Shivaprasad @ Shiva vs The State By Banasawadi Police
2022 Latest Caselaw 7257 Kant

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       IN THE HIGH COURT OF KARNATAKA AT BENGALURU

            DATED THIS THE 17TH DAY OF MAY, 2022

                           PRESENT

             THE HON'BLE MR. JUSTICE B. VEERAPPA

                             AND

             THE HON'BLE MR. JUSTICE S. RACHAIAH

                 CRIMINAL APPEAL No.573/2019

BETWEEN:
SHIVAPRASAD @ SHIVA,
S/O LATE NARASIAH,
AGED ABOUT 35 YEARS,
R/AT NARAYANAPPA'S FARM,
THAGACHAGUPPE,
KUMBALAGOD, MYSORE ROAD,
BENGAURU - 560 074,
(NOW IN JC PARAPPANA AGRAHARA
CENTRAL PRISON,
BENGALURU - 560 100.
                                                   ... APPELLANT
(BY SRI B.A.BELLIAPPA, ADVOCATE)

AND:

THE STATE BY BANASAWADI POLICE,
BENGALURU CITY, REP. BY SPP.,
HIGH COURT BUILDING,
HIGH COURT,
BENGALURU - 560 0001.
                                               ... RESPONDENT
(BY SRI K. NAGESHWARAPPA, HCGP)

                            *****
     THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374(2) OF
THE CODE OF CRIMINAL PROCEDURE PRAYING TO SET ASIDE THE
JUDGMENT OF CONVICTION AND ORDER OF SENTENCE DATED
19.03.2019 PASSED BY THE XXXII ADDITIONAL CITY CIVIL AND
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SESSIONS JUDGE FOR CBI CASES, BENGALURU, (CCH.34) IN
S.C.NO.365/2009 CONVICTING THE APPELLANT/ACCUSED FOR THE
OFFENCE PUNISHABLE UNDER SECTION 302 OF THE INDIAN PENAL
CODE.


     THIS APPEAL HAVING BEEN HEARD AND RESERVED, COMING
ON FOR PRONOUNCEMENT OF JUDGMENT, THIS DAY, B.VEERAPPA, J
DELIVERED THE FOLLOWING:-


                               JUDGMENT

The appellant/accused who has been in judicial custody since

last 13 years has filed the present Criminal Appeal against the

judgment of conviction and order of sentence dated 19.03.2019 made

in S.C.No.365/2009 on the file of the XXXII Additional City Civil and

Sessions judge and Special Judge for CBI cases, Bengaluru (CCH-34),

convicting the accused for the offence punishable under Section 302 of

the Indian Penal Code sentencing him to undergo imprisonment for life

and to pay fine of `10,000/-, in default, to undergo simple

imprisonment for a period of six months.

I. FACTS OF THE CASE:

2. It is the case of the prosecution that the deceased Thulasi, aged

about 48 years was residing along with her son-P.W.3 and daughter-

P.W.4, aged about 14 and 22 years respectively, at House No.8, 9th D

Main, I Block, HRBR Layout, Bengaluru, within the jurisdiction of

Banaswadi Police Station and her husband Ravishankar-P.W.5 being an

Engineer was staying at Abudhabi. Initially, accused was driver under

P.W.6-Ramaswamy, neighbour of the deceased, and as some

differences arose between them, P.W.6 removed the accused from

driver job. It is further case of the prosecution that at the time when

accused was working under P.W.6, he gained confidence of the

deceased and her husband, and used to visit their house. As the

husband of the deceased was in abroad, the deceased Thulasi used to

go to functions with the help of accused in his car. During such times,

the accused had seen the jewels being worn by the victim and thereby

he thought that the victim might be possessing much more jewels, as

her husband was working in abroad and hatched a plan to steal the

jewels when her children were not at home, so that he can live a

happy life by purchasing a new car. When things stood thus, on

27.06.2008, realizing that the children of the victim had went to school

and victim was alone at home, at 9.45 am, the accused entered the

house of the victim, spoke confidently with her and took a knife from

the kitchen room and stabbed her on the neck and other parts of the

body. In the scuffle, the victim snatched the knife and attempted to

assault the accused with the said knife. When the accused tried to

escape, the knife came in contact with the left cheek of the accused

and the accused sustained scratch injury on his left cheek. Thereafter,

accused went to first floor of the house and took away 905 grams of

gold kept in the godrej almirah, cash of `7,000/- and Nokia mobile

belonging to the victim, and ran away from the spot. It is further case

of the prosecution that as usual, on 27.06.2008, P.W.3-Master Akshay

Kumar, son of the deceased, aged 14 years studying in 8th Standard

and Urmila-P.W.4, daughter of the deceased, aged 22 years left for

their school and college at about 7.30 am and the victim was alone in

the house. Further, as usual, at about 4 or 4.30 pm, P.W.3/son of the

victim returned home on his bicycle and rang the cycle bell. Usually,

his mother used to come out of the house and open the gate to

receive him. Since, even after ringing the cycle bell for 5 to 10 times,

his mother did not come out, P.W.3 went inside the gate and peeped

into the house through window and noticed that his mother was lying

on the floor. He pushed the door and went inside the house and found

that his mother's face was covered with a pillow. He noticed blood on

the floor, near the neck and a blood stained blade on the other side of

the body. He was under the impression that his mother was

unconscious and therefore, poured water on her face. When there was

no response, he went out screaming, to the neighbour house i.e.,

Smt.Ragamma/P.W.2 and explained her about his mother.

Immediately, P.W.3 and PW.2 came to the house of the deceased and

called the deceased but there was no response. Thereafter, P.W.2

came out of the house of the victim saying that she would inform the

husband of the victim who was at Abudhabi. Thereafter, neighbours

gathered at the spot and somebody informed the police, who came to

the spot and saw the dead body.

3. It is further case of prosecution that, P.W.4- daughter of the

victim who was pursuing her engineering at Vemana Institute of

Technology, Koramangala, as usaual, returned home at 6.30 pm and

found that number of people had gathered infront of the house and

also noticed the presence of police. Her aunt Mangala informed that

somebody had killed her mother. Thereafter, she noticed that almirah

and wooden cupboard in the first floor were opened and scattered on

the floor and the gold ornaments were missing. She further noticed

cut injury on the neck and stab injury on the right side of the stomach

of her mother and clothes were blood stained. The Thali chain and

gold bangles were missing. Thereby, P.W.3 lodged the police

complaint as per Ex.P.1. The jurisdictional police registered a case

and after investigation filed charge sheet against the accused for the

offence punishable under Section 302 of the India Penal Code. After

committal of the matter, the learned Sessions Judge secured the

presence of the accused and framed charge for the offences

punishable under Sections 302 of the India Penal Code.

4. The trial court, by the judgment of conviction and order of

sentence dated 01.08.2012 convicted the accused for the offences

made out in Charge and sentenced him to undergo imprisonment for

life with fine. Against the said judgment of conviction and Order of

sentence, accused filed Criminal Appeal No.200/2013 and this Court by

the Judgment dated 25.06.2018, set-aside the judgment of conviction

and remanded the matter to the learned Sessions Judge with a

direction to provide an opportunity to both the parties with liberty to

file application to recall the witnesses for the purpose of further cross-

examination and to give opportunity to lead further evidence, if any,

on the additional charges framed, if needed and directed to dispose off

the matter, in accordance with law.

