Karnataka High Court
Sharanappa S/O Tukaram Kamble vs The State Aurad-B Ps on 3 July, 2024
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CRL.A No. 200031 of 2021
C/W CRL.A No. 200086 of 2016
CRL.A No. 200128 of 2016
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 3RD DAY OF JULY, 2024
PRESENT
THE HON'BLE MR. JUSTICE ASHOK S. KINAGI
AND
THE HON'BLE MR. JUSTICE RAJESH RAI K
CRIMINAL APPEAL NO. 200031 OF 2021 (374)
C/W
CRIMINAL APPEAL NO. 200086 OF 2016
CRIMINAL APPEAL NO. 200128 OF 2016
CRL.A NO.200031/2021
BETWEEN:
RATIKANTH
S/O SHARNAPPA KAMBLE,
Digitally signed by AGE: 24 YEARS, OCC: NIL,
BASALINGAPPA R/O HARIJANWADA, TQ: AURAD (B),
SHIVARAJ
DHUTTARGAON DISTRICT: BIDAR -585 401.
Location: HIGH
COURT OF ...APPELLANT
KARNATAKA
(BY SRI. B. C. JAKA, ADVOCATE)
AND:
THE STATE BY AURAD- B P.S.
DISTRICT: BIDAR
REPRESENTED BY ADDITIONAL PUBLIC PROSECUTOR
HIGH COURT BUILDING,
KALABURAGI- 560 001.
...RESPONDENT
(BY SRI. SIDDALING P. PATIL, ADDL. SPP)
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CRL.A No. 200031 of 2021
C/W CRL.A No. 200086 of 2016
CRL.A No. 200128 of 2016
THIS CRL.A. IS FILED U/S.374 (2) OF CR.P.C, PRAYING
TO SET ASIDE THE JUDGMENT OF CONVICTION AND ORDER
OF SENTENCE DATED 11.04.2015 IN S.C.No.41/2015 ON THE
FILE OF PRINCIPAL DISTRICT AND SESSIONS JUDGE AT
BIDAR, FOR THE OFFENCE PUNISHABLE UNDER SECTION 302,
201, 120B, 109 R/W 34 OF IPC AND ACQUIT THE APPELLANT
OF THE OFFENCE CHARGED AGAINST HIM IN THE INTEREST
OF JUSTICE AND EQUITY.
IN CRL. A NO.200086/2016
BETWEEN:
MR. PINTU @ YESU,
S/O BABURAO KAMBLE,
AGED ABOUT 25 YEARS,
R/AT, HARIJANWADA, AURAD-B,
DISTRICT: BIDAR - 577513.
...APPELLANT
(BY SRI. B. C. JAKA, ADVOCATE)
AND:
THE STATE BY AURAD-B P.S
DISTRICT- BIDAR
REPRESENTED BY PUBLIC PROSECUTOR,
HIGH COURT BUILDING,
KALABURAGI- 560001.
...RESPONDENT
(BY SRI. SIDDALING P. PATIL, ADDL. SPP)
THIS CRL.A. IS FILED U/S.374 (2) OF CR.P.C, PRAYING
TO SET-ASIDE THE JUDGMENT OF CONVICTION AND ORDER
OF SENTENCE DATED 11.04.2015 IN S.C. NO.41/2015 ON THE
FILE OF PRINCIPAL DISTRICT AND SESSIONS JUDGE AT
BIDAR, FOR THE OFFENCE PUNISHABLE UNDER SECTION 302,
201, 120B, 109 R/W 34 OF I.P.C AND ACQUIT THE APPELLANT
OF THE OFFENCE CHARGED AGAINST HIM IN THE INTEREST
OF JUSTICE AND EQUITY.
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CRL.A No. 200031 of 2021
C/W CRL.A No. 200086 of 2016
CRL.A No. 200128 of 2016
CRL.A NO.200128/2016
BETWEEN:
SHARNAPPA
SON OF TUKARAM KAMBLE,
AGE: 44 YEARS, OCC: MISTRI WORK,
R/O HARIJAN WADA AURAD-B,
TQ. AURAD-B,
DISTRICT: 585 426.
