Karnataka High Court
Revanesha @ Ravi vs The State Of Karnataka on 23 July, 2021
Author: B.Veerappa And Srishananda
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 23RD DAY OF JULY, 2021
PRESENT
THE HON'BLE MR. JUSTICE B. VEERAPPA
AND
THE HON'BLE MR. JUSTICE V. SRISHANANDA
CRIMINAL APPEAL NO.127/2015(C)
BETWEEN
1. REVANESHA @ RAVI
S/O MARUVALLI MANJAPPA
AGED ABOUT 34 YEARS
OCC:TRACTOR DRIVER
R/O GUDAMAGATTA VILLAGE
BHADRAVATHI TALUKA
SHIVAMOGGA DISTRICT-577301
2. SMT SARASWATHI
W/O NARAYANAGOWDA
@ MUSULLI NARAYANA
AGED ABOUT 29 YEARS
OCC:HOUSEHOLD WORK
R/O HALEIKKERI VILLAGE
SAGARA TALUKA
SHIVAMOGGA DISTRICT-577401
...APPELLANTS
(BY SRI P.B.UMESH, FOR SRI R.B.DESHPANDE, ADVOCATES)
2
AND
THE STATE OF KARNATAKA
BY SAGAR RURAL POLICE STATION
SHIVAMOGGA DISTRICT-577401
...RESPONDENT
(BY SRI VIJAYAKUMAR MAJAGE, ADDL.SPP)
THIS CRL.A. IS FILED U/S 374(2) OF CR.P.C PRAYING
TO SET ASIDE THE ORDER DATED:9/10.12.2014, PASSED BY
THE PRESIDING OFFICER, FTC, SHIVAMOGGA C/C FTC
SAGAR, IN S.C.NO.74/13 - CONVICTING THE
APPELLANT/ACCUSED NO.1 & 2 FOR THE OFFENCES P/U/S
115, 120(B), 328, 302, 201 R/W 34 OF IPC.
THIS APPEAL HAVING BEEN HEARD AND RESERVED
FOR JUDGMENT ON 07.07.2021, COMING ON FOR
PRONOUNCEMENT OF JUDGMENT, THIS DAY,
V.SRISHANANDA. J., DELIVERED THE FOLLOWING:
JUDGMENT
Accused persons convicted for the offences punishable
under sections 115, 120(b), 328, 302 and 201 read with
Section 34 of IPC and sentenced to undergo substantive
sentence of life imprisonment by judgment dated 09.12.2014
passed in SC No.74/2013 on the file of Fast Track Court,
Sagara have challenged the validity of the said judgment in
this appeal.
2. Brief case of the prosecution in brief are as
under:
Upon complaint lodged by Sri B. Ganapathy Gowda,
Sagara police registered a case in crime No.289/2012 initially
for the offences punishable under Section 306 read with
Section 34 IPC on 30.10.2012 at about 9.30 am. In the
complaint, it is contended that about 16 years earlier to the
complaint, he married his second daughter Anusuya to one
Musali Narayana Gowda and a male child was born from their
wedlock, who was named as Jayantha @ Jayaram. Aafter
11th day of the delivery, Anasuya died and up to 2 ½ years,
the said child was reared in his house. Thereafter, father of
the child Narayana Gowda took the child to his house. As on
the date of incident, he was 13 years old and studying in
8th Standard in Ikkeri High School. Narayana Gowda married
one Saraswathi, who is the resident of Kerekoppa and from
the said wedlock, Narayana Gowda got daughter aged about
6 years and son aged about 4 years.
Complaint averments further reveals that Jayantha @
Jayaram was not looked after in proper way by second wife
of Narayana Gowda and he was harassed by the Narayana
Gowda and second wife Saraswathi by directing him to clean
the vessels, sweeping the house and washing the clothes,
etc. They also restrained him to visiting other houses, which
he came to know from the relatives. When he had been to
house of Narayana Gowda, he had conversation with
Jayantha @ Jayaram and he revealed that his step mother
(accused No.2) and his father Narayana Gowda and his
senior uncle Manjappa was torturing him and used to
provoke him that he should die so that property would
remain for themselves. He took up the matter with Narayana
Gowda and told that send Jayantha to his house but
Narayana Gowda refused to do so.
Complaint averments further revealed that on
24.10.2012 on Vijayadashami festival day, Jayantha left his
house without informing anybody around 12'o clock in the
noon and he did not return home. The same was intimated to
complainant from the relatives of Narayana Gowda namely
Eshwara. Being anxious, complainant enquired in the relative
house about Jayantha but he was not traced. Narayana
Gowda lodged a missing complaint on 26.10.2012 with Rural
Police of Sagara. On 29.10.2012 at about 7.00 p.m., when
he was proceeding near Varadalli Circle, he received the
information that Jayantha was found dead in KoteKaanu
Forest near Majjigere from his son Manjunataha.
Immediately, himself and president of panchayath namely
Sydhur Mahabalesh visited Kotekaanu Forest and found dead
body of Jayantha in supine position and the body was bloated
and ants and other insects were found on the body and
tongue was protruded; he noticed white and grey color
T-shirt and a faded black color pant and face and body were
disfigured. It is also found from the complaint that deceased
unable to tolerate the harassment imparted to him by
Narayana Gowda, Manjappa and second accused, deceased
had died in Kotekaanu Forest. He noticed that bread pieces,
a juice bottle and few snacks within the vicinity of the dead
body and he entertained doubt about death of Jayantha and
he specifically explained Narayana Gowda, Manjappa are
responsible for death and thus, sought for action against
them.
3. Jurisdictional police after thorough investigation,
filed charge sheet against the appellants herein for the
offences punishable under Sections 115, 120-B, 328, 302
and 201 read with Section 34 of IPC.
4. On receipt of the charge sheet, the jurisdictional
magistrate committed the matter to the Sessions Court.
5. On such committal, the Sessions Court secured
the presence of the accused persons and framed the charges
against accused persons for the aforesaid offences. The
substance of the charge were read over to accused persons
in the language known to them and accused denied the
charges and claimed for trial.
6. Prosecution in order to bring home the guilt of
the accused persons, examined in all 19 witnesses as PWs.1
to 19 and relied on 39 documents which were marked as
Exs.P1 to 39 and also material objects marked as
M.Os.1 to 7.
7. On conclusion of the prosecution evidence,
accused statement was recorded as contemplated under
Section 313 Cr.P.C. Accused persons were denied all
incriminatory circumstances and did not chose to lead any
evidence nor offered any explanation to the incident.
8. Thereafter learned trial Judge heard the
arguments of both sides and passed an order of conviction
convicting the accused persons for the offences punishable
under Sections 302, 115, 120-B, 328 and 201 read with
Section 34 of IPC and sentenced them as under:
Offence Imprisonment Fine (in Rs.)
302 Life 10,000/- each
In default of fine, Rigorous
imprisonment for 6 months
115 Rigorous 2,000/- each.
imprisonment In default of fine, Rigorous
for 2 years imprisonment for 2 months
120-B Rigorous 2,000/- each.
imprisonment In default of fine, Rigorous
for 2 years imprisonment for 2 months
328 Rigorous 3,000/- each.
imprisonment In default of fine, Rigorous
for 3 years imprisonment for 24 months
201 Rigorous 2,000/- each.
imprisonment In default of fine, Rigorous
for 2 years imprisonment for 6 months
9. Head the learned counsel for the parties.
10. Sri. P.B.Umesh, learned counsel for the appellant
contended the impugned judgment of conviction and order of
sentence are contrary to law, evidence on record and
probabilities of the case. He further contended that learned
trial Judge had committed grave error in passing an order of
conviction based on highly interested testimony of
prosecution witnesses. He pointed out that the oral testimony
of the prosecution witnesses are contradictory to each other
and thus unreliable and looks artificial. He also contended
that prosecution case is suffering from suppression of
material facts and prosecution did not place the true version
of the incident, which is not properly appreciated by the
learned trial Judge while passing the impugned judgment.
He also argued that the learned trial Judge failed to note that
the father of the deceased, who is the person, who filed
missing complaint and as per Ex.P.34, complaint was also
lodged against the Narayana Gowda (father of the deceased)
and police filed charge sheet only against appellants herein
which shows that investigation is improper. He also pointed
out that when the complaint filed by the grand father of the
deceased and police registered the case under section 306
IPC, filing of the charge sheet against the accused persons
for the offences punishable under Sections 115, 120(b), 328,
302 and 201 read with Section 34 of IPC has resulted in
miscarriage of justice.
