Soma @ Somanna vs State Of Karnataka
2022 Latest Caselaw 8598 Kant

                                                 R
                           1


   IN THE HIGH COURT OF KARNATAKA AT BENGALURU

         DATED THIS THE 13TH DAY OF JUNE, 2022

                       PRESENT

       THE HON'BLE MR. JUSTICE K.SOMASHEKAR

                          AND

THE HON'BLE MR. JUSTICE SHIVASHANKAR AMARANNAVAR

             CRIMINAL APPEAL No.453 OF 2016

BETWEEN:
SOMA @ SOMANNA
S/O LATE KALAPPA
AGED ABOUT 50 YEARS
A K COLONY
HUNASAMARANAHALLI
JALA HOBLI, YELAHANKA
BANGALORE - 560065.
                                         ...APPELLANT

(BY SRI. CHANDRASHEKAR R.P., ADVOCATE)

AND:
STATE OF KARNATAKA
BY CHIKKAJALA POLICE STATION,
HIGH COURT BUILDING COMPLEX,
BANGALORE - 560001
(REPRESENTED BY
LEARNED STATE PUBLIC PROSECUTOR).

                                       ...RESPONDENT

(BY SRI VIJAYAKUMAR MAJAGE, ADDL. SPP )
                             2


     THIS CRIMINAL APPEAL IS FILED U/S.374(2)
CR.P.C BY THE ADVOCATE FOR THE APPELLANT
PRAYING THAT THIS HON'BLE COURT MAY BE PLEASED
TO SET ASIDE THE JUDGMENT AND ORDER DATED
19.08.2015 AND SENTENCE DATED 27.08.2015 PASSED
BY THE V-ADDL. DISTRICT AND SESSIONS JUDGE,
DEVANAHALLI,     BANGALORE   RURAL     DISTRICT,
BANGALORE IN S.C.NO.136/2013 - CONVICTING THE
APPELLANT/ ACCUSED FOR THE OFFENCE P/U/S 302
OF IPC.

    THIS CRIMINAL APPEAL COMING ON FOR
DICTATING JUDGMENT THIS DAY, K.SOMASHEKAR J.,
DELIVERED THE FOLLOWING:


                       JUDGMENT

This appeal is directed against the judgment of

conviction and order of sentence rendered by the Trial

Court in SC.No.136/2013 dated 19.08.2015 whereby

acquitted the accused for the offences punishable under

Section 201 IPC but convicted the accused for the offences

punishable under section 302 IPC, 1860. Whereas the

appellant is seeking intervention and to consider the

grounds urged in this appeal and to set aside the judgment

of conviction rendered by the trial court in so far as the

offence under Section 302 IPC and consequently, to acquit

accused.

2. Heard the learned counsel Sri Chandrashekar

R.P. for the appellant/accused and the learned Additional

SPP for the State. Perused the judgment of conviction and

order of sentence rendered by the trial court in SC

No.136/2013.

3. The factual matrix of the appeal are as under:

P.W.1 - Thammanna is husband of P.W.5 - Smt.

Anitha. They had a daughter namely, Harshitha, aged

about 4 years; Ashwathareddy is the father of PW.5-

Smt.Anita and he was working as a Watchman; PW.6 is

mother of PW.5 Anitha. Due to missing of their daughter

Harshitha, criminal law was set into motion by filing of

complaint in Crime No.170/2012 whereby FIR came to be

registered. The case was registered by PW2.6-Head

Constable of Yelahanka Police Station. Subsequent to

registration of crime and also registering the FIR in the

Office of Deputy Commissioner of Police, North East

Range, Bengaluru, the case in Crime No.69/2012 was

registered in Chikkajala Police Station for the offences

punishable under Sections 302 and 201 of IPC, 1860,

whereby FIR was registered by PW.27-Thippeswamy being

Police Inspector of Chikkajala Police Station and the FIR

relating to that crime was submitted to the jurisdictional

court of JMFC, Devanahalli. PW.1 and PW.5 were

searching for Harshitha who was aged about 4 years. On

28.06.2012 that the brother of PW.5 by name Harish who

got information about the dead body of a person near

Kodagalahatti pond. Subsequently, that PW1-Thammanna

and Harish went to the said spot and found the dead body.

The face of the dead body was defaced and the mud block

was kept on the dead body. PW1-Thammanna identified

the dead body of his daughter Harshitha and

subsequently, he went to Chikkajala Police Station and

gave the statement to police that the body was found in the

Kodagalahatti pond. Based upon his statement as per

Ex.P26, criminal law was set into motion by registering

Crime No.69/2012 based on the missing complaint of a

girl by name Harshita aged 4 years.

