Judgment:
R1IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE6H DAY OF JUNE, 2022 PRESENT THE HON’BLE MR.JUSTICE K.SOMASHEKAR AND THE HON’BLE MR. JUSTICE SHIVASHANKAR AMARANNAVAR CRIMINAL APPEAL No.84 OF2017BETWEEN: Sampath Kumar S/o G. Rudranna Aged about 50 years Konanakurike Village Pavagada Taluk – 561202. ...Appellant (By Sri. Karthik Yadav .U - Advocate for Sri. S. K. Venkata Reddy - Advocate) AND: State by Arasikere Police Station Rep. by State Public Prosecutor High Court of Karnataka Bangalore – 560 001. ...Respondent (By Smt. Rashmi Jadhav – HCGP) This Criminal Appeal filed under Sec.374(2) of Criminal Procedure Code, praying to set aside the judgment and order of conviction dated 21.11.2016 passed by the learned IV-Addl. District and Sessions Judge, 2 Madhugiri in S.C.No.58/2013 for the offence punishable under Section 302 and 201 of IPC.. This criminal appeal coming on for dictating judgment this day, K. Somashekar .J delivered the following:
JUDGMENT
This appeal is directed against judgment of conviction and order of conviction rendered by the trial Court in S.C.No.58/2013 dated 21.11.2016 and whereby held conviction for the offences punishable under Sections 302 and 201 of IPC, 1860. In this appeal, counsel seeks to consider the grounds urged in this appeal by referring the judgment of conviction in S.C.No.58/2013.
2. Heard the learned counsel Sri.Karthik Yadav U for the appellant / accused and learned HCGP for the State namely Smt. Rashmi Jadhav. Perused the judgment of conviction and order of sentence in S.C.No.58/2013.
3. Factual matrix of the appeal is as under: It is transpired from the case of the prosecution that accused – Sampath Kumar had lust over CW.7 who is 3 examined as PW.8 being wife of the deceased – Shivananda and also had interest to look after family transactions of Shivananda and thought that if Shivananda was alive he could not get close to PW.8 – Shobha and also cannot participate in the family transactions of the deceased – Shivananda. Therefore, he thought that it is better to eliminate Shivananda who is none other that the husband of PW.8 – Shobha. It is in this background on 14.10.2012 at around 1.00 p.m. when the deceased – Shivananda was in his garden land, the accused asked him to come with him to pluck custard apples at Karekallu gudda and while taking him there the accused made him to eat biscuits mixed with sleeping tablets powder which he had brought in the pocket and Shivananda felt drowsy after eating Good Day biscuits mixed with sleeping tablets powder. While he sat near the fence by the side, the accused who admitted to assault Shivananda with means of deadly weapon of machete which he had carried with him and in the course of that assault made by the accused, Shivananda made an 4 attempt to escape from the clutches of the accused and caught hold his hairs and protested the act of the accused. Despite of that protest made by the deceased, accused assaulted him with means of deadly weapon machete near right eye and then cut the neck of Shivananda. The accused assaulted the deceased with an intention to eliminate him and committed murder. Thereafter, he conceal the said act by dragging the dead body of Shivananda to the bush by the side and drew the dhoti of Shivananda over his face to hide the face.
4. In pursuance of the act of the accused, on filing of the complaint by the complainant criminal law was set into motion by recording FIR and then proceeded with the case for investigation. Subsequent to initiation of criminal prosecution against the person being arraigned as accused and whereby the investigating agency took the case for investigation and thoroughly investigated the case and laid the charge sheet against the accused before the committal 5 Court. Subsequent to committing the case by passing committal order as contemplated under Section 209 of Cr.P.C. the case was committed to the Court of Sessions for trial whereby the case in S.C.No.58/2013 came to be registered and the trial Court framed charges against the accused persons for the aforesaid offences. The trial Court heard the arguments advanced by the Public Prosecutor and so also defence counsel. On prima facie case against the accused the trial Court framed the charge against the accused for the offences punishable under Sections 302 and 201 of IPC, 1860 and accused did not pleaded guilty and claimed to be tried. Accordingly, the plea of the accused was recorded separately.
5. Subsequently, prosecution had let in the evidence and subjected to examination of several witnesses. Accordingly, PW.1 to PW.36 have been subjected to examination and got marked several documents as per Ex.P1 to Ex.P55 and also got marked MO.1 to MO.12. Subsequent to closure of evidence on the part of the 6 prosecution whereby recording the incriminating statement as under Section 313 of Cr.P.C., for enabling him to evidence appeared against him whereby the accused denied the truth of the evidence of the prosecution adduced so far. Subsequently, accused was called upon to adduce the defence evidence as contemplated under Section 233 Cr.P.C. But the accused did not come forward to adduce any defence evidence on his side. Accordingly, it was recorded.
