Allowed

Chandregowda @ Ramachari v. the State of Karnataka

Karnataka HC6 Jan 2023CRL.A/2144/2016

Case brief

AI extract

What is this about?

Appeal against conviction for murder and causing disappearance of evidence. The High Court held the circumstantial evidence incomplete, motive unestablished, and recoveries not linked to the deceased. The conviction was set aside and the accused acquitted.

What did the court decide?

Conviction set aside; accused acquitted of offences under Sections 302 and 201 of IPC; directed to be set at liberty forthwith if not required in any other case.

Chandregowda @ Ramachari Vs the State of… — Murder and Culpable Homicide | Karnataka HC (2023)

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CRL.A No. 2144 of 2016

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 6^TH DAY OF JANUARY, 2023

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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. 2144 OF 2016 (C)

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BETWEEN:

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CHANDREGOWDA @ RAMACHARI @ RAMACHANDRA, S/O. NAGARAJU, AGED ABOUT 28 YEARS, OCC: AUTORICKSHA DRIVER, R/O. AMBLE VILLAGE AND HOBLI, CHIKKAMAGALURU DISTRICT-577 101.

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... APPELLANT

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(BY SRI. UMESH P.B. ADVOCATE FOR SRI. R.B.DESHPANDE, ADVOCATE)

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Digitally signed by T S NAGARATHNA Location: High Court of Karnataka

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AND:

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THE STATE OF KARNATAKA, RURAL POLICE STATION, CHIKKAMAGALURU-577 101. (REPRESENTED BY THE STATE PUBLIC PROSECUTOR, HIGH COURT BUILDINGS, BENGALURU 560 001)

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... RESPONDENT

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(BY SRI. H.S.SHANKAR, HCGP)

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THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374(2) CR.P.C., PRAYING TO SET ASIDE THE JUDGMENT OF CONVICTION AND ORDER OF SENTENCE DATED 05.12.2016 PASSED BY THE II ADDITIONAL SESSIONS JUDGE, CHIKKAMAGALURU IN S.C.NO.89/2014 CONVICTING THE APPELLANT/ACCUSED FOR THE OFFENCE P/U/S 302 AND 201 OF IPC.

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THIS CRIMINAL APPEAL HAVING BEEN HEARD AND RESERVED FOR JUDGMENT COMING ON FOR PRONOUNCEMENT OF JUDGMENT, THIS DAY C.M.JOSHI J. , DELIVERED THE FOLLOWING:

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JUDGMENT

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The appellant- accused being aggrieved by the judgment of conviction and order of sentence dated 05-12-2016 passed by learned II Additional Sessions Judge, Chikkamagaluru, in Sessions Case No.89/2014, for the offence punishable under Sections 302 and 201 of IPC, convicting and sentencing him to undergo imprisonment for life and pay fine of Rs.20,000/- for the offence punishable under Section 302 of IPC and in default of payment of fine, to undergo rigorous imprisonments for one year and to undergo simple imprisonment for two years and pay fine of Rs.10,000/- for the offence punishable under Section 201 IPC, and in default of payment of fine, to under go rigorous imprisonment for six months, has approached this court in appeal.

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The brief facts of the prosecution case are as below:

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It is alleged in the complaint that the husband of deceased Saroja left her about 10 years ago and she along with

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her two children was staying in the house of her mother. She

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was doing coolie work in Chikkamagaluru. About 3½ years earlier, when she was travelling in auto rickshaw developed intimacy with the appellant-accused, who was a auto rickshaw driver and thereafter, developed illicit relationship with him. It is alleged that thereafter, marriage of the appellant- accused was negotiated with another lady and due to which, deceased Saroja was quarrelling with the appellant- accused. Therefore, the appellant- accused decided to commit murder of Saroja. On 8th June 2014, at about 5.00 PM, appellant/accused came in the Auto rickshaw bearing No.KA.198/A-4859 to the house of Saroja and took her in the said auto to Malaluru Temple, where he has expressed his intention of marrying another lady. At that time, deceased Saroja quarreled with him and the appellant/accused assaulted her with the stone on backside of her head, brought her and admitted to M.G. Hospital with the assistance of his friends stating that she has consumed poison and went away. The complainant-PW 1 who is the son of the deceased came to know of this aspect on the next morning and filed the complaint as per Ex.P1 alleging that the accused has

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committed the offence punishable under Section 302 and 201 of IPC.

