Sri Manjunath Vs. State Of Karnataka - Court Judgment

Excerpt:
- 1 - crl.a. no.4 of2018r in the high court of karnataka at bengaluru dated this the26h day of june2023present the hon'ble mr justice k.somashekar and the hon'ble mr justice pradeep singh yerur criminal appeal no.4 of2018between: sri manjunath s/o. g. murthy, aged about24years, r/at no.528, 10th 'c' cross, sanjeevini nagar, moodalapalya, bengaluru-560 072. …appellant and: state of karnataka, by chandra layout police, bengaluru, represented by the state public prosecutor, high court buildings, bengaluru-560 001. …respondent this criminal appeal is filed under section374(2) of code of criminal procedure praying to call for lower court records in spl. c.c.no.231/2015 on the file of the l additional city civil and sessions judge, bengaluru; set-aside the judgment and order on sentence.....

Judgment:

- 1 - CRL.A. No.4 OF2018R IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE26H DAY OF JUNE2023PRESENT THE HON'BLE MR JUSTICE K.SOMASHEKAR AND THE HON'BLE MR JUSTICE PRADEEP SINGH YERUR CRIMINAL APPEAL NO.4 OF2018BETWEEN: SRI MANJUNATH S/O. G. MURTHY, AGED ABOUT24YEARS, R/AT NO.528, 10TH 'C' CROSS, SANJEEVINI NAGAR, MOODALAPALYA, BENGALURU-560 072. …APPELLANT AND: STATE OF KARNATAKA, BY CHANDRA LAYOUT POLICE, BENGALURU, REPRESENTED BY THE STATE PUBLIC PROSECUTOR, HIGH COURT BUILDINGS, BENGALURU-560 001. …RESPONDENT THIS CRIMINAL APPEAL IS FILED UNDER SECTION374(2) OF CODE OF CRIMINAL PROCEDURE PRAYING TO CALL FOR LOWER COURT RECORDS IN SPL. C.C.No.231/2015 ON THE FILE OF THE L ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, BENGALURU; SET-ASIDE THE

JUDGMENT

AND

ORDER

ON SENTENCE DATED1812-2017 PASSED IN SPL.C.C.NO.231/2015, ON THE FILE OF THE L ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, BENGALURU. ' [' THIS APPEAL HAVING BEEN HEARD AND RESERVED ON2403.2023 FOR

JUDGMENT

AND COMING ON FOR - 2 - CRL.A. No.4 OF2018PRONOUNCEMENT THIS DAY PRADEEP SINGH YERUR, J., DELIVERED THE FOLLOWING:

JUDGMENT

This Criminal appeal is preferred by the appellant- accused. The appellant is aggrieved by the Judgment of Conviction and Order of Sentence dated 18.12.2017 passed in S.C.No.231/2015 by the I Addl. City Civil and Sessions Judge, Bengaluru sentencing him to undergo life imprisonment and to pay fine of Rs.20,000/- for the offence under Section 364 of IPC and in default of payment of fine, to further undergo imprisonment for a period of four months. Appellant is sentenced to undergo Life Imprisonment and to pay a fine of Rs.25,000/- for the offence punishable under Section 302 of IPC and in default for payment of fine he shall further undergo simple imprisonment for a period of six months. Further, the appellant is sentenced to undergo simple imprisonment for a period of 7 years and to pay fine of Rs.10,000/- for the offence punishable under Section 201 of IPC and in default for payment of fine he shall further undergo simple - 3 - CRL.A. No.4 OF2018imprisonment for a period of two months and the sentences are ordered to run concurrently.

2. This appeal is against the aforesaid judgment of conviction by the appellant-accused with an endeavour to free himself of the conviction and charges laid against him by the prosecution and from the ordeal of the torture of imprisonment for life. It is to be seen after re-examining and re-appreciating the material evidence placed on record as to whether prosecution has made out a valid ground to uphold the judgment of conviction and order of sentence passed by the trial Court and whether the appellant- accused would be able to succeed in coming out of the clammy grip of sentence of imprisonment of life which would depend on the appreciation and analysis of evidence and the material placed on record.

3. Accused is convicted for having kidnapped and done to death one minor boy viz. Kiran Yadav, aged 14 years brutally by sitting on the top of the body of the minor Kiran Yadav by cutting the neck of Kiran Yadav - 4 - CRL.A. No.4 OF2018brutally by using blade. As a result of which the minor Kiran Yadav received heavy bleeding injuries and died on the spot. After committing the murder, in order to conceal the same, he threw the dead body towards the bushes in the Jnana Bharathi University campus inside Sai grounds. On the basis of voluntary statement of the accused, complainant-Police registered the aforementioned case against him.

4. According to the prosecution, the background of the case is that during the month of December-2014, CW-2-Pramila who is none other than the mother of the deceased Kiran Yadav made a compliant to the mother of the accused, due to which the parents of the accused scolded him, as such, the accused got angry with CW.2- Pramila and with an intention to take revenge against her, on 04.02.2015, he took deceased Kiran Yadav, aged 14 years without the knowledge of anybody to murder him. With this intention, accused went to the shop of CW-14 Prabhudev, purchased 5 supermax shaving blades, kept - 5 - CRL.A. No.4 OF2018them in his bike and about 5.45 p.m., he went near Vishwa Bharati School where deceased Kiran Yadav used to get down from the school van, waited there for deceased Kiran Yadav to get down from the school van and soon after he got down, talked to him and convinced him that his brother viz., Tilak Yadav fell down on the ground and received injuries on his head and that his family members have taken him to the Hospital and accordingly told the deceased Kiran Yadav to accompany him to go to the hospital. Thereafter, the accused took deceased Kiran Yadav in the black motorbike bearing No.KA02 HX7901as a pillion rider in the school uniform itself along with school bag towards Jnana Bharathi University campus, inside Sai grounds.

5. It is the further case of prosecution that Jnana Bharathi University campus consists of a thick forest trees with thick bushes. The accused with an intention to do away with the life of this Kiran Yadav closed the mouth of deceased Kiran Yadav by his hands pushed him down and - 6 - CRL.A. No.4 OF2018sat over his body, took out one blade from his pocket and cut the neck of Kiran Yadav brutally. As a result of heavy bleeding injuries, Kiran Yadav died on the spot.

6. Prior to these events missing complaint came to be lodged by the father of the deceased/complainant on 05.02.2015 at about 9.40 am. The Police registered a complaint in Crime No.50/2015 which was pending. During the course of investigation of tracing the deceased Kiran Yadav and on the basis of credible information and on seeing the CCTV footages of a shop on 10.02.2015, where the accused was seen taking the deceased on the motorbike, the same day he was arrested and on enquiry accused revealed about the murder of Kiran Yadav by him. On the basis of voluntary statement, the Police inserted offences under Sections 364, 302 and 201 of IPC in Crime No.50/2015, which was registered as a missing complaint.

7. After investigation, the investigating officer filed charge sheet against the accused for the offence punishable under Sections 364, 302 and 201 of IPC. After - 7 - CRL.A. No.4 OF2018filing of the charge sheet, the accused who was in judicial custody was produced before the 8th ACMM Court in Bengaluru in CC No.11819/2015, the said Court being a committal Court, furnished the copy of the charge sheet to him. As per Section 207 of Cr.P.C. and since the offences are triable by the Court of Sessions, the said Court committed the case to the Prl. City Civil and Sessions Judge, Bengaluru.