4. Subsequent to registration of case in Crime

No.69/2012, investigation was taken up by PW.27 who

conducted mahazar as per Ex.P1 in the presence of PW1,

PW2 and PW4 and during the mahazar MO.3 to MO.5 have

been seized from the spot relating to the case in the Crime

No.69/2012. PW27 is the Investigating Officer who made

inquest of the dead body of Harshitha in the presence of

the panch witnesses. He also recorded the statement of

PW5-Smt. Anitha and CW.8 Harish who is none other than

the brother of PW.5-Smt. Anitha. Photos of the dead body

of the girl were taken as per Exs.P3 to P5. Subsequent to

completion of investigation done by PW.27 being an

investigating officer relating to the case in Crime

No.69/2012 of Chikkajala police Station, charge sheet

came to be laid against the accused before the committal

court i.e., Court of JMFC, Devanahalli and the case in

C.C.No.1058/2013 was registered against the accused for

the offences punishable under Section 302 and 201 of IPC,

1860. Subsequent to passing of a committal order as

contemplated under Section 209 of Cr.P.C. by following the

requisite provisions of Cr.P.C., case was committed to the

court of session for trial. Accordingly the case in SC

No.136/2013 has been registered by the Court of Principal

District and Sessions Judge at Bangalore Rural District,

Bengaluru.

5. Subsequent to registration of the case, the

same has been entrusted to the Court of Fast Track Court

at Devanahalli which is in the jurisdiction of Bangalore

Rural District, Bengaluru whereby the accused was

secured for facing of the trial in the aforesaid case and the

Presiding Officer of the Fast Track Court, Devanahalli in

SC No.136/2013 having heard on charge by the Public

Prosecutor and the defence counsel, framed charges

against accused for the offences under Sections 302 and

201 r/w 34 of IPC, 1860.

6. Subsequent to framing of charge and

registering the case against the accused, the accused was

put on trial whereby the prosecution in support of its case,

examined 29 witnesses as PW.1 to PW.29 and got marked

several documents at Ex.P1 to P42 and also got marked

material objects as MOs.1 to M5.

7. Subsequent to closure of evidence on the side of

prosecution, statement of the accused came to be recorded

as under Section 313 Cr.P.C. for enabling the accused to

answer to the evidence. It is seen from the materials on

record that even the trial was concluded and after

recording the incriminating statement against the accused

but accused had filed two applications under Sections 311

of Cr.P.C. to recall PW.1 to PW.29 wherein the prosecution

had seriously objected for consideration of the said

applications and after hearing the Public Prosecutor and

defence counsel, the trial court rejected the applications

filed by the accused under Section 311 of Cr.P.C. by

passing a detailed order dated 01.10.2014. Subsequently,

the accused challenged the said order by approaching the

High Court by filing a case in Crl.P.7418/2014. After

hearing the arguments in the aforesaid criminal Petition

filed by the accused, the said petition came to be allowed

by order dated 24.04.2015 whereby accused was permitted

to cross-examine PW11 to PW15 and it was also made

clear that accused shall cross-examine the said witnesses

whenever they are present. During the hearing of the said

criminal petition before the High Court accused restricted

his prayer to cross-examine PW.s11 to 15 and the same

came to be allowed. Pursuant to the order passed by the

High Court of Karnataka the trial Court secured the

presence of PW.12, PW.14 and PW.15 and those witnesses

were cross-examined. But PW.13 was said to have left his

house in Hunasamaranahalli and he was said to be

residing in the limits of Chennai. The servicing agency

could not get the whereabouts of PW.13 and produce him

for the purpose of evidence in pursuance of the order

passed by this Court. Therefore, PW13 being a witness,

was not subjected to cross-examination, but only PW12,

PW.14 and PW.15 were cross-examined. Subsequent to

closure of evidence on the part of the prosecution, the

accused was subjected to examination as contemplated

under Section 313 of Cr.P.C. and whereby accused

declined the truth of the evidence of the prosecution

adduced so far. Subsequent to closure of the evidence on

the part of the prosecution and also the cross-examination

of the witnesses, the Trial Court heard the arguments

advanced by the prosecution and the argument advanced

by the defence counsel and on appreciation of the evidence

of PW12, PW13, PW14 and PW15 inclusive of the evidence

of PW26, PW27 and PW28 who laid the charge sheet

against the accused before the committal court, thereafter,

committed the case to the Session Court for trial. But

PW27 who is Investigation Officer in part and PW28 who is

also Investigation Officer in part, but PW27, 28, 29 are the

official witnesses and so also the evidence of the PW23

being a Doctor who conducted autopsy over the dead body

of Harshitha and issued the post mortem report at Ex.P19

and based on the evidence facilitated by the prosecution,

the Trial court rendered conviction judgment in respect of

the offences punishable under Sections 302 of IPC, 1860

but acquitted the accused for the offence under section

201 of IPC.

8. Initially, the case was registered by Yelahanka

Police Station in Crime No.170/2012 whereby missing

complaint has been registered in respect of missing of girl

namely Harshitha aged about 4½ years and PW26 who

registered the case based on Ex.P14 - FIR. PW.26 who has

subscribed his signature at Ex.P25 as per Ex.P25(a), PW1

Thammanna and PW26 Investigation Officer in part

relating in Crime No.170/2012 and their evidence has

been corroborative to each other in respect of a missing of

a girl namely Harshitha aged about 4 ½ years. But the

case in Crime No.69/2012 came to be registered by PW.27

whereby registering FIR as Ex.P27 who subscribed his

signature which marked as Ex.P27(a). But evidence of

PW1, so also, evidence of PW27 being an Investigating

Officer relating to the case Crime No.69/2012 registered by

the Chikkajala Police Station and based upon the evidence

of those witnesses, the Trial Court rendered conviction

judgment for the offence under Section 302 of IPC 1860. It

is this judgment, which is challenged under this appeal, by

urging various grounds.

