Kumar Rajarathnam, J.
1. This is an appeal preferred by the appellant accused against his conviction for an offence under Section 302 IPC. The accused was convicted by the III Additional District and Sessions Judge, Mysore in S.C.No. 118/94 dated 18th of July, 1995 for an offence under Section 302 IPC and sentenced to imprisonment for life.
2. The prosecution case is that on 5.1.1994 at 8.00 p.m. the accused took the deceased Suresh Babu alias Soori from the Mysore bus stand on the pretext that he would supply him with a girl at Bandipalya village. It was further alleged that the accused took the deceased in an auto rickshaw to a place called Hosahundi and assaulted him with a stone and committed his murder.
3. P.W.1 came to know that a body was lying in the field and he informed the police and a complaint was filed. P.W.29 the Circle Inspector of Police registered a case on 6,1.1994 at 3.45 p.m.
4. P.W.30 the Circle Inspector of Police, Mysore South Circle, took up further investigation. He proceeded to the spot and prepared the inquest report Ex.P-9. He also seized the blood stained soil and stones. He got the photographs of the dead body taken through a photographer and sent the dead body for post-mortem. P.W.30 published the photograph in the news paper so that the identity of the deceased could be known. On 7.1.1994 the brother of the deceased (P.W.10) saw the photograph of the deceased and suspected that the deceased was his brother Suresh Babu. He identified the deceased. It appears that the investigation was kept in a cold storage till 26.3.1994.
5. On 26.3.1994 the accused was arrested in connection with some other crime in Crime No. 245/93. The accused gave a voluntary statement and on the basis of the statement a watch - M.O.2 was recovered from P.W.14 the pawn broker. On the basis of the statement by the accused, suit case M.O.1 belonging to the deceased was recovered from the accused.
6. The investigation, which came to a grinding halt, immediately after the occurrence was revived after the statement given by the accused on 26.3.1994.
7. P.W.2 is the auto rickshaw driver who claims to have taken the accused and the deceased to Gundurao Nagar. According to P.W.2, the passengers asked P.W.2 to drive the auto rickshaw on Uthanahalli road when they came about 1 1/2 KMs on the road, he left them there and the deceased gave Rs. 50/- to the accused and the accused in turn gave P.w.2 the said money and P.W.2 returned Rs. 20/- and kept Rs. 30/- towards the fare. P.W.2 also identified in Court the suit case M.O.1
8. P.W.3 is the Police Constable who was on duty on 5.1.1994. He was incharge of regulating the autos at the bus-stand. He stated that from his records auto rickshaw bearing No. KA 09 2365 had taken two passengers and was going to Gunduraonagar. He identified the accused and through the photograph the deceased.
9. P.W.4 claims to have met the deceased at the bus stop. P.W.5 is the telephone operator at the bus stand. She stated that a little earlier to 8.00 p.m. a person who was shown in the photograph had come to her booth and made some telephone calles. She was also able to identify the suit case M.O.1.
10. P.W.6 was the friend of the deceased. He also stated that he saw the deceased at the bus stop. The deceased was wearing 'T' shirt, pant and holding a suit case. P.W.7 is the contractor who was a friend of the deceased. He claims to have seen the deceased at 2.00 p.m. on 5.1.1994. He also claimed that the deceased and himself went to the local Bar and the deceased consumed some liquor. He identified the suit case M.O.1 and watch M.O.2. P.W.8 is also yet another contractor. He claims to have seen the deceased on 5.1.1994. P.W.9 claims to know the deceased well. He stated that the deceased was addicted to drinks and was a womaniser.
11. P.W.10 is the brother of the deceased. Curiously P.W.10 stated that the deceased was addicted to vices like drinking and womanising P.W.10 also stated that the deceased sustained heavy loss in business, P.W.10 stated that on 5.1.1994 the deceased left the house at 9 a.m. and had taken Rs. 300/- from his mother and did not return to the house. He saw the photograph of the deceased in the news papers and went to the mortuary to identify the dead body of the deceased. P.Ws 12 and 13 are mahazzar witnesses for the inquest.