8. After committal of the matter to the Court of 15th Addl. City Civil and Sessions Judge and on hearing the arguments of the learned Public Prosecutor and the learned counsel for the accused, charges came to be framed against the accused for the offences under Section 364, 302 and 201 of IPC. The contents of the charges were read over and explained to the accused in the language known to him i.e. in Kannada, wherein, the accused pleaded not guilty and claimed to be tried.

9. In order to establish the case and prove the guilt of the accused, the prosecution in all examined 26 - 8 - CRL.A. No.4 OF2018witnesses as PW.1 to PW.26, got marked 38 documents in the form of Ex.P1 to P.38 and also marked 20 material objects as M.O.No.1 to M.O.20 and closed its side of evidence. Thereafter, statement of accused was recorded. The accused denied all such allegations and incriminating evidence against him and claimed to be tried and accordingly, he was put on trial. During the course of cross examination of PW.3, accused got marked 14 documents in support of his case as Ex.D1 to D14. But, however, did not lead defence evidence.

10. PW.1 who is the father of deceased Kiran Yadav is the complainant. PW.2 is the car driver of the complainant and PW.3 is the mother of the deceased Kiran Yadav and wife of the complainant. PW.4 is the technician who has taken CCTV camera footage to pen drive, PW.5 is the owner of Sri Lekha Enterprises. PWs.6 and 7 are the panch witnesses, PW.8 to 15 and PW.20 and 23 are the circumstantial witnesses. PW.16 is the doctor, PW.17 to PW.19, PW.21, PW.22 and PW.24 are the Police - 9 - CRL.A. No.4 OF2018officials/personnel, PW.25 and 26 are Forensic officers in this case.

11. As per the evidence of PW.1, he reiterated the complaint given by the PW.3, his wife that during the month of December-2014 when PW.3 made complaint to the mother of the accused against the accused due to which parents of the accused scolded him, the accused got angry with PW.3 and hence with an intention to take revenge against her on 04.02.2015, he decided to take away the son of PW.1 and PW.3 viz. deceased Kiran Yadav without anybody’s knowledge to do away with his life. Further, with this ill intention, he purchased 5 Super max shaving blades from the shop of CW.14-Prabhu Yadav, kept them in his bike and at about 5.45 p.m. went near Vishwa Bharati School where Kiran Yadav used to get down from the school van and after convincing him that he would have to go to the hospital in view of the fact that his brother fell down and received head injuries, the family members have taken him to the hospital, accordingly told - 10 - CRL.A. No.4 OF2018him to accompany him to the hospital. Deceased Kiran Yadav was in school uniform having a school bag and the accused took him on his black motor bike bearing No.KA- 02 HX7901towards Jnana Bharati University Campus inside Sai grounds where thick forest trees are grown, heavy bushes and the accused with an intention to murder Kiran Yadav closed the mouth of deceased Kiran Yadav pushed him on the ground sat on top of his body and cut the neck of Kiran Yadav brutally by using the blade which he purchased from CW.14. Due to severe bleeding injuries, injured Kiran Yadav died on the spot.

12. PW.3 unfortunate mother of deceased Kiran Yadav deposed in the similar fashion to that of PW.1. She has further stated that since on 04.02.2015, her son Kiran Yadav did not come back from the school till 6 p.m. She telephoned to the Van driver in which her son used to come back from school, who informed that deceased Kiran Yadav was dropped on that day near Vishwa Bharathi School. PW.3 fraught with fear, enquired with friends of - 11 - CRL.A. No.4 OF2018her son and since she did not get convincing answer about the whereabouts of her son, she started searching for her son along with PW1 and other relatives at the house of friends of deceased Kiran Yadav and also few relatives till around 10 pm to 11 pm. Since, the child was not found, her husband-PW1 lodged the missing complaint on the next day i.e. on 05.02.2015.

13. It is stated that after two days of lodging of the missing complaint, tenant of accused viz., Prema told her that deceased Kiran yadav was taken by accused in his bike, which information was given to the Police by PW.3. it is also stated in the evidence of PW.3 that one Ashwini W/o Ramakrishna was the tenant of accused was having illicit affair with the accused, which was told to the mother of accused by PW.3. It is also stated by PW.3 that one Prema who is the tenant of accused had informed her about her son deceased Kiran Yadav was taken by the accused on the date of the incident which was told to her two days later which PW.3 informed the Police. This - 12 - CRL.A. No.4 OF2018Witness was cross examined in detail by the defence counsel with regard to her running of Chit Fund Transaction which is admitted and so also several members had joined Chit Fund Transaction run by the PW.3.

14. PW.4 is one Ravichandra who transferred the CCTV footage being a computer technician, to the pen drive and handed over the same to the Police. He has also stated that the said pen drive was not sealed or packed when he handed over the same to the Police. He has stated that in the CCTV footage he can see bike, accused and the deceased. In the cross examination this witness has stated that he does not know the colour of the dress of the deceased Kiran Yadav and so also whether it is a boy or a girl. Further, in the cross examination this witness has stated that the said pen drive was not packed or sealed while taken by the Police and stated that anything can be added to the pen drive.-. 13 - CRL.A. No.4 OF201815. PW.5 is the owner of the shop viz. Srilekha Enterprises. He has stated that he has inserted CCTV Camera in his shop and that he has seen the said clip in the Court. The pen drive Ex.P.6 was handed over to the Police when the same was taken by PW.4 who was the technician who had come along with the Police. This witness has stated in the cross examination that the pen drive which was taken by PW.4 was not packed or sealed when it was given to the Police. He has identified the pen drive which was produced at Ex.P.6.

16. P.W.5-Mallesh supported the case of prosecution and he also speaks about P.W.4 having come to his shop and having taken the CCTV footages.

17. P.W.6 who is a panch witness examined by the prosecution in support of their case to show that he had witnessed the recovery of the material objects M.Os.1 to 15. But however, P.W.6 has admitted only the signature on Ex.P.8 and but denied the contents therein. The other aspects of the said exhibits, he states that he does not - 14 - CRL.A. No.4 OF2018know anything about M.Os.1 to 15 and he has not seen it earlier. Apart from signing the said Ex.P.8 he does not know anything. He admits that on 10/11.02.2015 at 1 O’ clock in the midnight he was asked to come to the University campus near the place of incident. This witness also denies that the P.W.8 person by name Harish was with him. This witness denies case of prosecution. In effect, this witness turned hostile to the prosecution case.

18. In the cross examination by the defence, this witness has stated that apart from signing that document Ex.P.8 he does not know anything else and the said document Ex.P.8 got signed by the Police by stating that there is nothing in it, hence, he has signed the document.

19. P.W.7 is one Rajesh, he is cited as a witness for the sake of establishing last scene theory. It is the case of prosecution that when accused was traveling along with the deceased-Kiran on the date of incident i.e., on 04.02.2015 this witness had seen deceased-Kiran sitting behind the accused. This aspect of the matter is denied by - 15 - CRL.A. No.4 OF2018the P.W.7. He further states that in his evidence that the Police had come to his house and took his signature and he is not aware of anything about the incident with regard to the case of prosecution. More so about accused having taken the deceased along with him and having committed murder. This witness has turned hostile to the case of prosecution and despite the prosecution cross-examining this witness nothing has been elicited in favour of prosecution.

