State By Vijayapura Police vs Sathisha @ Sathishkumar
2023 Latest Caselaw 10317 Kant

Karnataka High Court

State By Vijayapura Police vs Sathisha @ Sathishkumar on 13 December, 2023

Author: H.B.Prabhakara Sastry

Bench: H.B.Prabhakara Sastry

                          -1-
                                   CRL.A. No.122 OF 2017



  IN THE HIGH COURT OF KARNATAKA AT BENGALURU

    DATED THIS THE 13TH DAY OF DECEMBER, 2023

                       PRESENT

  THE HON'BLE DR. JUSTICE H.B.PRABHAKARA SASTRY

                         AND

        THE HON'BLE MR. JUSTICE ANIL B KATTI

                CRL.A No.122/2017 (A)

BETWEEN:

STATE BY VIJAYAPURA POLICE,
REP. BY SPP
HIGH COURT BUILDING,
BENGALURU - 01.                            ... APPELLANT

(BY SRI VINAY MAHADEVAIAH, HCGP)

AND:

SATHISHA @ SATHISHKUMAR
S/O. LATE GOVINDAPPA,
AGED ABOUT 30 YEARS,
R/AT KORAMANGALA VILLAGE,
AVATHI POST, VIJAYAPURA HOBLI,
DEVANAHALLI TALUK - 562 110.             ... RESPONDENT

(BY SMT. K.M. ARCHANA, AMICUS CURIE)

     THIS CRIMINAL APPEAL IS FILED UNDER SECTION
378(1) AND (3) CR.P.C., PRAYING TO GRANT LEAVE TO APPEAL
AGAINST THE JUDGMENT AND ORDER OF ACQUITTAL DATED
22.6.2016 PASSED BY THE V ADDITIONAL DISTRICT AND
SESSIONS JUDGE, DEVANAHALLI IN S.C.NO.15037/2014 -
ACQUITTING THE RESPONDENT FOR THE OFFENCE P/U/S 302
R/W 34 OF IPC.

     THIS CRIMINAL APPEAL HAVING BEEN HEARD THROUGH
PHYSICAL HEARING/VIDEO CONFERENCING FOR FURTHER
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                                          CRL.A. No.122 OF 2017



ARGUMENTS AND RESERVED ON 15/09/2023, COMING ON FOR
PRONOUNCEMENT OF JUDGMENT, THIS DAY ANIL B. KATTI,
J., DELIVERED THE FOLLOWING:

                           JUDGMENT

Appellant/State feeling aggrieved by the judgment of

Trial Court on the file of V Addl.District and Sessions

Judge, Devanahalli in S.C.No.15037/2014, dated

22.06.2016 preferred this appeal.

2. Parties to the appeal are referred with their ranks

as assigned in the Trial Court for the sake of convenience.

3. The factual matrix leading to the case of

prosecution can be stated in nutshell to the effect that on

08.05.2014 at 10.30 p.m. accused and another person by

name Suresh with common intention and due to old

enmity took deceased Mani @ Subramani near

Koramangala village and assaulted on deceased with stone

and clubs, due to which he sustained injury over head and

other parts of the body, with an intention or knowledge to

commit his murder and committed an offence punishable

CRL.A. No.122 OF 2017

under Section 302 r/w Section 34 of Indian Penal Code,

1860 (hereinafter for brevity referred to as `the IPC').

3(a). The background according to the prosecution

leading to the said incident is that, on 07.05.2014 in the

evening hours, PW.16 Murali and deceased Mani went to

Dabha for celebrating marriage party. On their way to

Dabha near the circle of Koramangala village, accused and

another person by name Suresh asked them whether they

were going for drinks party, for which PW.16 Murali did not

respond. Thereafter said PW.16 Murali and deceased Mani

went towards Dabha. Accused and Suresh followed them

and came to Dabha and both had alcohol. In the

meantime, PW.16 Murali questioned the accused how he

insulted in the circle that too in the presence of elders

saying that they were going for drinks party. On such

questioning by Murali quarrel took place between him and

accused, in the process accused torn the shirt of Murali.

The people assembled there pacified them.

3(b). On 08.05.2014 at about 6.30 p.m. the said

Murali and PW.14 Venu were returning on motor cycle

CRL.A. No.122 OF 2017

from Vijayapura towards Koramangala, at that time they

saw accused who was taking Mani and another person on

a Star City motor cycle towards Vijayapura. It is further

the case of prosecution that CW.2 Narasimhappa last seen

accused nearby his farmhouse, where the accused was

taking water from the drum which was kept in front of his

house and he was accompanied by one more person by

name Gangaraju. Thereafter both of them went away after

taking the water. On 09.05.2014 CW.2 Narasimhappa in

the early morning at 6 a.m. came out from his house and

while attending nature call noticed the dead body and the

said dead body is subsequently identified by CW.1

Shivarajkumar who is the brother of deceased Mani. On

these allegations made in the complaint the Investigating

Officer after completing the investigation filed the charge

sheet under Section 302 of IPC.

