Manu @ Motu Vs State of Karnataka

THIS CRIMINAL APPEAL IS FILED U/S.374(2) CR.P.C PRAYING TO SET ASIDE THE JUDGMENT AND ORDER OF CONVICTION AND SENTENCE DATED 09/10.10.2018 PASSED BY THE IV ADDITIONAL SESSIONS JUDGE, MYSURU IN S.C.NO.281/2016 - CONVICTING THE APPELLANT/ACCUSED FOR THE OFFENCES PUNISHABLE 302, 201 OF IPC.

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THIS APPEAL, COMING ON FOR FINAL 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 MR. JUSTICE M.G.S.KAMAL)

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This appeal is against the judgment and order dated 09/10.10.2018 passed in S.C.No.281/2016 on the file of IV Additional Sessions Judge, Mysuru (hereinafter referred to as `trial Court'), by which the trial Court has convicted the appellant herein for the offence punishable under Section 302 of IPC and has sentenced him to undergo rigorous imprisonment for life and to pay fine of Rs.5,000/- and in default of payment of fine to undergo simple imprisonment for three months and he is also convicted for offence punishable under Section 201 of IPC and sentenced to undergo simple imprisonment for three years and to pay fine amount of Rs.5,000/- and in default of payment of fine amount to undergo simple imprisonment for three months.

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Case of the prosecution is that;

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2.1 That the victim-Dinesh and appellant were friends.

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The appellant was residing in a house bearing No.3, situated at 3rd Cross, 4th Main Road, Jayanagar, Mysuru. That the appellant was having a love affair about which Dinesh used to loose talk and condemn the appellant. That apart once the appellant had taken the motorcycle of Dinesh and met with an accident causing damages to the said vehicle, which led to a quarrel between the two. Dinesh had removed the clothes of the appellant lowering his dignity in the public. This led to appellant developing enmity with Dinesh and he decided to eliminate him once and for all. In furtherance to the same, on 13.05.2016 appellant had invited Dinesh to his house. Appellant had told Dinesh to bring liquor and had forced him to consume the same. When he was in the state of intoxication, appellant forcefully fisted on to his face. When he fell onto the floor, appellant stamped forcibly on his chest thereafter strangled the victim with a towel. Due to said assault, victim sustained severe injuries with bleeding from his ear and nose resulting in his death on the spot. Thereafter, appellant with an intention of destroying the evidence carried the dead body on his shoulder and left it in front of Premraj Milkbar Hotel,

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belonging to one Papanna situated in front of Pachirangaiah complex at about 12.30 a.m.

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2.2 A complaint in this regard with the above allegations

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came to be filed by the father of the deceased which was registered by the PSI of Ashokpuram Police Station in Crime No.42/2016. After investigation, a charge sheet implicating the appellant for the offences punishable under Sections 302 and 201 of IPC was filed. The charges were framed against the appellant, since he pleaded not guilty, trial was conducted.

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2.3 Prosecution examined 11 witnesses as PW1 to PW11

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and marked 14 documents as Ex.P1 to Ex.P14 and produced 14 Material objects marked as MOs.1 to 14. Thereafter, statement of the appellant-accused was recorded in terms of Section 313 of Cr.PC. The appellant denied all the incriminating circumstances, however did not choose to lead any evidence.

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Based on the above, the trial Court framed the following points for its consideration:

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''1. Whether the prosecution proves beyond reasonable doubt that, the death of deceased Dinesh is homicidal death?

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2. Whether the Prosecution further proves beyond reasonable doubt that, оп 13.5.2016, at about 12

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12.30 p.m. this accused on the background of ill-will, invited the deceased and made him to drink alcohol. When the deceased was intoxication of alcohol, he fisted on the face, stumped on the chest with an intention to kill the deceased. He picked up a pooja towel and strangulated the neck of deceased. Though he was aware if such act is done, the death may be ensued and thereby committed culpable homicide which amounts to murder, which is punishable Under Section 302 of IPC?

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3. Whether the Prosecution further proves beyond reasonable doubt that, on the same day and place, with an intention to destroy the evidence of murder of deceased Dinesh, at about 12.30 mid night, the accused brought the dead body from his house and laid the same in front of Papanna's Hotel at Panchirangaiah Complex and tried to disappear the evidence of murder and thereby, committed an offence punishable Under Section 201 of IPC?

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4. What order?''

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On appreciation of evidence produced by the prosecution, the trial Court concluded that the appellant had indeed committed the murder of the deceased and as such proceeded to sentence him for life imprisonment as noted above. Being aggrieved by the same the present appeal by the appellant-accused.

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Sri. Venkatesh Dalwai, learned counsel appearing for the appellant taking this Court through the records submitted that;

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(a). The entire case is based on circumstantial evidence and trial Court based on the testimony of interested witnesses has erroneously drawn inferences and convicted the appellant for life imprisonment contrary to the facts and the established principles of law.

