Shivakumar vs The State Of Karnataka
2022 Latest Caselaw 1514 Kant

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   IN THE HIGH COURT OF KARNATAKA AT BENGALURU

         DATED THIS THE 2ND DAY OF FEBRUARY, 2022

                          PRESENT

           THE HON'BLE MR. JUSTICE B. VEERAPPA

                           AND

            THE HON'BLE Mrs. JUSTICE M.G. UMA

             CRIMINAL APPEAL NO.996/2015

BETWEEN:

SHIVAKUMAR
S/O SANNAIAH
AGED ABOUT 25 YEARS
R/AT BHOGASANDRA MAJRE
BASAPURA VILLAGE, NITTUR HOBLI
GUBBI TALUK - 572 216.
                                                ... APPELLANT

(BY SRI: R P CHANDRASHEKAR, ADV)

AND:

THE STATE OF KARNATAKA
THROUGH CHELUR POLICE
REPRESENTED BY THE
NO.326/12
STATE PUBLIC PROSECUTOR
HIGH COURT BUILDINGS
BENGALURU - 560 001
                                           ... RESPONDENT

(BY SRI: K NAGESHWARAPPA, HCGP)

      THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374(2)
CR.P.C BY PRAYING TO SET ASIDE THE JUDGMENT AND ORDER
DATED 02.07.2015 PASSED BY THE VI ADDITIONAL DISTRICT AND
SESSIONS JUDGE, TUMKUR IN S.C.NO.326/2012 - CONVICTING
THE APPELLANT/ACCUSED FOR THE OFFENCES PUNISHABLE
UNDER SECTIONS 302 AND 201 OF IPC; THE APPELLANT/ACCUSED
IS SENTENCED TO UNDERGO LIFE IMPRISONMENT AND ALSO TO
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PAY FINE OF RS.20,000/-. IN DEFAULT TO PAY FINE AMOUNT
SHALL UNDERGO SIMPLE IMPRISONMENT FOR 2 YEARS FOR THE
OFFENCE PUNISHABLE UNDER SECTION 302 OF IPC; FURTHER THE
APPELLANT/ACCUSED    SENTENCED    TO  UNDERGO     SIMPLE
IMPRISONMENT FOR 7 YEARS AND TO PAY FINE OF RS.5,000/- IN
DEFAULT TO PAY FINE AMOUNT SHALL UNDERGO SIMPLE
IMPRISONMENT OF ONE AND HALF YEAR FOR THE OFFENCE
PUNISHABLE UNDER SECTION 201 OF IPC AND THE ABOVE
SENTENCES    SHALL    RUN    CONCURRENTLY     AND    THE
APPELLANT/ACCUSED PRAYS THAT HE BE ACQUITTED.

     THIS CRIMINAL APPEAL COMING ON FOR FINAL HEARING
THIS DAY THROUGH VIDEO CONFERENCE, M.G.UMA J.,
DELIVERED THE FOLLOWING:


                         JUDGMENT

The appellant being the accused is before this Court

seeking to set aside the impugned judgment of conviction and

order of sentence dated 02.07.2015 passed in S.C.No.326 of

2012 on the file of the learned VI Addl. District and Sessions

Judge, Tumakuru, (hereinafter referred to as 'the Trial Court')

convicting him for the offences punishable under Sections 302

and 201 of Indian Penal Code (for short 'the IPC') and

sentencing him to undergo life imprisonment and to pay a fine

of Rs.20,000/- and in default to pay fine, to undergo simple

imprisonment for a period of two years for the offence

punishable under Section 302 of IPC and to undergo simple

imprisonment for 7 years and to pay a fine of Rs.5,000 and in

default to undergo simple imprisonment for a period of one

and half years for the offence punishable under Section 201 of

IPC.

2. The Investigating Officer i.e., the Circle Inspector

of Police, Gubbi Circle, Tumakuru filed the charge sheet

against the accused in Crime No.43 of 2012 of Cheluru Police

Station for the offences punishable under Sections 302 and

201 of IPC against the accused contending that he was having

illicit relationship with the deceased Sumithra. They used to

meet frequently in the field. On 11.03.2012 at 4.00 p.m.,

deceased went to bring firewood from the field. The accused

also went to the spot. The deceased asked him to marry her,

but the accused refused saying that she is like his sister. The

deceased threatened him that if he fails to marry her, she will

commit suicide by leaving a death note. Therefore, the

accused wanted to eliminate and cause death of the

deceased. Therefore, he took the deceased to the farm

house and spent that night with her. At about 4.30 a.m., he

took her to a place within the jurisdiction of Cheluru Police

Station on Sagasandra road. He left the deceased at the spot

and brought water bottle, Mirinda juice bottle and a pesticide

bottle from Nittur. He also brought some eatables. He asked

the deceased to have those eatables and juice. However, he

mixed the pesticides with the Mirinda juice only with an

intention to cause her death. Accordingly, he administered

the Mirinda juice mixed with pesticides to the deceased and

thereafter, assaulted her head with a stone causing bleeding

injuries on her head. Thereafter, he strangulated her neck

with the veil. With an intention to cause disappearance of the

evidence of crime, he abandoned the dead body at the spot

and went away. Thereby, the accused committed the offences

punishable under Sections 302 and 201 of IPC.