5. In order to prove its case, the prosecution in all, had examined

24 witnesses as P.Ws.1 to 24 and marked the documents Exs.P.1 to

P.62 and material objects M.Os.1 to 94. On behalf of the defense,

Exs.D.1 to D.6 were marked. After completion of evidence of

prosecution witnesses, the statement of the accused was recorded as

contemplated under the provisions of Section 313 of the Code of

Criminal Procedure. The accused denied all the incriminating

circumstances adduced against him by the prosecution witnesses. He

also filed separate statement stating that he was driver under P.W.6-

Ramaswamy and later on left the job. He further stated that, he was

arrested on 29.06.2008.

6. After the remand Order dated 25.06.2018 passed in Criminal

Appeal No.200/2013, P.W.1 was cross-examined, P.Ws.2, 6, 7, 8 and

11 were further examined and cross-examined. P.W.17 was further

examined and cross-examined. P.Ws.14, 9, 12 and 16 were cross-

examined, Ex.P.13(b) was got marked. P.Ws.15 and 19 were cross-

examined. P.Ws.23, 1 and 21 were further examined and cross-

examined. P.W.20 was cross-examined.

II. POINTS FOR CONSIDERATION FRAMED BY THE TRIAL COURT

7. Based on the pleadings, the learned Sessions Judge framed

three points for consideration:

(a) Whether the prosecution proves beyond all reasonable doubt that on 27.06.2008 at about 9.45 am the accused entered the house in No.308, HRBR Layout, 1st Block, 9th D Main Road, Bengaluru, and committed the murder of Smt.Thulasi by stabbing on her right side upper abdomen and over front of middle and left side of neck with a knife, thereby committed an offence punishable under Section 302 of IPC?

(b) Whether the prosecution further proves beyond all reasonable doubt that on the above said date, time and place, the accused had robbed gold ornaments about 905

gms, cash of Rs.7,000/- and Nokia Mobile belongs to the deceased, thereby committed an offence punishable under Section 392 of IPC?

(c) Whether the prosecution further proves beyond all reasonable doubt that on the above said date, time and place, the accused while committing the robbery of the things stated above used deadly weapon i.e., a knife and caused grievous injury and attempted to cause death, thereby committed an offence punishable under Section 397 of IPC?

8. Considering both oral and documentary evidence on record, the

learned Sessions Judge answered point No.1 in the affirmative and

point Nos.2 and 3 in the negative holding that the prosecution proved

beyond all reasonable doubt that on 27.06.2008, at about 9.45 am,

the accused entered the house of the victim i.e., No.308, HRBR

Layout, I Block 9th D Main, Bengaluru, and committed the murder of

Smt.Thulasi by stabbing on her on her right side upper abdomen and

over front of middle and left side of neck with knife-M.O.1 and thereby

committed an offence punishable under Section 302 of the Indian

Penal Code. The learned Sessions Judge further recorded the finding

that prosecution failed to prove beyond all reasonable doubt that on

the said date the accused had robbed 905 grams gold ornaments,

`7,000/- cash and a Nokia mobile belonging to the deceased and

thereby committed an offence punishable under Section 392 of the

Indian Penal Code, and further failed to prove that, while committing

robbery, accused used deadly weapon i.e., knife-M.O.1 and caused

grievous injuries and attempted to cause death and thereby committed

an offence punishable under Section 397 of the Indian Penal Code.

Accordingly, by the impugned judgment of conviction and order of

sentence, the learned Sessions Judge acquitted the accused for the

offences punishable under Sections 392 and 397 of the Indian Penal

Code and convicted the accused with imprisonment for life and to pay

fine of `10,000/-, in default, to undergo simple imprisonment for a

period of six months for the offence punishable under Section 302 of

the Indian Penal Code. Hence the present Criminal Appeal is filed by

the appellant/accused.

9. The State/Prosecution has not filed any appeal challenging the

impugned judgment of acquittal of the accused for the offences

punishable under Sections 392 and 397 of the Indian Penal Code.

10. We have heard the learned counsel for the parties.

III. ARGUMENTS ADVANCED BY LEARNED COUNSEL FOR THE

APPELLANT/ACCUSED

11. Sri B.A.Belliappa, learned counsel for the appellant/accused

contended with vehemence that the impugned judgment of conviction

and order of sentence passed by the learned Sessions Judge is

erroneous, contrary to the material on record and cannot be sustained.

He further contended that, the learned Sessions Judge has not

considered Ex.D.4-heinous offence report and Ex.D.5-report under

Section 146 of the Code of Criminal Procedure sent to the doctor,

which clearly prove that the dead body of deceased Thulasi was lying

in the house at 7.00 am or 7.30 am on 27.06.2008 and the evidence

of P.W.19-Cheluvaraju depicts that on the same day ACP called police

team from KG Halli police station and constituted four teams to search

and arrest the accused involved in the crime and accordingly the police

started to search the accused from 2 pm on the same day. Thereby

the investigation started even before lodging of the complaint. Inspite

of the same, the accused has been convicted for the offence

punishable under Section 302 of the Indian Penal Code, without any

basis. He further contended that the trial court erred in holding that

the appellant/accused has sustained 15 cms incised injury on the right

cheek which was caused by the deceased when the accused attacked

the deceased. Admittedly the injury was not noticed by P.W.1 who

has last seen the accused while he was coming out from the house of

the deceased. P.W.19 and other police officials arrested the accused

and P.Ws.13 and 14 are mahazar witnesses. But, the prosecution has

not examined five police constables who took the accused to the

hospital and who produced him before the doctor. Admittedly, the

doctor who treated the accused has not been examined. But, the

medical certificate discloses that the injury was on the left cheek.

Admittedly, police have not submitted any medico legal report to show

as to where the accused took the treatment. Inspite of the same,

learned Sessions Judge convicted accused for the offence punishable

under Section 302 of the Indian Penal Code, without any basis.

12. Learned counsel further contended that the learned Sessions

Judge erred in holding that the accused was in possession of mobile

phone of the deceased and the same was seized by the Investigating

Officer and collected call details to prove the movement of the accused

on the date of the incident, earlier to it and on the next date. The

learned Sessions Judge has come to the conclusion that the

prosecution has failed to prove the Charge under Sections 392 and

397 of the Indian Penal Code. The address of the accused and P.W.5

forthcoming in the call details does not tally with their residential

address. Even after seizing of phone of the accused, phone was being

used by some body. Even on 29.06.2008, calls were made from the

phone of the accused and IMEN number sent by the Investigating

Officer to the BSNL, differs from calls list. The appellant has stated

that the mobile phone No. 9972872992 does not belongs to him.

Inspite of the same, the appellant has been convicted and the same

cannot be sustained.

13. Learned counsel further contended that the statement of P.W.4

Urmila as per Ex.P.6 submitted to the ACMM Court on 29.07.2008 does

not disclose the name of the accused. Inspite of the same, the learned

Sessions Judge blindly accepted the stand of the prosecution that the

accused was in police custody from 2.00 pm on 28.06.2008. Contrary

to this, P.W.6-Rangaswamy deposed that on the date of the incident,

i.e., on 27.06.2008, accused was brought to the spot and gold items

were seized on the same day. Even according to P.W.5-Ravishankar,

all the gold items seized were seen by him in the police Station on

30.06.2008. Thereby there are contradictions, omissions and

improvements and the same is not considered by the learned Sessions

Judge. Thereby the impugned judgment conviction cannot sustained.

14. Learned counsel further contended that the learned Sessions

Judge having rightly held that accused has not robbed the gold items

or any other material objects and also not caused grievous injuries on

the body of the deceased, acquitted the accused on the said charges.