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Based on the said complaint filed by the son of deceased Saroja on 09-06-2014, criminal law was set into motion. The Investigating Officer registered the case in Crime No.262/14 and visited the mortuary of the Government Hospital, conducted inquest mahazar as per Ex.P2, took the photographs of the body of the deceased as per Ex.P3 to 5, visited the spot and prepared spot panchanama as per Ex.P9, recorded statements of the witnesses and sent requisition to conduct the post-mortem of the dead body of Saroja. The Medical Officer has conducted the postmortem as per Ex.P21, viscera of Saroja was collected by the Medical Officer and it was sent for examination to FSL. In the meanwhile, the accused was arrested and his voluntary statement was recorded by the investigating officer as per Ex.P26. The mobile phone of the accused- MO.1, was seized by the IO under a panchanama as per Ex.P9, the place of enticing away of deceased was shown by him and a panchanama was drawn as per Ex.P10. Then the stone used for commission of the offence,

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MO.2, was also seized at his instance as per Ex.P11 from the

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spot of the offence. The auto rickshaw used for commission of the offence, a mobile phone of deceased, MO.3 found in the said auto rickshaw and a blood stained mat, MO.4 were also seized under panchanama as per Ex.P12 at the instance of the accused. Thereafter, investigating officer sent the blood stained articles to the FSL. After securing the documents and completion of the investigation, he filed the chargesheet against the accused.

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The committal court has taken cognizance of the offence, furnished chargesheet copies to the accused and committed the case to Sessions Court. Thereafter, the Sessions Court framed charges, read over and explained to the accused who pleaded not guilty and claimed to be tried.

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The prosecution in order to prove the guilt of the accused, has examined 19 witnesses as PWs-1 to 19 and got exhibited 28 documents as per Exs. P1 to P28, during the cross-examination one document was marked as exhibited D1 and material objects at MOs 1 to 5 were also marked. Thereafter, the accused has been examined by the Trial Court

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under Section 313 of Cr.P.C. by explaining incriminating evidence adduced by the prosecution witnesses. The accused has denied the entire prosecution evidence and has not adduced any evidence.

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After hearing the arguments by the prosecution and

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the defence, the Trial Court framed following points for its consideration.

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(1) Whether the prosecution proves beyond reasonable doubt that the accused had an illicit relationship with the deceased Smt. Saroja and subsequently his marriage was negotiated, she quarreled with the accused, accused under apprehension that Smt. Saroja would prevent his marriage on 08.06.2014 at about 5.00 p.m., took her in a Autorickshaw bearing Reg. No. KA 18/A-4859 near Malaluru temple plantation with an intention to kill her assaulted with the stone on her backside of the head caused grievous injuries and squeezed her neck and committed culpable homicide amounting to murder and brought her to M.G. hospital admitted her by falsely informing that she has consumed poison and committed an offence punishable under section 302 of I.P.C.?

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(2) Whether the prosecution further proves that the accused after committing murder of Smt. Saroja in order to screen the offence from legal punishment had admitted her to M.G. hospital, Chikkamagaluru by falsely informing that she has consumed poison and committed an offence punishable under Section 201 of IPC?

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(3) What Order?

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Answering point Nos.1 and 2 in the affirmative, the

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learned Sessions Judge convicted the accused and sentenced him to undergo life imprisonment for the offence under Section 302 of IPC and also sentenced him to undergo rigorous imprisonment for two years for the offence under Section 201 of IPC and imposed fine with default sentences. It is this judgment of conviction and order of sentence which is called in question in the present appeal by the accused.

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The prosecution seeks to prove the guilt of the accused on the basis of the circumstantial evidence. The prosecution case as it unfolds from the charge sheet papers is that, the accused had developed acquaintance with the deceased while she was going for work in his auto rickshaw, he had developed illicit relationship with her and said illicit relationship was within the knowledge of the family members of the deceased, including her sons. It is the case of the prosecution that about a month prior to the incident, the accused had planned for his marriage and had requested his

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parents to search for bride and they had seen one Anitha d/o Dharmanna of Nettagakerehalli and about 15 days prior to the incident, the marriage talks had taken place. When this aspect was informed to deceased Saroja, she had picked up quarrel with the accused and had scolded him saying that if he marries said Anitha she would come to his house and consume poison. It is also the case of the prosecution that the accused has visited the house of the deceased three times after the said quarrel and on each occasion, there used to be quarrels. Therefore, accused feared that if the deceased creates any scene and obstructs the marriage, it would create problems in his future life and therefore, he had planned to kill her and waiting for an appropriate occasion. On 8-6-2014, in the morning, the accused informed the deceased that in the evening they should go out and accordingly, at about 5.00 p.m. he went to the house of deceased and took her to Malaluru Temple Chikkamagaluru and there when the issue of marriage was raised, she again had picked up quarrel with the accused threatening that she will consume poison. It was at about 7.30 p.m., it was dark and it was deserted place and