20. P.W.8-Smt Sonia has deposed that about two years back the Police came near her house and obtained her signature, stating that murder had taken place, on Ex.P.2 and 3. Ex.P.2 and 3 are mahazars and her signatures are Ex.P.2C and Ex.P.3C. This witness has also denied the entire case of prosecution and the knowledge about the incident alleged to have taken place, except with regard to her signatures. In the cross-examination of P.W.8, she has stated that apart from signing in the blank paper she does not know anything with regard to the - 16 - CRL.A. No.4 OF2018incident, the pen drives or the involvement of accused in the commission of crime. Therefore, she clearly states that in the cross-examination, her signature on Ex.Ps.2 and 3 were taken on blank papers. She has turned hostile to the case of prosecution.

21. P.W.9 is one Harish has stated similar to that of P.W.6 and has turned hostile.

22. P.W.10 is one Krishnappa who has also turned hostile and not supported the case of prosecution.

23. P.W.11-Umesh is none other than the driver of school bus which used to pick and drop the deceased- Kiran to the point of pickup and point of dropping. He has stated that on the said date of occurrence of the crime, he had picked up the deceased in the morning and dropped him back at 6.10 p.m. to 6.15 p.m. There may be same discrepancy with regard to the time, but the evidence of this witness is only with regard to picking up deceased- Kiran and dropping him back at the drop point. It is not the case of prosecution that he has seen the accused - 17 - CRL.A. No.4 OF2018taking deceased-Kiran along with him or having sighted near the drop point.

24. P.W.12 is none other than one Prabhudev, who is shop owner of shaving blade purchased by the accused. This witness has denied having seen the accused, he has also denied that the Police showed him the accused pursuant to the occurrence of the crime/incident. This witness has infact turned hostile and not supported the case of prosecution. Nothing much can be held against the accused on the basis of statement of this witness.

25. P.W.13 is one Manjushree, Aaya of the school of deceased, she has supported the case of prosecution. This witness has stated that she used to pick up the children from the bus and drop to the school. She has not stated anything about the identification of accused having picked up the deceased-Kiran on the date of occurrence of crime. She may not be implanted witness. 26.P.W.14-T.V.N.Kishor, is the Academy Dean of Sri Chaitanya Techno School, Ullal, Bengaluru, in which the - 18 - CRL.A. No.4 OF2018deceased-Kiran was studying. This witness has stated about uniform of the school for a particular day and week and regarding the driver Umesh/P.W.11, who was driving the school bus as on the date of occurrence of crime. But he has stated that he has not interacted with the P.W.11, the driver, he has not spoken anything about the case. So this witness may not be a material witness to support the case of prosecution.

27. P.W.15 is a panch witness for the inquest panchanama and stated that body was sent for conducting of postmortem. Nothing much is elicited through this witness except being a panch for inquest panchanama.

28. P.W.16 is a Doctor, who conducted the postmortem of the deceased and submitted a postmortem report as per Ex.P.19. He has examined both deceased as well as the accused and opined with regard to nature of the injuries sustained by the accused in the right hand arm, index finger, middle finger and 4th finger as stated in the Ex.P.21. He has also stated that the death of deceased - 19 - CRL.A. No.4 OF2018could have occurred due to the cut injuries from one side of the neck to the other side of the neck. Apart from this, he has also stated that the death could have occurred by use of the blade at M.O.15 and so also the injuries sustained by the accused could have also happened by use of the blade.

29. P.W.17, 18 and 19 are all police witnesses. P.W.17 being one Hanama Murthy, who had taken the postmortem report along with one tooth and 10 white covered packets from P.W.16 the Doctor and handed over to the Investigating Officer. He has also collected the report of blood samples pertaining to parents of deceased- Kiran from Doctor P.W.16 and handed over to the Investigating Officer. P.W.18--S.R.Thopaiah is the Head Constable, who had handed over the body after the postmortem to the relatives of deceased-Kiran. P.W.19 is one Manjunath Police Constable, P.W.22 Khaza Azmir, Police Constable they have traced the CCTV footages of deceased-Kiran at M/S. Lekha Enterprises, based on the - 20 - CRL.A. No.4 OF2018said CCTV footages they apprehended the accused. According to them, the CCTV footages were seen on 10.02.2015, CCTV footages were seized on 14.02.2015. In the cross-examination, he states that there was no technician or a person with technical knowledge of computer along with him.

30. P.W.20 one Surya is the panch witness to the inquest panchanama Ex.P.18. In the cross-examination, he has admitted to the fact that he was in the Police Station between 10.30 a.m. to 11.30 a.m.

31. P.W.21 is one Sri C. Ravi kumar, P.S.I., who on receipt of complaint from P.W.1 registered the FIR and forwarded it to the higher officers for further action. Thereafter, he directed the supporting Police personnel to conduct the investigation about missing of the Kiran. In the meanwhile, after receiving the information from P.W.19 who had identified the CCTV footages from the M/s. Lekha Enterprises, identification of the deceased and the accused together traveling in the motorcycle which - 21 - CRL.A. No.4 OF2018was verified by the parents of the deceased-Kiran same was reported to the Police Inspector, who thereafter arrested the accused. In the cross-examination of this witness, he has admitted that he has not given photo of missing boy to P.W.21 and 23. He has also admitted that he has not recorded the voluntary statement of accused.

32. P.W.23 is none other than Smt. Prema who is alleged to have lastly seen together the accused and the deceased and she is the panch witness to the CCTV footages recovery. Nothing much is elicited from this witness by the prosecution and she has turned hostile and not supported the case of prosecution.

33. P.W.24 P.S. Syadarsh P.I. received the postmortem report and 10 sealed white packets and one tooth of the deceased-Kiran from Police Constable P.W.17 and he has subjected the articles to P.F. and received Ex.P.19 postmortem report. Ex.P.20 is model seal and Ex.P.21 injury certificate of the deceased and the accused. After receiving, he sent the blood stained mud, sample - 22 - CRL.A. No.4 OF2018mud and M.O.15 for chemical examination and for scientific report. He has also acknowledged as per Ex.P.31 and signature at Ex.P.31(a). Thereafter, he has also filed application before the Court for drawing of blood of parents of the deceased-Kiran for DNA test on 07.03.2015 as per request made at Ex.P.32 and his signature is at Ex.P.32(a). Thereafter, on 12.03.2015 Medical Officer of Victoria Hospital, Bengaluru has drawn blood samples of the parents of deceased-Kiran on his request and sent the same through P.W.17 and same was subjected to P.F.No.36/2015 and obtained permission of the Court to subject the same for malupatti. He also sent blood samples of the deceased and his parents for chemical examination on 16.03.2015 and obtained acknowledgement as per Ex.P.33 and his signature is at Ex.P.33(a). Thereafter, it is his statement that he was transferred pursuant to which he handed over the charge of this case.-. 23 - CRL.A. No.4 OF201834. P.W.25 Smt. C. Shrividya is the Assistant Director, FSL Department, she has deposed that she has examined two articles and issued opinion as per Ex.P.34 and 35 and given opinion with regard to both that her signatures are as per Ex.P.34A and 35A. According to her opinion, no such stains are found in M.O.19 and 20.

35. P.W.26 is the Doctor, he has chemically examined M.O.15 one supermax blade, blood stained mud and sample mud as per Ex.P.36 and 37, which are opinion and sample seal and his signatures found at Ex.P.36A, 36B and 37A. According to his opinion, the presence of blood stains was detected in Item No.1 i.e., M.O.15 and presence of blood stained not detected in Item Nos.2 and 3 i.e., M.O.19 and 20 blood stained mud and sample mud. He has also stated that the blood stained Item No.1 was disintegrated hence, the origin could not be detected.

