State Of Karnataka vs Mohan @ Mohan Kumar
2022 Latest Caselaw 2501 Kant

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                                            R

IN THE HIGH COURT OF KARNATAKA AT BENGALURU

   DATED THIS THE 16TH DAY OF FEBRUARY, 2022

                       PRESENT

     THE HON'BLE MR.JUSTICE K.SOMASHEKAR
                          AND
        THE HON'BLE MR. JUSTICE P.N.DESAI

         CRIMINAL APPEAL NO.206 OF 2021
BETWEEN:
State of Karnataka
By Inspector of Police
Mulki Police Station
Mangaluru
Dakshina Kannada
Rep. by State Public Prosecutor
High Court Building
Bengaluru - 560 001.
                                       ...Appellant

(By Sri. Rahul Rai .K - HCGP)

AND:
Mohan @ Mohan Kumar
Aged about 49 years
S/o. Kutti Paddu Kunder
R/at Door No.1-126
Hemalatha Yennegeni Mane
Mulki Post, Kilpady Village
Mangaluru
Dakshina Kannda - 574142.
                                     ...Respondent

(By Sri. Rajashekar .S - Advocate)
                              2



     This Criminal Appeal filed under Sec.378(1) and
(3) of Criminal Procedure Code, by the Advocate for the
appellant praying to i) grant leave to appeal against the
judgment and order of acquittal dated 13.03.2020
passed in S.C.No.60/2019 by the VI-Addl. District and
Sessions Judge & MACT, D.K., Mangaluru thereby
acquitting the accused/respondent for the offence
punishable under Sections 354, 302 and 201 of IPC;
ii) set aside the judgment and order of acquittal dated
13.03.2020 passed in S.C.No.60/2019 by the VI- Addl.
District and Sessions Judge & MACT, D.K., Mangaluru
thereby acquitting the accused/respondent for the
offence punishable under Sections 354, 302 and 201 of
IPC; and iii)convict and sentence the respondent /
accused for the offence punishable under Sections 354,
302 and 201 of IPC.


     This    criminal   appeal   coming   on   for   further
argument this day, K. Somashekar .J delivered the
following:
                    JUDGMENT

This appeal is directed against the judgment of

acquittal rendered by the trial Court in S.C.No.60/2019

dated 13.03.2020 whereby rendering acquittal judgment

for the offence punishable under Sections 354, 302 and

201 of IPC.

2. Whereas under this appeal, appellant / State is

seeking intervention by consideration of grounds as

urged in this appeal and consequently, set-aside the

acquittal judgment rendered by the trial Court and to

convict the accused of the offences which lugged against

him.

3. Heard learned HCGP for appellant / State

namely Sri Rahul Rai.K and so also, learned counsel Sri

Rajashekar.S for respondent/accused who are present

before the court physically. Perused the judgment of

acquittal rendered by the trial Court in S.C.No.60/2019

consisting the evidence of PWs.1 to 18 and so also,

documents at Exs.P1 to P33 inclusive of M.O.1 to 14

and so also, on the part of defence side marking of

documents as per Exs.D1 to D3.

4. Factual matrix of the appeal is as under:

It is transpired in the case of the prosecution that

the accused namely Mohan @ Mohan Kumar was

working at MRPL Company and he knew the deceased

Smt.Radha. He had promised to get job to her daughter

Shradda and he had asked deceased Radha to get the

resume of Shradda. Accordingly, deceased Radha called

her daughter Shradda to forward her resume through

mail on 31.10.2018. Accordingly, the said Shradda

R.Kundar had sent her resume letter through mail to

the Cyber Centre and subsequently, deceased Radha

had informed in her home as well as to her daughter

that she will take out the print from the cyber centre

and thereafter, will go to the house of accused to hand

over the resume. Accordingly, deceased Radha had left

the home on 31.10.2018 at about 5.30 p.m. and

subsequently, she did not return to home. When her

daughter Shradda had called her over phone, it was not

reachable. Therefore, she called her aunt by name

Pushpa. Even her maternal aunt had informed Shradda

that her sister Radha has not returned home.

Therefore, she had called accused Mohan to his mobile

number. But accused informed her that Radha did not

come to meet him and he do not know where she is and

thereafter, Shradda had called her relatives and

informed that her mother had not returned home.

Thereafter, the relatives of the deceased Radha as well

as the other members went in search of Radha and even

they went near the house of accused. The accused had

also accompanied them to search Radha. In that regard

the relative of Radha went to the police station and

informed the police regarding missing of Radha. But on

the next day on 01.11.2018 in the morning hours they

found a body of female lying in the well situated behind

the house of accused. The said body was taken out from

the well which was situated nearby the house of

accused.

