Allowed

Ranga @ Gaviranga @ Harisha v. State of Karnataka

Karnataka HC21 Feb 2024CRL.A/1609/2018

Case brief

AI extract

What is this about?

Murder conviction of two appellants based on circumstantial evidence was reviewed. Except motive, all circumstances failed scrutiny: dying declaration witnesses turned hostile, FIR delivery was delayed, seizures yielded nothing incriminating, CDRs lacked credibility. Convictions set aside; both appellants acquitted.

What did the court decide?

Convictions and sentences set aside; accused Nos.1 and 2 acquitted; A1 to be released forthwith, A2's bail bonds discharged, fines refunded.

Ranga @ Gaviranga @ Harisha Vs State of… — Murder and Culpable Homicide | Karnataka HC (2024)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 21^ST DAY OF FEBRUARY, 2024

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PRESENT

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THE HON'BLE MRS JUSTICE K.S.MUDAGAL

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AND

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THE HON'BLE MR JUSTICE VENKATESH NAIK T

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CRIMINAL APPEAL NO.1609/2018 (C)

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C/w

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CRIMINAL APPEAL NO.1454/2018 (C)

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CRL.A.No.1609/2018:

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BETWEEN:

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RANGA @ GAVIRANGA @ HARISHA S/O CHANDRASHEKHARA AGED ABOUT 22 YEARS R/AT VINAYA HOUSE, MUKIHITHLU BOLARA, MANGALURU PERMANENTLY RESIDING NEAR GANAPATHI TEMPLE ANDANAKERE VILLAGE, TIPATUR TALUK TUMKUR DISTRICT - 572 119 …APPELLANT

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Digitally signed by PRABHU KUMARA NAIKA Location: High Court of Karnataka

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(BY SRI R.P.CHANDRASHEKHAR, ADVOCATE)

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AND:

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STATE OF KARNATAKA BY MULKY POLICE STATION REP. BY STATE PUBLIC PROSECUTOR HIGH COURT OF KARNATAKA BANGALORE - 560 001 …RESPONDENT

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(BY SMT.SOWMYA R, HCGP)

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CRL.A.NO.1454/2018:

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BETWEEN:

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MS.SUSHMA PRESILLA D/O. STEEVAN MABEN

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AGED ABOUT 26 YEARS R/AT DOOR NO.17/18C PADUBAILU, KARNAD VILLAGE MULKY, MANGALURU TALUK D.K. DISTRICT - 574 154

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….APPELLANT

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(BY SRI C.H.JADHAV, SENIOR COUNSEL FOR SRI L SRINIVAS BABU, ADVOCATE)

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AND:

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THE STATE OF KARNATAKA THROUGH THE INSPECTOR OF POLICE MULKY POLICE STATION MULKY TALUK, D.K. DISTRICT REP. BY STATE PUBLIC PROSECUTOR HIGH COURT OF KARNATAKA BANGALORE - 560 001

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…RESPONDENT

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(BY SMT.SOWMYA R, HCGP)

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THESE CRIMINAL APPEALS ARE FILED UNDER SECTION 374(2) CR.P.C PRAYING TO SET ASIDE THE JUDGMENT OF CONVICTION DATED 02.08.2018 AND ORDER OF SENTENCE DATED 04.08.2018 PASSED BY THE VI ADDITIONAL DISTRICT AND SESSIONS JUDGE, D.K., MANGALURU IN S.C.NO.73/2014 CONVICTING ACCUSED NO.1 FOR THE OFFENCE PUNISHABLE UNDER SECTION 302 OF IPC AND ACCUSED NO.2 FOR THE OFFENCE PUNISHABLE UNDER SECTION 120B READ WITH SECTION 109 OF IPC RESPECTIVELY.

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THESE CRIMINAL APPEALS COMING ON FOR FURTHER HEARING, THIS DAY, K.S.MUDAGAL.J., DELIVERED THE FOLLOWING:

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JUDGMENT

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These appeals arise out of the judgment and order of conviction and sentence passed against the appellants in S.C.No.73/2014 on the file of VI Additional District & Sessions Judge, D.K., Mangalore.

