Karnataka High Court
Sri S Shekar @ Dasa vs State Of Karnataka on 21 February, 2022
Bench: B.Veerappa, M G Uma
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CRL.A No. 1169 of 2016
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 21ST DAY OF FEBRUARY, 2022
PRESENT
THE HON'BLE MR. JUSTICE B.VEERAPPA
AND
THE HON'BLE MRS. JUSTICE M. G. UMA
CRIMINAL APPEAL NO. 1169 OF 2016
BETWEEN:
1. SRI S. SHEKAR @ DASA,
S/O SRINIVAS,
25 YEARS,
R/O BUDIGERE CROSS,
TALUK HOSKOTE,
BENGALURU DISTRICT,
NATIVE OF ANNENAHALLI VILLAGE,
HOLURU HOBLI,
TALUK AND DISTRICT: KOLAR-563101.
2. SRI. SANTHOSH,
S/O VIKRAM NAYAR,
AGED 26 YEARS,
R/O NEAR TILES FACTORY,
Digitally signed by
GAVRIBIDANUR
SRIRAMANAHALLI GATE,
SUBRAMANYA
GUPTA
NAGAMANGALA,
SREENATH MANDYA DISTRICT - 571432
Location: High
Court of Karnataka ...APPELLANTS
(BY SRI. VEERANNA G TIGADI., ADVOCATE)
AND:
1. STATE OF KARNATAKA,
REP BY INSPECTOR OF POLICE,
KOLAR RURAL POLICE STATION,
KOLAR.
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CRL.A No. 1169 of 2016
REP. BY THE SPP,
HIGH COURT OF KARNATAKA,
BANGALORE-560001.
...RESPONDENT
(BY SRI K. NAGESHWARAPPA, HCGP)
****
THIS CRIMINAL APPEAL IS FILED UNDER SECTION
374(2) of CR.P.C BY THE APPELLANTS PRAYING TO SET ASIDE
THE JUDGMENT OF CONVICTION AND ORDER OF SENTENCE
DATED 09/13-06.2016 MADE IN S.C.NO.171/2013 ON THE FILE
OF PRINCIPAL SESSIONS JUDGE, KOLAR, CONVICTING AND
SENTENCING THEM FOR THE OFFENCE PUNSIHABLE UNDER
SECTION 302 READ WITH 34 OF IPC AND SENTENCING THEM
TO UNDERGO IMPRISONMENT FOR LIFE AND TO PAY FINE OF
RS.1,00,000/- EACH.
THIS CRIMINAL APPEAL COMING ON FOR HEARING THIS
DAY, B. VEERAPPA J., MADE THE FOLLOWING:
JUDGMENT
The appellants/Accused Nos.1 and 2 filed the present
criminal appeal against the judgment of conviction and order of
sentence dated 09/13-06-2016 made in Sessions Case
No.171/2013 on the file of the Prl. Sessions Judge, Kolar,
convicting them for the offence punishable under Section 302
r/w Section 34 of IPC and sentencing them to undergo
imprisonment for life and to pay fine of Rs.1,00,000/- each.
2. It is the case of the prosecution that the deceased
Govindaswamy and accused No.1 are cousins. The complainant
CRL.A No. 1169 of 2016
(PW.4) is the brother of the deceased Govindaswamy and the
deceased used to insist the mother of accused No.1, by name
Eshwaramma for having extra marital relationship and thereby,
accused No.1 had developed animosity against the deceased. It
is the further case of the prosecution that because of such
attitude of deceased, accused No.1 and his family members
have migrated from Annenahalli village to Budigere cross.
However, accused No.1 and his parents occasionally used to
visit Annenahalli and the house of the deceased as father of
deceased Govindaswamy was the uncle of accused No.1. It is
the case of the prosecution that as accused No.1 had developed
animosity against deceased Govindaswamy, on 3/7/2013
evening accused No.1 along with his friend accused No.2 came
to Annenahalli in Indica Car bearing No.KA-01-AB-2585. At
that time, the wife of deceased Govindaswamy had prepared
non-vegetarian food. Then, the deceased and both the accused
have had the pork in the house of the deceased and went away
along with the deceased by taking some food in parcel. They
went near mango groove belonging to one Ramapur
Someshekar, near Gokunte village situated by the side of the
road leading towards Kondasandra from Annenahalli and there,
CRL.A No. 1169 of 2016
they have consumed liquor and also eaten the pork brought in
the parcel. It is further case of the prosecution that under the
influence of alcohol, a quarrel took place between them and
when the deceased Govindaswamy abused the mother of
accused No.1, he again got enraged and immediately accused
Nos.1 and 2 have brought knife and chopper which were kept
by them in the car and accused No.2 using the knife cut the
neck of Govindaswamy, while accused No.1 brought
sickle/chopper from the car and decapitated the head of the
deceased and thereby caused his death. It is the further case of
the prosecution that both the accused took the head portion
leaving the trunk portion of the deceased Govindaswamy at the
spot itself and t h e r e a f t e r , accused No.1 along with the
decapitated head surrendered before Parappana Agrahara
Police. The Parappana Agrahara Police in turn have reported
the matter to Kolar Rural Police Station and immediately the
police officers of Kolar Rural Police Station went to Parappana
Agrahara Police Station in Bengaluru and took the custody of
accused No.1 as well as the head portion and brought them
back to Kolar Rural Police Station. In the meanwhile, the
complainant on the basis of the information submitted by the
CRL.A No. 1169 of 2016
eyewitnesses lodged the first information and the Investigating
Officer rushed to the spot and drawn the spot mahazar as well
as the inquest. On the next day morning, when the head
portion was also secured, he got postmortem done and then
handed over the dead body to the legal heirs of the deceased
and the body was cremated. Thereafter, the Investigating
Officer recorded the statements of material witnesses and also
obtained the opinion of the Medical Officer regarding the
weapons and come to the conclusion that it is the accused who
have committed the offences punishable under Sections 302
and 201 read with section 34 of IPC. After committal of the
matter, the learned Sessions Judge secured the presence of the
accused, framed the charge and read over the same to the
accused in the language known to them, who pleaded not guilty
and claimed to be tried.
3. In order to prove the guilt of the accused, the
prosecution examined in all 28 witnesses as PWs.1 to 28, got
marked 37 material documents as per Ex.P1 to Ex.P37 and 21
material objects - Mos.1 to 21. On behalf of the defence, five
documents were got marked as per Ex.D1 to Ex.D5. Ex.D1 is
portion of statement of PW.1; Ex.D2 and Ex.D3 are portions of
CRL.A No. 1169 of 2016
statement of PW.7; Ex.D4 is portion of statement of PW.8; and
Ex.D5 is portion of statement of PW.23.