Then, what is the motive for the murder is not assigned by the learned

Sessions Judge. The tampering of FSL report, submitting of finger

print reports after 24 months and non-examination of Bengali family

whose house was situated beside the house of the deceased is not at

all considered by the learned Sessions Judge. He further contended

that the specific charge is that the accused has committed the murder

of Thulasi by using deadly weapon-M.O.1, committed robbery of gold,

cash and mobile. The learned Sessions Judge though recorded the

finding that the accused has not robbed the gold ornaments, cash and

mobile and not used deadly weapon like knife, still, erroneously

convicted the accused for the offence punishable under Section 302 of

the Indian Penal Code and the same cannot be sustained. Therefore,

he sought to allow the Criminal Appeal.

IV. ARGUMENTS ADVANCED BY PROSECUTION

15. Per contra, Sri K.Nageshwarappa, learned High Court

Government Pleader, while justifying the impugned judgment of

conviction and order of sentence, contended with vehemence that the

evidence of P.W.1 is consistent regarding presence of the accused at

the scene of occurrence before the incident and also recovery is made

at the instance of the accused and gold jewellery belonging to the

deceased were identified by P.Ws.3 to 5 who are none other than the

family members of deceased. He further contended that despite

opportunity having been given to the accused to adduce evidence on

his behalf while recording statement under Section 313 of the Code of

Criminal Procedure, the accused has not chosen to lead any evidence

to rebut the same. He further contended that the prosecution proved

its case beyond all reasonable doubts about the presence of the

accused at the spot and recovery of gold ornaments, cash and mobile

phone has been made at the instance of the accused. The blood stains

found on the knife and also injury sustained by the accused during

scuffle with the deceased proves that the accused has committed the

offence and this Court cannot interfere with the impugned judgment of

conviction and order of sentence. Thereby he sought to dismiss the

Criminal Appeal.

V. POINTS FOR CONSIDERATION

16. In view of the aforesaid rival contentions urged by the learned

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

consideration is:

"Whether trial court is justified in convicting accused for the offence punishable under Section 302 of the Indian Penal Code and sentencing him to undergo imprisonment for life with fine and default clause?

or Whether the accused has made out any case to interfere with the impugned judgment of conviction and order of sentence, in the peculiar facts and circumstances of the present case."

17. This court being the appellate Court, it is relevant to consider the

evidence of prosecution witnesses and documents relied upon.

(a) PW.1 - Venkatesh - is the driver of P.W.6. He says that, on

the date of the incident, he has seen the accused going

inside the house of deceased Thulasi and coming back at

about 10.30 A.M. He has withstood the lengthy cross-

examination and supported the case.

(b) PW.2 - Ragamma - is residing in the same locality where

the deceased died. She says that the accused was working

as driver of the Indica car belonging to her husband. She

is a hearsay witness to the incident.

(c) PW.3 - Akshay kumar - is the son of the deceased. He says

he has lodged the complaint which is marked as Ex.P1. He

has identified M.O.1 to M.O.6.

(d) PW.4 - Urmila Ravishankar - is the daughter of the

deceased Thulasi. She says that the accused was well

acquainted with her family and he used to take them to

the functions of their family in his car. She identified the

gold jewellery of her mother.

(e) PW.5 - Ravishankar - is the husband of the deceased and

hearsay witness about the incident. He further says, that

the Police called him to Banasawadi Police Station on

30.06.2008 and showed the gold ornaments, mobile

phone, and cash of `2,545/-

(f) PW.6 - Ramaswamy - was residing in the locality where

the deceased Tualsi and family were residing before her

death. He is the hearsay witness.

(g) PW.7 - Bhagath Singh - is the son of P.W.2 and P.W.6. He

says that he has seen the accused on 27.06.2008 at about

10.00 a.m. to 10:30 a.m. who was talking with his driver -

P.W.1. He further says that he has asked the accused why

he had come there even after he was removed from the

work. The accused replied that he came to the house of

Thulasi to get the form filled for applying to BBMP. He has

supported the case.

(h) PW.8 - Nagaraj - is the witness to the seizure mahazar -

Ex.P3 and also witness to the inquest mahazar - Ex.P4.

Supported the case of the prosecution.

(i) PW.9 - Dr.K.H.Manjunath - is the Doctor who conducted

the postmortem of deceased Thulasi and issued a report as

per Ex.P5. Supported the case of the prosecution.

(j) PW.10 - Sanjay, Junior Engineer working at AEE Office, VV

Tower, Bengaluru. He has prepared the spot sketch and

submitted his report as per Ex.P8. Supported the case of

the prosecution.

(k) PW.11 - Krishnaprakash, PSI, working in Finger Print

Expert Office at Commissioner of Police Office. He has

conducted the investigation about the examination of the

spot and he has issued a certificate as per Ex.P11 and has

issued Ex.P55. Supported the case of the prosecution.

(l) PW.12 - Radha S., FSL Officer, has examined 17 articles

and submitted her report as per Ex.P12 and Ex.P13.

(m) PW.13 - K.Jayaram, is witness to seizure mahazar which is

marked as Ex.P14 under which M.O.7, M.O.11 to M.O.15,

and M.O.19 to M.O.20 were identified. Supported the case

of the prosecution.

(n) PW.14 - Chandra is the witness to seizure mahazars which

are marked as Ex.P15, Ex.P16 to Ex.P18, and Ex.P19. He

has supported the case of the prosecution.

(o) PW.15 - N.C.Shankaraiah, PI of Banaswadi Police Station.

He has conducted an investigation and submitted the

charge sheet.

(p) PW.16 - Dr.B.N.Nagaraj, says that he has examined the

accused and collected scalp hair and submitted his report

as per Ex.P57 and he has identified M.O.77 - scalp hair.

Supported the case of the prosecution.

(q) PW.17 - Mallikarjuna, Police Constable of Banaswadi Police

Station, was deputed to take the accused to the hospital

for examination and collected the sample of scalp hair. He

has supported the case of the prosecution.

(r) PW.18 - Vijaykumar, Police Constable of Banaswadi Police

Station, has carried 17 items to FSL Officer and handed

over the same to the Officer and obtained

acknowledgment, and handed over the same to the I.O.

(s) PW.19 - Cheluvaraju, Police Constable of K.G.Halli Police

Station, says that he was deputed to search the accused.

He along with CW.32 and CW.34 have apprehended the

accused on 28.06.2008 and produced him before the I.O.

(t) PW.20 - Mallikarjuna, was the photographer. He has taken

photographs and also videography of the recovery of

golden articles at the instance of the accused at Kengeri.

He has produced a receipt for having received Rs.3,800/-

from the police. The same is marked as Ex.P59. Supported

the case of the prosecution.

(u) PW.21 - D.C.Ravindra, was working as Scientific Officer in

FSL, Bengaluru. He has examined several articles seized at

the spot of occurrence i.e., M.O.6, M.O.7, M.O.1, M.O.4,

M.O.57, and M.O.3, and issued a report as per Ex.P60.

Supported the case of the prosecution.

(v) PW.22 - Malleshaiah, Police Constable of Banaswadi Police

Station, was deputed to carry the dead body for

postmortem. After postmortem, he received the clothes of

the dead body and handed over the same to the I.O.

Supported the case of the prosecution.

(w) PW.23 - K.J.Arun, was resident of HRBR Layout. He is the

witness to Ex.P4 - Inquest Mahazar. Supported the case

of the prosecution.

