The State of Karnataka Vs Kathik Kumar

KARTHIK KUMAR S/O NARAYANASWAMY AGED ABOUT 27 YEARS STUDENT, NOW AGRICULTURIST R/AT SANNEYARANAPPANAHALLI VILLAGE THOTADAMANE, ANNESHWARA POST KASABA HOBLI, DEVANAHALLI TALUK – 562 110 …RESPONDENT

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(BY SRI CHANDRASHEKAR R P., ADVOCATE)

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THIS CRIMINAL APPEAL IS FILED UNDER SECTION 377 CR.P.C PRAYING TO ENHANCE THE SENTENCE IMPOSED ON 10.08.2016 BY V ADDITIONAL DISTRICT AND SESSIONS JUDGE, DEVANAHALLI IN S.C.NO.15011/2015 FOR THE OFFENCE PUNISHABLE UNDER SECTION 302 OF IPC.

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CRL.A NO.1813/2016:

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BETWEEN:

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SRI KARTHIK KUMAR S/O NARAYANASWAMY AGED ABOUT 25 YEARS STUDENT, NOW AGRICULTURIST R/AT SANNEYARAPPANAHALLI VILLAGE THOTADAMANE, ANNESHWARA POST KASABA HOBLI, DEVANAHALLI TALUK BENGALURU RURAL DISTRICT-562 110 ...APPELLANT

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(BY SRI CHANDRASHEKAR R P, ADVOCATE)

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AND:

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STATE OF KARNATAKA BY DEVANAHALLI POLICE STATION DEVANAHALLI, BANGALORE RURAL DISTRICT REP. BY SPP, HIGH COURT OF KARNATAKA BANGALORE-560 001 ...RESPONDENT

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(BY SRI VIJAYA KUMAR MAJAGE, SPP-II)

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THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374(2) CR.P.C PRAYING TO SET ASIDE THE JUDGMENT AND ORDER DATED 10.08.2016 PASSED BY V ADDITIONAL DISTRICT AND SESSIONS JUDGE, DEVANAHALLI IN S.C.NO.15011/2015 - CONVICTING THE APPELLANT/ACCUSED FOR THE OFFENCES PUNISHABLE UNDER SECTIONS 201 AND 302 OF IPC.

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THESE CRIMINAL APPEALS COMING ON FOR FURTHER HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:

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CORAM: HON'BLE MRS. JUSTICE K.S.MUDAGAL AND HON'BLE MR. JUSTICE M.G.S. KAMAL

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ORAL JUDGMENT

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(PER: HON'BLE MRS. JUSTICE K.S.MUDAGAL)

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These two appeals arise out of judgment and order dated 10.08.2016 in S.C.No.15011/2015 passed by V Additional

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District and Sessions Judge, Devanahalli, Bengaluru Rural District.

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By the judgment and order, the trial Court has convicted the accused for the offences punishable under Sections

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201 and 302 of IPC and sentenced him as follows:

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Sl. No.	Offences under Sections	Sentence	Fine Amount in Rs.	Defau Senten	lt ce
1	201 of IPC	RI for five years	20,000/-	SI for months	six
2	302 of IPC	RI for ten years	50,000/-	RI for year	one

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Challenging the order of conviction and sentence, the accused has preferred Crl.A.No.1813/2016. Questioning the adequacy of the sentence, the State has preferred Crl.A.No.112/2017. For the purpose of convenience, the parties are referred to henceforth according to their ranks before the trial Court.

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Case of the prosecution is that the accused was in financial distress. Therefore, he planned to rob mobile phones from the deceased. It was further alleged that to execute that plan, on 31.10.2014 he phoned the victim to meet him in Devanahalli. Accordingly victim went with accused in his Suzuki Access scooter bearing registration No.KA-02/HZ/4682. Then

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accused took him to Mayuri Dhaba, they had dinner there and at 9:30 p.m., they left the Dhaba. The accused took the victim to Akkupete Forest area, then assaulted him with chopper/MO.11, committed his murder, robbed his Sony Xperia mobile phone, hard disk and wallet. He abandoned the motorcycle at service road. To screen the evidence of offence, he burnt the bag, wallet and manual book which were in possession of the victim.