11. Prosecution witnesses 1 to 7 and 11 are the
relatives and their testimony is highly interested testimony
and since the case is based on circumstantial evidence, their
testimony should have been considered by the learned trial
Court with extra case and caution in holding that the
prosecution has established its case beyond all reasonable
doubt. He also argued that the oral testimony of PWs.1 to 7
and 11 comprises of material contradictions and omissions
and is not free from legal infirmities.
12. He also argued that in respect of motive and last
seen theory, prosecution has not placed any evidence on
record and alleged recovery of the material objects is also
not properly proved and thus, prosecution failed to establish
the case by placing cogent evidence on record, which has not
been properly appreciated by learned trial Judge in impugned
judgment.
13. He also argued that the explanation offered by
the accused persons while recording accused statement as
contemplated under Section 313 Cr.P.C. is totally ignored by
the Trial Judge and Trial Judge has shifted the burden on
accused persons which is against the settled principles of
law. He pointed out that presuming facts as contemplated
under Section 114 of Indian Evidence Act is not available in
criminal Case, which has been lost sight of by the learned
Trial Judge. He also contended that the call details marked at
Exs.P.29 and 30 cannot be made as a ground to convict the
appellants as admittedly the mobile telephone instrument
belongs to another person. He further contended that learned
Trial Judge erred in law in placing reliance on Exs.P1 and 4
which are the alleged voluntary statements of the appellants.
He also contended that hardly any material is available on
record to convict the appellants for the offences punishable
under Section under 201 read 34 IPC and thus, they are
entitled for order of acquittal.
14. The medical evidence and contents of Exs.P25
and 26 is not property appreciated by the learned Trial Judge
while finding an order of conviction against the appellants.
15. He also contended with vehemence that alleged
illicit relationship between the appellants was only rumor and
learned Trial Judge cannot presume the fact that appellants
had illicit relationship between them.
16. He further contended that the Trial Judge has
misread the decision relied on by the prosecution resulting in
grave miscarriage of justice and thus, sought to allow the
appeal.
17. Per contra, Sri Vijayakumar Majage, learned
Additional State Public Prosecutor while justifying the
impugned judgment of conviction and order of sentence,
contended that the prosecution is successful in establishing
its case that accused and accused alone is responsible for the
homicidal death of the deceased.
18. He further argued that oral testimony of PWs.1 to
7 and 11 coupled with medical and scientific evidence placed
by the prosecution conclusively establishes nexus between
the accused persons and homicidal death of the deceased. He
further pointed out that none of the prosecution witnesses
did not posses any previous enmity or animosity so as to
falsely implicate the accused persons in the incident and the
same has been rightly appreciated by the learned trial Judge
while passing the impugned judgment.
19. He also contended that the discrepancies are
minor contradictions in oral testimony of prosecution
witnesses pointed out by the learned counsel for the
appellant would only establish that prosecution witnesses are
true witnesses and not tutored witnesses and as such, the
substance of homicidal death is to be appreciated and no
importance can be given to the minor discrepancies. He
further pointed out that the complaint averments. The oral
testimony of the prosecution witnesses clearly establish that
the deceased being the step son of accused No.2 and was
being harassed by accused No.2 and if accused No.2 is done
to death, her children would succeed to the entire property of
Narayana Gowda and thus, she had hatched a plan with her
paramour (accused No.1) and killed the deceased by making
him to consume a poisonous substance mixed in mango juice
and later on strangulated the deceased and left the dead
body in a forest area so as to cause disappearance of
evidence of crime and thus, the prosecution has established
its case beyond all reasonable doubt and prayed for dismissal
of the appeal.
20. In view of the rival contentions urged by the
learned counsel for the parties, the only point that would
arise for our consideration in the present appeal is -
"Whether the appellants make out a case
that finding recorded by the Trial Judge in
impugned judgment that accused persons are
responsible for the homicidal death of the
deceased Jayantha @ Jayaram and thus, they are
guilt of the offences punishable under Sections
115, 120(b), 328, 302 and 201 read with Section
34 of IPC is suffering from legal infirmity,
perversity and thus, calls for interference in the
facts and circumstances of the present case?'.
21. This Court being the Appellate Court having
regard to the scope of the appeal in its order of conviction, in
order to re-appreciate the entire material on record both oral
and documentary evidence on record including the original
records, it is relevant to prosecution witnesses and
documents relied upon -
(i) PW.1 - Manjunatha is the Son of complainant. He
deposed that his father Ganapathy Gowda died about 2½
months earlier and he is acquainted with accused persons
and deceased. He further deposed that his sister was married
to Narayana Gowda (PW.8) about 14 years earlier. Deceased
was born out of their wedlock and within a short time, his
sister Anusuya died when the deceased was child of 11 days.
After the death of Anusuya, deceased was reared in his
house for about 2 ½ years and Narayana Gowda visited
there and took the deceased along with him. Further, he
deposed that after death of Anusuya, PW.8 - Narayana
Gowda got married accused No.2 and out of the said
wedlock, a son and daughter were born to them. After birth
of two children, accused No.2 started harassing the deceased
by indulging him in house hold work i.e., washing clothes,
cleaning vessels, etc. He also deposed that for peeling
arecanut shell, accused No.1 who is resident of Bhadravathi
used to visit the house of accused No.2 and he came to know
that there is a illicit relationship between them. He further
deposed that on Vijayadashami Day i.e., on 24.10.2012,
Jayantha got missing from the house and PW.8 - Narayana
Gowda visited his house and enquired whether Jayantha has
visited them. They have told that he has not visited them
and all of them searched for him but Jayantha was not found.
On 29.10.2012, in Kotekaanu forest near Majjigere,
dead body of Jayantha was found and police conducted
inquest mahazar in his presence. When the mahazar took
place, his father (complainant), his cousin Ashok and his
brother-in-law was present. He further deposed that later he
came to know that accused persons have mixed sleeping
tablets in juice and made the deceased to drink and
thereafter strangulated the deceased. He specifically deposed
that if the deceased is done to death , children of accused
No.2 would be benefited. Therefore, accused persons
murdered the deceased. In his cross examination on behalf
of accused No.1, he has answered that about 2-3 years prior
to death of the deceased, he has seen the deceased. He
admits that he had not seen accused No.1 earlier to
30.10.2012 but he had the information about the illicit
relationship and he got the information from the police.
In his cross-examination on behalf of accused No.2, it
is elicited that Anusuya died after 11 days of delivery of
deceased. He admits that the elder sister of PW.8 - Sitamma
had reared the child for about 5-6 months. He admits that
after 2 ½ years, Narayana Gowda sought for custody of the
deceased and matter had reached up to Police station.
Thereafter, custody of child was given to PW.8-Narayana
Gowda. He admits that thereafter there is no cordiality
between him and PW.8. He has answered that he came to
know that deceased-Jayantha being harassed by the accused
No.2 and from his father.
(ii) PW.2 - Shivakumar is residing in the same lane of
PW.8 about distance of 7 houses. He further deposed that he
acquainted with PW.8, he has seen accused No.1 about 3-4
times when accused No.1 visited his village. He further
deposed that out of the wedlock between PW.8 and accused
No.2, there are two children and PW.8 had son born to first
wife. He further deposed that the child was reared by
complainant and thereafter PW.8 had taken to custody of the
deceased from complainant. He specifically deposed that the
second accused was harassing the deceased. She has
indulged the deceased in house hold works beyond his age.
Further deposed that PW.8 had kept money in Post Office in
the name of deceased and PW.8 had got landed property. He
further deposed that accused No.1 had visited his village in
the guise of peeling the arecanut shells and later on he used
to visit the house of accused No.2 once in two months and on
special occasions like festivals, etc. he further deposed that
there was a thick rumor in the village that accused persons
have illicit relationship between them.
He further deposed that at the time of death, deceased
was studying in 8th Standard and might have been aged
13-14 years. He came to know that on 25.10.2012, the
deceased was missing on and from 24.10.2012 and he
presumed that he must have attended Akkanagamma's fair
(jathra festival) in Theravinakoppa. When he came to know
that deceased was missing, he had also joined with others for
searching the deceased but their efforts did not yield any
result and PW.8 lodged a missing complaint on 26.10.2012.
He further deposed that on 29.10.2012, the dead body of the
deceased was traced in Kotekaanu forest in a bush situated
near Majjigere village. Thereafter, he also visited the said
place and seen the dead body and Ganapathy Gowda
(maternal grand father of the deceased) lodged a complaint
and police had recorded his statement. He further deposed
that later on he came to know that accused No.1 mixed
sleeping tablets in juice and made the deceased to drink and
later strangulated the deceased at the instance of accused
No.2.