(x) PW.24 - Dr.Harinarayanan, was working as RMO at

Dr.B.R.Ambedkar Medical College, Bengaluru. He has

produced MLC Register which is marked Ex.P29. Supported

the case of the prosecution.

18. Based on the aforesaid material witnesses and the documents

relied upon, the learned Sessions Judge acquitted the accused for the

offences punishable under Sections 392 and 397 of the Indian Penal

Code and convicted him for the offence punishable under Section 302

of the Indian Penal Code. Admittedly State has not filed any appeal

challenging the acquittal of the accused for offences punishable under

Sections 392 and 397 of the Indian Penal Code.

VI. CONSIDERATION

19. The gist of the case of the prosecution as per Ex.P.1-complaint

lodged by P.W.3-Akshay Kumar, son of the deceased is that, on

27.06.2008, he went to the school at about 7.30 am for project work

and his sister-Urmila-P.W.4 also left the house at the same time.

When he returned home at 4 pm, as usual, he rang the bicycle bell.

Usually, his mother used to open the gate. But, on the date of the

incident even though he rang the cycle bell many times, his mother

did not come out and he noticed that the gate was open. He went and

peeped through the window and noticed that his mother was lying on

the floor and her face was covered with a pillow. The door was open

and he went inside and tried to wake up his mother. When she did not

respond he went and called his neighbour-Ragamma, who came and

when checked by moving pillow from his mother's face, found that his

mother was bleeding on account of stab injuries and she was

murdered by some one. Then he went to the master bed room in the

first floor and found that the cupboard was opened and all the clothes

and jewellery box were lying on the floor. Since jewellery box was

empty he assumed that somebody has killed his mother to steel the

jewellery and cash. Therefore, he filed the complaint requesting to

arrest the person who murdered his mother and stole cash and

jewellery and to punish the accused in accordance with law. The same

was registered in Crime No.292/2008 initially under Section 302 of the

Indian Penal Code and later Sections 392 and 397 of the Indian Penal

Code were inserted.

20. It is relevant to state at this stage that, since there was no

opportunity given for the accused to cross-examine the witnesses, the

matter was remanded to conduct fair trial by the Order dated

25.06.2018 passed by this Court in Criminal Appeal No.200/2013.

After the matter was remanded, after examination of 23 witnesses,

two more charges for the offences punishable under Sections 392 and

397 of the Indian Penal Code came to be framed at the instance of the

prosecution. Thereafter, P.W.1 was cross-examined, P.Ws. 2, 6, 7, 8

and 11 were further examined cross examined. Though in terms of

the order dated 30.08.2018, summons were issued to P.Ws.1 to 5 to

cross-examine the said witnesses, the order sheet depicts that P.W.1

had left the address, P.Ws.3 to 5 were in abroad and their

whereabouts were not known. Inspite of best efforts made,

prosecution could not secure the presence of P.Ws.2 to 5 for cross-

examination.

21. The learned sessions judge, considering the material on record,

acquitted the accused for the offence punishable under Sections 392

and 397 of the Indian Penal Code, recording a finding that admittedly

there is no cross-examination of P.Ws.3 to 5 with regard to additional

charges framed under Sections 392 and 397 of the Indian Penal Code.

The learned Sessions Judge further recorded a finding that evidence of

P.Ws.3 to 5 is essential to prove the guilt of the accused under

Sections 392 and 397 of the Indian Penal Code. Since P.Ws.3 to 5 did

not subject themselves to cross-examination , prosecution failed to

prove guilt of the accused under Sections 392 and 397 of the Indian

Penal Code. The other materials available on record are sufficient to

convict the accused for the offence punishable under Section 302 of

the Indian Penal Code. The prosecution has proved the same beyond

reasonable doubt and thereby accused was convicted and sentenced to

undergo imprisonment for life with fine of `10,000/- with default

clause for the offence punishable under Section 302 of the Indian

Penal Code.

22. In order to re-appreciate the case of the prosecution as per

Ex.P.1-complaint lodged by P.W.3 and material documents produced

to prove the involvement of the accused in commission of the offences

punishable under Sections 302, 392 and 397 of the Indian Penal Code,

it is relevant to consider the evidence of the material witnesses. The

entire case of the prosecution is based on the circumstantial evidence.

Except the evidence of P.W.1 who is alleged to have last seen the

accused coming out from the house of the deceased holding a letter in

his hand, there is no other corroborative evidence produced by the

prosecution to prove the guilt of the accused.

23. In order to prove the circumstantial evidence, the following five

golden principles which may constitute the panchsheel of the proof of

a case have to be established by the prosecution:

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

(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.

24. Keeping in view the aforementioned five golden principles/

panchsheel, it is relevant to consider the evidence of P.W.1-Venkatesh

who deposed that he knows P.W.6-Ramaswamy under whom he is

working as driver since 3 years. C.W.5 is wife of P.W.6, and C.W.8 is

the son of P.W.6. Their house is situated at Kalyananagara, 9th D

Main, bearing Door No.309. By the side of the said house, deceased

Thulasi was having her residential house. P.W.3-Akshay Kumar and

P.W.4-Urmila are the son and daughter of the deceased. The husband

of the deceased was working in Dubai. After about two months of his

joining as driver under C.W.6, he was introduced to the accused by

one Monappa. About 5 or 6 months thereafter, one day, around 9.15

am while he was cleaning the car infront of the house of C.W.6, the

accused came there and asked him whether he could identify him, for

which he told that his memory was not working properly, for which the

accused told that he was working as driver under C.W.6.

25. In further examination-in-chief, P.W.1 deposed that at about 10

am, the accused was entering the house of the deceased and he came

out from the said house at about 10.30 am carrying one letter in his

hand and he asked the accused as to what was the said letter, to

which the accused told that he was applying for the post of driver in

BMTC. Then the accused went away. He further deposed that on the

next date at about 10 am he was cleaning the Indica car by parking it

infront of the house of C.W.6. Then he went to pass urine and

returned and when he was standing in front of one building which was

under construction, at that time, he saw the accused coming out from

the house of deceased and went away by opening the gate. Then he

removed his car and went to Ramamurthynagara. In the cross-

examination, P.W.1 deposed that he has not stated before the police

that the husband of the deceased had been to Dubai and, the

deceased, C.Ws.1 and 2 were residing together, since the police did

not enquire him in that regard. He also deposed that, he has not

stated before the police that whenever C.W.1 used to come before the

house, he used to ring the bell of his bicycle and his mother used to

open the gate, since such enquiry was not made by the police. He

further deposed in the cross-examination that, it is true to say that he

was not familiar with deceased Thulasi and he had never been to the

house of deceased Thulasi prior to that date. He further deposed that

it is true to say that family members of C.W.6 and that of Thulasi were

cordial. When the accused left the house of the deceased, the gate

was open. He further deposed that, it is not true to say that accused

had not come to home of Thulasi and even he had not come to that

area. He further deposed dead body of Thulasi was in the house till 8

pm and lateron he returned to his house. He further deposed that, it

is not true to suggest that the police suspected him in the offence. He

further denied the suggestion that, to avoid his liability, he is deposing

falsely at the instance of police and blaming the accused. He denied

the suggestion that he is seeing the accused for the first time before

the Court. P.W.1 further deposed in his cross-examination that, on

the next day of the incident, he was informed by the police that

murder was committed by Shiva-accused. He also came to know in

the police station that for the sake of gold ornaments, accused

committed murder of Thulasi. On the next day of the incident, on the

request of the police, he went to Banaswadi Police Station. He further

deposed that police were not discussing in his presence that the dead

body was in the house since 7.30 am. He does not know the name of

the police who gave him the information that Shiva murdered Thulasi.