5. It is further stated that subsequent to taking

out the body of deceased Radha from well, the body was

shifted to mortuary for conducting post mortem over the

dead body. Subsequently, daughter of deceased - Radha

namely Shradda and also husband of deceased who

were at Bengaluru returned to their village and later the

daughter of Radha lodged the complaint against the

accused. In pursuance of the complaint made by

Shradda, who is none other than the daughter of

deceased - Radha, criminal law was set into motion and

the case was taken up for investigation by the

investigating agency and investigation has been done

and during the course of investigation recorded the

statement of witnesses and also drew the mahazar at

Ex.P4 which bears the signatures of PW.10 and PW.16

and also drew the seizure mahazar at Ex.P6 and it bears

the signature of PW.10 and 16. So also, the mahazar

at Ex.P8 which bears the signature of PW.11 and 16.

Ex.P16 is the FSL report and Ex.P18 is the certificate

which bears the signature of PW.15. In addition to that

P.M.report was also issued as per Ex.P21 in respect of

conducting autopsy over the dead body of Radha. So

also, the sketch as per Ex.P9 which bears the signature

of PW.11 and inclusive of opinion report as per Ex.P30.

Ex.P24 is the call details and customer applications

forms pertaining to mobile No.9008456250 and Ex.P26

is the call details and customers application forms

pertaining to mobile No.9902181665. These are all the

documents which secured by the IO and complied the

stipulate condition as required under Section 173(2) of

Cr.P.C. and laid the charge sheet against the accused

before the committal court having jurisdiction.

6. Subsequent to laying of charge sheet by the

investigating officer that the committal Magistrate i.e.,

the Civil Judge and JMFC, Moodabidre passed an order

under Section 209 of Cr.P.C. by compliance of Sections

207 and 208 of Cr.P.C. Accordingly, the case was

committed to the Court of Sessions for trial.

Subsequent to committing the case by the committal

Magistrate that the case in S.C.No.60/2019 has been

assigned and heard learned Public Prosecutor and

defence counsel on charges and having found prima

facie materials, framed the charge against the accused

for the offences punishable under Sections 354, 302

and 201 of IPC whereby the accused did not pleaded

guilty but claimed to be tried. Accordingly, plea of the

accused was recorded separately. Subsequent to

framing of charge by the trial Court whereby the

prosecution has let in evidence of PWs.1 to 18 and so

also, got marked several documents at Exs.P1 to P33

inclusive of M.O.1 to 14 and so also, contradictory

statement of PW.5 as per Ex.D3 and photos of accused

No.1 as per Exs.D1 and D2.

7. Subsequent to closure of evidence of

prosecution that the accused was examined as under

Section 313 of Cr.P.C. for enabling to answer to the

incriminating evidence appearing against him on the

part of the prosecution whereby the accused denied the

truth of the case of the prosecution witnesses adduced

so far. Accordingly, it was recorded. Subsequent to

recording the statement under Section 313 Cr.P.C.

whereby the accused did not enter into any defence

evidence as contemplated under Section 233 of Cr.P.C.,

but documents were got marked as per Exs.D1, D2 and

D3. Subsequent to closure of evidence on the part of

the prosecution and even on the defence side and also

by following relevant provisions of Code of Criminal

Procedure whereby the trial Court heard arguments

advanced by the learned Public Prosecutor and so also,

counter arguments advanced by the defence counsel

and on close scrutiny of the evidence and so also, the

averments made at Ex.P1 - complaint made by PW.1 -

Shradda and so also, fulcrum of mahazars at Exs.P4, P6

and P8 inclusive of contents at Ex.P2 - inquest mahazar

over the dead body of the deceased and also contents at

Ex.P21 - P.M.Report relating to the dead body of Radha

inclusive of call details information at Exs.P24, 25, 26,

27 inclusive of RFSL report at Ex.P29 as well as final

opinion report at Ex.P30. But the prosecution did not

let in convincing as well as adequate evidence for

securing conviction and consequently, the trial Court

rendered the acquittal judgment relating to the offence

under Sections 354, 302 and 201 of IPC which

incorporated in the operative portions of the order. It is

this judgment which is challenged under this appeal by

urging various grounds.

8. Learned HCGP for State namely Sri Rahul

Rai.K. has taken us through the evidence of PW.5 -

Auto Rickshaw driver namely Harish and so also,

evidence of PW.1 who is the complainant and none

other than the daughter of deceased - Radha and PW.2

- Pushpa who is the sister of deceased. But they have

stated in their evidence on the part of the prosecution

relating to the acquaintance of deceased - Radha with

accused. But on the date of incident deceased - Radha

had informed to her daughter that she will proceed to

the house of accused to give resume since the accused

had assured her that he will get a job to her daughter.