36. Pursuant to the evidence of the prosecution on cross-examination by the defence counsel it is seen that the defence has got marked Exs.D.1 to D.12 with - 24 - CRL.A. No.4 OF2018Ex.D.1(a), D.2(a), D.3(a), D.4(a), signatures of PW.3, Ex.D.5(a), D.6(a), D.7(a), D.8(a), D.9(a), marked portions in red ink through the witness PW.3. However, accused has not adduced any evidence.

37. It is the vehement contention of the learned counsel for appellant that the judgment of conviction and order of sentence passed by the trial Court is perverse, illegal, opposed to law, facts and probabilities of the case and contrary to the material evidence placed on record. Learned counsel further contends that the trial Court has failed to record the findings regarding question of reliability, credibility of the witnesses and has failed to take into consideration other attending circumstances which are normally expected to be done in criminal trial/cases.

38. Learned counsel for appellant contends that the trial Court resorted to unfounded surmises, conjectures without there being any evidence on record. The trial Court has also lost sight of the fact that the prosecution - 25 - CRL.A. No.4 OF2018has not produced any cogent, clinching and convincing evidence or materials before the Court to convict the appellant for the afore stated offences.

39. Learned counsel further contends that the trial Court has not applied its mind and has repeatedly stated that the voluntary statement of the appellant is enough and sufficient to base the conviction ignoring the fact that it is inadmissible in evidence. He further contends that the trial Court has committed grave error in relying upon the evidence of PW.1-B.M.Ravikumar, the father of deceased to the effect that on 04.02.2015 one Prema told him that his son and one known person went in the motorcycle and that the rider was wearing white helmet. The trial Court has conveniently ignored the cross-examination of PW.1 that on the date of his minor son missing i.e., on 04.02.2015 the appellant/accused, his parents, PW.1 and others were jointly involved in searching the deceased son of PW.1 till midnight. The trial Court has lost sight of this fact that the appellant himself was involved in search - 26 - CRL.A. No.4 OF2018operation of the missing minor son of PW.1. Further, learned counsel contends that the trial Court has committed an error in not appreciating the evidence of PW.1 wherein he has stated that he does not know what the appellant has told to the police and that he has not given any statement to the police and has not gone anywhere along with the police.

40. It is also contended by the learned counsel that it was only the skeleton of the deceased minor boy which was not in a position to be identified. Therefore, the evidence of PW.1 contradicts the evidence of PW.21- Ravikumar, the Police Sub-Inspector. Learned counsel further contends that if the version of PW.1 is to be believed that he saw the CCTV footages on 08.02.2015, no explanation is provided by the police as to why they have not seized the CCTV camera footages and not drawn any mahazar immediately. But the mahazar is said to be drawn on 14.02.2015. Further it is seen that PW.1 has categorically admitted that the Police Sub-Inspector - 27 - CRL.A. No.4 OF2018Ravikumar-PW.21 has not accompanied him. Learned counsel further contends that if according to PW.1 on 04.02.2015 Prema told him that his minor son and one known person went in a motorcycle wearing a white helmet, nothing prevented PW.1 the father of deceased to immediately say the same or inform the same to the police against the appellant at the earliest point of time.

41. Learned counsel further contends that in the cross-examination, PW.1 has admitted that he does not know when the police have collected the CCTV footages. He has further failed to identify the appellant in CCTV footages and that M.Os.1 to 5 do not belong to his son. Therefore the contention of the learned counsel for appellant is that the complaint of PW.1 and the case of the prosecution and the evidence given by him before the Court are all contradicting each other. Hence the evidence of this witness PW.1 cannot be relied to sustain the judgment of conviction.-. 28 - CRL.A. No.4 OF201842. Learned counsel contends, the trial Court has appreciated the evidence of PW.2 who admitted in the cross-examination, but he attested his signatures to mahazars at Exs.P.2 and P.3, CCTV camera footages of 04.02.2015 in Chandra Layout Police Station. Learned counsel further contends that this witness goes on to say that he cannot identify who was going in a motorcycle and by then the appellant rider was wearing red checks shirt. One of the crucial aspects ignored by the trial Court is that this witness in the cross-examination has admitted that on the date of the minor boy missing, the appellant also searched for the missing boy along with them. Under the circumstances this witness's evidence also cannot be relied and it does not any way support the case of prosecution.

43. Learned counsel contends that with regard to the evidence of PW.3, who is none other than the mother of deceased and wife of PW.1, her evidence cannot be believed for the reason that according to her, after two days one Prema told her that Manjunath and her son went - 29 - CRL.A. No.4 OF2018in a motorcycle and that the same was told to the police and she saw in the CCTV footage that appellant was washing the motorcycle. Learned counsel further contends that the trial Court has failed to take into consideration the fact that PW.3 is running chit fund transaction which is not disputed and there are several cases pending against her in Chandra Layout Police Station for which charge sheet have been laid and presented to the jurisdictional Court. With regard to her statement that appellant-accused was having illicit relationship with one Ashwini which was informed by her to the mother of appellant is the motive for the commission of the offence of murder and kidnapping. But unfortunately the trial Court has not kept in mind the non examination of the said Ashwini who is alleged to have had illicit relationship with the appellant nor is she made as a witness in this case.

44. Learned counsel further contends that the prosecution has not examined its best evidence by enquiring the said lady Smt.Ashwini and neither she is - 30 - CRL.A. No.4 OF2018made as a witness to support the case of the prosecution. It is further stated that PW.3 admits that the appellant was arrested on 05.02.2015 but PW.21 PSI says that they had not arrested him. Therefore the evidence of this witness is inconsistent with that of the evidence of other witnesses. Learned counsel further contends that it is not the case of prosecution that there is any eye witness and a strong motive is very much required for the prosecution to prove the guilt of the accused beyond all reasonable doubt.

45. Learned counsel contends that the trial Court has committed an error in relying the evidence of PW.4-Ravichandran who is CCTV repairer who is alleged to have converted CCTV camera footages to pen drive and attested the same at Exs.P.2 and P.3. He has deposed that he attested the signature at Exs.P.2 and P.3 in the Police Station. Learned counsel further contends that in the cross-examination this witness admits the fact that he has no knowledge of computers and he also admits that if the - 31 - CRL.A. No.4 OF2018pen drive is packed in the antistatic cover, then only it would be safe. Learned counsel contends that the police have seized and sealed the pen drive and this witness also states that anything can be added and anything can be deleted from the pen drive. Further in the cross- examination this witness has stated that he has not seen the CCTV footages and also does not know whether the pen drive was attacked with virus or not. Hence the learned counsel contends that the evidence of this witness would not be helpful to the case of prosecution as he has not seen the CCTV footages.

46. Learned counsel further contends, the evidence of PW.5-Mallesh, owner of Sri Lekha Enterprises cannot also be relied upon as according to him PW.4 Ravichandran came to the shop and transferred the CCTV footages to the pen drive. He further contends that in the cross-examination this witness admits that there are 12 employees in his shop and that one Udaykumar is the Manager who looks after and operates the computer. He - 32 - CRL.A. No.4 OF2018also admits that he does not have any computer knowledge and also as to how to operate the same. It is further contended that this witness confirms that the police have not visited the shop in his absence and police have not drawn any mahazar in the shop and neither has he identified the rider of the motorcycle or the pillion rider. He also does not know the vehicle number and the colour.

