Karnataka High Court

Moodalagiri Gowda K T vs State Of Karnataka on 31 January, 2022

Bench: B.Veerappa, M G Uma

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    IN THE HIGH COURT OF KARNATAKA AT BENGALURU

         DATED THIS THE 31ST DAY OF JANUARY, 2022

                            PRESENT

            THE HON'BLE MR. JUSTICE B. VEERAPPA

                             AND

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

             CRIMINAL APPEAL NO.1649/2018


BETWEEN:

MOODALAGIRI GOWDA K T
@ MOODALAGIRI RAJA @ RAJA @ K T RAJA,
S/O K. T. THIMME GOWDA,
AGED ABOUT 37 YEARS,
R/O KARIGONDANAHALLI - 572 215.
DANDINASHIRA, HOBLI,
DAMBRAHALLI, TQ: TURUVEKERE,
DISTRICT TUMKUR.
PRESENTLY AT CENTRAL PRISION (CTP9814),
BENGALURU.
                                                 ... APPELLANT

(BY SRI. B. ANAND, ADVOCATE)


AND:

STATE OF KARNATAKA
R/ BY CPI, KUNDAPURA P S,
NOW R/BY STATE
PUBLIC PROSECUTOR,
HIGH COURT BUILDING,
BENGALURU - 560 001.
                                            ... RESPONDENT


(BY SRI. K. NAGESHWARAPPA, HCGP FOR STATE/RESPONDENT)
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      THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374(2)
CR.P.C PRAYING TO SET ASIDE THE JUDGMENT AND ORDER OF
CONVICTION    DATED 11.10.2017 AND SENTENCE           DATED
13.11.2017 PASSED BY THE ADDITIONAL DISTRICT AND
SESSIONS    JUDGE,   UDUPI SITTING AT         KUNDAPURA IN
S.C.NO.53/2013- CONVICTING THE APPELLANT/ACCUSED FOR THE
OFFENCE P/U/S 302, 201, 511, 392, 404 OF IPC.

      THE APPELLANT/ACCUSED IS SENTENCED TO UNDERGO LIFE
IMPRISONMENT AND TO PAY FINE OF RS.40,000/- AND IN
DEFAULT OF PAYMENT OF FINE HE SHALL UNDERGO FURTHER
SIMPLE IMPRISONMENT FOR 2 YEARS FOR THE OFFENCE P/U/S 302
OF IPC.

      FURTHER, THE APPELLANT/ACCUSED IS SENTENCED TO
UNDERGO RIGOROUS IMPRISONMENT FOR A PERIOD OF 7 YEARS
AND TO PAY FINE OF RS.10,000/- AND IN DEFAULT OF PAYMENT
OF FINE HE SHALL UNDERGO FURTHER SIMPLE IMPRISONMENT
FOR 2 MONTHS FOR THE OFFENCE P/U/S 201 OF IPC.

      FURTHER, THE APPELLANT/ACCUSED IS SENTENCED TO
UNDERGO RIGOROUS IMPRISONMENT FOR A PERIOD OF 7 YEARS
AND TO PAY FINE OF RS.10,000/- AND IN DEFAULT OF PAYMENT
OF FINE HE SHALL UNDERGO FURTHER SIMPLE IMPRISONMENT
FOR 2 MONTHS FOR THE OFFENCE P/U/S 511 OF IPC.

      FURTHER, THE APPELLANT/ACCUSED IS SENTENCED TO
UNDERGO RIGOROUS IMPRISONMENT FOR A PERIOD OF 10 YEARS
AND TO PAY FINE OF RS.10,000/- AND IN DEFAULT OF PAYMENT
OF FINE HE SHALL UNDERGO FURTHER SIMPLE IMPRISONMENT
FOR 2 MONTHS FOR THE OFFENCE P/U/S 392 OF IPC.

      FURTHER, THE APPELLANT/ACCUSED IS SENTENCED TO
UNDERGO RIGOROUS IMPRISONMENT FOR A PERIOD OF 2 YEARS
AND TO PAY FINE OF RS.5,000/- AND IN DEFAULT OF PAYMENT OF
FINE HE SHALL UNDERGO FURTHER SIMPLE IMPRISONMENT FOR 1
MONTH FOR THE OFFENCE P/U/S 404 OF IPC.

     EXCEPT DEFAULT SENTENCE, ALL THE SENTENCES SHALL
RUN CONCURRENTLY.

     THE APPELLANT/ACCUSED PRAYS THAT HE BE ACQUITTED.