In his cross examination on behalf of accused No.1, it
is elicited that he is not aware of native place of accused no.1
but he is from Bhadravathi side. He has answered that for
the fist time he saw accused about thee years earlier to
death of the deceased-Jayantha. He answered that he never
spoke to accused No.1. He had definite information from
villagers that there is illicit relationship between accused
Nos.1 and 2. He answered that he did not intimate the said
relationship to PW.8. He has answered that the deceased got
missing when PW.8 and accused No.2 had been to
agricultural work. He denied that had falsely implicated
accused No.1 in the case.
In his cross examination on behalf of accused No.2, it
is elicited that he used to visit house of PW.8 and the School
of the deceased is situated around 4 km. from his village at
Karkikoppa. He has answered that the deceased used to
leave his house for visiting the School at 8.45 a.m. and
would return by 5.45 p.m. and he was regular to the School.
He admits that he did not intimate the police about the
harassment imparted to the deceased by accused No.2 when
he saw the dead body.
(iii) PW.3 - Yuvaraj is the brother-in-law of accused
No.2. He deposed that accused No.2 is his wife gayathri's
elder sister. He further deposed about the marriage between
PW.8 and accused No.2; death of first wife of PW.8; the
children born to PW.8 and accused No.2; deceased stayed in
the complainant's house at Harogoppe. He further deposed
that the deceased was studying in 8th Standard at the time of
his death. He also deposed that accused No.2 had indulged
the deceased for washing clothes, utensils and also other
house hold works. He further deposed that even though PW.8
had soft corner to the deceased, he had no guts to advise
accused No.2 in that regard. He specifically deposed that
PW.8 was under the clutches of accused No.2. PW.8 had
made few deposits in the Post Office in the name of
deceased. He came to know from PW.8 that accused No.2
had withdrawn the proceeds of the said deposits and accused
No.2 had a feeling that PW.8 is settling the funds in the
name of deceased.
Before the court, he had identified accused No.1 and
deposed that he was from Bhadravathi and used to visit the
house of accused No.2 and used to bring arecanut to the
house of accused No.2 for peeling shells and he had intimate
the relationship with accused No.2 and they used to stay in
the house even in the absence of PW.8 and on one occasion
both of them slept when PW.8 was not in the house and he
had also heard from the villagers that there was thick rumor
that they had a illicit relationship between them. He
specifically deposed that both accused Nos.1 and 2 had
visited Agoreshwara Temple and another temple near
Soraba.
He further deposed that on 24.10.2012, the deceased
got missing and he had also searched for him. PW.8 lodged a
missing complaint on 26.10.201. He came to know that the
dead body of deceased Jayantha was found at Kotekaanu
Forest near Majjigere on 29.10.2012 and accused and he also
visited the place. He saw the dead body which was in de-
composed stage. There was a juice bottle nearby and few
bread slices and biscuits. He came to know from the police
that accused No.1 had mixed sleeping tablets in juice and
made the deceased to drink the same. And thereafter
strangulated the deceased. He specifically deposed that if
PW.8 settles the property in the name of deceased, children
of accused No.2 would not get any property and therefore,
Jayantha was done to death. He also came to know that on
24.10.2012, accused No.2 had taken the deceased along with
her for picking arecanut and she alone returned.
In his cross-examination on behalf of accused No.1, it
is elicited that he had love affair with the younger sister of
accused No.2 and there was opposition for marriage from her
parents. It is further elicited that accused No.2 and PW.8
have also opposed the love affair between him and his wife.
However he denies a suggestion that on account of said
opposition, he has nurtured the enmity against accused No.2
and PW.8. He has answered that his house is situated about
1 k.m. away from the house of accused persons and he had
seen accused No.1 six months earlier to the death of
deceased and he used to visit the house of accused No.2 for
peeling the arecanut shells. It is elicited that he came to
know about the illicit relationship between the accused Nos.1
and 2 after the dead body was found. He denied having given
false evidence against accused persons.
In his cross-examination on behalf of the accused No.2,
it is elicited that he had visited the house of accused No.2
about one month earlier to death of the Jayantha along with
his wife. Usually he used to visit the house of accused No.2 in
the afternoon or evening but he has not staying in the house
of accused No.2. He denied that accused No.2 used to look
after Jayantha like her own son. He has answered that in
Majjigere Village about 10-12 houses are there. He denied
having given false evidence against accused persons.
(iv) PW4 - Prabhavathi is examined as PW.4. She is the
neighbor of accused No.2. She deposed about the
relationship between accused No.2 and PW.8; first wife of
PW.8; acquaintance of Jayantha and his rearing in the
childhood in the house of complainant. She specifically
deposed that accused No.2 was harassing the deceased
physically and mentally and she had indulged the deceased
in house hold works like sweeping, cleaning vessels, etc. She
also deposed about the acquaintance of accused No.1 and his
frequent visits to the house of accused No.2. She also
deposed that both the accused persons were visiting the
Jathra festival and temples. She specifically deposed that
there was a illicit relationship between accused Nos.1 and 2.
She also deposed that PW.8 had deposited money in the
name of deceased in the Post Office and accused No.2 used
to quarrel with PW.8 that her children would be denied the
share in the property.
She specifically deposed that on 24.10.2012 at about
12.45 p.m., when she was sitting on the platform situated in
front of her house, she saw accused No.2 taking the
deceased along with her towards Majjigere and returned
alone. She enquired accused No.2 as to what happened to
the deceased and accused No.2 replied that he had gone to
play. She further deposed in the evening hours that accused
No.2 intimated her that deceased is missing and she
intimated the villagers about accused No.2 taking the
deceased towards Majjigere village in the afternoon.
Thereafter, all the villagers and others searched for deceased
but Jayantha was not traced. PW.8 lodged a missing
complaint. She further deposed that on 29.10.2012, dead
body of Jayantha was found in Kotekaanu forest near
Majjigere. She specifically deposed that accused No.2 had
taken Jayantha in the same direction, where the dead body
was found. She also deposed that the Police visited the place
of the incident and drew mahazar. Later on she came to
know that both the accused persons killed Jayantha by
mixing sleeping tablets in Juice and made Jayantha to drink
the same and thereafter strangulated the deceased.
In her cross-examination on behalf of accused No.1,
she had answered that accused No.1 was visiting the house
of accused No.2 about 2-3 years earlier to the incident in the
guise of peeling of shell of arecanuts. She admits the
suggestion the villagers developed suspicious about the
illicit relationship as both accused used to chit chat sitting
closely. She admits that herself and PW.8 are cousins and
they are in cordial terms earlier and now they are not in
cordial terms. She had answered that even on the date of
this position, accused No.2 was residing with PW.8. She
denied the suggestion that since they are not in cordial
terms, she had falsely deposed against the accused persons.
In cross examination on behalf of accused No.2, she
admits that there were disputes between her and accused
No.2 on account of sharing of water and she was not in
talking terms with accused No.2. It is elicited that in front of
her house, a road is situated, which passes through Sagara
to Kagehalla and about 15-20 acres arecanut garden is
situated after the said road. She admits that Majjigere is
situated half a kilometer in the arecanut garden and about 20
house are there in Majjigere Village. She answered that
arecanut garden is visible from her house but if somebody is
inside the garden they are not visible from her house. She
admits that from the house road leading to Majjigere is not
visible. She denied the other suggestions.
(v) PW-5 - Varadakshi is examined as PW5. She is also
resident of same lane that of PW8. she also deposed about
acquaintance of first wife of pw.8 and rearing of deceased in
complainant's house. She further deposed that deceased was
made to carryout house hold works by accused No.2 and she
has witnessed same. She has also stated that she has seen
accused Nos.1 and 2 inside the house when she was peeling
shell of the arecanut and accused No.1 used to stay in the
house of accused no.2 for 2-3 days and she has seen same
on 5 to 6 occasions and she came to know from the villagers
that they had intimate relationship between them.
She further deposed that PW.4 told her that accused
No.2 had taken deceased along with her at about 12 noon
towards Majjigere and she alone returned after some time.
Thereafter, she came to know that deceased was killed by
accused. In her cross examination, she has answered that
accused No.1 used to visit about 2-3 years earlier to the
incident. The specific suggestion since both accused cordially
speaking to each other, villagers had entertained suspicious
about their relationship is admitted by her. She has answered
that PW.8 also used to stay in the house for some times. She
denied the suggestion that she has given false evidence
against the accused on the ground that Jayantha died.
In the cross examination on behalf of accused No.2,
she has answered that she had no knowledge of inside the
house of accused No.2. She denied the suggestion that
accused No.2 has not indulged the deceased in house hold
work. She admits that the movement of people in Majjigere
Road is not visible to her house.