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(b). That the complaint was registered on 14.05.2016 against an unknown person. According to the complaint, one Ramasidda, the maternal uncle of the deceased had informed the complainant about the dead body of the deceased being found near the Pachirangaiah complex. That said Ramasidda has not been examined.

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(c). PW2 is stated to be an acquaintance of both the appellant and the deceased who claims to have last seen the deceased going to the house of the appellant. That said witness further claims to have seen someone carrying a person on his shoulder and placing near the Pachirangaiah complex from a close distance, but he did not bother to verify the same till the morning which is highly doubtful and improbable. That there are inconsistencies in the version of PW2 which is highly unreliable. That neither PW1 nor PW2 in their respective

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evidence have whispered anything with regard to their presence at the spot.

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(d). That though towel-MO.10 and bed sheet-MO.12 are stated to have been seized from the scene of offence, nothing is brought on record to establish the link between the said towel-MO.10 and bed sheet-MO.12 with the commission of crime. He submits that no mahazar is drawn while seizing the clothes of the deceased. That drawing up of seizure mahazar is mandatory requirement and is not just a procedural requirement. That the only link the prosecution is trying to establish to connect the appellant to the crime is towel M.O.10 and bed sheet M.O.12. In the absence of prosecution placing on record the evidence beyond reasonable doubt, it is not safe to rely upon the material evidence to handover the conviction and sentence to the appellant.

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(e). That though the prosecution has projected the theory of enmity between appellant and deceased on account of purported love affair and damaging of the bike by the appellant, no evidence in this regard has been produced.

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(f). That perusal of sketch of scene of offence at Ex.P7 would indicate that the place where the incident is alleged to

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have occurred is surrounded by houses and shops. It is therefore, beyond comprehension as to no one being aware or having heard any noise of the fight between appellant and deceased or appellant allegedly carrying the deceased on his shoulders at about 00.30 a.m., and placing the same near the Pachirangaiah complex.

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(g). Thus, he submits since the entire case of the prosecution is based on circumstantial evidence, the prosecution has failed to produce the evidence to make complete chain of links establishing the guilt of the appellantaccused beyond reasonable doubt. As such seeks for allowing of the appeal.

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(h). He relied upon the judgment of the Hon'ble Apex Court in the case of Raja Naykar Vs. State of Chattishgharh reported in 2024 Live Law SC 60 to contend that the prosecution shall establish the facts indicating that the appellant-accused 'must' have committed the offence and not merely 'may' have committed the offence.

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Per contra, learned SPP-II submits that;

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(a). PW2 is the witness who had last scene the deceased going to the house of the appellant. That the evidence of the said witness is material in this case.

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(b). That though there is no seizure mahazar drawn while seizing the material objects namely the clothes of the deceased, the evidence of PW3 would indicate that the material object at MOs.1 to 7 namely T-shirt, black color pant, knickers, baniyan, underwear, waist thread and bangle were collected at the time of drawing the inquest mahazar at Ex.P3.

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(c). That PW10-N.G. Krishnappa, the Investigation Officer

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has spoken about collecting the said Mos.1 to 7 at the time of drawing up of inquest mahazar and handing it over to CW.30Mahadeva, the Head Constable. That PW10 had further deposed that MOs.1 to 7 and MOs.10 to 14 were sent through one of their staff namely Ravi for Forensic examination to RFSL, Mysuru. That the report of RFSL has been received through said Ravi. Thus he submits that though the seizure mahazar was not drawn, the recovery of the said material objects, their forensic examination and report obtained thereof has been spoken to by PW3 and PW10 which is sufficient enough to discharge the burden.

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(d). Thus, he submits that the prosecution has proved

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the case beyond reasonable doubt. Hence, seeks for dismissal of the present appeal.

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Heard both side and perused the records.

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The instant case is based on circumstantial evidence. The motive according to the prosecution for the appellant to commit the offence is the animosity which the appellant had purportedly developed on account of deceased talking ill about his love affair and the deceased humiliating the appellant by removing his clothes in public lowering his dignity for appellant causing damage to the motor cycle of the deceased.

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The trial Court has convicted the appellant for the offences punishable under Sections 302 and 201 of IPC based on the deposition of PW2, who is stated to have last seen deceased going to the house of the appellant. The trial Court has found his deposition to be acceptable even in the absence of examination of any other witnesses or any corroboration.

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The trial Court has further relied upon the medical evidence of PW11 and the RFSL report with regard to blood stains found on the clothes of the deceased and the appellant-accused as per

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Ex.P8. The trial Court has found that the injuries found on the deceased would indicate the criminal intention of the appellant to kill the deceased. The trial Court has also accepted the version of the prosecution of appellant placing the body of the deceased in front of Papanna Hotel with an intention to destroy the evidence.