6. Subsequent to closure of the evidence on the part of the prosecution as well as the defence side, the trial Court heard the arguments advanced by the learned Public Prosecutor and also the arguments of the learned defence counsel. On perusal of the entire evidence on record, the Trial Court had appreciated the evidence of PW.2 – D.V.Veeresh who is brother of the deceased and PWs.3 and 4 who are panch witnesses in respect of Exs.P2, 3, 4 and 5 that is inquest held over the dead body respectively. PW.5 7 – D.V. Manjunath who is brother in law of the deceased – Shivananda. PW.8 – Shoba is none other than wife of the deceased. PW.9 – Dakshayanamma is sister-in-law of the deceased and PW.11 is one of the panch witness in respect of Ex.P5 of the inquest held over the dead body of the deceased and PW.12 – Sudharani is sister of the deceased. These are all the evidence which have been facilitated by the prosecution inclusive of evidence of PWs.29 and 30 who are police constables who apprehended the accused. PW.35 being the investigating officer who thoroughly investigated the case and laid the charge sheet against the accused. These are all the evidence facilitated by the prosecution and more over trial Court had appreciated the evidence and the averments of the complaint at Ex.P1 and fulcrum of the facts in the mahazar of Ex.P1 i.e. spot mahazar and seizer mahazar two in number as at Ex.P3 and Ex.P4. But Ex.P5 is inquest held over the dead body of Shivananda. Ex.P17 is another seizure mahazar and Ex.P18 is one of the mahazar said to have been conducted 8 by the investigating officer on 12.11.2012 and similarly seizure mahazar at Ex.P19, 20 and 21 held by the investigating officer in the presence of panch witnesses. But spot mahazars at Ex.P22, 23 and 24 it is three in number which has been conducted by the investigating agency on 12.11.2022. Post mortem report at Ex.P28 has been got marked on the part of prosecution and whereby the autopsy over the dead body has been held and noticed the injuries which were inflicted over the person of the deceased. Ex.P35 and 36 are DNA profile reports. Ex.P38 is DNA center identification form. These are all the material documents that have been got marked on the part of the prosecution and more so the accused had given voluntary statement as per Ex.P47 during the course of investigation carried out by the investigating agency. The P.F.48, 49, 50/2012 have been got marked at Exs.P48, 49 and 50 respectively. The trial Court had closely analysed the evidence of those witnesses and also material documents which got marked on the part of prosecution 9 and convinced by the evidence that has been facilitated by the prosecution held that the prosecution has proved the guilt of the accused and rendered the judgment of conviction and order of sentence in S.C.No.58/2013 for the offences punishable under Sections 302 and 201 of IPC, 1860. It is this judgment which is challenged under this appeal by urging various grounds.
7. Whereas, learned counsel Sri.Karthik Yadav U has taken us through the evidence of PW.8 – Shoba who is none other than wife of the deceased – Shivananda. But prosecution even though facilitated the evidence by subjecting to examination several witnesses, but adequate evidence has not been put forth for securing conviction that the accused had committed the murder of the deceased. On this premise seeks for interference with the judgment of conviction rendered by the trial Court which is contrary and perverse and without appreciation of evidence in proper perspective manner. If the judgment of 10 conviction is not interfered, certainly the gravamen of the accusation would be the sufferer and also there shall be substantial miscarriage of justice.
8. It is contended that there was no nexus between any offences alleged by the prosecution against the accused such as accused had committed the murder of the deceased – Shivananda by assaulting him with means of deadly weapon machete. Whereas, the prosecution had failed to prove the guilt of the accused by facilitating worthwhile evidence despite that the trial Court has considered the evidence of the prosecution without properly appreciating the evidence and further contended that there is no iota of evidence for convicting the accused. Insofar as motive factor for commission of offences, there is no evidence facilitated by the prosecution. But the theory of the prosecution is that accused had some illicit relationship with PW.8 – Shoba who is none other than wife of the deceased – Shivananda. Even though this 11 theory is established by the prosecution by putting forth evidence and subjected to examination of number of witnesses but keeping in view the aforesaid illicit relationship between accused and PW.8 – Shoba came to the conclusion that on this ground accused alleged to had committed the murder of the deceased and having an intention to get benefit of the entire property along with PW.8 – Shoba. But primary fact of the prosecution case that PW.8 – Shoba whereby the vital evidence to prove the guilt of the accused. But in her evidence there is no worth while evidence to disclose anything about the incriminating material about the accused that he committed murder of the deceased. The theory put in forth by the prosecution that the accused if had any illicit relationship with PW.8 – Shoba then PW.8 is the prime witness on the part of the prosecution to commission of offence and more so to eliminate her husband – Shivananda. But reading upon the entire evidence facilitated by the prosecution and mainly the evidence of PW.8 does not disclose anything 12 incriminating evidence against the accused or evidence of PW.8 even alleged that there was some illicit relationship between her and the accused. But prosecution has failed to prove the motive factor for commission of offence. On this ground also it requires intervention in the judgment of conviction rendered by the trial Court, if not, certainly there shall be some substantial miscarriage of justice against the accused who is the gravamen of the accusation.