4. In response to the summons accused has

appeared through his counsel. The Trial Court on being

Prima facie satisfied of the charge sheet materials framed

the charge under Section 302 of IPC. Accused pleaded not

CRL.A. No.122 OF 2017

guilty and claimed to be tried. The prosecution in order to

prove the allegations made against accused relied on the

oral evidence of PWs.1 to 28 and documents Exs.P.1 to 27

so also got identified MOs.1 to 16.

5. On closure of the prosecution side, the statement

of accused under Section 313 of Code of Criminal

Procedure, 1973 (hereinafter for brevity referred to as 'the

Cr.P.C.') came to be recorded. Accused has denied all the

incriminating material evidence appearing against him and

claimed that false case is filed. The Trial Court after

appreciation of evidence on record acquitted the accused

for the offence alleged against him.

6. Appellant/State challenging the judgment of

acquittal contended that the Trial Court has not properly

appreciated the evidence placed on record by the

prosecution. The brother of deceased Mani, PW.5

Shivarajkumar has identified the dead body and the

evidence of PWs.1 to 4, 6 to 9 and 14 is sufficient to

establish the motive for commission of the offence. The

CRL.A. No.122 OF 2017

evidence of PWs.4, 6, 10 and 11 is sufficient to prove the

mahazar conducted by the Investigating Officer, the star

witness of the prosecution. PW.16 Murali would be

sufficient to prove the last seen theory and motive. The

evidence of PW.18 Dr.Annappa Swamy who has conducted

autopsy of deceased Mani and issued postmortem report

Ex.P.16 would prove that the death of Mani is homicidal

death. The evidence of PW.28 Dr.A.N.Srinivas speaks

about the injury found on the accused noted in the wound

certificate Ex.P.26 that he suffered the injury in the

accident in question, which would be sufficient to establish

the complicity of the accused. The accused has not offered

any explanation as to how he suffered injury. The extra

judicial confession of accused before PW.23 C.R.Nagesh is

not at all considered by the Trial Court. The entire

approach and appreciation of evidence by Trial Court is

contrary to law and evidence on record. Therefore, prayed

for allowing the appeal and to set aside the judgment of

acquittal passed by the Trial Court, consequently to

convict the accused for the offence alleged against him.

CRL.A. No.122 OF 2017

7. In response to the notice the accused has

appeared through his counsel. In view of the order of

dated 23.08.2023 Amicus curiae Smt.K.M.Archana was

appointed to represent the respondent.

8. Heard the arguments of both sides.

9. After hearing both the sides and on perusal of Trial

Court records, the following points arise for consideration:

1) Whether the prosecution has proved beyond

all reasonable doubt that on 08.05.2014 at

10.30 p.m. in Koramangala village within the

jurisdiction of Vijayapura Police Station accused

and another person Suresh with common

intention and due to old enmity took the

deceased Mani near Koramangala village and

assaulted on him with stone and clubs over his

head and other parts of the body with an

intention or knowledge to commit his murder,

thereby committed an offence punishable under

Section 302 r/w 34 of IPC?

CRL.A. No.122 OF 2017

2) Whether interference of this Court is

required?

10. On careful perusal of oral and documentary

evidence placed on record, it would go to show that

prosecution alleges that accused and another person by

name Suresh with a common intention due to old enmity

took the deceased Mani near Koramangala and assaulted

deceased Mani with stone and clubs over his head and

other parts of the body, thereby committed his murder.

11. Learned High Court Government Pleader for

appellant/State has argued that the case of prosecution is

based on circumstantial evidence. The evidence of PW.5

Shivarajkumar brother of deceased Mani has identified

dead body of his brother Mani laying by the side of the

road. The evidence of PWs.1 to 4, 6 to 9 is sufficient to

establish the motive for commission of the offence. The

evidence of PWs.4, 6, 10 and 11 is sufficient to prove the

mahazer conducted by the Investigating Officer, the star

witness of the prosecution. PW.16 Murali has spoken about

CRL.A. No.122 OF 2017

the last seen theory and motive. The evidence of PW.18

Dr.Annappa Swamy and the postmortem report Ex.P.16

proved the homicidal death of deceased Mani. In the

incident accused has also suffered injury and he has been

examined by PW.28 Dr.A.N.Srinivas and issued wound

certificate Ex.P.26 on 13.05.2014, which would establishes

the complicity of the accused and the accused has offered

no any explanation as to how he sustained the injuries.