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Point that arises for consideration is ;

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''Whether in the facts and circumstances of the case the trial Court is justified in convicting the appellant for the offences punishable under Sections 302 and 201 of IPC?''

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Evidence produced by the prosecution:

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PW1-Bhoomi Siddaiah the father of the deceased in

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his deposition has stated that on 13.05.2016 he himself and his daughter in law Myna-PW5 and the deceased were in their house. That PW1 had gone out for some work and when he returned at around 7.00 p.m., only, Myna-PW5 was at home and deceased was not there and he did not return till late in the night. However at around 2.00 a.m., he received a telephone call from one Ramasidda stating that someone has assaulted the deceased and had left him in front of Papanna Hotel of Pachirangaiah complex. Immediately, when he went to the

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spot he saw his son bleeding from his nose and ears with ligature mark on his neck. Thereafter he filed a complaint as per Ex. P1 before the police who drew the mahazar as per Ex.P2 and seized the objects as per MOs.1 to 9, namely T-shirt, black color pant, knickers, baniyan, underwear, waist thread, bangle, a mobile from his pocket and his slippers.

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In the cross examination the said witness has admitted deceased being addicted to alcohol. He has also admitted the distance between his house and the Pappana hotel is about 100 meters. That the place where the dead body was found is surrounded by several houses. That there are rooms in the said complex. That he has not noticed if the dress found on the dead body were blood stained. That there was no rope or any other things near the dead body. That he did not remember who else was present at the spot. That he did not know which company's mobile was found in the pocket of the deceased and did not know the mobile number of his son. He did not know the contents of the mahazar drawn by the police. That except the rope mark on the neck of the deceased, there was no other mark.

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From the deposition of aforesaid witness it is clear that the said witness has not spoken anything about the factum of motive which the prosecution has propounded. He has also not spoken anything indicating the involvement of the appellant-accused in the matter.

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PW2-Ravikumar, whom the prosecution has examined

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as a last seen witness, is stated to be a common acquaintance of both the appellant and the deceased. In his chief examination he has deposed that on 13.05.2016 at around 7.15 p.m., he saw deceased going to the house of the appellant. However he did not try to speak to him though they were friends. Again at 8.00 p.m., he stated to have seen the deceased holding a cover and going towards the house of the appellant and when he asked the deceased, he replied that he was carrying liquor to the house of the appellant. He has further stated after watching the cricket match, he came out of his house at 12.30 a.m., to go out for a walk on 4th cross, 4th Main Road, Jayanagar, at that time he noticed someone carrying a person on his shoulder near Pachirangaiah complex and making him to sit against the wall in front of Papanna

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Hotel. He however thought they must have been some drunkards trying to rest at that place. Later at about 2.30 a.m., he came out of his house hearing the noise near the Pappana hotel and when he went near the spot, he found it to be the body of deceased bleeding from nose and ears with a ligature mark on his neck. The said witness has also spoken about the enmity between the appellant and deceased, with regard to the love affair and the damage caused by the appellant to the bike of the deceased.

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In the cross examination PW2 has admitted that

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there are 3 to 4 houses around the house of the appellant, the distance between his house and the house of the appellant is about 100 meters. He has further deposed that he saw the deceased going to house of the appellant when he was going to get groceries. He has further deposed that since he saw deceased going to the house of the appellant he assumed that the appellant had murdered the deceased and kept the body at the spot.

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The said witnesses has not given any details either with regard to alleged love affair of the appellant or with regard to appellant causing damage to the bike of the deceased. The said witnesses has also not spoken anything about PW1 being present at the spot or the process of seizure of MOs.1 to 9 from the spot.

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PW3-Jagadeesh is a witness to the inquest mahazar as per Ex.P3 and he has identified the material objects, MO.1 to MO.7.

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PW4 Shivanna is the brother-in-law of the deceased and is witness to inquest mahazar at Exhibit.P3. He has also identified the MOs.1 to 7. Even the said witnesses has also not spoken anything about enemity between the appellant and deceased.

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PW5-Myna is the sister-in-law of the deceased. She has deposed that on 13.05.2016 around 4.30 p.m., the deceased left their house stating that he will come after sometime. However he did not return. That around 3.00 a.m. Ramasidda, her uncle telephoned her father-in-law and informed that the deceased-Dinesh was killed near Pappana

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hotel and when she went to the spot she noticed blood from his nose and ears.

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In the cross examination, the said witness has stated that the deceased was addicted to alcohol. That when deceased did not return home, they did not call any of his friends to enquire regarding his whereabouts. She has deposed that when they went near Pappana hotel, her father-in-law, her husband and her uncle Ramasidda were present and noticed bleeding from the nose and ears and the ligature mark on the neck of the deceased. Even the said witnesses has also not spoken anything about enemity between the appellant and deceased.