47. It is the contention of the learned counsel that the evidence of PW.6-Trimurthy would not support the case of prosecution as it is stated by this witness that appellant/accused had not accompanied him for seizure of blades. Though this witness has stated that he has only put his signature on Exs.P.7 and P.8 and identified photos in Exs.P.4, P.6, he has turned hostile. In the cross- examination, it is contended that this witness has stated that police had brought the helmet and blade from the forest and they took his signature on Exs.P.7 and P.8; other than this, he does not know anything.-. 33 - CRL.A. No.4 OF201848. It is also contended by the learned counsel that evidence of PW.7-Rajesh also does not support the case of prosecution as he has turned hostile. He has stated that the police have obtained his signature when he was near his house. With regard to the evidence of PW.8-Sonia, similar is the situation, the learned counsel contends that she was near hear house when the police took her signature on Exs.P.2 and P.3 mahazars. Apart from this, she also does not know anything. The evidence of this witness certainly does not support the case of prosecution.

49. Learned counsel further contends that the evidence of PW.9-Harish also would not support the case of prosecution as he is not stated anything in favour of the prosecution. For the reason that he stated that when he was standing near the shop, police came and took his signature on a paper Ex.P.8 stating that it is required for some enquiry purpose. This witness has turned hostile. Learned counsel contends that with regard to the evidence of PW.10- Krishnappa, who according to them is a witness - 34 - CRL.A. No.4 OF2018to the last seen together theory, but this witness resiled from his statement and has turned hostile.

50. Learned counsel further contends that the evidence of PW.11-Umesh and PW.13-Manjushree are also of no use to the case of prosecution for the reason that PW.11 is the driver of Sri Chaitanya Techno School Bus. Nothing material is elicited in favour of the prosecution through him, as admittedly he has not seen the appellant- accused, so also PW.13 Aaya of the school travelling in the bus. This witness PW.13 has stated in the cross- examination that the police have tutored her and nothing much can be made out of these two witnesses, for supporting the case of prosecution.

51. Learned counsel further contends that PW.12- Prabhudev who is the owner of provision store though has stated that accused purchased blades from his shop, he has also stated that he has not identified the appellant- accused and he has not supported the case of prosecution. Learned counsel contends that PW.14-Kishore, who is the - 35 - CRL.A. No.4 OF2018Administrator of Sri Chaitanya School, is said to have given a certificate at Ex.P.16, but in the cross-examination he admits that the certificate is not in his hand writing and he does not know as to who wrote it. Therefore much credence cannot be given to the evidence of this witness as he is not a material witness.

52. Learned counsel further contends that the evidence of PW.15-Madhu Kiran, would also not be helpful to the prosecution for the reason that he is a pancha witness to the inquest Ex.P.18 who stated that he does not know who has shown the dead body to the police and that the dead body was not in a position to be identified and neither does he know the contents of inquest. Learned counsel further contends that the evidence of PW.16- Dr.Dilip Kumar, doctor, who conducted the postmortem has admitted in the cross-examination that the dead body was fully decayed and many parts from the body were missing. The width and depth of the injury is also not mentioned. The DNA test report is not received and - 36 - CRL.A. No.4 OF2018produced before the Court. He has also admitted that he cannot give opinion regarding the cause of death.

53. Learned counsel further contends that PW.19-Manjunath, Police Constable, according to whom the CCTV footages of deceased was traced at Lekha Enterprises is suspicious in nature for the reason that they observed CCTV camera on 10.02.2015. Nothing prevented from seizing the footages on the same day, whereas the footages were seized on 14.02.2015 and reached the Court on 18.02.2017. He further contends that in the cross-examination this witness has stated that there was no technician along with him and that he does not know whether the rider of the bike was wearing specs or not and this witness has expressed doubt on the pillion rider. The evidence of this witness is uncorroborated, vague and untrustworthy and hence the same cannot be relied.

54. Learned counsel further contends that the witness PW.20-Surya, is a pancha witness to the inquest Ex.P.18 who admitted that on the said date he was in the - 37 - CRL.A. No.4 OF2018police station between 10.30 to 11.30 p.m. and this witness has failed to identify the appellant. Learned counsel contends that with regard to PW.21-Ravikumar, Police Sub-Inspector, he has given a report to PW.24 regarding missing complaint. His evidence is also an omission and he has improved the case gradually which is impermissible. In the cross-examination of this witness he admits that he has not given photo of the missing boy to PWs.21 and 23 and that he has not recorded the voluntary statement of appellant when he was arrested, so also he has not secured any local respectable inhabitants to act as panchas.

55. Learned counsel further contends that the evidence of PW.22 Kaja Ajmir, who is a police constable, went along with Manjunath in search of missing boy and that on 10.02.2015 he saw the CCTV footages in Lekha Enterprises and saw one person and a child going in a motorcycle in front of Lekha Enterprises and PW.1 identified his son and rider of the motorcycle. In the cross- - 38 - CRL.A. No.4 OF2018examination this witness has stated that everyday he used to attend roll call between 08.00 a.m. to 10.00 p.m. and except attending the roll call he has not done anything else. He also admits that PW.1-Ravikumar has not accompanied them to trace the boy. It is further contended that there is no number on the motorcycle to connect the appellant to this case of prosecution. Therefore much credence cannot be given to evidence of this witness.

56. Learned counsel further contends that PW.23 is one Prema, who is alleged to be cited as the last seen together witness and pancha witness in CCTV footages. This witness has turned hostile. Therefore, no emphasis can be laid to this witness to support the case of the prosecution. Learned counsel further contends that PW.24- P.S.Sudarshan deposes that the appellant was produced before him but no memo of arrest is produced before the Court nor any of the 11 guidelines issued by the Supreme Court is followed. This witness has not seized and sealed - 39 - CRL.A. No.4 OF2018the pen drive and that all the mahazar witnesses have stated that they have attested their signatures in the Police Station. It is also contended that this witness has not sent the CCTV footages to the truth labs to trace the real culprit. So also the clothes of the deceased were sent to FSL to prove the blood group of the deceased and the material objects and this witness has not collected the DNA test to prove that the deceased is son of PW.1 and PW.3. It is further contended that this witness is uncorroborated to the evidence of other witnesses. There are lot of omissions and contradictions in the evidence of prosecution witnesses.

57. It is further contended by the learned counsel that the evidence of PWs.25 and 26 who are the Assistant Directors of FSL is not helpful to the case of prosecution since admittedly the blood on the blade was disintegrated. Therefore the blood group is not traced. Further, they have failed to establish that this is the human blood.-. 40 - CRL.A. No.4 OF2018Under these circumstances not much credence can be given to these witnesses' evidence.

58. Learned counsel further contends that on an overall examination of the entire evidence of the prosecution witnesses, exhibits, material objects, it is apparently seen that many of the witnesses have turned hostile not supported the case of prosecution. There are lot of omissions and contradictions creating lot of suspicion and doubt and therefore the judgment of conviction and the order of sentence passed by the trial Court is illegal and hence, it is not sustainable in law; therefore calling for interference from the hands of this Court. He further contends that when there is no cogent material evidence pinpointing that solely the accused is responsible and guilty and no other person, under such circumstances, is suspicious and creates a doubt and when there is a doubt, the benefit of the same would invariably go to the appellant-accused and not in favour of the prosecution. On these grounds he seeks to set aside the judgment of - 41 - CRL.A. No.4 OF2018conviction and order of sentence and acquit the accused of all charges.

59. Learned counsel for appellant relies on the following judgments in support of his case. i) The State of Punjab vs. Bhajan Singh and others, reported in (1975) 4 SCC472 ii) Gopal Sah vs. State of Bihar, reported in (2008) 17 SCC128 iii) Judgment of Hon'ble Supreme Court in State of Rajasthan vs. Kistoora Ram in Crl.Appeal No.2119/2010; iv) Mousam Singha Roy and others vs. State of W.B., reported in (2003) 12 SCC377 v) State of Haryana vs. Jagbir Singh and another, reported in 2003 Crl.L.J.