These are all the evidence that has been brought on

record on the part of the prosecution even though on

the aforesaid fateful day at around 8.00 p.m. she had

telephoned to deceased - Radha, but it was not

reachable. As such she became panic and called her

aunt and enquired about her mother. Her family

members made search of deceased - Radha but could

not trace her. But the dead body of female was found in

the well which was situated behind the house of

accused. The evidence of PW.1 in respect of Ex.P1 of

the complaint which has been corroborated by evidence

of PW.2 who is none other than the sister of deceased

and aunt of PW.1 - Shradda. They have stated in their

evidence that on 31.10.2018 in between 5.00 p.m. to

5.30 p.m. deceased - Radha had gone to Mulki Cyber

Centre to generate the resume of complainant - PW.1

informing PW.2 and the deceased called PW.2 at about

6 p.m. and informed that she was near the house of

accused. Further PW.2 has stated that when she called

the deceased at 7 p.m. the phone call was not

reachable. Further, the evidence of PW.1 finds

corroborated relating to the enquiry about deceased -

Radha and she has specifically stated in her evidence

that she had called the relatives and in the night along

with the relatives went near the house of accused in

search of missing Radha. But the body of female was

found in the well near the house of the accused.

Therefore, on suspicion in the later part the complaint

has been filed by PW.1. In pursuance of her complaint,

criminal law set into motion and whereby the dead body

of Radha had been sent to the mortuary and conducted

autopsy over the dead body. These are all the evidence

let in by the prosecution to prove the guilt of the

accused. But the trial Court did not appreciate the

evidence in a proper perspective manner. Therefore,

under this appeal it requires for re-appreciation of the

evidence of PWs.1, 2, 3 and 4 who are the material

witnesses and their evidence is suffice to held that the

prosecution has proved the guilt of the accused whereby

he has committed murder of deceased - Radha more

particularly the conduct, features of the accused was

proved by the prosecution by facilitating the worthwhile

evidence by subjected to examination of those

witnesses.

9. The second limb of the arguments advanced by

learned HCGP by referring to the evidence of PW.5 -

Harish who is the auto rickshaw driver that he had seen

the deceased at around 6.00 to 6.15 p.m. when he was

going by auto and stopped the auto and saw accused

was talking with Radha and he has stated in his

evidence that when he was returning back after

dropping the passenger at about 6.40 - 6.45 p.m.

deceased was talking with the accused near the vacant

house. Further, he has stated that the accused had

held the hand of deceased at that point of time.

Thereafter, he came to know about the death of

deceased on the next day. Thus, PW.5 has been

examined relating to the concept of last seen theory.

10. Further, it is contended that PWs.6 and 7 are

the circumstantial witnesses who have stated in their

evidence to prove the guilt of the accused. However, the

trial Court did not give more credentiality to their

evidence. PW.8 is the owner of the Mulki Cyber Centre

and also supported the case of the prosecution. PW.9 is

the driver of the ambulance. In support of overwhelming

witnesses and positive evidence in favour of the

prosecution, the trial Court committed error in

acquitting the accused by rendering the acquittal

judgment which is challenged under this appeal by

urging various grounds. The grounds urged in this

appeal is required to be considered, if not, there shall be

some substantial miscarriage of justice.

11. Lastly, learned HCGP for State emphatically

submits by referring to the evidence of PW.5 - Harish

who is a autorickshaw driver in respect of last seen

theory which has been established by the prosecution

and whereby the accused had held the hands of

deceased - Radha on the fateful day and there is no

dispute that he is an independent witness and more so,

he is not an interested witnesses but his evidence has

not been considered by the trial Court even though it

ought to have given more credentiality to the said

evidence on the part of the prosecution relating to the

last seen theory. His evidence has been brushed aside

by the trial Court. Therefore, under this appeal it

requires for re-appreciation of the evidence and so also,

revisiting the acquittal judgment rendered by the trial

Court.

12. Insofar as evidence of PW.8 who was running

a cyber centre, he has not produced any documents to

show that he is running cyber centre and his statement

came to be rejected by the trial Court which requires

interference by this Court. The deceased before her

death, was seen with the accused and the same has

been proved by the prosecution. The trial Court based

on assumptions and presumptions that so many facts

which was not real held against the prosecution without

there being any contrary evidence on the side of the

accused. Even the trial Court has not taken into

consideration of the presumption as under Section 106

of the Indian Evidence Act, 1872. These are all the

contentions made by the learned HCGP for State and

seeking for consideration of the grounds as urged in this

appeal and consequently, seeking for setting aside the

acquittal judgment and to convict the accused for the

charges leveled against him.

13. Learned counsel Sri Rajashekar.S. for

respondent / accused has countered to the arguments

advanced by learned HCGP in this appeal. But it is the

domain vested with the prosecution to prove the guilt of

the accused by facilitating the worthwhile evidence to

secure the conviction. Even the trial Court on perusal

of the entire allegations as well as the materials which

were placed on record by subjecting to examination of

several witnesses such as PWs.1 to 18. But the vital

witnesses are PW.1 -Shradda R. Kundar who is none

other than the daughter of deceased- Radha and based

upon her complaint at Ex.P1 criminal law was set into

motion. PW.2 - Pushpa is the sister of the deceased

and PW.5 - Harish is the autorickshaw driver relating to

the concept of last seen theory. But the entire evidence

let in by the prosecution even on perusal of the material

evidence insofar as evidence of PWs.1 to 4 inclusive of

evidence of PW.5 and evidence of PWs.6 and 7 relating

to circumstantial evidence in nature. But proving of

facts and proof of allegation made against the accused,

it is the domain vested with the prosecution as it is the

settled position of law by rendering the judgment and

even crystallize the principle of law of appreciation of

evidence in criminal prosecution initiated against the

accused based on the circumstantial evidence relating

to proving of the case. The same has been made

observation and also considered regarding to what is the

circumstances in the case it is in detail stated in the

impugned judgment of acquittal at para - 12.