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PW6-Channesha is witness to the spot mahazar as

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per Ex.P2.

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PW7-Shivakumara is a witness to the spot mahazar allegedly shown by the appellant voluntarily admitting he committing the murder of the deceased. He has spoken about the deceased handing over pooja towel, used to strangulate the deceased. He has also spoken about collection of blood stains from the walls and seizing of bed sheet. He has identified spot

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and seizure mahazar as per Ex.P4 in terms of which one orange

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color pooja towel-MO.10, bed sheet-MO.12 and cotton containing the blood collected from the spot as MO.11.

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In the cross examination the said witness has admitted that the deceased being addicted to alcohol was unwell and was not going to work. He has however pleaded ignorance regarding any complaint having been filed with regard to appellant causing accident and damaging the bike of the deceased and said matter having been compromised in the Police Station. He has admitted that house of the appellant is in a vatara surrounded by 5-6 houses and that any sound from the house of the appellant is audible to the inmates of other houses. He has also admitted that there are other houses and shops near the said vatara. However, he has denied the suggestion of the police drawing up of the mahazar and obtaining signature in the station. He has supported the case of the prosecution with regard to seizure of MOs.10 to 12.

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PW8 is Raju, who has spoken about drawing up of

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inquest mahazar as per Ex.P3 and he has also spoken about the appellant taking them to his house and handing over blood

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stained pant and shirt as per Ex.P5, which is marked as MO.13 and MO.14.

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PW9-Dr. Radha, referring to a report of Regional Forensic Science Laboratory has stated that articles 1 to 15 were stained with blood. Articles 3 to 11 were stained with human blood of 'B' group. That the blood group of the blood stain on the Articles 1, 2 and 12 to 15 could not be identified as they were insufficient. She has spoken about blood stains on the clothes of the appellant-accused and the deceased to be the same and has given a report as per Ex.P8.

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PW10-N.J. Krishnappa is the Investigation Officer, who has spoken about he carrying out the investigation and recording the statements and mahazar. He has also spoken about recording of the statement of the appellant-accused and conducting seizure mahazar and recovery as per Ex.P4 and Ex.P5.

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PW11-Dr. Dayananda has been examined who has spoken about the contents of postmortem report produced at Ex.P12. He has spoken about the injuries found on the body of the deceased which are as under:

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1. A transverse ligature mark present over front and right side of neck, situated above the level of thyroid cartilage measuring 11 cms x 1 cm. It is situated 7 cm below the right mastoid process, 7 cms below the chin, one end ending at the midline. Ligature marked is about absent for 9 cms over left side of front of neck. Ligature mark measuring 7 cms x 1 cm present over left side of front of neck and over left side of nape of neck. On dissection of neck structures. right sternocleidomastoid muscle contused measuring 1 x 1 cm. Left sternocleidomastoid muscle contused at is lower one third measuring 4 x 3 cm. Contusion measuring 3 x 3 cm over the strap muscle along the midline. Contusion over an area of 4 x 3 cm present over right side of neck in the upper part in the soft tissues. Hyoid bone shows inword compression fracture at the junction of body and right cornua. Thyrod cartilage intact.

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2. Right black eye.

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3. Abrasion measuring 2.5 x 1 cm present over right ala of nose.

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4. Abrasion measuring 2.5 x 1 cm present over left ala of nose.

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5. Inner aspect of upper lip shows contusion measuring 5 x 2.5 cm

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6. Contusion measuring 2 x 1 cm over inner aspect of lower lip on right side.

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7. Contusion measuring 2 x 1 cm over inner aspect of lower lip on left side.

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8. Contusion measuring 2 x 1 cm over left mastoid area.

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9. Contusion measuring 2 x 1 cm over antihelix of right ear.

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10. Contusion measuring 2 x 1 cm over antihelix of left ear.

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11. Imprint contusion 1 x 0.7 x 2 cms shaped mentioned in PM report over right zygomatic area.

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12. Abrasion measuring 0.5 x 0.5 cms present over dorsal aspect right middle finger over proximal inter phalangeal joint.

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13. Abrasion measuring 0.4 x 0.4 cm present over dorsal aspect of right ring finger over proximal inter phalangeal joint.

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The following internal injuries found;

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1. Scalp : On reflection shows extravasation over right parietooccipital area and left frontotemporal area. Left temporalis muscle contused.

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2. Skull : Intact

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3. Right side : 3, 4, 5, ribs fractured along with mid clavicular line.

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4. Left side : 3, 4, 5, ribs fractured along with anterior axillary line.