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On hearing the parties, the trial Court framed the charges against the accused for the offences punishable under Sections 201 and 302 of IPC. The accused denied the charges and claimed trial. Therefore, trial was conducted.

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In support of the case of the prosecution, PWs.1 to 27 were examined, Exs.P1 to P75 and MOs.1 to 24 were marked. The accused was examined under Section 313 Cr.P.C. He did not lead any defence evidence. However, by-way of confrontation to the prosecution witnesses, Exs.D1 to D4 were marked on his behalf.

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The trial Court on hearing the parties, by the impugned judgment and order, convicted the appellant/accused and sentenced him as aforesaid. The trial Court held that though

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the case is based on circumstantial evidence, the prosecution has established the circumstances brought against the accused by acceptable evidence. Though the Trial Court convicted the accused for the offence punishable under Section 302 IPC, has sentenced him for imprisonment of 10 years. The State is in appeal only on the question of correctness of sentence.

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Heard both sides.

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Submissions of Sri Chandrasekhar R.P, learned Counsel for the accused:

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9(i) There were no direct witnesses to the incident. The case was solely based on circumstantial evidence. The prosecution had the burden to prove all the circumstances by cogent and consistent evidence. But the prosecution failed to establish the circumstances relied on by it. The accused was connected to the crime based on call detail records. But for Exs.P71 to P73 certificates as required under Section 65B of the Indian Evidence Act, 1872 (for short ‘the Evidence Act’) were not produced. The trial Court committed error in admitting digital evidence without required certificate under Section 65B of the Evidence Act. The nodal officer of the concerned service providers was not examined.

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(ii) So far as last seen circumstance, prosecution relied

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on the evidence of PWs.8, 13 and 18 i.e. waiter and Manager of Mayuri Dhaba and the Forest Guard of Devanahalli Forest Office respectively and CCTV footages/Ex.P24, photographs/Exs.P30 to P41. Again, Exs.P24, P30 to P41 being the secondary evidence were not proved in accordance with law.

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(iii) The evidence of PWs.8 and 13 regarding identification of the accused and the deceased for the last seen circumstance was not cogent and consistent. Similarly, PW.18/Forest Guard speaks that he found two persons crossing on white colour Suzuki Access motor vehicle. He had not seen the accused and deceased previously. No Test Identification Parade was conducted. Therefore, their evidence for last seen circumstance was not sufficient. Further according to the prosecution, the accused and deceased were seen together by PWs.8, 13 and 18 at around 9:00 p.m. on 31.10.2014. The victim was found dead on 01.11.2014 at 5:00 p.m. There was no proximity of time and place between the said last seen evidence and the victim found dead. In this circumstance, such evidence regarding last seen theory cannot be accepted.

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(iv) So far as circumstance of recovery of the

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incriminating materials under Exs.P21 and P28, the evidence of PWs.7, 11 and 12 was not consistent. There were several material contradictions in their evidence regarding time and place of the seizure. Seizure of Suzuki Access scooter of the deceased was allegedly done at 02.11.2014 between 10:00 p.m. and 10.30 p.m. under mahazar/Ex.P28. MOs.7 to 9, 11 to 19 were allegedly seized at the instance of the accused under mahazar Ex.P21 on 03.11.2014 between 01.00 p.m. and 04.30 p.m. from the house of the accused. But as per evidence of PW.3, they were seized in the police station. That creates doubt about the seizure and the mahazar under Exs.P21 and P28. PW.12 says that both the mahazars were conducted on the same day. But as per Exs.P21 and P28, they were conducted on different dates namely 03.11.2014 and 02.11.2014 respectively. If those articles were seized under those mahazars at the spots shown by the accused on packing and sealing them, how they could be shown to the aforesaid witnesses in the police station, was also not explained. Therefore, the theory of seizure is shrouded with suspicion and the trial Court was not justified in relying on the same. So far as FSL report/Ex.P68, it was only

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shown that on articles sent ‘O’ group blood was found. The further analysis whether the blood group was ‘O’ positive or negative, was not stated in that regard.