3. After committal of the matter, the learned

Sessions Judge summoned the accused and framed charges

against him for the above said offences, read over the same

in the language known to him. The accused pleaded not

guilty and claimed to be tried. The prosecution examined

PWs.1 to 19, got marked Exs.P1 to 39 and identified the

material objects Mos.1 to 21 in support of its contention. The

accused has denied all the incriminating materials on record in

his statement recorded under Section 313 of Cr.P.C, but has

not led any evidence on his behalf. Taking into consideration

these material on record, the Trial Court proceeded to convict

the accused for the above said offences and passed the

impugned judgment of conviction and order of sentence.

Being aggrieved by the impugned judgment of conviction and

order of sentence, the accused is before this Court seeking his

acquittal.

4. We have heard the learned counsel for the

parties.

5. Sri.R P Chandrashekar, learned counsel for the

appellant submitted that the impugned judgment of conviction

and order of sentence passed by the Trial Court is illegal,

perverse and the same is liable to be set aside. The Trial

Court has not appreciated the oral and documentary evidence

placed before it in a proper perspective. There is absolutely no

material to form an opinion that the accused has committed

the murder of the deceased. The Trial Court ignored the fact

that the accused is falsely implicated in the matter. There are

no convincing evidence to prove the commission of offence.

The Trial Court proceeded to convict the accused only on

weak circumstantial evidence, even though there are no eye

witnesses and the prosecution has failed to prove the

complete chain of circumstances. The Trial Court also ignored

the material contradictions and inconsistencies in the case

made out by the prosecution. Drawing of mahazars as

contended by the prosecution is also not proved. Even

though PWs.2, 4 to 6 and 8 to 12 have turned hostile, the trial

Court proceeded to convict the accused without any basis. It

has also not taken into consideration the inordinate delay in

registering the FIR. The learned counsel further submitted

that even though it is the contention of the prosecution that

the accused has committed the murder of the deceased, the

dead body of Sumithra was never recovered. As per the

seizure mahazar, what was recovered was only few bones and

hairs. It is not proved that the said bones and hairs were of

deceased Sumithra. As per the case of the prosecution, the

said bones and hairs were subjected to DNA analysis by

collecting blood samples of the relatives of the deceased, but

the DNA report was not placed before the Court to

substantiate the contention that the said articles were of the

deceased. Under such circumstances, the Trial Court could

not have proceeded to convict the accused. Therefore, the

learned counsel seeks to allow the appeal by setting aside the

impugned judgment of conviction and order of sentence.

6. Per contra, Sri.K Nageshwarappa, learned High

Court Government Pleader supporting the impugned judgment

of conviction and order of sentence contended that even

though the dead body of the deceased could not be

recovered, a reasonable explanation is given by the

Investigating Officer that the deceased was found missing on

11.03.2012. It is suspected that the accused has caused the

death of the deceased on 12.03.2012. The first information

came to be filed on 16.03.2012. However, on 23.03.2012,

the second FIR came to be registered suspecting the

commission of offence by the accused. After apprehending

the accused, his confessional statement was recorded. On

the basis of his statement, the accused led the police and

showed the scene of occurrence. Scattered bones and hairs

were found at the spot which were recovered under the

mahazar and the post mortem examination was also

conducted. As per the opinion expressed by the Medical

Officer, the death of the deceased was due to respiratory

failure, consequent to consumption of Organo phosphorus

compound and pyrethroid insecticide. Therefore, it is a clear

case of homicidal death of Sumithra which was caused by the

accused. Even though there are no eye witness to the

incident, there are sufficient circumstantial evidence to prove

the guilt of the accused. Therefore, the Trial Court was right

in convicting the accused. There are no reasons to interfere

with the impugned judgment of conviction and order of

sentence passed by the Trial Court. Accordingly, he prays for

dismissal of the appeal as devoid of merits.

7. In view of the rival contentions urged by learned

counsel for the parties, the only point that would arise for our

consideration in this appeal is:

             "Whether       the    appellant-accused          has
      made    out    a     case    to    interfere    with    the

impugned judgment of conviction and order of sentence passed by the Trial Court in convicting the accused for the offences punishable under Sections 302 and 201 of IPC sentencing him to undergo life imprisonment and to pay a fine of Rs.20,000/- and to undergo simple imprisonment for seven years and to pay a fine of Rs.5,000/-, in the facts and circumstances of the case?"

8. We have given our anxious consideration to the

arguments advanced by the learned counsel for the parties

and perused the entire materials including the Trial Court

records carefully.

9. This Court being the Appellate Court, in order to

re-appreciate the entire materials on record, considered the

evidence of the prosecution witnesses and the documents

relied upon.

(i) PW1 - Ganganna is the father of the deceased.

He lodged the first information as per Exs.P1 and P2. Witness stated that the deceased is his daughter. About 2 years back, she was found missing, she had written a phone number on the calendar and the same was given to the police and also lodged the first information as per Ex.P1. Witness stated that she was using his mobile. About 4 - 5 days later, PW3 - Shankaraiah informed him that he had seen the accused taking the deceased with him to Satsandra for the purpose of purchasing clothes. When the said Shankaraiah enquired the accused, the accused informed him that he has caused the murder of Sumithra. On hearing the same, the informant lodged the second information as per Ex.P2. Witness also stated that the accused led him and the police to a place where Ex.P3 - the mahazar was

drawn. Few pieces of bones and hairs were found at the spot. The clothes and ornaments owned by his daughter were also found at the spot. He identified the nightie of his daughter as - MO1. He also identified the jewerly worn by his daughter as Mos.2 and 3.