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therefore, accused picked up stone and hit on the back side of

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the head of the deceased, as a result, she fell down. The deceased was taken in the auto rickshaw and he took her to the house of PW12 Vanitha and she on seeing that the deceased was sitting on the floor of auto rickshaw, advised the accused to take the deceased to the hospital and on the way to the hospital deceased Saroja died and accused called the PWs5,6,7 and 11 i.e., Kiran Lokesh, Puttaswamy and Harish, to help him to take the deceased to the hospital. Thereafter, the accused took the deceased to the Government hospital at Chikkamagaluru and met PW5,6 7 and 11 there. Then he went inside the hospital and obtained OPD chit saying that the deceased has consumed poison and when the hospital authorities took the deceased on a wheelchair to the emergency, the accused and PWs 5,6,7 and 11 escaped from the spot. When the accused was preparing to escape from his village, the police caught hold of the accused and thereafter, he gave voluntary statement as per Ex.P26 and showed the place where the deceased was taken and the place where she was assaulted and produced the stone used by him and also shown

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the auto rickshaw where the mobile phone of the deceased was found.

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In order to establish these aspects, prosecution

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heavily relies upon the evidence of PW1-Abhishek, who is the complainant and happens to be the son of the deceased. It also relies on the evidence of PW10 Kamalamma, who is the mother of the deceased and knew about the fact that the accused and the deceased had gone together at 5.00 p.m. on the date of the incident. It also relies on the evidence of PW4-Lohit, who is the second son of the deceased who also knew about the relationship between the accused and the deceased. The pivotal witness of the prosecution happens to be the PW12-Vanitha @ Honnamma, the sister of the deceased who had seen the accused and the deceased together when the accused has brought the deceased in auto rickshaw after the assault and the deceased was not in a position to speak.

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In addition to the above witnesses, the other circumstantial witnesses relied by the prosecution are: PW14Dr. L.V. Chandrakanth, who happens to be the Medical Officer of the hospital and who prepared the OPD chit as per Ex.P18

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and recorded the entries in the hospital register which is at Ex.P19. It also relies on the evidence of the Medical Officer, PW16-Dr.Shivadatha, who conducted the autopsy of the deceased and gave a report as per Ex.P27. In addition to this, one another witness who is of importance is, PW9Sheshegowda, who was the pancha at the time of seizure mahazars which are at Exs.P9,10,11 and 12. PW2-Honnegowda and PW8- Annegowda, are the panchas of inquest mahazar. The four friends of the accused who had allegedly helped the accused in admitting the deceased in the hospital are examined as PW5-Kiran, PW6-Lokesh, PW7-Puttaswamy and PW11-Harish. But unfortunately they have turned hostile to the prosecution case and therefore, their evidence is not of any relevance. Further, the PW3-Eregowda, happens to be the brother of the deceased, who also speaks about the relationship of the accused with the deceased.

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Thus, the prosecution in order to prove the circumstances to show that the accused had the illicit relationship with the deceased, relies on the evidence of PW1Abhishek, PW3-Eregowda, PW4-Lohith, PW10- Kamalamma and

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PW12-Vanitha @ Honnamma. These witnesses speak about the

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fact that the accused and the deceased had developed illicit relationship and despite advise by her mother, deceased had continued such illicit relationship with the accused. The prosecution also relies upon the recovery of the MO2- stone which was allegedly used by the accused in assaulting the deceased. It also relies on MO3 which is the Mobile phone of the deceased and the mat in the auto rickshaw which is blood stained and marked at MO4.

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It is relevant to note that these recoveries coupled

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with the evidence of PW12 who speaks about the last seen theory, is relied heavily by the prosecution.

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The Arguments :

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Learned counsel appearing for the appellant/ accused has contended that the motive of illegal relationship between the accused and the deceased and the deceased threatening to commit the suicide if the accused marries another lady is a weak motive. Moreover, the prosecution has not established this aspect in proper way except from the relatives of the deceased. He contends that the girl with whom

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the accused proposed to marry has not been examined and none of the independent witnesses speak about the fact that the accused had prepared to marry another lady. Therefore, the accused and the deceased were quarrelling on account of accused preparing to marry another lady is not established and moreover, this aspect cannot be called as sufficient motive. The quarrels between deceased and accused are not proved and therefore, the motive is not established by the prosecution.

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The second prong of the argument by the learned counsel for the accused is that, the recovery of the mobile phone, auto rickshaw, blood stained mats etc., are not established. He contends that though the mobile phone of the deceased was found in the auto rickshaw, the call details between the accused and the deceased are not established and the best evidence to show the illicit relationship between the accused and the deceased is not established by the prosecution. The calls on the date of incident would have thrown much light on the circumstantial evidence against the accused and despite the mobile phone of the accused at MO1 and mobile phone of the deceased at MO3 have been recovered

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by the Investigating officer, the call details were never obtained.