9. The second limb of the argument advanced by the counsel for the appellant who mainly banked upon the evidence of PW.8 – Shoba and even on cursory look it shows PW.8 and one Harish perhaps may having some illicit relationship. But during investigation the investigating agency has not investigated the case in respect of some sort of illicit relationship of PW.8 – Shoba with Harish. This contention is also made by learned counsel for the accused. Insofar as cross-examination of 13 PW.8 even there was suggestion made by the defence side which was denied by her and also denial of such kind of suggestion on the part of the defence side. PW.8 – Shoba who has admitted in her evidence relating to the friendship with Harish. Even the cross-examination has been thoroughly done has been shown by the defence side even to accept that evidence of PW.8 insofar as friendship in between her and Harish. Surprisingly, prosecution has not made said Harish neither as witness in the charge sheet nor he was interrogated by the investigating agency. During the course of investigation that too be for serious offence such as accused alleged to have committed the murder of the deceased with means of Good Day biscuits mixed with sleeping tablets powder and taking him to Karikallu gudda saying to collecting or plucking custard apples and while he was consuming Good Day biscuits alleged to have been mixed with sleeping tablets powder and while he was feeling drowsy then he fell on the ground and thereafter accused alleged to have assaulted with 14 means of machete which is a deadly weapon. Though the prosecution has been subjected to examination of PW.8 – Shoba but failed to established the guilt of the accused by facilitating worth while evidence otherwise to say adequate evidence to secure conviction. But there was some benefit of doubt in the theory of the prosecution has been arise otherwise there was a cloud of doubt arise in the case of the prosecution naturally the benefit of doubt is also in favour of the accused. But in the instant case it was not extended by the trial Court but rendered conviction judgment for the offences punishable under Sections 302 and 201 of IPC, 1860. It is further contended that the entire case has been revolving around the evidence of PW.8 and evidence of PW.2 – D.V.Veeresh. But in the further cross-examination of PW.8, the sisters of the deceased namely Smt.Geetarani and Sudharani clearly stated on the part of the prosecution that the said PW8 and Harish were colluded in elimination the deceased. But the said evidence of Geetha Rani and Sudharani clearly contribute the doubt 15 on the said Harish and PW.8. Even the said clinching evidence establishes that the accused was not involved in the alleged offence of murder of deceased. But the investigation agency did not investigated the matter in the proper perspective manner which is to be termed as perfunctory investigation. The investigation was done even properly in regard to involvement of Harish and PW.8, hence, the investigation which sealed from the truth and that investigation was not taken in the right way and upon the said investigation the appellant herein has become the scape goat in the hands of the respondent police. It is nothing but a perfunctory investigation. But investigation itself establish that the doubt about the involvement of Harish and PW.8 as he was some filial relationship between them. However, commission of offence which reflected on the accused mere because his father was looking after some areca nut trade or business which has been carried by the father of the deceased as Shivananda and Sadananda who are brothers did not had any worldly 16 knowledge. For that reason only the accused father namely G.Rudranna who is well acquainted with the father of the deceased and his brother Sadananda was looking after the neither business or trade as that their father was landlord having areca nut garden. These are the contentions that is taken by the learned counsel for the appellant and seeks intervention in the judgment of conviction and order of sentence rendered by the trial Court.
10. The investigation has been carried by the investigating agency insofar as eliminating the deceased by the accused. But the scientific evidence has not supported for interference of the appellant to commission of offence as contended. The scientific evidence on record is contrary to the specific involvement of the accused in relating to the commission of offence. On this ground alone it requires for intervention in respect of judgment of conviction rendered by the trial Court. Insofar as Section 53A of Cr.P.C17wherein the trial Court has failed to appreciate the evidence and even non-compliance of mandatory provision. But the prosecution has mainly relied on the scalp hair sample of the accused and also particles of hair found in the fist or palm of the decease to have arrived of the final conclusion of convicting the accused. Even close reading of the intentment and scope of Section 53A of Cr.P.C. it is the mandatory provision required for compliance of the procedure under this Section that the investigating agency were required to take or collect sample on the body of the accused. The police were to take permission from the competent Judicial Magistrate. But in the instant case, without following the mandatory provision of Section 53A of Cr.P.C the police took sample hair of the accused at the instance of PW.25. Therefore, his evidence clearly establishes that investigating agency not followed mandatory provision of Section 53A of Cr.P.C. But the evidence which mainly relied on by the trial Court had got no evidentiary value and evidence is not admissible in the 18 relevant provision of Indian Evidence Act, 1872. Insofar as recovery of blood stained clothes it was recovered only at the instance of police inspector being the investigating officer. But the said recovery was affected at the instance of CW.30 who is examined as PW.26 on the part of the prosecution. But his evidence is contrary to the provision of Section 100 of Cr.P.C. Whatever the recovery it was effected on 11.11.2012 as per the evidence of PW.26 the accused has shown the place where the blood stained clothes of the accused was sealed. But upon the statement of the accused even when the mahazar was drawn by the investigating agency was effected recovery of blood stained cloths. Then it is contrary to the provision of Section 100 of Cr.P.C. since it is the heinous offence of Sections 302 and 201 of IPC, 1860.