9. Learned counsel Sri Chandrashekar.R.P, has

taken us through the evidence of PW11 to PW15. But

PW11 who speaks about the contents at Ex.P11 of seizure

mahazar and also MO.2 pair or Silver Anklet alleged to

have been recovered at the instance of the accused. In the

cross-examination he admits that he does not know the

contents of Ex.P11and that his signature was taken by the

police, thus making it evident that the alleged recovery at

the instance of the accused is doubtful. Therefore, when

the doubt arises in the mind of the court, the benefit of

doubt should be always in favour of the accused. To

corroborate the evidence of PW11-Poojappa, PW15 -

Jagadeesha who is a cashier in the wine shop from where

the silver anklet was seized as per Ex.P11 and in the cross

- examination he stated that the police brought the said

anklet when they came to the wine store and he

subscribed his signature as per Ex.P11(a). Therefore,

even on close scrutiny of the evidence of this witness in its

entirety, it is found to be unreliable and thus making the

circumstance of recovery of silver anklet belonging to the

deceased Harshitha is doubtful circumstance. The entire

case of the prosecution is based on the circumstantial

evidence. But the trial court has erroneously arrived at a

conclusion despite the chain and the link of the

circumstances having not been proved by the prosecution

by relying upon a cogent evidence in an heinous offence of

Section 302 of IPC 1860.

10. The second limb of the argument that has been

advanced by the learned counsel for the appellant is that

even though the prosecution has been subjected to the

examine several witnesses and also got marked several

documents inclusive of material objects, it is the duty cast

upon the prosecution to prove guilt against the accused

beyond reasonable doubt. But the trial court had given

more credentiality to the evidence of PW13, PW14 and

PW15. But the aforesaid evidence is full of doubt and also

inconsistent to each other. Therefore, in this appeal it

requires consideration of the grounds urged in the appeal

and acquit the accused for the aforesaid offence by setting

aside the judgment of the conviction rendered by the Trial

Court in SC No.136/2013.

11. The counsel who has addressed his arguments

by referring to the evidence of PW13 relating to the last

seen theory that in his examination in chief, he supports

the case of the prosecution of having last seen the

deceased in the company of the accused. But this witness

did not turn up for cross-examination his examination in

chief remained as not cross-examined. Therefore, his

examination in chief alone without there being any cross-

examination cannot be construed as evidence. The

prosecution did not elicit any evidence with regard to

acceptability in respect of the murder of the deceased

Harshitha aged about 4 ½ years being the daughter of PW1

Thammanna and PW5 Anitha. But the Trial Court, in

spite of the trite position has relied on his examination in

chief which has not been cross-examined at all. Therefore,

his evidence does not fall within the purview of definition of

evidence and only examination in chief cannot be looked

without there being any cross-examination. But the trial

Court has given more credentiality to the evidence of the

PW13 and the case ended in acquittal for the offence

punishable under Section 201 of IPC 1860 with regard to

disappearance of the evidence in order to screening from

the legal punishment.

12. But, PW.13, who is also one the material

witnesses on the part of the prosecution to prove last seen

theory, in his examination in chief he states that the police

came to his shop-bakery along with the accused and he

states that the accused had come with the girl at the said

point of time. But in the cross-examination he admits that

he does not know the girl and police never showed him any

photograph of the girl to cross check or establish the

identity of the deceased girl who came with the accused.

13. Further it is contended that another

circumstance in respect of extra judicial confession made

to PW12 which is not reliable as it is belated and the Court

below has not relied on the said circumstance. It is

contended that the prosecution has not facilitated

worthwhile evidence, even in consideration in respect of

extra judicial confession made by the accused to PW12

namely, Amalu, but based upon the complaint made by

the said Amalu, the case in Crime No.2/2013 came to be

registered and whereby there was misbehaviour of this

accused with her daughter namely Sindhu but case in SC

No.136/2013 was registered and the case was disposed of

following relevant provisions of Cr.P.C. whereby the

accused served the sentence as has been held by the Trial

court. But the Trial Court had given more credentiality to

the evidence of PW12-Amalu based upon her complaint

came to be registered in Crime No.2/2013 by the

Chikkajala Police Station but PW13 and PW14 are the

material witnesses to the last seen theory, but their

evidence is found to be doubtful to the evidence of PW12.

PW15-Jagadeesha is also panch witnesses in respect of

PW11 of seizure mahazar; PW5 Anitha is mother of the

deceased Harshitha; PW6-Rathnamma is grandmother of

the deceased Harshitha. PW7-Krishnappa, PW8-Nagaraja,

PW9-Bylamma; and PW10-Venkataswamy were also

subjected to examination on the part of the prosecution

but they did not withstood the version of their statement

relating to missing of girl aged about 4 years namely

Harshitha and the accused causing the murder of the

deceased as narrated in the theory of the prosecution by

laying charge sheet. PW.3 is one of the Panch witness and

in his presence inquest mahazar at Ex.P2 as has been held

by the Investigating Officer i.e. PW25 who laid the charge

sheet against the accused. But in totality of the

circumstances of the case, even on close scrutiny of the

evidence of PW11, PW12, PW13, PW14 and PW15, these

witnesses on the part of the prosecution, only PW.12,

PW14 and PW15 were permitted to be cross-examined and

that their evidence also did not corroborated to each other.