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The appellant in Crl.A.No.1609/2018 was accused

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No.1 and the appellant in Crl.A.No.1454/2018 was accused No.2 in S.C.No.73/2014. For the purpose of convenience, the parties are referred to henceforth according to their ranks before the trial Court.

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By the impugned judgment and order, the trial Court has convicted accused No.1 for the offence punishable under Section 302 of IPC and accused No.2 for the offence punishable under Section 120B of IPC. Further the trial Court has sentenced accused Nos.1 and 2 for various terms of imprisonment and fine as per the table below:

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Sl. No.	Rank of the party	Offence u/s	Sentence	Fine Amount in Rs.	Default sentence
1	A1	302 of IPC	Imprisonment for life	25,000/-	SI of 2 months
2	A2	120B r/w 109 of IPC	Imprisonment for life	25,000/-	SI of 2 months

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The case of the prosecution in brief is as follows:

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(i) That accused No.1 was working as Driver in

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MPHASIS Company situated in Mangalore town. Accused No.2 was also working in the same Company. Earlier accused No.2 and the victim Avinash were loving each other. After accused No.2 came in contact with accused No.1, she fell in love with

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him and started distancing Avinash. Avinash started pressing accused No.2 to continue their relationship. On 31.03.2014 at about 6.15 p.m. Avinash entered MPHASIS factory premises to discuss with accused No.2 to resolve the issue.

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(ii) PW.12 Vidyaranya Kollipalu, H.R.Manager of MPHASIS factory filed the complaint as per Ex.P17 before PW.11 the Station House Officer of Mangalore South Police. PW.11 secured Avinash before him and enquired him. Avinash gave undertaking/statement as per Ex.P18 before him. Accordingly the said case in N.C.R.No.249/2014 was closed by issuing endorsement Ex.P19 dated 31.03.2014.

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(iii) Being irritated by that, accused No.2 conspired with accused No.1 to eliminate Avinash. In execution of such conspiracy, on 01.04.2014 at 4.45 a.m. when Avinash was traveling on his motorbike bearing No.KA-19-EH-7744 near Pavanje bridge within the limits of Mulki Police Station, accused No.1 followed him in Tata Sumo bearing No.KA-19D-7939, hit him and caused him fatal injuries. PW.2 passing there saw the injured Avinash. He secured 108 Ambulance.

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(iv) PW.3 the driver and PW.4 the staff-nurse in the Ambulance shifted the injured to Mangala Hospital, Mangalore where PWs.26 and 28 treated him. Avinash revealed to PW.2

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implicating accused No.1 as the assailant. Avinash succumbed to the injuries on 01.04.2014 at 7.15 a.m. On the information given by Ambulance staff, PW.1 father of Avinash filed the complaint as per Ex.P1 before PW.27 the Police Inspector of Mulki Police Station.

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(v) Based on Ex.P1, PW.27 registered first information report as per Ex.P30. During investigation, he arrested accused Nos.1 and 2, recorded the voluntary statement of accused No.1. He also seized the clothes of the deceased, Tata Sumo vehicle and cell phone of accused No.2 under mahazar, conducted the inquest mahazar, subjected the dead body for postmortem examination, collected CDRs, subjected the incriminating articles to FSL examination, collected FSL reports, Postmortem reports, etc and filed the charge sheet.

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The trial Court on hearing the parties, framed the

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charges against accused Nos.1 and 2 for the offence punishable under Section 302 read with Section 34 of IPC and Section 120B read with Section 34 of IPC. Since the accused denied the charges, the trial was conducted. In support of the case of the prosecution, PWs.1 to 28 were examined and

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Exs.P1 to P39 and MOs.1 to 9 were marked. After examination of the witnesses, accused No.2 filed her defence statement. They did not lead any defence evidence. However, during the course of evidence of PW.7, portion of his statement under Section 161 of Cr.P.C. was marked as Ex.D1.

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The trial Court on hearing the parties by the impugned judgment and order, convicted accused No.1 for the offence punishable under Section 302 of IPC and accused No.2 for the offence punishable under Section 120B of IPC and sentenced them to imprisonment and fine as aforestated. The trial Court held that though the case was based on circumstantial evidence, the circumstances set up by the prosecution were proved beyond reasonable doubt.