The Trial Court has not at all considered the extra judicial

confession of accused before PW.23 C.R.Nagesh. On arrest

of accused his written confession came to be seized from

pant pocket under the panchanama Ex.P.5 and written

confession at Ex.P.6. The said evidence of prosecution

witnesses has not been considered by the Trial Court and

observations and finding recorded by the Trial Court are

contrary to the evidence on record.

12. Per contra the learned Amicus curiae has argued

that the evidence of prosecution witnesses is insufficient to

prove the circumstances of motive and last seen theory is

totally unreliable. The prosecution has alleged that

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CRL.A. No.122 OF 2017

accused and another person Suresh have committed the

murder of deceased Mani. However, in the entire charge

sheet there is no any reference or being arrayed as

accused in this case. The evidence of PWs.6, 8, 9 and 14

does not match with each others version. The evidence of

PW.19 Gangaraju is against the complaint allegations

Ex.P.4 and there is nothing in his evidence to prove the

motive. PW.1 Narasimhappa who was inside the house and

has not seen the accused and his evidence is totally

vague. The evidence of mechanic PW.20 Firdosh Pasha is

unreliable and the blood stained cloth of accused have not

been subjected to FSL examination. The Investigating

Officer has not collected any call records of accused and

PW.19 Gangaraju to establish that accused has contacted

them on the day of incident or prior to the day of incident.

If the entire evidence placed on record by the prosecution

is appreciated, then all the chain link has not been

established by the prosecution. The findings recorded by

the Trial Court is based on the material evidence placed on

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CRL.A. No.122 OF 2017

record and the same does not call for any interference of

this Court.

13. Before proceeding further in analysing the

evidence led in the matter, it is to be borne in mind that it

is an appeal against the judgment of acquittal of the

accused from the alleged offence punishable under

Sections 302 r/w Section 34 of IPC. Therefore, the

accused has primarily the double benefit. Firstly, the

presumption under law that, unless the guilt is proved, the

accused has to be treated as innocent in the alleged crime.

Secondly, the accused is already enjoying the benefit of

judgment of acquittal passed under the impugned

judgment. As such, bearing the same in mind, the

evidence placed by the prosecution in the matter is

required to be analysed.

(a) Our Hon'ble Apex Court, in its judgment in the

case of Chandrappa and others -vs- State of Karnataka,

reported in (2007) 4 Supreme Court Cases 415, while

laying down the general principles regarding powers of the

Appellate Court while dealing in an appeal against an order

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CRL.A. No.122 OF 2017

of acquittal, was pleased to observe at paragraph 42(4)

and paragraph 42(5) as below:

" 42(4) An appellate court, however, must bear in mind that in case of acquittal, there is double presumption in favour of the accused. Firstly, the presumption of innocence is available to him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent court of law. Secondly, the accused having secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the trial court.

42(5) If two reasonable conclusions are possible on the basis of the evidence on record, the appellate court should not disturb the finding of acquittal recorded by the trial court."

(b) In the case of Sudershan Kumar -vs- State of

Himachal Pradesh reported in (2014) 15 Supreme Court

Cases 666, while referring to Chandrappa's case (supra),

the Hon'ble Apex Court at Paragraph 31 of its Judgment

was pleased to hold that, it is the cardinal principle in

criminal jurisprudence that presumption of innocence of

the accused is reinforced by an order of acquittal. The

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CRL.A. No.122 OF 2017

Appellate Court, in such a case, would interfere only for

very substantial and compelling reasons.

(c) In the case of Jafarudheen and others -vs- State

of Kerala, reported in (2022) 8 Supreme Court Cases 440,

at Paragraph 25 of its judgment, the Hon'ble Apex Court

was pleased to observe as below:

" 25. While dealing with an appeal against acquittal by invoking Section 378 Cr.P.C, the appellate Court has to consider whether the trial court's view can be termed as a possible one, particularly when evidence on record has been analysed. The reason is that an order of acquittal adds up to the presumption of innocence in favour of the accused. Thus, the appellate Court has to be relatively slow in reversing the order of the trial court rendering acquittal. Therefore, the presumption in favour of the accused does not get weakened but only strengthened. Such a double presumption that enures in favour of the accused has to be disturbed only by thorough scrutiny on the accepted legal parameters."

The above principle laid down by it in its previous

case was reaffirmed by the Hon'ble Apex Court, in the

case of Ravi Sharma -vs- State (Government of NCT of

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CRL.A. No.122 OF 2017

Delhi) and another reported in (2022) 8 Supreme Court

Cases 536.

The Hon'ble Apex Court in another latest judgment in

Roopwanti Vs. State of Haryana and others reported

in 2023 SCC online 179, wherein it has been observed

and held in paragraph No.7 that:

" In cases where a reversal of acquittal is

sought, the Courts must keep in mind the

presumption of innocence in favour of the

accused, on grounds of it surviving to rigorous

of full trial is strengthened and stands forfeited.