14. The prosecution has relied on the

circumstantial evidence relating to deceased - Radha

who is alleged to have informed at her home as well as

her daughter PW.1 - Shradda by saying that she is

proceeding to meet accused at his home relating to

furnishing the resume after obtaining the print from the

cyber centre. But relating to proceeding by Radha and

informing the same to PW.1 and also called upon

accused - Mohan and even PW.2 - Pushpa and even

informed that she will return back to home after

handing over resume to accused. These are all the

circumstantial nature of theory put forth by the

prosecution and the trial Court has considered in the

acquittal judgment. But the prosecution in order to

prove the guilt of the accused relating to death of Radha

is not a natural death and it is due to drowning has got

marked Ex.P21 P.M.Report which shows that Viscera

has been collected and has been sent to chemical

examination and on the basis of the viscera examination

report i.e., Ex.P29, the Doctor has given opinion as per

Ex.P30 stating that death is due to drowning and due to

complications secondary to drowning.

15. The specific case of the prosecution is that on

the date of alleged incident PW.1 alleged to have sent

resume to the Cyber Centre, through email and in turn

the said email was downloaded by PW.8 - Shivaprakash

Shetty and handed over the same to deceased - Radha

and she took the print out of the resume and left the

Cyber centre of PW.8 informing him that she is going to

meet accused - Mohan for the purpose of seeking job to

her daughter. Even made attempt for last seen theory

has been established by the prosecution, but mere

because examination of PW.5 - Harish that on

31.10.2018 in between 5.30 to 6 p.m that deceased -

Radha had visited the cyber centre as according to the

evidence of PW.8. Mere because it is stated in the

evidence on the part of the prosecution by subjected to

examination of PW.5 relating to the last seen theory, but

unless his evidence finds corroborated with the evidence

of other independent witnesses or even evidence of

PWs.1 and 8. But the lacuna and latches gives raise to

a greater suspicion in the mind of the court regarding

the reliability of the evidence of PW.1 and 8. Further

M.O.1 does not disclose anything to say that the print

out of the said document was taken out at a particular

time and there is no sign of anything on M.O.1 - resume

consisting three pages to say that it was sent through

on email. Even PW.8 has stated in his evidence whereby

the investigating officer even collected the material

documents and he has not at all verified or made any

enquiry whether any such email was available in the

mail box of PW.8 and even the investigating officer has

not taken care to collect the email particulars of PW.1 -

Shradda who is no other than the daughter of deceased

- Radha. This lacuna and the doubtful circumstances

has been seen in the impugned judgment in detail akin

to the evidence of PW.8 and so also, PW.16 being the

investigating officer. Mere because the evidence of PW.8

relating to M.O.1, it cannot be given any credentiality on

the part of the prosecution for consideration because

the entire case has been revolving around the evidence

of PW.1 - Shradda who is the daughter of deceased -

Radha and so also, evidence of PW.2 - Pushpa who is

the sister of deceased - Radha. Their evidence runs

contrary to the evidence of PW.16 being the

investigating officer and whereby the prosecution has to

establish the fact relating to the death of deceased -

Radha as alleged in the complaint at Ex.P1 and even the

death of deceased - Radha whereby a body of female

was found in the well nearby the house of accused. But

the prosecution has failed to establish the guilt of the

accused with beyond reasonable doubt by facilitating

worthwhile evidence.

16. The trial Court had given concentration on

M.O.1 relating to resume consisting three sheets, but

the genuinity of M.O.1 resume itself was creating doubt

in the mind of the Court in respect of theory of the

prosecution. Mere because laying of the charge sheet

against the accused by the investigating officer, even the

resume at M.O.1 was found and even the dead body was

found in a plastic bag in a well near the house of the

accused. Even while lifting the dead body of Radha

which was found in the well, was floating in the water.