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

The appellant being the accused in S.C.No.53/2013 on

the file of the learned Additional District & Sessions Judge,

Udupi, sitting at Kundapura (herein after referred to as 'trial

Court') is impugning the judgment of conviction dated

11.10.2017 and order of sentence dated 13.11.2017,

convicting him for the offence punishable under Section 302

of IPC and sentencing to undergo life imprisonment and pay

fine of Rs.40,000/- and in default to pay fine, to undergo

further simple imprisonment for two years; under Section 201

of IPC, sentencing to undergo rigorous imprisonment for

seven years with fine of Rs.10,000/- and in default to pay

fine, to undergo further simple imprisonment for two months;

under Section 511 of IPC, sentencing the accused to undergo

rigorous imprisonment for seven years and to pay fine of

Rs.10,000/- and in default to pay fine, to undergo further

simple imprisonment for two months; under Section 392 of

IPC, sentencing to undergo rigorous imprisonment for ten

years and to pay fine of Rs.10,000/- and in default to pay

fine, to undergo further simple imprisonment for two months;

under Section 404 of IPC, sentencing to undergo rigorous

imprisonment for two years and to pay fine of Rs.5,000/- and

in default to pay fine, to undergo further simple imprisonment

for one month.

2. Brief facts of the case as made out by the

prosecution is that on 07.03.2012, PW.1 found that there was

a foul smell emitting from the canter lorry and peeped into it

by lifting the tarpaulin and found a dead body of an unknown

person. There were dried blood stains in the canter. PW.1

suspected that somebody must have murdered the unknown

person about three days earlier. Therefore, he requested

Kargal Police to register the case and to investigate into the

same. Accordingly, the Kargal Police registered FIR in Crime

No.121/2012 against unknown persons for the offences

punishable under Sections 302 and 201 of IPC.

3. During investigation, it was found that on

03.03.2012, the accused had accompanied one Siddesh.A.N.

alias Raju as the said Siddesh.A.N. was transporting paper

load from Thandavapura of Nanjangudu, Mysuru District,

which is to be delivered to Omkar Packaging Factory situated

in Koteshwara of Kundapura Taluk. In the canter lorry bearing

Reg.No.KA 41-7206, both of them reached Koteshwara in the

morning on 04.03.2012 and unloaded the paper and Siddesh

received cash of Rs.20,000/- and kept it with him. The same

was noticed by the accused who accompanied Siddesh and on

the same day at about 11.00 p.m., when canter lorry was

parked in the service road, adjacent to New Sangam

Transport Company and when the owner-cum-driver, Siddesh

was sleeping inside the canter lorry, the accused with an

intention to rob the cash of Rs.20,000/- from Siddesh,

assaulted him with a wheel spanner on his head and caused

his death. After robbing Rs.20,000/- and the mobile phone of

the deceased-Siddesh, accused has driven the canter lorry in

question up to Thrasi Beach and with an intention to destroy

the evidence of commission of the offence, thrown the mobile

handset of the deceased and abandoned the canter lorry by

the side of Kargal-Bhatkala road near the garden land

belonging to one Sathyanarayana Bhat. Thereby, the accused

committed the murder of Siddesh by assaulting on his head

with a wheel spanner, robbed Rs.20,000/-, dishonestly

misappropriated the amount, took the canter lorry and

abandoned it by the side of the road covering the dead body

with a tarpaulin, took the mobile handset of the deceased and

threw it separately. Thereby, the accused caused

disappearance of evidence of the offence and committed the

aforesaid offences. Accordingly, charge sheet came to be filed

by the Investigating Officer against the accused. The learned

Magistrate took the cognizance of the offence, secured the

presence of the accused and committed the matter to the

learned Sessions Court. The trial Court secured the presence

of the accused, framed charges and read over to the accused

in the language known to him, who pleaded not guilty for the

charges leveled against him for the above said offences and

claimed to be tried.

4. In order to prove the case of the prosecution, it

has examined as many as 28 witnesses as PWs.1 to 28 and

got marked Exs.P1 to P48 and material objects MO.1 to

MO.22. The accused denied all the incriminating materials

available on record in his statement recorded under Section

313 of Cr.P.C., but has not chosen to lead any evidence in

support of his defence. The trial Court, after taking into

consideration all these materials on record, came to the

conclusion that the prosecution is successful in proving the

guilt of the accused beyond reasonable doubt and has

accordingly passed the impugned judgment of conviction and

order of sentence.

5. Being aggrieved by the impugned judgment of

conviction and order of sentence passed by the trial court, the

accused is before this Court.

6. We have heard the learned counsel for the

parties.

7. Sri. B.Anand, learned counsel for the

appellant/accused contended that the impugned judgment of

conviction and order of sentence passed by the trial court is

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

contention of the prosecution that the accused had made

extra judicial confession with PW.12 cannot be accepted. The

evidence of PW.14 who stated that he had last seen the

deceased in the company of the accused is not believable as

the same is artificial. The statement of this witness was

recorded about a month after the date of the incident. The

recovery of MO.14 and MO.15 at the instance of the accused

is not proved. In fact, the mobile phone belonging to the

deceased was said to have been recovered from PW.4. There

is absolutely no material to connect the accused to the

offence in question. However, accused was apprehended

about one month after the incident, that too at Bhadravathi

Railway Station. Since there are no legal evidences placed

before the Court to prove the guilt of the accused, he is

entitled to be acquitted. The evidence produced by the

prosecution is full of contradictions and the same cannot be

relied on to convict the accused. Therefore, he prays for

allowing the criminal appeal by setting aside the impugned

judgment of conviction and order of sentence passed by the

trial Court.