11. Lastly, counsel by referring evidence of PW.2 – D.V.Veeresh contends that the incident took place on 16.10.2012 on filing of the complaint by D.V.Veeresh who 19 is examined as PW.2. Based upon his complaint criminal law was set into motion. But in the averments of the complaint made by him dead body was recovered from the bush in Karekallu gudda. Other than that complainant D.V.Veeresh has stated nothing in the incriminating statement against the accused with regard to the illicit relationship in between PW.8 – Shobha with appellant / accused. But the trial Court has given more credentiality to the evidence of PW.2 – D.V.Veeresh merely because he has filed complaint relating to the death of his relative Shivananda. Even trial Court did not noticed the improvements on close scrutiny of the evidence of PW.2 – D.V.Veeresh. But improvements was considered by the trial Court and convicted the accused solely on the evidence of PW.2 / complainant - D.V.Veeresh. But not given any credentiality to the aforesaid improvements in his evidence as well as contra evidence of PW.8 – Shobha. Insofar as scientific evidence relating to prove the case against the accused by the prosecution but the 20 prosecution has mainly given more credentiality to the evidence of PW.34 being scientific officer and he has been subjected to examination on the part of the prosecution. He has given evidence relating to matching of hairs recovered from fist or palm of the deceased and hairs which were taken from the accused. As per the theory of the prosecution that during commission of offence the hairs were found in the hands of the deceased. On examination of the same, the investigating agency took the hairs from the accused and these two samples were sent to DNA test at the instance of PW.34 who is the Scientific Officer and have been subjected to examination and he issued opinion report and samples from item No.1 as well as item No.2 which were sent to DNA test that too sample found in item No.2 which clearly matched with the sample blood of accused and hairs recovered by the deceased during the course of investigation and hairs taken from the accused person after his arrest clearly matched with item No.1 and clearly conclusive in his opinion opined that the 21 item No.1 sample clearly matched with item No.2 sample. But opinion given by PW.34 / Scientific Officer the trial Court came to the conclusion that the evidence given by PW.34 / Scientific Officer is conclusive proof of involvement of the accused in commission of crime. But based upon these evidence trial Court has convicted the accused but did not give more credentiality and even not considered the very vital aspect for compliance of mandatory procedure as envisaged under Section 53A of Cr.P.C. But there is no conclusive evidence which were established by the prosecution even regarding collecting sample of hairs of the accused and even they did not took permission from the competent Judicial Magistrate for collecting any sample from the body of the accused for the purpose of scientific evidence. PW.34 / Scientific Officer for the purpose of proving the case of the prosecution has been subjected to examination which is highly contrary, perverse and illegal and on the same evidence the Court cannot decide the case. But in the instant case trial Court 22 has given more credentiality in respect of witnesses such as PW.2 – D.V.Veeresh and PW.8 – Shoba and equally given more credentiality to the evidence of PW.34 being Scientfic Officer having been subjected to examination. But the material insofar as collecting the samples of blood and also hairs which were found in the palm of the deceased the trial Court not at all considered the aforesaid vital evidence and whereby indicates the contrary to prove in respect of theory of the prosecution and insofar as the involvement of the accused. But held conviction against the accused and whereby in this appeal it requires for intervention and re-appreciation of evidence and also re- visiting of the evidence which is found to be perverse, illegal and arbitrary. If the impugned judgment of conviction and order of sentence is not revisited, certainly the gravamen of accusation would be the sufferer.
12. Though motive factor relating to the murder of the deceased by the accused even though last seen theory 23 has been put forth by the prosecution but nothing worthwhile evidence has been elicited by the trial Court as it has given more credentiality to the aforesaid witnesses and rendered conviction for the offences punishable under Sections 302 and 201 of IPC, 1860. In support of his contention, learned counsel facilitated reliance of Anwar Ali and Another Vs. State of Himachal Pradesh (2020) 10 SCC166whereby the Hon’ble Supreme Court has addressed the issues of murder trial insofar as circumstantial evidence. The prosecution failing to establish and prove complete chain of events – contradictions and lacunae in prosecution case noted by the trial Court, held, were not minor in nature – Acquittal restored. In the case of Mohd. Younus Ali Tarafdar Vs. State of West Bengal 2020(3) SCC747whereby in this judgment in para No.10 the Supreme Court of India held that there is no direct evidence regarding the involvement of the appellant in the crime. The case of the prosecution is on the basis of circumstantial evidence. 24
13. Insofar as the reliance of (2019) 17 SCC568of Malaichamy and Another Vs. State of Tamil Nadu wherein in this judgment the Hon’ble Supreme Court of India has been addressed the issues and scope of circumstantial evidence – duty of the Court while assessing circumstantial evidence – what should be – held, court should satisfy itself, that various circumstances in the chain of evidence must have been established clearly and that completed chain is such, as to rule out a reasonable likelihood of innocence of accused. Insofar as offences under Sections 302 and 449 read with Section 34 of IPC, whereas in this reliance addressed the issues relating to the object of said offence and murder trial – conviction based on circumstantial evidence – however, various circumstances in the chain of evidence, not clearly established – accused entitled to benefit of doubt – conviction reversed. These are all the reliances facilitated by the learned counsel for the appellant / accused and 25 even aforesaid reliances as well as evidence which are facilitated by the prosecution. But prosecution has miserably failed to prove the guilt of the accused by producing adequate evidence when the case has been stood for circumstantial evidence as well as even last seen theory but various circumstances in the chain of evidence, it must have established clearly and that completed chain is such, as to be rule out reasonable likelihood of innocence of accused. The circumstances relied upon by prosecution were as follows: (a) Last seen circumstance; (b) Motive for commission of offence; and (c) Recovery of material object based on confession made by Accused. But to prove so far as circumstances of the motive it should not be shaky and not give any room for doubt. When there is a doubt created in the mind of the Court, the benefit of doubt always to be held in favour of the accused. Consequently, when the accused is entitled for 26 benefit of doubt and entitled to be acquitted. In the instant case also prosecution even though examined several witnesses as PW.1 to 36 and several documents has been got marked. But there is no worthwhile evidence has been facilitated by prosecution to secure conviction insofar as offences under Sections 302 and 201 of IPC, 1860. On all these premises, learned counsel for the appellant seeks intervention and consideration of the grounds urged in this appeal and to set aside the judgment of conviction rendered by the trial Court and consequently, prays for acquitting the accused for the offences which charged against him.