12. As stated earlier P.W.14 is the owner of the pawn shop. He stated that the accused had pledged a HMT watch in February 1994 for Rs. 165/-. About 11/2 months later, the police came to the shop and in the presence of the accused he produced the watch M.O.2 and the receipt book Ex.P-11.
13. After getting the post-mortem report on the deceased and after completing the investigation, P.W.30 filed the charge-sheet against the accused. P.W.21 is the doctor who conducted the postmortem on the dead body of the deceased. He noticed the following injuries:-
'1) Transverse Crescent lacerated wound of 17 cmz. is present over the right lateral part of the head extending from the double of the ear upwards and backwards over the interior part of head upto 4 cms distance from the external occipital protuberance and 6 cms above the hair line. The wound shows the flap formation of its lower margin down to the nape of the neck. The margins of the wand were abraded and contused showing brinish black colour. The right ear was totally avulsed forward from its attachment at the fore end of the injury. The injury had exposed the underlying bone.
2) 'Y' shapped inspect abrasion cum contusion of 11 cm x 5 cm was present over the right zygoma and cheek extending from the double of the right ear in a horizontal manner.
3) Rectangular transverse impact abrasion cum contusion of 3 cms x 2 cms is present over the middle of forehead just above the glabella.
4) Oblique, lacerated wound of 1.5 cms x 1 cm was present over the inner side of lower lip on the left side.
5) Oblique contused abrasion of 3 cms x 2 cm was present over the inner end of the top of the right shoulder.
6) Inverted 'L' shape contused abrasion of 2 cms x 2 cm of the CM thickness was present over the front of the left shoulder.'
On examination the doctor noticed the following internal injuries:-
'1. Scalp thick contusion of right temporal occipital region was present.
2. Skull : Oblique complete 10 cms long fissured fracture of the right posterior criminal fossa on the floor was present, extending from 4 cm back to the outer end of the petrous part, of the temporal bone and running 2 cm behind and below to it and ending at the posterior and right margin of the sella-tursica.
3. Brain : All intravenous hemorrhage (inmeningeal) present. Brain was soft end and congested.
4. Coup contusion of the right temporal occipital lobe and contra coup contusion of the entire left cerebra hemisphere was present. '
5. The right upper and lateral part of the neck and ribbon mussels were lacerated and contused extensively to the posterior surfaces.'
P.W.21 opined that the injuries are antimortem and the injuries could be caused by hard and heavy blunt object like a stone.
14. In this case there are no eye witnesses. The whole case results on circumstantial evidence.
15. It is only when the accused was arrested in Crime No. 245/ 1993 in connection with some other crime a voluntary statement was recorded by P.W.30 on 26.3.1994 which led to further investigation. The occurrence is alleged to have taken place on 5.1.1994 and the accused was arrested in connection with some other case on 26.3.1994. It appears that no proper investigation was done till 26.3.1994 even after a elapse of 21/2 months.
16. The learned State Public Prosecutor Mr. Koti submitted that the testimony of P.W.2 the auto rickshaw driver and P.W.3 the Police Constable clearly establishes that the deceased and the accused were last seen together at about 8.15 p.m. on 5.1.1994. He, however, conceded that P.Ws 2 and 3 were examined only after the arrest of the accused on 26.3.1994. Other than the testimony of P.Ws 2 and 3 there is no other material on record to show that the accused and the deceased were last seen together on the date of the occurrence. We shall deal with the evidence of P.Ws 2 and 3 a little later. As far as the accused being seen after the occurrence there is no evidence on record to determine the whereabouts of the accused after the occurrence. In fact, it is the case of the prosecution that there was no clue as to who was the accused till 26.3.1994 when the accused was arrested in some other case. Therefore, the entire case in our view rests on the testimony of P.W.2 the auto rickshaw driver and P.W.3 the police constable. Both these witnesses claim to have seen the deceased and the accused on the date of the occurrence.