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

Court Government Pleader supporting/justifying the impugned

judgment of conviction and order of sentence passed by the

trial Court, submitted that the case of the prosecution rests

on circumstantial evidence. PW.12 deposed before the trial

Court regarding extra judicial confession made by the accused

after commission of the offence. PW.14 an independent

witness categorically stated that he had last seen the

deceased in the company of the accused. Moreover, under the

spot mahazar-Ex.P17, the incriminating materials i.e., MO.15

and MO.16 were recovered at the instance of the accused.

PW.19 supported the recovery of the incriminating materials

at the instance of the accused. The MO.15-the iron wheel

spanner and MO.16-the shirt produced by the accused were

blood stained. PW.21-the Doctor who conducted postmortem

examination opined that the death of the deceased was due to

head injury sustained. Under such circumstances, the

prosecution is successful in proving the entire chain of

circumstances and connecting the accused to the offence in

question. Thereby, it has proved the guilt of the accused

beyond reasonable doubt. There are no reasons to interfere

with the impugned judgment of conviction and order of

sentence passed by the trial Court. Therefore, he prays for

dismissal of the criminal appeal as devoid of merits.

9. In view of the rival contentions urged by learned

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

consideration in this appeal is:

"Whether the appellant/accused has made out a case to interfere with the impugned judgment of conviction and order

of sentence passed by the trial Court, in the facts and circumstances of the case?"

10. We have given our anxious consideration to the

arguments advanced by the learned counsel for the parties

and perused the entire materials on record including the Trial

Court records carefully.

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

re-appreciate the entire materials on record it is relevant to

consider the evidence of the prosecution witnesses and the

documents relied upon.

(i) PW.1-Rajendra is the informant who lodged the first information as per Ex.P1. He had noticed the dead body of the deceased inside the canter lorry from which a foul smell was emitting and informed the police by filing the first information. This witness is also a witness to the spot mahazar-Ex.P2 and seizure of MO.1 to MO.11.

(ii) PW.2-Dhayananda.K.V., is the friend of the deceased-Siddesh who identified the dead body of the deceased-Siddesh.

(iii) PW.3-M.N.Rakesh, is the relative of deceased-Siddesh had deposed that he had exchanged his MAXX mobile with the deceased and identified the said mobile handset as MO.12, which was with the deceased.

(iv) PW.4-Rajesh Devadiga, is a chance witness who deposed that on 05.03.2012, he found MO.12, the mobile handset near Thrasi Beach on the service road near NH.66 and he started using it. Later he came to know that the mobile handset belongs to the person who was murdered.

Ex.P4 is the spot mahazar drawn in presence of this witness where MO.12 was found.


(v)     PW.5-Nagaraja Bettin, is the Managing
        Director/owner      of        Omkar         Packaging

Factory and stated that on 04.03.2012, a canter lorry loaded with paper had came from Mysuru and on that day he was not present in the Factory. On 05.03.2012, when he came to the Factory and saw some vouchers on the table and on enquiring the same with his Manager, he came to know about unloading of paper and payment of Rs.10,500/- made to the

driver of the canter lorry bearing Reg.No.K-47-726. The invoice issued in that regard is at Ex.P5 and receipt is Ex.P6.

(vi) PW.6-Dinesh is an employee working in Omkar Packaging Factory who stated that the canter lorry bearing Reg.No.KA-41-

7206 had came to the Factory on 04.03.2012. Since it was a Sunday, he refused to unload the papers. However, subsequently, he unloaded the papers and received Rs.10,500/- from the owner of the Factory and the same was paid to the driver of the canter lorry. Witness stated that the person who came in the lorry was fair and lean and was aged about 30-35 years, who was the driver of the lorry and another person was dark in colour, aged about 35-40 years. The voucher and the receipt are as per Exs.P5 and P6. This witness identified the accused as one of the person who had came in the lorry and unloaded the paper on 04.03.2012. During cross-examination, this witness stated that he cannot identify all the persons who visit the factory. Witness stated that he had stated before the police that one person was fair and thin and the other person was

dark and hefty. Witness admitted that the accused who was in the Court is not a hefty person. However, he denied the suggestion that he is deposing falsely.

(vii) PW.7-Pradeep is a coolie in Omkar Packaging Factory and stated that on 04.03.2012 the canter lorry bearing Reg.No.KA-41-7206 had came to the Factory with two persons in it. One person was hefty and other one was lean, aged about 25 years. They unloaded the paper. Witness identified the accused before the court and stated that he is one of the person who came in the canter lorry.

During cross-examination, witness admitted that the accused who was in the court is not a hefty person. However, he denied the suggestion that he is deposing falsely.