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In support of his submissions, he relies upon the

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following judgments:

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i. Ravinder Singh v. State of Punjab¹

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ii. Randeep Singh Alias Rana v. State of Haryana² iii. Subramanya v. State of Karnataka³

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iv. Bijender v. State of Haryana⁴

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v. Rajesh v. State of M.P⁵ vi. Niranjan Panja v. State of W.B⁶ vii. Jabir v. State of Uttarakhand⁷

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viii. Padman Bibhar v. State of Odisha⁸

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ix. State v. Mahender Singh Dahiya⁹

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x. State of Rajasthan v. Hanuman¹⁰

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xi. Prakash v. State of Karnataka¹¹

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Submissions of Sri Vijaykumar Majage, learned SPP-II along with Smt.Sowmya.R, learned HCGP:

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11(i) Though the prosecution case was based on

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circumstantial evidence, prosecution has successfully established

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1 (2022) 7 SCC 581

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2 2024 SCC Online SC 3383

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3 (2023)11 SCC 255

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4 (2022) 1 SCC 92

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5 (2023) 15 SCC 521

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6 (2010) 6 SCC 525

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7 (2023) 16 SCC 111

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8 2025 SCC Online SC 1190

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9 (2011) 3 SCC 109

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10 (2025) SCC Online SC 1387

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11 (2014) 12 SCC 133

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all the circumstances beyond reasonable doubt. Though as per Section 65B of the Evidence Act, certificate was not produced with regard to CDRs and CCTV footages, that does not go to the root of the matter as other circumstances were established beyond reasonable doubt.

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(ii) The fact of PWs.8 and 13 being staff of Mayuri Dhaba was not disputed. There was no reason for PWs.8 and 13 to falsely depose against the accused. They identified accused and deceased. PW.18/Forest Guard is an independent witness. He also had spoken about he sighting accused and deceased together going on the motorcycle. Therefore, the Trial Court was justified in relying on their evidence regarding last seen circumstance. The evidence of PWs.7 and 12 regarding recovery under Ex.P21 at the instance of accused was satisfactory. PWs.3 and 4 were not the witnesses to the seizure mahazar. Therefore, discrepancies in their evidence, if any regarding place of seizure and time of seizure is not material.

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So far as recovery under Ex.P28, though PW.11 turned hostile, PW.12 has fully supported the prosecution version. Evidence of PWs.16 and 25 clearly shows that the seized mobile was passed by them to the deceased. Accused failed to

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explain how he came in possession of belongings of the deceased including mobile phone and motorcycle. Clothes of the accused and weapon were sent for FSL and FSL report says that they were all stained with ‘O’ blood group and accused failed to explain that. FSL evidence not revealing whether blood group was ‘O’ positive or negative is not much material. The evidence of PWs.1, 3, 15 and 19 shows that the deceased was trading electronic goods like cell phone and laptop. Evidence of PWs.1, 15 and 18 shows that the deceased going to meet accused, was not impeached. Judgments relied on by learned Counsel for accused are not applicable to the facts of the case.

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In support of his case, he relies on judgment of the Hon’ble Supreme Court in Balwan Singh v. State of Chhattisgarh¹² .

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On considering the submissions on both side and on examining the materials on record, the question that arises for consideration is "whether the impugned judgment and order of conviction and sentence is sustainable?"

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12 (2019) 7 SCC 781

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Analysis

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The case of the prosecution in brief was as follows:

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(i) The accused was doing cell phone business. Accused

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and deceased/M.S.Kumar were friends. Accused was facing financial problems. The deceased was also dealing in purchase and sale of computers, mobile phones and real estate. To overcome his financial difficulty, the accused planned to rob the mobile phones of the deceased. Therefore, he called the deceased on cell phone in the pretext of purchasing mobile phones. On 31.10.2014, the accused asked the deceased to come to Devanahalli along with the mobile phones which he intended to purchase. In the evening around 7:30 p.m. they went to Mayuri Dhaba situated at bypass road, Devanahalli. In the said Dhaba, they had dinner and at around 09:00 p.m. they left the said Dhaba. M.S.Kumar had brought Suzuki Access Scooter bearing registration No.KA-02/HZ/4682 belonging to PW.14 with whom his marriage was fixed. Kumar and the accused proceeded in the said scooter towards Akkupete Forest area. The accused had carried along with him the chopper/MO.11 to commit the offence. When they were proceeding near Akkupete Forest area, as planned by him, the accused assaulted

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the victim with the said chopper on his head, face and hands and committed his murder. Then he robbed the vehicle brought by the victim, his mobile phones, hard disk, wallet and the documents of the vehicle. To screen the evidence of offence, the accused burnt the bloodstained bag, wallet of the deceased and vehicle manual book. To mislead, he parked the bike near Amar Pork Hotel which situated by the side of Green Park Dhaba on BB Bypass Road.