But the case of the prosecution that the plastic bag was

containing the hand purse and was containing one

photo and two currency notes of Rs.100 and Rs.10 and

three resume letters. Insofar as M.O.1 - resume

consisting three pages even at a cursory glance and

close scrutiny in terms of perusal, there is no sign that

the said M.O.1 resume consisting three sheets has been

taken up from the water from that well as where the

dead body of female was floating. The case of the

prosecution that deceased Radha had drown in the well

around 7.00 to 8.00 p.m. on 31.10.2018 and the body

was found in the morning i.e. on 01.11.2018 at about

8.00 a.m. For almost 12 hours the said resume was

alleged to have been lying in the water and the alleged

resume is a print out on a plain white sheet. The

question is whether the said white paper will be intact

even after 12 hours if it is taken out from water,

definitely it gets wet and turn into pieces i.e., torn. But

on perusal of M.O.1, there is no sign that it was taken

out from the water, it is just as if it is folded and kept in

some purse. These are all the observations made by the

trial Court by appreciation of evidence of PWs.1, 2 and 5

who are the vital witnesses on the part of the

prosecution relating to last seen theory of deceased -

Radha and accused. Moreover, it is the case of the

prosecution that deceased - Radha on 31.10.2018 has

left the cyber centre with resume in order to hand over

the same to accused - Mohan as according to the terms

of some correspondence in between them to get a job to

her daughter PW.1 - Shradda. At a cursory glance of

evidence of PW.1 and even the allegations made at

Ex.P1 and inclusive of evidence of PW.2 and PW.5, 6

and 7 who are the witnesses on the part of the

prosecution relating to circumstantial in nature and so

also, death of deceased, but certainly the deceased

would have handed over the resume to the accused and

it would not have been available with the dead body of

deceased - Radha. Even assuming that she had carried

the resume with her, the fact that it has been found

with her dead body in a plastic bag along with a purse

indicates that she had not met the accused, and there is

a suspicion to that effect. Therefore, the prosecution

case in the evidence of PW.5 in respect of last seen

theory play a vital role in a case based upon

circumstantial evidence. But in the instant case that on

the alleged date of incident as narrated at Ex.P1 and

even death of deceased - Radha and even she had

informed that she will proceed to meet accused - Mohan

in order to hand over M.O.1 - resume consisting three

sheets relating to her daughter PW.1 and there was

some talking in between Radha and PW.1 over the

phone and that she was proceeding to meet accused -

Mohan. But no one has seen deceased meeting the

accused except PW.5 being an autorickshaw driver and

he has stated that he saw accused was standing along

with Radha and they were talking with each, during

that time it was around 6.45 p.m. and accused Mohan

by holding Radha's hand was pulling. Even seeing

analytically the evidence of PWs.1, 2 and 5 and at a

cursory glance of their evidence relating to the incident

narrated in a complaint at Ex.P1 the incident took place

on 31.10.2018 and PW.5 - being autorickshaw driver

was carrying passenger from Karnad Auto stand, during

that time it was 6.00 to 6.15 p.m. and he met with

deceased - Radha near Gandhi Maidan road wherein

she was proceeding by walk on the road and he stopped

his auto-rickshaw and asked her whether she will come

in the auto-rickshaw. But at a cursory glance of

evidence of PW.1 in respect of allegation made at Ex.P1

and who is a gravamen of incident and so also vital in

nature on the part of the prosecution as where PW.5

relating to last seen theory of deceased and the accused

claimed that he had informed. But the statement do

not reflect anything to say in respect of acquaintance of

the deceased - Radha and accused. These are all the

evidence that has been rightly appreciated by the trial

Court. Therefore, under this appeal, it does not arise for

call for interference. These are all the contentions made

by learned counsel for respondent and seeking for

dismissal of the appeal being devoid of merits.

17. Lastly, counsel for respondent submits that

there is delay in filing of complaint. The offences under

Section 354 in respect of outraging the modesty of

woman, offence under Section 302 relating to murder

and Section 201 in respect of causing disappearance of

evidence of offence, or giving false information to screen

offender. But delay in filing the complaint by the

complainant - PW.1 - Shradda who is the gravamen of

the incident and she has filed the complaint at Ex.P1

and she has specifically stated in her evidence that on

01.11.2018 that she had filed a complaint as per Ex.P1

after returning from Bangalore where she was residing.