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Submissions of Sri R.P.Chandrashekhar, learned Counsel and Sri C.H.Jadhav, learned Senior Counsel appearing for Sri L Srinivas Babu, learned Counsel on record for accused Nos.1 & 2 respectively:

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There were no direct witnesses to the incident.

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The case was based on the circumstantial evidence. When the case is based on circumstantial evidence, the prosecution has to prove all the circumstances set up by it beyond

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reasonable doubt. The chain of circumstances must be so complete to point to the only hypothesis of guilt of the accused. If there is any break in the chain of circumstances, the accused is entitled to the benefit of the same and consequently the acquittal. In the present case, the whole case of the prosecution was based on the dying declaration said to have been made by the deceased before PWs.2 to 4. They did not support the prosecution version. As per the evidence of PW.6 he allegedly last sighted the deceased on his motorcycle and the accused in Tata Sumo vehicle which went ahead, thereafter the deceased left the place and went in the same direction. Though Tata Sumo vehicle was allegedly seized under Ex.P15, there was nothing incriminating in the said material. That did not connect accused No.1 in any way to the crime. So far as accused No.2, the prosecution connected her to the crime on the basis of the voluntary statement given by her regarding the phone conversation between herself and Avinash. The SIM which was allegedly seized under Ex.P14 did not belong to accused No.2. CDRs as per Exs.P38 and P39 were not supported by certificate as required under Section 65B of the Indian Evidence Act, 1872 (‘the Evidence Act’ for short). Even

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assuming that the motive circumstance set up by the prosecution was proved, that alone is not sufficient to connect the accused to the crime. That was only against accused No.2 and not against accused No.1. The motive is double-edged weapon that can be used by the complainant party against the accused to take revenge. The trial Court ignored that all the circumstances were not proved, more particularly the material circumstances like dying declaration, evidence regarding conspiracy and conversation between accused No.2 and the deceased. The trial Court based the conviction on the confessional statement of accused No.1 which was hit by Section 25 of the Evidence Act. Therefore the impugned judgment and order of conviction is liable to be set aside.

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In support of their submissions, they rely on the judgment in Kamal v State (NCT of Delhi)¹ .

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Submissions of Smt.Sowmya, learned HCGP for the State:

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Though the case was based on the circumstantial evidence, all the circumstances set up by the prosecution were established by cogent and consistent evidence. As per PW.6 he sighted Avinash coming on his motorbike bearing

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1 2023 SCC Online SC 933

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No.KA-19-EH-7744 and parking the same by the road side

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near check post, followed by the Tata Sumo vehicle of accused No.1 and that moving forward overtaking Avinash. He says Avinash also left the said place and soon thereafter Avinash was found with history of accident. The evidence of PWs.1, 5, 11, 12 and 14 established beyond reasonable doubt that accused No.2 was in love with Avinash and thereafter she started distancing him and he picked up quarrel with her. Soon after the incident, Avinash died in an unnatural manner. Exs.P38 and P39 the CDRs coupled with the seizure of cell phone of accused No.2 under Ex.P14 show that she had called Avinash and accused No.1 on the previous day. On such phone conversations, they planned murder and that was executed. The CDRs Exs.P38 and P39 were admitted in evidence during the course of evidence of PW.27 without objection. Therefore it is not open to the accused to raise objection that the same is hit by Section 65B of the Evidence Act. The evidence of PW.26 the doctor shows that when Avinash was brought to the hospital, he was conscious. Therefore he giving dying declaration before PWs.2 to 4 is probabilized. PWs.2 to 4 turning hostile has not dent the case of the prosecution. The trial Court on appreciating all the

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evidence in judicious manner has convicted and sentenced the accused. The same does not warrant interference of this Court. In support of her submissions, she relies on the judgment in Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantyal² .

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Analysis

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Summary of the admitted facts which are already discussed above is as follows:

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(i) That accused No.1 was working as driver and accused No.2 was working as customer support officer during relevant time in MPHASIS Company. PW.1 is the father of the deceased Avinash. On 01.04.2014 at about 6.10 a.m. Avinash was brought to Mangala Hospital, Mangaluru with a history of accident.