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(ii) On 01.11.2014 at 04:00 p.m. when PW.2/Head Constable was on duty, he noticed the dead body and people assembled there. He gave a report regarding the same to PW.27/Investigating Officer as per Ex.P18. Based on Ex.P18, FIR as per Ex.P61 was registered initially against unknown persons. Spot mahazar was conducted. During spot mahazar, multiple debit cards of various Banks/Exs.P2 to P7 belonging to the deceased were seized. Based on the information available there, the family members of the deceased were secured. On the basis of information furnished by them, PW.27 examined the call details of the mobile phone of the deceased. He asked PW.26/Sub-Inspector of Police to verify the same and apprehend the suspected person. PW.26 based on the CDRs, finding the

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exchange of calls between accused and deceased, apprehended him and produced him before the Investigating Officer. PW.27 arrested the accused and recorded his voluntary statement. On the basis of his voluntary statement, the vehicle which was taken by the accused, mobile phone, weapon of offence, hard disk and bloodstained clothes of the accused were seized. On the basis of the voluntary statement, Investigating Officer visited Mayuri Dhaba and collected CCTV footages. He recorded the statements of the witnesses, subjected the seized articles to FSL examination, so also during the course of investigation, conducted inquest mahazar and on completing the investigation, filed charge sheet against the accused.

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Admittedly, there are no direct witnesses to the crime. The case was based on circumstantial evidence. The circumstances relied on by the prosecution are as follows:

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(i) That accused and deceased were last seen together; (ii) Motive: for robbing; &

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(iii) Recovery of robbed articles at the instance of the

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accused under Ex.P21, motorcycle under Ex.P28, medical and FSL evidence.

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Reg. last seen circumstance:

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To prove last seen circumstance the prosecution relied on the evidence of PW.13/ Manager in Mayuri Dhaba and PW.18/Forest Guard of Devanahalli. As already noted, the accused allegedly took the victim to Mayuri Dhaba at 8.30 p.m., they had dinner upto 9:00 p.m. and left the said place. Evidence of PWs.8 and 13 both show that the victim was not known to them earlier. Therefore, they sighting the victim was by chance.

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PW.8 in his chief examination says that after five days of accused and victim visiting Dhaba, Police came with the accused, enquired them and saw CCTV footages. He watched in CCTV footages. But in the chief examination he does not identify the victim. He only says that, on that date, accused and another person had come to Dhaba. PW.8 does not even state in chief examination that accused was known to him earlier. In para 8 of his cross examination, he states that on that day the customers had started to come to his Dhaba since 7.00 p.m. and all of them were new customers. He further states that at the time when accused said to have come there, nine tables were full with customers and they were taking orders from the customers and waiters were supplying. In such a busy schedule, how he

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specifically identified the accused and deceased is not stated by him. Further in para 13 of his cross examination referring to CCTV camara visuals, he states that the accused was not old customer. Thus it becomes clear that his alleged sighting of the accused was only on that particular day and how he could remember him after 4 or 5 days is not clarified.

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PW.13 states that police had come to their dhaba on 04.11.2014 to enquire about one customer. They had come along with the accused. Police saw the CCTV footages. It is true that in his chief examination, he says that the accused and deceased came to their Dhaba at 7:30 p.m. and left at 8:30 p.m. after having dinner and consuming alcohol. In para 10 of his cross examination he states only when the police had come with the accused, he came to know that names of accused and deceased are Karthik Kumar and Kumar. He admits that they were not the permanent customers of their Dhaba and he had not seen them prior to 31.10.2014 and 04.11.2014. He gives unequivocal admission that on 31.10.2014 he had not personally seen the accused and the deceased. Reading of his evidence shows that he identified the accused and the deceased at that point of time in Dhaba based on CCTV visuals. Further in paras

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12 and 13 of his cross examination, he states that he cannot identify the persons shown in Exs.P30 to P35 and P38 to P41.