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The said witness has also stated that the cause of the death is due to ligature strangulation. He has also spoken about the possibility of a person who is forcefully stamped on the chest and fisted forcefully to suffer such injuries. In the cross examination, he has denied the suggestion of a person suffering such injuries if he fell having lost control due to intoxication.

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Appreciation and Analysis:

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PW1 and PW5 are the father and sister-in-law

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respectively of the deceased. They are not the eye witnesses. Both have spoken only about receiving the information about

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deceased having been murdered and his body being thrown near Pachirangaiah Complex at about 2.00 a.m., from their Ramasidda. The said Ramasidda has not been examined.

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Except PW2, no other witnesses have spoken

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anything whatsoever with regard to the motive for the commission of offence. According to the said witness, the motive for commission of offence was the quarrel between the appellant and deceased with regard to appellant having a love affair and deceased talking ill about the same and appellant causing damage to the bike belonging to the deceased. The prosecution has not produced any detail with regard to the purported love affair or with regard to the bike which allegedly belonged to the deceased and used by the appellant causing damage to the same. Thus there is no iota of evidence with regard to the alleged motive and instances narrated by PW2 which led to appellant developing animosity against the deceased that prompted him to commit the offences.

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PW2 has further spoken about he having seen the deceased carrying liquor to the house of the appellant. He has further stated that after watching the cricket match he came

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out for a walk at about 12.30 a.m., and noticed someone carrying a person on his shoulder and making him to sit against the wall in front of Pappanna hotel. That he however thought the said persons were drunkards and were trying to rest.

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Evidence of this witness lacks reliability for more than one reason;

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Firstly, if there was an enmity between the two the possibility of appellant inviting the deceased to his house is not convincing;

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Secondly, it is not clear as to what is the distance from which he noticed a person “carrying” another person on his shoulder and thereafter “making” him to “sit” against the wall;

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Thirdly, the process of a drunkard “carrying” another person on his shoulder and then making him “sit” would not have happened in a flash. It would have taken some time;

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Fourthly, if PW2 was on a walk and given that he was well acquainted with the appellant and the deceased, it would not have been difficult for him to identify them. Though the said witness in the crossexamination has stated that the distance between his

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house and Papanna hotel is 100 meters, it is his specific statement that he noticed one carrying the other and placing him at the spot while he was walking on the 4^th Cross, 4^th Main of Jayanagar;

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Fifthly, the timing of PW2 seeing the said event is purportedly at 12.30 a.m. It is on record that the house of the appellant is in a vatara and surrounded by 5-6 other houses. That the said vatara is further surrounded by other houses and shops. The complex has several rooms. As rightly pointed out by learned counsel for the appellant, it is difficult to accept the case of the prosecution that when the house of the appellant is situated surrounded by so many residential houses and shops and establishment for him to have caused injuries and strangulated the deceased and thereafter carrying him on his shoulders walk all the way right upto the complex and lay him against the wall and the same going unnoticed by any of the neighbours or any of the member of public, except PW2 who despite being on walk and being an acquaintance of the appellant and the deceased and not able to figure out the appellant and deceased;

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Sixthly , the police finding the slippers of the deceased near the complex, which further makes the theory of appellant carrying the dead body on his shoulders

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with the slippers on the feet of the dead body doubtful;

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Seventhly , the time gap between PW2 last seen the deceased going into the house of the appellant and PW1 receiving call from Ramasidda about body of deceased found at the complex defies the basis of application of `last seen' theory.

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33. Thus the evidence led in this regard does not evince any credibility and trustworthiness of the witness PW2. The trial Court has lost sight of this aspect of the matter.

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34. The only other circumstance which the prosecution is heavily relying upon is alleged recovery of blood stained towelMO.10 and bed sheet MO.12, and shirt and pant of the appellant produced at MO.13 and MO.14. MO.10 and MO.12 stated to have been recovered, in terms of Ex.P4, which is drawn on 15.05.2016 between 5.30 p.m. to 7.30 p.m., in the presence of Shivakumar-PW.7. Blood stained shirt and pant as per MO.13 and MO.14 have been allegedly recovered as per mahazar at Ex.P5, which is marked through the investigating officer. The said mahazar is stated to have been drawn on 15.05.2016 instant.