During cross examination, he pleaded ignorance regarding the contents of the first information. Witness stated that whenever he had been to the Police Station, he was accompanied by Shankaraiah. The police took his signature on the first information. He pleaded his ignorance about the description of the mobile used by his daughter. Witness admitted that Nagaraju, Mahalingaiah and Chikkaeraiah are his relatives. Witness admitted that nothing was seized in his presence and he signed the document as per the direction of the police. Witness stated that there are no special marks on MOs.2 and 3 to identify them as that of his daughter. He admitted that Mos.2 and 3 are commonly available in the market. Witness admitted that there is a thick forest by the side of the village and that the deceased used to go to that area to bring firewood. He denied the suggestion that the deceased died due to snake bite. He admitted that he does not know the cause for

her death. But denied the suggestion that he is deposing falsely against the accused.

(ii) PW2 - Parameshwariah, PW4 - Mahadevamma, PW5 - Manjunatha, PW6 - Siddalingaiah, PW8 - Rangappa, PW9 - Nagaraja @ Naganna, PW10

- Narayanappa, PW11 - Doddasiddaiah and PW12 - Nagaraju have not supported the case of prosecution. All these witnesses were treated hostile and cross examined by the public prosecutor. But nothing has been elicited from any of these witnesses during such cross examination.

(iii) PW3 - Shankaraiah is the neighbor of the deceased. He has deposed before the Court that he knows PW1 and his wife and also deceased Sumithra. On 12.03.2012 he found Sumithra near the farm land of Ramaiah. When he enquired her, she stated that she is going to bring clothes. He asked her as to why she is wearing a nightie and going to purchase the clothes? She informed that her uncle is bringing clothes for her. After a while, the accused came there. On enquiry, he informed that he is taking Sumithra to Satasandra for purchasing clothes. Witness stated that after few days, he met PW1 and enquired him about the Ugadi festival. PW1 informed that his

daughter Sumitra is missing. Witness stated that he informed PW1 that on 13.03.2012, he had met the accused and enquired about Sumithra, for which, the accused gave evasive reply stating that she might have died in the forest by consuming poison. Witness pleaded his ignorance regarding the relationship of the accused and deceased. He has stated that his statement was recorded by the Investigating Officer.

During cross examination, witness stated that when he last seen the deceased, she was all alone. The accused was proceeding at a distance of about 15 to 20 meters away.

Witness denied the suggestion that he is having vengeance against Sannaiah, the father of the accused and that is why he is deposing falsely against the accused.

(iv) PW7 - Dhoodaram is a businessman who is running Balaji Bankers in Nitturu. Witness stated that on 26.03.2012, the Circle Inspector of Police brought the accused to his shop at 5.30 p.m. to 6.00 p.m. They informed that the accused had pledged a gundu and bugudi on 12.03.2012. Those ornaments were weighing 1.800 grams. Witness stated that he paid Rs.2,100/- to the accused and issued a receipt

and also obtained the signature of the accused. He identified those ornaments as Mos.2 and 3. Witness stated that mahazar as per Ex.P7 was drawn. He has identified the accused before the Court.

During cross examination, witness stated that the accused approached him 2 or 3 times and had purchased gold ornaments and denied the suggestion that even though the accused had never pledged Mos.2 and 3, he is deposing falsely.

(v) PW13 - Puneeth is the village accountant of Alilughatta, Gubbi. He has issued the RTC in respect of the scene of occurrence which is as per Ex.P13.

(vi) PW14 - Genaram is a businessman. Witness stated that he knows PW7 who is running the jewerly shop at Nitturu. At about 2 years back, the accused was brought to the shop belonging to PW7. The accused has stated that he has stolen the gold articles and kept in the shop of PW7. Accordingly, the mahazar was drawn as per Ex.P7. Witness stated that he has not seen the ornaments on that day.

During cross examination by the learned counsel for the accused, witness pleaded his

ignorance regarding the contents of Ex.P7 and stated that he does not know reading and writing in Kannada nor the contents of Ex.P7 was read over to him.

(vii) PW15 - Eeranna is the Assistant Sub Inspector of Cheluru Police Station. He received the first information as per Ex.P1 and registered the FIR in Crime No.43 of 2012 as per Ex.P15. Since the missing complaint was registered, he tried to trace the missing person.

(viii) PW16 - Ashok Kumar is the Sub Inspector of Police of Cheluru Police Station. He registered the second information as per Ex.P2 in Crime No.43 of 2012 for the offences punishable under Sections 302 and 201 of IPC. The second FIR is as per Ex.P17. He deputed his officials to trace the accused. Accordingly, the accused was produced before him on 24.03.2012. Later, the accused was produced before the Circle Inspector of Police. Witness stated that he received post mortem report as per Ex.P19. During cross examination, witness stated that he had not enquired Shankaraiah i.e., PW3 named in Ex.P2.