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Reading of evidence of PWs.8 and 13 shows that they said to have identified the accused and deceased being together on that day, was based on CCTV visuals, which were allegedly drawn from the CCTV footages in the form of photographs/Exs.P30 to P41. But they were not the primary evidence and there was no certificate as required under Section 65B of Evidence Act for admitting electronic evidence produced. As noted earlier, these witnesses had no past acquaintance of accused and deceased. They say that on comparison of CCTV footages with the accused, they could identify the accused and deceased. As they had no past acquaintance with the deceased, how did they compare the photos in CCTV with the deceased for identification was not explained. Therefore, the alleged identification of the accused and deceased by PWs.8 and 13 together is not credible.

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The other important aspect of the case is that the accused said to have been connected to the crime based on the call details exchanged between the accused and deceased on the date of incident. According to the prosecution, that was also one

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of the circumstances for them being together. PW.27 in his evidence stated that on collecting the phone number of the deceased, he secured the call details/Exs.P71 to P73 and he found eight calls between the accused and deceased on 31.10.2014 between 10:45 a.m. to 7:23 p.m. The evidence of PW.27/Investigating Officer and PW.26/PSI of Devanahalli Police Station is to the effect that PW.27 asked PW.26 to secure the accused and produce before him. Accordingly PW.26 apprehended the accused on 02.11.2014 at 7.30 p.m. from his house and produced him before PW.27. On interrogation of the accused, his involvement in the crime was revealed and based on that further investigation including recoveries were conducted. Therefore, the foundation for connecting the accused to the crime is the call details as per Exs.P71 to P73. Again, the certificate as required under Section 65B of the Evidence Act was neither secured nor produced by the Investigating Officer and there was no explanation for that. Even the service provider was not examined.

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When prosecution/Investigating Officer relied on those CDRs, it was incumbent for them to show that the phones used in relation to those call details was standing in the name or

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belonged to the accused and deceased. But PW.27 in his chief examination itself states that the phone said to have been used by the deceased belonged to one Manohar. Said Manohar was not examined to show that he had handed over his SIM to the deceased.

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In para 21 of the judgment in Ravinder Singh ’s case referred to supra, the Hon'ble Supreme Court relying on its earlier larger Bench Judgment in Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantyal¹³ , has held that the certificate required under Section 65B(4) of the Evidence Act is a condition precedent to the admissibility of evidence by way of electronic record. It was further held that the secondary evidence is admissible only if led in the manner stated in Section 65B(4) of the Evidence Act. Since in this case, such certificate was not produced and the alleged identification of the accused and the deceased by PWs.8 and 13 was based on the said CCTV footages, which were without required certificate, the prosecution case regarding last seen theory with respect to PWs.8 and 13 connecting the accused to the crime based on call details fails.

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13 (2020) 7 SCC 1

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So far as PW.18, in the chief examination, he states that on 31.10.2014 at 9.00 p.m. when he was on beat duty in Akkupete Forest area, he found two persons proceeding on white Access scooter vehicle from Akkupete side to Bommavar side. For this witness also, the accused and deceased were not known to him earlier. During night hours how he identified the accused and deceased and could recollect their identities subsequently is not explained. The Investigating Officer had not conducted Test Identification Parade to get the accused identified from the aforesaid three witnesses. Therefore, it can be said without any hesitation that the last seen circumstance through the evidence of PWs.1, 8, 13 and 18 was not established by acceptable evidence.

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Reg. Motive & Recovery:

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It is the contention of the prosecution that the accused had suffered loss in his business and he was in debts. Therefore, he planned to rob mobile phones from the victim by killing him. Accordingly he had secured the victim, killed him and then robbed his mobile phone-Sony Xperia. To prove that the accused was in financial distress, the prosecution relied on the evidence of PWs.9, 10 and 24. According to the prosecution, the

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accused had borrowed loan of Rs.29,000/- and had become defaulter. PW.24/the Branch Manager of Manapuram Finance Limited, Devanahalli, in his chief examination, stated that the accused had borrowed loan of Rs.29,000/-, as on 18.01.2025 had become defaulter and had paid a sum of Rs.6,472/- on 16.10.2014 towards interest. He handed over the receipt/Ex.P57 to the police and gave the statement. PW.24 in his cross examination admits that he was not the Manager while lending loan to the accused. The person who was working as Manager at the time of lending loan and Rs.6,472/- was paid towards interest, was not examined.