(viii) PW.8-Nirvana Swamy is the father of the deceased-Siddesh who identified the dead body of the deceased and stated that he got released the canter lorry, mobile and watch of the deceased from the court.

(ix) PW.9-Mariyaiah is the First Division Assistant in the Taluk Office, Byluru and

deposed that during first week of March- 2012, deceased-Siddesh had called him and enquired about his property.

Subsequently, he had not called him. Then this witness came to know that the deceased-Siddesh is murdered.

(x) PW.10-Sarvotthali stated that he is doing transport business and deceased-Siddesh had introduced himself as the owner of canter lorry bearing Reg. No.KA-41-7206. Witness further stated that occasionally the deceased-Siddesh used to transport articles in his canter lorry. Later he came to know that deceased-Siddesh has been murdered.

(xi) PW.11-Manjunatha, the employee of Shreerama Transport Company, deposed that the accused was appointed as a driver in the said Company during the year 2009. Since the accused caused an accident, he left the job. However, the accused was in touch with him over phone. Accused had also requested for a rented house and had given Rs.500/- as advance. On 17.03.2012, the police informed that the accused has murdered one person and asked the details of the accused. On

16.03.2012, the accused had informed him that he has caused the murder of Siddesh on 04.03.2012 and robbed the cash from him. He also informed that he had received a call suspecting to be from the police and therefore, he destroyed the SIM card and purchased the new mobile number, he had also got back Rs.500/-

which he had paid as advance. This witness was treated partially hostile and during cross-examination by the learned prosecutor, witness denied the suggestion that he had given statement as per Ex.P10.

(xii) PW.12-Shivakumar Swamy is the star witness to the prosecution, who stated that he knows the accused since 10 years. Very frequently they used to party. During March-2012, the accused had invited him to Chamundeshwari Wines, which was situated at Gubbi. Accordingly, he had gone there from Thornahalli and had dinner with the accused. Accused repaid Rs.500/- which was due to him and informed that he has caused murder of his friend in a canter lorry at Mangaluru National Highway. Thereafter, he gave a lift to the accused in his two-wheeler. This

witness identified the accused before the Court.

(xiii) PW.13-S.M.Wasim is the Transporter in Kundapura. Witness deposed that during March-2012, the police have visited his transport office along with a person and enquired as to whether the said person had come to his office earlier. But he could not identify the said person.

Witness also stated that he cannot identify the accused before the Court. Therefore, the witness was treated hostile and the learned prosecutor cross examined the witness. During cross-examination, witness denied the suggestion that he has given statement as per Ex.P11.

(xiv)    PW.14-Ramesh        Kundar         is     also   a
         transporter in Kundapura.          He has stated

that during the year 2012, two persons came to his office. One person was lean and fair whereas the other was dark and hefty. They enquired as to whether there is any load to be transported. They sat in his office for sometime watching TV and thereafter went away. Witness stated that about a month thereafter, the police have shown one of the person and asked

whether he can identify him. Witness stated that the said person was the same person who visited his office who was dark and hefty. He identified the said person as accused before the Court.

(xv) PW.15-Suresh Bettin is the owner of Omkar Packaging Factory. Witness stated that he prepares paper box and he purchased roll paper for packs from Nanjanagudu. During March-2012, the paper load from Mysuru had arrived to his office at Koteshwara. Since it was a Sunday, no coolies were available.

However, he arranged for unloading the paper load. The driver and another person had accompanied him and unloaded the paper load. He paid Rs.10,500/- to the Driver. Witness identified the delivery receipt as per Ex.P12 and the cash receipt as per Ex.P6 and the Tax Invoice is as per Ex.P13, which were issued by his office.

(xvi) PW.16-Mohan Naika is panch witness to Ex.P2-the spot mahazar where the dead body of the deceased was found. Witness stated that the police have seized tarpaulin, chappal and other belongings related to the dead body of the deceased.

Witness stated that he was also present when the inquest mahazar as per Ex.P14 was drawn.

(xvii) PW.17-Huligowda is the relative of the deceased-Siddesh. Witness stated that he identified the dead body of deceased- Siddesh, which was found in the canter lorry. There was bleeding injury on his head. The inquest mahazar as per Ex.P14 was drawn in his presence and had taken the dead body to perform last rites.

(xviii) PW.18-Nagaraj is the mahazar witness to Ex.P4. Witness stated that the police had taken him to the spot where the mobile was found and PW.4-Raju Devadiga was also brought to that spot. Witness stated that the police took his signature to the document with regard to seizing of mobile through PW4 - Raju Devadiga. However, witness stated that he cannot identify the said mobile phone.