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(ii) PW.26-Ganapathi.P, the doctor of Mangala Hospital first treated Avinash and on his requisition, PW.28Ullas Shetty the Medico Legal consultant doctor came to the said hospital at 6.30 p.m. and joined the treating team. Avinash succumbed to the injuries on 01.04.2014 at 7.15 a.m.

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2 (2020) 7 SCC 1

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(iii) Regarding the incident, PW.1 filed complainant Ex.P1 before PW.27 and on that basis, first information report Ex.P30 was registered in Crime No.61/2014 against accused No.1. Ex.P30 shows that the first information report was delivered to the Magistrate on 01.04.2014 at 7.30 p.m.

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There were no eyewitnesses to the incident. The case was based on circumstantial evidence. The circumstances relied on by the prosecution are as follows:

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(i) Motive – That accused No.2 was in love with Avinash earlier, later abandoning him, she started affair with accused No.1. Disliking that Avinash started making galata against accused No.2. Therefore accused Nos.1 and 2 conspired to commit his murder;

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(ii) PW.6 the police constable who was working in checkpost saw the deceased and accused No.1 together;

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(iii) Dying declaration said to have been made by the deceased before PWs.2 to 4;

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(iv) Seizure of TATA Sumo bearing No.KA.19-D-7939 at the instance of accused under Ex.P15;

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(v) Seizure of mobile phone of accused No.2 on the basis of her voluntary statement under Ex.P14;

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(vi) CDRs Exs.P38 and 39; and

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(vii) Evidence of official witnesses.

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It is settled law that when the case is based on circumstantial evidence, all the circumstances relied on by the prosecution shall be established by cogent and consistent evidence. How the Court has to appreciate the evidence in cases involving the crime based on circumstantial evidence was explained elaborately by the Hon’ble Supreme Court in Kamal’s case referred to supra relying on its earlier judgment in Sharad Birdhichand Sarda Vs. State of Maharashtra

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[ (1984) 4 SCC 116] and Shivaji Sahabrao Bobade Vs. State

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of Maharashtra [(1973) 2 SCC 793] . Para Nos.17 and 18 of the said judgment which are material for the purpose of this case read as follows:

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“17. We may gainfully refer to the following observations of this Court in the case of Sharad Birdhichand Sarda (supra):

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"151. It is well settled that the prosecution must stand or fall on its own legs and it cannot derive any strength from the weakness of the defence. This is trite law and no decision has taken a contrary view. What some cases have held is only this: where various links in a chain are in themselves complete, then a false plea or a false defence may be called into aid only to lend assurance to the court. In

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other words, before using the additional link it must be proved that all the links in the chain are complete and do not suffer from any infirmity. It is not the law that where there is any infirmity or lacuna in the prosecution case, the same could be cured or supplied by a false defence or a plea which is not accepted by a court.

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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:

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

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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 : 1973 SCC (Cri) 1033: 1973 Crl LJ 1783] where the observations were made: [SCC para 19, p. 807: SCC (Cri) p. 1047]

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"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."

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(2) the facts so established should be consistent

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only with the hypothesis of the guilt of the accused,

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that is to 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

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except the one to be proved , and

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(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.

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

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18. It can thus be seen that this Court has held that the circumstances from which the conclusion of guilt is to be drawn should be fully established. It has been held that the circumstances concerned "must or should" and not "may be" established. It has been held that there is not only a grammatical but a legal distinction between "may be proved" and "must be or should be proved". It has been held that the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty . It has been held that the circumstances should be of a conclusive nature and tendency and they should exclude every possible hypothesis except the one sought to be proved, and that there must be a chain of evidence so complete so as not to leave any reasonable ground for the conclusion consistent with the innocence of the

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accused and must show that in all human probability the act must have been done by the accused.

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(Emphasis supplied)

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In the light of the principle reiterated in the above judgment, the prosecution has the burden to establish the guilt of the accused beyond all reasonable doubt. Mere suspicion does not take place of proof. In the light of that, this Court has to examine whether the circumstances established by the prosecution were proved by cogent and consistent evidence.