The prosecution then while still working under

the same burden of proof, is required to

discharge a more onerous responsibility to

annual and reverse the forfeited presumption of

innocence. This fortification of the presumption

of innocence has been held in a catena of

judgment by this Court".

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CRL.A. No.122 OF 2017

It is keeping in mind the above principles laid down

by the Hon'ble Apex Court, we proceed to analyse the

evidence placed in this matter.

14. On careful perusal of the oral and documentary

evidence placed on record by the prosecution, it is evident

that the case of prosecution entirely rest on circumstantial

evidence. The prosecution relies on the following

circumstances:

1) Motive

2) Last seen theory

3) Incident

4) Written confession of accused and lastly

5) Extra judicial confession of accused before

PW.23 C.R.Nagesh.

15. The prosecution to prove the circumstantial

evidence must establish all the connecting chain of events

to prove that it is accused alone and none else has

committed the murder of deceased Mani. The well known

rule governing circumstantial evidence is that each and

every incriminating circumstances must be clearly

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CRL.A. No.122 OF 2017

established by reliable evidence and the circumstances

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 except the guilt of

the accused. It is profitable to refer the landmark

judgment of Hon'ble Apex Court in SHARAD

BIRDHICHAND SARDA Vs. STATE OF MAHARASHTRA

reported in (1984) 4 SCC 116, wherein five golden

rules set out must be fulfilled before a case against an

accused can be said to be fully established on

circumstantial evidence as under :

1. the circumstances from which the conclusion of guilt is to be drawn must or should be and not merely 'may 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.

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CRL.A. No.122 OF 2017

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.

In another latest judgment of the Hon'ble Apex Court

in Dinesh Kumar V. State of Haryana reported in AIR

2023 SC 2795 has reiterated the same principle in

SHARAD BIRDHICHAND SARDA Vs. STATE OF

MAHARASHTRA (supra) regarding the conditions to be

fulfilled before a case against an accused can be said to be

fully established on circumstantial evidence.

16. The prosecution has to first establish that the

death of deceased Mani is a homicidal death. On perusal of

inquest panchanama Ex.P.2 and the evidence of PW.4

Thammanna, PW.6 Venkataraju and the evidence of

Investigating Officer PW.24 Shivareddy, would go to show

that inquest panchanama Ex.P.2 was conducted in

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CRL.A. No.122 OF 2017

presence of PW.4 Thammanna and PW.6 Venkataraju. The

deceased has sustained as many as seven injuries noted in

the inquest panchanama. The evidence of PW.18

Dr.Annappa Swamy and postmortem report Ex.P.16 would

go to show that, the death of Mani is due to crush injury to

brain and the said injury along with other injuries were

noted in the inquest panchanama Ex.P.2 and the

postmortem report Ex.P.16. PW.18 Dr.Annappa Swamy

has given opinion ExsP.17 and 18 on examining MOs.1 to

6 and stated that the injures found on the deceased Mani

can be found, if a person is assaulted by means of MOs.1

to 6. There is no any contrary evidence that has been

brought on record during the course of cross-examination

of above referred witnesses. Therefore, the prosecution

out of the evidence as above referred witnesses has

proved that death of Mani is a homicidal death.

17. The prosecution to prove the place of incident

and recovery of MOs.1 to 9 relied on the oral testimony of

PW.4 Thammanna and PW.6 Venkataraju, so also the

evidence of Investigating Officer PW.2 Shivakumar. PW.4

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CRL.A. No.122 OF 2017

Thammanna and PW.6 Venkataraju during the course of

their evidence have deposed about preparing panchanama

in their presence Ex.P.1 and the recovery of MOs.1 to 9

from the place of incident. The said evidence is further

corroborated by the evidence of Investigating Officer

PW.24 Shivareddy. The dead body was found at the place

of incident with the injuries over the body as referred in

the inquest panchanama Ex.P.2. The defence though has

subjected all these three witnesses to lengthy

cross-examination, nothing worth material has been

brought on record to discredit the evidence of these

witnesses. Therefore the prosecution out of the said

evidence on record has proved the place of incident.

18. The prosecution has relied on the evidence of

PW.18 Dr.Annappa Swamy who has conducted the autopsy

of deceased Mani and given postmortem report Ex.P.16.

On perusal of the evidence of PW.18 Dr.Annappa Swamy

and the post mortem report Ex.P.16 has found the

following injuries:

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1) 5X1 cm size Cut Lacerated Wound

present over roof of the nose.

2) 6X4X3 cm Cut Lacerated Wound

present over occipitu parietal region

on left side.

3) 6X1 cm Cut Lacerated Wound Front

parietal region.

4) 3X1 cm Cut Lacerated Wound

present over chin.