4. After completion of evidence of the prosecution
witnesses, the statements of the accused persons were
recorded as contemplated under the provisions of Section 313
of the Code of Criminal Procedure. Accused No.2 in his
statement recorded under Section 313 of the Code of Criminal
Procedure, has denied all the incriminating circumstances made
out by the prosecution witnesses and did not adduce any oral
evidence except marking the documents stated supra.
5. Accused No.1 filed the separate statement under
Section 313(5) of the Code of Criminal Procedure, wherein he
has stated that on 4.7.2013 at about 8.30 a.m. when he was
taking breakfast in his house at Budigere cross, Police have
taken him to the Kolar Rural Police Station. He was informed
by the Police that on the night of 3.7.2013, the deceased
Govindaswamy had alcohol with his friends and thereafter, his
friends had cut his head. Accused No.1 also stated that the
Police foisted a false case against him and another through the
complainant - Venkatachalapathi. He has stated that he is no
CRL.A No. 1169 of 2016
way concerned to the death of the deceased and he has been
falsely implicated in the case. He has stated that on 3.7.2013,
he has not gone along with Accused No.2 in the car to
Annenahalli and he denied having dinner in the house of the
deceased Govindaswamy and thereafter going in a car along
with the deceased and Accused No.2 taking the non-vegetarian
food. He also stated that on 3.7.2013, he never went along
with decapitated head of the deceased and the weapons to
Parappana Agrahara Police Station, Bangalore and gave
statement before the police. He further stated that the
distance between Annenahalli to Parappana Agrahara Police
Station is about 65 kilometers and he has no information about
the Police Officers of Agrahara Police Station. He has further
stated that since the deceased used to insist mother of Accused
No.1 for sexual favour, there was animosity between the
deceased and the accused and therefore, question of he having
food in the house of the deceased and going out along with
deceased by taking certain food, would not arise. He further
stated that the complainant - Venkatachalapathy was not
residing on the date of the incident at Annennahalli and the
Police based on the presumptions and assumptions registered
CRL.A No. 1169 of 2016
the case against him and another. Therefore, he stated that he
is nowhere concerned to the death of the deceased and sought
for acquitting him.
6. Based on the aforesaid material, the learned Sessions
Judge framed two points for consideration, which are as under:
1) Whether the prosecution proves beyond all
reasonable doubt that, on 3/7/2013 at 8:30
p.m., accused No.1 and 2 having common
intention to kill Govindaswamy have persuaded
the deceased to accompany them and induced
him and took him in a Indica Car bearing
No.KA-01-AB-2585 near the Mango grove
belonged to one Rampur Somashekar near
Gokunte village situated by the side of the road
leading towards Kondasandra from Annenahalli
and there, made him to consume liquor and to
eat pork and intentionally and knowingly
caused the death of Govindaswamy by using a
knife by accused No.2 and by using a
sickle/chopper by accused No.1, by cutting and
separating the head portion of the deceased
from the trunk portion and thereby caused his
death and as such, accused No.1 and 2 have
committed an offence punishable U/s.302 R/w
sec.34 IPC?
CRL.A No. 1169 of 2016
2) Whether the prosecution further proves beyond
all reasonable doubt that on the above said
having committed the murder of
Govindaswamy by cutting and separating the
head portion from the trunk portion and having
knowledge that the said offence is punishable
with death or imprisonment did cause certain
evidence to disappear and to destroy the
identity of the dead body of Govindaswamy and
in order to screen themselves from legal
punishment took away the head portion along
with them by leaving the trunk portion of the
body at the spot by fleeing away with the head
portion of the body of Govindaswamy and
thereby committed an offence punishable
U/s.201 R/w sec.34 IPC?
7. The learned Sessions Judge considering both the oral
and documentary evidence on record, has answered Point No.1
in the affirmative holding that the prosecution proved beyond
all reasonable doubt that Accused Nos.1 and 2 have committed
the offence punishable under Section 302 read with Section 34
of IPC and answered point No.2 in the negative holding that the
prosecution failed to prove beyond all reasonable doubt that
Accused Nos.1 and 2 have committed an offence punishable
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CRL.A No. 1169 of 2016
under Section 201 read with Section 34 of IPC. Accordingly,
the learned Sessions Judge proceeded to convict accused Nos.1
and 2 and sentenced them to undergo imprisonment for life for
the offence punishable under the provisions of Section 302 read
with Section 34 of IPC and imposed a fine of Rs.1,00,000/-
each for the said offence, and acquitted them for the offence
punishable under the provisions of Section 201 read with
Section 34 of IPC. Hence, the present appeal is filed by
accused Nos.1 and 2 against the said judgment of conviction
and order of sentence.
8. The State has not filed any appeal against the
impugned judgment of acquittal, acquitting the accused for the
offence punishable under Section 201 read with Section 34 of
IPC.
9. We have heard the learned counsel appearing for
the parties to the lis.
10. Shri Veeranna G. Tigadi, learned counsel appearing
for both the accused contended with vehemence that the
impugned judgment of conviction and order of sentence passed
by the learned Sessions Judge convicting the accused for the
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CRL.A No. 1169 of 2016
offence punishable under Section 302 read with Section 34 of
IPC is contrary to the material available on record. He stated
that the learned Sessions Judge failed to notice that all the
material witnesses having turned hostile and having not
supported the case of the prosecution, it can be said that the
prosecution has miserably failed to prove its case beyond
reasonable doubt. According to him, Ex.P10-complaint filed by
PW-4 who is none other than the elder brother of deceased
Govindaswamy, is doubtful. He would further state that the
oral evidence of PWs-2, 7, 20, 23 and 27 is highly improbable
and cannot be relied upon. The entire case of the prosecution
is based on circumstantial evidence and as PWs-2 and 5 being
treated as hostile witnesses, it has to be held that the
prosecution has failed to prove its case beyond reasonable
doubt regarding the motive for the murder. It is his contention
that the last seen theory putforth by the prosecution is also not
proved, and the theory that accused No.1 went to the police
station with the decapitated head of the deceased and
surrendered before the police with weapons-M.Os. 13 and 14,
is most improbable. He would further contend that the
recovery of certain material objects at the instance of accused
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CRL.A No. 1169 of 2016
No.2 is also not believable, and that PWs-1, 3, 4, 7 and 8 who
have been examined to prove the prosecution case regarding
motive and last seen theory, have also not supported the
prosecution case. Therefore, the conclusion drawn by the
learned Sessions Judge for convicting the accused for the
offence punishable under the provisions of Section 302 read
with Section 34 of IPC is not sustainable in law. Moreover, the
State has not filed any appeal against the acquittal of the
accused for the offence punishable under Section 201 read with
Section 34 of IPC. Therefore, he sought to allow the appeal.
11. Shri Veeranna Tigadi, learned counsel for the
accused, relied upon the dictum of the Hon'ble Supreme Court
in the following cases:
(i) Shivaraj Chintappa Patil .v. State of
Maharashtra (2021 SCC Online SC 158 -
paragraph 54 - five golden principles.......