14. Per contra, learned HCGP namely Smt.Rashmi Jadhav has taken us through the evidence of PW.2 – D.V.Veeresh and PW.5 – D.V.Manjunath and PW.8 – Shoba. But PW.5 is the cousin brother of deceased and PW.8 is none other than wife of deceased. PW.9 – Dakshayanamma is the sister-in-law of deceased and 27 PW.12 – Sudharani is the sister of deceased. Neither the sister nor the brother – Sadananda had come forwarded to file complaint against the person being arraigned as accused insofar as murder of deceased – Shivananda. But PW.2 – D.V.Veeresh had come forward to file complaint as per Ex.P1 and based upon his complaint criminal law was set into motion and subsequently spot mahazar at Ex.P2 and seizure mahazars at Ex.P3, P4 and P17 were conducted. Inquest was conducted over the dead body as per Ex.P5 in the presence of panchas and also mahazar at Ex.P18 and seizure mahazars as per Exs.P19, P20, P21 and spot mahazars as per Ex.P22, P23 and P24 were conducted by the investigating agency during the course of investigation. Ex.P25 is the panchanama relating to the sleeping tablets which alleged to have been made as powder and applied on the Good Day biscuits which was carried by accused to eliminate deceased – Shivananda and also took the deceased wherein he was in the garden land for the purpose of plucking custard apples at 28 Karekallugudda and while the accused made the deceased to take that Good Day biscuits which were applied with sleeping tablets powder and while he was in drowsiness the accused alleged to have murdered deceased – Shivananda with an intention to develop close relationship with his wife PW.8 – Shobha as illicit relationship with her and with an intention to do entire family transaction of PW.8 even though she had given birth to the children. But the father of accused namely G.Rudranna who was looking after the trade or business of Areca nut, but deceased and his brother – Sadananda both of them were not having knowledge of worldly affairs because of which the father of accused had acquainted with the father of deceased and was looking after the areca nut business and father of deceased who was the landlord. But there was some illicit relationship alleged in between PW.8 – Shobha who is none other than the wife of deceased – Shivananda. But deceased – Shivananda and his brother – Sadananda were not having worldly knowledge and accused was looking 29 after the business of deceased – Shivananda and his brother. On that particular day PW.5 who is none other than the brother of CW.1 saw the accused going towards the land of deceased – Shivananda and he himself was sitting in the Bus stand but later in the evening the family members of deceased – Shivananda told that deceased was missing and they made search of him but went in vain. But later on 16.10.2012 they found the dead body of deceased and who was done to death. On the same day evening hours the accused was absconding and later he was apprehended by the police. There was evidence adduced by PW.5 on the part of the prosecution as the accused had lust with the wife of deceased – Shivananda and also property of the deceased. Therefore, he committed the murder of deceased. The entire case has been revolving around the evidence of PW.2 – D.V.Veeresh and PW.5 – Manjunatha and PW.8 – Shobha. PW.4 – Nagaraju being the mahazar witnesses in respect of Exs.P3 to P5 was subjected to examination. Ex.P5 is the inquest 30 made over the dead body of deceased – Shivananda. Even supporting the case of the prosecution PW.4 was subjected to examination and also stood for cross-examination but in his evidence he denied the suggestion that by listening to Sudharani and Geetarani and at their instance he is deposing against accused. But nothing worthwhile has been elicited even though subjected to cross-examination of PW.4. The seizure of MO.1 and 4 have been proved by the prosecution by facilitating the evidence. The prosecution has subjected to examination of PW.34 who is the Scientific Officer who tested the hairs found on the palm of deceased and the blood of deceased and found that they tally and given the report as per Ex.P35. Even he has supported the case of the prosecution and he has done the DNA profiling of the blood of accused and the hairs said to be found in the hands of deceased and found that both are of same person. The profiling results are marked at Ex.P36, results of testing at Ex.P37, forms sent for having collected blood of accused at Ex.P38 and 39 and sample 31 seal at Ex.P40. But PW.35 is the investigating officer and he has conducted the investigation and also mahazars have been drawn as per Ex.P18 to P25. Even those mahazars along with the report of CW.41 clubbed with photos and reports of other scientific officers prove the guilt of the accused beyond all reasonable doubt.
15. PW.32 who is the scientific officer was also subjected to examination and she has taken for analysis one tablet from what was seized under Ex.P25 and sent back remaining tablets MO.11 to the investigating officer with report at Ex.P33. She has supported the case of the prosecution by deposing that the tablet she examined contained alprazolam, which causes sleep. But in the cross-examination nothing worthwhile was elicited to disprove the theory of the prosecution. PW.31 is also the scientific officer who has analysed and examined the viscera of deceased Shivananda i.e,. stomach, its contents, portions of liver, lungs, heart, brain and kidney sent to her 32 by the police and gave report as per Ex.P32 that alprazolam was found in the stomach contents. In the cross-examination she has stated that she has no doubt admitted that alprazolam tablets were not sent to her for examination but however, when she analysed the stomach contents found alprazolam contents in it. The deceased was made to take sleeping tablets powder applied on biscuits. If the report of this witness with post mortem report is read, it implies that accused had fed the deceased with alprazolam tablet. These are all the evidence appreciated by the trial Court and rightly came to the conclusion that the prosecution has proved the guilt of the accused beyond all reasonable doubt. Therefore, in this appeal it does not call for interference and there is no perversity or illegality or absurdity warranting interference. On all these premises learned HCGP for State sought for dismissal of the appeal being devoid of merits.