But the said police was from Banaswadi police station. The witness

volunteered that he informed the police that accused was going out of

the house of the deceased and he noticed scratch injury on the face of

the accused in police station. The evidence of P.W.1 clearly depicts

that he has informed the police that he saw accused going out of the

house of the deceased Thulasi and he is not an eye witness to the

incident.

26. P.W.2-Ragamma, the neighbor of the deceased, deposed that

she knows the accused who was working as driver of Indica car and

her husband had removed the accused from the duty of driver about

one year two months prior to the date of the incident. She further

deposed that it was 9.30 am when deceased had some talks with her

grand son-Rushi. Then she took her grand son inside the house. In

the cross-examination, she deposed that, if it is put to her that she

has not stated before the police that her son told her that the accused

had come there whom he had abused, she was told by her son that he

used to come to the house of the deceased as to why he had abused

him, she would say that she has not stated before the police, since

they had not enquired to that effect. If it is put to her that she has not

stated before the police that at about 9.00 am, she had a formal talk

with the deceased while she was purchasing the vegetables, she would

say that she has not stated before the police, since the police had not

enquired her to that effect. She further deposed that the police have

not recorded any statement. The accused worked as driver with them

for more than a month. Her husband did not like the behaviour of the

accused as driver and therefore, removed him from service.

Thereafter, accused joined as temporary driver of Thulasi. In the

cross-examination, she denied the suggestion that the accused not

used to come to their area and volunteered that, twice she had seen

the accused near the house of the deceased.

27. In the further examination-in chief, P.W.2 deposed that Thulasi

was holding hair in her right hand fist. She got the information that

huge quantity of gold were missing from her house and the said gold

was recovered from the accused by the police. The accused was not

regular driver of Thulasi and he used to attend duty whenever he was

called by Thulasi. She cannot say in which year and in which month

the accused worked as driver with Thulasi and she does not know how

much wages were paid to the accused by Thulasi. She further

deposed that after seeing the dead body of Thulasi, she was scared

and therefore, did not observe the injuries and gold ornaments on the

dead body. She volunteered that she corrected the dress on the dead

body and she has not seen the articles near the dead body. P.W.2

further deposed that she has not stated any facts to the police and it is

incorrect to suggest that accused after leaving service in her house,

never came near her house. Accused used to come to house of

Thulasi for driving the car. House of Thulasi was situated by the side

of her house and accused was not coming her house.

28. P.W.3-Akshaya Kumar, complainant and son of the deceased,

reiterating the averments made in the complaint Ex.P.1, deposed that

in the first week of February 2008, there was a marriage ceremony of

the daughter of his maternal uncle at Gnanapeetha Lakshmi

Venkateshwara Choultry, Mysuru Road. His deceased mother was

wearing golden ornaments like golden chain, golden bangles, golden

necklace and golden chain. He attended the said marriage along with

his deceased mother Thulasi, C.W.2-Urmila, in the vehicle of the

accused. The accused took them to the choultry and dropped back to

the house in his car. He further deposed that he has seen the pair of

earrings and pair of toe rings on the dead body of his mother Thulasi.

However, remaining ornaments were missing from her body. His

mother used to wear pair of gold bangles, pair of green glass bangles

and mangala suthra. In the cross-examination, P.W.3 deposed that

they used to have breakfast before leaving the house to school. Once

in six months his father used to come home from Dubai. The door of

their house was facing West. C.W.6 was having his house towards

South, towards North of his house, there was a house belonging to

Bengali family, however, he does not remember their name. He

further admitted that, it is true to say that at the time of preparing

complaint-Ex.P.1, he was not having state of mind to prepare the

same. His elder cousin Srinivas helped him to prepare Ex.P.1. He

further deposed that, it is true to say that Ex.P.1 is not in his hand

writing and in the complaint Ex.P.1, he has not stated that the accused

was working as a driver in the house of C.W.5 for one and a half

month. He admitted that he has not stated in the complaint that when

P.W.1 was appointed, accused was working in a call centre. He further

deposed that, it is true to say that he has not stated in his complaint

that accused took himself, his mother and C.W.2 to the marriage, in

his car. He further admitted that the police have also not recorded his

statement to that effect. He further admitted that, he has not stated

in the complaint and also not stated in the statement before the police

that his mother was wearing the ornaments while she had been to the

marriage in the car of the accused. He further admitted that he has

also not stated before the police that they left the house to attend the

marriage at about 5.00 pm and accused dropped them back at about

10 pm. P.W.3 further stated in cross-examination that, it is true to

say that he has not stated in the complaint-Ex.P.1 regarding observing

of the blade on one side of the dead body of his mother and the handle

on the other side, besides spreading of green bangle pieces on the

ground. He admitted that he has not stated in his complaint and also

not stated in his statement before the police that he observed the

scratches on the face of his mother. He admitted that in the

complaint, he has not stated about missing of other golden ornaments

of his mother and only observed pair of ear rings and pair of toe rings.

He further stated that he had seen the accused while he was cleaning

the car of P.W.6. However, he had no acquaintance. He denied the

suggestion that after leaving his service with P.W.6, the accused had

not come to that area and he had not seen him. He further deposed

that he was not in complete understanding of what was going on since

he was under shock. He admitted that usually he was not paying visit

to the master bed room and further deposed that if it is put to him

that he was not having knowledge as to who used to pay their visit to

his house in his absence, he would like to say that his mother used to

tell some times.

29. P.W.4-Urmila, daughter of the deceased has deposed that, once,

when herself and her mother were walking, accused came to them and

told that he was not having any work and if her mother wants to go

any where, she may take his help and he had also taken the telephone

number of their residence i.e., 25420360. She further deposed that

on 26.06.2008, accused telephoned her mother and asked whether the

witness was at house for which her mother told him that the witness is

at home. Her mother asked the accused as to why he was enquiry

about her daughter, to which, the accused told that he wanted to file

an application for driver post in BMTC. Later, accused came to their

house at about 11.00 am and accused told her that he wanted to file

an application to the BMTC and asked her to write the application. She

told that she will write the application in Kannada, for which the

accused told that he wants the application to be filled in english. The

accused gave his address and experience of his driving. She wrote a

formal application in English and handed over the same to the

accused. In the cross-examination, P.W.4 admitted that she had not

stated before the police that towards north of her house there was the

house belonging to Bengali family, however, she would say that the

police had not enquired and therefore, she had not stated the said fact

before the police. She further admitted that she had also not stated

before the police that prior to the Bengali family, the said house was in

occupation of the trust to run the orphanage. She further admitted

that accused was not her family friend and she is not remembering the

date on which accused met her and her mother while they were on the

walk. It is further stated in cross-examination that she has not stated

before the police that in the first week of March 2008, the accused had

taken her mother in his car to attend a marriage.

30. PW5-Ravishankar, husband of deceased Thulasi deposed that in

the month of July 2007 while he was cleaning his Indica car in front of

his house, accidentally, he sustained injury with glass piece and it

started bleeding. The accused who was sitting next to his house

rushed to help, removed the glass piece from the injury. He was

made to sit and coffee was provided. He enquired the accused

regarding his name for which he told that his name was Shivanna and

he was working with C.W.6. He heard that Shivanna used to have

formal talks with his wife and other family members, however, he not

used come inside. Then he went to Abudabi for his work. In the

cross-examination, P.W.5 deposed that, he used to collect the details

from P.W.3 and P.W.4 while he reached the house of Srinivasa Rao.