17. P.W.2 admitted that the RC book of the auto does not stand in his name although he had purchased the auto from one Sunder. He admitted that he did not even have a driving licence to drive the auto and only had a learner's licence. He stated that he dropped the accused and the deceased in Gundurao Nagar. However, there is no materials to show how far Gunduraonagar is from the place where the body of the deceased was found. He also stated that he did not point out the place where the deceased and the accused got down from the auto rickshaw. He was admittedly examined only after the arrest of the accused on 26.3.1994. In other words, he was examined by the police only after 21/2 months. P.Ws.3 was the police constable on duty regulating the autos. He stated that he was called by the police only after three months after the occurrence. He also stated that the book which he was carrying which related to 'Regulating Autos' does not bear his initial. He admitted that there were 30 to 40 autos standing in queue. This witness was also examined after the accused was arrested after a gap of 21/2 months.
18. In a case of circumstantial evidence, it would be difficult to place reliance on P.Ws 2 and 3 who were examined only after a gap of 21/2 months. After all, P.W.3 who is a Police Constable, belonged to the local police station and when the dead body was found, if he had really seen the accused and the deceased traveling in the auto, he would certainly have brought it to the notice of the investigating officer. The fact that he was examined after a considerable length of time it would not be safe to place any reliance on this witness. It is not in dispute that the police were aware that the deceased died of unnatural causes, since P.W.1 noticed the dead body and reported the matter to the police the police took up investigation on the very next day at 3.00 P.M. Therefore, no reliance can be placed on the testimony of P.Ws 2 and 3. It was submitted by the learned Public Prosecutor that all the other witnesses were also examined only after the arrest of the accused. There is no material on record to show that the investigation proceeded after the complaint was given on the next day. Indeed it is the case of the prosecution that the investigation was commenced on 26.3.1994 after a gap of 21/2 months. On 26.3.1994 the accused was arrested in connection with some other crime.
19. We are now left with the recovery of the watch. P.W.14 is the owner of the pawn shop. He stated that some time in February, 1994, the accused had pledged the watch-M.O.2 belonging to the deceased. His testimony was that even on earlier occasion police have seized other materials from his shop.
20. In the light of the evidence placed before the Court the learned Public Prosecutor fairly submitted that if no witness is examined at the earliest opportunity with regard to the identification, the accused would be liable to be convicted if not under Section 302 IPC but for an offence under Section 411 IPC read with Section 114-B of the Evidence Act.
21. Mr. Deshpande, the learned Counsel for the appellant relied on the Judgment of the Supreme Court in TULSIRAM KANU v. THE STATE, : AIR1954SC1 . The Supreme Court at paragraph-7 has held as follows:-
'Apart from this confession the judgment of the High Court is based on the identification of the gold ornaments. The Sessions Judge recognised that if the ornaments had been proved to have been the property of the deceased it would have been possible to infer that the accused was the person who committed the murder and robbed the murdered man. In our opinion, this reasoning, under the circumstances of the case, is unsound. The alleged murder took place on 26.5.1949 and assuming that the ornaments were traced to the accused at the end of October 1949, no legitimate inference could be drawn about the appellant being the murderer of the deceased. The important factor which appears to have been overlooked is that five months had elapsed between the date of the alleged murder and the tracing of the ornaments. The presumption permitted to be drawn under Section 114 illu.(a), Evidence Act, has to be read along with the important time factor. If ornaments or things of the deceased are found in the possession of a person soon after the murder, a presumption of guilt may be permitted. But if several months expire in the interval, the presumption may not be permitted to be drawn having regard to the circumstances of the case. This criticism applied equally to the reasoning of the High Court for its conclusion.'
The supreme Court dealt with a similar situation in which the accused was arrested about five months after the death of the deceased, when his house was searched one knife with a wooden handle, on white and dirty piece of dhoti suspected to have blood stains and one rusted axe without handle found buried three feet below the ground were taken possession of by the police. Another blood stained dhoti was also recovered from the brother of the accused. The police also seized the crow-bar. The Supreme Court in the case referred to above held that if several months expired between the occurrence and the recovery, no presumption can be drawn having regard to the circumstances of the case. We are, therefore, unable to agree with the submissions of the learned Public Prosecutor that a case under Section 411 IPC is made out.
22. It is a matter of regret that there has been practically no investigation by the investigating officer from 5.1.1994 till 26.3.1994. In these circumstances, we give the benefit of doubt to the accused and allow the appeal. The accused shall be set at liberty forthwith.