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35. Relevant to refer to the evidence PW8-Raju who has stated in his deposition as under:

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''ಮರು�ನ ��ೕ�ನವರು ನನ�ನು� �ಾ�ೆ�ೆ PÀgÉ¹zÀÝgÀÄ. ಅ�� ಾ��ಾಲAiÀÄದ ಮುಂ�ೆ ಇರುವ ಆ�ೋ�ಯನು� �ೋ zÉÝÃ£ÀÄ. ಆಗ ಆ�ೋ�ಯು vÀನ� ಮ�ೆಯ ಹ#$ರ ಕ�ೆದು&ೊಂಡು (ೋದನು. ಆ�ೋ�ಯು ತನ� ಮ�ೆಯ ಒಳ�ೆ (ೋ, ರಕ$ದ ಕ-ೆ�ಾ,ದ. ಒಂದು ಶ0ಟ ಮತು$ 2ಾ�ಂಟನು� (ಾಜರ ಪ 5ದನು. ಆಗ �ೕ�ೕಸನವರು ಅದನು� ಅ7ಾನ8 ಪ 5&ೊಂಡು ಮಹಜರ ಬ�ೆದರು. �ಾನು ಮಹಜ:�ೆ ಸ; 7ಾ �ೆನು. ಮಹಜರನು� <�-5 ಎಂದು, >ಾ?ಯ ಸ;ಯನು� <� 5 (ಎ) ಎಂದು ಗುರು#ಸ-ಾ@ತು. ಸದ: ಬAೆBಗಳನು� �ೋ ದ�ೆ ಗುರು#ಸುCೆ$ೕ�ೆ. 5ೕD 7ಾ ರುವ ಸದ: ಬAೆBಗಳನು� Cೆ�ೆದು >ಾ?�ೆ Cೋ:5�ಾಗ >ಾ?ಯು ಅವEಗಳನು� �ೋ ಗುರು#ಸುCಾ$�ೆ. ಆದ.:ಂದ ಶಟFನು� ಮು7ಾ-13 ಎಂದು, 2ಾ�ಂಟನು� ಮು7ಾ-14 ಎಂದು ಗುರು#ಸ-ಾ@ತು. �ಾ��ಾಲಯದ ಮುಂ�ೆ ಇರುವ ಆ�ೋ�Gೕ ಆ �ನ �ಾನು �ೋ ದ ವ�H$�ಾ,�ಾ.�ೆ.''

¶198

As against the above deposition at Sl.No.12 of Ex.P5,

¶199

the following is stated:

¶200

PÀæ.¸ÀASÉå	ªÀiÁ®ÄUÀ¼ÀÄ	ªÀiÁ°£À UÀAn£À ªÉÄÃ¯É CxÀªÁ ¥ÀqÉzÀ ¸ÁQëzÁgÀ£À ¸À»	ªÀÄ°£À ªÉÄÃ¯É
1	gÀPÀÛzÀ PÀ¯ÉAiÀiÁVgÀÄªÀ PÀ¥ÀÄàªÀÄvÀÄÛ £ÉÃgÀ¼É §tÚzÀ vÀÄA§vÉÆÃ½£À ±Àmïð	¸ÀzÀj ªÀ¸ÀÄÛUÀ¼À£ÀÄß (§mÉÖUÀ¼À£ÀÄ vÀ¤SÉAiÀÄ ¸À®ÄªÁV ¥ÀAZÀg CªÀiÁ£ÀvÀÄÛ ªÀÄºÀdgï ªÀÄÆ®P CªÀiÁ£ÀvÀÄÛ ¥Àr¹PÉÆAqÀÄ oÁuÁ	ß) ªÀÄÄA¢£À À ¸ÀªÀÄPÀëªÀÄ À oÁuÉAiÀÄ°è ªÀiÁ®Ä ¥ÀnÖ
2	PÀqÀÄ ¹ªÉÄAmï §tÚzÀ ¥ÁåAmï	24/2016 gÀ°è £ÉÆAzÁ £ÁåAiÀiÁ®AiÀÄPÉÌ ¤ªÉÃ¢¹zÉ ªÀ¸ÀÄÛUÀ¼À£ÀÄß ¥ÀAZÀgÀ ¸ÀªÀÄPÀëªÀÄ MAzÀÄ ©½ §mÉÖAiÀÄ aÃ®PÉÌ ºÁQ JA§ EAVèÃµï CPÀëgÀ¢AzÀ ¹Ã®Ä	¬Ä¹ WÀ£À (ªÉÄÃ®ÌAqÀ ¥ÀævÉåÃPÀªÁV ºÉÆ®zÀÄ'V' ªÀiÁrgÀÄvÉÛÃ.

¶201

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¶202

HC-KAR

¶203

Thus, there is inconsistency between the deposition of

¶204

PW8 and the very content of Ex.P5 with regard to place of seizure of pant and shirt belonging to the appellant. It also raises the question, if the towel MO.10 and bed sheet MO.12 were recovered upon the information given by the appellant from his house in the presence of PW7-Shivakumara, why was his dress not recovered in the presence of PW7 when according to PW8 the dress was recovered from the house of the appellant on the very same date. The deposition of PW7 and PW8 would indicate that the appellant had taken the said witnesses separately on the very date i.e., on 15.05.2016, on two occasions and the police recovered the said two items upon the statement/information given by the appellant. This aspect of the matter raises serious doubt about very recovery of MO.10, MOs.12 to 14.