He came to Bengaluru in the month of April 2008 and was in

Bengaluru till May 2008. However, he does not remember the date.

He further deposed that it was about 6.30 or 7.00 pm when he went to

the police station. He had not seen the accused in the police Station.

He was in the police station till 7.30 pm. Ex.P.2 is the handwriting of

Gopinath Rao. He had not put his signature to Ex.P.2. He also

accompanied him to the police station. He admitted that he had not

suspected anybody in Ex.P.2-List of articles. He denied the suggestion

that Ex.P.2 was prepared by him keeping the ornaments available. He

also denied the suggestion that he is deposing falsely. He further

admitted that he had not stated before the police that in the month of

July he had sustained injury.

31. P.W.6-Ramaswamy, adjacent owner of the deceased deposed

that he knows Thulasi. She was having two kids and they were school

going children. Husband of the deceased was residing in Dubai. He

further deposed that the deceased, her son and daughter were

residing together. He knows the accused who worked under him as

driver for about two months. Since his driving was not proper, he

discontinued the services of the accused. Later, he appointed P.W.1-

Venkatesh as his driver. About two years back, one day between 3 to

4 pm, while he was sleeping in his house, his wife awakened him and

told that Thulasi had fell in her house and therefore they have to go

there. She told that Thulasi's son called her. The witness noticed that

people had gathered near the home of the deceased and they told that

there was a murder. Police came and then he returned house. In the

further examination, he deposed that police informed him that accused

had murdered Thulasi. The witness identified the accused present

before court. Police seized gold which belonged to Thulasi. In the

cross-examination, P.W.6 deposed that he came to know that accused

had murdered Thulasi on 27.06.2008 during evening. He had not

informed the police that he suspected the accused. He further

deposed that on the date of murder of Thulasi, during night hours,

police brought the accused to the house of Thulasi. But he had not

seen the accused. He deposed that he cannot say the time at which

the accused was brought to the house of Thulasi. He deposed that he

has not seen the gold and also not seen the gold seized from accused.

32. P.W.7-Bhagath Singh, Son of Ramaswamy-P.W.6 deposed that a

day prior to the incident at about 10 pm, when he came out from his

house, he saw that accused was talking with his driver Venkatesh-

P.W.1. He enquired the accused as to why he was coming near their

house, once he left the job as driver. The accused told him that he

had come to the house of Thulasi for filling up the application form.

Then, the witness went to temple. In the cross-examination, P.W.7

deposed that it is true to say that when he came near the house of

Thulasi, so many persons had gathered. The police had also arrived.

At that time, police not enquired him anything. He also did not say

anything to the police. He was in front of the house of Thulasi till

10.00 pm. He has seen the police coming out from the house of

Thulasi. On that day he had not been to police station, however, next

day, he went to the police station. In the further cross-examination,

P.W.7, deposed that on 28.06.2008, police arrested the accused in

Majestic, Bengaluru. At that time, he was at the said spot. He was

little away from the spot of arrest. Therefore, he could not see the

ornaments worn by the accused or any injury on his body. He further

deposed that the Police traced out the presence of the accused in the

Majestic bus stand on the basis of the mobile number of the accused

furnished by him to the police. He further deposed that, when he went

to the place of arrest, three police persons were at the spot and they

were in civil dress. Three days after the arrest, the accused was

brought to the house of the deceased. But he cannot says the exact

date on which the accused was brought to her house. He further

deposed that Ravinshankar and Thulasi owned Indica car. Earlier,

father of Ravishankar was driving the car. After his death, accused

was called to drive the car as per the information given to him by his

mother. He has not personally seen the accused driving the car of

Thulasi. P.W.7 further deposed that on the date of the incident at

about 5.45 or 6 pm, he went to the house of Thulasi. On the date of

incident, he came to know that accused murdered Thulasi. He denied

the suggestion that he has not stated before the Investigating Officer

that he was suspecting the accused for commission of the said crime.

33. P.W.11-Krishna Prakash, PSI, finger print expert deposed that,

on careful examination of the entire scene of occurrence, he could not

collect any articles near the dead body. There were no articles near

dead body contained with the finger prints. C.W.35 took him to the

first floor which was having entrance inside. They went to the bed

room in the first floor, saw empty jewel boxes of plastic spread on the

bed. He also saw one plastic water bottle by the side of the bed. He

also saw one steel almirah, four wooden cup board in the said bed

room. He observed that they were opened. He applied silver nitride

powder on the said articles and found one chance print on the right

side of the steel almirah. He marked the said chance print as 'A' and

lifted the same by applying the cellophane tape. He shifted the said

print to plastic sheet. Accordingly, he issued the Certificate on

28.06.2008. In the cross-examination, P.W.11 admittedj that he used

silver nitrate powder for taking the prints and denied the suggestion

that if the said powder is left for considerable period while taking the

print, there is possibility of change of colour into black. He denied the

suggestion that there is also possibility of change of ridges on account

of the use of ink while taking the said prints. He deposed that, in

studying the ridge characteristic bifurcation is one of the important

characteristic and denied that if the method of upper bifurcation is

adopted, it would give different result on the event of using downward

bifurcation method. He further deposed that there is an attendance

register in his office in which he used to put his initial. He further

deposed that he has not mentioned in Ex.P.11-Examination Certificate

(finger print) regarding noticing of the pillow and knife. The two doors

of steel almirah was placed on the right side of the door. Except the

steel almirah, on the other articles he noticed chance prints. He

further deposed that he found single print on the almirah and the said

prints may remain for a week. He further deposed that 'chance print'

means the 'print of the person other than the person using the

almirah'. He further deposed that one has to eliminate the prints of

the user of the almirah for finding out the chance print and that he had

not taken the finger prints of the inmates of the house and also not

taken the finger prints of the dead body. He has not mentioned place

of the chance print, at how many height from the bottom he notice it.

Likewise, he has also not mentioned at how many distance from the

top, he noticed and he has not taken the photos of the print. The

witness volunteered that since he lifted the finger print, he felt that it

was not necessary to take the photo.

34. The aforesaid oral evidence of the prosecution witnesses clearly

depicts that, except P.W.1-Venkatesh, who has last seen the accused

coming from house of the deceased with a letter in his hand, none of

the prosecution witnesses have spoken about involvement of the

accused in the homicidal death of deceased-Thulasi. All the

prosecution witnesses have spoken about robbery of the ornaments,

cash, mobile and recovery thereon.

35. It is undisputed fact that the learned sessions Judge considering

the oral and documentary evidence on record, recorded the finding

that the prosecution failed to prove beyond reasonable doubt that the

accused has committed an offence punishable under the provisions of

Sections 392 and 397 of the Indian Penal Code and accordingly,

acquitted him of the said Charge. Admittedly, the said acquittal order

has not been challenged by the prosecution and the same has reached

finality. Once the accused is acquitted for the offence punishable

under Sections 392 and 397 of the Indian Penal Code, the burden

shifts on the prosecution to prove the involvement of the accused in

homicidal death of the victim to attract the provisions of Section 302

of the Indian Penal Code. The entire evidence of the prosecution

witnesses does not prove the involvement of the accused in the

homicidal death of the deceased. Further, as admitted by P.W.1, the

injury on the face of the accused was not noticed by him on the date

of the incident while the accused was coming out of the house of the

deceased. P.W.19 and other police officials arrested the accused and

P.Ws.13 and 14 are mahazar witnesses. The prosecution has not

examined the five constables who took the accused to hospital and

produced him before the doctor and admittedly the prosecution has

not examined the doctor who treated accused in the hospital. No

report is submitted by the police in this regard and the said aspect of

the matter has not been considered by the learned Sessions Judge

while convicting the accused for the offence punishable under Section

302 of the Indian Penal Code.