Constitute circumstantial evidence),
(ii) Sukhram .v. State of Maharashtra (2007) 2
SCC 502 - paragraph 20),
(iii) Bijoy Singh & Another .v. State of Bihar
(2002) 9 SCC 147 - paragraph 5),
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CRL.A No. 1169 of 2016
(iv) Sevaraj .v. State of Tamilnadu (1976) 4
SCC 343 - paragraphs 8 to 10) and
(v) State of Karnataka .v. Rajanaika & Others
(2012 SCC Online Kar. 8794
12. On the other hand, Shri K.Nageshwarappa, learned
HCGP would justify the impugned judgment of conviction
mainly contending that the prosecution has proved its case
beyond all reasonable doubt about the homicidal death of
deceased Govindaswamy. It is his case that the evidence on
record clearly depicts the involvement of accused Nos. 1 and 2
and the entire case of the prosecution is based on
circumstantial evidence. The circumstances projected by the
prosecution case from the beginning till the end clearly show
the involvement of accused Nos. 1 and 2. Moreover, the
confession statement of accused No.1 before the police would
fortify the prosecution theory and therefore, the learned
Sessions Judge rightly convicted both of them for the offence
punishable under the provisions of Section 302 read with
Section of IPC. He further contended that since the accused
were sentenced to undergo imprisonment for life, the State
thought it fit that there was no need to file an appeal against
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CRL.A No. 1169 of 2016
the judgment of acquittal against accused Nos.1 and 2 for the
offence punishable under Section 201 read with Section 34 of
IPC.
13. Learned HCGP further contended that PWs-20 and
23 have deposed on oath that on the next day of the incident,
accused No.1 himself gave information to Central Prison at
Parappana Agrahara, Bengaluru, with the decapitated head of
deceased Govindaswamy. Based on that, Central Prison police
referred the matter to the jurisdictional police, i.e. Kolar Rural
police station who, after registering the case and inspecting the
spot, recorded the statements of the accused as well as other
prosecution witnesses. Therefore, he contends that the Trial
Court is justified in convicting the accused for the aforesaid
offence. The appellants have not made out any ground to
interfere with the impugned judgment of conviction and order
of sentence convicting them for the offence punishable under
Section 302 read with Section 34 of IPC. Therefore, he sought
to dismiss the appeal.
14. This Court being an Appellate Court, in order to re-
appreciate the entire materials on record, both oral and
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CRL.A No. 1169 of 2016
documentary, it is relevant to consider the evidence of
prosecution witnesses and the documents relied upon.
(a) PW-1, Chandrika who is the wife of deceased
Govindaswamy has deposed that PW-5 is the
maternal uncle and CWs-1, 5 and 8 are her
brothers-in-law; she knows the other
witnesses. She has stated that she knows
accused No.1, but she is not aware of accused
No.2 and that she saw him for the first time
only on the day of the incident. Accused No.1
who is residing in Bengaluru, is related to her
father-in-law. She is residing in Annenahalli
village, Kolar; her husband died on
04.07.2013. It is her version that on
Wednesday afternoon (03.07.2013), she
objected when her husband went to the
shandy (market); he came at about 7.30 p.m.
with pork meat. After 7.30 p.m. on
03.07.2013, both accused Nos.1 and 2 came
to their house and she served non-vegetarian
food to her husband (deceased
Govindaswamy) and both the accused. Then
they consumed some alcohol and left in a car
at about 8.30 p.m. Her husband did not
return that night. The next morning, her
brother-in-law informed her that she should go
to the hospital, but he did not give any
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CRL.A No. 1169 of 2016
information about the incident. Thereafter,
she learnt that accused Nos.1 and 2 have
killed her husband-Govindaswamy and she
saw his dead body. After post mortem, the
decapitated head was put along with the trunk
portion of the body and the same was
cremated. She was not aware for what reason
her husband had been killed; she only stated
that the accused persons had taken her
husband the previous night in the car. She
identified the photographs -Exs.P1 to P4.
In cross-examination, PW-1 has stated
that the police have not enquired nor recorded
her statement, and she is not able to tell the
registration number of the car, but it was of
cement colour. She saw her husband's dead
body at 11.30 a.m. on the next morning for
the first time. At that time, there were many
police personnel and a large number of
villagers. One Srinivasa Reddy (PW-5)
informed about the murder of her husband at
11.00 a.m. and thereafter, she went and saw
the dead body and thereafter, the body was
cremated at 4.00 p.m. She has denied the
statement marked as Ex.D1 before the police.
She has stated that Smt.Eshwaramma is the
mother of accused No.1. She has denied that
since her husband had sexually assaulted said
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CRL.A No. 1169 of 2016
Eshwaramma, accused No.1 and his family
members have left the village and thereby,
there was strained relationship between the
two families and till prior to the death of her
husband, they were not in talking terms. She
has denied a suggestion that accused No.1 has
not caused the death of her husband. She has
also denied that on the previous night of the
incident, accused persons had not come to
their house and that she did not serve mutton
sambar to the accused.
(b) PW-2, Narayana Shetty is said to be one of the
eyewitnesses to the incident. He would
depose that apart from the complainant, he
knows accused No.1 and other witnesses, but
he has not seen accused No.2. Deceased-
Govindaswamy was known to him, but he was
not aware why and how he died. He has not
made statement before the police. Thereby,
PW-2 has not supported the prosecution case
and has been treated as hostile.
(c) PW-3, Sadananda is the elder brother of the
deceased. He has not stated anything about
the motive. He has stated that on the date of
death of Govindaswamy, he (deceased) was
admitted to the hospital as he was not well
and after he got the information, he went to
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CRL.A No. 1169 of 2016
Kolar police station and saw the decapitated
head of deceased Govindaswamy in the bag.
He saw two other persons standing in the
police station. Thereafter, after conducting
post mortem, the body was cremated. He
identified Exs.P6 and P7, photographs of
decapitated head. He was called to the police
station after 3-4 days and he has signed
Ex.P8-spot mahazar; he has identified M.Os.1
to 4. He has also identified Ex.P9-mahazar
and has signed the same. He has partly
supported the prosecution case and was
treated partly hostile.
(d) PW-4, Venkatachalapathi, complainant, is
another brother of deceased Govindaswamy.
While reiterating the averments made in the
complaint, he has deposed that he did not
inspect the spot where his brother was killed
and he was not aware why he was killed. He
has identified Ex.P11-mahazar and his
signature thereon which was said to have been
obtained in the police station. When the police
showed the clothes of the deceased, he
identified the same as Exs.P16 to P18 (Lungi,
Banian and Shirt respectively). This witness
has partly supported the case of the
prosecution and therefore, treated as partly
hostile.