¶205

Admittedly, no mahazar is drawn while collecting/seizing MOs.1 to 7 namely T-shirt, black color pant, knickers, baniyan, underwear, waist thread and bangle found on the dead body of the deceased. The submission of learned SPP-II that the deposition of Investigating Officer PW10 who

¶206

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¶207

HC-KAR

¶208

has spoken about the same has to be read in the light of reference to one Ravi. D 1047-PC found at Ex.P8, through whom the said material objects were sent to RFSL for examination. This submission cannot be accepted inasmuch as no acceptable mode of evidence is produced with regard to seizure MOs.1 to 7. It is only on establishing proper seizure of MOs.1 to 7 can any link be established between the stains found thereon and blood stain found on MO.10, MO.12 to MO.14. The mere tally of the blood stain on the material objects belonging to the appellant and material objects belonging to the deceased would not be a conclusive circumstances without other chain of circumstances having been established beyond reasonable doubt by the prosecution.

¶209

Except the aforesaid two circumstances, nothing else is brought on record by the prosecution to prove involvement of the appellant in the crime.

¶210

Another aspect of the matter is to be seen is that PW1 father of the deceased, PW3 friend of the deceased and PW5 the sister-in-law of the deceased have deposed that when they first saw the dead body of the deceased, they found

¶211

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¶212

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¶213

HC-KAR

¶214

ligature mark caused by use of a rope around the neck of the deceased. In the letter/opinion issued by PW11-Dr. Dayanand produced at Ex.P14 following opinion is found:

¶215

''Opinion: 1. It is not possible to opine with certainty to the question No.1 asked in your letter as the ligature material was not brought at the time of post-mortem examination.

¶216

2. As already mentioned in the page No.3 of post mortem report fracture of 3^rd , 4^th and 5^th ribs on both sides are antemortem in nature.

¶217

3. Time since death cannot be opined with certainty as the body was kept in cold storage"

¶218

From the above, it is clear that the prosecution has

¶219

not been able to establish that the strangulation was caused by use of towel MO.10 as sought to be made out.

¶220

The trial Court while accepting the evidence of PW2 has opined that PW2 being a last seen witness having spoken to the deceased at 8.00 p.m. and thereafter having seen somebody carrying another person on his shoulder and the explanation offered by him of he not enquiring the said two persons to probabilize his normal conduct, as such his evidence could not be shaken. Even assuming evidence of PW2 is acceptable it would only go upto degree of appellant, 'may'

¶221

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¶223

HC-KAR

¶224

have committed the offence and would not go beyond and take

¶225

place of, 'must' have or 'should' have committed the offence. The Hon'ble Apex Court in the case of Raja Naykar (supra) at paragraph Nos.7, 8, 13, 14, 15, 19, 20 and 21 has held as under:

¶226

Undoubtedly, the prosecution case rests on circumstantial evidence. The law with regard to conviction on the basis of circumstantial evidence has very well been crystalized in the judgment of this Court in the case of Sharad Birdhichand Sarda vs. State of Maharashtra1, wherein this Court held thus:

¶227

“152. Before discussing the cases relied upon by the High Court we would like to cite a few decisions on the nature, character and essential proof required in a criminal case which rests on circumstantial evidence alone. The most fundamental and basic decision of this Court is Hanumant v. State of Madhya Pradesh [(1952) 2 SCC 71 : AIR 1952 SC 343 : 1952 SCR 1091 : 1953 Cri LJ 129] . This case has been uniformly followed and applied by this Court in a large number of later decisions up-to-date, for instance, the cases of Tufail (Alias) Simmi v. State of Uttar Pradesh [(1969) 3 SCC 198 : 1970 SCC (Cri) 55] and Ramgopal v. State of Maharashtra [(1972) 4 SCC 625 : AIR 1972 SC 656] . It may be useful to extract what Mahajan, J. has laid down in Hanumant case [(1952) 2 SCC 71 : AIR 1952 SC 343 : 1952 SCR 1091 : 1953 Cri LJ 129] :

¶228

“It is well to remember that in cases where the evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should in the first instance be fully established, and all the facts so established should be consistent only with the hypothesis of the guilt of the accused. Again, the circumstances should be

¶229

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¶230

HC-KAR

¶231

of a conclusive nature and tendency and they should be such as to exclude every hypothesis but the one proposed to be proved. In other words, there must be a chain of evidence so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability the act must have been done by the accused.”

¶232

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:

¶233

(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established. It may be noted here that this Court indicated that the circumstances concerned “must or should” and not “may be” established. There is not only a grammatical but a legal distinction between “may be proved” and “must be or should be proved” as was held by this Court in Shivaji Sahabrao Bobade 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]

¶234

“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.”