5) Broken upper incises present.

6)Bony crepitus present over occipitu

parietal bone.

7)Brain (occipitu parietal region) is

visualized out side.

PW.18 Dr.Annappa Swamy has deposed that cause of

death is due to crush injury to brain. Therefore, the said

evidence placed on record by the prosecution, would go to

show that deceased Mani died due to injuries over his

head.

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19. The prosecution alleges the first circumstance of

motive that there was old enmity between accused and

deceased. PW.16 Murali regarding the incident that took

place on 07.05.2014 has deposed to the effect that himself

and deceased Mani were proceeded on the motor cycle

from Koramangala towards Avathi. At that time accused in

Koramangala circle asked PW.16 Murali for giving drinks

party on the eve of marriage of his maternal uncle son.

However, PW.16 Murali did not respond to the same and

proceeded to a bar in Avathi. At that time accused and one

more person came to the bar and then PW.16 Murali

proceeded to petrol bunk for filling petrol to his vehicle and

accused on his motor cycle followed him. PW.16 Murali at

that time asked accused questioning him about the drinks

party in the village and accused torn his shirt. The

deceased Mani along with others pacified the quarrel.

Looking to the said evidence of PW.16 Murali, it would go

to show that the said enmity between PW.16 Murali and

accused is just a day prior to the incident. The deceased

Mani has only intervened to pacify the quarrel between

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PW.16 Murali and accused. In fact there is no direct

evidence in the form of evidence of PW.16 Murali that

there was old enmity between deceased Mani and accused.

The intervention of Mani in pacifying the quarrel between

PW.16 Murali and accused cannot be termed as an act of

accused having old enmity against deceased Mani. The

incident that took place on 07.05.2014 in tearing the shirt

of PW.16 Murali by accused cannot be said as a strong

motive for accused to commit the murder of deceased

Mani, only because he intervened to pacify the quarrel

between the accused and PW.16 Murali. The learned

Amicus curiae on the point of motive relied on the

judgment of Hon'ble Apex Court in Anil Rai Vs. State of

Bihar reported in AIR 2001 SC 3173, wherein it has

been observed and held that:

"The admitted position of law is that enmity is a double edged weapon which can be a motive for the crime as also the ground for false implication of the accused persons. In case of inimical witnesses, the courts are required to scrutinize their testimony with anxious care to find out whether their

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testimony inspires confidence to be acceptable notwithstanding the existence of enmity. Where enmity is proved to be the motive for the commission of the crime, the accused cannot urge that despite proof of the motive of crime, the witnesses proved to be inimical should not be relied upon. Bitter animosity held to be a double edge weapon may be instrumental for false involvement or for the witnesses inferring and strongly believing that the crime must have been committed by the accused. Such possibility has to be kept in mind while evaluating the prosecution witnesses regarding the involvement of the accused in the commission of the crime. Testimony of eye- witnesses, which is otherwise convincing and consistent, cannot be discarded simply on the ground that the deceased were related to the eye-witnesses or previously there were some disputes between the accused and the deceased or the witnesses. The existence of animosity between the accused and the witnesses may, in some cases, give rise to the possibility of the witnesses exaggerating the role of some of the accused or trying to rope in more persons as accused persons for the commission of the crime. Such a possibility is

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required to be ascertained on the facts of each case. However, the mere existence of enmity in this case, particularly when it is alleged as a motive for the commission of the crime cannot be made a basis to discard or reject the testimony of the eye-witnesses, the deposition of whom is otherwise consistent and convincing" (emphasis supplied by me).

In view of the principles enunciated in this decision

by Hon'ble Apex Court, the evidence of PW.16 Murali and

other witnesses will have to be appreciated in the light of

case made out by the prosecution.

20. The prosecution claims the second circumstances

on the basis of last seen theory. The prosecution to prove

the said circumstances relies on the oral testimony of

PW.1 Narasimhappa, PW.14 Venu and PW.16 Murali. PW.1

Narasimhappa has deposed to the effect that, he was

having agricultural land in Koramangala of Vijayapura and

residing in the house constructed therein. About one year

back, in the night between 8 p.m. to 9 p.m. while he was

in the house, heard somebody is talking and he questioned

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as to who is that person. In response the person in Telugu

language answered that he is Satish and in the light has

seen the face of accused Satish. He after taking the water

from the drum kept in front of his house went along with

another person with him Gangaraju @ Achari.

20(a). PW.1 Narasimhappa in his cross-examination

admits that he has only heard the talking and did not see

the face. However, he firmly states that the said person is

Satish. PW.1 Narasimhappa further admits that he was at

a distance of 30 to 40 ft. in the house, he further admits

that there was no light at the place where the person was

standing and he did not know which colour dress the said

person was wearing. If the above referred admissions of

PW.1 Narasimhappa in his cross-examination are taken

into consideration, then it is evident that the identification

of accused is only on the basis of voice and he has not

personally seen him. Therefore, the evidence of PW.1

Narasimhappa cannot be accepted to prove the last seen

theory claimed by the prosecution.