5054 Supreme Court; vi) Judgment of Hon'ble Supreme Court in Ram Niwas vs. State of Haryana in Crl.A.No.25/2012; vii) Rang Bahadur Singh and others vs. State of U.P., reported in (2000) 3 SCC454 viii) Yankappa and another vs. The State of Karnataka, rep., by the Public Prosecutor, reported in ILR2020KAR5531 60. Having heard the learned counsel for appellant- accused and the Addl. State Public Prosecutor on behalf of - 42 - CRL.A. No.4 OF2018the respondent State, the points that would arise for consideration before this Court are: i) Whether there is a homicidal death of the deceased Kiran Yadav?. ii) Whether the appellant-accused is involved in the commission of offence under section 364, 302, 201 of IPC?. iii) Whether the prosecution has proved the guilt of the accused beyond all reasonable doubt?.

61. Admittedly, the deceased Kiran Yadav’s parents Ravikumar and Pramila who are PWs.1 and 3 are known to the appellant-accused living in the same locality. Though allegations are made against accused by parents of the deceased i.e., PWs.1 and 3 that because of PW.3 having made a complaint with the mother of accused against him due to which the parents of the accused scolded him, the accused got angry with PW.3 and to take revenge against her, on 04.02.2015 decided to take away the son of PW.3 in order to do away with his life. The theory made up by - 43 - CRL.A. No.4 OF2018the prosecution with regard to the motive of accused to do away with the life of Kiran Yadav, is not very convincing for the reason that the parents of accused had scolded him on the complaint of PW.3 that one could go to the drastic step of kidnapping the minor child and doing away with the life of the minor, without there being any corroborative or supporting evidence.

62. Admittedly in the present case the prosecution is not relying on any eye witnesses. Hence the entire case of the prosecution is based on circumstantial evidence and based on material evidence which should be cogent and positive with credible sequence of events which eventually links the accused with the commission of the gravest offence of murder by kidnapping the minor child and thereafter causing disappearance of evidence. The prosecution has based its theory of circumstantial evidence on the recovery of articles, last seen theory and the voluntary statement of the accused in order to - 44 - CRL.A. No.4 OF2018complete the chain of events, linked to each other to prove the guilt of accused.

63. In the case of circumstantial evidence, as is the case made out by the prosecution, the entire onus lies upon the prosecution to prove the complete chain of events linked each other which should undoubtedly point towards the guilt of accused to such an extent that there should be nobody else other than the accused only to show that he has committed the offence of kidnapping, murder and disappearance of evidence of the offence. Further any such cases of circumstantial evidence wherein it is coupled with extra judicial confession and recording of voluntary statements, the Court will have to examine the same with microscopic view and greater degree of care and caution will have to be taken.

64. It is well known legal principle that in criminal jurisprudence when the prosecution relies upon the extra judicial confession, recording of voluntary statements and recovery of articles at the instance of accused in custody, - 45 - CRL.A. No.4 OF2018it is settled principle that extra judicial confession is a very weak piece of evidence. The onus is enormously high on the prosecution, as the basis of such reliance by the prosecution should undoubtedly inspire absolute confidence which will have to be corroborated by cogent evidence not only by material documents, exhibits and material objects, but also through other corroborative supportive prosecution witnesses evidence. However the extra judicial confession suffers from material discrepancies or inherent improbabilities and does not appear to be cogent as per the version put forth by the prosecution, it would certainly become difficult for the Court to base the judgment of conviction on such confessions or for that matter voluntary statements. In fact on the contrary it would enure to the benefit of the accused and the Court would be justified in ruling such evidence out of consideration. It is also relevant to note that the Court will have to satisfy itself on three essential requirements i) voluntariness of the confession, ii) - 46 - CRL.A. No.4 OF2018truthfulness of the confession, iii) corroboration of such confession through other cogent material evidence.

65. In order to prove the guilt of accused based on circumstantial evidence, the following necessary ingredients and chain of events will and should have to be established and proved by the prosecution; a) that the accused kidnapped the minor child Kiran Yadav from outside the school namely Sri Vishwa Bharati School on 04.02.2015; b) that the accused committed grave offence of murder of a minor child Kiran Yadav; c) that the accused slit the throat from one end to the other end of the neck by using the super max blade. That the accused after committing the offence of murder, thrown the dead body behind the bushes in the forest of University. That the accused in order to escape, caused disappearance of evidence of offence of murder and kidnapping i.e., section 364, 302 and 201 of IPC.

66. The case of prosecution is admittedly on the basis of circumstantial evidence, recovery of articles, extra - 47 - CRL.A. No.4 OF2018judicial confession and voluntary statement of the accused. At the cost of repetition it is necessary to mention that there is no eye witness in this case. No doubt the prosecution has tried to make out a case of last seen theory but there are several catena of judgments which has taken a consistent view that in the case of circumstantial evidence based on last seen theory, it would raise suspicion and it is not independently sufficient to lead to a finding of guilt of the accused. The prosecution’s case of last seen theory, has fallen flat on the ground for insufficiency of evidence & credence and for the reason that the witnesses have turned hostile.

67. The witnesses PWs.1 and 3 are parents of the deceased who are neither the eye witnesses nor seen the accused with the deceased just before the occurrence of the crime or as a last seen theory or last seen together the accused and the deceased. PW.2 is none other than the driver of PW.1 and he is also not a credible and important witness in this case. Nothing much is elicited in the - 48 - CRL.A. No.4 OF2018evidence of PWs.5 and 6 who are the owners of the shop and treated as pancha witnesses. PW.7 is treated to be a witness for the purpose of last seen theory who turned hostile and has totally showed ignorance and negatived the theory about having seen the accused and the deceased and that the deceased had said bye to him, which is fatal to the case of prosecution as this witness is cited for the purpose of last seen together, the accused and the deceased. PWs.8, 9, 10, 11 and 12 though have led evidence, but have turned hostile and not supported the case of prosecution. PW.13 is the Aaya of the school bus whose evidence does not give much credence or support the case of prosecution as admittedly she has neither seen the accused or the deceased together or for that matter separately.

68. PW.14 who is the Dean of the school is not a material witness as he has shown ignorance and refuted that the certificate of reading is not in his handwriting and does not know who has written it. So also the evidence of - 49 - CRL.A. No.4 OF2018PW.15 pancha witness clearly states that he does not know who has shown the dead body to the police and that the dead body was shown at the instance of the appellant. The evidence of PW.16 who conducted the postmortem says that there was no flesh and skin on the body and admits the fact that he cannot give his opinion regarding the cause of death. So also the evidence of PWs.17, 18 and 19 would not give much credence to support the case of prosecution. The evidence of PW.20 who is a pancha witness has stated that from 10.30 to 11.30 p.m. he was in the police station. Therefore, neither the accused showed him dead body nor has he identified the appellant. With regard to the evidence of PWs.21 and 22, there are lot of omissions, inconsistencies and contradictions in the statements given by these witnesses. It is also stated by them that PW.21 has not recorded the voluntary statement of appellant-accused.