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CRL.A No. 1169 of 2016
In cross-examination, he has denied the
suggestion that since the deceased demanded
the mother of accused No.1 for sexual favour,
accused developed animosity and therefore,
took him in an Indica car after having non-
vegetarian dinner; thereafter a quarrel ensued
between them and accused No.1 cut the head
of the deceased and decapitated it.
(e) According to the case of the prosecution, PW-
5, Srinivasa Reddy is another eyewitness to
the incident. He has deposed that he knows
the complainant (PW-4), deceased
Govindaswamy and other prosecution
witnesses and also accused No.1. He is not
aware how, where and for what reason
Govindaswamy died and he has not seen
accused persons killing the deceased; he has
not given any statement before police. This
witness has been treated as hostile.
(f) PW-6, Shivareddy is the Panch witness for the
scene of the occurrence. He deposed that he
could not identify the body as there was no
head. However, himself and PW-4
(Venkatachalapathi) signed the mahazar. He
has identified photographs, Exs.P14 to P20,
but could not remember what other articles
were seized. Since this witness has not fully
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CRL.A No. 1169 of 2016
supported the prosecution case, he has been
treated as hostile.
(g) PW-7, Sriramappa is the father of the deceased
Govindaswamy. He has deposed that PW-1
(Chandrika) is his daughter-in-law; he knows
accused No.1, but has only seen accused
No.2. They had come to the house about two
years back, on the date, when the deceased
was killed. He has stated that his son,
Govindaswamy was killed on the way to
Kondasandra village. He came to know about
the death of his son at about 3.00 a.m. early
next morning from PW-8, Krishnareddy. When
he went to the spot, he saw the dead body of
his son without the head. He has further
stated that one day before the murder, he saw
both the accused persons along with his son
going in the car, and thereafter he came to
know that the police had taken the body to the
police station without the head; after securing
the head, cremation was done in another
village.
In cross-examination, PW-7 has stated
that accused No.1 is the son of Eshwaramma.
The husband of Eshwaramma is his brother's
son. He has stated that accused No.1 and his
family had left the village and they were
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CRL.A No. 1169 of 2016
residing in Budigere Cross from about 3 years
prior to the death of the deceased. He has
denied the suggestion that there was sexual
assault by the deceased on Eshwaramma and
that himself (PW-7) along with villagers had
advised the deceased to mend his ways. He
has given statement before the police. He
further deposed that he has not made any
statement before police that deceased-
Govindaswamy used to call Eshwaramma for
sexual favours and therefore, accused No.1
had developed animosity. He has stated that
he has not given statement before police as
per Exs.D2 and D3. This witness has also not
fully supported the case of prosecution,
thereby has been treated as hostile.
(h) PW-8, Krishnareddy is one of the mahazar
witnesses to Exs.P11, P21 and P22. In cross-
examination, he deposed that 3 years prior to
his examination, he has not made any
statement to the police. He further stated
that, when the incident occurred about sexual
assault by deceased Govindaswamy on the
mother of accused No.1 there was a quarrel.
He has also stated that he has not made any
statement as per Ex.D4 before the police. He
has stated that deceased Govindaswamy was
addicted to alcohol and used to tease and
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CRL.A No. 1169 of 2016
harass ladies. This witness also has not
supported the case of the prosecution and has
been treated as hostile.
(i) PW-19, Srinivasalu and PW-11, Chandrakanth
are said to be the circumstantial witnesses.
PW-10, Anandareddy is a mahazar witness, so
also PW-12, Chandrashekar. PW-13,
Venkatachalapathy is also a mahazar witness
and PW-14, Nataraj is a witness to Ex.P25-
mahazar in respect of seizure of decapitated
head of the deceased. PW-15,Ganesh is a
witness to Exs.P8 and P9, mahazars. All these
seven witnesses, viz., PW-9 to PW-15 have
not supported the prosecution case and hence,
have been treated as hostile witnesses.
(j) PW-16, Dr.Dayananda is a material witness who
conducted post mortem examination on the
dead body of deceased-Govindaswamy. He
deposed that from November 2012 to July
2013, he was working as Medical Professor in
Jalappa Hospital. On the requisition made by
the police on 04.07.2013 at 1.10 p.m., he
conducted post mortem of the deceased and
found five injuries. He noticed chopped
wounds and other injuries on the body and the
head was brought separately. He has stated
that M.Os.13 and 14, (knife and chopper)
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CRL.A No. 1169 of 2016
were brought, which contained human blood
stains of 'O' group. He has opined that the
injuries on the dead body can be caused by
M.Os.13 and 14 only from a close range, and
that the death of Govindaswamy is due to
decapitation. He has stated that deceased had
consumed alcohol at the time of death. This
witness has been cross-examined at length.
In cross-examination, PW-16 has
admitted a suggestion that different weapons
cause different injuries on the body; chopped
wound, pierced wound and abrasions are
types of wounds. He has stated that he
withheld the final report regarding deceased
consuming alcohol till the receipt of FSL
report. He has deposed that the first chop
wound need not be measured and that the
other two wounds merge with the first chop
wound. He has specifically stated that the
chop wound on the neck of the deceased
cannot be caused while lying. He has
admitted the suggestion that the injuries
mentioned in the post mortem report can be
caused with sharp weapons as M.Os.13 and
14. He has specifically deposed as to which
wound can be caused by which weapon. He
has stated that if a sharp edged weapon is
used repeatedly for assault, blood will gush
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CRL.A No. 1169 of 2016
out profusely . Regarding digestion of food,
he has stated that it was partially digested and
it was not possible to identify whether it was
vegetarian or non-vegetarian food. He has
stated that digestion of food in the stomach
requires 2-4 hours. This witness has with
stood the test of cross-examination and has
supported the case of the prosecution.
(k) PW-17, Venugopal is a witness to Exs.P22and
P25, mahazars. He has not supported the
prosecution case and has been treated as
hostile.
(l) PW-18, Venkatachalapathy is one of the
witnesses to Exs.P8 and P9, mahazars and has
not supported the prosecution case. PW-19,
Seenappa is the person who sold the chopper
to accused No.1. He has also not supported
the prosecution case.
(m) PW-20, Ashok Chawan is the police constable
at Central Prison, Parappana Agrahara. He
deposed that on 03.07.2013 at about 8.30
p.m., when he was on duty, Assistant Sub
Inspector, Sri Rajanna was the Station House
Officer (SHO). At about 11.45 p.m., one
person came there with a bag. On enquiry, he
replied that his name was Shekar and came
from Annenahalli village, Kolar. He (PW-20)
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on verifying the bag, saw a decapitated head
along with a knife and chopper. On further
enquiry, the said person disclosed that one
Govindaswamy used to sexually harass his
mother, Eshwaramma, and therefore, he was
frustrated and himself and his family members
left the village and are residing at Budigere
Cross; still whenever he went there, deceased
Govindaswamy used to ask for sexual favours
from his mother and therefore, he chopped
the head of the deceased and came from
Budigere Cross, Kolar, to Hoskote and from
Hoskote to Central Prison, Parappana
Agrahara, Bengaluru. He identified accused
No.1, Exs.P6 and P7, photographs of the head
portion of the deceased and also M.Os.13 and
14, knife and chopper.