(vi) P.W.6 - Ramesh is yet another villager, who
deposed about family members of accused No.2 and
deceased being reared in his grand-father's house. He also
deposed that accused No.2 used to get house hold work
through deceased and used to assign him house hold work
beyond his age. He also deposed about accused No.2 with
deposit made by PW.8 in the name of deceased. He further
deposed that accused No.1 used to reside in the house of
accused No.2 weeks together and he must have visited 10 to
15 times to the house of the accused No.1 and they were
having intimate relationship between them and other
villagers to say that there was illicit relationship between
them.
He further deposed that on Vijayadashami day, people
started gabbing that Jayantha missing and accused No.2 has
taken him towards the arecanut garden. He came to know
from his neighbor that accused No.2 alone returned
thereafter. He further deposed that 4 to 5 days later, the
dead body of deceased was found in kotekaanu forest and he
has also seen M.Os.1 to 3 being found near the dead body.
In his cross examination on behalf of accused No.1, he
has answered that he is the resident of neighboring village
which is situated half a per long from the house of PW.8 but
on road it is ¾ k.m. and he is having a garden. He has
specifically answered in cross examination that he had seen
accused Nos.1 and 2 together visiting the market and at that
juncture PW.8 had not accompanied them.
In his cross-examination on behalf of accused No.2, he
answered that between Majjigere and Ikkeri there is arecanut
garden spread over 9 acres. He has further answered that if
somebody has to visit Majjigere, one has to pass through his
village. He has answered that he has intimated the police
about accused No.2 returned alone after she accompanied
the deceased.
(vii) PW.7 - Manjappa is the elder brother of P.W.8-
Narayana Gowda. He deposed about the accused and family
members of PW.8 and he is residing separately from PW.8.
He also deposed about the house hold work being carried out
by the deceased at the instance of accused No.2. He further
deposed that he has advised his younger brother (PW.8) to
properly advise accused No.2 and PW.8 had replied that
accused No.2 is not heeding to his advise. He further
deposed that accused No.1 used to visit the house of accused
No.2 in the guise of peeling the arecanut shells and used to
stay in the house for 4-5 days. Whenever he has visited the
house of the accused No.2, accused No.1 was found in the
house of accused No.2 and accused No.2 used to feed him
and accused Nos.1 and 2 used to roam around in the village
freely; there was a thick rumor spread in the village that
there was illicit relationship between them. He further
deposed that on 24.10.2012 deceased found missing despite
best search, he was not found. On 29.10.2012, dead boy of
the deceased was found in kotekannu forest in decomposed
state and the grand father of the deceased had come there
and he had lodged a complainant against PW.8 on suspicion.
Later on he came to know that accused Nos.1 and 2 killed
him.
In his cross-examination on behalf of accused No.1, it
is elicited that he has not intimated the police about accused
No.2 roaming around freely in the village. He has answered
that there is no enmity between him and PW.8. He denied
the suggestion that in order to grab the property of accused
No.2, he has given false evidence against her. He has
answered that he used to visit the house of PW.8 on festival
days.
In his cross-examination on behalf of accused No.2, it
is elicited that his wife and accused No.2 not in talking terms
about 7 to 8 years. He denied the suggestion that he never
used to visit the house of PW.8.
(viii) PW.8 - Narayana Gowda is the father of the
deceased. He deposed that accused No.2 is his second wife
and she has studied up to 7th Standard and he is owning 50
arecanut tees and he is not doing any agricultural work. He
deposed about his first wife's death soon after delivery.
There deceased being reared in the house of his father-in-
law. He further deposed that after five years of death of his
first wife, he married accused No.2 and he has two children
from her. He has further deposed that accused No.1 visited
his house only once.
He further deposed that he came to know that
deceased died by consuming poisonous substance juice and
he did not support the case of prosecution further and turned
hostile. As such, he was cross-examined by the prosecution
by confronting his statements said to have been given by him
before the Investigation Officer. In such cross-examination,
he admits that he had kept money in deposit in Post Office
and accused No.2 had withdrawn. He also admits that he had
questioned accused No.2. She replied that he has not made
any arrangements for future of her children. He further
admits that by death of deceased, second wife and her
children are benefited. He admits that he has made a call to
accused No.1 from his mobile telephone.
In his cross examination on behalf of accused No.2, it
is elicited that he has told his wife to withdraw the money
from post office.
(ix) Shrungesh is examined as PW.9. He is the owner
of medical store in the name of style of Jayalaxmi Medical
Shop. he deposed that he has been in the said business last
20 years and he acquainted with many villagers. He also
deposed that he sells sleeping tablets based on the
prescription given by the Doctor. However, he denied having
sold tablets to accused No.1 and as such, he been treated as
hostile witness and cross examined by prosecution.
In such cross-examination, the statement said to have
been given by him before Investigation Officer he confronted
but witness denied the same.
In his cross examination, on behalf of accused No.1, he
has answered that he is a diploma holder in the pharmacy
and if consumed about 20-30 tablets as is mentioned in MO.4
namely alprazolam, person may die.
(x) H.M. Nagaraja is examined as PW.10. He is
mahazar witness to Ex.P5-spot mahazar, Ex.P6 - Inquest
mahazar and photographs, which were taken during both
mahazars exhibited and marked as Ex.P7 to 11. he identified
photographs and deposed by he participated in both the
mahazars and supported the prosecution case. This witness
is not cross examined by the defense witness.
(xi) PW.11 - Mahabalesh is mahazar witness to Ex.P12-
mahazar where under the police seized M.O.4 and drafted
Ex.P12 to 14 mahazars.
He identified the articles seized under the said
mahazars. He also deposed that he is participated in Ex.P14
mahazar mobile telephone belonging to accused No.1 is
seized and Ex.P15 mahazar has been drafted. He identified
mobile telephone as MO.6. He also identified M.Os.16 to 18
photographs, which were taken during the mahazar
proceedings.
In his cross-examination, on behalf of accused No.1, he
has answered that panchanama has been drafted in the
medical store at the first instance and thereafter, they had
gone to the place where the dead body was lying. He further
answered that accused No.1 searched for the 10 tablets strip.
He denied that police have concocted material objects seized
under the mahazars.
(xii) Krishnamuthy is another mahazar witness is
examined as PW.12. He deposed that on 7.11.2012, he has
visited Police Station and police seized a mobile telephone
from accused No.2 and drafted Ex.P19-mahazar and
supported the prosecution case..
(xiii) Mahabala Giri is Post Mater and he is examined as
PW.13. He deposed that there was a account opened in the
name of deceased in his Post Office and he has given the
necessary document to investigating agency in that regard.
He further deposed that initially a sum of Rs.50, and later
Rs.1500 and Rs.1000 was deposited in the said account. He
further deposed that deceased visited along with accused
No.2 on 12.04.2011 and amount was withdrawn from the
said account and ledger account has identified by him as per
Ex.P21. In his cross-examination, he has answered that the
said sum of Rs.2500, the amount which was obtained from
the govt. as traveling allowance.
(xiv) Head Master of Ikkeri High School by name
Rajanish-PW.14. he deposed that at request of investigating
agency, he issued Exs.P22 and 23 showing that at the time
of death, the deceased was studying in school in 8th
standard. He further deposed that sometimes the deceased
used to reach the school during the prayer time and on
enquiry, the deceased has told that he has to attend house
hold work and therefore, he was late to the school.
(xv) Drug controller by name Sunil A. Patil is examined
as PW.15. He deposed that as per the request of the
investigating agency, he has examined the tablets strip and
noticed that the name found on the tablet strip is mentioned
as axin 0.5 mg. In the said tablet, alprazolam is the drug
used. He has issued a repot in that regard vide Ex.P24. He
further deposed if somebody consumes the said tablet, she
would become drowsy. He also deposed that if somebody
consumes more than 5 tablets, it may result in the death. He
also deposed that the drug effect will be remaining in body
about 45 minutes to 2 hours and person who consumes will
go deep sleep.
In his cross examination, he has answered that without
medical prescription, the said tablet cannot be sold. He also
admitted that dystopian drug was not found in the said
tablet. He further answered that the said tablet is usually
prescribed for muscle relaxation, as an antidepressant and to
treat the emotions of woman during menopass.
(xvi) Dr. Vrunda J. Bhat is examined as PW.16. She
deposed that at the request of Sagara Rural Police, she has
conducted post mortem examination on the dead body of
Jayantha @ Jayaram and issued post mortem examination
report vide Ex.P25. She identified the FSL repot in respect of
viscera as per Ex.P26. She has noticed external appearance
and injuries during the Post Mortem examination and noted
the same in the Post Mortem report as under:
"Dead body of a male, measuring 148 cm in
length, moderately built, with evidence of
advanced decomposition and gas stiffening. There
is disfiguration of the face with protruded tongue,
popped out eye balls, easily detachable scalp hairs,
all being signs of advanced decomposition.