(xix) PW.19-K.A.Kumarswamy, the witness, who stated that he was summoned by the Investigating Officer to the police station. Witness further stated that the accused had given voluntary statement before the

police and he produced the driving licence relating to one Mahadeva and railway ticket. The same was seized by the police under seizure mahazar-Ex.P16. Later the accused led them to the industrial area in Koteshwara and showed the place where the paper was unloaded. He also showed the spot where he committed murder of Siddesh. Thereafter, the accused went towards a bush by the side of the road and produced a shirt and iron tool. The same was seized under Ex.P17. Witness identified the spanner produced by the accused as MO.15 and the blood-stained shirt as MO.16. Witness identified the mahazar drawn in his presence as Ex.P18. Witness also identified the photos at Exs.P21 to P33, which were taken in the police station where the canter lorry in question was parked.

(xx) PW.20-Shivananda, the police constable, Sagara police station. Witness stated that he carried 17 articles to the Davangere FSL, for examination. The report is as per Ex.P34.

(xxi) PW.21-Dr.Chidananda.P.S. who conducted postmortem examination of the deceased-

Siddesh. Witness stated that on 08.03.2012 between 10.30 a.m. to 11.30 a.m., he conducted such examination. The dead body was decomposed and was emitting foul smell. The clothes which were found on the dead body was packed, sealed and labeled individually. Then the same were handed over to the police. He noticed five external injuries as noted in the postmortem report marked as Ex.P35. He opined that the death of the deceased was due to head injury sustained. Witness further stated that the Investigating Officer had sent a spanner rod on 11.07.2012 and sought his opinion as to whether the death of the deceased could be caused if he was hit by the said spanner rod. Witness also sated that he verified the spanner rod and gave his opinion as per Ex.P36. Witness identified the said spanner rod as MO.15 and stated that if the deceased was hit with the same, the injuries mentioned in the postmortem report could be caused.

Witness also identified MO.18 to MO.21 as the clothes of the deceased.

(xxii) PW.22-Gajendra Banakar is the police constable, who was deputed to look after

the dead body of the deceased in Shivamogga Medical Hospital. Witness stated that it was requested to the head of forensic medicine in KIMS, Shivamogga to subject the dead body of the deceased for postmortem. Accordingly, witness stated that on 08.03.2012, the postmortem examination was held and after completion of the same, the dead body of the deceased-Siddesh as well as one titan gold colour watch along with clothes and other belongings found on the dead body was received and the body was handed over to one Huligowda and took endorsement from him. Witness identified MO.14 as the wrist watch belonging to the deceased.

(xxiii) PW.23-Prakasha is the police constable who was deputed to trace the accused. Witness stated that he along with other staff found that the mobile handset belonging to the deceased was active near Thrasi Village near Kundapura.

Accordingly, they went in search of the person who was in possession of the said mobile handset. On 13.03.2012, they traced PW.4-Rajesh Devadiga who was using the said mobile handset in question and he was apprehended and the mobile

handset was seized, which is seen in the photo-Ex.P3. On verification, it was found that the messages relating to the deceased were received in the said mobile. The said messages led the Investigation team to Omkar Packaging Factory and found that the lorry in question had came to Omkar Paper Factory on 04.03.2012. Thereafter, they searched for the accused and apprehended him in Bhadravathi Railway station and produced him before the Investigating Officer.

(xxiv) PW.24-Dr. Bhargavi, the Scientific Officer, Regional Forensic Science Laboratory, Davanagere, deposed before the court that she had examined the articles sent to her and she issued the report as per Ex.P38.

(xxv) PW.25-Sundara, who was the head constable of the Sagara Rural Police Station, handed over the case file along with the seized articles to the station house officer of Kundapura Police Station on 19.04.2012 as the investigation was transferred to the said police station on the basis of the jurisdiction.

(xxvi) PW.26-Madhappa, the police inspector deposed that on 07.03.2012, when he was proceeding to Shivamogga court to give his evidence in a criminal case, on the way he received phone call from ASI, Kargal Police Station and informed that an unidentified dead body is said to have been found in a canter. Accordingly, he directed the said ASI to visit the spot. Subsequently, he also went to the spot and inspected the canter lorry bearing Reg.No.KA-41-7206 and noticed the dead body of a male who died unnaturally. The inquest mahazar was drawn as per Ex.P14, the clothes and other articles found therein were seized as per MO.1 to MO.11, the canter lorry was also seized. Statements of witnesses were recorded, spot sketch was drawn, the photos was taken at the spot at Exs.P40 to P45. Spot mahazar was drawn as per Ex.P2, the seized articles were forwarded to Regional Forensic Science Laboratory (RFSL). Witness further stated that he enquired PW.4 on 13.03.2012 as he was using the mobile handset belonging to the deceased and the SIM card was seized in the presence of CW.35 and PW.18 under the

mahazar Ex.P4. He enquired several witnesses and recorded their statements and received opinion from the Doctor about the cause for death. Witness also stated that on 04.04.2012, the accused was produced before him and his voluntary statement was recorded as per Ex.P47 and on the basis of the voluntary statement, the accused lead him along with PW.19 and CW.38 to the Sangam Transport and had showed the place where he assaulted the deceased.