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Reg. Motive:

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Motive for the offence according to the prosecution was the broken love affair between accused No.2 and the deceased. PW.1 the father of the deceased and the complainant, though speaks about the overt acts of the accused in the crime, he is hearsay witness. He speaks about accused No.2 visiting his house along with the deceased and they having an affair. PW.5 is the younger brother of the deceased. The evidence of PW.12, the H.R Manager of MPHASIS Company coupled with the evidence of PW.11 the then Head Constable of Mangaluru South police station and PW.14 the then Security Supervisor in MPHASIS Company

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shows that on 31.03.2014 at 6.15 p.m. accused Nos.1 and 2

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had checked into the company premises and thereafter Avinash also had entered into the premises of the company escaping the security check. PW.14’s evidence further shows that Avinash insisted to meet accused No.2, then PW.12 informed the police regarding the incident, PW.12 gave complaint and PW.11 has registered the same in NCR No.249/2014 as per Ex.P20. PW.11 secured Avinash, enquired, warned and took undertaking as per Ex.P18 from Avinash and released him. Regarding that he issued endorsement as per Ex.P19 to PW.12 and PW.21.

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Ex.P21 is the endorsement given by accused No.2 to PW.12 about she reaching home safely. Neither PWs.12 and 14 the employees of MPHASIS nor PW.11 the police Head constable had any enmity against Avinash or against accused Nos.1 and 2. There was no reason to disbelieve their evidence about Avinash trespassing into the factory and some clashes having taken place between Avinash and accused No.2 in the factory premises etc.,

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As rightly pointed by Sri C.H.Jadhav, learned Senior Counsel, motive circumstance alone is not sufficient to

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convict the accused. It is settled law that the motive circumstance can be used as weapon by both rival parties against each other. Therefore, the other circumstances set up by the prosecution have to be proved and motive is only a corroborative circumstance.

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Reg. Last seen circumstance:

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To prove this circumstance, the prosecution relied on the evidence of PW.6 Police Constable of Surathkal Police Station. According to him, during the intervening night of 31.03.2014 and 01.04.2014 at 10 p.m. and 6 a.m. he was posted at Mukka Checkpost. At 4.00 a.m. he found Avinash coming on motorcycle No.KA-19-EH-7744 towards Checkpost, Avinash stopped his vehicle for sometime kept talking on his phone. At 4.45 a.m. TATA Sumo No.KA-19-D7939 crossed the place where Avinash was sitting and Avinash followed the same. Later PW.6 came to know about Avinash being hit by accused etc.,

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Of course, the fact of accused being the driver in TATA Sumo No.KA-19-D-7939 is not disputed by accused No.1. Further, the evidence of PW.15-registered owner of the TATA Sumo deposed that the MPHASIS company had hired

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the said vehicle for its use and accused No.1 was the driver of the said vehicle between October 2013 and 01.04.2014. Even according to PW.6, the accused and the deceased did not go together. According to him, even after accused No.1 passing from the toll, the deceased sat there for 45 minutes. PW.6 in his cross-examination states that he did not enquire the bike rider on suspicion why he was sitting there for 45 minutes. He did not inform the jurisdictional Police about the said person. In the cross-examination, he states that he did not stop the Tata Sumo vehicle nor he recorded the registration numbers of all the vehicles which passed there. He says he wrote numbers of only few vehicles. He admits that the said register was not collected from him. He himself admits that many number of vehicles pass in the morning hours.

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Neither accused No.1 nor Avinash were previously acquainted with PW.6. Therefore, how he identified those persons were not explained. Therefore, his evidence regarding he sighting the deceased Avinash and accused No.1 at Mukka Checkpost was not free from doubts. As per his evidence accused No.1 and deceased did not leave

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together. Therefore it cannot be called as circumstance of the accused and the deceased having been last seen together. To accept last seen theory, there should be proximity of time and place of occurrence. The prosecution has not explained what was the distance between Mukka Checkpost and scene of offence i.e., Pavanje Bridge. Therefore, the evidence of PW6 was not helpful to the prosecution to hold that the accused and the deceased were last seen together near the seen of offence soon before the victim was found with the injuries.

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Reg. Dying declaration:

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According to the prosecution, soon after accused No.1 hitting the deceased by the Tata Sumo vehicle, PW.2 came there and injured Avinash revealed to him about accused No.1 hitting him to cause his death, then PW.2 secured 108 Ambulance in which PWs.3 and 4 were deployed as driver and staff nurse respectively. PWs.3 and 4 on arrival tended the victims injuries. He revealed to them also about accused No.1 hitting him with Tata Sumo vehicle.