Marbling is present on the front of chest, abdomen
and the both the thighs. Skin slippage seen at
various places on the body. Maggots measuring
from 0.3 cm x 0.4 cm to 0.6 cm x 1.2 cm and
plenty of bluebottle and greenbottle flies were
pesent all over the body. External genitalia are
distended with gas."
She further deposed that on 13.01.2013, investigating
agency issued letter with three queries and she has answered
that only by consuming alprazolam tablet in mango juice,
death would not be caused and when the deceased was
under the influence of said drug, possibility of death occurred
on account of asphyxia due to strangulation or pressing nose
by hand with force. She identified her report in this regard as
per Ex.P27. She also opined that in 250 ML mango juice, if
0.5 mg alprazolam 10 tablets are mixed and made a person
to drink, about 4 mg of said drug would remain in the body
and under influence of said drug, the person who consumed
the said drug would be without conscious for a period of 45
minutes to 2 hours and if there is no proper treatment given
and if the said person is not medically treated, the said
person may die in 3 to 4 days.
In her cross examination, the suggestion made to him
that if nose pressed with hand, there is no possibility of
fracture of the nasal bone. If in case of strangulation by
pressing neck with hands, there would be finger prints on the
neck reason and the same can be identified even if the body
is de-composed stage.
(xvii) Further Investigation Officer Sri. J.C.Raju, is
examined as PW.17. He deposed that on 08.11.2012, he
came to know about arrest of accused No.1 and thereafter he
took further investigation and secured the presence of
accused No.2. He secured the presence of the panch
witnesses and in their presence, accused gave voluntary
statement and based on the voluntary statement, he
proceeded to place shown by the accused and thereafter, he
recovered the bread pieces, juice bottle and biscuits and
drafted Ex.P12 mahazar. He also identified the material
objects before the Court. He further recovered the empty
tablets strip under Ex.P13 mahazar and drafted another
mahazar vide Ex.P14 from where accused No.2 took the
deceased along with her. He also identified the photographs
which were taken during the mahazar proceedings as per
Exs.P7 to 11 and 16 to 18 and compact disk as Ex.P28.
Thereafter, he has produced accused before the Court for
remanding them to judicial custody. Subsequent thereto, he
has collected the revenue documents and sent seized articles
to the Forensic Science Laboratory for examination and
report and collected the call details vide Exs.P29 and 30. He
further collected the reports and filed charge sheet.
In his cross examination on behalf of accused, it is
elicited that even before the arrest of accused No.2 they had
information about accused No.1 in view of the statement of
charge sheet witness-Shiva Kumar which was recorded on
30.10.2012. He admits that mobile telephone which was
used by accused No.2 is in the name of one Nithashetty. He
further answered that on enquiry, he came to know that
Nithashetty had surrendered the mobile number and the
same was given in favour of accused No.2. He admits that
Nithashetty neither cited as witness nor examined before the
Court. The contradictions of prosecution witnesses CWs.6, 7
and 9 are admitted by the Investigation Officer, however, he
denied that he has not given statement before him vide
Ex.P4. He has answered that the tablets strip was found at a
distance of 600-700 feet from the place where the dead body
was found. He denied having concocted voluntary statement
of the accused and recovery of articles and the same are
concocted for the purpose of the case.
(xviii) Part Investigation Officer Sri D.Devaraju is
examined as PW.18. He deposed about the registration of
missing complaint lodged by PW.8 and thereafter, received a
complaint by the Ganapathy Gowda and registering a case in
Crime No.289/2012 on 30.10.2012 and conducted the
inquest mahazar and spot mahazar and seizure of articles
found near the dead body. He further deposed that he had
prepared rough sketch vide Ex.P38 and recorded the
statements of Manjunath, Ashoka, Mariyappa, Shivakumar
and Ravi. He further deposed that on 07.11.2012, at his
instructions, accused persons secured and produced before
him. He has handed over for the further investigation to
PW.17. In his cross examination, it is elicited that dead body
of the deceased was found about ½ km. away from Majjigere
Village and distance between Ikkeri and Majjigere is about
1 ½ km. It is elicited that there is a pathway near the place
where dead body was found. He admits that accused No.2
had not given any statement to him.
(xix) Prakash is examined as PW.19. He deposed that
he is owner of condiment shop in Sagara Bus Stand in the
name and style of Raghavendra Condiment. He has
supported the case of the prosecution.
22. On the basis of above oral and documentary
evidence on record, the learned Sessions Judge recorded a
order of conviction convicting the accused for the offences
punishable under Sections 115, 120-B, 328, 302 and 201
read with Section 34 of IPC.
23. The case of the prosecution is based on
circumstantial evidence. Prosecution has relied on three
important circumstances as under:
(i) Motive
(ii) Last seen theory
(iii) Recovery.
(i) Motive:
24. From the material available on record, it is found
that the deceased-Jayanthaa @ Jayaram was last seen on
24.10.2012. PWs.1 to 7 have clearly deposed that deceased
was step son of accused No.2 and accused No.2 used to get
house hold works done through him. They also deposed that
soon after deceased was born, his natural mother (first wife
of PW.8) died in a short time and thereafter for about 2 ½
years deceased was reared in the house of defacto-
complainant-Ganapathy Gowda (deceased natural mother's
father).
25. Thereafter, PW.8 who is the father of the
deceased brought him to his house at Ikkeri. It is deposed to
by these witnesses that there was a deposit in the name of
deceased in the Post Office which is withdrawn by accused
No.2. PW.8 though turned hostile, in his cross examination
by the prosecution has admitted that accused No.2 had
withdrawn the money kept in the Post Office. He has also
admitted in the cross examination on behalf of the
prosecution that when accused No.2 was enquired why she
has withdrawn the amount, accused No.2 has assigned
reasons that on account of paucity of funds, she has
withdrawn. He also admits that accused No.2 had questioned
him that if all the money is kept in the name of Jayanthaa @
Jayaram, nothing would be left to her children.
26. These unequivocal admissions of PW.8 who is
none other than natural father of the deceased coupled with
oral testimony of other prosecution witnesses is sufficient
enough to infer that accused No.2 had motive to take away
the life of the deceased. In a matter of this nature especially
when the case of the prosecution is based on circumstantial
evidence, prosecution is unable to place positive evidence on
record in respect of motive; as motive is a circumstance
which has to be deduced or inferred from totality of the
circumstance. In the case on hand, accused No.2 being the
step mother, having two children from PW.8, she was ill-
treating and harassing the deceased as is deposed by the
prosecution witnesses referred to supra and she had told
PW.8 that if PW.8 settling the funds in the name of deceased,
future of her children would be at jeopardy. PW.8 also admits
that in the cross examination on behalf of prosecution that by
the death of deceased, accused No.2 and her children stands
benefited. PW.8 was in a precarious position as he could not
have opposed second wife and at the same time, he had love
and affection towards the deceased. Therefore, from the
totality of circumstances available on record and unequivocal
admissions elicited, the prosecution is successful in
establishing the motive by placing cogent and convincing
evidence on record, is based on sound and logical reasons.
Thus finding recorded by Trial Judge, even after re-
appreciation, we are of the considered opinion that hardly
any case is made out by the appellants to record contra
finding than that of the trial Judge in respect of circumstance
of motive.
27. Having said that prosecution is successful in
establishing the first circumstance namely motive, it is now
necessary to find out whether the prosecution has
established last seen theory by placing cogent and convincing
evidence on record.
(ii) Last seen theory:
28. In order to establish such circumstance,
prosecution placed strong reliance on the oral testimony of
PW.4-Prabhavathi. She has deposed that on 24.10.2012 at
about 12.45 p.m. when she was sitting on the platform in
front of her house, she saw accused No.2 taking the
deceased along with her and proceeded towards Majjigere
Road and after some time, Accused No.2 returned alone. At
that juncture, she enquired accused No.2 as to where is
Jayantha @ Jayaram (deceased). Accused No.2 replied to her
that he had gone to play. Again in the evening, accused No.2
told her that Jayanthaa @ Jayaram is missing. She also
deposed that she has intimated villagers about accused No.2
about what she has seen in the afternoon that accused No.2
taking the deceased along with her towards Majjigere and
returned alone.