Ex.P1 is the complaint which is filed by her and based

upon her complaint criminal law was set into motion

and the investigating officer took up the case for

investigation. But there is no evidence even before the

trial Court to say that the accused is known to the

family members of deceased - Radha and PW.1 had filed

complaint as per Ex.P1 and she is suppressing the

genuinity of facts and also averments made against the

accused. But at a cursory glance of her cross-

examination and incisive cross-examination of PW.1

and PW.2 inclusive of cross-examination of PW.5 -

Harish who is driver of autorickshaw has been alleged

to put forth by the prosecution. But PW.6 and 7 being

the circumstantial witnesses but claiming that the

accused as well as deceased - Radha were acquainted

with each other. Even at a cursory glance of cross-

examination of PW.1 and Ex.D1 and D2 even it has

been confronted that she has admitted that said photos

are relating to marriage function of accused. In the said

photographs it is evident that PW.1 has actively

participated and in fact, she herself putting mehendi on

the hands of the accused and even in Ex.D2 deceased -

Radha is holding the hands of the accused. From this it

is established that the accused and deceased family had

good proximity and even PW.2 who is no other than the

sister of the deceased has admitted during the course of

her cross-examination that she know the accused since

childhood and further in her evidence one thing can be

made out that since their childhood both deceased and

accused were having good friendship. Even the evidence

of PW.1 and 2 coupled with the evidence of PW.6 and 7,

but their evidence do not inspire confidence in the mind

of the Court and consequently rendering the acquittal

judgment. Therefore, under this appeal it does not arise

for call for interference and there is no warranting

circumstances to revisit the judgment rendered by the

trial Court and so also, re-appreciation of evidence as

sought for. On this premise learned counsel for

respondent / accused seeking for dismissal of the

appeal being devoid of merits by confirming the

acquittal judgment rendered by the trial Court.

18. It is in this context of the contention made by

learned HCGP for State and so also, counter arguments

in detail emphatically submitted by learned counsel for

respondent / accused by referring the evidence of PW.1

insofar as allegation made in Ex.P1 - complaint and

based upon her complaint criminal law was set into

motion by recording FIR and thereafter the investigating

officer took up the case for investigation and laid the

charge sheet against the accused by following the

requisite condition as under Section 173(2) of Cr.P.C.

19. It is relevant to refer Section 300 of IPC, 1860

even though it is the definition Section but punishment

under Section 302 of IPC. But in Exception No.1 -

When culpable homicide is not murder - Culpable

homicide is not murder if the offender, whilst deprived

of the power of self-control by grave and sudden

provocation, causes the death of the person who gave

the provocation or causes the death of any other person

by mistake or accident. The above exception is subject

to the following provisos:

First - That the provocation is not sought or

voluntarily provoked by the offender as an excuse for

killing or doing harm to any person.

Secondly - That the provocation is not given by

anything done in obedience to the law, or by a public

servant in the lawful exercise of the powers of such

public servant.

Thirdly - That the provocation is not given by

anything done in the lawful exercise of the right of

private defence.

Explanation - Whether the provocation was grave

and sudden enough to prevent the offence from

amounting to murder is a question of fact.

20. Whereas in the instant case, the concept of

Section 300 of IPC and so also, Exception - 2 even

relating to culpable homicide is not murder if the

offender, in good faith of the right of private defence of

person or property, exceeds the power given to him by

law and causes the death of the person against who he

is exercising such right of defence without

premeditation, and without any intention of doing more

harm than is necessary for the purpose of such defence.

Exception No.3 - Culpable homicide is not murder

if the offender, being a public servant or aiding a public

servant acting for the advancement of public justice,

exceeds the powers given to him by law, and causes

death by doing an act which he, in good faith, believes

to be lawful and necessary for the due discharge of his

duty as such public servant and without ill-will towards

the person whose death is caused.

Exception 4 - Culpable homicide is not murder if

it is committed without premeditation in a sudden fight

in the heat of passion upon a sudden quarrel and

without the offender having taken undue advantage or

acted in a cruel or unusual manner.

Explanation - It is immaterial in such cases which

party offers the provocation or commits the first assault.

Exception 5 - Culpable homicide is not murder

when the person whose death is caused, being above

the age of eighteen years, suffers death or takes the risk

of death with his own consent, it is referred for better

appreciation of evidence as well as exhibited documents

insofar as heinous offence.

21. It is relevant to refer the concept of 'culpable

homicide' and 'murder.' Culpable homicide is the genus

and murder is its species and all murders are culpable

homicides but all culpable homicides are not murders.

This issue has been extensively addressed by the

Hon'ble Supreme Court reported in a decision of Rampal

Singh v. State of Uttar Pradesh (2012) 8 SCC 289.

22. The presumption regarding intention or

knowledge. This is an important elements and so also,

ingredients relating to intention or knowledge which

requires to be established by the prosecution even by

facilitating worthwhile evidence to the prove the guilt of

the accused, which is the domain vested with the

prosecution. But in the instant case, PW.1 - Shradda

who is no other than the daughter of deceased and

based upon her complaint, criminal law was set into

motion by recording FIR by the investigating agency and

thereafter laying of the charge sheet and even during

the course of investigation, PW.2 who is no other than

the sister of deceased had also given evidence on the

part of the prosecution. At a cursory glance of evidence

of PWs.1 and 2 coupled with the evidence of PWs.6 and

7 and their evidence founds to be inconsistent,

consequently, it does not corroborate with any

independent evidence on the part of the prosecution can

inferred. But the last seen theory it is stated by the

prosecution and also contended by basing upon the

evidence of PW.5 - Harish who is a autorickshaw driver

he has seen the acquaintance of deceased - Radha with

accused. But the evidence of PW.5 has not been

corroborated with any other independent evidence on

the part of the prosecution to prove the guilt of the

accused, then there is no credentiality of his evidence.