36. The learned Sessions Judge erred in holding that the accused

was in possession of the mobile of the deceased seized by

Investigating Officer. The call details were collected to prove the

movements of accused on the date of incident and earlier to it and on

next day of the incident. However, the address of the accused and

P.W.5 forthcoming in the call details are not tallying with their

residential addresses. Even after seizure of the mobile, the same was

being used by some body. Even on 29.06.2008, calls were made from

the house of the accused. The IMEN numbers sent by the

Investigating Officer to BSNL differs from call list. Admittedly, the call

details issued by authority are neither produced nor examined.

Certificate as contemplated under Section 65B (4) of the Indian

Evidence Act, 1872, has not been produced before the Trial Court.

Thereby, the learned Sessions Judge erred in convicting the accused

based on call details. Admittedly, the General Manager, Airtel, who

furnished call details has not been examined. The said material fact

also has not been considered by the learned Sessions Judge while

convicting the accused.

37. Admittedly, Ex.P.1-complaint lodged by Akshay Kumar-P.W.3

who is none other than the son of the deceased is against an unknown

person. Ex.P.6- statement of Urmila, daughter of the deceased made

before ACMM Court does not disclose the name of accused. Inspite of

the same, the learned Sessions Judge accepted the stand of the

prosecution that the accused was in custody from 2 pm, contrary to

which, Rangaswamy-P.W.6, neighbour of the deceased deposed that

accused was brought to the spot and ornaments seized on the same

day. Even according to P.W.5-Ravishankar, husband of the deceased,

all the gold items were seen by him in the Police Station on

30.06.2008. There are contradictions, omissions and improvements in

the evidence of prosecution witnesses and the same has not been

considered by the learned Sessions Judge while convicting the accused

for the offence punishable under Section 302 of the Indian Penal Code.

38. The Investigating Officer, based on the complaint conducted the

investigation, filed charge sheet against the accused under the

provisions of Sections 302, 392 and 397 of the Indian Penal Code. The

main case of prosecution is 'murder for gain' by the accused. Based

on the evidence of prosecution witnesses supra, the learned Sessions

Judge recorded the finding that the prosecution failed to prove the

offence punishable under Sections 392 and 397 of the Indian Penal

Code and acquitted the accused for the said offences. Admittedly, the

said order of acquittal has reached finality.

39. Very strangely, the learned Sessions Judge proceeded to convict

the accused for the offence punishable under Section 302 of the Indian

Penal Code holding that there is sufficient material available to prove

the guilt of the accused in the homicidal death of the deceased.

Absolutely no material has been produced by the prosecution to show

that robbery and murder formed part of the same transaction. The

presumption that the accused committed murder cannot be drawn

merely on the basis of the recovery. Admittedly, prosecution has

failed to prove beyond reasonable doubt that the murder for gain is

committed by the accused.

40. The material on record clearly depicts that though the learned

Sessions Judge framed the Charge of robbery for personal gain and

the homicidal death of the deceased so as to attract the provisions of

Sections 392 and 302 of the Indian Penal Code, the evidence of

prosecution witnesses depicts the recovery of gold from accused, but

there are no circumstances proved beyond reasonable doubt by the

prosecution that robbery and murder took place on the same

transaction. In the absence of any eye witness, and since the

prosecution has not proved the chain of circumstances connecting the

accused in the homicidal death of the deceased, it is not safe to

convict the accused for the offence punishable under Section 302 of

the Indian Penal Code, in the absence of any corroborative evidence

with regard to involvement of accused in the homicidal death of the

deceased.

41. On meticulous of reading of the evidence of prosecution

witnesses, none of the witnesses have deposed about the involvement

of the accused in the homicidal death of the deceased. Absolutely no

material has been produced to prove involvement of accused in the

murder of the deceased. Except the alleged recovery of jewels and

cash based on voluntary statement, there are no materials produced

by the prosecution to prove the guilt of the accused. Thereby, the

learned Sessions Judge acquitted the accused for the offences

punishable under Sections 392 and 397 of the Indian Penal Code and

the said order has reached finality.

42. At this stage, it is relevant to refer to the provisions of Section

27 of the Indian Evidence Act, 1872 reads as under:

"27. How much information received from accused may be proved:

Provided that when any fact is deposed to as discovered in consequence of information received from a person accused of any offence, in the custody of a police- officer, so much of such information, whether it amounts to confession or not, as relates distinctly to the fact thereby discovered, may be proved.

43. By careful perusal of the provisions of Section 27 of the Indian

Evidence Act, it makes it clear that the said section based upon the

view that if a fact is actually discovered in consequence of information

given, some guarantee is afforded thereby that the information was

true and accordingly can be safely allowed to be given in evidence.

But where the facts are such as indicting reasonable doubt as regards

the guilt of the accused, benefit of the same should be given to the

accused persons.

44. The Hon'ble Supreme Court while considering the circumstantial

evidence in the case of Varun Chaudhary v. State of Rajasthan,

reported in AIR 2011 SC 72, at paragraphs 20 and 23 held as under:

"20. Home Guard Pawan Kumar (PW 3), had seen three persons on a motorcycle. However, he stated that he could not identify the persons on the motorcycle. Similarly, Police Constable Pooran Singh (PW 6) had stated that around 12 midnight on 22-8-2000, he had seen two

persons going on a motorcycle and one of them was the deceased. After some time he had seen another motorcycle which was Suzuki, but he could not read the complete number of the motorcycle, but he could read one of the digits, namely, number '9'. He whistled so as to stop the said motorcyclist but the motorcyclist did not stop.

Thereafter, he had seen another motorcycle, being Hero Honda which had hit a dog near Santoshi Mata Temple. It is pertinent to note that the aforestated two witnesses did not say that they had seen any of the accused. Possibly they did not even see the faces of the three persons, who were on the motorcycle. Possibly, in these set of circumstances, having an identification parade would be futile and, therefore, there was no test identification parade. Thus, nobody had seen any of the accused. So far as identification of the motorcycle is concerned, PW 6 merely stated that he saw one digit of registration number of the motorcycle, which was '9'. In our opinion, on the basis of one digit of the registered number, it would be dangerous to believe that the motorcycle recovered, which also had digit '9' in its number, was used in the offence. In our opinion, on such a scanty evidence it cannot be said that the accused had been identified or the motorcycle which had been recovered was the one which was used by the accused at the time of the offence.

23. It is also pertinent to note that the prosecution could not establish the purpose for which the deceased was murdered by the accused. Of course, it is not necessary that in every case motive of the accused should

be proved. However, in the instant case, where there is no eyewitness or where there is no scientific evidence to connect the accused with the offence, in our opinion, the prosecution ought to have established that there was some motive behind the commission of the offence of murder of the deceased. It was the case of the prosecution that the deceased, an Income Tax Officer had raided the premises belonging to some scrap dealers and, therefore, he had received some threats from such scrap dealers. It is an admitted fact that the accused are not scrap dealers or there is nothing to show that the accused had been engaged by scrap dealers to commit the offence. Thus, there was no motive behind the commission of the offence so far as the accused are concerned.