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The third aspect contended by the learned counsel appearing for the appellant/accused is that, though the blood stained mat was recovered by the investigating officer, the blood group of the blood found on the auto rickshaw mat and that of the accused are not matched. Therefore, it cannot be said that the blood stains found on the stone at MO2 and auto rickshaw mat at MO4 do not establish that the blood belonged to the deceased.

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The fourth aspect contended by the learned counsel for the accused is that, PW4-Lohith and PW10-Kamalamma, who are relied by the prosecution to say that they had seen the accused and the deceased lastly are interested witnesses and their evidence cannot be conclusive. He contends that the evidence of PW-12-Vanitha @ Honnamma is suspicious and do not inspire the confidence of the Court in view of the fact that, she, despite finding that the deceased was not able to talk, does not accompany her to the hospital. She also do not say

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that, she had advised the PW1-Abhishek to go to the hospital immediately. Moreover, the PW1-Abhishek, despite came to know the fact that the deceased was taken to the hospital by the accused in the night, does not go to the hospital, but only visits on the next morning.

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Fifthly, he contends that the cause of death as mentioned in the PM report shows strangulation, but nowhere any of the material used for strangulation is forthcoming. He contends that the prosecution theory heavily relies on the circumstantial evidence and the exact manner in which the deceased had sustained injury is nowhere established by the prosecution. He has also pointed out many discrepancies in the evidence of the prosecution witnesses to show that their evidence is not believable and it is full of contradictions. Thus, he contends that the chain of circumstances is not fully established by the prosecution and there are many loopholes and such chain of circumstances do not conclusively establish the involvement of the accused. He contends that the motive has not been properly established by the prosecution and it is only the presumptions and surmises which indicate to the

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motive. It is not known how PWs- 1,4, 10 had come to know about the fact that the accused was intending to marry another lady and there used to be quarrels with the deceased. According to the prosecution, the investigating officer came to know about such quarrels only on the basis of the voluntary statement of the accused. However, the complaint itself mentions that there used to be quarrels between the accused and the deceased and therefore, the evidence of PWs 1,4, 10 and 12 is not believable and all such quarrels and the accused preparing to marry another lady was well known to them much earlier. Therefore, it is contended that the discovery through the accused is doubtful and the motive become unreliable.

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Per contra, learned HCGP appearing for the State contends that the PWs-1, 4, 10 and 12 knew about the nature of the relationship between the accused and the deceased and they also knew about the fact that the accused was preparing to marry another lady and no fault can be found with such knowledge. He contends that the deceased and PWs-1, 4, 10 and 12 had good relationship and PW10-Kamalamma was advising the deceased not to have illicit relationship with the

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accused and therefore, no fault can be found with the fact that

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they knew about the marriage preparations made by the accused. He contends that the evidence of PWs- 1,4 and 10 speaks about the fact that the accused had picked up deceased at 5.00 p.m. in his auto rickshaw. He also points out that PW12-Vanitha @ Honnamma had seen the deceased and the accused together in auto while he brought the deceased to her house before taking the deceased to the hospital. He contends that the accused and the deceased were having illicit relationship and friendship, which fact was known to the PW12 and therefore, her conduct in not accompanying the deceased to the hospital cannot be found fault with. Similarly, he also contend that the PW1-Abhishek knew about the fact that the accused and the deceased had gone together and therefore, no fault can be found with him for not visiting the hospital in the night itself.

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According to learned HCGP appearing for the State, the prosecution has proved all the circumstances which undoubtedly implicate the accused in the offence. He contends that though the investigating officer had not matched the blood

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stains on the stone and the auto rickshaw mat with that of viscera collected from the body of the deceased, that does not become fatal to the prosecution case in view of the other evidence available on record. Therefore, he contends that the prosecution had proved the guilt of the accused beyond reasonable doubt and the Trial Court had rightly convicted the accused for the offences charged against him.

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Analysis and conclusions:

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In the light of the above submissions made by the learned counsel for the appellant/accused and the learned HCGP appearing for the State, let us examine the findings given by the Trial Court.