(ix) PW17 - Ramakrishnaiah is the Sub Inspector of Police of Gubbi Police Station. Witness stated that he has submitted a requisition before the

learned Magistrate, Gubbi, to draw the blood samples of the informant and his wife for the purpose of DNA examination. Accordingly, the blood samples were drawn by the Medical Officer in the presence of the Magistrate and the samples were sent for DNA examination. Ex.P25 is the letter sent for DNA examination.

(x) PW18 - Srinivas is the Circle Inspector of Police. He took up further investigation in the matter. Witness stated that the accused was produced before him on 24.03.2012 along with report as per Ex.P20. He apprehended the accused and recorded his voluntary statement. Accused has volunteered that he would show the ornaments which he had pledged and also produced the mobile handset which was used at the time of commission of offence. He also stated that he would show the place where he caused the death of the deceased by poisoning and also strangulating her neck with veil and discarded the dead body and other material objects. The said portion of the voluntary statement is as per Ex.P26. He identified the accused before the Court. Witness stated that he had summoned two panchas and the accused took all of them to the scene of occurrence. The spot was inspected, the dead body of the deceased was not found at the

spot. The surrounding area was verified. The blood stained mud, sample mud, blood stained leaves, blood stained wild stones, bangle pieces were recovered from the spot, which are as per Mos.1 to 7. Accused showed the place which was about 8 feet away and stated that he had abandoned the dead body of Sumithra, at that place. He found hairs at that spot, the same was seized which is as per MO8. Blood stained mud and sample mud were collected, which are as per MOs.9 and 10. About 75 feet away from that place, the accused produced a veil, a mirinda bottle, a plastic bottle and an empty McDowell's whiskey bottle. He also produced the mobile phone belonging to Sumithra and the stone used to assault her head. He also produced a pesticide bottle and the mobile phone belonging to the accused. He produced a chit for having pledged the gold ornaments. The material object were identified by the accused as Mo11 to 19. A detailed panchanama as per Ex.P27 was drawn. Witness identified Mos.1 to 10, 13 to 15, 16 to 21 and the chit for having pledged the gold ornaments was recovered as per Ex.P28. Witness stated that the accused took him to Balaji Bankers at Nitturu. He enquired PW7 who is the owner and asked for producing

the gold ornaments pledged by the accused. He produced those ornaments which were weighing 1.800 grams. The same were seized under Ex.P7 and identified as Mos.2 and 3. Witness stated that the accused showed the hotel from where he had packed the food, Manjushree Bar and Restaurant, where he purchased the whiskey, Siddeshwaraswamy Fertilizer from where he purchased the pesticides. The shop belonging to one Ramu from where he purchased mirinda and water bottle. The owners of all these shops i.e., Narayanappa, Suresh, Dodda siddaiah and Ramu have also identified the accused as he had came to their shop and purchased the above articles. Witness stated that on 25.03.2012, he again visited the farm land where few bones were found and the same were seized under the mahazar in the presence of Nagaraju, Shivakumar and Chennakeshava. A nightie and a petticoat were found at the spot and the same were also seized and the inquest panchanama was drawn at the spot as per Ex.P12. He recorded the statements of the witnesses. On 29.03.2012, he got an information that hairs were was found in the land belonging to one Nagaraja. Immediately, he went to the spot along with Nagaraj and

Mahalingaiah and seized the same under Ex.P3. He requested the call detail report of the mobile phones of the accused and the deceased. He forwarded the articles seized to FSL examination. He deputed the PSI of Gubbi to seek an order for drawing blood samples of PW1 and his wife for DNA examination. He forwarded the bones seized from the spot for examination to Siddarth Medical Hospital, Forensic Medicine Section. He obtained the spot sketch drawn by the Engineer of PWD which is as per Ex.P14. He filed the charge sheet against the accused. He received medical report as per Ex.P38, FSL report and submitted additional charge sheet. Witness stated that the prosecution witnesses have given statement as per Exs.P4 to 6 and 8 to 11 before him.

During cross examination by the learned counsel for the accused, witness stated that he had received DNA report and admitted that the same was not produced before the Court. He denied the suggestion that he had not seized any articles at the instance of the accused nor drawn any mahazar nor recorded the statement of any witnesses.

(xi) PW19 - Dr.Ravikumar has conducted the post mortem examination of the bones. Witness stated that he examined bones and the hairs and forwarded it to FSL examination. On the basis of FSL examination, he issued post mortem report as per Ex.P19.

Based on the aforesaid oral and documentary evidence

on record, the learned Sessions Judge proceeded to convict

and sentence the accused for the offences punishable under

Sections 302 and 201 of IPC.

10. When it is the specific contention of the

prosecution that the accused has caused homicidal death of

the deceased Sumithra by assaulting her head with a stone

and by strangulating her neck with the veil - MO11 and

caused disappearance of evidence of commission of crime and

thereby committed the offences punishable under Sections

302 and 201 of IPC, the prosecution is duty bound to prove

the guilt of the accused beyond reasonable doubt, by placing

cogent materials.

11. It is the settled proposition of law that the

prosecution need not have to rely only on the version of eye

witnesses to prove its contention. When there are no eye

witnesses to the incident, the prosecution can very well rely

on the circumstantial evidence to prove the guilt of the

accused. The quality of such circumstantial evidence must be

sterling and if there are several links in the chain of

circumstances, all such links are to be proved to form a

complete chain, which in turn prove the guilt of the accused

beyond reasonable doubt. It is stated that men may lie,

documents may lie, but the circumstances will never lie. In

many sensational cases, where the accused take precaution

not to leave any evidence of commission of crime, the

prosecution is successful in proving the guilt of the accused

only on the basis of circumstantial evidence, which

conclusively points towards the accused as the author of the

crime.