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21. PW.16 Murali has only deposed about the

incident that according to him took place on 07.05.2014

and accused having torn his shirt. PW.16 Murali with

regard to he having seen the accused in the company of

deceased Mani and another person on Star City motor

cycle. Further in Pallavi Dabha accused has threatened

Mani that he will kill him, since he is supporting PW.16

Murali. PW.16 Murali also did not speak anything about

having seen the dead body of Mani on 08.05.2014.

21(a). PW.14 Venu has deposed to the effect that on

the next day of incident in the evening between 6 p.m. to

6.30 p.m. he was proceeding on his motor cycle to

Koramangala, at that time he saw accused, Mani and

another unknown person proceeding on motor cycle

towards Vijayapura. According to the statement of PW.16

Murali Ex.P.14 and as per the case of prosecution both

PW.16 Murali and PW.14 Venu were proceeding on motor

cycle. It is at that time, they saw the accused on Star city

motor cycle proceeding with Mani and another person

towards Vijayapura. However, PW.16 Murali during the

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course of his evidence does not speak anything that PW.14

Venu and himself was proceeding on motor cycle, at that

time they saw accused proceeding on Star City motor

cycle with Mani and another person towards Vijayapura

and PW.14 Venu also does not state that PW.16 Murali

was with him on the motor cycle when he alleged to have

seen the accused proceeding on his Star City motor cycle

with Mani and another person. Therefore, under these

circumstances evidence of PW.14 Venu last seen accused

while going on the Star City motor cycle with Mani and

another person cannot be relied.

22. Learned Amicus curiae for respondent in support

of her contention on last seen theory relies on judgment of

Hon'ble Apex Court in Kanhaiya Lal Vs. State of

Rajasthan (2014) 4 SCC 715, where in it has been

observed and held in para No.12 as under:

"12. The circumstance of last seen together does not by itself and necessarily lead to the inference that it was the accused who committed the crime. There must be something more establishing connectivity between the accused and the crime. Mere non-explanation

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on the part of the appellant, in our considered opinion, by itself cannot lead to proof of guilt against the appellant."

22(b). The learned amicus curiae for respondent also

relied on the another latest of Hon'ble Apex Court in

R.Sreenivasa Vs. State of Karnataka in

Crl.A.No.859/2011, dated 06.09.2023, wherein the

Hon'ble Apex Court by referring to the above referred

Kanhaiya Lal judgment and its earlier judgments has held

that:

"The burden on the Accused would, therefore, kick in, only when the last seen theory is established".

Therefore, the burden of accused offering an

explanation in terms of Section 106 of Evidence Act would

shift only when the prosecution established last seen

theory. Therefore, in view of the principles enunciated in

both the aforementioned judgments of Hon'ble Apex Court

and the above referred evidence of material witnesses

PW.1 Narasimhappa, PW.14 Venu and PW.16 Murali the

claim of prosecution that they have last seen accused in

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the company of deceased Mani and another person cannot

be legally sustained.

23. The prosecution to prove the incident relies on

the oral testimony of PW.6 Venkatraju, PW.8 Ranjith, PW.9

Chetan and PW.14 Venu and that of PW.16 Murali. The

entire case of prosecution revolves around star witness

PW.16 Murali and the case of prosecution begins with his

evidence. PW.16 Murali has deposed to the effect that on

07.05.2014 he went to Dabha along with Mani for

celebrating marriage party. PW.16 Murali and deceased

Mani were proceeding on motor cycle at about 6 p.m. to

6.30 p.m. from Koramangala to Avathi and near

Koramangala circle the accused asked them whether they

are going to give drinks party or not. The same has made

annoyance to PW.16 Murali and without answering

accused went to Dabha. Accused and Suresh followed

them and after they having alcohol in Dabha, there was

quarrel between PW.16 Murali and accused, in the said

incident accused torn the shirt of PW.16 Murali. The

deceased Mani intervened and tried to pacify them, but

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accused abused deceased Mani and questioned that why

he is supporting PW.16 Murali. Thereafter PW.16 Murali

went to petrol bunk to fill petrol for his motor cycle and

the accused followed him on his motor cycle. Accused

questioned him as to why he is degrading him in the

village before elders and made galata, so also torn his

shirt and eight persons who were in Dhaba pacified the

quarrel. Thereafter himself and Mani came back to their

village. PW.16 Murali has not spoken anything about the

incident that took place on 08.05.2014. Therefore, he has

been partly declared as hostile witness. PW.16 Murali

during the course of cross-examination by learned Public

Prosecutor did not admit that on the day of incident on

08.05.2011 in the evening at 6 p.m. to 6.30 p.m. saw the

accused and another person proceeding on the motor

cycle and having given statement before the police

Ex.P.14.