In cross-examination, PW-20 has stated
that on the night of 03.07.2013 at 11.45 p.m.,
except ASI-Rajanna, there was no other
person and he did not inform the jurisdictional
police at Kolar about the incident; at that
time, at Central Prison, Parappana Agrahara,
one Sri G.S.Manjunath and Sri Shivappa were
working as Sub Inspectors. PW-20 has stated
that he was on duty from 8.00 p.m. on
03.07.2013 till 8.00 a.m. the next morning,
i.e. 04.07.2013. On that day, Circle Inspector
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CRL.A No. 1169 of 2016
Sri Lakshminarayan had asked ASI Rajanna to
be in charge of the police station and left for
official duty. He further admitted in the cross-
examination that when accused No.1 came to
the police station, he did not verify the bag,
but accused No.1 was taken to the SHO-
Rajanna. Thereafter, the things kept in the
bag were removed; SHO-Rajanna did not
inform Circle Inspector-Lakshminarayan
immediately. After verification, they informed
him over phone. He admitted that first they
informed and then verified the bag; he was
not aware whether SHO-Rajanna was there
when the accused made statement; he was
also not aware if SHO-Rajanna had verified the
bag and recorded the statement of accused
No.1.
He has further admitted that whenever they
want to go out for personal work, they write it
in the diary, but on that day, he has not
written; even after intimation to Circle
Inspector-Lakshminarayan, he did not come to
the police station. He has further admitted
that before the Investigating Officer (IO), they
have not stated as to who had come with a
bag containing a decapitated head and knife
and chopper. He has stated that on the date
of the occurrence, there was power supply in
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Central Prison, Parappana Agrahara,
Bengaluru; he has not seen blood stains on
the clothes of persons who came to the police
station. He has denied that there were blood
stains in the bag brought by accused No.1, but
admitted that there were blood stains on
M.Os.13 and 14, knife and chopper and also
on the hand of accused No.1 who was holding
the hair on the head, and he did not verify
whether the hair was stained with blood. He
stated that the place where the bag was kept
was stained with blood and till 8.00 a.m. on
the next morning, neither any police nor Circle
Inspector came to the police station. He has
seen the person on the night of 03.07.2013 for
the first time. He was not aware that on the
next morning, Kolar Rural police came to
Central Prison, Parappana Agrahara,
Bengaluru, at about 8.30 a.m. and was not
aware whether Panchanama was drawn or
not; he was also not aware whether the
person who came to the police station was
arrested or not and whether SHO had drawn a
mahazar about the articles recovered from
him. He has denied as false the suggestion
that at 11.45 p.m. on 03.07.2013, accused
No.1 did not come with the bag containing
decapitated head and M.Os.13 and 14, knife
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and chopper. This witness has supported the
case of the prosecution.
(n) PW-21, Narayanaswamy is the SHO who
registered the complaint on the basis of
Ex.P10 given by PW-4 in Crime No.352/2013
and submitted FIR, Ex.P29.
(o) PW-22, K.P.Ravikumar is the police constable
who carried the FIR to the Court. He has
supported the case of the prosecution.
(p) PW-23, Rajanna was the Assistant Sub
Inspector at Central Prison Parappana
Agrahara, Bengaluru, at the relevant time. He
has deposed that on 03.07.2013 when he was
on duty, at about 11.45 p.m., one person
came with a plastic bag; he sent PW-20,
Ashok Chawan to verify; PW-20 ascertained
that the said person's name was Shekar and
he had come from Annenahalli village, Kolar
District. On further enquiry with him, it was
disclosed that he had killed his uncle,
Govindaswamy as he was harassing his
mother for sexual favours and narrated the
history of the entire incident.
In cross-examination, PW-23 has stated
that he was on duty on the night of
03.07.2013, but was not aware whether the
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Sub Inspector had gone outside at that time
and thereafter came back. He has deposed
that the Inspector did not return to the police
station till 8.00 a.m. next morning and he was
not even aware that he was entrusted with in
charge duty. He has admitted that when such
a person comes to the police station, it is his
duty to register the case, draw mahazar and
conduct Panchanama. He has stated that he
did not record the confession made by accused
No.1 in the Station House Diary, though he
noticed the decapitated head, knife and
chopper in the bag brought by him. He has
further stated that when accused No.1
emptied the bag, the decapitated head was
blood stained and he did not notice whether
the clothes of the accused persons had blood
stains. He has further stated that the place
where the decapitated head, knife and
chopper were kept was blood stained and he
did not intimate the same to the SHO while
handing over charge at 8.00 a.m. next day.
He has stated that all the blood stains were
cleaned, but the same has not been
mentioned in the Station House Diary. He has
admitted that at that time, there was power
supply in the police station.
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During further cross-examination, PW-23 has
stated that accused No.1 came to the police
station with the bag containing decapitated
head, knife and chopper, he did not notice
blood stains on his clothes, even though there
was power supply. He again stated that there
is nothing in writing about this in the police
station, and accused No.1 neither surrendered
nor gave any statement when he came on the
night of 03.07.2013, with the bag. He has
admitted that he never enquired with Kolar
Rural police about the incident. He has denied
that he has seen M.Os.13 and 14 before the
Court for the first time, but admitted that he
has not appeared before the IO at Kolar Rural
police station and that the father of deceased
Govindaswamy has not given any statement
as per Ex.D5. He volunteered to state that it
is a typographical mistake regarding the word
"Sriramappa" appearing in Ex.D5.
(q) PW-24, Surendrababu is the photographer who
took photographs as per Exs.P6, P7, P114 to
P20. He has supported the case of the
prosecution.
(r) PW-25, K.K.Raghu was working as PSI in
Vemgal police station and took custody of
accused No.1 at Central Prison, Parappana
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CRL.A No. 1169 of 2016
Agrahara along with the bag containing
decapitated head, knife and chopper, and
Ex.P30 is the report submitted by him. He has
identified Exs.P6 and P7-photographs and
M.Os.13 and 14,knife and chopper.
In cross-examination, he has denied that
he did not arrest accused No.1 in Central
Prison, Parappana Agrahara nor gave
information to the IO. He has supported the
prosecution case.
(s) PW-26, Devendrappa is the PSI who
apprehended accused No.2 and produced him
before the IO. He has submitted Ex.P31-
report. He has supported the case of the
prosecution.
(t) PW-27, P.R.Kumaraswamy is the IO who was
posted to Kolar Rural police station from
20.04.2013 to 14.07.2013. He has deposed
that on 03.07.2013 at about 11.00 p.m., he
received information about the incident and
thereafter he visited the spot along with his
staff and drew Panchanama-Ex.P11 and then
registered the case in Crime No.352/2013.