Mahazar as per Ex.P17 was drawn, the accused took out a Jack Lever-MO.15. Accused has also shown the place where he thrown the mobile handset and the place where he abandoned the canter lorry as there was no diesel in the canter lorry to drive further. A detailed mahazar was drawn and thereafter, the accused was produced before the learned Magistrate.

(xxvii) PW.27-Madan Gaonkar is the Police Inspector, Kundapura Police Station. Witness stated that he took up further investigation in the matter after the same was transferred from Kargal Police Station and registered the FIR in Crime.No.121/2012. The accused was

taken into police custody. Witness further stated that the accused again showed the places which he has shown to the Investigating Officer and mahazars were drawn. The accused was produced before the learned Magistrate. He received the RFSL report as per Ex.P38. Since there were sufficient materials to connect the accused to the offence in question, he filed charge sheet against the accused.

Witness stated that he received chemical analysis report as per Ex.P46 and the opinion of the Doctor as per Ex.P36.

(xxviii) PW.28 is the Dr. N.L.Lingegowda, the Scientific Officer. Witness stated that he has received 14 seized articles from the Investigating Officer in Crime No.21/2012 of Kargal Police Station and subjected the articles for an examination. He issued Ex.P46.

12. The trial Court on the basis of these materials on

record, proceeded to convict the accused for the offences

punishable under Sections 302, 201, 511, 392 and 404 of IPC

and sentenced him as stated above.

13. Even though the prosecution examined as many

as 28 witnesses in support of its contention, it is not in

dispute that the case of the prosecution rests on

circumstantial evidence as there are no eye-witnesses to the

incident. Initially, the FIR was came to be registered against

an unknown person after finding the dead body in

decomposed stage, inside the canter lorry, beneath the

tarpaulin, emitting foul smell. The inquest mahazar and

postmortem report substantiates the contention of the

prosecution that the death of the deceased was a homicidal

death.

14. To connect the accused to the offence in question,

the prosecution will have to prove the circumstances relied on

by it. The first lead found by the Investigation Officer is the

mobile handset said to be belonging to the deceased and the

same was being used by the PW.4. This witness categorically

stated that he found the said mobile by the side of the service

road attached to NH.66 near Thrasi Beach. During cross-

examination, this witness stated that he had not informed

about this fact to the police and admitted that he signed Ex.P4

in the police station.

15. PW.6-Dinesh is an important witness to the

prosecution, who is the Manager of Omkar Packaging Factory

and stated about unloading of the paper load from the canter

lorry in question and payment of Rs.10,500/- made to the

lorry driver. Witness stated that he had given the description

of two persons who were in the canter lorry but during cross-

examination, witness stated that since several vehicles and

persons visit his factory on daily basis, it is not possible for

him to identify any such person. Witness further stated that

he had given the description of the person who accompanied

the deceased as he was dark and hefty. Witness admitted that

the accused before the court is not hefty and he is not in a

position to identify him.

16. PW.7-Pradeepa is a coolie working in Omkar

Packaging Factory, who has deposed similarly as deposed by

PW.6. During cross-examination, this witness also stated that

the accused who is before the court is not hefty and he cannot

identify all the persons who visit the Factory.

17. PW.12-Shivakumar Swamy, who is the friend of

the accused with whom the accused said to have made extra

judicial confession about causing the death of the deceased.

During cross-examination, this witness stated that

immediately after the accused making extra judicial

confession about causing the death of the deceased, he had

not informed the police nor he informed the police when they

called him over phone. Witness stated that about 3-4 days

thereafter, the police have apprehended him but denied the

suggestion that he is deposing falsely as the police have

threatened him.

18. PW.14-Ramesh Kundar, who is also running

Transport Company said to have seen the deceased and the

accused together and identified the accused as he

accompanied the deceased when they both visited his

Company. During cross examination, witness admitted that

accused who is present before the court is not hefty as

described by him and also stated that he cannot identify each

and every person who visits his office and when he read the

news of unnatural death of unknown person in the canter

lorry, he suspected whether the said news is about two

persons whom he had seen in his office. But, he never

expressed his suspicion before the police or his friends.

19. PW.15-Suresh Bettin is the other witness who

identified the accused as he was running the Omkar

Packaging Factory and deposed that he had paid Rs.10,500/-

to the deceased-Siddesh after unloading the paper and issued

the Tax Invoice as per Ex.P13 and receipt as per Ex.P6. Even

this witness during cross-examination, categorically stated

that none of the transaction with the accused or unloading of

the material took place in his presence.

20. Under these circumstances, the evidences of none

of the above witnesses lead by the prosecution to prove that

the accused was last seen in the company of the deceased is

not proved by the prosecution.