24. The evidence of PW.6 Venkataraju PW.8 Ranjith,

PW.9 Chetan and PW.14 Venu would go to show that, they

have spoken about only the incident that took place in

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Dabha on 07.05.2014 and their evidence is inconsistent

with regard to the manner in which the incident took place

in the Dabha, but they have consistently deposed about

quarrel having taken place in Dabha between PW.16 Murali

and accused. However, the said evidence does not connect

with the incident that took place on 08.05.2014 and

according to the prosecution, accused by means of stone

and club assaulted over the head of Mani and committed

his murder. The circumstances relied by the prosecution

failed to prove the same which would create serious doubt

about the incident that took place on 08.05.2014 and

accused by means of wooden pieces and stone assaulted

on him and committed his murder.

25. According to the case of prosecution accused,

Suresh, deceased Mani and Achary all of them have

consumed drinks on the day of incident. According to the

evidence of PW.10 Ramesh and PW.11 V.Ranganath,

accused has led them and police officials and shown the

place where they have committed the murder and also

recovered Brandy packets seized under Ex.P.7. However,

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the evidence of PW.18 Dr.Annappa Swamy who conducted

post mortem of deceased Mani on 09.05.2014 and issued

post mortem report Ex.P.16 has categorically admitted in

his cross-examination that he did not find any traces of

alcohol in the stomach of deceased Mani, this would create

a serious doubt in the case of prosecution that accused,

Mani, Achari and Suresh have consumed alcohol on the

day of incident and accused by means of wooden pieces

and stone assaulted over the head and other parts of the

body, thereby committed murder of Mani.

26. According to the evidence of PW.5 Shivarajkumar

the brother of deceased Mani who has filed complaint

Ex.P.4 and the evidence of PW.14 Venu, PW.16 Murali,

PW.19 Gangaraju would go to show that, there is

involvement of one more person by name Suresh.

However, there is absolutely no any investigation

regarding the said Suresh or any other persons being

involved in committing the murder of deceased Mani. The

evidence of Investigating Officers PW.26. S.Mahesh Kumar

and PW.27 Thimmaiah is totally silent on these aspect.

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This circumstance also would create serious doubt about

involvement of accused in committing the murder of

deceased Mani.

27. It is the evidence of PW.28 Dr.A.N.Srinivas that

on 13.05.2014 at 7 p.m. in Vijayapura Police Station,

PC.No. 1153 Sri.Ramkumar produced the accused and on

examination PW.28 Dr.A.N.Srinivas found the injury over

upper portion of the right eye of 1 ½ inch length and the

said injuries opined to be simple in nature and accordingly

issued wound certificate Ex.P.26. It is in the evidence of

PW.26 S.Mahesh Kumar that, after the arrest of accused

he found injury on right eyebrow. Therefore, he sent him

to government hospital on 13.05.2014. Initially the wound

certificate Ex.P.26 was not produced by the prosecution

and PW.26 S.Mahesh Kumar was recalled after closure of

his evidence to speak on this aspect. Since according to

him the earlier Investigating Officer PW.27 Thimmaiah had

received the wound certificate, but was not filed along with

the charge sheet. The evidence of PW.27 Thimmaiah is

silent on this aspect. The evidence of PW.22 Shivakumar

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who arrested the accused is also silent about any injury

having been found when he arrested accused. It is

nobody's case that in the incident accused also sustained

injuries. Therefore, under these circumstance the evidence

of PW.28 A.N.Srinivas and wound certificate Ex.P.26, so

also that of Investigating Officer PW.26 S.Mahesh Kumar

that accused sustained injury in the incident also creates

serious doubt. Therefore, under these circumstances it is

difficult to believe the case of prosecution regarding the

alleged incident said to have taken place on 08.05.2014

and the accused assaulted deceased Mani by means of

wooden pieces and stone, thereby committed his murder.

The complete chain of circumstances to prove the incident

as claimed by the prosecution has not been established

out of the evidence of above referred witnesses.

