842).

¶257

It is also relevant to refer Section 134 of the Indian Evidence Act which states that no particular number of witnesses shall in any case be required for the proof of any fact. It is well settled that principle of law that reliance can be based on the solitary statement of a witness if the Court comes to the conclusion that the said statement is the true and correct version of the case of the prosecution. This issue has been addressed by the Hon’ble Supreme in the case of Raja vs. State

¶258

(1997) 2 Crimes 175 (Del). It is the quality of the evidence and not the quantity of the evidence which is

¶259

¶260

required to be judged by the Court to place credence on the statement. ( State of Uttar Pradesh vs. Kishanpal

¶261

2008 (8) JT 650 ).

¶262

In the case of Lallu Manjhi v. State of Jharkhand (AIR 2003 SC 854) relating to requirement as to number of witnesses. The law of evidence does not

¶263

require any particular number of witnesses to be examined in proof of a given fact. However, faced with the testimony of a single witness, the court may classify the oral testimony of a single witness, the court may classify the oral testimony into three categories, namely (i) wholly reliable, (ii) wholly unreliable, and (iii) neither wholly reliable nor wholly unreliable. In the first two categories there may be no difficulty in accepting or discarding the testimony of the single witness. The difficulty arises in the third category of cases. The court has to be circumspect and has to look for corroboration in material particulars by reliable testimony, direct or

¶264

¶265

circumstantial, before acting upon testimony of a single

¶266

witness.

¶267

Whereas in the case of Sharad Birdhichand

¶268

Sarda vs. State of Maharashtra (1984) 4 SCC 116 it is

¶269

relevant to refer para 163 which reads as under:

¶270

“We then pass on to another important point which seems to have been completely missed by the High Court. It is well settled that where on the evidence two possibilities are available or open, one which goes in favour of the prosecution and the other which benefits an accused, the accused is undoubtedly entitled to the benefit of doubt. In Kali Ram v. State of Himachal Pradesh , this Court made the following observations:

¶271

Another golden thread which runs through the web of the administration of justice in criminal cases is that if two views are possible on the evidence adduced in the case one pointing to the guilt of the accused and the other to his innocence, the view which is favourable to the accused should be adopted This principle has a special relevance in cases where in the guilt of the accused is sought to be established by circumstantial evidence."

¶272

¶273

Whereas in the instant case, accused Nos.1 and

¶274

2 who are the appellants in this matter whereby challenging the judgment of conviction rendered by the trial Court relating to offences under Section 302 and 201 of IPC but the case in SC.No.47/2011 dated 06.08.2016 in all accused Nos.1 to 5 were facing of trial. But the case against accused Nos.3 to 5 ended in acquittal and these accused Nos.1 and 2 have been convicted by the trial Court for the reasons that the dead body of K.Shalini

¶275

was lying beneath the Cot in the bedroom of accused Nos.1 and 2. Insofar as offence under Sections 143 and 120-B of IPC, accused Nos.1 and 2 have been acquitted. But other accused were acquitted for all the offences leveled against them. The benefit of doubt was extended to accused Nos.3 to 5 relating to the aforesaid offences which lugged against them by assessing the evidence adduced so far. But the trial Court arrived at a conclusion convicting accused Nos.1 and 2 for the offence under Sections 302 and 201 of IPC. It is settled position

¶276

¶277

of law that when the case against co-accused is ended in acquittal, the benefit of the same shall be extended to other accused also. Therefore, in this appeal also appellants/ accused Nos.1 and 2 are deserving for benefit of doubt which was extended to accused Nos.3 to 5 who participated in the crime along with these accused. The trial Court acquitted accused Nos.3 to 5 on the ground they are not involved in the crime but appellants have been convicted solely on the ground of last seen theory and recovery of dead body which is bad in law. Even at a cursory glance of the entire evidence of the prosecution it indicates as that the prosecution did not facilitate worthwhile evidence to secure conviction for the offence punishable under Section 302 and 201 of IPC in respect of the appellants / accused Nos.1 and 2.

¶278

Learned counsel for the appellants also contended that accused Nos.1 and 2 are in incarceration for almost 9 years 1 month 14 days. Therefore, we are of

¶279

¶280

the opinion that, it is suffice to hold that the said period of incarceration undergone by the appellants shall be termed as service of sentence and the same will meet the ends of justice. In terms of the aforesaid reasons and findings, we proceed to pass the following:

¶281

ORDER

¶282

The appeal preferred by appellants / accused Nos.1 and 2 under Section 374(2) of Cr.P.C. is hereby allowed. Consequently, the judgment of conviction and order of sentence dated 06.08.2016 rendered by the trial Court in S.C.No.47/2011 is hereby set aside. Consequent upon setting aside the judgment of conviction rendered by the Trial Court, the accused are acquitted of the offences punishable under Sections 302 and 201 of the IPC, 1860.

¶283

Registry of this Court is directed to forward a copy of the operative portion of the judgment to the Superintendent of jail authority, Central Prison,

¶284

¶285

Parappana Agrahara, Bengaluru City where the accused are housed with a direction to set them at liberty, forthwith, if they are not required in any other case. Ordered accordingly.

¶286

Sd/JUDGE

¶287

Sd/JUDGE

¶288

Dkb

Smt. Anusuya @ Hampi v. the State of Karnataka

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Smt. Anusuya @ Hampi v. the State of Karnataka

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