...APPELLANT
(BY SRI. B. C. JAKA, ADVOCATE)
AND:
THE STATE BY AURAD-B P.S
DISTRICT- BIDAR
REPRESENTED BY PUBLIC PROSECUTOR,
HIGH COURT BUILDING,
KALABURAGI- 560001.
...RESPONDENT
(BY SRI. SIDDALING P. PATIL, ADDL. SPP)
THIS CRL.A. IS FILED U/S.374 (2) OF CR.P.C, PRAYING
TO SET-ASIDE THE JUDGMENT AND CONVICTION AND ORDER
OF SENTENCE DATED 11.04.2016 IN S.C. NO.41/2015 ON THE
FILE OF PRINCIPAL DISTRICT AND SESSIONS JUDGE AT
BIDAR, FOR THE OFFENCE PUNISHABLE UNDER SECTION 302,
201, 120B, 109 R/W 34 OF I.P.C AND ACQUIT THE APPELLANT
OF THE OFFENCE CHARGED AGAINST HIM IN THE INTEREST
OF JUSTICE AND EQUITY.
THESE APPEALS, COMING ON FOR FINAL HEARING, THIS
DAY RAJESH RAI K J., DELIVERED THE FOLLOWING:
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CRL.A No. 200031 of 2021
C/W CRL.A No. 200086 of 2016
CRL.A No. 200128 of 2016
JUDGMENT
These appeals by the accused Nos.1, 2 and 4
directed against the judgment of conviction and order of sentence passed by the Court of Principal District and Sessions Judge, Bidar in S.C.No.41/2015 dated 11.04.2016, wherein the learned Sessions Judge convicted the accused/appellants for the offences punishable under Sections 302 r/w Section 34 of IPC r/w Section 120-B, 109 and 201 of IPC. Thereby, learned Sessions Judge sentenced them to undergo imprisonment for life and to pay a fine of Rs.5,000/- each for the offences punishable under Sections 302 r/w Section 34 of IPC r/w Section 120- B and 109 of IPC (the imprisonment for life means the imprisonment till end of his natural life). Further, they sentenced to undergo rigorous imprisonment for a period of three years and to pay a fine of Rs.2,000/- each for the offence punishable under Section 201 r/w Section 34 of IPC. In default of payment of fine, they directed undergo simple imprisonment for a period of one year during their -5- NC: 2024:KHC-K:4528-DB CRL.A No. 200031 of 2021 C/W CRL.A No. 200086 of 2016 CRL.A No. 200128 of 2016 time of imprisonment for life. Further directed that, all the substantive sentences shall run concurrently.
2. The factual matrix of the prosecution case is as follows:
It is the case of prosecution that the accused No.4 and 1 are the father and son. Deceased is the mother of the accused No.4 and grandmother of accused No.1. The complainant-PW.1 is the younger brother of deceased Laxmibai. Accused No.4 working as Mestri, involved in bad vices and always quarreling with his mother i.e., deceased to give money, the complainant used to pacify the quarrel between deceased and accused No.4. The accused No.1 without going to School, wandering here and there and he was also quarreling with his grandmother i.e., deceased by insisting her to give gold and cash for his bad vices. The complainant had advised them not to indulge in such activities, however the accused No.4 did not heed to the advice made by the complainant. When this being the scenario, on 27.11.2014 at morning 7:00 a.m., the -6- NC: 2024:KHC-K:4528-DB CRL.A No. 200031 of 2021 C/W CRL.A No. 200086 of 2016 CRL.A No. 200128 of 2016 accused No.4 had telephoned to the complainant stating that some persons have assaulted his mother i.e., deceased and requested him to come to his house. Accordingly, the complainant and his sister Janabai (PW.5) went to the house of the deceased in the morning hours at about 9:00 a.m. and saw the bloodstained mat and broken Bangle pieces in the court yard of the house and saw the dead body of his sister which was buried, leg and heels were visible. Hence, PW.1 lodged the complaint before the Police suspecting that accused No.1-Rathikanth and accused No.4-Sharnappa might have murdered the deceased with sharp edged weapon in the intervening night of 26.11.2014 and 27.11.2014 and must have buried the dead body by digging pit in the court yard. Based on such complaint lodged by PW.1, PW.29-PSI of Aurad Police Station registered the FIR in Crime No.384/2014 dated 27.11.2014 against accused Nos.1 and 4 for the offences punishable under Sections 302 and 201 r/w section 34 of IPC.-7-