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According to the prosecution under Ex.P25/the mahazar, the customer’s identity card of the accused issued by Manapuram Finance Limited was seized on the basis of his voluntary statement. PWs.9 and 10/mahazar witnesses did not support the seizure under Ex.P25 and the fact that accused pledged his jewellery and borrowed loan. The pawn broker receipt could have been seized from the said office/finance and that could have been elicited through PW.24 which is not done. Thus the fact that the accused was in financial distress was not proved.

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Prosecution had to prove whether the deceased owned or possessed mobile phone/MO.8 which was allegedly robbed by the accused on committing murder had to be established. MOs.7 to 9 were said to have been seized at the instance of accused. To prove the seizure of MOs.7 to 9, the prosecution relied on Ex.P21 and the evidence of PWs.7 and 12. As per the prosecution itself the prosecution was also required to establish that MO.8 did not belong to the deceased. It was borrowed by somebody else. According to the prosecution, MO.8/mobile phone belonged to PW.25 and he passed it on to PW.16. PW.16 inturn passed on the same to the deceased. According to PW.25 the said phone belonged to one Bharath and he had handed over that to Suhas. But Bharath and Suhas were not examined.

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PW.16 says that Suhas had given phone to him and the deceased had asked him that if he has any second hand mobile phone and he is interested to buy. Since Suhas had offered to sell the phone, he informed the same to victim Kumar and Kumar had agreed to purchase the same. Accordingly phone was handed over to Kumar. Kumar had not paid him the money. PW.16 says that Kumar had taken him to ATM to pay the money,

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but ATM was closed. Therefore, the consideration for the mobile phone was not paid to Suhas. PW.16 says then he came to know about the death of Kumar. Thus it becomes clear that phone belonged to neither PW.25 nor PW.16. The material witnesses were Suhas and Bharath and they were not examined. Nothing was produced to show who was the true owner of the mobile phone. The dealer of the mobile phone was also not examined. Therefore deceased possessing that phone or owning that phone was not established by acceptable evidence.

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MOs.7 to 9/belongings of the deceased, MO.11/weapon of the offence, MOs.12 to 19/ clothes of the accused and the deceased which were concealed by the accused were allegedly seized on 03.11.2014 between 1:00 p.m. to 4:30 p.m. in the presence of PWs.7, 11 and 12. PW.11 did not support the proceedings under Ex.P21. PW.7 does not say about the timings in his chief examination and PW.12 in his crossexamination states that the police started packing and sealing all seized articles in the police station at 8:00 p.m. to 8:30 p.m. and they completed the process and took his signature in the police station at 11:45 p.m.

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Though PW.3 is not the witness to mahazars, in his chief examination itself he states that police seized chopper, mobile phone, two wheeler, ashes of documents, clothes of the accused and computer hard disk in their presence in the police station on 04.11.2014.

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When Investigating officer says that accused was arrested on 02.11.2014, PW.3, prosecution’s own witness says that the accused was arrested on 04.11.2014 and was subjected to interrogation in their presence in the police station and then the police took the accused saying that they are producing him before the Magistrate. He further states that the police showed him CD pouch, traces of ash, hard disk, Sony phone, chopper and the clothes of the accused in the police station on 04.11.2014 and he had not gone to the places of seizure of those articles or material objects.

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PW.4/Srikanth, prosecution’s own witness in para 10 of his chief examination states that on 04.11.2014 at 3.00 p.m., the police informed him over phone that the accused is arrested and he has to come to the police station. When he went to the police station, there were three to four persons, then accused was shown to him. He further states that the police showed him

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HC-KAR

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the chopper used for commission of offence, CD pouch, hard disk and Sony mobile phone. If the articles were seized on 03.11.2014 between 01:00 p.m. and 04:30 p.m., packed, seized and sealed, then how they could be shown to these witnesses in the police station was not explained.