16. It is in this backdrop of the contention as taken by the learned counsel for the appellant / accused and so 33 also, stout arguments addressed by learned HCGP for State, it is relevant to classify certain important materials even for appreciation of materials. But in the instant case, the offence under Sections 302 and 201 of IPC have been lugged against the accused for murder of deceased – Shivananda by making him to take Good Day biscuits by applying the sleeping tablets which was in powder and made him to feed and thereafter, the accused alleged to have assaulted with means of deadly weapons of Machete. But the entire case has been revolving around the circumstances which must be relevant in showing the possibility of murder committed by the accused. The rule for admissibility and weight of statements and letters of deceased as ‘circumstances of the transaction’ resulting in death, whereas in the circumstances of the transaction which is resulting in death even the entire criminal trial but the Evidence Act, 1872 explained, for proving murder the standard tests for murder by applying sleeping tablets powder on biscuits must be satisfied and even keeping in 34 view Section 313 statement of the accused even after completion of the evidence facilitated by the prosecution but it requires to be classified murder by making deceased Shivananda to take Good Day biscuits applying the powder of sleeping tablets with an intention to eliminate him since the accused was having lust and he wanted to develop illicit relationship with PW.8 - Shobha. But murder by making deceased to take tablets MO-11 and the second one is circumstantial evidence even to some extent looking into benefit of doubt.
17. Even circumstantial evidence, the cardinal principles for conviction it is on the basis of, restated. Even held on facts, circumstances not sufficient to conclusively establish the guilt of the accused. Circumstance of last seen together and other circumstances examined in the light of the facts of the case. Circumstances not put to the accused under Section 313, Cr.P.C. cannot be held against him. But in the instant case, the accused and his father 35 are well acquainted with the family of deceased – Shivananda and also his brother – Sadananda and they were not having any worldly knowledge because of that G.Rudranna who is the father of accused since many years had acquainted with the family and looking after the landed property belonging to the father of the deceased. But on the fateful day deceased – Shivananda had been to the garden land by carrying buffalo also. But on seeing him the accused took deceased towards Karikallu Gudda and while proceeding he made him to take Good Day biscuits which mixed with sleeping tablets powder but while he was taking biscuits he felt drowsy and thereafter the accused alleged to have assaulted with means of deadly weapon of Machete MO-3 by choosing the vital part of his face even though there was some resistance and defense taken by deceased – Shivananda by holding scalp hair of the accused. Therefore, certain hairs was found on his palm and the same was collected by the Doctor and given to the police and in turn was sent to the FSL for 36 having subjected to examination which was found tallying with that of deceased and also blood sample of accused. Even the defense has been taken by the accused when can constitute an additional link in the chain of circumstances against the accused. But infirmities in the prosecution case cannot be cured by use of such additional link. It is an important stage whereby the circumstances in respect of which accused not examined under, cannot be used against him. Even the last seen together where it was natural for the deceased to be with the accused at the material time, other possibilities must be excluded before an adverse inference can be drawn. But as according to the theory put forth by the prosecution the evidence it must be positive, consistent and cogent then only the prosecution has to secure the conviction in respect of the offences lugged against the accused. In the instant case, PW.2 – D.V.Veeresh who has given complaint by narrating the incident that too be regarding the dead body of Shivananda which was found near the bush near Karikallu 37 Gudda and it was covered with Dothi and thereafter tracing of the accused during investigation and the accused was apprehended and thereafter the accused was put on trial and whereby subjected to examination of PWs.1 to 36 and various documents are got marked and also several mahazars have been conducted and even DNA analysis has also taken place. But in a criminal trial, where there is benefit of doubt when can be given where there are two possibilities, one of commission of crime and the other of innocence are reasonably possible, accused entitled to benefit of doubt. This issue has been extensively addressed by the Hon’ble Supreme Court in the case of Sharad Birdhichand Sarda vs. State of Maharashtra reported in (1984) 4 SCC116 In the instant case, while two ingredients have been proved but two have not. In the first place, it has no doubt been proved that Manju died of potassium cyanide and secondly, it has also been proved that there was an opportunity to administer the poison. It has, however, not been proved by any evidence that the 38 appellant had the poison in his possession. On the other hand, as indicated above, there is clear evidence of PW.2 that potassium cyanide could have been available to Manju from the plastic factory of her mother, but there is no evidence to show that the accused could have procured potassium cyanide from any available source. We might here extract a most unintelligible and extra-ordinary finding of the High Court- "It is true that there is no direct evidence on these two points, because the prosecution is not able to lead evidence that the accused had secured potassium cyanide poison from a particular source. Similarly there is no direct evidence to prove that he had administered poison to Manju. However, it is not necessary to prove each and every fact by a direct evidence. Circumstantial evidence can be a basis for proving this fact.
18. In the instant case, the hairs which was found in the palm of deceased – Shivananda was given by the Doctor while conducting the autopsy over the dead body 39 and the same was handed over to the police agency during the course of investigation. The hairs which was collected was that of scalp hair of the accused and that sample blood of the accused and hairs which was found on the palm of deceased – Shivananda had been sent to the FSL for having subjected to examination. Merely because it was tallying with that of deceased, it cannot be said that the prosecution has proved the guilt of the accused with beyond all reasonable doubt.