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3. Thereafter, PW.33-the Investigation Officer conducted the investigation and come across that the accused No.1 had called upon his friends i.e., accused Nos.2 and 3 and made a conspiracy to snatch the cash and gold by committing his grandmother's murder, after the act, they would share cash and gold. Accordingly, accused Nos.2 and 3 have agreed to the said act and on the night of 27.11.2014 at about 00:15 hours, accused No.1 tip off accused Nos.2 and 3 to stand outside the house and to inform him, if anybody comes and accordingly, accused Nos.2 and 3 stood outside the house. Accused No.1 raised TV volume and took big stone and assaulted on the left cheek and face of the deceased who was sleeping, thereby committed murder and also assaulted the deceased with a wooden repiece on the leg of the deceased and made up jolt and also assaulted on the neck of the deceased with sickle and assaulted on her stomach. Thereafter, accused Nos.1, 2 and 3 have taken the dead body of the deceased outside the house and dig a pit and buried the dead body -8- NC: 2024:KHC-K:4528-DB CRL.A No. 200031 of 2021 C/W CRL.A No. 200086 of 2016 CRL.A No. 200128 of 2016 in the said pit. Accordingly, after completion of the investigation by obtaining necessary documents from the concerned authority, PW.33 filed the charge sheet against accused Nos.1, 2 and 4 for the offences punishable under Sections 302, 201, 109, 120-B r/w section 34 of IPC, before the Committal Court. However, accused No.3 is a minor and he tried before Juvenile Justice Board, Bidar.
4. After committal of the case before the Sessions Court, the prosecution in total examined 33 witnesses as PWs.1 to 33 so also got marked 38 documents as Exs.P1 to 38 and got identified 14 material objects as MOs.1 to
14. On contrary, the accused have got marked 2 documents as Exs.D1 and 2.
5. After completion of the prosecution evidence, the learned Sessions Judge read over the incriminating evidences of the material witnesses to the accused as contemplated under the provisions of Section 313 of Cr.P.C. Though accused denied the same, they neither -9- NC: 2024:KHC-K:4528-DB CRL.A No. 200031 of 2021 C/W CRL.A No. 200086 of 2016 CRL.A No. 200128 of 2016 chose to examine any witnesses on their behalf nor got marked any documents.
6. Post assessment of oral and documentary evidence placed before the learned Sessions Judge, the learned Sessions Judge convicted the accused for the aforementioned offences and sentenced them as stated supra. Being aggrieved by the said judgment, accused No.1 preferred Crl.A.No.200031/2021, whereas accused No.2 preferred Crl.A.No.200086/2016 and accused No.4 preferred Crl.A.No.200128/2016 to set-aside the judgment of conviction and order of sentence passed by the Sessions Court.
7. We have heard learned counsel B.C. Jaka for the appellants/accused and learned Additional SPP Sri Siddaling P. Patil for the respondent/State in all the appeals.