29. In the cross examination, no doubt it is elicited
that there was a rift between this witness and accused No.2
in respect of sharing of water. But there is no panchayat or
police complaint in this regard. Learned counsel for the
appellants vehemently contended that based on the rift
between accused No.2 and PW.4, she has falsely deposed
against the accused No.2. However, the rift between
accused No.2 and PW.4 that too for a flimsy reason would
not be sufficient enough to hold that PW.4 would depose
against accused No.2 especially when there is a death of step
son of accused No.2. Further, it is noticed from the accused
statement recorded under Section 313 Cr.P.C. of accused
No.2, she has not stated that she had enmity with PW.4 and
therefore, PW.4 has chosen to falsely depose against her. It
is pertinent to note that the deceased is none other than the
step son of accused No.2 and as such, accused No.2 was
bound to offer some explanation. Further, there is a delay of
two days in lodging missing complaint by PW.8. Accused
No.2 being the step mother and PW.8 being the father, how
would they keep quite for a period of 2 days in approaching
the police in order to lodge a missing complaint is an aspect
which requires an explanation from accused No.2. Under
such circumstances, the trial Judge has placed reliance on
the oral testimony of PW.4 for believing the case of the
prosecution insofar as the last seen circumstance is
concerned.
30. Further, it is found from the evidence of
PW.8-Narayana Gowda, who is father of the deceased and
husband of accused No.2 stated that himself and accused
No.2 went to their land and at that juncture, deceased was
watching TV and when they returned home, he was not
found. Ex.P29 which is call records between accused Nos.1
and 2. The same establishes that there were series of calls
between mobile telephone of accused Nos.1 and 2 which
were extracted in paragraph 74 of the impugned judgment.
What exactly transpired in such conversations is known to
accused Nos.1 and 2 alone. If accused No.2 was having
conversation with accused No.1 on 24.10.2012 from 11.53
a.m. till up to 6.36 p.m., the oral testimony of PW.8 stating
that himself and accused No.2 had been to land and
deceased was alone in the house, cannot be believed. It is
pertinent to note that PW.8 has not supported the case of the
prosecution and he has been treated as hostile witness. In
his cross examination on behalf of prosecution, he has given
an admission that if Jayantha @ Jayaram is done to death,
accused No.2 and her children could be benefited. On such
cumulative consideration of oral testimony of PW.4 coupled
with Ex.P29 and oral testimony of PW.8, learned trial Judge
believed that prosecution has established the circumstance of
last seen theory with cogent evidence on record.
(iii) Recovery:
31. The final circumstance according to the
prosecution is recovery of the articles at the instance of
accused pursuant to the voluntary statement. It is not in
dispute that police after receipt of the missing complaint
lodged by PW.8, were investigated the matter. They came to
know the dead body of the deceased Jayantha @ Jayaram
was found in Kotekaanu Forest near Majjigere. The police
were able to seize empty tablets sheet marked at M.O.4. The
seized articles were sent for Forensic Science Laboratory for
examination and FSL Report clearly depicts that traces of
alprazolam contents in remaining in mango juice and other
articles and also in viscera. Defence has not come out with
any specific defence or an alternate theory that somebody
else had the motive to take away the life of the deceased. In
the voluntary statement, accused No.1 revealed the details of
the incident. We are aware that no evidentiary value can be
attached to the incriminatory circumstances found in the
voluntary statement of the accused; But acting under the
powers vested in the Court under Section 27 of the Indian
Evidence Act, prosecution in the case on hand is able to
prove the discovery of the fact and article i.e. the empty
Tablet sheet and other articles under Ex.P13-mahazar.
Accused Nos.1 and 2 have not offered any explanation
whatsoever to the recovery of articles. The unnatural conduct
of accused No.2 and PW.8 in keeping quite for a period of
two days not lodging the missing complaint on 24.10.2012 or
at least on the next day 25.10.2012 is a relevant factor.
Recovery of the articles at the instance of accused coupled
with the medical and scientific evidence on record, learned
trial Judge held that recovery of articles M.Os.4, 6 and 7 at
the instance of accused is pursuant to the voluntary
statement as strengthened the case of the prosecution in
establishing this circumstance.
32. On cumulative consideration of above
circumstances, learned trial Judge has held that prosecution
is able to establish all the circumstances whereby the chain
of circumstance is established by prosecution which is not
inconsistent with the innocence of the accused persons. The
trial Judge also referred to number of judgments cited at the
bar and has discussed in detail the legal principles enunciated
therein and applied the same to the case on hand and
recorded a finding that prosecution is successful in
establishing that accused persons are responsible for the
homicidal death of the deceased. It is pertinent to note that
even though there is a specific statement made by the
prosecution witnesses about the illicit relationship accused
Nos.1 and 2 possessed, strangely the appellant did not offer
any explanation nor denied the relationship between them at
the time of recording accused statements. The fact of the
mixing alprazolam tablet in mango juice and made the
deceased to drink the same and when the deceased was
intoxication condition, accused persons have committed the
homicidal death of the deceased by strangulation or done the
same act whereby boy breathed his last. In Post Mortem
reported marked at Ex.P25, the Autopsy Surgeon is opined
that death is due to complication of overdose of alprazolam
detected in the viscera.
33. Evidence is the raw material which judge or
adjudicator uses to reach a finding of fact. It is easy for the
Courts to analyze the oral testimony of eye witness in
reaching such a finding but in case of circumstantial
evidence, it is a onerous responsibility of cast on the Courts
to critically analyze the material available on record and
deduced or infer that a fact must have occurred in a
particular manner.
34. How said onerous exercise that is to be carried
out by the Court in a given case where circumstantial
evidence is to be appreciated is no longer
res integra.
35. In Bodhraj v. State of Jammu and Kashmir
reported in (2002) 8 Supreme Court Cases 45, the
Hon'ble Apex Court has dealt with almost all facets of
circumstantial evidence. The relevant portion of the said
judgment is gainfully quoted hereunder; wherein it is held as
under:
"10. It has been consistently laid down by this Court that
where a case rests squarely on circumstantial evidence,
the inference of guilt can be justified only when all the
incriminating facts and circumstances are found to be
incompatible with the innocence of the accused or the
guilt of any other person. (See Hukam Singh v. State of
Rajasthan [(1977) 2 SCC 99 : 1977 SCC (Cri) 250 : AIR
1977 SC 1063] , Eradu v. State of Hyderabad [AIR 1956
SC 316 : 1956 Cri LJ 559] , Earabhadrappa v. State of
Karnataka [(1983) 2 SCC 330 : 1983 SCC (Cri) 447 :
AIR 1983 SC 446] , State of U.P. v. Sukhbasi [1985
Supp SCC 79 : 1985 SCC (Cri) 387 : AIR 1985 SC 1224]
, Balwinder Singh v. State of Punjab [(1987) 1 SCC 1 :
1987 SCC (Cri) 27 : AIR 1987 SC 350] and Ashok Kumar
Chatterjee v. State of M.P. [1989 Supp (1) SCC 560 :
1989 SCC (Cri) 566 : AIR 1989 SC 1890] ) The
circumstances from which an inference as to the guilt of
the accused is drawn have to be proved beyond
reasonable doubt and have to be shown to be closely
connected with the principal fact sought to be inferred
from those circumstances. In Bhagat Ram v. State of
Punjab [AIR 1954 SC 621 : 1954 Cri LJ 1645] it was laid
down that where the case depends upon the conclusion
drawn from circumstances the cumulative effect of the
circumstances must be such as to negative the
innocence of the accused and bring home the offences
beyond any reasonable doubt.
11. We may also make a reference to a decision of this
Court in C. Chenga Reddy v. State of A.P. [(1996) 10
SCC 193 : 1996 SCC (Cri) 1205] wherein it has been
observed thus: (SCC pp. 206-07, para 21)
"21. In a case based on circumstantial evidence, the
settled law is that the circumstances from which the
conclusion of guilt is drawn should be fully proved and
such circumstances must be conclusive in nature.
Moreover, all the circumstances should be complete and
there should be no gap left in the chain of evidence.
Further, the proved circumstances must be consistent
only with the hypothesis of the guilt of the accused and
totally inconsistent with his innocence."
12. In Padala Veera Reddy v. State of A.P. [1989 Supp
(2) SCC 706 : 1991 SCC (Cri) 407 : AIR 1990 SC 79] it
was laid down that when a case rests upon
circumstantial evidence, such evidence must satisfy the
following tests: (SCC pp. 710-11, para 10)
"10. (1) the circumstances from which an inference of
guilt is sought to be drawn, must be cogently and firmly
established;
(2) those circumstances should be of a definite tendency
unerringly pointing towards guilt of the accused;
(3) the circumstances, taken cumulatively, should form
a chain so complete that there is no escape from the
conclusion that within all human probability the crime
was committed by the accused and none else; and
(4) the circumstantial evidence in order to sustain
conviction must be complete and incapable of
explanation of any other hypothesis than that of guilt of
the accused and such evidence should not only be
consistent with the guilt of the accused but should be
inconsistent with his innocence."