12. The position of law with regard to circumstantial

evidence is very well settled by the dictum of Hon'ble

Supreme Court in the case of Brajendrasingh Vs State of

Madhya Pradesh 1, wherein, at paras 16 and 17 it is held as

under:

AIR 2012 SC 1552

"16. There is no doubt that it is not a case of direct evidence but the conviction of the accused is founded on circumstantial evidence. It is a settled principle of law that the prosecution has to satisfy certain conditions before a conviction based on circumstantial evidence can be sustained. The circumstances from which the conclusion of guilt is to be drawn should be fully established and should also be consistent with only one hypothesis, i.e. the guilt of the accused. The circumstances should be conclusive and proved by the prosecution. There must be a chain of events so complete so as not to leave any substantial doubt in the mind of the Court. Irresistibly, the evidence should lead to the conclusion inconsistent with the innocence of the accused and the only possibility that the accused has committed the crime. To put it simply, the circumstances forming the chain of events should be proved and they should cumulatively point towards the guilt of the accused alone. In such circumstances, 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. Furthermore, the rule which needs to be observed by the Court while dealing with the cases of circumstantial evidence is that the best

evidence must be adduced which the nature of the case admits. The circumstances have to be examined cumulatively. The Court has to examine the complete chain of events and then see whether all the material facts sought to be established by the prosecution to bring home the guilt of the accused, have been proved beyond reasonable doubt. It has to be kept in mind that all these principles are based upon one basic cannon of our criminal jurisprudence that the accused is innocent till proven guilty and that the accused is entitled to a just and fair trial.

17. It is a settled rule of law that in a case based on circumstantial evidence, the prosecution must establish the chain of events leading to the incident and the facts forming part of that chain should be proved beyond reasonable doubt. They have to be of definite character and cannot be a mere possibility".

(emphasis supplied)

13. It is also relevant to place reliance on the dictum

of the Hon'ble Supreme Court in the case of Lochan Shrivas

Vs State of Chhattisgarh 2, wherein, at paras 13 to 16, it is

held as under:

2021 SCC Online SC 1249

"13. The law with regard to conviction in cases based on circumstantial evidence has been very well crystallised in the celebrated case of Hanumant, son of Govind Nargundkar v. State of Madhya Pradesh. A three-Judge Bench of this Court, speaking through Mehr Chand Mahajan, J., observed thus:

"It is well to remember that in cases where the evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should in the first instance be fully established, and all the facts so established should be consistent only with the hypothesis of the guilt of the accused. Again, the circumstances should be of a conclusive nature and tendency and they should be such as to exclude every hypothesis but the one proposed to be proved. In other words, there must be a chain of evidence so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability the act much have been done by the accused."

14. It is thus clear that for resting a conviction in the case of circumstantial evidence,

the circumstances from which the conclusion of guilt is to be drawn, should be fully established, and all the facts so established should be consistent only with the hypothesis of the guilt of the accused. The circumstances should be of a conclusive nature and tendency, and they should be such as to exclude every hypothesis, but the one proposed to be proved. There must be a chain of evidence so complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused, and it must be such as to show that within all human probabilities, the act must have been done by the accused.

15. Subsequently, this Court in the case of Sharad Birdhichand Sarda v. State of Maharashtra, observed thus:

"153. A close analysis of this decision would show that the following conditions must be fulfilled before a case against an accused can be said to be fully established:

(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.

"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,

(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.

154. These five golden principles, if we may say so, constitute the panchsheel of the proof of a case based on circumstantial evidence."

16. As has been held by this Court, in a case of circumstantial evidence, before the case can be said to be fully established against an accused, it is necessary that the circumstances from which the conclusion of guilt is to be drawn, should be fully established, and all the facts so established should be consistent only with the hypothesis of the guilt of the accused. They should not be explainable on any other hypothesis except that the accused is guilty. The circumstances should be of a conclusive nature and tendency. They should exclude every hypothesis except the one to be proved. 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 probabilities, the act must have been done by the accused."

(emphasis supplied)

14. With these settled position of law on the subject,

since the prosecution is placing reliance only on circumstantial

evidence to prove the guilt of the accused in the present case,

initially we have to consider as to whether the prosecution has

proved that the death of the deceased Sumithra was a

homicidal death. To prove this fact, the prosecution must first

prove that the said Sumithra is dead. The case made out by

the prosecution discloses that after apprehending the

accused, he has given voluntary statement as per Ex.P26. As

per Ex.P26(b) - the portion of the voluntary statement said to

have been given by the accused, he volunteered to produce

the receipt for having pledged Mos.2 and 3 with a banker and

the mobile used by him before the Investigating Officer. He

also volunteered to show the spot where he administered

poison, strangulated the neck of the deceased Sumithra with

a veil and caused her death. He is also said to have

volunteered to show the dead body of the deceased, the veil

used in the commission of the offence, mobile hand set of

Sumithra, mirinda and water bottles, whiskey bottle, the

stone that was used for hitting the deceased and the pesticide

bottle which were said to have been concealed under the

bush.