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A perusal of the impugned judgment shows that the Trial Court has come to the conclusion that the last seen theory has been established by the prosecution. It has considered the evidence led by the prosecution and ultimately, it holds in para 33 that the evidence of PW12 specifically shows that the deceased was with the accused and the deceased was not in talking condition and her head was down while she sat on the floor of the auto rickshaw. Therefore, it comes to the conclusion

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on the basis of the last seen theory that the accused has not explained this and therefore, the prosecution has proved the guilt. The specific findings regarding the motive and the specific findings about the accused taking the deceased to the hospital to admit her to the hospital under the guise of deceased consuming poison are not found to be the necessary circumstances by the Trial Court. It has not given any finding as to whether there was a sufficient motive or not. It simply refers to the evidence of the PWs 1,4 10 and 12 about the motive and does not form any opinion in respect of their credibility.

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In the light of the above facts and circumstances of the case, this Court has to examine and re-appreciate the evidence on record.

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The circumstances which are relied by the prosecution in order to prove the guilt of the accused are to be examined by this Court.

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The first circumstance as contended by the prosecution is that, the accused was trying to marry another

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lady and therefore, there was a motive for the accused to kill the deceased Saroja. In this regard, the prosecution relied on the evidence of PWs 1,4,10 and 12 and their evidence disclose that the accused might have killed the deceased Saroja by assaulting her with a stone and strangulating her thinking that the deceased Saroja may come in the way of the accused marrying another lady. It is pertinent to note that, the investigation do not show that except PWs 1, 4, 10 and 12, none others had any knowledge of the fact that the accused is trying to marry another lady. Therefore, this circumstance is not supported by any fact which shows that there were efforts for the marriage of the accused. Under these circumstances, the contention that there was a motive for the accused to kill the deceased is spoken by only the interested witnesses and none else. It is also relevant to note that the investigating officer could have ascertained this fact from examining the parents of the accused or any other person who was instrumental in settling the marriage of the accused with another lady. Under these circumstances, the story of the prosecution that the accused thinking that the deceased may

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come in the way of his marriage and therefore, had a motive to kill her appears to be remote and not established beyond reasonable doubt.

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The second circumstance that is put forth by the prosecution is that, the accused had taken the deceased in his auto rickshaw at about 5.00 p.m. and this was seen by the PW4 and PW10. The perusal of the evidence of PW1 discloses that, he only returned to his house at about 7.30 p.m. and on enquiry, he came to know that his mother had gone with the accused. Therefore, he is a hearsay witness so far as the fact that the accused had taken the deceased with him.

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The perusal of the evidence of PW3-Eregowda, discloses that he is the brother of the deceased and he also came later to the house and he came to know by somebody that the accused had taken the deceased with him in his auto rickshaw.

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The PW4-Lohith, happens to be the younger son of the deceased and brother of PW1-Abhishek. He says that at about 5.00 p.m. the deceased was putting on clothes and

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therefore, on enquiring her, she replied that she is going for the

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market and at that time, accused came there and they went together in the auto rickshaw. Thereafter, the deceased did not return even till about 8.30 p.m. and thereafter, the PW12 Vanitha @ Honnamma called over the phone and informed that the accused brought the deceased to her house and the deceased was not in a talking condition and she had advised the accused to take her to the hospital. It is pertinent to note that PWs-1, 3 and 4 had come to know that the deceased was admitted to the hospital only in the morning. It is very surprising to note that PWs-1,3 4 and 10 despite had come to know of the fact that the deceased was ill, they did not bother to go to the hospital during the night. Even the evidence of PW1 in this regard is little intriguing and do not fit well.

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The another aspect which is of importance is, PW10-Kamalamma happens to be the mother of deceased Saroja and she states that she is a resident of Halmidi which is about of 4-5 kilometers away from Undadihalli, where the deceased was staying and at about 8.30 p.m., the accused came in the auto rickshaw and told that the deceased was not

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well and asked the PW12 to admit the deceased to the hospital.

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PW12-Vanitha @ Honnamma deposes that the deceased was sitting at the place where floor mat was kept and her face was looking down. She states that she advised the accused to take the deceased to the hospital. Accordingly, accused took away the deceased and thereafter, she informed the PW3-Eregowda and the PW1-Abhishek. Later, on the next day morning, she came to know that the accused had left the deceased in the hospital saying that she had consumed the poison.

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In the cross-examination, it is elicited that she was in the shock when the accused had come to her house at about 8.00 p.m. She also states that one Sheshegowda was present in the shop and he did not come near the auto rickshaw. Learned counsel for the accused has tried to elicit as to with whom the accused had talks for the marriage and she replied that she do not know the same. This fact also goes to show that the marriage proposal of the accused with another lady appears to be only a prosecution story.

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Under these circumstances, the evidence of PW4-

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Lohith and PW10-Kamalamma alone show that the accused and

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the deceased went away in the auto rickshaw of the accused at about 5.00 p.m. However, the evidence of PW12 shows that at about 8.00 p.m. the accused had come with the deceased and the deceased was not in a position to talk and therefore, she advised him to take the deceased to the hospital.