8. It is the primary contention of the learned counsel for the appellants that the learned Sessions Judge
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NC: 2024:KHC-K:4528-DB CRL.A No. 200031 of 2021 C/W CRL.A No. 200086 of 2016 CRL.A No. 200128 of 2016 erred while passing the impugned judgment by convicting the accused. The impugned judgment suffers from perversity and illegality since the learned Sessions Judge convicted the accused based on surmises and conjectures. They would further submit that the entire case of the prosecution rests on circumstantial evidence except the Investigation Officer-PW.33 and other official witnesses, i.e., PW.23 to PW.30, none of the material witnesses have supported the case of the prosecution, as such, the prosecution miserably failed to prove the charges leveled against the accused by leading cogent corroborative evidence. They would further contend that as per the law laid down by the Hon'ble Apex Court in catena of judgments, if the case is rests on the circumstantial evidence, the prosecution has to prove the guilt of the accused by proving the chain link of all the circumstances by hypothesis guilt of accused. They would further contend that the name of accused No.2 is not forthcoming in the FIR i.e., Ex.P27, however, later he has been falsely
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NC: 2024:KHC-K:4528-DB CRL.A No. 200031 of 2021 C/W CRL.A No. 200086 of 2016 CRL.A No. 200128 of 2016 implicated in the case without any prima facie materials. Accordingly, they pray to allow the appeals.
9. Per contra, learned Addl. SPP vehemently contended that, after meticulously examining all the materials available on record, the learned Sessions Judge convicted the accused in a well reasoned judgment which does not call for any interference by the hands of this Court. He would further contend that the prosecution successfully established the guilt of the accused beyond reasonable doubt by the evidence of Investigation Officer- PW.33 so also the other official witnesses i.e., PW.23 to
30. He would further contend that, though the other material witnesses turned hostile to the prosecution case, there is no bar to disbelieve the evidence of official witnesses to bring home the guilt of the accused as held by the Hon'ble Apex Court in catena of judgments. Accordingly, he prays to dismiss the appeals.
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10. Having heard the learned counsel for the respective parties so also perused the evidence and documents made available before us, the points that would arise for our consideration are:
1. Whether the judgment under these appeals suffers from any perversity or illegality?
2. Whether the learned Sessions Judge is justified in convicting the appellants/accused for the offences punishable under Sections 302, 201, 120-B, 109 r/w Section 34 of IPC?
11. This Court being the Appellate Court, in order to, re-appreciate the entire material on record, it is relevant to consider the evidence of prosecution witnesses and the documents relied upon. On a cursory glance on the evidence deposed by the witnesses before the trial Court are as under:
(i) PW.1-Shivaram, the complainant and the younger brother of deceased Laxmibai, lodged the complaint as per Ex.P1 and deposed that accused No.1 is
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NC: 2024:KHC-K:4528-DB CRL.A No. 200031 of 2021 C/W CRL.A No. 200086 of 2016 CRL.A No. 200128 of 2016 the grandson and accused No.4 is the son of the deceased. However, this witness turned hostile to the prosecution case by denying other averments of complaint lodged by him as per Ex.P1.
(ii) PW.2-Lingamma and PW.3-Jagannath, the witnesses for inquest panchanama drawn on the dead body of the deceased as per Ex.P3. However, both the witnesses were turned hostile to the prosecution case.
(iii) PW.4-Sunil, witness for Ex.P4 i.e., spot mahazar, however this witness turned hostile to the prosecution case.
(iv) PW.5-Janabai, the circumstantial witness and also the younger sister of the deceased Laxmibai and mother of PW.1. However, this witness turned hostile to the prosecution case.
(v) PW.6-Umakanth, witness for Ex.P7 i.e., seizure mahazar at the instance of accused i.e., the weapons M.Os.12 and 13 used for the commission of crime by the
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NC: 2024:KHC-K:4528-DB CRL.A No. 200031 of 2021 C/W CRL.A No. 200086 of 2016 CRL.A No. 200128 of 2016 accused. However, this witness turned hostile to the prosecution case.
(vi) PW.7-Goutam, son of PW.5 and the circumstantial witness, turned hostile to the prosecution case.
(vii) PW.8-Muktabai and PW.9-Shakuntala, the circumstantial witnesses and relatives of the deceased. However, these witnesses turned hostile to the prosecution case.
(viii) PW.10-Mallikarjun, PW.11-Narsingh, PW.12- Subhash and PW.13-Kashinath, the labourers of the Town Panchayat who exhumed the dead body of the deceased from the pit at the instructions of the Chief Officer in the presence of the family members. However, all these witnesses were partly turned hostile to the prosecution case.