The circumstances have not been proved and there are

several missing links in the chain of circumstances. The

defective investigation carried out by the Investigating

agency goes to the root of the matter and the entire case of

the prosecution is found to be shaky. Even there was a

delay in apprehending the accused and the same has not

been explained on the part of the prosecution. Even

though the accused was facing of a trial for the offence

punishable under Section 302 of IPC 1860, the judgment

of conviction rendered by the Trial Court is full of

infirmities. In the case on hand, the Trial Court, without

giving any credentiality to the inconsistencies and

infirmities and also not corroborating evidence even in the

generality of circumstances, the same should be without

giving any room for suspicion about the case. Therefore, it

requires to be re-visited by re-appreciating the evidence, if

not, the accused who is the gravamen of the accusation

would be the sufferer and also there shall be some

substantial miscarriage of justice. On this premise the

learned counsel for appellant / accused seeking

intervention for re-appreciation and to consider the

grounds as urged and to set aside the judgment of

conviction rendered by the Trial Court in SC No.136/2013

and consequently, acquit the accused of the offences

punishable under Section 302 of IPC 1860.

14. On the other hand, the learned SPP for State

has taken us through the evidence of PW1, PW5 and PW6

to submit that there was no sort of enmity between them

and accused and they have not even thought of the death

of Harshitha aged about 4 ½ years. The dead body of

Harshitha was found in the limits of Chikkajala police

Station and complaint was registered in that police station,

but the police could not get any clue till the apprehension

of the accused by Yelahanka Police and the police have

acted only on the information given to them by the

accused. Therefore, it cannot be even believed that

Chikkajala Police, with an intention to close the file, have

foisted false case against the accused in respect of missing

girl namely Harshitha and done her to death by the person

arraigning as accused. PW12-Amalu who is a complainant

and the case in Crime No.2/2013 came to be registered

whereby there was a misbehaviour by this accused with

her daughter namely Sindhu even though it cannot be

believed that to complete the investigation the Chikkajala

police have laid charge sheet against the accused relating

to the death of the deceased Harshitha aged about 4 years.

15. The accused who committed certain illegal acts

on one Sindhu who is the daughter of PW12-Amalu and

whereby disclosed the involvement of this accused in the

present incident and also done to her death. But on the

corroborative evidence made by the accused the relevant

material evidence which was collected during the course of

the investigation, so also, the evidence relating to the

commission of the offence by accused, there are no

reasons to discard it. This was the observation made by

the Trial Court while rendering judgment of conviction for

the offences under Section 302 of IPC. It appears that

accused who misbehaved with Sindhu who is daughter of

PW12, have also been misbehaved with Harshitha aged 4

years who is daughter of Thammanna. Even according to

his report, PW23-Doctor could not get any evidence while

conducting post mortem on the dead body of Harshitha,

since insects have eaten the private part of the deceased,

but held the accused himself have taken the said girl

namely Harshitha with an intention of murdering her or

assaulting her. As there is no evidence to that effect even

on the prosecution side, on an assumption the accused

cannot be convicted. This submission even though made

by the learned defence counsel but the trial court had

given more credentiality to the evidence of PW1, PW5 and

PW6 inclusive of PW12-Ammulu and also PW13 and PW14

relating to the last seen theory but on oral, as well as,

documentary evidence on the part of the prosecution, the

case was proved by the prosecution against the accused

with the deceased girl namely Harshitha aged about 4

years, having purchased chocolate in the Bakery. But

confession which made by the accused and led the

investigating agency to the places where the accused which

was marked as MO2 and the same was recovered at the

instance of the accused but the silver anklet of the

deceased Harshitha said to have been sold by him for an

amount of Rs.200/- and whereby PW15 who is cashier in

the wine shop has given evidence. The prosecution has

proved that missing of the deceased Harshitha and also

finding of the dead body Harshitha who is aged about 4

years in that place. The said circumstances undoubtedly

prove that accused has caused the death of Harshitha who

is aged about 4 years. These are all the evidence that has

been elicited by the prosecution and the same has been

closely screened by the Trial Court and so also appreciated

the evidence in all angles and therefore, it does not call for

any interference and there is no warranting circumstances

that arise for intervention and there is no perversity or any

illegality in the order passed by the presiding officer of the

Fast Track Court, Devanahalli rendering conviction

judgment for the offence under Section 302 of IPC 1860.

On all these premise, the learned Additional SPP for State

submitted that the appeal be dismissed as devoid of

merits.