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Though PWs.2 to 4 admitted about PW.2 sighting the victim lying on the road and he summoning the

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ambulance and PWs.3 and 4 coming in the ambulance and shifting the victim to Mangala Hospital, they turned hostile about the victim giving the dying declaration before them implicating accused No.1. Nothing worth was elicited in their cross-examination to show that in anyway they were interested with the accused, therefore, they turned hostile.

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PW.26 the Doctor who first saw the victim in Mangala Hospital states that the victim was brought at 6:10 a.m. to the hospital and though the victim was conscious, but was not in a position to speak. He further states that, he does not know whether the victim was brought in 108 Ambulance or private Ambulance. He further states that whenever a patient is brought in 108 ambulance, the signature of duty doctor while admitting to the hospital is taken in ambulance register, but his signature is not taken to such register.

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PW.28 another Doctor who treated the victim in the hospital states that on receiving the phone call, he rushed to the hospital at 6:30 a.m., at that time, the victim was unconscious. As per the prosecution itself, the victim died at 7:15 a.m. Ex.P34 Death Summary issued by Mangala

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Hospital shows that the victim was brought to the hospital with the history of road traffic accident at 5:00 a.m. on 01.04.2014 near Surathkal and he had suffered injury to head, blunt injury to chest and abdomen. Ex.P34 further states that the patient was brought with severe respiratory distress and oral bleeding, the victim was gasping, conscious and delirious. Therefore, it becomes doubtful whether the victim was in a position to speak and make any statement before PWs.2 to 4. Thus, the dying declaration set up by the prosecution was not proved.

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Foundation for impleading accused No.1 in the

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case was said dying declaration before PWs.2 to 4 because PW1-complainant and father of the deceased, PW.5-brother of the deceased were not eyewitnesses. According to PW.1, it was PWs.2 and 3 who revealed about accused No.1 causing the accident. When their evidence fails, the evidence of PW.1 and the complaint implicating accused No.1 becomes doubtful. In that context, the delay in filing the complaint also assumes significance.

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As per PW.1, he came to know about the incident on 01.04.2014 at 6:15 a.m. itself. The victim died at 7:15

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a.m. The complaint is purportedly filed at 2:30 p.m. on that

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day. In the complaint Ex.P1, absolutely, there is no explanation regarding the delay in filing the complaint. Ex.P30 the first information report shows that the same is purportedly registered at 2:30 p.m. The endorsement of the Magistrate in Ex.P30 shows that it was delivered to the Court at 7:30 p.m. PW.19 Police Constable who carried the FIR to the Magistrate, says that it was handed over to him on 01.04.2017 at 3:00 p.m. He says that he went to Moodabidre Magistrate Court to deliver the FIR. The Magistrate was on leave, therefore, he went to Mangaluru and delivered to the First Additional Civil Judge and J.M.F.C., Mangaluru at 7:30 p.m. in his Home Office. Therefore, there was delay. There was nothing to show that the jurisdictional Magistrate was on leave and the Investigating Officer does not say that he recorded the statement of PW.19 regarding the delay nor collected any material regarding the Magistrate being on leave, etc. There is no endorsement in the FIR that the same is received by the in-charge Magistrate. Such delay in delivering the FIR supports the version of the accused that since on the previous date, Avinash was summoned to the Police Station at the instance of accused No.2 and he was

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made to give undertaking as per Ex.P18, accused Nos.1 and 2 are falsely implicated in the case. Thus, the circumstance of dying declaration was not established by the prosecution by acceptable evidence.

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Reg. Seizure of Tata Sumo No.KA-19-D-7939 and cell phone of accused No.2:

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According to the prosecution on the voluntary statement of accused No.1, the Investigating Officer seized Tata Sumo No.KA-19-D-7939 under mahazar-Ex.P15 in the presence of PW.8. Even as per the evidence PWs.8 and 15, Tata Sumo vehicle was seized from the house of accused No.1. There was no dispute that he was driving the said vehicle or was in-charge of the said vehicle which was owned by PW.15. Nothing incriminating was found in the said Tata Sumo vehicle to connect accused No.1 to the crime. It is not the case of the prosecution that there were bloodstains of the deceased or belongings of the deceased in the said vehicle

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and they were seized. Therefore, the said seizure circumstance is of no help to connect accused No.1 to the crime.