15. Ex.P27 is the recovery mahazar dated 24.03.2012

said to have been drawn as the accused led the Investigating

Officer and the panchas to the spot and produced the

incriminating materials and also showed the spot where he

committed the offence. As per this document, the

Investigating Officer could not find the dead body of deceased

Sumithra. What was shown by the accused and found by the

Investigating Officer are only few bones and the hairs said to

be of a human being. Several incriminating materials said to

have been produced by the accused along with the blood

stained mud and control mud were seized under this mahazar

and sent for FSL examination. The Investigating Officer has

specifically mentioned in the seizure mahazar - Ex.P27 that

even after thorough search in and around the spot shown by

the accused, he could not find the dead body of Sumithra.

16. It is pertinent to note that even though several

bones were found and seized, the same were found about 62

feet away from the spot from where Mos.4 to 7 were seized.

MO8 - poison bottle, MO9 - mobile phone, MO10 - pesticide

bottle and MO11 - veil, were said to have been found about

75 feet away from the spot where the blood stains and few

pieces of bones were said to be found. One Shivakumar,

Basavaraj and Rajanna are the mahazar witnesses to Ex.P27.

But none of these witnesses are examined before the Court to

prove the material document Ex.P27.

17. PW18 - H Srinivas is the Police Inspector who

deposed before the Court that he recorded the voluntary

statement of the accused as per Ex.P26 and on the basis of

the same, the accused took him along with the mahazar

witnesses i.e., Shivakumar, Basavaraj and Rajanna to the

spot, where various incriminating materials referred to above

were seized. There is absolutely no explanation as to why

none of the mahazar witnesses are examined to prove the

material circumstances i.e., the recovery of incriminating

materials at the instance of the accused which would be a

major link in the chain of circumstances. Ex.P27 - mahazar

and the evidence of PW18 - the Investigating Officer discloses

that the material objects referred to above were scattered in

several places and were collected and forwarded to FSL

examination. But the fact remains that the dead body of

Sumithra was never found by the Investigating Officer.

18. The prosecution is relying on Ex.P12 - the inquest

mahazar. As per this document, only few bones were

collected in the presence of three witnesses i.e., Nagaraju,

Shivakumar and Chennakesavaiah. Only Nagaraju is

examined as PW12. Even this witness has not supported the

case of prosecution. As per Ex.P12 a nightie and petticoat

said to be belonging to the deceased Sumithra and 5 pieces of

bones were seized and inquest mahazar was drawn. Ex.P19

is the post mortem report. Even as per this document, five

human bones scattered here and there along with female

human hairs matted with dried blood and mud were examined

by PW19 and five articles were sent to FSL Bengaluru for

chemical analysis. It is opined that the DNA analysis is

required for establishing the human identification and the

opinion regarding cause of death was kept pending awaiting

DNA analysis report.

19. Ex.P39 is the FSL report, according to which, one

mirinda juice bottle and one insecticide bottle were subjected

to chemical examination. As per the opinion expressed in this

document, the presence of Chloropyriphos (Organo

phosphorus insecticide) and Cypermethrin (Pyrethroid

insecticide) were found in the said articles. The author of this

report Sri.V G Nayak, the Assistant Director, Toxicology

Section, Forensic Science Laboratory, Madiwala, Bengaluru is

also not examined before the Court.

20. It is the contention of prosecution that the

incriminating materials which were seized under Ex.P27 were

subjected to DNA examination. The prosecution examined

PW17 - Ramakrishnaiah, the Sub Inspector of Police of Gubbi

Police Station who deposed before the Court stating that as

per the direction of the Investigating Officer, he submitted

requisition before the jurisdictional Magistrate to draw the

blood samples of PW1 being the father of deceased Sumithra

and her mother and further the blood samples so drawn were

forwarded to the DNA centre through HC 68 Venkatesh. But

strangely, the DNA analysis report was never made available

before the Trial Court, for the reasons best known to the

prosecution.

21. The evidence of PW18 - Srinivas, the Investigating

Officer is relevant to be considered at this stage. This witness

in categorical terms deposed before the Court that the bones,

hairs and the blood found in and around the scene of

occurrence which were recovered at the instance of the

accused were sent for DNA analysis, so also the blood

samples collected by PW1 and his wife for matching. It is his

further evidence before the Court that the DNA report was

received after filing of the charge sheet. He admits that the

said report was never produced before the Trial Court by him.

However, he again states that the police officer who

succeeded him has produced the said report before the Trial

Court. But the fact remains that the DNA report was never

produced before the Trial Court. No explanation is

forthcoming for non production of the said material document.

22. The opinion regarding the cause of death after

post mortem examination was kept pending while issuing post

mortem report which is as per Ex.P19. However, after receipt

of FSL report dated 14.06.2012 the final opinion about the

cause of death was issued, according to which, the death was

due to respiratory failure consequent to the consumption of

Organo phosphorus compound and pyrethroid insecticide.

This opinion is only on the basis of FSL report which states

that the presence of Chloropyriphos (Organo phosphorus

insecticide) and Cypermethrin (Pyrethroid insecticide) in the

sample sent. Otherwise, merely by examining the bones and

hairs, no opinion could have been formed regarding the cause

of death. There are no other reasons to form such opinion.