16. In the background of the contention made by

the learned counsel for the accused namely Sri

Chandrashekar.R.P, so also, the counter argument made

by the learned Additional SPP for State, the undisputed

facts are that PW5-Anitha is none other than the mother of

the deceased Harshitha aged about 4 years; father of PW5

was working as a watchman and the accused is an

employee by avocation as a mason. Accused was not

regularly attending to duty. Therefore, the father of PW5

made him to remove from his service and because of that

accused developed some enmity against the father of PW5

that he took revenge, allegedly, by killing his grand

daughter namely Harshitha who is aged about 4½ years.

To prove the aforesaid circumstances on the part of the

prosecution, the prosecution had examined PW19 namely,

M.C.Keshavamurthy, being a contract worker in Yelahanka

Airport but he identified accused and also started to use to

develop enmity and also attending his duty as a

watchman, but there developed some quarrel with the

other workers and the grandfather who informed about the

said fact and also nature of the accused and thereafter he

has removed from services as a mason. But PW5 and PW6

have been subjected to examination on the part of the

prosecution and in their evidence they have stated that the

accused said to have confessed before the Chikkajala

Police Station about the committal of alleged offence, i.e.

the murder of Harshitha who is aged about 4 years.

17. PW.16 being the police constable who handed

over MO.2 that to Chikkajala Police Station and also given

a report, but he is not material witness on the part of the

prosecution but even his evidence where it can be of some

help in arriving at a conclusion that the prosecution has

proved the guilt against the accused beyond all reasonable

doubt relating to MO2-silver anklet that was handed over

to Chikkajala Police Station.

18. In the case on hand, the prosecution requires to

prove the case against the accused by facilitating

worthwhile evidence. But MO.2 - Silver Anklets which was

seized at the instance of the accused it is to be termed as

confession of the accused and it is recovery. But PWs.1 to

6 have been subjected to examination and also identified

MO.2 - Silver Anklets belongs to the deceased. But

accused did not explain how that MO.2 - Silver Anklets

came to his possession which belonged to deceased - aged

about 4½ years. But the entire case relies upon

circumstantial evidence.

19. PW.15 in his evidence has specifically stated that

he was working as a cashier in Kalpatharu Wine Shop and

about one and half year prior to his evidence, accused and

police came to his wine shop to return silver anklets which

is marked as MO.2 and the cashier of Kalpatharu Wine

Shop had paid Rs.200/- for selling the silver anklets to

him and he identified his signature at Ex.P11(a) and so

also photograph of his shop as well as himself as per

Ex.P12 and 13. PW.15 was not subjected to examination

on the part of the prosecution when his evidence was

recorded that a prudent man would discard the evidence of

PW.15 when the evidence was not subjected to cross-

examination. But the investigating agency has subjected

to cross-examination the photograph of all them came to

the Kalpatharu Wine Shop. But in the evidence he has

stated that accused was regular customer of his wine

shop. But in the cross-examination even this witness has

been subjected to examination but he has not disclosed

the true facts in the cross-examination in the heinous

offence of Section 302 of IPC. The entire case of the

prosecution has been is based upon the evidence of

PWs.12, 13, 14 and 15. But PW.26 is the Head Constable

and PW.27 - Tippeswamy who is the investigating officer in

part PW.28 - Paramesha investigated the case and laid the

charge sheet against the accused. PW.29 - Munikrishna is

the investigating officer in part and they are official

witnesses and they had given evidence on part of the

prosecution.

20. PW.12 - Smt.Amalu who has given evidence on

the part of prosecution and whereby she has stated in her

evidence in connection of the accused with the death of girl

namely Harshitha who is aged about 4 ½ years. But in her

evidence her daughter Sindhu was attending Anganawadi

School situated in Hunasamaranahalli village. But PW.9 -

Bylamma being wife of the accused was working in the

said Anganawadi School as Anganawadi worker. About

one year three months prior to this incident, one day

Sindhu went to Angawadi in the morning hours and came

at 1.30 p.m. Subsequent to attending nature call she

started feeling crying due to pain and PW.12 - Amalu

found injuries on her private parts and went to PW.9

house and enquired about her daughter Sindhu. Neither

PW.9 nor Sindhu disclosed anything in this regard. Then

she went to hospital with Sindhu and while returning

Sindhu saw the accused and told PW.12 - Amalu that he

tried to molest her and caused hurt to her private parts.

PW.12 - Amalu went to PW.9 house and narrated the

incident which stated by her daughter - Sindhu and also

told about illegal acts of accused. At that time accused

alleged threatening her if she tried to file a complaint

regarding the incident which was stated by her daughter -

Sindhu and Sindhu has to face the same consequence as

that of another girl whom he had alleged to killed near

Kodagalahatti pond. PW.12 - Amalu had launched criminal

prosecution by filing complaint before Yelahanka Police

Station. Accordingly, criminal law was set into motion and

Xerox copies of the complaint was produced in the charge

sheet and got marked in the cross-examination of PW.12

as per Ex.P42. PW.9 further stated that PW.12 - Amalu

came to her house in search of her daughter - Sindhu.

Thereafter she came to know that dead body of a girl was

found near Kodagalahatti pond. Even PW.12 - Amalu was

subjected to examination on the part of the prosecution

whereby the accused has threatened her prior to filing of

the complaint or subsequent to filing of the complaint.