69. The evidence of PW.22 is also doubtful and suspicious and the same cannot be taken on its face value.-. 50 - CRL.A. No.4 OF2018With regard to the evidence of PW.23 Prema, who is also cited as a witness as a last seen theory of seeing the accused and the deceased together, and a pancha witness to the CCTV footages, but this witness has turned hostile. Nothing is elicited in the cross-examination to substantiate the case of prosecution. With regard to the evidence of PW.24, the Police Inspector, he has not followed the required guidelines as no memo of arrest is produced. The important piece of evidence of the pen drive from the CCTV footages has not been sealed and produced, the mahazar witnesses have turned hostile and some of them have stated that their signatures are taken in the police station. Therefore, this piece of evidence is fragile and much importance cannot be given to this evidence. The evidence of PWs.25 and 26 who are the witnesses from the Forensic Science Lab Assistant Directors, they have not given a report with regard to the blood on the blade, and the sample mud. Nothing cogent is stated with regard to the blood group of the accused matching with that of on the blade and matching with that of the deceased. It is - 51 - CRL.A. No.4 OF2018also not clearly stated whether the blood is that of the human blood since it is stated that the blood was disintegrated. Therefore, the evidence of these witnesses by itself would not pin point the crime having been committed by accused.

70. The next point for convicting the accused is on the ground of recovery of articles upon voluntary statement made by the accused under section 27 of the Evidence Act. Admittedly these statements are recorded by the investigating agency while in the police custody. But by this voluntary statement itself the prosecution cannot be said to have established the proof beyond all reasonable doubt pinpointing the commission of kidnapping and murder of the deceased by the accused.

71. In order to prove the guilt of accused based on the circumstantial evidence, the following and necessary ingredients, chain of events will have to be established and proved by the prosecution beyond reasonable doubt pinpointing the crime and offences to have been - 52 - CRL.A. No.4 OF2018committed by the appellant/accused and none else. In the present case, prosecution will have to prove the following:

1. That the accused kidnapped or abducted the minor child Kiran Yadav in order to see that the person may be murdered or be so disposed of as to be put in danger of being murdered ?.

2) That accused committed the murder of deceased Kiran Yadav by slitting throat on the neck from one end to the other end of the neck ?.

3) That the accused caused disappearance of evidence of offence or gave false information to screen offender ?.

72. In a case of circumstantial evidence, as in the present case, where there is no eye witnesses, the prosecution must satisfy the high order of test of proof. It is the bounden duty of the prosecution to establish a complete unbroken chain of events leading to the determination and on the basis of inference being drawn from the evidence of the prosecution witness to arrive at - 53 - CRL.A. No.4 OF2018inescapable conclusion with corroborative unimpeachable evidence pinpointing to the crime having been committed by the accused alone and none else. In the absence of convincing circumstantial evidence with corroborative material evidence and documentary evidence with conclusive medical and forensic science lab reports, accused should be entitled to benefit of doubt.

73. When the prosecution is basing its case on the reliance of circumstantial evidence, it must necessarily satisfy the following tests as laid down by the Hon'ble Apex Court in the case of SHARAD BIRDHICHAND SARDA v. STATE OF MAHARASHTRA reported in (1984)4 SCC116

1) The circumstance from which an inference of guilt is sought to be drawn must be cogently and firmly established without any doubt.

2) Though circumstances should be of definite tendency unerrably pointing towards guilt of accused.-. 54 - CRL.A. No.4 OF20183) The circumstances taken cumulatively should form chain of events so complete that there is no escape from the conclusion that within all human probability, the crime was committed by the accused and no one else.

4) The circumstantial evidence in order to establish conviction must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused and such evidence should not only be consistent with guilt of accused, but should be inconsistent with his innocence.

5) The panchasheela contemplates five necessary ingredients while deciding a case for conviction on circumstantial evidence.

74. In the present case on hand, the motive alleged by the prosecution that the accused wanted to take vengeance against mother of deceased Kiran Yadav as she had scolded him in front of his parents, though looks appealing but the same cannot be believed unless the other corroborative evidence and circumstantial evidence and recovery of articles supported by the witnesses and - 55 - CRL.A. No.4 OF2018panchas all fall in line in support of the said motive. But in our opinion, the said scolding cannot in the absence of other material evidence stated above become a motive beyond the commission of the crime herein alleged. The main ground of the prosecution to bring home the guilt of accused for conviction for the offence Under Sections 302, 364 and 201 of IPC, as stated earlier is that there was a motive and the other aspects on the basis of circumstantial evidence and recovery of articles from the crime scene and by way of corroboration of the prosecution witnesses. As stated earlier, the motive alleged appears to be not sustainable and very weak. To establish the case on circumstantial evidence on the basis of evidence adduced through witnesses by the prosecution, it is apparently seen that the following witnesses have turned hostile to the case of prosecution namely PWs.7 to PWs.12 and PW.23. Nothing much is elicited through the witnesses namely PWs.1 to 3 who are the parents of deceased and the driver. PWs.13 and 14 are inconsequential as they have neither seen the accused - 56 - CRL.A. No.4 OF2018with the deceased nor are material evidence to the case on hand. The other witnesses PWs.17 to 22 are police witnesses, not much of reliance can be placed on the evidence of these witnesses as it is inconsistent and lot of conjectures, surmises and inconsistencies are forthcoming in the evidence of these witnesses. PW.16 is the doctor who has done the post mortem. PWs.25 and 26 as stated have not thrown much light on the forensic lab report to relate the deceased blood having been found on the blade- MO.16. Therefore, there are lots inconsistencies, material discrepancies in the evidence of these witnesses. Many of the witnesses having turned hostile. There is no cogent material evidence to pinpoint and show that accused had kidnapped the minor Kiran Yadav and has taken him to the forest to do away with his life and thereafter, committed the gruesome act of murder by slitting the throat of the minor child from one end of the neck to the other end of the neck and thereafter, caused disappearance of evidence. On careful perusal of the entire material evidence placed by the prosecution and having had a re- - 57 - CRL.A. No.4 OF2018look and having re-appreciated the evidence and the materials on record, it is apparently seen that there is no vital link in the chain of events established by the prosecution against accused for having committed the offence of kidnapping and thereafter murdered and caused disappearance of the evidence.

75. Prosecution has failed to establish unbroken chain of events leading to the determination that inference being drawn from the evidence led by the prosecution is the only inescapable conclusion pinpointing that the crime is committed by the accused and none else. In our opinion, prosecution has not been able to connect the accused with the alleged crime of kidnapping, murder and causing disappearance of evidence in any manner whatsoever. It is well established principles of criminal jurisprudence that while the Court deals with gravest offence like that of murder, kidnapping committed in a gruesome manner, the Court must restrain itself against the temptation to be misled by conjectures, suspicion, - 58 - CRL.A. No.4 OF2018moral conviction to take the place of truth on the basis of material placed on record. Therefore, the evidence in such circumstances must be scrutinized meticulously in a very precise manner bereft of the theory of moral conviction. As stated earlier, the judicial confession or voluntary statement of the accused can only be treated as a corroborative piece of evidence and the same cannot be a sole basis for conviction of the accused.

76. In the present case on hand, there are lots of omissions, contradictions, inconsistencies, lacunas and improper conducting of investigation, even the doctors and the forensic lab reports do not support the case of prosecution. It is the fundamental principles in criminal law that the accused cannot be made to suffer because of the omissions of the doctor or non acceptability of the forensic science lab reports to relate the accused to the commission of the crime. It would be contrary to all accepted principles to give benefit of the omission, contradictions and lacunas to prosecution. As stated by us - 59 - CRL.A. No.4 OF2018earlier, the onus in a criminal case is always upon the prosecution to prove the guilt of the accused beyond all reasonable doubt. If at all there is any gap of omission, contradiction, lacuna in the case of prosecution and contradictions by the witnesses, it is the accused who would get the benefit of doubt and not the prosecution.