(ix) PW.14-Sheik Chand, the Chief Officer of Town Panchayat who sent labourers i.e., PWs.11 to 13 from TMC
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NC: 2024:KHC-K:4528-DB CRL.A No. 200031 of 2021 C/W CRL.A No. 200086 of 2016 CRL.A No. 200128 of 2016 Office for exhumation of dead body of the deceased. He deposed that, he had given Khata Extract i.e., Ex.P17 of the house of the husband of the deceased.
(x) PW.15-Ramesh and PW.16-Bhimrao, the panch witnesses for cloth seizure of the deceased as per Ex.P18, turned hostile to the prosecution case.
(xi) PW.17-Subhash and PW.18-Raju, the panch witnesses for recovery of currency notes from the accused as per Ex.P19, turned hostile to the prosecution case.
(xii) PW.19-Ashok and PW.20-Sanjukumar, the panch witnesses for exhumation of the dead body of the deceased as per Ex.P20, turned hostile to the prosecution case.
(xiii) PW.21-Rahula, the witness for spot panchanama Ex.P4, turned hostile to the prosecution case.
(xiv) PW.22-Lalappa, witness for seizure panchanama-Ex.P7 i.e., cloths M.Os.12 to 14, turned hostile to the prosecution case.
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(xv) PW.23-Rajendra K.V., The Taluka Executive Magistrate conducted the panchanama and exhumation of dead body as ordered by the Sub Divisional Magistrate, Bidar and he prepared panchanama of exhuming body as per Ex.P20. He recorded the statements of PWs.5, 15, 17, 18, 19 and identified the inquest panchanama-Ex.P3, blouse and saree of deceased as M.O.1.
(xvi) PW.24-The Police Constable, carried the FIR to the jurisdictional Magistrate.
(xvii) PW.25-Shobha, handed over the dead body of the deceased and M.Os.1 to 3 to the relatives after conducting post-mortem examination. (xviii) PW.26-Santosh is the owner of land bearing Survey No.66 measuring 3 acre 18 guntas situated at Aurab Taluka where the robbed amount was hidden by the accused.
(xix) PW.27-Veershetty Rathod, Assistant Engineer, prepared the spot sketch as per Ex.P22.
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NC: 2024:KHC-K:4528-DB CRL.A No. 200031 of 2021 C/W CRL.A No. 200086 of 2016 CRL.A No. 200128 of 2016 (xx) PW.28-Dr.Gayatri, conducted the autopsy over the dead body and issued the postmortem report as per Ex.P24 and also identified the FSL report as per Ex.P25 and given the final opinion as to the cause of death as per Ex.P26.
(xxi) PW.29-Shivanand, the then PSI, registered the FIR against the accused as per Ex.P27 based on the complaint lodged by PW.1 as per Ex.P1.
(xxii) PW.30-Vivekanand, the Assistant Executive Engineer, GESCOM, issued a Certificate as per Ex.P28 that there was an electricity supply in the intervening night of 26.11.2014 and 27.11.2014 at Aurad village. (xxiii) PW.31-Basavaraj, the circumstantial witness , turned hostile to the prosecution case. (xxiv) PW.32-Ujjwala, the Presiding Officer of II Addl. Senior Civil Judge and JMFC, Bidar deposed about the request letter of the accused to record the confessional
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NC: 2024:KHC-K:4528-DB CRL.A No. 200031 of 2021 C/W CRL.A No. 200086 of 2016 CRL.A No. 200128 of 2016 statement of accused No.1. However the accused had not given such statement.
(xxv) PW.33-Siddappa, CPI, Rona, the Investigation Officer in this case. After completion of investigation, laid the charge sheet against the accused in this case.