But in her evidence she has stated that prior to the filing of

the complaint accused had threatened her. But in the

suggestion made by her she has not given any such

statement to the police and she has denied that Ex.P42 it

is specifically that the accused threatened her but said fact

is not material contradiction in this case. This observation

is also made by the trial Court while rendering conviction

judgment for the offence under Section 302 of IPC.

Therefore, even though not such importance to be given

regarding the point of time that the accused threatened

PW.12 - Amalu. In the instant case, accused voluntary

disclosed about killing of girl namely Harshitha and her

dead body was found near Kodagalahatti pond.

21. Whereas, the involvement of the accused as well

as case relating to the circumstantial evidence it is

required to refer Section 27 of Indian Evidence Act, 1872.

This is applicable only if confessional statement leads to

discovery of some new fact. Relevance is limited as relates

distinctly to fact thereby discovered and for the

applicability of Section 27 the statement must be split into

its components and to separate the admissible portion.

Only those components or portions which were the

immediate cause of discovery would be legal evidence and

not the rest which must be exercised and rejected. The

fact discovered in an information supplied by the accused

in his disclosure statement is a relevant fact and that is

only admissible in evidence if something new is discovered

or recovered from the accused which was not within the

knowledge of police before recording the disclosure

statement of the accused. But under Section 27 of the

Indian Evidence Act, 1872 it is not necessary that a

disclosure statement must be signed by maker of the same

or that thumb impression must be affixed to it. However,

Section 26 of Indian Evidence Act, 1872 relating to

confession by accused while in custody of police not to be

proved against him. Whereas in this provision that no

confession made by any person whilst he is in the custody

of a police officer, unless it be made in the immediate

presence of a Magistrate shall be proved as against such

person. However, keeping in view Sections 26 and 27 of

Indian Evidence Act, 1872 it must require to re-appreciate

the evidence regarding to the contents at Ex.P11 of the

seizer mahazar and also not that mahazar at MO.2 - Pair

of silver anklets belongs to the deceased has been seized as

not confession statement made by the accused and also

made before PW.15 being cashier of Kalpatharu Wine Shop

and accused had lead the investigating agency to

Kalpatharu Wine Shop and at his request MO.2 - Pair of

silver anklets have been seized by the investigating officer

by drawing mahazar as per Ex.P12 and also not that

mahazar investigating officer has seized MO.2 - Pair of

silver anklets. In the given facts and circumstances of the

case and also trial faced by the accused under the

circumstantial evidence as well as last seen theory in the

case of Anwar Ali and Another Vs. State of Himachal

Pradesh (2020) 10 SCC 166 whereby the Hon'ble

Supreme Court has addressed scope of Sections 302, 392,

420, 401 and 34 of IPC. The murder trial insofar as

circumstantial evidence. The prosecution failing to

establish and prove complete chain of events -

contradictions and lacunae in prosecution case noted by

the trial Court, held, were not minor in nature - Acquittal

restored. In the instant case, dead body of Harshitha who

is the daughter of PW.1 - Thammanna and PW.5 - Anitha

was found in Kodagalahatti pond and that on 28.06.2012

brother of PW.5 namely Harish got information about the

dead body was found near Kodagalahatti pond. Thereafter

they went to the spot and found dead body of a girl and

also identified the dead body of girl as her daughter. Then

PW.1 went to Chikkajala Police Station and based upon his

narration of the identification of the dead body and on his

statement at Ex.P26, criminal law was set into motion by

registering the case in Cr.No.69/2012 for the offences

punishable under Sections 302 and 201 of IPC, 1860.

22. However, at a cursory glance of the evidence of

PWs.1, 5 and 6 the trial Court without giving any cogent

and also acceptable reasons has arrived at a conclusion

the accused has caused death of the deceased - Harshitha.

But contradiction it must be concerned by the trial Court

and it given by thrown out even though it is minor

contradiction, it is the domain vested with the trial Court

to justify and assign justifiable reasons even not believing

the statement made by the accused. Mere because of

MO.2 - Pair of silver anklets it is disclosed statement of the

accused and even confession made by the accused but the

trial Court did not give more credentiality to such kind of

the evidence facilitated by the prosecution. However, it is

domain vested with the prosecution, insofar as the trial it

is to be the circumstantial evidence that links in the chain

of circumstances it must be established, if not, certainly

case may be ended in acquittal and also extending benefit

of doubt to the accused.

23. In the instant case, trial Court had given more

credentiality to the evidence of PWs.1, 5, 6 inclusive of

evidence of PWs.11, 12, 13, 14 and 15. But having found

that the prosecution has failed to established its case and

prove complete chain of events and that it is

circumstantial evidence reasons it should have been given

by the trial Court. But it is domain vested with the trial

Court that if any doubt arises in the mind of Court and

when there are clouds of doubt on the part of the

prosecution, the benefit of such doubt should always be in

favour of the accused alone.

24. Section 3 of the Indian Evidence Act, 1872 is

relating to proved, disproved and not proved. Even last

seen theory requires corroboration. In the case of

circumstantial evidence, the onus lies upon the

prosecution to prove the complete chain of events which

shall undoubtedly point towards the guilt of the accused.