77. The entire case of learned Sessions Judge convicting the accused is based on voluntary statements and recovery of articles. Admittedly, the panchas have turned hostile. The mahazar witnesses have stated that they have just signed the mahazar at the instance of police. Therefore, they are not supporting the case of prosecution. At the cost of repetition, it is once again reiterated that extra judicial confession and voluntary statements are weak piece of evidence. There may be a lot of strong suspicion as against the accused in view of certain statements made by some of the witnesses, but suspicion by itself however strong it may be, is not sufficient and cannot take the place of proof of evidence - 60 - CRL.A. No.4 OF2018warranting a finding of guilt of accused. In the case of Mousam Singha Roy and others vs. State of W.B, reported in (2003) 12 SCC377 the Hon’ble Apex Court has held in paragraph No.26 as under; "The very purpose of requiring a Panch to witness the recovery is to see that independent witnesses vouchsafe for the fact that a particular thing was recovered from a place where the prosecution alleges it was found. It is absolutely necessary for these Panch witnesses to see and observe from where exactly these articles were recovered. It is not sufficient if the I.O. produced certain articles and informed the Panch witnesses that he has recovered it from a particular place, unless the actual place of recovery from where the article was recovered is seen by the Panch witnesses. In the absence of the same, their signatures on the recovery Panchnama become useless in proving the recoveries. In the instant case we have noticed that the Panch witnesses who signed the Panchnama for the recovery of the letter and the exercise book, have specifically in their evidence under oath, stated that the I.O. went inside the respective room/house and came - 61 - CRL.A. No.4 OF2018out with the articles and told the Panch witnesses that he had recovered them. None of the Panch witnesses had seen the actual recoveries therefore, as contended by the defence, the prosecution has failed to establish the recoveries as required in law.

78. In the present case as well, the witnesses have turned hostile. The panchas have not supported the case of prosecution. They have further stated that they have signed at the instance of police as the police told them that there is nothing in it and they are not aware of the incident. It is also stated that Ex.P.8 is not known as to where it was written and the signature was taken in the police station. The Hon'ble Apex Court in the very same case of Mousam Singha Roy and others as stated supra has held at paragraph No.27 that "Before we conclude, we must place on record the fact that we are not unaware of the degree of agony and frustration that may be caused to the society in general and the families of the victims in particular, by the fact that a heinous crime like this goes - 62 - CRL.A. No.4 OF2018unpunished, but then the law does not permit the courts to punish the accused on the basis of moral conviction or on suspicion alone. The burden of proof in a criminal trial never shifts, and it is always the burden of the prosecution to prove its case beyond reasonable doubt on the basis of acceptable evidence."

The Court has also extracted para No.12 of Sarwan Singh Rattan Singh v. State of Punjab's case reported in AIR1957SC637that "It is no doubt a matter of regret that a full cold-blooded and cruel murder should go unpunished. There may also be an element of truth in the prosecution story against the accused. Considered as a whole, the prosecution story may be true; but between 'may be true' and 'must be true' there is inevitably a long distance to travel and the whole of this distance must be covered by the prosecution by legal, reliable and unimpeachable evidence before an accused can be convicted for the gruesome offence of kidnapping and murder."

In the very same judgment at paragraph No.28 the Hon'ble Apex Court held that "It is also a settled principle of criminal jurisprudence that the more serious - 63 - CRL.A. No.4 OF2018the offence, the stricter the degree of proof, since a higher degree of assurance is required to convict the accused.

79. In the present case also, though the prosecution has tried to make out a case of motive on the ground that vengeance taken out by accused against the mother of deceased Kiran Yadav as his illicit affair with another lady was revealed to his own mother in front of others, but the same will have to be corroborated by cogent material evidence and documentary evidence by way of recovery and supporting witnesses evidence. In the present case, the witnesses having turned hostile, the circumstantial evidence being relied and the chain of events having not been connected, the issue of 'may be true and must be true' will come into play in this case as well and as held by Hon'ble Apex Court stated supra, there is a long distance to travel and in the present case, the prosecution has failed to travel the long distance by connecting the dots and the chain of events linking the crime to the accused.-. 64 - CRL.A. No.4 OF201880. It is also relevant to note here that prosecution has failed to elicit credible piece of evidence available to them namely one Prema, who is alleged to have seen the deceased as pillion rider in a black colour bike rider wearing white helmet and that the deceased told by to her, though this witness is examined, she has turned hostile by demolishing case of prosecution. The prosecution has also failed to lead evidence of one Ashwini W/o Ramakrishna, who is one of the tenant and alleged to have had illicit affair with accused. This witness would have thrown light to support the case of prosecution.

81. In the present case, the material witnesses have completely turned hostile. As stated earlier, the prosecution has placed its reliance upon the circumstantial evidence and voluntary statements of the accused. While deciding a criminal case, it is fundamental Rule of Law that the evidence placed before the criminal Court must and should pass the touchstone of proof beyond reasonable doubt. The trial Court as seen from the impugned - 65 - CRL.A. No.4 OF2018judgment has convicted the accused on the basis of voluntary statement to a large extent. Moral conviction or conviction based on media reports cannot override the touchstone of proof beyond reasonable doubt on the basis of material placed before the Court.

82. In view of entirety and overall discussions made by us herein above, in the facts and circumstances of the case, the nature of evidence, material witnesses of prosecution coupled with the manner of consideration of the material evidence and the entire documents placed on record leaves us satisfied without any iota of doubt that the links in the chain of circumstantial evidence cannot be said to have been established leading to the inescapable conclusion that the accused committed offence of kidnapping and thereafter murder of the deceased and subsequently, causing disappearance of evidence. We once again reiterate that mere suspicion however grave cannot take place of proof of evidence, in fact the prosecution will have to establish the guilt of accused and prove beyond all - 66 - CRL.A. No.4 OF2018reasonable doubt that it is the accused alone who has committed the gruesome murder and kidnapping which has not been established in the present case on hand.

83. In totality of the above discussions, we are of the opinion that prosecution has miserably failed to make out a case for the offences punishable Under Sections 302, 364 and 201 of IPC and in view of the fact that there is no connection to the chain of events and circumstances alleging the accused for the commission of the crime as put forth by the prosecution. Consequently, the judgment of conviction and order of sentence passed for the aforesaid offences deserves to be set-aside. Accordingly, we pass the following:

ORDER

i) This criminal appeal is allowed. ii) The impugned judgment of conviction and order of sentence dated 18.12.2017, passed in Special C.C. No.231/2015, for the offence punishable under section 364, 302, 201 of IPC, on the file of L Addl. City Civil and Sessions Judge, Bengaluru, is set aside.-. 67 - CRL.A. No.4 OF2018iii) The appellant-accused is hereby acquitted for the offences punishable under sections 364, 302, 201 of IPC. iv) In view of this Court setting aside the judgment of conviction and order of sentence, for the offences herein mentioned, the accused being in Judicial Custody, shall be set at liberty forthwith by the concerned jail authorities, if he is not required in any other case. v) Registry to intimate the same to the concerned jurisdictional jail authorities to release the appellant-accused forthwith, if he is not required in any other case. Sd/- JUDGE [s [ Sd/- JUDGE HMB - Up to para 14. CKK - Para 15 to 34 MRK- Para 35 to 67, operative portion AM-Para No.68 up to operative portion