13. In State of U.P. v. Ashok Kumar Srivastava [(1992)
2 SCC 86 : 1992 SCC (Cri) 241 : 1992 Cri LJ 1104] it
was pointed out that great care must be taken in
evaluating circumstantial evidence and if the evidence
relied on is reasonably capable of two inferences, the
one in favour of the accused must be accepted. It was
also pointed out that the circumstances relied upon must
be found to have been fully established and the
cumulative effect of all the facts so established must be
consistent only with the hypothesis of guilt.
14. Sir Alfred Wills in his admirable book Wills'
Circumstantial Evidence (Chapter VI) lays down the
following rules specially to be observed in the case of
circumstantial evidence: (1) the facts alleged as the
basis of any legal inference must be clearly proved and
beyond reasonable doubt connected with the factum
probandum; (2) the burden of proof is always on the
party who asserts the existence of any fact, which infers
legal accountability; (3) in all cases, whether of direct or
circumstantial evidence the best evidence must be
adduced which the nature of the case admits; (4) in
order to justify the inference of guilt, the inculpatory
facts must be incompatible with the innocence of the
accused and incapable of explanation, upon any other
reasonable hypothesis than that of his guilt; and (5) if
there be any reasonable doubt of the guilt of the
accused, he is entitled as of right to be acquitted.
15. There is no doubt that conviction can be based solely
on circumstantial evidence but it should be tested on the
touchstone of law relating to circumstantial evidence laid
down by this Court as far back as in 1952.
17. A reference may be made to a later decision in
Sharad Birdhichand Sarda v. State of Maharashtra
[(1984) 4 SCC 116 : 1984 SCC (Cri) 487 : AIR 1984 SC
1622] . Therein, while dealing with circumstantial
evidence, it has been held that the onus was on the
prosecution to prove that the chain is complete and the
infirmity of lacuna in the prosecution cannot be cured by
a false defence or plea. The conditions precedent in the
words of this Court, before conviction could be based on
circumstantial evidence, must be fully established. They
are: (SCC p. 185, para 153)
(1) the circumstances from which the conclusion of guilt
is to be drawn should be fully established. The
circumstances concerned must or should and not may be
established;
(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;
(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."
36. In a another Judgment of the Hon'ble Apex Court
in the case of Santosh Kumar Singh v. State, (2010) 9
SCC 747 popularly known as Priyadarshini Mattu's
case, the Hon'ble Apex Court has summarized the principles
governing circumstantial evidence as under:
41. We are indeed astonished at these remarkably
confusing and contradictory observations, as CBI was
not called upon to prove the defence of the appellant.
CBI had fairly secured the documents which could prove
the appellant's case and they were put on record and it
was for the defence to use them to its advantage. No
such effort was made. Moreover, we are unable to see
as to how these documents could have been exhibited as
no one has come forward to prove them. It has to be
kept in mind that the appellant was a lawyer and his
father a very senior police officer, and we are unable to
understand as to why no evidence in defence to prove
the documents or to test their veracity, had been
produced. In this background, we find that the medical
evidence clearly supports the version that the injury had
been sustained by the appellant on 24-1-1996 during
the course of the rape and murder.
42. This finding raises yet another issue. It has been
held time and again that a false plea taken by an
accused in a case of circumstantial evidence is another
link in the chain. In Trimukh Maroti Kirkan v. State of
Maharashtra [(2006) 10 SCC 681 : (2007) 1 SCC (Cri)
80] it has been held: (SCC p. 689, para 12)
"12. ... The normal principle in a case based on
circumstantial evidence is that the circumstances from
which an inference of guilt is sought to be drawn must
be cogently and firmly established; that those
circumstances should be of a definite tendency
unerringly pointing towards the guilt of the accused; that
the circumstances taken cumulatively should form a
chain so complete that there is no escape from the
conclusion that within all human probability the crime
was committed by the accused and they should be
incapable of explanation on any hypothesis other than
that of the guilt of the accused and inconsistent with
their innocence."
and again: (SCC p. 690, para 14)
"14. If an offence takes place inside the privacy of a
house and in such circumstances, where the assailants
have all the opportunity to plan and commit the offence
at the time and in circumstances of their choice, it will
be extremely difficult for the prosecution to lead
evidence to establish the guilt of the accused if the strict
principle of circumstantial evidence, as noticed above, is
insisted upon by the courts. A Judge does not preside
over a criminal trial merely to see that no innocent man
is punished. A Judge also presides to see that a guilty
man does not escape. Both are public duties. The law
does not enjoin a duty on the prosecution to lead
evidence of such character which is almost impossible to
be led or at any rate extremely difficult to be led. The
duty on the prosecution is to lead such evidence which it
is capable of leading, having regard to the facts and
circumstances of the case. Here it is necessary to keep
in mind Section 106 of the Evidence Act which says that
when any fact is especially within the knowledge of any
person, the burden of proving that fact is upon him."
43. We, accordingly, endorse the opinion of the High
Court on Circumstances 8 and 12. The onus to prove his
defence and the circumstances relating to his injury and
treatment were within the special knowledge of the
appellant. He could, therefore, not keep silent and say
that the obligation rested on the prosecution to prove its
case.
44. Mr Sushil Kumar has then argued with emphasis,
that the case rested primarily on the factum of rape and
if it was found that there was no evidence of rape, the
case of murder would also fall through. He has,
accordingly, taken us to Circumstance 9 which the trial
court noted as under:
"DNA fingerprinting test conclusively established the
guilt of the accused."
Mr Kumar has first pointed out that the post-mortem did
not reveal any evidence of rape. Reference has been
made to the statement of PW 33 Dr. A.K. Sharma, who
along with a Board of two other doctors had performed
the post-mortem on the dead body on 25-1-1996 at
Safdarjung Hospital and it was observed that the
deceased was wearing a full-sleeved high neck pinkish
T-shirt with a small tear on the breast, blue-coloured
jeans, one brassiere and underwear and woollen socks
and though there were a large number of injuries on the
dead body and the local examination of the private parts
showed black, curly non-matted pubic hair, and an intact
hymen, with no tearing. The doctor was also questioned
as to whether the hymen would always be torn and
ruptured during the first sexual encounter and he
explained that though this would be the normal case but
it was not always so and that the hymen could remain
unruptured even after repeated sexual intercourse for
certain reasons which he then spelt out. It has,
accordingly, been submitted that there was absolutely
no evidence of rape detected during the course of the
examination.
49. At the very outset, we must dispel Mr Sushil
Kumar's rather broad argument that the primary
allegations were of rape whereas murder was a
secondary issue in the facts of the case and that the
proof of murder would depend on proof of rape. We see
from the record that there is very substantial evidence
with regard to the allegations of murder simpliciter and
have been dealt with under Circumstance 11.
50. We first see that right from the year 1994 to
January 1996, that is, a few days before the murder, the
appellant had been continuously harassing the deceased
and that this allegation has been proved by ocular and
documentary evidence. We also see that the appellant
had been seen in the Faculty of Law, University of Delhi
on the morning of the incident and had no business to
be present at that place as he had passed out in the
year 1994. He was also seen by PW 2 Shri Kuppuswami
outside the house of the deceased at about 5 p.m. and
was carrying a helmet with an intact fixed visor, and was
seen moving out of Vasant Kunj Colony by two witnesses
soon after 5 p.m. (though these witnesses ultimately
turned hostile). The only argument against PW 2 is that
his statement under Section 161 of the Code of Criminal
Procedure had been recorded after three days. We find
nothing adverse in this matter as there was utter
confusion in the investigation at the initial stage.
Moreover, PW 2 was a next neighbour and a perfectly
respectable witness with no bias against the appellant.
90. Mr Sushil Kumar has, however, placed greater
reliance on Asraf Ali case [(2008) 16 SCC 328 : (2010) 4
SCC (Cri) 278] whereby this Court relying on a large
number of judgments observed as under: (SCC p. 334,
para 22)
"22. The object of Section 313 of the Code is to establish
a direct dialogue between the court and the accused. If a
point in the evidence is important against the accused,
and the conviction is intended to be based upon it, it is
right and proper that the accused should be questioned
about the matter and be given an opportunity of
explaining it. Where no specific question has been put by
the trial court on an inculpatory material in the
prosecution evidence, it would vitiate the trial. Of
course, all these are subject to rider whether they have
caused miscarriage of justice or prejudice. This Court
also expressed a similar view in S. Harnam Singh v.