These are extensively addressed by the Supreme Court of

India in the case of Sahadevan Vs. State of Tamil Nadu

reported in AIR 2012 SC 2435. In the same reliance

observed the principle for basing a conviction on the basis

of the circumstantial evidence is that each and every

incriminating circumstance must be clearly established by

reliable and clinching evidence and the circumstances so

proved must form a chain of events from which the only

irresistible conclusion about the guilt of the accused can

be safely drawn and no other hypothesis against the guilt

is possible. Insofar as the domain vested with the Court to

scrutinise the evidence:

(i) It is the duty of the Court to scrutinise the evidence

carefully and to see that acceptable evidence is accepted.

It was addressed in judgment of 2000 Cr Lj 92 Gujarat Vs.

Gandabhai Govindbhai.

(ii) Court should adopt cautious approach for basing

conviction on circumstantial evidence. It was addressed in

judgment of State of Haryana Vs. Ved Prakash, 1994 Cr Lj

140 (SC).

(iii) Where there are material contradictions creating

reasonable doubt in a reasonable mind, such eye

witnesses cannot be relied upon to base their evidence in

the conviction of accused.

25. Even judgment of AIR 2013 SC 3344 even though

the police witnesses i.e. official witnesses if the testimony

of police officer is found to be reliable and trustworthy, the

Court can definitely act upon the same. If in the course of

scrutinising the evidence, the Court finds the evidence of

the police officer unreliable and untrustworthy, the Court

may disbelieve him but it should not do so solely on the

presumption that a witness from the department of police

should be viewed with distrust. But in the instant case,

the case in Cr.No.69/2012 was registered by Chikkajala

Police Station by recording FIR for heinous offences under

Sections 302 and 201 of IPC, 1860 whereby PW.27 took

further investigation and investigated thoroughly and

during investigation he visited the place where dead body

of a girl namely Harshitha was found and he drew

mahazar as per Ex.P1 in the presence of PWs.1, 2 and 4

and also seized MO.3 to 5 from the spot. But in the limit

of Yelahanka Police Station on the basis of Ex.P24 case

was registered in Cr.No.170/2012 regarding missing of the

said girl - Harshitha and FIR was registered by PW.26 -

Nagaraju who is the Head Constable and FIR was sent to

higher officer i.e. Deputy Commissioner of Police, North

East, Bengaluru. PW.5 - Anitha came to the house of

PW.6 - Rathnamma who is mother of PW.5 and also grand

mother of the deceased - Harshitha for the purpose of

delivery and she was residing in her house situated at

Hunasamaranahalli along with her daughter. But on

25.06.2012 in the morning hours her daughter -

Harshitha was playing in front of the house of PW.6. But

PW.5 - Anitha thought she was playing outside the house.

But after sometime PW.5 - Anitha came to know that her

daughter - Harshitha is missing from the place where she

was playing. PW.5 - Anitha searched her missing

daughter but everything went on vain as she was not

traceable. Subsequently, missing complaint filed regarding

missing of Harshitha was filed by her father / PW.1 -

Thammanna at Yelahanka Police Station. On the basis of

Ex.P24, criminal law was set into motion by registering the

case in Cr.No.170/2012 regarding missing of the

Harshitha by PW.26 - Nagaraju being Head Constable.

26. PW.12 - Amalu and her daughter namely Sindhu

was attending Anganawadi School in Hunasamaranahalli

village and whereby PW.9 - Bylamma who is none other

than the wife of the accused was working as Anganawadi

worker and accused alleged to misbehaved with Sindhu.

Sindhu had severe pain in her private parts while she was

discharging urine. On enquiry of that by PW.12 - Amalu

with PW.9 - Bylamma relating to misbehavior caused by

accused to Sindhu who is her daughter neither PW.9 nor

Sindhu disclosed anything. PW12 - Amalu went to the

house of PW.9 - Bylamma and enquired with her that

accused alleged to had caused pain and forcibly pressed

private parts of Sindhu. On information of PW.12 - Amalu

criminal law was set into motion by registering the case in

the limit of Yelahanka Police Station in Cr.No.02/2013 for

offence punishable under Section 354 of IPC, 1860. But

subsequently, PW.22 who had taken up the case for

investigation and even though PW.27 being the

investigating officer in part and then PW.28 and 29 were

also investigating officers in part and PW.28 who had

thoroughly investigated the case and laid the charge sheet.

In the instant case prosecution has given more

credentiality to the evidence of PWs.1, 5 and 6 inclusive of

evidence of PWs.11 to 15. But it is seen in the evidence of

those witnesses even while taking into account even

absence of certain explanatory notice but essential

conditions must satisfy: (i) Various links in the chain of

evidence led by the prosecution have been satisfactorily

proved. (ii) the said circumstance points to the guilt of the

accused with reasonable definiteness, and (iii) the

circumstance is in proximity to the time and situation.

However, it is relevant to refer reliance of judgment

rendered by the Hon'ble Supreme Court of India in Sharad

Birdhichand Sarda vs. State of Maharashtra reported in

(1984) 4 SCC 116 it is observed that "it is well settled that

where on the evidence two possibilities are available or

open, one which goes in favour of the prosecution and the

other which benefits an accused, the accused is

undoubtedly entitled to the benefit of doubt. In Kali Ram v.