21. PW.19-K.A.Kumarswamy is the witness to the

recovery mahazar Exs.P16 to P18. Witness stated that the

accused had given voluntary statement and lead the

Investigating Officer and the mahazar witnesses to various

places and stated that he had assaulted the deceased with an

iron spanner and caused his death. Witness also stated that

the said iron spanner and the blood-stained shirt were

identified as per MO.15 and MO.16, which were seized in his

presence under Ex.P17. The documents relating to the

deceased were seized under Ex.P16 those documents are as

per Ex.P19 and P20. During cross-examination, witness stated

that the accused had produced the material objects on the

basis of his voluntary statement. But denied the suggestion

that since he was the member of Sagara Panchayath his

signatures were taken on the mahazars. Even though

recovery of the incriminating materials at the instance of the

accused will be a strong piece of circumstantial evidence to

link the accused to the offence in question, the evidence of

PW.19 is not sufficient to establish this link in the chain of

circumstances. Moreover there is no corroboration of the

evidences of this witness.

22. The next material witnesses are PW.4 and PW.23

who have spoken about the seizure of the mobile handset -

MO.12 under the mahazar of Ex.P4, the same would not link

the accused to the offence in question.

23. Even though the prosecution examined PW.21 and

24, their evidence is helpful only to prove the contention that

the death of the deceased was unnatural and it was a

homicidal death.

24. Since the prosecution is relying on three

circumstances i.e., extra judicial confession said to have been

made by the accused regarding causing of the death of the

deceased with PW.12; the deposition made by PW.14 that the

deceased was last seen in the company of the accused and

recovery of MO.15 and MO.16 i.e., spanner and blood-stained

shirt of the accused at the instance of the accused under

Ex.P17. The extra judicial confession spoken to by PW.12 do

not inspire confidence in the mind of the court. Similarly, the

evidence of PW.14 to the effect that he has last seen the

deceased in the company of the accused also cannot be

believed as all these witnesses specifically stated that the

description of the person who accompanied the deceased is

not tallying with the accused who is before the court and none

of these witnesses have identified the accused with certainty

as the person who accompanied the deceased.

25. The last circumstance relied on by the prosecution

is the recovery of the incriminating materials i.e., MO.15 and

MO.16 at the instance of the accused. Ex.P17, the seizure

mahazar describes that the accused had stated that the shirt

worn by him at the time of incident was blood-stained and the

wheel spanner used for assaulting the deceased was also

blood stained, both these articles were thrown by him in a

gutter and the same were seized at his instance. These

articles are identified as MO.15 and MO.16 and were sent for

chemical examination to RFSL, Davanagere and the report

from the lab is as per Ex.P46. Strangely as per this report, the

shirt is identified as article-13 and iron wheel stunner is

identified as article-14, which were not stained with blood.

Article Nos.1 to 12 were only stained with blood and those

articles were seized from the spot where the dead body was

found. There is absolutely no explanation as to how these

MO.15 and MO.16 were not stained with blood even when it is

the specific contention of the prosecution that they were

stained with the blood when the accused committed the

offence.

26. It is the settled proposition of law that when the

prosecution case is based on circumstantial evidence, the

prosecution has to prove all such circumstances so as to fully

establish the guilt of the accused and enable the court to

come to the conclusion regarding the guilt of the accused.

Such circumstances from which the conclusion of the guilt is

to be drawn should be fully established and it should be

consistent only with one hypothesis that is the guilt of the

accused. Such circumstance should be conclusive and there

should not be any room for a reasonable suspicion. We are

supported by the decision of the Hon'ble Supreme Court in the

case of BRAJENDRASINGH v. STATE OF MADHYA PRADESH

reported in AIR 2012 SC 1552, wherein, the Hon'ble Supreme

Court has held in Paragraphs-16 and 17, which reads as

under:

"16. There is no doubt that it is not a case of direct evidence but the conviction of the accused is founded on circumstantial evidence. It is a settled principle of law that the prosecution has to satisfy certain conditions before a conviction based on circumstantial evidence can be sustained. The circumstances from which the conclusion of guilt is to be drawn should be fully established and should also be consistent with only one hypothesis, i.e. the guilt of the accused. The circumstances should be conclusive and proved by the prosecution. There must be a chain of events so complete so as not to leave any substantial doubt in the mind of the Court. Irresistibly, the evidence should lead to the conclusion inconsistent with the innocence

of the accused and the only possibility that the accused has committed the crime. To put it simply, the circumstances forming the chain of events should be proved and they should cumulatively point towards the guilt of the accused alone. In such circumstances, the inference of guilt can be justified only when all the incriminating facts and circumstances are found to be incompatible with the innocence of the accused or the guilt of any other person. Furthermore, the rule which needs to be observed by the Court while dealing with the cases of circumstantial evidence is that the best evidence must be adduced which the nature of the case admits. The circumstances have to be examined cumulatively. The Court has to examine the complete chain of events and then see whether all the material facts sought to be established by the prosecution to bring home the guilt of the accused, have been proved beyond reasonable doubt. It has to be kept in mind that all these principles are based upon one basic cannon of our criminal jurisprudence that the accused is innocent till proven guilty and that the accused is entitled to a just and fair trial. [Ref. Dhananajoy Chatterjee v. State of W.B. [JT 1994 (1) SC 33 : (1995 AIR SCW 510)]; Shivu & Anr. v. R.G. High Court of Karnataka [(2007) 4 SCC 713 : (AIR 2007 SC (Supp) 556 : 2007 AIR SCW 1808)]; and Shivaji @ Dadya Shankar Alhat v. State of Maharashtra [AIR 2009 SC 56 : (2008 AIR SCW 6925)].