¶235

(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,

¶236

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

¶237

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

¶238

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¶239

HC-KAR

¶240

(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.

¶241

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

¶242

It can thus clearly be seen that it is necessary for the prosecution that the circumstances from which the conclusion of the guilt is to be drawn should be fully established. The Court holds that it is a primary principle that the accused ‘must be’ and not merely ‘may be’ proved guilty before a court can convict the accused. 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 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 further been held that the circumstances should be such that they exclude every possible hypothesis except the one to be proved. It has been held that 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 probabilities the act must have been done by the accused.

¶243

The aforesaid story is narrated in the Memorandum of the appellant under Section 27 of the Evidence Act. However, as held by the Privy Council in the locus classicus case of Pulukuri Kotayya and others v. KingEmperor2, only such statement which leads to recovery of incriminating material from a place solely and exclusively within the knowledge of the maker thereof would be admissible in evidence.

¶244

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¶246

HC-KAR

¶247

Undisputedly, the dead body was found much prior to the recording of the Memorandum of the appellant under Section 27 of the Evidence Act. Therefore, only that part of the statement which leads to recovery of the dagger and the rickshaw would be relevant.

¶248

The Property Seizure Memo would show that the dagger was seized from a place accessible to one and all. According to the prosecution, the incident took place on 21st October, 2009 and the recovery was made on 25th October, 2009.

¶249

It can thus be seen that, the only circumstance that may be of some assistance to the prosecution case is the recovery of dagger at the instance of the present appellant. However, as already stated hereinabove, the said recovery is also from an open place accessible to one and all. In any case, the blood found on the dagger does not match with the blood group of the deceased. In the case of Mustkeem alias Sirajudeen v. State of Rajasthan, this Court held that sole circumstance of recovery of blood-stained weapon cannot form the basis of conviction unless the same was connected with the murder of the deceased by the accused. Thus, we find that only on the basis of sole circumstance of recovery of blood-stained weapon, it cannot be said that the prosecution has discharged its burden of proving the case beyond reasonable doubt.

¶250

As already discussed hereinabove, merely on the basis of suspicion, conviction would not be tenable. It is the duty of the prosecution to prove beyond all reasonable doubt that it is only the accused and the accused alone who has committed the crime. We find that the prosecution has utterly failed to do so.

¶251

Insofar as the finding of the High Court that the appellant has failed to give any explanation in his statement under Section 313 Cr. P.C. is concerned, we find that the High Court has failed to appreciate the basic principle that it is only after the prosecution discharges its duty of proving the case beyond all reasonable doubt that the false explanation or non-

¶252

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¶253

HC-KAR

¶254

explanation of the accused could be taken into consideration. In any case, as held by this Court in the case of Sharad Birdhichand Sarda (supra), in a case based on circumstantial evidence, the non- explanation or false explanation of the accused under Section 313 Cr.P.C. cannot be used as an additional link to complete the chain of circumstances. It can only be used to fortify the conclusion of guilt already arrived at on the basis of other proven circumstances.

¶255

In the result, the appeal is allowed. The impugned judgment and order dated 22nd July, 2015, passed by the Division Bench of the High Court of Chhattisgarh, Bilaspur in CRA No. 223 of 2012 is quashed and set aside. The appellant is directed to be released forthwith, if not required in any other case.''

¶256

Thus in the absence of prosecution providing any material evidence with regard to the motive for commission of offence, and in the light of suspicion with regard to the version of PW2 as noted hereinabove and in the absence of prosecution establishing the credibility with regard to seizure of MO.10 and MO.12 and MO.13 and MO.14 being the towel, bedsheet, shirt and pant of the appellant and further establishing any link with respect to said material objects with commission of crime by the appellant beyond reasonable doubt, for incompletion of chain of circumstances and lack of acceptability of evidence

¶257

this Court is of the view that the prosecution has failed to establish the circumstances conclusively pointing out the guilt of the appellant.

¶258

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¶260

HC-KAR

¶261

The order of the trial court is therefore required to be

¶262

interfered with and reversed.

¶263

Therefore, the following:

¶264

ORDER

¶265

(i). The appeal is allowed.

¶266

(ii). The impugned judgment and order of conviction and sentence in S.C.No.281/2016 passed by IV-Additional Sessions Judge, Mysuru is hereby set aside.

¶267

(iii). Appellant/accused is acquitted of the charges for the offences punishable under Sections 302 and 201 IPC.

¶268

(iv). Appellant/accused shall be set at liberty forthwith, if his detention is not required in any other case.

¶269

(v). Fine amount deposited, if any, shall be refunded to

¶270

the appellant.

¶271

(vi). Order of the trial Court with regard to disposal of the

¶272

properties is maintained.