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Reg: CDR’s Exs.P38 & 39.

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According to the Investigating Officer, accused

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No.2 gave confessional statement as per Ex.P37 before him revealing that deceased Avinash had given her Airtel sim card No.9845684160 and accused No.1 had given her another Airtel sim card No.9535534516 and she had inserted Sim card given by accused No.1 in her Sony Ericsson mobile phone and on the basis of such voluntary statement, the mobile phone-MO.4, SIM card MO.5, broken sim card - MO.6 were seized under Ex.P14 in the presence of PWs.7 and 16. It is no doubt true that PWs.7 and 16 supported the seizure, but their evidence goes to show that they were the friends of the deceased. Further, the Investigating Officer did not collect the records to show who had purchased those Sim cards.

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PW.27 in his cross-examination admits that he has not collected the records to show who were the registered consumers of those Sim cards. Therefore, seizure under Ex.P14 is of no help to the prosecution to show that the said phone belonged to accused No.2 and MOs.4 to 6 were seized from her custody or at her instance.

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According to the prosecution, accused No.2, using those phones, called Avinash to come to the scene of offence the next morning and she also called accused No.1 and both of them conspired to commit murder of Avinash by securing him to the said place. To substantiate that, the prosecution relied on Exs.P38 and P39-Call Details Records. In Exs.P38 and P39, there is no computer generated entry to show that those calls were made to which phone number. The caller's details and the receiver's details are also not found in them.

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PW.27 the Investigating Officer in his crossexamination admits that he has not collected any records to show in whose names those sim cards were standing and Exs.P38 and P39-CDRs are related to whom. Ex.P38 purportedly is call detail records of the phone of Avinash. Investigating Officer does not explain from whose possession he secured the phone of Avinash. Further, PWs.1 and 5 the father and brother of the deceased do not say that they handed over the phone to the Investigating Officer for the purpose of collecting the CDRs or they collected the CDRs and handed over to the Investigating Officer. In Exs.P38 and P39 there is nothing to show to whom the phone numbers mentioned therein belonged to. Therefore, Exs.P38 and P39

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suffer credibility and they were of no use to the prosecution to connect accused No.2 to the crime.

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The above discussion goes to show that except

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the circumstance of motive, the prosecution failed to establish all other circumstances relied on by it. The trial Court contrary to the evidence of PWs.2 to 4 holds that the dying declaration of the deceased before them was proved. Similarly, the finding of the trial Court that other circumstances (except the motive circumstance) was proved is contrary to the evidence on record. Shockingly, the trial Court to connect the accused to the crime relies on the alleged voluntary statements-Ex.P36 and P37 of accused Nos.1 and 2 respectively which are inadmissible in view of Section 25 of the Evidence Act. The other act which shows complete non-application of mind is that the trial Court charged accused Nos.1 and 2 for the offences under Section 120B apart from Section 302 read with Section 34 IPC. Further, the trial Court, under the impugned judgment and order, convicted accused No.1 alone for the offence punishable under Section 302 IPC and accused No.2 for offence punishable under Section 120B. However, while

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sentencing them, the trial Court sentenced accused No.1 for

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the offence punishable under Section 302 IPC and accused No.2 for the offence punishable under Section 120B read with Section 109 IPC when there was no charge for the offence punishable under Section 109 IPC. Therefore, the judgment and order of conviction being contrary to the evidence on record and the applicable law is perverse and liable to the set aside. Hence, the following:

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O R D E R

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i. The appeals are allowed.

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ii. The impugned judgment and order of conviction and sentence passed by the trial Court against the appellants-accused Nos.1 and 2 are hereby set aside.

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iii. The appellants-accused Nos.1 and 2 are acquitted of the charges for the offences punishable under Section 302 read with Section 34 IPC and Section 120B read with Section 34 IPC respectively. Accused No.1 shall be set at liberty forthwith, if his detention is not required in any other case.

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