He has stated that he has seen the body of
deceased Govindaswamy without head and
recovered four plastic glasses, one old whisky
bottle, two tetra packs, 3 aluminium vessels
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and other articles marked as M.Os. 5 to 12, 19
and 20. Thereafter, he appointed PW-25
(K.K.Raghu-PSI) to apprehend the accused
and to get the decapitated head from Central
Prison, Parappana Agrahara, to send him to
Jalappa Hospital for examination.
Accordingly, PSI-Raghu has produced accused
No.1 along with his report, Ex.P30. After
seizure of the decapitated head, knife and
chopper, he has drawn mahazar-Ex.P25 and
arrested accused No.1. He recovered M.Os.13
and 14 from accused No.1 and got
photographs, Exs.P6 and P7. After
investigation, he referred the matter for
further investigation to PW-28.
(u) PW-28, A.B.Sudhakar who is the IO, filed
charge sheet against the accused persons for
the offences punishable under Sections 302
and 201 read with Section 34 of IPC.
Based on the aforesaid material on record including the
oral and documentary evidence adduced by the parties, the
learned Sessions Judge proceeded to convict the accused for
the offence under Section 302 read with Section 34 of IPC,
while acquitting them for the offence under the provisions of
Section 201 read with Section 34 of IPC.
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15. The gist of the complaint-Ex.P10 filed by PW4-
Venkatachalapathi shows that deceased-Govindaswamy and
accused No.1 are cousins. Complainant is the younger brother
of deceased Goviondaswamy. The material on record shows
that deceased used to insist upon the mother of accused No.1
to have extra-marital relationship, thereby accused No.1
developed animosity and himself, his mother and family
members left Annenahali village and moved to Budigere Cross.
However, they used to come to Annenahalli village to attend
functions. Deceased Govindaswamy continued to harass
Eshwaramma-mother of accused No.1, for sexual relationship.
On the fateful day, both the accused persons and deceased
Govindaswamy together had non-vegetarian meal prepared and
served by PW1-Chandrika. They also consumed alcohol along
with dinner. Thereafter, they left in the car to the farm land.
Later, PW-1 learnt that accused No.1 had chopped the head of
her husband and surrendered before Central Prison, Parappana
Agrahara, Bengaluru.
16. Taking into consideration the material available on
record, it is clear that the husband of Eshwaramma has not
been examined. The complainant himself (PW-4) has turned
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hostile and has not supported the case of the prosecution.
None of the family members of deceased Govindaswamy are
examined to speak about the fact of deceased seeking sexual
favour/extra marital relationship from Eshwaramma, mother of
accused No.1. PW-5-Srinivasa Reddy who is said to be an
eyewitness, has also turned hostile.
17. Ex.D1, a portion of the statement of PW-1 (wife of
deceased) shows that there was sexual assault on
Eshwaramma, mother of accused No.1 and therefore, accused
No.1 and his family left the village. But the prosecution has not
produced any material on record to prove that there was any
complaint in that regard. The material available on record
depicts that there is nothing to show that accused No.1
approached Central Prison, Parappana Agrahara, Bengaluru,
with the decapitated head of deceased Govindaswamy as well
as M.Os.13 and 14 (knife and chopper). PW-20 (police
constable) and PW-23 (ASI) have admitted in their cross-
examination that they have not drawn any mahazar regarding
recovery of the bag brought by accused No.1 containing
decapitated head, knife and chopper. The officers have
admitted that they have not even recorded anything in the
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Station House Diary about this incident. Thus, in the absence
of any mahazar drawn or any material documents produced by
the prosecution to prove that accused No.1 was involved in
causing the death of the deceased, mere oral evidence of PW-
20 and PW-23 cannot be accepted. Again, as admitted by
them, there is nothing on record at Central Prison at Parappana
Agrahara about accused No.1 who, according to the
prosecution, came with the decapitated head and knife and
chopper. Therefore, in the absence of any material documents,
it is very difficult to accept the evidence of PW-20 and PW-23.
18. It is also relevant to note at this stage that the
distance between the place of occurrence, Annenahalli village,
Kolar, and Central Prison, Parappana Agrahara is about 65 kms.
as stated by accused No.1 in his statement recorded under
Section 313, Cr.P.C. and also as admitted by the official
witnesses. If really such an incident had happened, accused
No.1 would have first approached Kolar Rural police station
within whose limits the incident occurred which is hardly 18
kms away. Therefore, the theory put forth by the prosecution
that accused No.1 went to Central Prison at Parappana
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Agrahara along with the decapitated head, knife and chopper is
doubtful.
19. Admittedly, Ex.P10 lodged by PW-4 also does not
depict all these things, and admittedly, he has turned hostile.
Interestingly, PW-4 has stated in his evidence that he received
information at about 3.00 a.m. in the early morning of
04.07.2013 about accused No.1 carrying the decapitated head
of deceased Govindaswamy to Central Prison at Parappana
Agrahara and had reached the police station after the
occurrence at 4.30 a.m. However, the complaint lodged by
PW-4 himself was at 11.00 p.m. on the night of 03.07.2013,
thereby the very theory of the prosecution is doubtful.
20. If the oral evidence of PW-20 and PW-23 is to be
believed, what prevented the SHO as well as the concerned
police officers when accused No.1 went to Central Prison,
Parappana Agrahara, Bengaluru, along with the decapitated
head and M.Os.13 and 14 (knife and chopper) from arresting
him and seizing the incriminating materials in the bag after
registering the case as contemplated under Section 154,
Cr.P.C., is not forthcoming. The provisions of Section 154,
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Cr.P.C. clearly mandates that every information relating to the
commission of a cognizable offence, if given orally to an officer
in charge of a police station, shall be reduced to writing by him
or under his direction, and be read over to the informant; and
every such information, whether given in writing or reduced to
writing as aforesaid, shall be signed by the person giving it, and
the substance thereof shall be entered in a book to be kept by
such officer in such form as the State Government may
prescribe in this behalf. In the instant case, if according to
the case of the prosecution, a horrifying incident of chopping off
the head of the deceased by accused No.1 has taken place, and
if the accused has reached the police station with a bag
containing the decapitated head, knife and chopper, what
prevented the officers of Central Prison to immediately arrest
him, register a case, record the incident in the Station House
Diary, draw mahazar and transfer the same to the jurisdictional
police station are all not forthcoming. More importantly, why
the officer on duty has not informed his higher authorities is
also not explained. As per the evidence of PW-20 and PW-23,
the in charge officer who had to take charge on the next day,
did not come to the police station, but only suggested that the
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CRL.A No. 1169 of 2016
same should be informed to the jurisdictional police station, i.e.