17. It is a settled rule of law that in a case based on circumstantial evidence, the prosecution must

establish the chain of events leading to the incident and the facts forming part of that chain should be proved beyond reasonable doubt. They have to be of definite character and cannot be a mere possibility".

27. To base the conviction of the accused on

circumstantial evidence, the circumstances proved by the

prosecution should be of sterling quality and all the links in

the chain of circumstances should be established to form a

complete chain. The Hon'ble Apex Court while considering the

proof of the guilt of the accused on the basis of the

circumstantial evidence in the case of LOCHAN SHRIVAS v.

STATE OF CHHATTISGARH, 2021 SCC ONLINE SC 1249,

referred to its several decisions, to highlight the law with

regard to conviction in cases based on circumstantial evidence

held that unless the circumstances are fully established and

such circumstances unless consistent only with the hypothesis

of the guilt of the accused and further unless the chain of

circumstances is complete, referred to its earlier decision in

SHARAD BIRDHICHAND SARDA v. STATE OF

MAHARASHTRA (1984) 4 SCC 116, where five golden

principles were laid down to be followed to record a conviction

on the basis of circumstantial evidence and observed in

Paragraphs-13, 14, 15 and 16 as under:

"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 Pradesh1. A three-Judge Bench of this Court, speaking through Mehr Chand Mahajan, J., observed thus:

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

that within all human probability the act much have been done by the accused."

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

15. Subsequently, this Court in the case of Sharad Birdhichand Sarda v. State of Maharashtra2, observed thus:

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

(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established.

It may be noted here that this Court indicated that the circumstances concerned "must or should" and not "may be"

established. There is not only a grammatical but a legal distinction between "may be proved" and "must be or should be proved"

as was held by this Court in Shivaji Sahabrao Bobade v. State of Maharashtra [(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

(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.

28. Thus, the position of law with regard to conviction

of the accused based on the circumstantial evidence is very

well settled. Higher duty is cast on the prosecution to

establish the circumstances with certainty, which is consistent

only with the hypothesis of the guilt of the accused, it should

be conclusive in nature and the chain of such circumstances

should be complete. Unless the five golden principles referred

to as panchsheel of the proof of the case, based on

circumstantial evidence are satisfied, conviction of the

accused for the offence may not be recorded.

29. If the above principle - panchsheel is applied to

the case on hand, we have to conclude that the said golden

principles are not satisfied by the prosecution to record the

conviction of the accused. Mere probabilizing the guilt of the

accused is not sufficient to convict the accused. It is also well

settled proposition of law that the suspicion, however grave it

may be, cannot take the place of proof beyond reasonable

doubt.

30. We have gone through the impugned judgment of

conviction and order of sentence passed by the trial Court. It

has proceeded to convict the accused solely on the basis of

evidences of PW.12 and PW.14 i.e., extra judicial confession

made by the accused and the last seen theory put forth by

the prosecution. The evidence of these witnesses would not

lead to a conclusion which is consistent only with the

hypothesis of the guilt of the accused. There is no

corroboration of the evidence of these witnesses. Under such

circumstances, it cannot be said that the prosecution is

successful in proving the guilt of the accused beyond

reasonable doubt. The golden Rule of criminal justice system

is that when the prosecution is not successful in proving the

guilt of the accused beyond reasonable doubt or in other

words if the case is made out by the prosecution gives rise to

a reasonable doubt, the benefit of such doubt is to be

extended to the accused. When two views are possible, from

the materials placed before the court; one in favor of the

prosecution and the other in favour of the accused, the view

favoring the accused is to be taken by the Court. That being

the position of law, we are of the opinion that the prosecution

has failed to prove the guilt of the accused beyond reasonable

doubt. The benefit of doubt has to be extended to the accused

and he is to be acquitted. The trial Court has committed an

error in convicting the accused for the above said offences on

the basis of shabby materials that are placed before the

Court. Hence, the impugned judgment of conviction and order

of sentence is liable to be set aside and the accused is entitled

to be acquitted.

In view of the discussions held above, we answer the

above point in the affirmative and pass the following:

ORDER

(i) The above Criminal Appeal is allowed.

(ii) The impugned judgment of conviction and order of sentence dated 11.10.2017 made in S.C.No.53/2013 on the file of the Additional District and Sessions Judge, Udupi, sitting at Kundapura, is hereby set-aside.

(iii) The appellant/accused is hereby acquitted for the offences punishable under Sections 302, 201, 511, 392 and 404 of the Indian Penal Code.

(iv) The jail authority concerned, is directed to release the appellant/accused immediately, if he is not required in any other case, after following the existing Standard Operating Procedure.