12. On careful perusal of the above evidence, in order to prove the homicidal death of the deceased Laxmibai, the prosecution relied the evidence of PW.23- the Taluka Executive Magistrate, whose presence inquest panchanama on the dead body was conducted so also PW.28-Doctor who conducted the postmortem examination, Ex.P3-inquest Panchanama, Ex.P24- postmortem report, Ex.P25-Forensic Science Laboratory report and final opinion of the Doctor-PW.28 as per Ex.P26. PW.29 conducted the inquest panchanama as per Ex.P3. PW.23-the Taluka Executive Magistrate was present during that time and had perused the injuries sustained by the deceased. The Doctor has opined that the death is due
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NC: 2024:KHC-K:4528-DB CRL.A No. 200031 of 2021 C/W CRL.A No. 200086 of 2016 CRL.A No. 200128 of 2016 to "hemorrhage and shock as a result of cut throat injury". He further opined that, by sharp edged weapon if throat is cut, then there are chances of occurring cut throat injury. Hence, on conjoint reading of the above evidence, the prosecution has proved that the death of deceased Laxmibai was homicidal one. However, to connect the accused for homicidal death of deceased, though the prosecution examined PWs.1 to 22 the relatives of deceased and other material circumstantial witnesses, unfortunately, all of them have utterly turned hostile to the prosecution case.
13. The Sessions Judge convicted the accused solely based on the testimony of the Investigation Officer- PW.33 and the evidence of other official witnesses. No doubt, the testimony of official witnesses cannot be discarded for the reason that they are the official witnesses. In the same time, the Court must look into the corroborative evidence to rely the testimony of official witnesses. The Hon'ble Apex Court in the case of Pradeep
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NC: 2024:KHC-K:4528-DB CRL.A No. 200031 of 2021 C/W CRL.A No. 200086 of 2016 CRL.A No. 200128 of 2016 Narayan Madgaonkar and Others v. State of Maharashtra reported in (1995) 4 SCC 255 held that indeed the evidence of the officials (Police) witnesses cannot be discarded merely on the ground that they belong to the Police force and are, either interested in the investigating or the prosecuting agency but prudence dictates that their evidence needs to be subjected to strict scrutiny and as far as possible corroboration of their evidence in material particulars should be sought. Their desire to see the success of the case based on their investigation requires greater care to appreciate their testimony.
14. Admittedly, the entire case of the prosecution rests on circumstantial evidence. The Hon'ble Apex Court laid the law in catena of judgments as how a case has to be proved, if it rests on circumstantial evidence. The panchasheela principles held by the Hon'ble Apex Court way back in the year 1984 in the case of Sharad Birdhichand Sarda v. State of Maharashtra reported in
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NC: 2024:KHC-K:4528-DB CRL.A No. 200031 of 2021 C/W CRL.A No. 200086 of 2016 CRL.A No. 200128 of 2016 (1984) 4 SCC 116 which was re-iterated by the Hon'ble Apex Court in the recent judgment i.e., Shankar v. State of Maharashtra reported in 2023 SCC OnLine SC 268 held as under.
(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established. It may be noted here that this Court indicated that the circumstances concerned 'must or should' and not 'may be' established. There is not only a grammatical but a legal distinction between 'may be proved' and 'must be or should be proved' as was held by this Court in Shivaji Sahabrao Bobade v. State of Maharashtra [(1973) 2 SCC 793] where the following observations were made:
19. ..."Certainly, it is a primary principle that the accused must be and not merely may be guilty before a court can convict and the mental distance between 'may be' and 'must be' is long and divides vague conjectures from sure conclusions."
(2) The facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty,
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NC: 2024:KHC-K:4528-DB CRL.A No. 200031 of 2021 C/W CRL.A No. 200086 of 2016 CRL.A No. 200128 of 2016 (3) the circumstances should be of a conclusive nature and tendency, (4) they should exclude every possible hypothesis except the one to be proved, and (5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.