Kolar Rural police station. This clearly indicates that though,
according to PW-20 and PW-23, accused No.1 came to the
police station at about 11.45 p.m. on the night of 03.07.2013,
they have not arrested him. Even the evidence of PW-4
(complainant) shows that he got information at about 3.00
a.m. on 04.07.2013, but the complaint is in fact lodged on
03.07.2013 at 11.00 p.m. This clearly makes the prosecution
case doubtful.
21. The materials available on record clearly depicts
that the bag carried by accused No.1 along with the
decapitated head, knife and chopper was not sent to Forensic
Science Laboratory. No blood stains were collected from the
car used for carrying the decapitated head of deceased till
Budigere Cross.
22. PW-4 has stated that when he went to Kolar Rural
police station at about 6.00 a.m., he saw accused No.1 in police
custody along with the bag containing the decapitated head,
knife and chopper. On the contrary, PW-20 and PW-23 have
stated that till 8.00 a.m. on the next morning, the SHO had not
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CRL.A No. 1169 of 2016
come to the station, but only stated that the concerned police
was informed and accused No.1 was still in Parappana Agrahara
Police Station.
23. It is not in dispute that the entire case of the
prosecution is based on circumstantial evidence. The alleged
eyewitnesses, PW-2 and PW-5 have turned hostile. The
prosecution has not proved one of the vital ingredients required
to substantiate its case, which is, the theory of motive for the
murder. The last seen theory is spoken to by PWs-1, 4 and 7.
If the motive for murder as suggested by the prosecution is to
be believed, then both the accused persons going to the house
of the deceased when there was animosity due to the deceased
harassing the mother of accused No.1 for sexual favours,
having dinner and going to the farmland in the car, are all
improbable.
24. Accused No.1 who was aged about 25 years at the
time of the incident, could not tolerate any person, that too his
own cousin, attempting to sexually harass his mother. In spite
of being young, he opted to leave Annenahalli village and
started living in Budigere Cross with his family members. In
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CRL.A No. 1169 of 2016
this background, the accused persons coming to the house of
the deceased, having non-vegetarian dinner and alcohol served
by PW-1 (wife of deceased Govindaswamy) and thereafter
going to the garden in an inebriated state are all improbable.
This is also one of the circumstances where the prosecution
theory cannot be believed.
25. It is also relevant to note at this stage that M.Os.1,
3 and 4 were not stained with blood as per Exs.P34 to P36, FSL
reports. It is not in dispute that PW-22 (police constable) has
stated in his evidence that when accused No.1 removed the
decapitated head of the deceased from the bag, he did not see
blood stains on the clothes of the accused as well as on his
hand. This is contrary to the version of PW-20 and PW-23.
They have stated that after accused No.1 removed the
decapitated head, M.Os.13 and 14 (knife and chopper), that
place was cleaned by removing the blood stains on the next
morning. This clearly indicates that the investigation conducted
by the IO right from the beginning till the end, there is no chain
of links and therefore, the prosecution has not proved its case
beyond reasonable doubt. These material aspects have not
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CRL.A No. 1169 of 2016
been properly considered by the learned Sessions Judge while
convicting the accused.
26. Our view is fortified by the dictum of the Hon'ble
Supreme Court in the case of LOCHAN SHRIVAS .v. STATE
OF CHATTISGARH1. Paragraphs 13, 14, 15, 16, 48, 49, 53
and 57 are relevant and are extracted hereunder:
"13. The law with regard to conviction in
cases based on circumstantial evidence has been
very well crystalised in the celebrated case of
Hanumant, son of Govind Nargundkar v. State of
Madhya Pradesh (1952 SCR 1091). 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
2021 SCC Online SC 1249
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CRL.A No. 1169 of 2016
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 ([1984] 4 SCC 116), 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.
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CRL.A No. 1169 of 2016
It may be noted here that this Court
indicated that the circumstances
concerned "must or should" and not
"may be" established. There is not
only a grammatical but a legal
distinction between "may be
proved" and "must be or should be
proved" as was held by this Court in
Shivaji Sahabrao Bobade v. State of
Maharashtra [(1973) 2 SCC 793 :
1973 SCC (Cri) 1033 : 1973 Crl LJ
1783] where the observations were
made : [SCC para 19, p. 807 : SCC
(Cri) p. 1047] "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
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CRL.A No. 1169 of 2016
(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."
27. The Hon'ble Supreme Court while dealing with the
provisions of Sections 436 and 302 of IPC and Section 106 of
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CRL.A No. 1169 of 2016
the Evidence Act in the case of PARUBAI .v. STATE OF
MAHARASHTRA2 reported in 2021 SC 3784, considering
circumstantial evidence, has held in paragraphs 13 to 19 as
under:
"13. The position of law is well settled that
the links in the chain of circumstances is
necessary to be established for conviction on the
basis of circumstantial evidence. This has been
articulated in one of the early decisions of this
Court in the case of Sharad Birdhichand Sarda v.
State of Maharashtra, (1984) 4 SCC 116. The
relevant paragraphs are as hereunder:
-"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
AIR 2021 SC 3784
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CRL.A No. 1169 of 2016
"must be or should be proved" as
was held by this Court in Shivaji
Sahabrao Bobade v. State of
Maharashtra where the
observations were made: [SCC
para 19, p. 807: SCC (Cri) p.
1047] 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.
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154. These five golden principles, if we
may say so, constitute the panchsheel of
the proof of a case based on
circumstantial evidence.
159. It will be seen that this Court while
taking into account the absence of
explanation or a false explanation did
hold that it will amount to be an
additional link to complete the chain but
these observations must be read in the
light of what this Court said earlier viz.
before a false explanation can be used as
additional link, the following essential
conditions must be satisfied:
(1) various links in the chain of
evidence led by the prosecution
have been satisfactorily proved,
(2) the said circumstance points to
the guilt of the accused with
reasonable definiteness, and
(3) the circumstance is in
proximity to the time and situation.
160. If these conditions are fulfilled only
then a court can use a false explanation
or a false defence as an additional link to
lend an assurance to the court and not
otherwise. On the facts and
circumstances of the present case, this
does not appear to be such a case. This
aspect of the matter was examined in
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Shankarlal case where this Court
observed thus: [SCC para 30, p. 43: SCC
(Cri) p. 322] "Besides, falsity of defence
cannot take the place of proof of facts
which the prosecution has to establish in
order to succeed. A false plea can at best
be considered as an additional
circumstances, if other circumstances
point unfailingly to the guilt of the
accused."
14. Further the mere suspicion would not be
sufficient, unless the circumstantial evidence
tendered by the prosecution leads to the
conclusion that it "must be true" and not "may be
true". In that regard, it is necessary to take note
of the decision of this Court in the case of Devilal
Vs. State of Rajasthan (2019) 19 SCC 447,
wherein this Court on noting the decision of the
case Sharad Birdhichand Sarda (supra) has held
as hereunder;
"17. It has further been considered by this
Court in Sujit Biswas v. State of Assam
2013(12) SCC 406 and Raja v. State of
Haryana 2015(11) SCC 43. It has been
propounded that while scrutinising the
circumstantial evidence, a court has to
evaluate it to ensure the chain of events is
established clearly and completely to rule
out any reasonable likelihood of innocence
of the accused. The underlying principle is
whether the chain is complete or not,
indeed it would depend on the facts of each
case emanating from the evidence and
there cannot be a straightjacket formula
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CRL.A No. 1169 of 2016
which can be laid down for the purpose.