¶176

Learned SPP-II tried to contend that PWs.3 and 4 were not the witnesses to the seizure mahazar and their evidence regarding seizure of those articles is irrelevant. But the records clearly show that the learned Public Prosecutor himself adduced such evidence. Therefore, it is not open to say that such evidence is irrelevant and that cannot be relied. In similar situation in para 13 of the judgment in Oriental Insurance Co. Ltd. v. Premlata Shukla¹⁴ , the Hon’ble Supreme Court held as follows:

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“13. However, the factum of an accident could also be proved from the first information report. It is also to be noted that once a part of the contents of the document is admitted in evidence, the party bringing the same on record cannot be permitted to turn round and contend that the other contents contained in the rest part thereof had not been proved. Both the parties have relied thereupon. It was marked as an exhibit as both the parties intended to rely upon them.”

¶178

(Emphasis supplied)

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14 (2007) 13 SCC 476

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HC-KAR

¶182

The discussion of the above evidence shows that

¶183

there was material contradictions regarding the time and place of seizure of the incriminating material objects under Ex.P21.

¶184

So far as Ex.P28, as per prosecution, on 02.11.2014 between 10:00 p.m. and 10:30 p.m. the accused produced the scooter bearing Registration No.KA-02/HJ/4682 which was parked near Green Park Dhaba on B.B. bypass road and that was seized under Ex.P28 in the presence of PWs.11 and 12.

¶185

As already stated, PW.11 has not supported the proceedings under Exs.P21 and P28. PW.12 in his chief examination itself states that the police took his signature on Ex.P28 in the police station, whereas Ex.P28 is purportedly drawn near Green Park Dhaba. Though in the cross examination conducted by learned Public Prosecutor, he spoke in tune with Ex.P28, in the cross examination conducted by the defence Counsel, he again states that both mahazars were prepared on the same day. In the cross examination conducted by learned Public Prosecutor, he has stated that he does not know if both the mahazars were drawn on 02.11.2014. Therefore, the evidence of the mahazar witnesses regarding seizure of motorcycle was not cogent and consistent.

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HC-KAR

¶189

What remains is the evidence of only official witnesses i.e. the Investigating Officer and PW.26. Apparently PW.27 would be interested in the outcome of his investigation. Therefore, he cannot be treated as independent witness unless the independent witness support/corroborate the evidence.

¶190

In para 153 of the judgment in Sharad Birdichand v. State of Maharashtra¹⁵ , the Hon'ble Supreme Court has summarized the law relating to appreciation of evidence and conclusions to be reached where the case is based solely on the circumstantial evidence as follows:

¶191

“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:

¶192

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

¶193

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:

¶194

“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.”

¶195

15 (1984) 4 SCC 116

¶196

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HC-KAR

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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 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,

¶201

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

¶202

( 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.”

¶203

(Emphasis supplied)

¶204

Reading of the above judgment clearly shows that when the case is based on circumstantial evidence, the chain of circumstances must be so complete that it should lead to only hypothesis of the guilt of the accused and if there is any link missing, then the accused is entitled to the benefit of doubt. The prosecution is required to prove each of the circumstances beyond reasonable doubt, but not by preponderance of probabilities. The above analysis of the evidence in the present case shows that the chain of circumstance were not complete as required under the judgment in Sharad Birdichand ’ s case referred to supra . The trial Court has failed to appreciate the evidence judiciously. The fact of non application of the mind by

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HC-KAR

¶207

the trial Court is apparent from the fact that though the trial Court convicted the accused for the offence under Section 302 of IPC, has resorted to impose sentence of ten years, which is contrary to Section 302 of IPC, as minimum prescribed punishment under the said provision is imprisonment for life. Therefore, the impugned order of conviction and sentence is unsustainable and the accused is entitled to acquittal.

¶208

In view of reversal of the conviction, the appeal of

¶209

the State for enhancement of the sentence does not survive. Hence the following:

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ORDER

¶211

Crl.A.No.112/2017 is hereby dismissed.

¶212

Crl.A.No.1813/2016 is hereby allowed.

¶213

The impugned judgment and order of conviction and sentence in S.C.No.15011/2015 passed by V Additional District and Sessions Judge, Devanahalli, Bengaluru Rural District is hereby set aside.

¶214

Appellant/accused is acquitted of the charges for the offences punishable under Sections 302 and 201 of IPC. He shall be set at liberty if his detention is not required in any other case.

¶215