28. The next circumstance claimed by the

prosecution is that accused has given extra judicial

confession before PW.23 C.R.Nagesh. The evidence of

PW.23 C.R.Nagesh would go to show that on 08.05.2014

at 11 p.m. he was in Devanahalli bus stand waiting for bus

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to go to his village Lalagondanahalli and at that time

accused came to the said place and he was frightened, so

also he was smelling alcohol, when he questioned as to

what has happened, accused stated that he has committed

the murder of Mani by assaulting with stone and wooden

pieces. Further, he is going out of the village and asked

him not to disclose any body in the village, as there is

threat to his life. PW.23 C.R.Nagesh in his cross-

examination admits that accused is not his friend and he

is known to him by face, since he met him while he was

going to seize the vehicle. PW.23 C.R.Nagesh claims in his

cross-examination that one Police Constable had came to

his house and there were no any officers with him and he

has given statement in his house itself before the said

Police Constable. He further claims that he has not gone to

Police Station and he has not given any statement before

CPI or PSI. The statement of this witness under Section

161 Cr.P.C. has not been recorded by Police Constable.

Looking to the evidence of above referred witnesses, in

the light of case made out by the prosecution, the

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presence of accused at Devanahalli bus stand itself

appears to be very much doubtful, above all why there

should be any threat to the witness PW.23 C.R.Nagesh for

not disclosing confession about the incident said to have

been made by accused. Therefore, the extra judicial

confession said to have been made by accused before this

witness fails to repose confidence of the Court in accepting

his extra judicial confession as a circumstance to prove the

confession of accused.

29. The prosecution relies on the last circumstance of

recovery of written confession from the pant pocket of

accused after his arrest. The prosecution relies on the oral

testimony of PW.7 A.P.Channegowda, PW.25 Prakasha,

PW.22 Shivakumar and that of Investigating Officer PW.26

S.Mahesh kumar.

30. It is the evidence of PW.22 Shivakumar that on

the oral instruction of PW.26 S.Mahesh Kumar himself and

his staff were directed to trace the accused and produce

before him. On the basis of the information given by the

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informants accused was in the house of his sister in

Beerappanahalli of Sidlaghatta Taluk of Chikkaballapura

district they went to the said place on 13.05.2014 and

arrested the accused then produced before PW.26

S.Mahesh Kumar.

31. PW.26 S.Mahesh Kumar has deposed to the

effect that on 13.05.2014 he took further investigation

from in charge CPI PW.24 Shivareddy and PW.22

Shivakumar has produced the accused before him. On

personal search written confession (referred as death

note) came to be recovered in presence of panch

witnesses. PW.7 A.P.Channegowda and PW.25 Prakash

under the panchanama Ex.P.5 the written confession is

identified as Ex.P.6.

31(a). PW.7 A.P.Channegowda has deposed to the

effect that on 13.05.2014 he was called to the Police

Station and the accused was present there. On personal

search, written confession was found in the pocket which

came to be seized under the panchanam Ex.P.5 and he

identified written confession Ex.P.6. However, another co-

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pancha PW.25 Prakash has not supported the case of

prosecution. The prosecution has relied on the evidence of

PW.13 Paramesh who is the elder brother of the accused

and his evidence would go to show that he was called to

the Police Station for identifying the hand writing of his

deceased brother Mani under Ex.P.6 written confession.

He has not supported the case of prosecution having

identified the written confession in the hand writing of his

brother. Therefore, the evidence of PW.13 Paramesh

cannot be of any assistance to the case of prosecution to

prove the contents of the written confession Ex.P.6 is in

the hand writing of deceased Mani.

31(b). PW.26 S.Mahesh Kumar during the course of

cross-examination admits that he has not obtained

writings of accused and has not subjected the written

confession Ex.P.6 with the admitted writing of accused for

expert's opinion. However, it is the claim of PW.26

S.Mahesh Kumar that since the accused has admitted that

it is in his hand writing, he did not seek any expert's

opinion cannot be legally sustained. PW.26 S.Mahesh

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Kumar however admits that he has not obtained signature

of panch witness PW.7 and PW.25 Prakash on the seized

written confession of accused Ex.P.6. Therefore, without

the proof of written confession Ex.P.6 accused alleged to

have been seized from the pocket of accused under

panchanama Ex.P.5 cannot be accepted as legal evidence

to prove the written confession of accused to connect the

alleged recovery of written confession of accused in proof

of the last circumstances to connect with the accused for

having committed the murder of Mani.

32. In view of the reasons recorded above, the

complete chain of circumstance claimed by the prosecution

has not been established out of the evidence placed on

record which can unerringly point out finger against

accused that it is accused alone has committed the murder

of deceased Mani. The Trial Court has rightly appreciated

the evidence on record and the findings recorded by the

Trial Court are based on the material evidence on record

which does not call for any interference by this Court.

Consequently, we proceed to pass the following:

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ORDER

The Criminal Appeal stands dismissed as devoid of

merits.

The assistance rendered by the learned Amicus

Curiae for respondent is appreciated in assisting the Court

for disposal of the appeal.

The honorarium of the learned Amicus curiae for

respondent is fixed as Rs.5,000/- payable by the registry.

Registry to transmit a copy of this judgment along

with Sessions Judge's Court records to the concerned

Sessions Judge's Court without delay.

SD/-

JUDGE

SD/-

JUDGE GSR