State (Delhi Admn.) [(1976) 2 SCC 819 : 1976 SCC (Cri)
324] while dealing with Section 342 of the Criminal
Procedure Code, 1898 (corresponding to Section 313 of
the Code). Non-indication of inculpatory material in its
relevant facts by the trial court to the accused adds to
the vulnerability of the prosecution case. Recording of a
statement of the accused under Section 313 is not a
purposeless exercise."
(emphasis supplied)
Undoubtedly, the observations are extremely relevant
for the purpose of this case but each case has to be seen
on its own facts, more particularly that the omission had
caused prejudice to the accused as would be clear from
the rider put by the court in this very case (and
highlighted by us).
91. On the contrary, we find that that prejudice must
ensue has been reiterated by this Court in Suresh
Chandra Bahri case [1995 Supp (1) SCC 80 : 1995 SCC
(Cri) 60] and a very large number of other cases. This is
what the Court has to say in Bahri case [1995 Supp (1)
SCC 80 : 1995 SCC (Cri) 60] : (SCC pp. 98-99, paras
26-27)
"26. Learned Senior Counsel Shri Sushil Kumar
appearing for the appellant Raj Pal Sharma submitted
that in view of the fact that no question relating to
motive having been put to the appellants on the point of
motive under Section 313 of the Code of Criminal
Procedure, no motive for the commission of the crime
can be attributed to the appellants nor the same can be
reckoned as circumstance against the appellants. It is no
doubt true that the underlying object behind Section 313
CrPC is to enable the accused to explain any
circumstance appearing against him in the evidence and
this object is based on the maxim audi alteram partem
which is one of the principles of natural justice. It has
always been regarded unfair to rely upon any
incriminating circumstance without affording the accused
an opportunity of explaining the said incriminating
circumstance. The provisions in Section 313, therefore,
make it obligatory on the court to question the accused
on the evidence and circumstance appearing against him
so as to apprise him the exact case which he is required
to meet. But it would not be enough for the accused to
show that he has not been questioned or examined on a
particular circumstance but he must also show that such
non-examination has actually and materially prejudiced
him and has resulted in failure of justice. In other words
in the event of any inadvertent omission on the part of
the court to question the accused on any incriminating
circumstance appearing against him the same cannot
ipso facto vitiate the trial unless it is shown that some
prejudice was caused to him. In Bejoy Chand Patra v.
State of W.B. [AIR 1952 SC 105 : 1952 Cri LJ 644] this
Court took the view that it is not sufficient for the
accused merely to show that he has not been fully
examined as required by Section 342 of the Criminal
Procedure Code (now Section 313 in the new Code) but
he must also show that such examination has materially
prejudiced him. The same view was again reiterated by
this Court in Rama Shankar Singh v. State of W.B. [AIR
1962 SC 1239 : (1962) 2 Cri LJ 296] In the present case
before us it may be noted that no such point was raised
and no such objection seems to have been advanced
either before the trial court or the High Court and it is
being raised for the first time before this Court which
appears to us to be an afterthought. Secondly, learned
counsel appearing for the appellants was unable to place
before us as to what in fact was the real prejudice
caused to the appellants by omission to question the
accused-appellant Suresh Bahri on the point of his
motive for the crime. No material was also placed before
us to show as to what and in what manner the prejudice,
if any, was caused to the appellants or any of them.
27. Apart from what has been stated above, it may be
pointed out that it cannot be said that the appellants
were totally unaware of the substance of the accusation
against them with regard to the motive part. In this
regard a reference may be made to Question Nos. 5, 6
and 7 which were put to the appellant Suresh Bahri in
the course of his statement recorded under Section 313
CrPC. The sum and substance of these questions is that
from the prosecution evidence it turns out that the
acquitted accused Y.D. Arya, the maternal uncle of the
appellant Suresh Bahri was living in a portion of the
upper storey of his house at Delhi. He with the consent
of Santosh Bahri the mother of Suresh Bahri, was
interfering in the family affairs as well as in business
matters by reason of which the maternal uncle had to
leave the house and that having regard to the future of
her children Urshia Bahri not only wanted to manage the
property but also to dispose of the same which was not
liked by Suresh Bahri and with a view to remove Urshia
Bahri from his way the appellant Suresh Bahri wanted to
commit her murder. In view of these questions and
examination of Suresh Bahri, it cannot be said that he
was totally unaware of the substance of the accusation
and charge against him or that he was not examined on
the question of motive at all. In the facts and
circumstances discussed above it cannot be said that
any prejudice was caused to the appellant. The
contention of the learned counsel for the appellants in
this behalf therefore has no merit."
(emphasis supplied)
37. As per the principles of law enunciated in
Bodhraj's case and Santosh Kumar Singh's case stated
supra, there is no iota of doubt that Courts can record an
order of conviction even in a case where the case of the
prosecution completely rests on circumstantial evidence.
However, before reaching such a conclusion, following
conditions are to be fully satisfied.
(i) Circumstances from which guilty is
established is proved.
(ii) All facts must be consistent with the
hypothesis of the guilt of the accused.
(iii) Circumstance must be conclusive nature and
tendency.
(iv) circumstantial evidence available on record
should be of moral certainty and actually
exclude every alternate hypothesis.
38. Applying the above principles to the case on
hand, the materials available on record and on
re-appreciation, clearly and categorically point out the guilt
of the accused and none else. The motive nurtured by
accused No.2 is established by prosecution in categorical
terms that if Jayantha was done to death, acc. No.2 and her
children would stand to gain. Last seen theory is also
established by the prosecution through the oral testimony of
pw.4. Recovery of empty tablets strips at the instance of the
accused NO.1 pursuant to voluntary statement coupled with
FSL report clearly indicating traces of alprazolam drug in the
viscera collected by the pm doctor much earlier to the arrest
of accused persons. On cumulative consideration establishes
accused Nos.1 and 2 had hatched the plan to take away the
life of Jayantha so that herself and her children would be
benefited. In the absence of any explanation offered by
accused NO.1 and 2 and accused NO.1 not denying the he
was visiting the accused No.2 and not taking plea that he is
total stranger to accused No.2 is a factor which would be
helpful in inferring that accused NO.1 and 2 together planed
for taking away the life of Jayantha. Presence of alprazolam
traces in the body of Jayantha and empty tablets strip seized
by the police pursuant to voluntary statement accused No.1
establishes that before deceased was done to death,
alprazolam was mixed in mango juice and made the
deceased to drink the same and thereafter they have
committed the homicidal death of the deceased. These
factors would sufficiently attract all ingredients required to
prove the charges leveled against the accused persons stated
supra. However, we notice that there is no evidence on
record to attract the offence under Section 115 IPC. None of
the prosecution witnesses have deposed about the abetment
which is the substance of the offence under Section 115 of
IPC. Likewise prosecution case is silent as to who abetted
whom. Moreover, when Section 34 IPC is invoked by
prosecution and Trial Judge convicted the accused by
resorting to Section 34 IPC, conviction of accused persons
under Section 115 IPC cannot be countenanced in law
inasmuch as Section 34 IPC and 115 IPC would not go hand
in hand and as such, to that extent impugned judgment
needs interference. Therefore, from the above discussions,
we are constrained to hold that appellants have made out a
case for interference in respect of their conviction punishable
under Section 115 of IPC. But they have failed to make out
any grounds whatsoever much less good grounds to interfere
with the impugned judgment convicting the appellants for the
offences punishable under Sections 120-B, 302, 328 and 201
of IPC read with Section 34 IPC.
39. Accordingly, the point is answered partly in the
affirmative holding that the appellants have made out a case
to interfere with the finding recorded by the trial Court that
the appellants are not guilty of the offence punishable under
Section 115 of IPC but failed to make out a case to interfere
with the findings recorded by the trial Court for the offences
punishable under Sections 120-B, 302, 328 and 201 IPC read
with Section 34 IPC.
40. In view of the above, we pass the following:
ORDER
1. Criminal Appeal is allowed-in-part.
2. The impugned judgment of conviction and order of
sentence dated 09.12.2014 passed by the Fast Track
Court, Sagara convicting the accused persons for the
offence punishable under Section 115 read with Section
34 of IPC, is hereby set aside.
3. The impugned judgment of conviction and order of
sentence dated 09.12.2014 passed by the Fast Track
Court, Sagara convicting the accused persons for the
offences punishable under Sections 302, 120-B, 328
and 201 read with Section 34 of IPC, is hereby
confirmed.
4. Office is directed to return the Trial Court records with
a copy of this judgment, forthwith.
Sd/-
JUDGE
Sd/-
JUDGE
KA*