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The Trial Court, based on the evidence of PWs 4, 10 and 12, came to the conclusion that the last seen theory comes into play and the accused should have explained as to how the deceased Saroja had died and what happened to her after he had taken her to the market at about 5.30 p.m. The Trial Court observes in para 33 as below:

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"33. The mother and son of deceased Smt.Saroja, P.W.10 and 4 were present. They are last seen the deceased Smt.Saroja with accused who take her in the Autorickshaw, near Malaluru temple, after committing murder, accused took her near the house of P.W. 12, who is the sister of deceased asked to admit her to hospital. When P.W 12 saw the deceased, deceased was not in a speaking condition, she was sitting in the backseat of the Autorickshaw her head was down to

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the leg. P.Ws.4, 10 and 12 specifically stated about the deceased was with the accused. He has committed murder of deceased Smt.Saroja on the ground that she might have obstructed to his marriage."

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From the perusal of the evidence of PWs 4, 10 and 12, it is clear that PW12 had not seen the accused and the deceased going together at about 5.00 p.m. It is also relevant to note that PW4 and PW10 had not seen the accused taking the deceased near Malaluru temple. It is also to be noted that PW12 never stated that the accused had committed the murder prior to the accused had brought the deceased to her house. Therefore, it appears that the Trial Court has casually observed and considered the evidence of PWs-1, 4, 10 and 12 and in fact, PW10 had never seen the deceased and the accused at 5.00 p.m. Therefore, the observations of the Trial Court to come to the conclusion that PWs-4, 10 and 12 had seen the deceased at 5.00 p.m. is factually incorrect.

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Another aspect about the deficiencies in the last seen theory of the prosecution is that, PWs-1, 4, 10 and 12 had come to know on the next morning that the accused had left

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the deceased in the hospital by saying that she had consumed poison. Curiously, none of these witnesses say as to from whom they came to know about this fact. No-doubt, PW1 could have known the said fact only when he went to the hospital but not earlier to it. Nowhere these witnesses say from whom they came to know that the deceased was in the Government hospital Chikkamagaluru. They never disclose the names from whom they came to know this fact. Thus, the evidence of PWs4,10 and 12 disclose that they had only seen the deceased at 5.00 p.m. and about 10.00 p.m. PWs 1 and 3 are the hearsay witnesses about the said fact and therefore their evidence has no relevance in this regard.

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The third circumstance contended by the prosecution is that, the accused has led the investigation officer to discover the mobile phone of the deceased from the auto rickshaw, which also had a blood stained mat in it. The prosecution also contends that the accused had led to the place where he had assaulted the deceased near Malaluramma temple and showed the blood stained stone, which was recovered and marked at MO2. It is to be noted that PW9-

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Sheshegowda is the pancha of the said panchanama. According to prosecution, the accused had given the voluntary statement and had led the investigating officer to the places and the investigating officer could discover these materials objects.

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It is pertinent to note at this juncture that, according to the prosecution, the accused gave a voluntary statement and then led the investigating officer to the place from where she picked up the deceased i.e. in front of the house of the deceased and the PWs.1, 3, 4 and 10. Since this fact was already known to the IO, it cannot be said to be a discovery of a new fact. Thereafter, the accused led the investigating officer and the PW9 and other panchas to the place where he had committed the assault on the deceased with stone. Even this place of the incident though not known to the investigating officer, a stone was recovered from the said spot which is stated to be blood stained. Except the fact that it contains blood stains as per the FSL report, it is not known whether it belonged to the blood of the deceased Saroja. The matching of the blood of the deceased Saroja and the blood on

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the stone has not been established. It is also relevant to note that the assault was not witnessed by any of the witnesses and therefore, the link between the stone at MO2 and the blood of the deceased Saroja has to be matched conclusively and then only the recovery of MO2 can be said to be at the instance of the accused and it relates to the death of the deceased Saroja.

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The prosecution contends that thereafter, the accused led the IO and the panchas to the house of one Ganganna, where he showed the auto rickshaw which contained the mobile phone of the deceased as well as blood stained mat.