PW19 - Dr.Ravikumar who conducted the post mortem

examination of the bones and other articles who in categorical

terms stated in the cross examination that he has not

examined the dead body and that he refers to the bones

examined by him are that of deceased Sumithra only on the

basis of the say by the police.

23. Now the question arises as to whether the

prosecution is successful in proving the homicidal death of

Sumithra without there being the corpus delicti that is the

dead body in the present case. It is settled proposition of law

that even in the absence of corpus delicti, or in other words,

even without recovering the concrete evidence of a crime i.e.,

the dead body of the deceased, the prosecution can prove

the offence under Section 302 of IPC by placing clinching

circumstantial evidence. Discovery of the dead body is not a

rule of law but is only a rule of caution. To seek conviction of

the accused in the absence of the dead body of the deceased,

the prosecution must place strong circumstantial evidence.

Unless there is direct and strong circumstantial evidence

leading to inescapable conclusion that the person has died

and the accused had committed the murder, the prosecution

will not be successful in seeking conviction of the accused in

the absence of corpus delicti. Therefore, we have to consider

as to whether the prosecution is successful in placing direct or

circumstantial evidence which led to inescapable conclusion

that Sumithra, the daughter of PW1 is dead and the accused

has committed her murder as stated in the charge.

24. Even though the prosecution examined as many

as 19 witnesses in support of its contention, almost all the

witnesses have turned hostile and have not supported the

case of prosecution. PW1 is the circumstantial witness, who

identifies only Mos.2 and 3 - the ornaments and stated that it

belongs to his daughter. It is pertinent to note that the

nightie, veil and petticoat said to be belonging to the

deceased Sumithra were not identified by this witness. PW3

is the only independent witness examined by the prosecution

who states that he has last seen the deceased when she was

found near the land belonging to Ramaiah and she informed

that she is going to the town to purchase clothes. Thereafter

at a distance the accused was also found and said to have

stated that he was taking the deceased with him. Therefore,

it is the contention of the prosecution that PW3 speaks about

seeing the deceased lastly in the company of the accused.

The evidence of this witness do not inspire confidence in the

mind of the Court, because, firstly the witness never stated

that the deceased was in the company of accused when he

last seen him and secondly, the conduct of this witness. Even

after coming to know that Sumithra was found missing since

11.03.2012, when he is said to have seen her, he being the

member of Alilugatta Gram panchayath and he knows PW1

very well, in spite of that he never bothers to inform PW1

about Sumithra going near the land belonging to Ramaiah and

seeing the accused at a nearby place.

25. The second circumstance relied on by the

prosecution is recovery of incriminating materials at the

instance of the accused. But as discussed above, none of the

witnesses to the recovery mahazar - Ex.P27 are examined

before the Court to prove the said document. Therefore, we

have only the evidence of PW18 - Srinivas, the Investigating

Officer to speak about the voluntary statement of the accused

and recovery of Mos.1 to 10.

26. It is the contention of the prosecution that the

accused was in possession of Ex.P28 the receipt issued by

Sri.Balaji Bankers/Pawn brokers dated 12.03.2012, when he

was apprehended on 24.03.2012. PW18 - Srinivas, the

Investigating Officer deposed before the Trial Court that the

accused produced Ex.P28 - receipt after he was apprehended.

It is quite unnatural to believe the version of this witness that

the accused got the receipt dated 12.03.2012 and kept it with

him on his person till 24.03.2012 when he was apprehended

to be produced before the Investigating Officer.

27. The discussions held above disclose that the dead

body of Sumithra was never detected nor subjected to any

analysis. There is nothing on record to confirm that the bones

that were examined by PW19 before issuing post mortem

report was that of Sumithra. Even though the prosecution

relies on two other important circumstances i.e., last seen

theory as spoken to by PW3 and the recovery of the

incriminating materials at the instance of accused, the

evidence led by the prosecution in support of the same are so

shabby and cannot be believed even for a moment.

Therefore, these materials cannot point accusing the finger

towards the accused as the author of the crime.

28. The only circumstances that could have been

favoured the prosecution is the DNA report atleast to prove

that the bones and hairs along with the blood stains said to

have been recovered at the instance of accused were that of

Sumithra. As we have observed, PW 18 - the Investigating

Officer in categorical terms has stated that the incriminating

materials along with the blood samples of the parents of the

deceased Sumithra were sent for DNA analysis. He also

states that the DNA report was in fact received, but the same

was not produced before the Trial Court. Even though the

witness states that his successor has produced the same

before the Trial Court, the same is falsified by the fact that no

DNA report was placed before the Trial Court.

29. Now the question arises as to why such important

document obtained by the prosecution to prove the guilt of

the accused was withheld. Deliberate withholding of the

material document necessarily leads to a presumption that if

the document is produced the same would be unfavourable to

the prosecution.

30. When the matter was heard and it was noticed

that the DNA report is not placed before the Trial Court, this

Court had directed the learned High Court Government

Pleader to produce the DNA report for consideration by this

Court. In pursuance of the said direction, the learned High

Court Government Pleader filed a memo dated 05.08.2021

along with the letter of the Circle Inspector of Police, Gubbi

Circle, Tumakuru District, dated 23.07.2021, along with the

DNA report dated 30.06.2014 issued by the Deputy Director,

DNA Section, State Forensic Science Laboratory (Police

Department), Madivala, Bengaluru.