15. By applying the principles laid down by the Hon'ble Apex Court as above to the facts and evidence of case on hand, in our considered view, the prosecution miserably failed to prove all the circumstances except the homicidal death of deceased. The dead body was not exhumed at the instance of accused. Before their arrest itself, the dead body of deceased was exhumed. Further, the other circumstances like motive, recovery of weapons used for the commission of crime, recovery of clothes of the accused worn at the time of the incident are concerned, though the prosecution examined the material witnesses i.e., PWs.1-the brother of deceased, PW.5-the
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NC: 2024:KHC-K:4528-DB CRL.A No. 200031 of 2021 C/W CRL.A No. 200086 of 2016 CRL.A No. 200128 of 2016 sister of deceased, PW.7-the son-in-law of the deceased, PW.9-the relative of deceased, none of these witnesses have supported the case of the prosecution. As per prosecution, PWs.1 and 2 being the relatives were aware about the harassment meted out by accused Nos.1 and 4 to the deceased for money to their bad vices, however, both were not supported the case of prosecution. Though, the Investigation Officer exhumed the dead body in the presence of PW.23-Tahsildar, the same was conducted before the arrest of accused. As such, the dead body was not recovered at the instance of accused. Though the learned Sessions Judge opined that the death of the deceased was well within the special knowledge of accused, they have to explain the same, if they have not committed the murder of deceased, then who else has committed the same. The said reasoning of the learned Sessions Judges is totally misconceived, since the dead body was exhumed before the arrest of accused. Further, the initial burden lies on the prosecution to prove its case,
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NC: 2024:KHC-K:4528-DB CRL.A No. 200031 of 2021 C/W CRL.A No. 200086 of 2016 CRL.A No. 200128 of 2016 then only such burden shifts on the accused to explain the special knowledge. The recovery of the weapons which were said to have been used for the commission of crime i.e., M.Os.12 and 13, under Ex.P14 also not proved since the mahazar witnesses for the same are totally turned hostile to the prosecution case. The learned Sessions Judge by relying the evidence of Investigation Officer and the Doctor who conducted the autopsy, convicted the accused that too in a case based on circumstantial evidence. Hence, as per the settled position of law laid down by the Hon'ble Apex Court supra, the impugned judgment passed by the learned Sessions Judge calls for interference.
16. We are aware of the fact that the ghostly murder of age old lady by her own son and grandson at her house goes unpunished, but to prove the act of accused, absolutely no evidence is forthcoming on record. Suspicion, however strong cannot find place of proof. There is a long difference between 'may be' and 'must be'
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NC: 2024:KHC-K:4528-DB CRL.A No. 200031 of 2021 C/W CRL.A No. 200086 of 2016 CRL.A No. 200128 of 2016 as held by the Hon'ble Apex Court in the case of Narendra Singh v. State of M.P., (2004) 10 SCC 699 held in Paragraph No.30 as under:
30. It is now well settled that benefit of doubt belonged to the accused. It is further trite that suspicion, however grave may be, cannot take place of a proof. It is equally well settled that there is a long distance between "may be" and "must be".
17. In view of the above discussion, we are of the considered view that the learned Sessions Judge erred while convicting the accused since the prosecution failed to prove the guilt of the accused beyond all reasonable doubt. In that view of the matter, we answer point No.1 in the affirmative and point No.2 in the negative and proceed to pass the following:
ORDER i. Criminal Appeal No.200031/2021 filed by accused No.1, Crl.A.No.200086/2016 filed by accused No.2 and Crl.A.No.200128/2016 filed by accused No.4 are allowed.
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ii. The judgment of conviction and order of
sentence imposed by the Principal
District and Sessions Judge, Bidar in S.C.No.41/2015 dated 11.04.2016 is set aside.
iii. Consequently, the appellants/accused Nos.1, 2 and 4 are acquitted for the offences punishable under Sections 302 read with Section 34 of IPC, read with Section 120-B and 109 so also offence punishable under Section 201 of IPC read with Section 34 of IPC.
iv. The bail bonds of accused Nos.2 and 4
i.e., appellants in Criminal Appeal
Nos.200086/2016 and 200128/2016,
stand cancelled. The fine amount, if any, deposited by them shall be refunded to them on due identification.
v. The Jail Authority is directed to release
accused No.1 in Criminal Appeal
No.200031/2021, forthwith, if he is not required in any other case.
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vi. The operative portion of the judgment
shall be communicated to the
concerned Jail Authorities.
Sd/-
JUDGE
Sd/-
JUDGE
HKV
List No.: 1 Sl No.: 1
CT;BN