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Sofar as the blood stained mat is concerned, the blood on the said mat is not matched with the blood of the deceased. It is not known why the IO had collected the blood of the deceased at the time of the post mortem. When the blood was available, it could have been easily matched and established that they belong to the same person. It is also pertinent to note that allegedly the mobile phone of the deceased was found in the auto rickshaw which was used by

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the accused. None of the prosecution witnesses have identified

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that the said mobile phone belongs to the deceased. Though the prosecution has examined the PWs-1, 3 4 10 and 12, who were acquainted with the deceased, none of these witnesses were shown the MO3 and got it identified by them. In addition to it, the investigating officer had also not shown this MO3 to any of the witnesses for identification. Further, in order to establish that there were phone calls between the accused and the deceased, the call details would have played a vital role. The call details between the mobile phone of the accused which is at MO1 and mobile phone of the deceased which is at MO3 could have been placed before the Court to establish that they had phone calls between them very frequently. Under these circumstances, though it appears some recoveries were made, those recoveries cannot be related to the deceased in a conclusive manner. Hence, the chain of circumstances so far as the recovery of blood stained stone, blood stained mat and the mobile phones in the said auto rickshaw are not conclusively linked to the deceased Saroja.

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The fourth circumstance put forth by the

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prosecution is that, deceased was seen by PW12-Vanitha @ Honnamma, when she was brought in the auto rickshaw of the accused at about 8-30 p.m. Admittedly, the prosecution contends that the deceased was injured at that time. The evidence of PW12 shows that one Sheshegowda was also there and he did not come near the auto rickshaw. In other words, PW12 had gone near the auto rickshaw and found that the deceased was sitting at the place where foot rest was there and

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her face was looking down. It is surprising that she did not notice the blood stains or the wounds on the back of the head of the deceased. In addition to it, she advised the accused to take the deceased to the hospital. The prosecution contention is that accused asked the PW12 to take the deceased into her house and treat her, but the PW12 had refused and advised the accused to take the deceased to the hospital. This conduct on the part of the PW12 appears to be strange and surprising. Any prudent woman could not have refused to take her elder sister for a treatment. According to PW12, she simply informed the same to the PW3-Eregowda, over the mobile phone. But

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even PWs-1, 3 and 4 did not make any search for the deceased in the night. Though there is a feeble attempt made by the prosecution to say that the PW1-Abhishek, had tried to search for the accused in the night, he says that he came to know that the deceased was in hospital and accused had left her saying that she had consumed poison in the morning. As noted supra, the source of such information has not been disclosed by PWs-1, 3, 4 and 10. Therefore, the fact that the PW12 had seen the deceased with the accused and that the accused had brought the deceased in his auto rickshaw do not gel well and this circumstance is not conclusive to establish the last seen theory.

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The fifth circumstance as contended by the prosecution is that, accused took deceased in his auto rickshaw to the government hospital at Chikkamagaluru and he also called his friends i.e., PWs- 5,6,7 and 11 and with their help, by preparing a OPD chit saying that the deceased had consumed poison, left the deceased in the hospital and went away. As noted above, PWs- 5,6,7 and 11 have turned hostile to the prosecution. The PW14- Dr. L.V.Chandrakanth, was the

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Medical Officer in the hospital who first saw the deceased in the hospital. He says that OPD chit was prepared by a person and deceased was left in the hospital. The copy of the said OPD chit is produced at Ex.P18. A perusal of Ex.P18 shows that the deceased Saroja was alleged to have consumed poison and therefore, she was brought to the hospital. The name of the guardian is shown as Lokesh. If we assume that, the said Lokesh is PW6, he has not stated that he got prepared OPD chit. On the other hand, the case of the prosecution is that, one Harish, i.e. PW11 who had got prepared the OPD chit. There is also inconclusive material on record to show that who had got prepared the OPD chit which is at Ex.P18. The evidence in this regard is not conclusive. Under these circumstances, the circumstance that the accused had taken the deceased to the hospital and under the guise of she had consumed poison, he left the body of the deceased in the hospital and that he had taken the help of PWs- 5, 6,7 and 11 is not established conclusively.

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The sixth circumstance as contended by the prosecution is, the conduct of the accused after the incident.

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It is not the case of the prosecution that accused had absconded after the commission of offence. Accused was found immediately on the next day of registration of the FIR and he was arrested by the investigating officer. It is not the case of the prosecution that accused tried to hide his mobile phone or auto rickshaw or wipe out the blood stains on the mat of the auto rickshaw. He had not tried to destroy the mobile phone of the deceased also. It is very surprising that if the accused had the intention of committing the murder of deceased Saroja, he would not have left her mobile phone in the auto rickshaw itself. Therefore, this circumstance that the accused had shown the mobile phone of the deceased in his auto rickshaw is not convincing.

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There are few more aspects which are not explained by the prosecution. It is pertinent to note that PW1Abhishek, says that the deceased was hit by some weapon and she was killed by the accused. It is not known how the PW1 had come to know that the deceased was hit with a weapon. Surprisingly, the PW12 do not say that when she saw the deceased in the auto rickshaw, the deceased had any injuries

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on her head. According to the PW1, the blouse and saree of

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the deceased were soaked with blood. If that is so, the evidence of the PW12 do not show that there was bleeding injuries on the head of the deceased when she saw her. This circumstance is also not explained by the prosecution in a proper way.