23. It is relevant to state in respect of motive

factor. It is not essential for the prosecution to establish

motive factor against the accused in all cases, but at

some time it cannot be given to gainsaid that without

adequate motive speaking normally, none is expected to

take life of another human being.

24. But the motive behind the crime is a relevant

fact of which evidence can be given. The absence of a

motive is also a circumstance which is relevant for

assigning the evidence. But the circumstances proving

the guilt of the accused are however not weakened at all

by the fact that the motive has not been established,

but clouds of doubt arise. The concept of mensrea and

also actus reus is also important elements on the part of

the prosecution. In the instant case, PWs.6 and 7 have

been subjected to examination and they are the

circumstantial witnesses. But the motive behind the

crime is a relevant fact of which evidence can be given.

The absence of a motive is also a circumstance which is

relevant for assigning the evidence. But the

circumstances proving the guilt of the accused are

however not weakened at all by the fact that the motive

has not been established. It often happens that only

the culprit himself knows what moved him to certain

course of action. These are all the important elements

on the part of the prosecution to prove the guilt of the

accused. It is the domain vested with the prosecution

to facilitate worthwhile evidence. But in the instant

case, there is no strong evidence facilitated by the

prosecution even subjected to material witnesses such

as PW.1 to 5 inclusive of PWs.6 and 7 have been

examined. PW.16 being the investigating officer who

has secured the material documents such as call details

and the same was got it marked. Ex.P21 is the post

mortem report relating to conducting autopsy over the

dead body of the deceased but with the consent on the

part of the prosecution and defence counsel, it has been

got it marked to medical evidence it requires to be

considered even for the offences under the Indian Penal

code and it must be corroborated with some sort of

testimony on the part of the prosecution to prove some

sort of injuries even inflicted over the person and as a

result of such injuries the deceased has lost the breath.

But in the instant case drowning of a body of a female

and it was floating in a well situated nearby the house

of accused. But the accused was facing of trial relating

to heinous offence of Section 302 of IPC and even

offence under Section 354 of IPC. Section 354 of IPC

relating to outraging the modesty of a woman. But

mere recovery of the dead body of the deceased from the

well situated near the house of accused and unless

there is some strong evidence connecting the accused

relating to the murder and even for causing for death of

deceased, it is not enough to fasten the guilt upon the

accused, although it may raise some suspicion against

him. But suspicion, however strong it may be cannot

be valid substitute for proof. The chain of

circumstances which has been established on the basis

of reliable evidence the credibility of which has not in

any manner being impeached by cross-examination and

which evidence gets support from the medical evidence

that, the death occurred on the account of some sort of

injuries inflicted over the dead body and the Doctor did

not subjected to examination on the part of prosecution

to prove the guilt of the accused in the instant case. The

same has been seen in the evidence of prosecution

itself. It is relevant to refer the judgment of Hon'ble

Supreme Court reported in Sharad Birdhi Chand Sarda

vs State of Maharashtra reported in (1984) 4 SCC 116

wherein it is extensively addressed the issues insofar as

Indian Evidence Act, 1872 and so also, circumstantial

evidence and even benefit of doubt in detail. In para

162 it is held as under:

"Moreover, in M.G.agarwal case this Court while reiterating the principles enunciated in Hanumant case observed thus:

If the circumstances proved in the case are consistent either with the innocence of the accused or with his guilt, then the accused is entitled to the benefit of doubt.

In Shankarlal this Court reiterated the same view thus :

[ SCC para 31, p.44: SCC (Cri) p. 322]

In para 163, the Hon'ble Supreme Court held as under:

"We then pass on to another important point which seems to have been completely missed by the High Court. It is well settled that where on the evidence two possibilities are available or open, one which goes in favour of the prosecution and the other which benefits an accused, the accused is undoubtedly entitled to the benefit of doubt. In Kali Ram v. State of Himachal Pradesh,(l) this Court made the following observations:

Another golden thread which runs through the web of the administration of justice in criminal cases is that if two views are possible on the evidence adduced in the case one pointing to the guilt of the accused and the other to his innocence, the view which is favourable to the accused should be adopted This principle has a special relevance in cases where in the guilt of the accused is sought to be established by circumstantial evidence."

25. Insofar as circumstantial evidence - cardinal

principles for conviction on the basis of, restated.

Falsity of defence plea if a circumstance against the

accused. But it is held that on facts, circumstances not

sufficient to conclusively establish the guilt of the

accused - circumstances in the light of the facts of the

case - circumstances not put to the accused under

Section 313 of Cr.P.C. cannot be held against him.

26. In the instant case, even though challenging

the acquittal judgment rendered by the trial Court by

urging various grounds and even the concept of Section

313 of Cr.P.C. recording of incriminating statement, it is

culled out in the evidence put forth by the prosecution.