31. As per this report, the sample/article examined,

the description/DNA source are:

(i) hairs collected and forwarded by the Medical Officer;

(ii) humerus collected during post mortem by the medical officer;

(iii) sample blood collected from male individual by name Sril.Ganganna, son of Malaiah i.e., PW1; and

(iv) sample blood collected from female individual by name Smt.Shivamma, wife of Sri.Ganganna i.e., the wife of PW1.

32. As per this document, the conclusion arrived at by

the Scientific Officer at DNA Centre is as under:

"From the DNA profile results of the hairs and sample blood, it is found that:

            1)       The hairs sent in item No.1 is of
      human in origin.

            2)       Sri.Ganganna s/o Sri.Malaiah, sample

blood sent in item No.3 and Smt.Shivamma, w/o Sri.Ganganna, sample blood sent in item No.4 were excluded from being biological parents of the individual to whom the hairs belongs sent in item No.1.

Therefore, Sri.Ganganna s/o Sri.Malaiah, sample blood sent in item No.3 and Smt.Shivamma w/o Sri.Ganganna, sample blood sent in item No.4 were excluded from being

the biological parents of the individual to whom the hairs belong sent in item No.1."

33. A plain reading of this document along with the

conclusion arrived at, discloses that the blood samples of PW1

and his wife who are the parents of Sumithra do not match

with the hairs and bones that were sent for examination.

Therefore, they were excluded from being the biological

parents of the individual to whom the hairs and bones belong

to. Thus, this document is the last nail on the coffin which

falsified the contention of the prosecution that the hairs and

bones recovered at the instance of accused were that of

Sumithra, the daughter of PW1.

34. When the prosecution has not produced any

material to show that the said Sumithra who was found

missing since 11.03.2012 is dead and she died a homicidal

death and further that it was the accused who caused such

homicidal death, it has to be concluded that the prosecution

has even failed to prove the homicidal death of Sumithra.

The prosecution has not even probablised that Sumithra is

dead. However, the accused is prosecuted for the grave

offence under Sections 302 and 201 of IPC without there

being the primary evidence to establish the homicidal death of

Sumithra.

35. It is a classic case of not only shabby

investigation, but it is an example for careless investigation by

an irresponsible Police Officer. Accusing a person with a

serious charge for the offences punishable under Sections 302

and 201 of IPC and trying him for several years after

apprehending him on 24.03.2012 is to be viewed very

seriously in light of the discussions held above. It is not the

case of failure of the prosecution to prove the guilt of the

accused beyond reasonable doubt, but on the other hand, the

material on record falsifies the contention of the prosecution

that Sumithra had died a homicidal death and the accused is

responsible for the same. It is high time for the State and the

Department to take note of this situation which led to

depriving the individual liberty of the accused for about 10

years as he is languishing in prison till today since from

24.03.2012. The accused was aged 25 years when the

incident is said to have occurred and now he may be aged 35

years. He was made to spend his golden years inside the jail

for no fault of his. The Investigating Officer/s is/are

answerable for this careless and capricious action on his/their

part. The Investigating Officer/s should have verified the DNA

report after the same was received from the Scientific Officer

of DNA Centre and should have brought to the notice of the

Trial Court then and there. It is not the duty of the

prosecutor to somehow prosecute the accused and to see that

he is punished. Great responsibility rests on the Investigating

Officer and the Prosecutor to place all materials and assist the

Court in finding the truth, which they have not done in the

present case.

36. Unfortunately, the Trial Court has also ignored all

these glaring inconsistencies, shabby investigation and the

evidence and proceeded to convict the accused with life

imprisonment. The Court has not felt it necessary to ask

PW18 - Srinivas - the Investigating Officer to produce the

material document i.e., the DNA report, even after he

deposing before the Court that the DNA report is received and

the same is not produced before the Court. This shows the

laxity and carelessness of the Trial Court in mechanically

conducting the trial and proceeding to convict the accused

without application of mind.

37. For the reasons stated above, we answer the

above point in the Affirmative holding that the accused has

made out a case for interference with the impugned judgment

of conviction and order of sentence convicting the accused for

the offences punishable under Sections 302 and 201 of IPC

and sentencing him to undergo life imprisonment. The

prosecution has utterly failed to prove that Sumithra died a

homicidal death and it is the accused who caused her death

and committed the offences punishable under Sections 302

and 201 of IPC. Therefore, the accused is entitled for a clean

acquittal by setting aside the impugned judgment of

conviction and order of sentence passed by the Trial Court.

38. In view of the above, we pass the following:

ORDER

(i) Criminal Appeal filed by the accused is hereby

allowed.

(ii) The impugned judgment of conviction and the

order of sentence dated 02.07.2015 made in S.C.No.326 of

2012 on the file of VI Additional District and Sessions Judge,

Tumakuru, is set aside.

(iii) The appellant-accused is acquitted for the

offences punishable under Sections 302 and 201 of the Indian

Penal Code.

(iv) The concerned jail authority is directed to release

the appellant-accused, forthwith, if he is not required in any

other case, after following the procedure contemplate under

law.

(v) The fine amount, if any, deposited by the

appellant-accused shall be refunded to him.

(vi) Registry is directed to return the Trial Court

records, with a copy of this judgment to the Trial Court,

forthwith.

Sd/-

JUDGE

Sd/-

JUDGE *bgn/-