19. Whereas in aforesaid judgment of Sharad Birdichand Sarda, the Hon’ble Supreme Court at para 163 has observed as under: “We then pass on to another important point which seems to have been completely missed by the High Court. It is well settled that where on the evidence two possibilities are available or open, one which goes in favour of the prosecution and the other which benefits an accused, the accused is undoubtedly entitled to the benefit of doubt. In Kali Ram v. State of Himachal Pradesh,(l) this Court made the following observations:
40. Another golden thread which runs through the web of the administration of justice in criminal cases is that if two views are possible on the evidence adduced in the case one pointing to the guilt of the accused and the other to his innocence, the view which is favourable to the accused should be adopted This principle has a special relevance in cases where in the guilt of the accused is sought to be established by circumstantial evidence.
20. Here also, the Court found that the circumstances afforded a greater motive for the accused to commit murder as narrated in the theory of the prosecution rather than the allegation. This view was reiterated in Dharambir Singh case reported in 34 Crl.LJ754where the Court observed as follows:
"Therefore, along with the motive, the prosecution has also to establish that the deceased died of a particular poison said to have been administered, that the accused was in possession of that poison and that he had the opportunity to administer the same to the deceased: (see Mt. Gujrani and another v. Emperor). It is only when the motive is there and these facts are all proved that the court may be able to draw the inference, in a case of circumstantial evidence, that the poison 41 was administered by the accused to the deceased resulting in his death.
21. Whereas on close scrutiny of evidence of prosecution which is stated supra, but on consideration of evidence and also circumstances referred to above, satisfactory evidence or adequate evidence requires to be facilitated by the prosecution to secure the conviction. But in the instant case, the entire case is revolving around the evidence of PW.8 – Shobha who is none other than the wife of deceased – Shivananda. There was an evidence on the part of the prosecution which is found and she was subjected to thorough cross-examination, but in the instant case the prosecution did not prove the case against the accused conclusively and unerringly, and at any rate two reasonable views were possible on close scrutiny of evidence of PW.2 and PW.8.
22. In the instant case, the prosecution has mainly relied upon the disclosure statement of the accused and so 42 also, recovery of material objects which were got marked MO-1 to MO-12 and also subjected in PF. Before the trial Court the case was based upon circumstantial evidence as there was no direct evidence. However, on appreciation of evidence on record, both oral as well as documentary, the trial Court by detailed reasoning and more so, the appreciation it is vested with the trial Court and it is the domain of the trial Court as well as equally the domain vested with the prosecution to facilitate the worthwhile evidence to secure the conviction. But in the instant case though the prosecution has been subjected to the examination of PWs.1 to 36 and several documents have been marked but the prosecution has failed to establish and even prove that it was a case of circumstantial evidence. Therefore, in this appeal it requires for intervention, if not, the accused being the gravamen of accusation would be the sufferer and also there shall be a substantial miscarriage of justice. There is duty caste upon the prosecution to facilitate the worthwhile evidence 43 and that must be positive, consistent, corroborative and cogent to probabalise that the accused had committed the murder of deceased. If any of chain of circumstances not established, it would create the doubt in the mind of Court and that benefit of such doubt should always be in favour of accused. Accordingly, in the instant case it requires intervention. But appeal is nothing but of a continuity of proceedings but the domain it is vested with the prosecution and the prosecution has to prove the complete chain of circumstances which would lead to conclusion that the accused who alone has committed the offences. In the instant case, the prosecution has failed to prove the chain of events by facilitating worthwhile evidence. There are material contradictions and even recovery of materials which were got it marked and also last seen theory put in forth by the prosecution, but there shall be some doubt and even it creates series of doubt and therefore, the domain vested with the trial Court it has to appreciate the evidence in a proper perspective manner also rendering the 44 benefit of doubt in favour of the accused. Consequently, in the instant case, it requires intervention, if not intervened by re-appreciation of evidence as well as revisiting the judgment of conviction and order of sentence, there shall be some substantial miscarriage of justice insofar as accused is concerned who is the gravamen of the accusation made against him. For the aforesaid reasons, we are of the opinion that the contentions made by the learned counsel for the appellant by facilitating certain reliances rendered by the Hon’ble Supreme Court even taking into consideration the law on the issue it can be summarized to the effect that when there are some compelling circumstances and the judgment which is scanning under this appeal it is found to be perverse, the appellate Court can interfere with the order of conviction rendered by the trial Court. But the appellate Court should always bear in mind the presumption of innocence of accused and further that the trial Court even though 45 has appreciated the evidence but rendered the conviction judgment.