But circumstantial evidence in criminal trial it should

be a vital role if there are some infirmities in the

prosecution case even though cannot be cured by any

such additional link. But circumstantial evidence in

respect of last seen together - where it was natural for

the deceased to be with the accused at the material

time, other possibilities must be excluded before an

adverse inference can be drawn. But the circumstances

from which the conclusion of guilt is to be drawn must

or should be and not merely 'may be' fully established.

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. The circumstances

should be of a conclusive nature and tendency. They

should exclude every possible hypothesis except the one

to be proved and 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. This issue was

also extensively addressed by the Hon'ble Supreme

Court by rendering the judgment which has been stated

supra. It is vital that any circumstance adverse to the

accused must be put to him under Section 313 of

Cr.P.C. Otherwise it must be completely excluded from

consideration because the appellant did not have any

chance to explain them. Moreover, the prosecution must

stand or fall on its own legs and it cannot derive any

strength from the weakness of the defence. It is not the

law that where there is any infirmity or lacuna in the

prosecution case, the same could be cured or supplied

by a false defence or a plea which is not accepted by a

court. There is a vital difference between an incomplete

chain of circumstances and a circumstance which, after

the chain is complete, is added to it merely to reinforce

the conclusion of the court.

27. But in the instant case PW.1 is the daughter of

deceased - Radha and she has given complaint as per

Ex.P1 and based upon her complaint, criminal law was

set into motion and subsequent to registration of crime,

the dead body of deceased - Radha was sent to

mortuary to conduct post mortem over the dead body.

Accordingly, the post mortem was conducted and report

came to be issued. But the Doctor who issued

postmortem report was not subjected to examination

even relating to marking of postmortem report at

Ex.P21. This aspect was also considered by the trial

Court by analyzing the evidence of PW.1 to PW.5

inclusive of evidence of PWs.6 and 7 coupled with the

evidence of PW.16 being the investigating officer who

laid the charge sheet against the accused. But in a

totality of evidence of prosecution and even the totality

of incisive cross-examination of the material witness of

PW.s1 and 2 who are the daughter and sister of

deceased - Radha and even though they are the close

family members of deceased - Radha, their evidence is

not supported by any other independent witnesses on

the part of the prosecution to prove the guilt of the

accused that the accused caused the death of deceased

as where the dead body of deceased was floating in the

well which was situated nearby the house of the

accused. Mere because the dead body was found in the

well situated near the house of accused and even

proceeded further for autopsy over the dead body and

even subjected to recording the evidence of PW.2 -

Pushpa and criminal law was set into motion by

recording FIR and even drew the inquest mahazar over

the dead body and conducted the mahazar in the

presence of panch witnesses, but no worthwhile

evidence has been facilitated by the prosecution to

prove the guilt of the accused. The same has been

made an observation by the trial Court and also arrived

at a conclusion that the prosecution has miserably

failed to prove the guilt of the accused that he has

caused for the death of the deceased.

28. In criminal justice delivery system it is the

domain vested with the prosecution even it is equally

the domain vested with the trial Court to appreciate the

evidence as under Section 3 of Indian Evidence Act,

1872. But the prosecution should establish the guilt of

the accused by facilitating positive, cogent and

consistent evidence to probabalise that accused had

committed murder of deceased, if not produced the

worthwhile evidence, naturally the doubt would arise in

the mind of the Court, and the benefit of doubt shall be

extended to the accused alone and it is the doctrine of

criminal delivery justice system. In the instant case,

the trial Court had analyzed the evidence and on close

scrutiny had come to the conclusion that the

prosecution has not proved the guilt of the accused by

facilitating worthwhile evidence. However, the

prosecution has not proved the guilt of the accused with

beyond all reasonable doubt and when there is

suspicion in the case of prosecution theory and when

the prosecution has not proved even the circumstances

with beyond all reasonable doubt, it is to be held that

the accused is not guilty of the offence and moreover, in

the instant case and so also, contrary to the call details

of the accused as well as evidence of PW.2 - Pushpa,

sister of deceased - Radha had shown that the accused

and deceased were in good terms from the child hood.

Therefore, the evidence of the prosecution has been

taken into consideration by the trial Court and has

rightly come to the conclusion that the prosecution has

failed to prove the guilt of the accused with beyond all

reasonable doubt. Consequently, rendered the acquittal

judgment. However, under this appeal even though we

have re-appreciated the evidence and re-visited the

judgment of trial Court, but the grounds urged in this

appeal there is no substance and any bone of

contention to revisit the impugned judgment rendered

by the trial Court as sought for. In terms of the

aforesaid reasons and findings, we are of the opinion

that the appeal deserves to be rejected being devoid of

merits. Accordingly, we proceed to pass the following:

ORDER

The appeal preferred by the appellant / State

under Section 378 (1) and (3) of Cr.P.C. is hereby

rejected. Consequently, the judgment of acquittal

rendered by the trial Court in S.C.No.60/2019 dated

13.03.2020 is hereby confirmed.

Bail bond, if any, executed by the accused shall

stands cancelled.

Sd/-

JUDGE

Sd/-

JUDGE DKB