45. The Coordinate Bench of this Court while considering the

provisions of Section 27 of the Indian Evidence Act, 1872, in the case

of State of Karnataka v. Kantharaj reported in 2016(2) KCCR

1175 (DB) has held at paragraphs 21 and 22 as under:

21. Learned SPP, Mr. P.M. Nawaz has relied on the recovery of mobile phone purported to be belonging to the deceased, from the accused. It is true that if one were to accept that the phone was recovered at the instance of the accused, there must be clinching evidence to show that the mobile belonged to the deceased. It is true that the wife of the deceased who is examined as PW-30 has identified the said mobile as that of her husband. Identification of the mobile can be conclusively established only with reference

to IMEI number. We do not know whether the SIM card found in the mobile actually belonged to the deceased. In fact, police have not collected any materials to that effect and therefore this Court is unable to accept that as a material circumstance to link the accused with the murder of the deceased.

22. One more important aspect noticed by this Court is sending M.O.3, chopper alleged to have been recovered at the instance of the accused, to FSL. It is mentioned that it had contained some blood over the blade. If the FSL report marked as Ex. P 15 were to be true, it is ununderstandable as to how the chopper which was in the tank water for quite some time could still retain blood stains. This can also be viewed from another angle. Ex. P4-mahazar drawn in connection with M.O.3 is at the instance of the accused. If really it had blood stains, nothing came in the way of the 10 to have mentioned about it. In the absence of such mention in Ex. P4, the opinion found in Ex. P15-FSL report cannot be given much credence.

46. The Coordinate Bench of this Court in the case of Sridhara v.

State of Karnataka reported in ILR 2005 Kar.2576 held that unless

there is some concrete evidence, though the evidence may point out

the possibility of the accused being culprits, that does not unerringly

point out to their guilt with certainty and hence the accused are

entitled to the benefit of doubt. At paragraph 13 of the said judgment,

it is held as under:

13. But even if we accept this prosecution theory that the accused had some ire or ill-will towards the deceased few days prior to the incident, it would not lead to an irresistible conclusion that it is these accused who had committed the crime in question. Possibility of the accused resorting to such crime is not sufficient to hold them guilty of the crime. Some concrete evidence is required. In this regard the next two circumstances relied upon by the prosecution are material, namely evidence regarding indication given by the police dog and the evidence regarding recovery of incriminating articles on the information stated to have been furnished by the accused (admissible under section 27 of the Indian Evidence Act).

47. From careful perusal and meticulous examination of the evidence

on record, and the evidence of P.Ws.1, 2, 3, 4, 5, 6 and 11, there are

so many omissions and contradictions and the entire fabric of the

prosecution case appears to be ridden with gaping holes. It is true

that due to passage of time, witnesses do deviate from their

statements as their memory fades to some extent. Reasonable

allowance can be made for such discrepancies. But when such

discrepancies make the foundation of the prosecution case shaky, the

Court has to take strict note thereof. On perusal of the evidence of

the prosecution witnesses, the discrepancies are noticed and the

witnesses have discredited themselves. However, the learned

Sessions Judge proceeded to convict the accused erroneously, mainly

on the basis of the evidence of P.Ws.1 to 6 and 11, without there

being any corroboration. Therefore, the same cannot be sustained. It

is clear from the evidence of the prosecution witnesses and medical

evidence that two views are possible. It is well settled that there is no

embargo on the Appellate Court reviewing the evidence upon which an

order of conviction is based. The golden thread which runs through

the web of administration of justice in criminal cases is that if two

views are possible on the evidence adduced in the case, one pointing

to the guilt of the accused and the other to his innocence, the view

which is favourable to the accused should be adopted. The paramount

consideration of the Court is to ensure that miscarriage of justice is

prevented. A miscarriage of justice which may arise from acquittal of

the guilty is no less than from the conviction of an innocent.

48. It is also relevant to note at this stage that, after remand of the

case as per the Order dated 25.06.2018 passed by this Court in

Criminal Appeal No.200/2013, P.W.1 was cross-examined, P.Ws.2, 6,

7, 8 and 11 were further examined and cross-examined. P.W.17 was

further examined and cross-examined. P.Ws.14, 9, 12 and 16 were

cross-examined, Ex.P.13(b) was got marked. P.Ws.15 and 19 were

cross-examined. P.Ws.23, 1 and 21 were further examined and cross-

examined. P.W.20 was cross-examined. A perusal of the records

indicates that charge sheet was filed for the offence punishable under

Section 302 of the Indian Penal Code. Initially, the Trial Court framed

charge against the accused for the said offence. Later on, after

examination of 23 witnesses, two more charges under Sections 392

and 397 of the Indian Penal Code came to be framed at the instance of

the prosecution. P.W.3, complainant-son of the deceased, P.W.4-

daughter of the deceased and P.W.5-husband of the deceased, did not

subject themselves for cross examination inspite of giving sufficient

opportunity. The learned Sessions Judge has rightly held that, 'it

appears doubt with regard to seizure panchanama vide Ex.P.14 done

on 01.07.2008 at Pantarapalya'. Accordingly, learned Sessions Judge

held that prosecution has failed to prove the seizure of eight items of

ornaments said to have been seized under panchanama-Ex.P.14. The

learned Sessions Judge also recorded that merely because Ex.P.14 is

not proved, the entire case of the prosecution cannot be ignored since

death was caused and allegation is that accused has killed the victim.

However, it is tobe noticed that, in the absence of any motive, last

seen theory and recovery being proved, the learned Sessions Judge is

not justified in convicting the accused for the offence punishable under

Section 302 of the Indian Penal Code. Once the prosecution failed to

prove the 'murder for gain' and acquitted the accused for the offence

punishable under Sections 392 and 397 of the Indian Penal Code, in

the absence of any material produced by the prosecution to the effect

that robbery and murder took place on same transaction and in the

absence of any eye witness to the incident, it is not safe to convict the

accused under Section 302 of the Indian Penal Code. On that ground

also impugned judgment of conviction is liable to be set aside.

49. It is also not in dispute that during pendency of the proceedings

before the learned Sessions Judge, even though while submitting

process fee, there was an order of Court to retain seized articles since

charge sheet was filed, it was released in favour of P.W.5-husband of

the deceased, without an order of the Court. The learned Sessions

Judge erred in holding that the accused did not claim said articles. I

feel, it amounts to only procedural irregularity and benefit of doubt has

to be given to the accused.

50. For the reasons stated above, the point raised for consideration

in the present Criminal Appeal has is answered in the negative holding

that the Trial Court is not justified in convicting the accused for the

offence punishable under Section 302 of the Indian Penal Code and the

second point is answered in the affirmative holding that the

appellant/accused has made out a case to interfere with the impugned

judgment of conviction and order of sentence.

VII. RESULT

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

ORDER

(i) The criminal appeal filed by the appellant/accused is hereby allowed.

  (ii)    The impugned judgment of conviction and order of
          sentence      dated      19.03.2019       made       in

S.C.No.365/2009 on the file of the XXXII Additional City Civil and Sessions Judge and Special judge for CBI Cases, Bengaluru, insofar as convicting the accused for the offence punishable under Section 302 of the Indian Penal Code is hereby set-aside.

(iii) The accused is hereby acquitted for the offence punishable under Section 302 of the Indian Penal Code.

(iv) The concerned jail authority is directed to release the appellant/ accused forthwith, if he is not required in any other case.

(v) Registry is directed to return the Trial Court Records.

Sd/-

JUDGE

Sd/-

JUDGE

kcm