State of Himachal Pradesh,(l) this Court made the following

observations:

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

27. In Para No.126 of the said reliance while two

ingredients have been proved but two have not. In the first

place, it has no doubt been proved that Manju died of

potassium cyanide and secondly, it has also been proved

that there was an opportunity to administer the poison. It

has, however, not been proved by any evidence that the

appellant had the poison in his possession. On the other

hand, as indicated above, there is clear evidence of PW 2

that potassium cyanide could have been available to Manju

from the plastic factory of her mother, but there is no

evidence to show that the accused could have procured

potassium cyanide from any available source. We might

here extract a most unintelligible and extra-ordinary

finding of the High Court. This observation is made by the

Hon'ble Supreme court of India.

28. But in the instant case regarding rendering

conviction judgment for the offence under Section 302 of

IPC, it is relevant to refer that there is no direct evidence

on these two points and thereafter points have been raised

in the instant case and then plethora of evidence has been

rendered by the prosecution but the domain vested with

the prosecution and it has to prove the case against the

accused beyond all reasonable doubt. When there are

clouds of doubt it cannot be arise in the mind of the Court

the doctrine of benefit it should be in favour of the accused

alone and not of the prosecution to any extent.

29. However, the case in S.C.No.136/2013 was

ended in conviction and even entire case is based upon

circumstantial evidence and since from the date of arrest

accused is in incarceration for a period of 6 years. But

there is no worthwhile evidence has been facilitated by the

prosecution to prove the guilt of the accused. Therefore, in

this appeal it requires intervention, if not, certainly the

gravamen of the accusation would be the sufferer and

there shall be some substantial miscarriage of justice. But

it is relevant to state that mere because prosecution has

rendered some sort of evidence subjected to examination of

several witnesses the domain it is vested with the

prosecution to facilitate the worthwhile evidence and it

would indicate witnesses are not being subjected to

examination. But in the instant case in pursuance of the

direction issued by the trial Court in Cr.No.69/2012 and

also permission accorded have been subjected to

examination of PWs.1, 5 and 6 are required to cross-

examination on the part of prosecution and their evidence

also required to be scrutinised closely and if there is

acceptable evidence only to consider and also consider the

evidence only if the prosecution prove the guilt of the

accused beyond all reasonable doubt. But in the instant

case there are full of infirmities and there is no

corroborative, consistent, positive and cogent evidence to

probabalise that the accused had committed murder of the

deceased by abducting or inducing by providing chocolate

and then committed her murder. Even at a cursory glance

of the entire evidence of the prosecution it indicates as that

the prosecution did not facilitate worthwhile evidence to

secure conviction for the offence punishable under Section

302 of IPC but the trial Court rendered acquittal judgment

relating to 201 IPC 1860 in respect of evidence to

scrutinize legal aspect as under Section 201 of IPC, 1860 it

is only after committing murder of the person. But in the

instant case Harshitha aged about 4½ years who is

daughter of PW.1 - Thammanna and PW.5 - Anitha was

missing from the place when she was playing in front of

the house of PW.6 - Rathnamma. Based upon the missing

complaint given by PW.1 criminal law was set into motion

by registering the case in Yelahanka Police Station.

Accused was apprehended in one case in the limit of

Chikkajala Police Station and whereby on investigation

accused confessed and also case was registered in

Cr.No.69/2012 by recording FIR and then PW.27 who is

the investigating officer in part took up the case for

investigation and thereafter the investigation was done by

PWs.27, 28 and 29 who are the official witnesses and laid

the charge sheet against the accused before the committal

Court. But at a cursory glance of evidence of PWs.27, 28

and 29 who are investigating officers in part and also

official witnesses and the investigation done by them are

found to be perfunctory investigation. Therefore, on close

scrutiny of the above material witnesses PWs.1, 5, 6

inclusive of PWs.11, 12, 13 and 14 there are some clouds

of doubts which are put in forth by the prosecution and

when the doubt has arised in the mind of the Court that

benefit of the doubt is always in favour of the accused. For

the aforesaid reasons the appeal deserves for consideration

and accused deserves to be acquitted. Accordingly, we

proceed to pass the following:

ORDER

The appeal preferred by the appellant / accused

under Section 374(2) of Cr.P.C. is hereby allowed. The

accused is in incarceration for almost 6 years 7 months

and 29 days. Consequently, for the reasons stated, the

judgment of conviction and order of sentence rendered by

the trial Court in S.C.No.136/2013 dated 19.08.2015 for

offence under Section 302 IPC, is hereby set-aside.

The appellant / accused is acquitted for the offence

punishable under Section 302 of IPC which was charged

against him.

Registry of this Court is directed to forward a copy of

the operative portion of the order to the Central Jail,

Parappana Agrahara, Bengaluru City for communication

and also for compliance. If accused is not required in any

other case, he shall be set at liberty forthwith. Accordingly,

it is observed.

Sd/-

JUDGE

Sd/-

JUDGE

KLY/RJ