23. The Hon’ble Supreme Court in the case of Upendra Pradhan vs. State of Orissa (2015) 11 SCC124insofar as Sections 378, 379 and 386, appeal against acquittal, possibility of two views, reiterated, benefit of doubt must go to accused and in case of two views, view which favours accused should be taken and more so where trial court’s decision was not manifestly illegal, perverse and did not cause miscarriage of justice. But in the instant case, there are two views which can be culled out from the perusal of evidence and application of law, view which favours accused should be taken and it has been recognized as a human right by Supreme Court. But in the decision of trial court there is some perversity and illegality causing miscarriage of justice. Whereas in the instant case, some interested/partisan witnesses, their testimony shall be appreciated and the testimonies of 46 interested witness are of great importance and weightage and no man would be willing to spare real culprit and frame innocent person. In the instant case, mere because the dead body of deceased – Shivananda was found near the bush area near Karikallu Gudda and on identification of dead body and also on filing of complaint, the criminal law was set into motion. But PW.8 who is none other than the wife of deceased – Shivananda and even though the family consisting his sisters, brother – Sadananda but they did not come forward voluntarily to file complaint relating to initiation of criminal prosecution against the person being arraigned as accused and also being felonies committed the murder and done to death even narrated in the complaint averments as well as several mahazars have been conducted by the investigating agency. But in the totality of the circumstances and also evidence which is facilitated by the prosecution are found to be some doubt and when the clouds of doubt it arises, the same shall be held in favour of the accused and not the prosecution. In 47 the instant case, it requires for intervention as the trial Court did not appreciate the evidence in a proper perspective manner. Therefore, it is deemed appropriate to state by referring the provision of Section 134 of Indian Evidence Act whereby merit of statement is important – it is well known principle of law that reliance can be based on the solitary statement of a witness if the court comes to the conclusion that the said statement is the true and correct version of the case of the prosecution. The said issue has been extensively addressed by the Hon’ble Supreme Court in Raja v. State (1997) 2 Crimes 175 (Del).
24. The Hon’ble Supreme Court in State of Uttar Pradesh v. Kishanpal 2008 (8) JT650in respect of quality of evidence held that it is the quality of the evidence and not the quantity of the evidence which is required to be judged by the Court to place credence on the statement. 48
25. Insofar as plurality of witnesses, the Hon’ble Supreme Court in the case of Laxmibai (Dead) through LRs v. Bhagwantbura (Dead) through LRs AIR2013SC1204held that in the matter of appreciation of evidence of witnesses, it is not number of witnesses, but quality of their evidence which is important, as there is no requirement in law of evidence that any particular number of witnesses is to be examined to prove/disprove a fact. It is a time-honoured principle, that evidence must be weighed and not counted. The test is whether the evidence has a ring of trust, is cogent, credible and trustworthy or otherwise. The legal system has laid emphasis on value provided by each witness, rather than the multiplicity or plurality of witnesses. It is quality and not quantity, which determines the adequacy of evidence as has been provided by Section 134 of the Evidence Act.
26. In the case of Lallu Manji vs. State of Jharkhand AIR2003SC854 the Hon’ble Supreme Court 49 held that the law of evidence does not require any particular number of witnesses to be examined in proof of a given fact. However, faced with the testimony of a single witness, the court may classify the oral testimony of a single witness, the court may classify the oral testimony into three categories, namely (i) wholly reliable, (ii) wholly unreliable, and (iii) neither wholly reliable nor wholly unreliable. In the first two categories there may be no difficulty in accepting or discarding the testimony of the single witness. The difficulty arises in the third category of cases. The court as to be circumspect and has to look for corroboration in material particulars by reliable testimony, direct or circumstantial, before acting upon testimony of a single witness.
27. These are all the reliances rendered by the Hon’ble Supreme court and squarely applicable to the present case on hand. But the accused is gravamen of accusation and whereby the case ended in conviction for the offence punishable under Sections 302 and 201 of IPC50in S.C.No.58/2013 and more so, is in judicial custody since from the date of his arrest it is almost 7 years 2 months. But the entire case is based upon the circumstantial evidence and there is no direct evidence relating to the accused committed murder of deceased – Shivananda merely because there was acquaintance between the accused and deceased. But father of accused G.Rudranna who was looking after the affairs of landed property of deceased – Shivananda as deceased – Shivananda and his brother – Sadananda were not having worldly knowledge because of father of accused – G.Rudranna was looking after the areca nut business or trade and even the landed property belonging to the father of deceased. This accused was having some lust with PW.8 - Shobha who is none other than the wife of deceased – Shivananda and more so, he was looking towards closely to have illicit contact with her and also with an intention to take the property in case eliminating her husband. Though this theory is put in forth by the prosecution, but there is 51 no positive evidence to prove that this accused has committed murder and done to death by assaulting the deceased by means of Machete. However, in totality of facts and circumstances of this case of the prosecution even for re-appreciation of evidence and also revisiting impugned judgment rendered by the trial Court, but we are of the opinion that there are contradictions and inconsistencies in the evidence of prosecution and there shall be some clouds of doubts. When there is a doubt it should always be in favour of accused alone. Consequently, the accused deserves for acquittal. In view of the aforesaid reasons and findings, we proceed to pass the following:
ORDERThe appeal preferred by the appellant / accused under Section 374(2) of Cr.P.C. is hereby allowed. Consequently, the judgment of conviction and order of sentence rendered by the trial Court in S.C.No.58/2013 dated 21.11.2016 is hereby set-aside. 52 The appellant / accused is acquitted for the offences punishable under Sections 302 and 201 of IPC which were charged against him. The amount if any, deposited by the appellant / accused shall be returned to him, on due identification. Registry of this Court is directed to forward copy of the operative portion of the order to the concerned Superintendent of jail authority where the accused is housed with a direction to release the appellant/accused forthwith, if he is not required in any other case. Accordingly, it is observed. Sd/- JUDGE Sd/- JUDGE RJ/DKB