But the circumstances adduced when
considered collectively, it must lead only to
the conclusion that there cannot be a
person other than the accused who alone is
the perpetrator of the crime alleged and
the circumstances must establish the
conclusive nature consistent only with the
hypothesis of the guilt of the accused.
18. On an analysis of the overall fact
situation in the instant case, and
considering the chain of circumstantial
evidence relied upon by the prosecution
and noticed by the High Court in the
impugned judgment, to prove the charge is
visibly incomplete and incoherent to permit
conviction of the appellants on the basis
thereof without any trace of doubt. Though
the materials on record hold some
suspicion towards them, but the
prosecution has failed to elevate its case
from the realm of "may be true" to the
plane of "must be true" as is indispensably
required in law for conviction on a criminal
charge. It is trite to state that in a criminal
trial, suspicion, howsoever grave, cannot
substitute proof.
19. That apart, in the case of
circumstantial evidence, two views are
possible on the case of record, one pointing
to the guilt of the accused and the other
his innocence. The accused is indeed
entitled to have the benefit of one which is
favourable to him. All the judicially laid
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CRL.A No. 1169 of 2016
parameters, defining the quality and
content of the circumstantial evidence,
bring home the guilt of the accused on a
criminal charge, we find no difficulty to
hold that the prosecution, in the case in
hand, has failed to meet the same."
15. In that backdrop, a perusal of the
judgment passed by the Session's Court as well as
the High Court in the instant case, for its ultimate
conclusion has made suspicion the reason for
rendering conviction without there being any
strong basis. The suspicion, however strong,
cannot take the place of proof. Unfortunately, with
the nature of observations made by the High
Court as extracted above, it has ultimately held
that the prosecution has established beyond
reasonable doubt that it is the appellant only who
has set the deceased Mandabai and her children
on fire with a view to remove them from her
marital life with accused No.2. If the facts as
noted by the High Court lead to such suspicion,
equally there are also circumstances which raise a
doubt whether the appellant can be held guilty
only because she was not injured in the incident.
In that regard, what is to be noted is that the
natural human conduct is that when there is any
incident or accident the immediate reaction is to
get away from the scene and save oneself. If in
the middle of the night for whatever reason there
was fire and if the appellant had woken up and
noticed it a little earlier, the natural conduct is to
run out of the house instead of going into the
house which is burning to check on the other
inmates. It takes a person lot of courage or be
overdriven with compassion to get back into the
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CRL.A No. 1169 of 2016
house to save somebody else and not doing so
may be considered as morally wrong for not
coming to the aid of fellow human being in
distress, but it cannot be a circumstance to hold a
person guilty of a crime which is as serious as
murder unless the other circumstances in the
chain point to the accused so as to lead to an
irresistible conclusion of being guilty.
28. On a meticulous examination of the evidence on
record, it is clear form the evidence of PWs-1, 4, 7, 20, 23 and
27 that there are so many glaring omissions and contradictions
in their evidence and the entire case of the prosecution appears
to be most improbable. It is true that with the passage of time,
witnesses would deviate from the version given in the police
statement on account of fading memory to some extent, and a
reasonable relaxation can be given to such discrepancies. But
when they make the very foundation of the prosecution case
shaky, the Court will have to take a strict note thereof. On an
elaborate reading of the evidence of the material witnesses for
the prosecution, it is seen that the discrepancies are so glaring
and conspicuous that they make the entire prosecution theory
unbelievable.
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29. It is well settled that there is no embargo on the
Appellate Court reviewing the evidence upon which an order of
conviction is based. The golden thread which runs through the
web of 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. The paramount consideration of the Court is to
ensure that miscarriage of justice is prevented. A miscarriage
of justice which may arise from acquittal of the guilty is no less
than from the conviction of an innocent.
30. In the present case, the complainant, PW-4 has not
supported the prosecution case. PW-19 who sold the chopper
to accused No.1 according to the prosecution theory, also did
not support the prosecution case. Therefore, motive and
preparation to commit the murder is not satisfactorily proved.
Moreover, in the absence of any mahazar drawn by PW-20 or
PW-23 when accused No.1 is said to have come to the police
station along with the bag containing decapitated head and
M.Os.13 and 14, or any recording in the Station House Diary, it
has to be firmly held that the prosecution theory is highly
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improbable. Apart from that, material witnesses, viz., PWs-2,
3, 4, 5, 6, 8 to 15, 17 and 19 having turned hostile, we are of
the considered opinion that the prosecution has not proved its
case beyond reasonable doubt.
31. It is also relevant to note here that the case of the
prosecution focuses only on accused No.1. There is absolutely
no material on record to prove the involvement of accused No.2
to convict him under the provisions of Section 302 read with
Section 34 of IPC when the learned Sessions Judge took the
view that both the accused persons need to be acquitted under
the provisions of Section 201 read with Section 34 of IPC.
Admittedly, the State has not challenged the said acquittal of
accused Nos.1 and 2. This is also one of the strong
circumstances to hold that the prosecution case is doubtful.
32. For the reasons stated above, the point raised in
the present appeal is answered in the negative holding that the
learned Sessions Judge is not justified in convicting the accused
persons for the offence punishable under the provisions of
Section 302 read with Section 34 of IPC and consequently in
awarding the sentence of imprisonment for life and a fine of
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Rs.1,00,000/- payable by each of the accused. Thus, the
impugned judgment of conviction and order of sentence is
liable to be set aside.
33. In view of the above, we pass the following
ORDER
(i) The appeal filed by accused Nos.1 and 2 is hereby
allowed.
(ii) The impugned judgment of conviction and order of
sentence dated 09.06.2016 on the file of the learned
Principal Sessions Judge, Kolar, in S.C.
No.171/2013 for the offence punishable under
Section 302 read with Section 34 of IPC is hereby
set aside. Accused No.1-S.Shekar @ Dasa and
accused No.2-Santhosh are hereby acquitted of the
aforesaid charge.
(iii) Since accused No.1 is said to be in jail, the
jurisdictional jail authorities are hereby directed to
release him forthwith, if he is not otherwise required
in any other case.
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(iv) The bail bonds executed by accused Nos.1 and 2
stand cancelled.
(v) Registry is directed to communicate the operative
portion of this order to the concerned jail authorities
forthwith.
Sd/-
JUDGE
Sd/-
JUDGE
Pages 1 to 9 gss/-
10 to end vgh/-