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Another aspect is that, PW10 says that the deceased was wearing a white saree and green blouse when she left the house at about 5.00 p.m. However, the inquest mahazar produced at Ex.P2 discloses that the deceased was wearing a yellow saree and a red blouse. Therefore, the evidence of PW10 also suffer a jolt in this regard. It is to be noted that PW10 do not state that she do not remember the colour of the saree of the deceased when she left the house. She firmly says that, the deceased was wearing a white saree and green blouse. Therefore, the evidence of PW10 appears to be exaggerated and it is not natural. Similarly, the conduct of PW12 is also not natural and it do not inspire the confidence of the Court.

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The Trial Court, in its judgment, though mentions

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that the prosecution is depending on the circumstantial evidence, it do not go into the depth of the circumstances and says anything about the chain of the circumstances which conclusively establish the involvement of the accused.

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From paras 10 to 23 the Trial Court narrates the evidence adduced by the prosecution witnesses. Thereafter, the Trial Court narrates the investigation done by the Investigating Officer from Para 24 and 25. In para 26, the trial court mentions about the defence taken up by the accused and thereafter, it starts analyzing the evidence. It also considers few of the decisions relied by the defence regarding the circumstantial evidence and concerning the last seen theory. It considers the decision in the case of Krishna @ @ Ramaswamy and others Vs. State of Tamil Nadu¹ . Then in para 33, as reproduced supra, it comes to the conclusion that the prosecution has proved the guilt of the accused. Thus, it is evident that the circumstances which conclusively point out that the accused alone could have committed the offences and

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1 2014 SAR (Crl) 873

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none else could have committed the murder of deceased Saroja

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has not been considered by the Trial Court. Therefore, we are unable to accept the conclusions reached by the Trial Court that the accused alone could have committed the murder of the deceased. The circumstances discussed supra clearly indicate that the prosecution had failed to establish the guilt of the accused beyond all reasonable doubt.

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The circumstantial evidence should be conclusive

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and the decision of the Apex Court in the case of Kusuma Ankama Rao Vs. State of Andhar Pradesh² is relevant in this regard. In the said decision, the conditions precedent to convict an accused on the basis of the circumstantial evidence have been culled out. It was observed by the Apex Court as below:-

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"The conditions precedent before conviction could be based on circumstantial evidence are:

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(1) the circumstances from which conclusion of guilt is to be drawn should be fully established. The circumstances concerned must or should and not may be established

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

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2 AIR 2008 SC 2819

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

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

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

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(5) there must be a chain of evidence so complete as not be leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused."

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Further, the decision rendered in the case of Rajiv

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Singh Vs. State of Bihar and Another³ also is relevant to mention here. In the said decision, it is held as below:

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"C. Evidence - Appreciation of Evidence - it is well entrenched principle of criminal jurisprudence that a charge can be said to be proved only when there is certain and explicit evidence to warrant legal conviction and that no person can be held guilt on clear moral conviction. It was held that howsoever grave the alleged offence may be, otherwise stirring the conscience of any court, suspicion alone cannot take the place of legal proof. The well established cannot of criminal justice is "fouler the crime higher the proof".

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D. EvidenceAppreciation of evidence suspicion, howsoever grave cannot take the place of proof and the prosecution case to succeed has to be in the category of "must be" and not "may be" A distance to be covered by way of clear, cogent and unimpeachable evidence to rule

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3 2016 SAR (Criminal) 474

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out any possibility of wrongful conviction of the accused and resultant miscarriage of justice- For this, the court has to essentially undertake an exhaustive and analytical appraisal of the evidence on record and register findings as warranted by the same.

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E. Evidence-Circumstantial evidence - Basing conviction thereon-Circumstantial evidence if is to form the basis of conviction must be such so as to rule out every possible hypothesis of innocence of the accused and must without any element of doubt unerringly point to such culpability".

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In view of the discussion made above, we come to the conclusion that the prosecution had failed to prove the guilt of the accused by establishing the chain of the circumstances in a conclusive manner and the accused is entitled for the benefit of doubt and it is relevant to note that the accused is in judicial custody for more than 08 years. Consequently, in view of the discussion made supra and under the facts and circumstances of the case, the appeal deserves to be allowed. Hence, we pass the following:

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ORDER

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(i) The appeal is allowed.

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(ii) The impugned judgment of conviction and order of

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sentence dated 05-12-2016 passed by learned II Additional

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